DELHI DEVELOPMENT AUTHORITY vs Tika Ram

THIS appeal is directed against order of District Forum II dated 9.1.95 disposing of two complaints involving common questions of fact and law. It will be convenient to refer to the facts of the case of Tika Ram, MIG flat A-11 /38 in Sector 18, Rohini was allotted to him. In this connection demand letter was issued on 21.2.90, the amount of Rs. 1,54,700/- was deposited on 17.4.90 and other formalities were completed on 19.4.90 and respondent Tika Ram was given possession letter on 5.7.90. Possession was actually delivered on 27.2.91. The Complainant claimed interest for the period of delay.

THE plea of D.D.A. in the written statement was that possession could not be delivered earlier as water, electricity and sewerage lines had not been laid by MCD/DESU and W.S. & S.D.U. which were independent bodies and not within the control of D.D.A. The learned District Forum took the view that for failure to provide basic services at the time of delivery of possession the fault lay with D.D.A. and not with allottee. Delay caused on this account constituted deficiency in services. It was, therefore, directed that Complainants were entitled to interest for the period of delay in delivery of possession after the payment of the cost by them. D.D.A. was accordingly directed to pay interest @ 15% per annum from the date the Complainant had paid money till the date of delivery of possession in each case besides Rs. 2000/- each as costs and damages.

Aggrieved by the order D.D.A. has preferred these appeals. The contention of Mr. S.C. Varshney learned Counsel for the appellant is that under Section 53-B of the D.D.A. Act 1957 delivery of 2 months notice was a condition precedent to the filing of the complaint and this having not been done the complaint was not competent. No such objection appears to have been raised before the District Forum. In any case Section 53-B in terms deals with "suits". As at present advised we do not think that a complaint before the District Forum under provisions of the C.P. Act amounts to a suit properly so called. Even though some of the provisions of the Code of Civil Procedure have been made applicable to proceedings under the said Act the settled position is that authorities constituted under the Act are quasijudicial and inspite of some of the trappings of a Court they cannot be considered to be Courts. We may further add that objection raised under Section 53-B is a mixed question of law and fact. It cannot, therefore, be allowed to be taken in appeal for the first time.

IT cannot be disputed that delay in delivery of possession in this case occurred on account of the non-laying of water, electricity and sewerage lines. IT is further not disputed that these lines were to be laid by MCD/DESU and W.S. & S.D.U respectively. IT is wellknown that the said authorities are independent bodies and are not within the control of D.D.A. In Somasundra v. Mysore Urban Development Authority, III (1994) CPJ 19 (NC), the finding was that construction work of houses got delayed due to factors beyond control of the Mysore Development Authority namely non-availability of building material and non-supply of electricity by K.S.E.B. Agreeing with the State Commission, the National Commission held that delay in the completion of construction could not be attributed to any negligence on the part of the Opposite Party. On the contrary, it was on account of reasons beyond control of the Opposite Party. IT was, therefore, held that there was no deficiency in service. This decision is fully applicable to the cases in hand. The respondent invited our attention to the two letters: on dated 27.6.90 from the Superintending Engineer, D.D.A. to Director (Housing) to the effect that neither the development works were completed nor services like water supply and electricity was available. It was requested that as agreed to earlier possession letters be withheld till the aforesaid services were available. The point sought to be made is that inspite of the above request D.D.A nevertheless issued possession letters knowing fully well that possession could not be delivered for want of the abovesaid essential services. The second letter to which our attention was invited is dated 3.8.93 by which the Complainant''s claim for payment of interest was rejected. In the letter it was stated that the delivery of possession of the flat was delayed due to non-availability of water and electricity which were beyond the control of D.D.A. The point sought to be made is that factum of delay on account of non-availability of essential services had been admitted by D.D.A. itself. The aforesaid letters only highlight what is not disputed in the facts of the present case namely that there was delay in handing over the possession but that the delay was on account of the fact that essential services like water, electricity and sewerage lines which had to be laid by other authorities had not been completed. The delay was thus not on account of any negligence on the part of D.D.A. but for reasons beyond its control. This is, therefore, not a case of deficiency in service. For these reasons we allow both the appeals and set aside the order of District Forum II. In the facts and circumstances, there will be no order as to costs. Both the complaints stand dismissed. A copy of this order be communicated to both the parties. Appeals allowed.