Delhi Development Authority Vikas Sadan, INA vs Santosh Jain

THIS petition by the Delhi Development Authority (hereafter, "the DDA") challenges the order dated 27th November 2009 of the Delhi State Consumer Disputes Redressal Commission, Delhi (in short, "the State Commission"). By this order, the State Commission has affirmed the order of the District Consumer Disputes Redressal Forum " V (North West District), Shalimar Bagh, Delhi (in short, "the District Forum"), by which the District Forum had directed the DDA to allow conversion of the tenure of the shop purchased by the complainant (petitioner herein) from the original allottees under the scheme of conversion of lease-hold property to free-hold by charging conversion fee on the basis of floor area of the shop i.e., 8.61 sq. mtrs and also to pay Rs.3000/- to the complainant for causing him harassment and mental agony.

THE facts are that the DDA had allotted the shop in question to Shri Ramesh Gupta and Smt Pushpa Gupta in an auction in November 1987. THE physical possession of the shop, which included a mezzanine and a ground floor, was handed over to the said allottees by the DDA on payment of charges indicated in the DDA"s demand letter dated 23rd December 1987. In this demand letter, the area of the shop was mentioned as 17.31 sq. mtrs, i.e., inclusive of the areas of both the ground and the mezzanine floors. THE original allottees sold this shop to the complainant/ respondent through Power of Attorney in October 2003. THE complainant applied for conversion of the shop from lease-hold to free-hold rights in February 2004. THE DDA intimated the charges for conversion at Rs.46,882/- for the area of the shop including the ground and mezzanine floors. In February 2004, however, the complainant deposited Rs.7,053/- on account of ground rent and interest for the area of 8.61 sq. mtrs and also filed a complaint before the District Forum alleging deficiency in service on the part of the DDA, because the latter was not justified in charging the conversion fee for the mezzanine floor of the shop. THE complaint was allowed by the District Forum and affirmed by the State Commission as noticed above. It is against this order of the State Commission that the DDA has preferred this revision petition. (i). I have heard Mrs. Girija Wadhwa, learned counsel for the DDA and Mr. Jai Kumar Jain, authorised representative of the complainant/ respondent.

(ii) It was noticed in our order dated 9th July 2010 that DDA had not filed a copy of the conveyance deed which was executed in favour of the original allottees of the shop. However, some documents were produced Mrs. Wadhwa to show that four copies of the draft conveyance deed had been forwarded to the original allottees for signature and return to the DDA. It was noticed that according to the DDA the said allottee did not return any of the copies of the conveyance deed and hence, the latter could not be executed. The Bench had then specifically asked the authorized representative of the respondent if he was in possession of any of the copies of the draft conveyance deed which would show the specific area of the shop. However, the said authorised representative had stated that he was not in possession of any of the documents. In view of this, reliance is necessarily to be placed on the letter of demand, copy of which has been produced. Under the heading "Particulars of the shop", the size of the shop is clearly mentioned as 17.31 sq. mtrs.

(iii) It would also appear from the documents on record that the original allottee had approached the DDA with the same grievance that the floor area of the shop in question was only 8.61 sq. mtrs (i.e., the area of the ground floor) and hence sought part refund of the amount paid by him. However, he was informed by the DDA by its letter dated 1st October 1990 that the area of the shop, including the mezzanine floor, was 17.31 sq. mtrs,, for which he had been correctly charged. Further, the complainant appears to have taken up this matter with the Secretary to the Government of India, Ministry of Urban Development. The Vice-Chairman of DDA had clarified the position to the Secretary, Ministry of Urban Development by his D.O letter dated 31st August 2007. In addition to clarifying the stand of the DDA in respect of the shop in question, this letter also mentioned the following: "The above shop has been sold few times and the last purchaser is one Smt. Santosh Jain. The area of the shop in the "Agreement to Sell" between Smt. Santosh Jain and the seller is indicated as 17.31 sq. mtr". "Smt. Santosh Jain applied for conversion of the shop to freehold and ever since has been raising the issue that the area of the shop for the purpose of freehold should be taken as 8.61 sq. mtr. The issue has been examined at various levels including Finance Member and Vice-Chairman and it has been decided that the payment of conversion charges will be calculated on the shop area of 17.31 sq. mtr., in view of the facts mentioned above". "Smt. Santosh Jain has also mentioned that in some leases for similarly placed shops the area of only the ground floor has been indicated in the lease deed. It has been decided that even in cases where through oversight area of the mezzanine floor has not been indicated in demand letter/ lease deed, the conversion charges will be calculated by taking area of both the ground floor and the mezzanine floor".

It stands to reason that if a shop has a mezzanine floor, the area of the mezzanine floor ought to be added to the area of the regular floor below in working out the effective area of the shop. While it is true that the mezzanine floor could not be used as a regular floor, the fact cannot be overlooked that a shop with a mezzanine floor offers considerable advantage vis " vis a shop which does not have one. Therefore, it would be logical for the DDA to charge ground rent for the additional/ mezzanine floor also. Consequently the lease charges/ ground rent payable for conversion from lease-hold to free-hold tenure ought to be based on the effective area of the shop (i.e., including the regular and mezzanine floors) and not merely the area of the regular floor, whether it is on the ground level or higher. Therefore, the contention of the respondent/ complainant to charge ground rent, etc., on the basis of the area of the ground floor alone of the shop (8.61 sq. mtrs.) is not, in my view, tenable.

AS a result, this revision petition is allowed and the orders of the State Commission as well as the District Forum are set aside. The DDA, however, is directed to execute the necessary documents of conversion of the tenure of the shop in question from lease-hold to free-hold in favour of the respondent/ complainant within four weeks of payment of the demanded amount by her to the DDA.