MURARI LAL SHARMA vs DELHI DEVELOPMENT AUTHORITY

IN the present complaint, filed under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act), the relevant facts in brief are, that the complainant had registered himself in the New Pattern Scheme, 1979 floated by the opposite party for allotment of Middle INcome Group category flats, the price of which was indicated as Rs. 42,000/- in the brochure. The complainant was allotted flat No. I-50-A, Dilshad Garden, Delhi vide draw of lots held by O.P. on 15.3.1984. However, instead of the same being allotted to him on hire purchase basis a demand letter was sent to the complainant requiring him to pay the price of the flat in question on lumpsum basis. IN order to avoid confusion the complainant deposited Rs. 23,332.20 on 6.5.1985. The complainant being an employee of the Central Government in the Department of Rehabilitation, Ministry of Home Affairs was not in a position to purchase the flat in question on lumpsum basis and as such applied for being considered for the hire purchase scheme. The O.P. allowed the request of the complainant for conversion of mode of payment from cashdown to hire purchase basis on 10.9.1994. However, the complainant realised that the flat allotted to him was situated in a locality which did not have the Central Government Health Scheme in the vicinity and being patient of Glucoma and his wife being a patient of Breast Cancer and his child of acute Bronchitis, the non-availability of emergency medical facility would have created a problem for him and as such the complainant applied for the change of area of flat vide application dated 28.3.1995. The O.P. acceded to the said request of the complainant for change of locality and informed the complainant vide its letter dated 23.7.1985 that a flat in Mayur Vihar Pocket II was available in exchange for the flat already allotted to him. The complainant had requested for allotment of an alternative flat in Pocket-I and IV vide his application dated 28.3.1985, keeping in view the lower valuation of the flats in the said areas. As such, in response to the offer of the O.P. dated 23.7.1985 the complainant personally contacted Shri H.K. Sharma, Asstt. Director (H) for the above said purpose, but the latter without hearing the complainant forced him to accept the flat offered in Pocket II, Mayur Vihar, Delhi. The complainant then met the Housing Commissioner on 5.8.1985 who in the presence of the Asstt. Director (H) promised early allotment of flat either in Pocket I or IV, Mayur Vihar, Delhi. Thereafter the complainant also met the Vice Chairman on 16.5.1986, 17.10.1986 and 6.2.1987. IN fact, the complainant continued to pursue the matter and on 14.1.1988 he was informed that the file of his case had been lost in the office of Director (H) and as such was asked to submit the duplicate copies of the documents for the reconstruction of the file which the complainant duly submitted on 18.3.1988. It was only after protracted correspondence and personal interview with the Vice Chairman of the O.P. that the complainant received the allotment letter for Flat No. 28-D, Pocket IV, Phase I, Mayur Vihar, Delhi on 10.8.1989 followed by a demand letter dated 27.1.1990 requiring the complainant to make the payment of the flat on cash down basis instead of hire purchase basis. On complainant''s representation regarding the conversion of mode of payment a revised demand letter was issued to him on 24.1.1991 for making payment under the hire purchase scheme. The possession of the said flat was finally handed over to the complainant on 18.9.1991 i.e. after 6 years from the date of the first offer made on 23.7.1985. The grievance of the complainant in his complaint is that the price of the MIG flat for which the complainant had registered himself was reflected as Rs. 42,000/- in the brochure, whereas the price finally charged from him for the flat allotted i.e. Flat No. 28-D, Pocket IV, Mayur Vihar, Delhi was fixed at Rs. 2,72,700/-. Furthermore, the maximum price charged in respect of the flat situated opposite to his flat i.e. Flat No. 28-C, Pocket IV, Mayur Vihar, Delhi constructed at the same time was Rs. 1,10,900/-. Not only that, the price of flat No. 37-C, First Floor, Pocket IV, Mayur Vihar, Delhi having similar area and on the same floor allotted, in the month of March, 1989 was fixed at Rs. 1,80,000/- whereas he was charged Rs. 2,72,000/- for a similar flat allotted in the month of August, 1989 and as such had been made to pay Rs. 92,700/- in excess. Furthermore, the complainant was not even paid interest on Rs. 29,958/- deposited by him and lying with the O.P. since 6.5.1985. The complainant has also alleged in his complaint that the O.P. has claimed Rs. 30, 858/- as interest for the old flat No. I-50-A, Dilshad Garden, Delhi allotted to him in 1985 despite the fact that the possession of the same was never handed over to him. Besides the said amount the O.P. has also charged Rs. 7,500/- as change charges against Rs. 1,000/- prevailing in the year 1985 and as such the complainant has been made to pay much more than was due. The complainant has, therefore, filed the present complaint with the prayer that the O.P. be directed to refund to the complainant a sum of Rs. 31,972/- charged in excess by the O.P. towards the cost of the flat allotted to him i.e. D-28-C, Pocket IV, Mayur Vihar, Delhi as per calculations shown in para 19 of the complaint and also to refund Rs. 30,858/- wrongly charged from the complainant as interest against flat No. 1-50-A, Dilshad Garden, Delhi and also pay interest to the complainant on the amount of Rs. 29,958/- deposited by him towards the price of flat No. I-50-A, Dilshad Garden on 6.5.1985 @ 18% per annum from the said date totalling to an amount of Rs. 32,346/-. The complainant had also prayed for the refund of the amount of Rs. 6,500/- charged in excess as change charges.

THE O.P. in its reply/written version filed in this Commission has raised the preliminary objection that the complaint being fictitious and an after-thought is liable to be dismissed with heavy cost. On merits it is alleged by the O.P. that the price of the MIG flat reflected in the brochure as Rs. 42,000/- was only a tentative price and was likely to be enhanced keeping in view the cost of construction and other factors effecting the price of construction. It is also denied that the flat earlier allotted to the complainant at Dilshad Garden, Delhi had no medical facility in the vicinity, under the Central Government Health Scheme, as alleged by the complainant. It is, however, admitted that the request of the complainant for the change of locality was acceded to and flat No. 28-D, Pocket IV, Phase I, Mayur Vihar was allotted to the complainant on 27.11.1990. However, since the conversion of mode of payment from cash down to hire purchase basis was allowed to the complainant only in respect of the earlier allotment of flat made in Dilshad Garden, the same was not applicable to the flat allotted to him at 28-D, Pocket IV, Mayur Vihar, Delhi. But at the request of the complainant for change of mode of payment the same was allowed. O.P. has denied that it has charged excess price from the complainant in respect of the flat allotted to him at Mayur Vihar. As per the version of the O.P. the costing of a flat is made on ''no profit no loss'' basis and that the complainant has been charged the actual cost of construction for it. As regards the payment of interest on the amount deposited by the complainant, in respect of the flat earlier allotted to him at Dilshad Garden, it was stated by the O.P. in its reply/written version, that no interest is payable in respect of the same as, in terms of policy of the O.P., no interest is payable on the deposits made by the allottees in cases where the request for change of flat is made by the allottee himself. It is further stated by the O.P. in its reply/written version that the cost of the flat allotted to the complainant cannot be compared with the cost of the flat allotted to him in the year 1985 as the cost of construction has been increasing and furthermore the price of various flats either in the same locality or different localities cannot be compared with each other as various factors like the area of flat, block of the flat, cost of the land and construction of the flat in question has to be taken into account while fixing valuation of a flat. As regards the amount of Rs. 7,500/- charged from the complainant as change charges are concerned, the same are payable by the complainant in terms of the policy of the O.P. as the complainant had made a request for change of allotment of flat to him in a different locality. THErefore, it is prayed by the O.P. that there being no deficiency in service on the part of the O.P. the complaint of the complainant is liable to be dismissed with cost. Both the parties have led their evidence by way of affidavits. The complainant has filed his own affidavit by way of evidence whereas the affidavit of Shri V.K. Singhal, Director (H) II, DDA has been filed on behalf of the O.P.

We have carefully perused the documents/material on record, as well as, have heard the Counsel for the parties at length. The grievances of the complainant in the present complaint are that the complainant has been charged Rs. 2,72,000/- for the flat allotted to him i.e. Flat No. 28-D, Pocket IV, Mayur Vihar, Delhi whereas the flat allotted to Shri Biswas another allottee of flat No. 28-C, Pocket IV, Mayur Vihar being of the same MIG category and in the same block and floor was priced at Rs. 1,10,900/- as such he is entitled to the refund of the amount of Rs. 31,972/- charged in excess from him. So far as the said contention of the complainant is concerned, the price of the flat prevailing in the year 1984-85 cannot be compared to the price of the flat allotted to the complainant in the year 1989. Furthermore it is a settled law by now that a redressal agency established under the Act cannot go into the question of pricing of the flat as the scope of judicial review of administrative action is very limited. Further more it is an admitted fact on the part of the complainant that he himself had requested for the change of flat allotted to him in 1985 which was priced at Rs. 90,500/- and as such the claim of the complainant for the said relief is not maintainable under the law. The other contention of the complainant is that he had deposited an amount of Rs. 29,958/- (Rs. 23,332 + 6,626/-) towards the price of flat No. I-50-A, Dilshad Garden on 6.5.1985 and that the said amount had been lying with the O.P. since then and no interest had been paid by the O.P. on the same and as such he is entitled to interest on the said amount @ 18%. The O.P. on the other hand has contended that as per the policy of the O.P. it is only in cases where delay has occurred in the handing over the possession of the flat to an allottee, on account of the default of the O.P., that interest is allowed on the deposited amount. In the instant case the request for change of flat and locality was made by the complainant himself and in such cases no interest is payable by the O.P. to the allottees. In this regard keeping in mind the fact that complainant had himself requested for the change of the flat and in between had been offered another flat in Pocket II which allotment was also not acceptable to the complainant the time taken for allotment of an alternative flat in the locality of choice of the complainant would not entitle the complainant to claim interest on the amount deposited by him especially since the policy of O.P. does not warrant such payment of interest. As such the complainant is not entitled to the said relief. Similarly the complainant is also not entitled to the refund of Rs. 6,500/- charged as change charges for the change of allotment of the flat as it is an admitted fact by the complainant that it was at his own request that he was allotted a flat in the locality of his choice and, therefore, the O.P. is entitled to charge the said charges applicable as per policy of the O.P. prevailing at the time of request for change of flat.

THE complainant has also challenged the interest amount levied by the O.P. against flat No. I-50-A, Dilshad Garden, Delhi amounting to Rs. 30,858/- on the ground that the complainant had never been handed over the possession of the flat in question. So far as the said contention of the complainant is concerned, the same appears to be justified as the O.P. has not given any explanation for the charging of the said amount as interest on the price of the flat I-50-A, Dilshad Garden, Delhi allotted to the complainant initially but of which the complainant had never taken the possession and had immediately requested for the change of flat and had further paid an enhanced price for the flat allotted to him in lieu of the earlier allotment. As such the complainant is entitled to the refund of amount of Rs. 30,858/- wrongly charged from him on the said account. In view of the aforesaid discussion the present complaint is partly allowed and the O.P. is directed to refund to the complainant the amount of Rs. 30,858/- with interest @ of 12% per annum, from the date of deposit by the complainant with the O.P., till the date of refund, within 45 days from the date of receipt of this order. The parties are however, left to bear their own costs. Before concluding we may clarify that the complainant would be at liberty to agitate the question of pricing of the flat, in any other appropriate Forum, that may be available to him, if so advised. The present complaint stands disposed of in above terms. Complaint disposed of.