PAWAN KUMAR RUSTOGI-/ vs DELHI DEVELOPMENT AUTHORITY

A complaint has been filed by the applicant/complainant under Sections 10(a)(i), 2(o), 36A, 36B(a), 37 and 36D of the MRTP Act, 1969 (the Act for brief) charging the respondent with adoption of and indulgence in unfair and restrictive trade practices. It has been alleged by the applicant/ complainant that he applied for a flat under the 6th Self Financing Scheme and got himself registered, by depositing Rs. 15,000/- in 1985, with the respondent, the Delhi Development Authority which has been, from time to time, floating Self Financing Schemes for construction of two bedroom and three bedroom flats, with the finances provided by the applicants. It has been further stated that the flats were to be provided within a period of two years. The grievance of the applicant/complainant is that while advertising the 6th Self Financing Scheme and inviting applications the respondent did not notify the fact that thousands of registrants under the previous schemes were waiting for allotment of flats and that they would be given pre-emptive rights under the present scheme. It has also been mentioned by him that since he was desirous of acquiring a flat in Delhi, he applied four times out of five for a flat and gave Vasant Kunj or a place in South Delhi as his first choice except in 1993 when the flats were not offered in Vasant Kunj. His grievance is that he was allotted a flat in Pocket G, Kondli Gharoli even though he had given Vasant Kunj and Kishan Garh, a place close to Vasant Kunj as his two choices and since he was not lucky to get a flat in the areas of his choice, he had to surrender the allotment at Kondli Gharoli. It has been further complained by him that he did not book a flat or plot in DLF and Palam Vihar which were promoted by the private builders merely because there is a condition precedent for allotment stipulated by the respondent that the applicant should not have any residential house or plot in Delhi. It has been further complained by him that in July- August, 1996, when the respondent announced its 9th Self Financing Scheme, he applied again and deposited Rs. 50,000/- as registration amount, but unlike in the previous schemes pre- emptive rights or priority has not been given to the registrants under this Scheme for allotment of flats in Vasant Kunj. The complainant has also filed a compensation application under Section 12B of the Act.

A Notice of Enquiry was issued to the respondent. In reply, while denying the allegations of unfair and restrictive trade practices, it has been stated on behalf of the respondent that the applicant/complainant was considered for allotment of a flat under the 6th Self Financing Scheme and his name was included in the draw of lots but he was not successful in the draw for allotment in the two locations of his choice but a flat was offered to him at Kondli Gharoli. It has been further stated that since he failed to deposit the balance amount, his registration was cancelled as per the rules and the registration amount deposited by him after certain deductions was refunded to him. It has also been mentioned that the 6th Self Financing Scheme has since been closed. The case of the respondent is that it works on ''no profit, no loss basis'' and on the principle of ''first come first served'' and accordingly, the registrants under earlier schemes were given allotments prior to those under the 6th Self Financing Scheme. It has been further clarified that the registrants of the 6th Self Financing Scheme were given allotments prior to those of 6th A, 6th B, 7th, 8th, 9th Schemes. It has also been highlighted that allotment is made on the basis of draw of lots and the complainant was not successful in the draws held 4 times from 1987 to 1992. However, he was successful in the draw held on 9th March, 1995 and offer of a three bedroom flat on ground floor Category-III in pocket G in Kondli Gharoli was made to him. It has also been explained that the applicant/ complainant gave only two choices but in the draw of lots for allotment in Vasant Kunj he was not successful and, therefore, he could not be allotted a flat in Vasant Kunj. It has been further clarified that the 6th Self Financing Scheme was closed in January, 1995 and no priority for allotment can be given to the registrants of the 6th Self Financing Scheme under the 9th Self Financing Scheme as the two schemes are different.

On completion of pleadings the following issues were framed in the complaint proceeding and the compensation case : (1) Whether the respondent has been indulging in unfair/restrictive trade practices as alleged in the NOE ? (2) Whether the alleged unfair trade practices are prejudicial to the interest of the consumer/consumers at large ? (3) Whether the alleged restrictive trade practices are not prejudicial to public interest ? (4) Whether the applicant/complainant has suffered any loss or damage on account of the above mentioned restrictive/unfair trade practices ? (5) Relief, if any ?

THE applicant/complainant also filed an application for interim relief under Section 12A of the Act praying for an out of turn allotment. Neither a counter affidavit of evidence nor a reply to the interim relief application has been filed on behalf of the respondent. On the other hand, an affidavit by way of evidence has been tendered by the applicant/complainant. I have heard the applicant/complainant who appeared in person as well as the learned Advocate for the respondent. It is not disputed or denied that the applicant/complainant applied for a three bedroom flat in the 6th Self Financing Scheme in 1985 and deposited Rs. 15,000/- as registration amount. It is also not denied by the respondent that the registrants of the previous schemes who had been waiting for allotment were given allotments prior to the new registrants under the subsequent schemes. It is also not denied that in January, 1995 the respondent asked the registrants under the 6th Self Financing Scheme to exercise their option for allotment for a flat and the applicant/complainant gave his option for Vasant Kunj. It is also not in dispute that the brochure issued by the respondent inviting applications under the 6th Self Financing Scheme in 1985 does not mention that the registrants will not be allotted a flat as per their options. Although Clause 13 of the brochure states that the registrants are not allowed to exercise their option for a particular floor or a particular type, as far as location is concerned, there is no bar to the exercise of option by them. It is also not in dispute that the applicant/ complainant had not given Kondli Gharoli as his choice. In fact, the case of the applicant/ complainant is that his option has always been Vasant Kunj and Kishan Garh, which is in close vicinity of Vasant Kunj. If the registrants under the previous schemes were given priority for allotment of flats over the registrants under the 6th Self Financing Scheme, there is no explanation by the respondent for not allowing this concession to registrants under the subsequent schemes except that the said scheme was closed and under the new scheme only registrants under that scheme were eligible for allotments. This is precisely the grievance of the applicant/ complainant that this departure from the old policy has proved to be prejudicial to the interest of the applicant/complainant for no fault of his.

CHANGE in policy from time to time or Scheme to Scheme can by no stretch of imagination be construed as an unfair or restrictive trade policy. It is not the applicant/ complainant''s case that he was successful in the draw of lots and yet he was denied an allotment in the area of his choice. On the contrary, even he has stated that according to the respondent''s policy allotments were offered on the basis of draw of lots and as he was not lucky in the draw, he could not get a flat in Vasant Kunj which is an area of his choice. It can''t be gainsaid that policy is to be laid down by the respondent and can''t be called in question by the applicant/complainant merely because it has affected him adversely. His other grouse is that even though he was willing to accept even a Category II (two bedroom) flat in Vasant Kunj if Category III could not be offered to him as he was unlucky in the draw of lots, no such option was given to him. His contention is that the respondent could have ascertained from him whether he was willing to accept a Category II flat keeping in view the availability of these flats and applicant/ complainant''s preference for Vasant Kunj. According to the applicant/complainant, his preference for Vasant Kunj has always been there and he would have accepted the allotment of a two bedroom flat in that area. While it has not been denied that the applicant/complainant''s preference has always been for Vasant Kunj, the facts highlighted by the respondent are that it was under the 9th Self-Financing Scheme that he was successful in the draw and accordingly an offer of allotment in Kondali Gharoli was made to him. As the 6th and the 9th Self Financing Schemes are different, the question of ascertaining his wishes or making an offer in another area did not arise. In view of these facts which are not disputed, the charge of unfair or restrictive trade practices can''t be sustained. While it is true that the respondent''s policy is to allot flats on the basis of draw of lots, another feature of its avowed policy is ''first come first served''. If that be so, the respondent should consider offering Category II flat to the applicant/ complainant in Vasant Kunj if such flats are available there. It is not in dispute that the applicant/complainant got himself registered with the respondent under the 6th Self Financing Scheme and flats were released for allotment to registrants under the 1st, 2nd, 3rd, 4th, 5th, 6th and 6th A, Self Financing Schemes in 1987,1990, 1991, 1992 and 1995. It also transpires that the applicant/complainant had applied in 1987,1990, 1991, 1995 and had always been giving Vasant Kunj as his preferred choice even though he had been unlucky in the draw of lots held for this area. Although according to the respondent''s policy allotments are made on the basis of draw of lots and going by the draw of lots, he can''t claim an allotment of 3 bedroom flat in Vasant Kunj, he may be considered for allotment of a flat of two bedrooms if such flats are still available there on the analogy that such flats were released in the past to registrants of earlier schemes. It may however, be observed that strictly on merit, there is no case for allotment of a flat to the applicant/complainant in Vasant Kunj as he has not been lucky in any of the draws for that area but on the basis of earlier precedents, he may be considered keeping in view his need for a flat and his preference for Vasant Kunj. In view of the above, no case of unfair trade practices or restrictive trade practices within the meaning of relevant provisions of the Act can be said to have been made out by the respondent and, therefore, there is no question of compensating the applicant/complainant in this case. In the result, the present complaint application as well as the compensation application under Section 12B of the Act deserves to be and is hereby rejected. C.A. dismissed.