Praveen Mehta vs DELHI DEVELOPMENT AUTHORITY

-THIS is an unfortunate case of act of misfeasance, oppressive and mala fide by the public officer, i. e. of the DDA that deprived the complainant the possession of a flat for inordinately long time for no fault of his.

THE complainant was allotted flat No. 194, 2nd Floor, Sector 23, Pocket-A, Rohini on cash down basis in the draw held on 7. 8. 1996 @ Rs. 5,89,268. 75. He paid to the OP Rs. 5,92,045. 94 by 18. 11. 96 and vide letter dated 18. 12. 96 received from the OP on 3. 2. 1997 submitted the necessary documents and prayed for delivery of possession. However, the possession letter was not issued despite personal visits by the complainant and the OP vide letter dated 4. 6. 1997, received by the complainant in September, 1997, asked the complainant to submit the same documents which the complainant had submitted earlier. Complainant met Mr. Juneja, Assistant Director, MIG (Housing) and all the documents were found in the DDA file. However, on the insistence of Mr. Juneja, the complainant submitted one more set of these documents. Vide letter dated 1. 10. 1997, the OP asked the complainant to complete the conveyance deed within 45 days before the possession of the flat could be given to him. According to the complainant, this is contrary to the enclosure sent with the allotment letter and also to the statement made in the conveyance deed "and physical possession handed over to him". Complainant received another letter dated 19. 1. 1998 from the OP stating that "the possession letter for the flat is not being issued because of the electricity having not been provided in the flat" and offered to give possession without electricity on request. In this letter, there was no mention of the conveyance deed for issuing the possession letter. Thus, according to the complainant, the OP has delayed the possession on one pretext or the other and the OP was not justified in holding a draw for the allotment of the flats and receiving payments from the allottees when the flats were not ready in all respects. Complainant has also objection against the change of his option for allotment on hire purchase basis to cash down basis without his consent and against demand of conveyance deed before delivery of possession. Complainant is seeking possession of the flat; interest @ 18% p. a. on his payment of Rs. 5,92,045. 45 from the date of deposit till the date of possession; and appropriate compensation for mental agony because the conduct of the OP has adversely affected the health of the complainant and her husband. In its defence, OP DDA has pleaded that possession letter could not be issued to the complainant because she failed to submit the original surrender slip, conveyance papers duly stamped and four copies of possession letter and also failed to pay the restoration charges of Rs. 2,500 for late submission of documents. As to the electricity connection, OP averred that this was to be provided by another agency and there were some obstacles in electrifying the area. Complainant was offered possession without electricity which she did not accept. OP has also raised the following preliminary objections: (i) This is not a consumer dispute and the case is exclusively triable by the Civil Court, as it is not covered by the provisions contained in Section 2 (1) of the Consumer Protection Act. (ii) Matter involves complicated questions which require elaborate evidence.

Complainant has filed a rejoinder reiterating the averments made in the complaint. Parties have filed their evidence by way of affidavits.

WE have perused terms and condition of the allotment of the flat agreed between the parties and there is no provision that unless the consumer submits the conveyance papers duly stamped the physical possession of the flat cannot be handed over. Counsel for the respondent contended that these instructions were given by the Government of India, as large number of consumers were not paying the stamp duty and were enjoying the possession of the premises and the Government of India was losing revenue. This argument does not impress us. It is settled law that the parties are governed by the terms and conditions of the contract and any instruction executive or administrative which are beyond the scope of the terms and condition of the contract are not applicable. The consumer cannot be put to jeopardy or loss for non-compliance of such requirements. It is too much that a consumer having paid the entire consideration amount was deprived of the possession of the flat. The conveyance papers of other requirements are only formalities and if a person fails to comply with these formalities and fail to get the conveyance deed executed he suffers, he will not be in a position to sell the same. Whenever he would decide to get the conveyance deed registered he would have to pay as per regulations. In no case possession can be denied. OP- DDA may recover dues through any other process that may run into few hundreds or a thousand or so in lieu of any other demand which is over and above the actual consideration but in no way can deprive the allottee for taking the possession after payment of the actual cost of the flat running into lacs of rupees. Such a provision or instructions are oppressive, arbitrary and against the interests of consumers

IN our view the OP has committeed grossest deficiency in service in not handing over the possession to the complainant for such a long time for the simple reason that he did not submit original surrender slip, conveyance deed papers along with four copies of possession letter. The deficiency as defined by Section 2 (1) (g) of the Consumer Protection Act, 1986 means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. Foregoing reasons persuade us to allow the complaint with the direction to the OP to pay interest @ 9% on the deposited amount of Rs. 5,92,045. 45 w. e. f. 18. 11. 1996 till the date of this order. The OP shall further pay Rs. 50,000 as compensation for the mental agony and harassment suffered as well as loss suffered by the complainant due to having not enjoyed the possession of the flat. The payment shall be made within one month from the date of receipt of this order. Before parting we may bring to the notice of the OP and its officers, the observations of the Supreme Court made in Lucknow Development Authority v. M. K. Gupta, III (1993) CPJ 7 (SC)= (1994) 1 SCC 243, that compensation amount in such cases should be recovered from the salary of public officers, who are found guilty for mala fide, oppressive and arbitrary conduct. These are as under: it is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behaviour by dividing it proportionately where there are more than one functionaries.

COMPLAINT is disposed of in aforesaid terms.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room. Copy of the order be sent to Vice Chairman, Delhi Development Authority. Complaint allowed.