Renu Saxena vs S.P. JAKHANWAL

BRIEFLY, the facts are that the complainant got himself registered under IVth Self Financing Scheme for allotment of a 3 bedroom flat on 28th Feb., 1981 and deposited an amount of Rs. 15,000/- as registration charges. The DDA, opposite party (O.P.) advertised a Scheme in January, 1991, inviting applications for allotment of ready built flats in different areas from registrants of 4th & 5th Self Financing Scheme. It was notified by them, that that was the last opportunity available to the 4th Scheme registrants. The registrants were entitled to give 3 preferences of the area, in order of priority.

THE complainant filed an application under that Scheme and gave all the 3 preferences as required by them; the 1st preference was for Kishan Garh flats where 14 flats had bee reserved under the Scheme. It is alleged that there were 12 persons from the 4th Scheme, who gave 1st preference for those flats. However, the complainant was not given a flat in Kishan Garh nor in any other Scheme; whereas the registrants of the 5th Scheme were allotted flats. It is pleaded that as long as the registrants of 4th Scheme were not allotted flats, the registrants of 5th Scheme were not entitled to get the same. Consequently, she filed a complaint for directing the opposite party to allot a flat to her. The complaint has been contested by the opposite party. A preliminary objection has been taken by them that the complaint is barred by limitation. On merits, it is pleaded by them that the flats in Kishan Garh Scheme had been reserved for SC/ST registrants of the 4th Scheme and in case registrants of that category were not available, those were to be given to the SC/ST registrants from 5th Scheme. If SC/ST registrants were not available from both the Schemes, those could be given to any SC/ST registrant. 11 flats in Kishan Garh area were given to the registrants of the 4th Scheme, but the complainant was not declared successful in the draw and therefore, she was not given a flat.

The 1st question that arises for determination is, whether the complaint is barred by limitation. The draw of the Kishan Garh flats was held on 3rd Feb., 1991 and the complaint was filed by the complainant on 13th September, 93. The Consumer Protection Act, 1986 as framed originally, did not provide any period of limitation for filing the complaints. The Act was amended in June, 1993 wherein limitation of 2 years has been prescribed for filing the complaints. It is contended by Mr. Varshney that before coming into force of the Amendment Act, if two years from the date of cause of action had expired, the consumer lost his/her right to file the complaint. In the present case, he submits the limitation expired in Feb., 1993 and therefore, the complaint is barred by limitation.

WE have duly considered the argument but regret our inability to accept the same. Mr. Varshney has fairly admitted that if the Act had not been amended, the complainant could file a complaint within 3 years after the cause of action had arisen to her i.e. she could file it upto Feb., 1994. It is well settled that where ever a later statute shortens period of limitation, the parties must have reasonable time to enforce existing cause of action, notwithstanding the statute. It is not disputed by Mr. Varshney that the complaint was within time on the date of its institution, if the Amendment Act had not came into force. It was filed on 13.9.93 and the Amendment Act came into force on 18.6.93. Thus it was filed within 3 months of coming into force of the Amendment Act and the period of 3 months for filing the complaint, cannot be said to be unreasonable. Therefore, it can not be held that the complaint is barred by limitation. The 2nd question that arises for determination is, whether the flats reserved for SC/ST registrants could be allotted to other registrants of that Scheme if no SC/ST registrants was available. Mr. Varshney, the learned Counsel for the DDA has vehemently argued that it is a general principle of law that if no SC/ST registrant is available from the scheme, the flat should be allotted to SC/ST registrants of the other Schemes. We are not convinced with this submission.

THE complainant has produced photostat copy of brochure for Self Financing Scheme. It relates to the Scheme opening on 1st July, 1990 and closing on 31st July, 1990. It is stated in it, that the applications of the persons registered under the 5th Self Financing Registration Scheme would be considered only after meeting the requirement of the persons registered under 3rd and 4th Self Financing Registration Schemes. Similarly the applications of the persons registered under the 6th Self Financing Registration Scheme will be considered only after meeting the requirement of persons registered in the 4th and 5th Self Financing Schemes. It is further stated therein that for the 4th and 5th Self Financing Schemes, 25% of the flats were reserved for SC/ST registrants, 2% for the persons who had won national recognition in the field of sports, arts, and music and 1% for physically handicapped persons. It is further provided therein that if the requisite number of applications were not received from the above categories, the flats would be offered to the persons in the non-reserved categories. From the aforesaid clause it is evident that the contention of Mr. S.C. Varshney, is not correct. It is further relevant to mention that it has been said in the notices that the registrants of 4th Scheme could not apply for flat thereafter. It became therefore, incumbent upon the DDA that the flats should have been given to the registrants of the 4th Scheme in the 1st instance. However in the present case, it has not be done. After taking into consideration the aforesaid circumstances, we are of the view that the complainant was entitled to a flat in that Scheme. If any flat is vacant in Kishan Garh, she may be allotted that flat otherwise, she should be informed by the DDA within one month in which area(s) and which flats were available. Out of them she should be given one flat which she chooses, within a period of 3 months from the date, she gives the choice. Consequently, we accept the complaint with costs and direct the DDA to allot a flat to the complainant according to the directions given above. In case, they fail to comply with the directions of the Commission, action shall be taken against them under Section 27 of the Consumer Protection Act. Costs Rs. 1,000/-. Complaint allowed.