SAROJ SADANAND NARWEKAR vs DELHI DEVELOPMENT AUTHORITY

ALTHOUGH the relief sought in these two cases is different, the cause of action and the facts and circumstances giving rise to the cause of action are identical. They will, therefore, be disposed of by a common order.

IN the first instance, the complainant filed a complaint charging the respondent with the adoption of and indulgence in restrictive trade practices. A Notice of Enquiry (NOE) under Section 10(a) (i) read with Section 37 of the Monopolies and Restrictive Trade Practices Act, 1969 (the MRTP Act for short), was accordingly issued. The respondent filed a reply thereto. After the pleadings were complete, the following issues were framed : (i) Whether the respondent has indulged in or is indulging in restrictive trade practices listed in the NOE ? (ii) Whether the alleged restrictive trade practices are not prejudicial to public interest ? (iii) Relief.

While the complaint proceedings were in progress, the complainant also moved an application claiming compensation under Section 12B of the MRTP Act. On this application too, a notice was issued to the respondent and after the completion of pleadings, the following issues were framed : (i) Whether the respondent has been indulging in restrictive and unfair trade practices as alleged in the compensation application ? (ii) Whether the applicant has suffered any loss or damage on account of these alleged restrictive and unfair trade practices ? (iii) Relief, if any.

Before we advert to the submissions made by the learned Counsel for the parties, it is necessary to state in brief the relevant facts of the case. The complainant applied for allotment of a Category III flat under the Ninth Self-financing Scheme, floated by the respondent in 1996. The complainant deposited the registration fee of Rs. 50,000/- through a bank draft. It is stated in the complaint that the respondent published the list of ineligible candidates in the Hindustan Times on 19.12.1996. This list did not include the application number of the complainant. It was, therefore, presumed that the petitioner was one of the eligible applicants. Subsequently, the list of successful applicants was published on 1.1.1997 in the Times of India. This list also did not include the name of the complainant but surprisingly it included the names of some applicants who were earlier declared ineligible. In her complaint, the complainant has also expressed surprise over the fact that after the draw of lots, the respondent took no time in informing her about the result and sending her the refund order for an amount of Rs. 50,000/-. The complainant has alleged that the action thus taken by the respondent which deprived the complainant of her right of allotment of a flat was illegal and arbitrary amounting to restrictive trade practices within the meaning of Section 2(o)(ii) of the MRTP Act.

IN its written statement, the respondent has denied the allegation that the action taken by he respondent on the application of the complainant was arbitrary and illegal amounting to restrictive trade practices. It has also clarified that the complainant being one of the eligible applicants, her name was included in the draw of lots held on 31.12.1996. But it was sheer luck that the complainant did not succeed and hence no flat could be allotted to her. The respondent has also explained how some of the applicants declared ineligible earlier were included in the draw of lots. It has been stated that the list of ineligible applicants published in the Hindustan Times which seems to be the basis of this allegation, was the list of applicants found ineligible after the first scrutiny. These lists were again scrutinised twice and the applicants who became eligible later by completing the required formalities as well as those who were earlier declared ineligible by oversight, were also included in the draw of lots held on 3112.1996. IN other words, the first list of ineligible applicants as published in the Hindustan Times was not the final list. It underwent changes after the second and third scrutiny and hence this confusion. We have carefully considered the submissions made by the learned Advocates for the parties and have also gone through the pleadings and documents on record. There appears to be no dispute as to the basic facts of the case. It is also admittedly true that allotment of flats was done on the basis of draw of lots held on 31.12.1996. It should be appreciated that there were nearly 60,000/- applicants for allotment of about 6,000 flats and hence the chances of success were very low - in the ratio to 1 : 10. Since the draw of lot is done through the computer, the respondent cannot be faulted for the procedure adopted. If someone remains unsuccessful, the respondent cannot be blamed for it. In a situation where 60,000/- applicants are chasing 6,000 flats every applicant can hope for the best but everybody''s success cannot be guaranteed.

THE respondent has also given satisfactory explanation for the doubt as to how the applicants declared ineligible earlier were included in the draw of lots. It has been explained that the first list of eligible applicants as published in the Hindustan Times was not the final list. It underwent changes after the second and third scrutiny. Hence it is quite likely that some of those who were found ineligible after first scrutiny became eligible later after the second and third scrutiny. And since luck favoured them, they also became successful in the draw of lots. The applicant is also sceptical as to how the respondent managed to prepare and send the refund order so soon after the draw of lots. On the face of it, it looks as if the fate of the complainant was a foregone conclusion. But this has been satisfactorily explained by the respondent. It has been stated that the refund orders in respect of all the applicants registered under the scheme, irrespective of their status as to eligibility etc. were prepared well before the draw of lots. The refund orders of those who were found successful in the draw of lots were destroyed and the refund orders in respect of the remaining applicants were despatched to them immediately. This explains why the intimation was sent to the applicant/complainant so soon after the draw of lots. The respondent has also stated that inadvertantly the word "ineligible" printed on the refund order of the applicant/ complainant was not struck off due to over-sight and that this was a mere clerical error. In view of the foregoing discussion, we do not find any merit in the allegations of the applicant/complainant and hence the respondent cannot be held guilty of adopting restrictive trade practices within the meaning of Section 2(o)(ii) of the MRTP Act. Issue No. (i) is, therefore, decided in the negative.

THE applicant has also claimed compensation amounting to Rs. 1,25,000/-, on various counts stated in the compensation application. Admittedly a refund order for an amount of Rs. 50,000/- i.e., the amount of money deposited as registration fee under the Ninth Self-financing Scheme has already been sent to the applicant/complainant. In our view, this is all that the applicant/complainant can legitimately lay a claim to and this amount has already been refunded. THE applicant/ complainant having failed to make out a case of restrictive trade practices against the respondent, her claim for compensation on various other counts is unjustified and hence rejected.

IN the result, both the complaint petition filed under Section 10(a)(i) read with Section 37 and the compensation application filed under Section 12-B of the MRTP Act fail and are hereby dismissed with no order as to costs. The Notice of Enquiry accordingly stands discharged. Complaint dismissed.