SHAKUNTALA KATHER vs DELHI DEVELOPMENT AUTHORITY

SMT. Shakuntala Kather, resident of K-4, Bapu Nagar, Bhilwara-311001 has filed an application under Section 12B of the Monopolies and Restrictive Trade Practices Act, 1969 (for brief the Act) seeking compensation from the respondent, the Delhi Development Authority based on allegations of indulgence in restrictive and unfair trade practices falling within the definition of Section 2(o) and Section 36A respectively of the Act.

THE brief facts relating to the case as contained in the Compensation Application can be summarized as below : Shri K.L. Kather, husband of the applicant had booked an MIG flat with the respondent under the Registration Scheme - New Pattern 1979. He had paid an amount of Rs. 4,500/- as the registration amount on 28th September, 1979. For several years thereafter the applicant had not received any information regarding allotment of a flat, Shri K.L. Kather wrote a letter on 18th December, 1986 to ascertain the position regarding the allotment in which he had intimated the change of his address. THE new address was at Bhilwara, Raj as than. On the death of Shri K.L. Kather the applicant wrote to the respondent on 3rd September, 1990 requesting for transfer of registration in her name. THE respondent had asked the applicant on 9th March, 1991 to deposit Rs. 100/- as charges for late intimation of death. THE amount was deposited by the former on 3rd April, 1991 and intimated to the respondent through a letter on the same day. Since there was no response from the respondent, she had written to the Lt. Governor of Delhi on 15th June, 1993. In the original Compensation Application the applicant had claimed compensation amounting to Rs. 7,19,500/- which included the estimated monetary loss suffered by the applicant in going in for alternative accommodation elsewhere. The respondent filed a reply to the Compensation Application in which it had stated that the original applicant for the flat Shri K.L. Kather was allotted Flat No. 39, Pocket 10, Block D, Sector 15, Rohini on the basis of draw of lots on 18.1.1991. The demand-cum-allotment letter was sent to the address available in the records of the respondent by registered post and the same was received back with the remarks "no such person". The fact of the respondent having asked the present applicant in the Compensation Application to deposit Rs. 100/- as charges for late intimation of death was, however, admitted. The respondent denied the receipt of the letter from the original applicant dated 18.12.1986 intimating the change of address.

After the enquiry was instituted by the Commission the respondent had effected the transfer of registration in the name of the applicant and allotted in 1996 a flat in Kondli Gharoli locality in the scheme NPRS-79. The applicant was directed to pay an amount of Rs.6,35,600/- from which the original registration amount plus interest thereon up to the date of payment of the cost of the flat would be deducted. The applicant filed an application in which a prayer was made that the cost of this alternative flat should be the same as the amount which she would have had to pay for the original flat and also pointed out that the alternative flat was not in a habitable condition. The respondent has taken the stand that the flat allotted in Kondli Gharoli is not in lieu of the original flat allotted. The applicant after transfer of the registration in her name, was allotted a flat after including her name in the draw held on 7.8.1996.

THE applicant in another application filed with the Commission brought on record the fact that the original flat which was allotted to her husband viz., Flat No. 39, Pocket 10, Block D, Sector 15, Rohini is available now for allotment as the person to whom the flat was allotted by the DDA had surrendered it. A prayer was made that this flat should be allotted to her at the original price. THE respondent while denying the right of the applicant for allotment of this flat confirmed that the flat was now available for allotment by including it in the next draw. THE Commission had passed an order on 11.7.1997 directing the respondent to keep status quo in respect of this flat, if it remained unallotted, until the conclusion of the enquiry and the adjudication of this case. The following issues were framed in this case : 1. Whether the respondent is or has been indulging in unfair trade practices as alleged in the compensation application? 2. If the answer to the foregoing issue is in the affirmative whether the unfair trade practices are prejudicial to public interest or the interest of the consumer or consumers generally? 3. Whether as a result of unfair trade practices the applicant is suffering any loss or injury. 4. What relief, if any, is the applicant entitled?

THE applicant Smt. Shakuntala Kather filed an affidavit by way of evidence. In that she reiterated the facts brought on record in the Compensation Application. THE certificate of registration produced by her indicated the address of the applicant as 21, Satya Niketan, New Delhi-110021. THE copy of the letter reported to have been sent on 18.12.1986 by Shri K.L. Kather to the respondent showed the address as K-4, Bapu Nagar, Bhilwara-311001 and contained the intimation that all further correspondence should be made at this changed address. THE applicant also produced a letter from the respondent dated 19.3.1991 addressed to her to her Bhilwara address in reply to her letter dated 3.9.1990 asking her to deposit an amount of Rs. 100/- as charges for late information relating to the death of her husband. She has also produced a copy of the challan through which Rs. 100/- was paid to the respondent on 3.4.1991 in which her address has been indicated as at Bhilwara. THE respondent did not avail of the opportunity to cross-examine the applicant. On behalf of the respondent Shri R.L. Srivastava, Director of the respondent was produced as witness. Shri Srivastava deposed that the letter dated 18.12.1986 written by the applicant''s husband intimating the change of address was not received by the respondent. He, however, admitted that the respondent wrote the letter to the applicant at Bhilwara calling her up to deposit Rs. 100/- as charges for late information regarding the death of her husband on the basis of the address available from the applicant''s letter dated 3.9.1990. He also deposed that Shri K.L. Kather was allotted a Flat No. 39, Pocket 10, Block D, Sector 15, Rohini and the allotment letter sent to the address available in the records was received undelivered with the remarks "no such person". There was no response to the show-cause notice issued on 21.1.1992 also. During the cross-examination of Shri R.L. Srivastava, the respondent''s witness, the Advocate for the applicant showed the witness an acknowledgement receipt in respect of the registered letter sent by Shri K.L. Kather to the DDA on 18.12.1986 showing that the registered letter was received by the respondent on 22.1.1986. The witness stated that he would not be able to confirm the receipt of this letter without going through the records of the respondent. The witness was given a photocopy of the acknowledgement for further verification. The witness was also shown a copy of a treasury challan for Rs. 100/- dated 3.4.1991 and a copy of the forwarding letter through which the treasury challan was sent to the respondent. The witness undertook to verify the same. Subsequently an affidavit was filed by Shri R.L. Srivastava on 28th May, 1996 in which it was stated that the receipt of the letter dated 18.12.1986 could not be verified as the diary movement registers for the period from January, 1986 to January, 1987 were not traceable by the respondent. Action was being taken against the concerned officials responsible for this. In the affidavit, however, it was confirmed that the applicant had deposited Rs. 100/- on 4.4.1991 and not on 3.4.1991 though it was denied that the forwarding letter dated 3.4.1991 was received by the respondent. The treasury challan through which Rs. 100/- was deposited by the applicant showed the address of the applicant as at Bhilwara. We gave a hearing to Mr. S.S. Kumar, Advocate for the applicant as well as Mr. Apoorv Lal, Advocate for the respondent. We have carefully gone through the records of the case, evaluated the evidences adduced and given due consideration to the arguments advanced by the Advocates.

OUR answers to the issues referred to earlier in this order are as given below ad seriatim: 1. In the affirmative 2. In the affirmative 3. In the affirmative 4. As in the order

The reasons for our coming to the above findings have been discussed in this order.

THE main grievance of the applicant was that in spite of registration for a flat in the year 1979 the respondent has not allotted a flat to her till the date of filing of the application though many others who were registered in the year 1979 have been allotted flats. THE stand of the respondent is that a flat was indeed allotted to the applicant in the year 1991 on the basis of draw of lots held on 18.1.1991 but the letter of allotment which was sent to the applicant to the address given at the time of registration was received undelivered with the remarks of the postal authorities "no such person". THEre was no reply to the show-cause notice issued to the applicant on 21.1.1992 to the same address. On the other hand, the applicant has stated that the change of address was duly intimated to the respondent on 19.12.1986 by registered post. When the present applicant intimated the death of her husband, the original applicant, and asked for transfer of registration in her name through her letter dated 3.9.1990 the respondent did communicate to her through a letter dated 19.3.1991 at the address at Bhilwara. She also paid Rs. 100/- as fee for late intimation of the death of her husband through a challan in which the address has been shown as at Bhilwara. After institution of the enquiry the registration has been changed in the name of the present applicant and a flat has been allotted to her in the year 1996 at Kondli Gharoli on the basis of fresh draw of lots. During the course of the arguments the Advocate for the applicant pressed the prayer of the applicant that the flat originally allotted to his client which was now lying unallotted should be restored to her on the original terms and conditions and if it was not possible the flat allotted in 1996 should be treated as in lieu of the one allotted earlier and his client should not be charged the current prevalent price. From the facts narrated above the main issue for examination is whether the cancellation of the allotment of flat made in 1991 to Shri K.L. Kather was correct and whether the respondent had indulged in any unfair trade practices with reference to the facts of the case.

The applicant has filed an affidavit stating that intimation about the change of address by the original applicant for the flat was sent on 18.12.1996. The applicant has produced the acknowledgement of the respondent for having received the registered letter dated 18.12.1986 on 22.12.1986. The respondent did not avail of the opportunity to cross-examine the applicant to disprove this. On the other hand, the respondent filed an affidavit stating that it had not been able to verify whether the letter dated 18.12.1986 was received by it as the concerned records were not available now.

IT is clear from the records of the case that the respondent had written a letter on 19.3.1991 to the applicant with reference to the letter dated 3.9.1990 of the letter asking her to deposit Rs. 100/- as charges for late information of the death of Shri K.L. Kather. The number of this letter bears the registration number (3028) of the original applicant. This letter was also addressed to the applicant to the Bhilwara address. Under the circumstances, if the letter of allotment of the flat was sent to Shri K.L. Kather at the originally registered address at New Delhi and was returned by the postal authorities the respondent should have made efforts to probe whether there was any change in the address of the applicant. The applicant has also deposited Rs. 100/- with the respondent in April, 1991 and the challan bears the Bhilwara address of the applicant and the respondent has now admitted that this challan was received by it. In the face of these facts the action of the respondent in issuing a show-cause notice to the applicant on 23.1.1992 to the old address betrays negligence. Admittedly the applicant was fortunate enough to be allotted a flat bearing Flat No. 39, Pocket 10, Block D, Sector 15, Rohini in the draw which was held on 18.1.1991. IT is unjust that the applicant should be deprived of this allotment of a flat on the ground that the letter of allotment was returned undelivered specially when the change of address of the applicant had been communicated to the respondent. IT is obvious that there has been a lack of coordination within the office of the respondent. IT is not fair to blame the applicant holding that she had not made sufficient efforts to get the change of address noted by the respondent. Taking into account the circumstances of the case we are of the view that there has been deficiency in service on the part of the respondent and the action of the respondent in denying the applicant of allotment of a flat under 1997 scheme despite inclusion of the name of the applicant in the draw of lots is an unfair trade practice falling within he ambit of Section 36A of the Act. We note that the particular flat which was allotted to the applicant Shri K.L. Kather was subsequently allotted to some body on 21.3.1994 in the draw which was held on 13.12.1993. If this flat had ultimately been allotted to this person, the Commission in order to give relief to the applicant would have had to direct the respondent to allot an alternative flat. However, we note that the allottee of the Flat No. 39, Pocket 10, Block D, Sector 15, Rohini has surrendered this flat and the respondent has stated that the flat is still available for allotment. The Commission has already passed an interim order directing the respondent to keep this flat unallotted until the conclusion of these proceedings. In view of the fact that the name of the present applicant has been substituted for the original applicant Shri K.L. Kather officially and the Flat No. 39, Pocket 10, Block D, Sector 15, Rohini was duly allotted to the original applicant by following the prescribed procedure and the same is now available for allotment, we direct that this flat may now be allotted to Smt. Shakuntala Kather, the applicant in this Compensation Application.

THE question for further consideration is what is the price that is payable by the applicant for allotment of this flat. Since this flat was ready for allotment and was actually allotted in the year 1991 the respondent shall charge from the applicant the same price for this flat which was payable by Shri K.L. Kather when the flat was allotted to him on 19.11.1991. Since the applicant has been deprived of the possession of this flat from 1991 till date and has not been able to derive advantage of the same, we also direct that no interest on the amount payable should be levied on the applicant. In view of this we are not inclined to grant any other compensation as claimed in the original Compensation Application by the applicant for the "monetary loss incurred in going in for alternative accommodation" or for "mental anguish". In view of the direction given above, it is open for the respondent to cancel the allotment of the flat in Kondli Gharoli made to the applicant on the basis of the draw held on 7.8.1996. The amount paid at the time of registration of the application as well as the extra amount paid for allotment of a flat in Kondli Gharoli may be adjusted towards the price of the" flat in Rohini restored to the applicant by this order. In view of the fact that the original flat is being restored to the applicant the respondent need not pay any interest on the original registration amount at the time of adjustment of accounts. We also order that the respondent shall give effect to the directions given above within a period of eight weeks from today and file an affidavit of compliance within two weeks thereafter. There is no order as to costs. Application disposed of.