ASHISH KUMAR BISWAS Vs. DELHI DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) Brief facts necessary for the disposal of this second application under Sec.27 of the Consumer Protection Act are that the complainant got himself registered under the VI SFS Scheme, 1985 and deposited a sum of Rs.15,000/- as registration money, under SC/st reserved category. In 1990 D. D. A. released some flats of Category III for which the complainant was a registrant. Out of flats so released, 25% were reserved for SC/st categories. Due to an error the name of the complainant was included in the general category and he was found successful in the draw of lots. Later on, however, the error was discovered and the complainant was assured that his name would be included in another draw of lots confined to the said reserved category. The complainant having failed to get the flat in terms of the assurance; filed the aforesaid complaint. In the penultimate paragraph of the order dated 7.4.94 this Commission rejected the prayer of the complainant for allotment of a flat of Category III in Vasant Kunj or in any other area of his choice and expressly held that the complainant was entitled to allotment of one Category III flat in any area in Delhi. The operative part of the order reads as under: "for the aforesaid reasons, we accept the complaint with costs and direct the respondent to allot a flat in Category-Ill to the complainant at the price on which similar flats had been allotted to other SC/st applicants in 1990, within a period of three months. He should be allowed to pay the price of the flat in the instalments in which the other applicants of that category in that draw were allowed to pay. Costs Rs.1,500/-. "

(2.) The complainant did not prefer any appeal against the said order dated 7.4.94 insofar as rejection of his prayer for allotment of a flat in Vasant Kunj or other areas desired by him and the appeal filed by the DDA was dismissed by the National Commission as barred by limitation. The order of the State Commission, thus, became final. The complainant filed an application under Sec.27 of the Consumer Protection Act with a prayer that the respondent be directed to deliver possession of the particular flat in Vasant Kunj for which he was found successful in the initial draw held in 1990. In the alternative, the prayer was to allot a similar flat in Vasant Kunj on the same terms and conditions as the other allottees of the reserved categories who were allotted flats on the basis of draw held in 1990. In particular these terms and conditions were, (i) the flat was to be allotted for the price which was charged from such other allottees in 1990; and (ii) the complainant was to be allowed to pay the first instalment within two months from the date of Demand-cum-Allotment letter and the later instalments were to be scheduled according to the original scheme i. e. made payable after every six months. The said application under Sec.27 was disposed of by our order dated 6.9.95. It was found that the applicant was not entitled to any particular flat in Vasant Kunj or any flat of that category in the particular locality or localities desired by the applicant. Since the time for making the payment by instalments to the other allottees under 1990 draw had elapsed and the applicant was required to be treated at par with the other allottees by this Commission, payment of instalments was re-scheduled. There being no dispute with regard to the adjustments of the initial registration amount and interest accrued thereon and costs amounting to Rs.1,750/-, it was directed that this amount be adjusted while raising a demand regarding the price to be charged from the complainant. The applicant preferred a revision against the said order. The National Commission observed that there was a clear distinction between "allocation" of a flat and "allotment" thereof. It was pointed out that allotment covered a flat already constructed, "allocation" was earmarking a flat under construction. It was highlighted that what was ordered was allotment of a flat not allocation of a flat. The National Commission held that the applicant was entitled to allotment of a flat in the sense that construction thereof had already been completed and not to the allocation of a flat. Agreeing with the finding of the State Commission the National Commission further held that the basic order dated 7.4.94 having become final between the parties, its terms could not be varied in subsequent proceedings u/section of the Act. Order with regard to allocation of the flat or re-scheduling of instalments being variation of the basic order was set aside and the DDA was granted three months' time to comply with the order. The DDA failed to comply with the order and hence the complainant filed the present application u/ Sec.27 in which it was prayed that in view of the decision by the National Commission, the respondent be directed to allot a flat of Category- III in Vasant Kunj, Mandakani Enclave or Katwaria Sarai, failing which punitive action be taken against Mr. J. K. Sharma, Commissioner (Housing) DDA. In reply the plea of the DDA is that by allotting flat 48-C in Pocket-A, Kondli-Charoli, the DDA had substantially complied with the order of the State Commission and the said allotment had not been set aside at any stage. Further plea raised was that the applicant had failed to deposit the price of the flat and he had, therefore, forfeited right to the allotment of the flat and he should be held ineligible for such allotment. It was further pleaded that in any case the applicant should deposit the amount which is found due against him after adjustment of the Registration amount, interest accrued thereon, and the costs awarded by the State Commission and only after such deposit had been made, would letter of possession be issued. It was further stated that reference to 9th SFS Scheme or allotment of a flat in certain selected colonies in South Delhi was not relevant and could not be raised by the applicant. In the rejoinder filed by the applicant dated 14.1.97, it has been stated that the applicant is entitled to allotment of a similar Duplex type Category-III flats complete with supply of water and electricity and such flats were available in Mandakani, Kalkaji (B Block) at a price of similar flats which was paid by the allottees of 1990.

(3.) We have heard Mr. M. M. Haldar, Attorney of the applicant and Mr. S. C. Varshney, Advocate for the respondent. We have already considered and rejected the claim of the applicant for an allotment of a flat in one of the areas of his choice for the simple reason that there was no such direction in the basic order dated 7.4.1994 passed by this Commission. It bears repetition that according to the said order, the complainant was, (i) entitled to allotment of a flat in Category- III in any area in Delhi: (ii) at a price on which similar flat had been allotted to other SC/st applicants is the draw held in 1990; and (iii) the applicant was to be allowed to pay the price in instalments allowed to other applicants in the same draw of lots. The contention of Mr. Haldar is that the complainant was entitled to allotment of a similar flat and that the other allottees had been given Duplex type flats in the areas named by the applicant. We have already held in our order dated 6.9.95 that terms of the basic order dated 7.4.94, could not be varied in proceedings u/section 27 and this finding has not been set aside by the National Commission. We had, however, rescheduled the payment of instalments in terms of direction (iii) given in the basic order and as per prayer made in the application u/ Sec.27 filed earlier by the applicant. The said direction has, however, been set aside by the National Commission. We are bound by the order passed by the National Commission. With regard to the allotment at Kondly Gharoli, it had been found that the same lacked basic amenities and in that sense it was not complete and habitable. The National Commission has brought out the distinction between the allocation and allotment. It follows that the respondent is bound to allot a flat of Category-III for the price charged from allottees who were included in the draw of lots in 1990. The allocation of flat at Kondly Gharoli does not tentamount to compliance of the order of the Commission, in that construction thereon was still going on and basic facilities like electricity, water and sewerage had not been provided therein. It is, therefore, held that the order of the State Commission dated 7.4.94 has not been complied with and the respondent shall comply with the order as clarified herein. As the time allowed by the National Commission has elapsed, the said order shall be complied with within six weeks from the date of receipt of a copy of this order failing which further action u/section 27 is liable to be taken. A copy of this order be communicated to both the parties.