Bakshi Jagdev Singh Decd. Through L.R. Vs. Delhi Development Authority - Court Judgment

Excerpt:
consumer protection act, 1986 - section 2(1)(d) - cases referred: 1993 (3) cpj 7 (sc)=1986-95 consumer 278 (ns). 1997 (1) cpj 43 (nc). air 1994 del. 29. 1992 (3) cpj 59 (nc). comparative citation: 2002 (2) cpj 78s.p. saberwal, member: 1. the present complaint was filed by shri bakshi jagdev singh, proprietor of m/s. delhi ghaziabad transport company under section 17 of the consumer protection act, 1986 (hereinafter referred to as ‘the act). the complainant was running goods transport business under the name and style of delhi ghaziabad motor transport company (regd.) at prominent place of business at pul mithai, sadar bazar, delhi. at the time of ‘asiad the complainant was up-rooted from his business place and was allotted plot no. 121, transport centre, rohtak road, new delhi. possession of the said plot was handed over to the complainant on 4.5.1982 by delhi development authority. it is alleged that the complainant wanted to make payment of the plot to the opposite party and also wanted to construct the plot to run his business. it is further alleged that the complainant paid several personal visits to office of d.d.a. and requested for issue of demand note but it was not issued. on 8.8.1986, the complainant wrote a letter to shri a.k. guha, director (commercial land) d.d.a. and requested for issue of demand note for the deposit of the amount of the said plot in order to enable the complainant to construct the building thereon and to run transport business. on 31.10.1986, the complainant met the commissioner (lands) personally and requested for issue of demand note. thereafter, on 22.12.1986, the complainant again wrote a letter to shri r.s. sethi, the then commissioner (lands) and requested for issue of demand note. copy of the letter was also endorsed to choudhary ranbir singh and shri a.k. guha, director (commercial land). on 17.8.1987, the complainant again wrote a letter to vice-chairman of d.d.a. and requested for necessary permission to raise construction on the said plot but the request was not acceded to. d.d.a. issued a letter on 23.2.1989 directing the complainant to deposit a sum of rs. 2,03,247.30 paise. the actual cost of the plot payable by the complainant was rs. 90,600/-. rest of the amount was towards interest charged by d.d.a. the complainant vide letter dated 7.3.1989 addressed to vice-chairman d.d.a. requested that no additional amount of interest was payable by the complainant on the ground that the d.d.a. had failed to issue a demand note in spite of repeated requests. thereafter, the complainant again wrote a letter dated 3.2.1990, addressed to general manager, d.d.a. in this respect. finally, the complainant wrote a letter to lieutenant governor of delhi on 9.9.1991 and sought direction for waiver of interest on the ground that the complainant was not at fault. it is further alleged that the complainant suffered on account of lapse of opposite party in not issuing the lease of the plot allotted to the complainant. consequently, the complainant could not secure “no objection certificate” for construction of the building. as the building plan could not be sanctioned, no construction was made by the complainant. it is, therefore, prayed that demand of rs. 1,12,647.30 paise or more or less towards raised interest vide d.d.a.s letter dated 23.2.1989 be quashed. it is further prayed that the opposite party be directed to issue lease deed in respect of the plot no. 121, transport centre, rohtak road, new delhi. the complainant also prayed for grant of compensation of rs. 1,92,000/- on account of loss suffered by him. 2. the opposite party/d.d.a. in its written statement has stated that demand of rs. 2,03,247.30 paise is absolutely legal and according to the policy and rules of d.d.a. the payment of premium including 18% interest in respect of plot no. 121 at rohtak road, transport centre, amounted to rs. 2,03,247.30 paise which was worked out by the finance wing of d.d.a. as such, it is pleaded that the complainant is liable to pay interest with effect from 4.5.1982 to 23.2.1989 and the complainant failed to deposit the premium of the allotted plot despite letter of demand dated 23.2.1989 and followed by reminder dated 23.3.1989 and 13.7.1990. it is, therefore, stated that in view of non-deposit of premium demanded by d.d.a. “no objection certificate” and lease deed etc. were not issued by them. it is admitted that during “asiad” 1982, the complainant was shifted from pul mithai, sadar bazar, due to widening of railway bridge and was given alternate plot no. 121 at rohtak road, transport centre, against the acquired land. that possession of the allotted plot was delivered to the complainant on 4.5.1982. that the complainant deposited only the premium amounting to rs. 90,600/- out of total demand of rs. 2,03,247.30 paise. that the notice of demand was issued to the complainant by d.d.a. on 23.2.1989 after finance wing of d.d.a. had fixed the rates. the representation made by the complainant was also examined by the finance wing. since the rates had been fixed in accordance with the procedure laid down, the request of the complainant for reduction in rates was found untenable and hence the same was not accepted. it is further pleaded that lease deed and “no objection certificate” could not be issued unless demand raised by d.d.a. vide letter dated 23.2.1989 was met in full. it is denied that opposite party has acted negligently and carelessly. the demand and cost of the plot had been worked out in accordance with the procedure laid down and it was the complainant, on account of his laches failed to deposit the demanded amount. it is prayed that the complaint be dismissed. 3. the complainant filed rejoinder and controverted the pleas made in the written statement and pleas as raised in the complaint were reiterated. 4. both the parties adduced evidence by way of affidavit and supported the pleas taken in their respective pleadings. 5. during the pendency of proceedings shri jagdev singh had expired and his son/lr shri paramjit singh bakshi was brought on record vide order dated 18.2.1997. 6. we have heard the arguments advanced by mr. s.s. malhotra, learned counsel for the complainant and ms. girija wadhwa, learned counsel for the opposite party. we have carefully perused the material placed on record including the written submissions made by the learned counsel for the parties. we have given our careful thought to the matter in controversy. 7. the grievance of the complainant is that he had been insisting d.d.a. to issue demand note to enable him to make payment of the plot. he had also addressed letter dated 8.8.1986 to director (commercial land) for issue of demand note. he had also appeared personally before the commissioner (land). thereafter, he again wrote a letter dated 22.12.1986 to commissioner (land) in which he gave reference of his earlier visits on 31.10.1986. possession of the plot was admittedly taken by the complainant from d.d.a. on 4.5.1982 (copy of possession slip annexure r-i). d.d.a. wrote a letter dated 23.2.1989 (copy annexure r-ii) to the complainant directing him to make payment by 15.3.1989 of premium including interest amounting to rs. 2,03,247.30 paise in respect of plot measuring 185.90 sq. mts. he was also directed to furnish affidavit declaring that there was no change in the ownership of the plot and also to submit a copy of the partnership deed prevalent at the time of possession. the complainant had admittedly deposited a sum of rs. 90,600/- on 5.2.1990. in response to complainants letter dated 7.3.1989, o.p./d.d.a. informed him vide letter dated 23.3.1989 (annexure r-iv) that rate/amount intimated to complainant vide letter dated 23.2.1989 was fixed according to procedure being adopted by d.d.a. in such cases. vide letter dated 13.7.1990 which was in reply to complainants letter dated 3.2.1990 d.d.a. informed the complainant to deposit balance amount of rs. 1,26,294.95 paise along with terms and conditions sent vide letter dated 23.2.1989 and also requisite affidavit. however, the complainant did not comply with the directions made in d.d.a.s letter dated 23.2.1989 except that he had deposited the actual cost price of the plot amounting to rs. 90,600/- on 5.2.1990. 8. shri h.s. dhanker, director (cl) adduced his evidence for d.d.a./o.p. by way of affidavit. d.d.a. has also placed on record photo-copies of their file. 9. for proper appreciation of this matter, it is necessary to narrate true and correct facts. complainant and many others, who were carrying on their business at pul mithai, delhi were evicted and their lands were acquired for public purpose i.e. widening of pul mithai keeping in view “asiad” 1982. it is affirmed in affidavit of shri dhanker, director (cl) that the matter, being of urgent nature, persons carrying on business of timber traders were shifted to kirti nagar, ware housing scheme. complainant and others, who were in transport business were made to shift to rohtak road, transport centre by allotting them commercial plots. shifting took place in may, 1982. possession of the plot measuring 185.90 sq. mts. was handed over to the complainant on 4.5.1982 (possession slip annexure r-i) as a human gesture and with a view to rehabilitate the evictees. the premium of plots allotted to them could not be realised at the time of shifting. however, when d.d.a. initiated steps for recovery of premium it came to light that they (transporters) were to be shifted to transport centre at majnu-ka-tila whereas they had, in fact, in occupation of plots at transport centre, rohtak road. d.d.a. started probing into the circumstances under which shifting had been done to transport centre at rohtak road, new delhi but could not ascertain the reasons thereof. ultimately, after having the rates fixed from their finance department, demand letters were issued to all such transporters including the complainant. that premium had become due from complainant and all such evictees from the date, they took possession of their respective plots allotted to them. complainant had admittedly taken possession of the plot on 4.5.1982. demand note, therefore, contained interest element also because premium of plots had become due on 4.5.1982. as such, according to d.d.a., demand of interest was fully justified. 10. question that falls of determination in this case is whether the complainant is a “consumer” within the meaning of section 2(1)(d) of the consumer protection act, 1986. 11. admittedly, the land on which the complainant was carrying on transport business at pul mithai was acquired by the government for a public purpose i.e. widening of pul mithai during “asiad” 1982. as a matter of human gesture and with a view to rehabilitate the evictees including the complainant, they were allotted alternate plot in transport centre, at rohtak road, in lieu of their acquired land. the present case stands entirely on different footing from the cases in which d.d.a. advertises for allotment of plots/flats and applicants deposit registration charges. in case of deficiency in service in such like cases, d.d.a. is liable. as it has been held in large number of cases including land mark ruling of the supreme court in case titled lucknow development authority v. m.k. gupta, reported as iii (1993) cpj 7 (sc)=1986-95 consumer 278 (ns), that the applicants, who deposit registration charges for allotment of plot/flat are `consumers. in the present case, the land of the complainant had been acquired for a public purpose and as already stated, as a matter of human gesture and with a view to rehabilitate such evictees including the complainant that alternate plot had been allotted to them at transport centre, rohtak road. in our considered view, the scheme of alloting alternate plot does not create any relationship in the nature of hiring of service for consideration between the complainant and the d.d.a. in case titled delhi development authority v. manohar lal batra, reported as i (1997) cpj 43 (nc), wherein ruling of delhi high court in case entitled ramanand v. union of india, reported as air 1994 delhi 29, and earlier decision of honble national commission in case titled ram mehar and anr. v. delhi development authority, reported as iii (1992) cpj 59 (nc), were relied upon, it is held that since the scheme does not operate to create any relationship in the nature of hiring of service for consideration between the complainant and the d.d.a. the complainant cannot be said to be “consumer” within the ambit and scope of the act. the aforesaid judgment of the honble national commission applies with full force to the facts of the present case. since in the instant case, the land of the complainant had been acquired for a public purpose i.e. widening of pul mithai during `asiad 1982 and as a gesture of goodwill and to rehabilitate the evictees including the complainant he was allotted alternate plot in transport centre, rohtak road, we find no hesitation in holding that there was no element of hiring of service for consideration of d.d.a./o.p. in this case and, therefore, the complainant cannot be held to be “consumer” within the meaning of section 2(1)(d) of the act. since the complainant has not been held to be a “consumer” within the meaning of section 2(1)(d) of the act, he is not amenable to the jurisdiction of this commission and the present complaint is liable to be dismissed on this short ground. 12. perusal of photo-copies of d.d.a. file shows that a policy decision was taken by finance department of d.d.a. in case of all such evictees to charge premium plus interest @ 18% per annum with effect from the date of actual possession of the plot by respective evictees and, therefore, the complainant has not been discriminated. since the decision to charge interest from all such evictees of pul mithai was a policy decision taken by d.d.a., we hold that the dispute raised in the present case is not a “consumer dispute” and, therefore, this commission is not competent to adjudicate such a policy decision taken by d.d.a. even otherwise, we find that the possession of the plot was taken by the complainant on 4.5.1982. premium was liable to be paid to d.d.a. from 4.5.1982 itself. complainant kept the principal amount of premium from the due date i.e. 4.5.1982 till 5.2.1990 when he paid the same in pursuance of demand note dated 23.2.1989. since the complainant had utilised the authoritys premium for his gainful purpose and enjoyed the possession of the plot right from 4.5.1982, d.d.a./o.p. in our view, was fully justified to charge interest. demand raised vide letter dated 23.2.1989 was, therefore, rightly raised. accordingly, we find no hesitation in holding that there is no deficiency in service on the part of d.d.a. 13. in view of aforesaid findings, the present complaint filed by the complainant under section 17 of the consumer protection act, 1986 is dismissed. in the peculiar facts and circumstances of the present case parties are left to bear their own costs. complaint dismissed.