FIRST APPEAL NO. 222 OF 2005
(Against the order dated 11.01.2005 in Complaint No.C-360/1994
of the State Commission
Vikas Sadan, INA
Mr. R.K. Sewal ........ Respondents
243/3-A, Railway Officers Flats
HON'BLE MRS. RAJYALAKSHMI RAO, PRESIDING MEMBER
For the Appellant : Mrs. Girija Wadhwa, Advocate
For the Respondent : In person
DR P D SHENOY, MEMBER
Facts of the case in a nutshell are that the Delhi Development Authority (DDA) issued a brochure inviting applications for allotment of SFS Flats from the registrants of SFS from 1.3.1982 to 31.3.1982. Pursuant to this complainant Shri R.K. Sewal applied for allocation of flat preferring Category III flat in East of Kailash of which tentative cost was between Rs. 1.5 to 2.25 lakhs depending upon the floor. In order to obtain a house building plan, the complainant requested DDA vide letter dated 4.9.1982, to indicate the tentative cost of the flat including the cost of the land. DDA confirmed the estimated cost at Rs. 2.2 lakhs including a sum of Rs. 14,920/- as estimated cost of the land and Rs.11,120/- towards the internal development charges. The flats were fully constructed by 1984 and no further demand letter was issued by DDA.
When he enquired from DDA for paying amount and possession of the flat he was told that in the year 1985 four persons of general category, who were not allotted flats, had approached the Delhi High Court and obtained injunction by filing a writ petition. On 13.2.1985 the complainant was also included as one of the respondents. On 4.9.1990 High Court vacated the stay partially and directed to hand over the possession of the remaining flats to the respondents including the complainant. On 15.10.90 the complainant requested the DDA to give demand cum allotment letter. On 17.10.91 the DDA asked the complainant to furnish certain documents. On 22.10.92 DDA issued demand cum allotment letter after repeated requests and reminders, and asked him to pay Rs.6,02,974.50 against final calculated cost of the flat Rs.6,13,000/-.
The complainant protested against this unjustified demand and requested the DDA to charge him with on par with the other allottees who were successful along with him in a draw of lots. It is the say of the complainant that fearing cancellation of flat by the DDA he paid the said amount under protest.
The complainant filed a consumer case before the State Commission requesting for refund of the excess amount charged along with compensation and costs.
DDA contested the complaint stating that the complainant was one of the parties to the writ petition filed by the other applicants and stay against allotment of flat was granted by the High Court on 9.12.82, which was modified on 4.9.90. Hence, no interest was charged either for the period from the date of stay till the date of modification or for the period subsequent to the modification order till the date of demand and allotment letter. The price of 6.13 lakhs fixed to bring the cost on par with other allottees who were allotted the flats subsequently by draw of lots conducted in December 1991.
After hearing parties at length the State Commission allowed the complaint with a direction to DDA to refund the excess amount received by it over and above the actual demand raised at first instance within two months. The Commission awarded Rs. 50,000/- as costs and compensation on account of mental agony and harassment.
Aggrieved by the order of the State Commission DDA has filed this appeal.
Submissions of the Ld. Counsel for the DDA :
The complainant was provisionally allotted a category III
dwelling unit in East of Kailash under SFS scheme with an estimated cost of
on 4.9.1982 under reserved category. Certain general category applicants who were
unsuccessful in the draw of lot had approached High Court of
Accordingly, she submitted that DDA was within its rights to charge the revised price, which has already been paid by the complainant. Hence, the order of the State Commission may be set aside.
Ld. Counsel for the DDA further submitted that the
price of the flat or a plot is beyond the purview of the Consumer fora as held
by a catena of judgments of the
Submissions of the Respondent
Respondent was the complainant before the State Commission. He argued his case in person before us. DDA allotted 54 flats on 6.7.1982 out of which 14 persons belonged to SC/ST category and he was one of the 14. The stay granted by the High Court was vacated in the year 1990 and during 1991 draw was held for four general category persons who went to the High Court as per directions of the High Court. As the complainant did not belong to that group, no draw was held for him during 1991 as he was already successful during the 1982 draw of lots. DDA has charged interest and enhanced cost of the land.
He submitted that DDA has sent a letter to him on 21.3.2003 wherein they have given the break up of the cost of the flat as follows:
1. Cost of construction of flat - Rs.2,22,600/-
2. Land premium - Rs.1,91,900/-
3. Actual period interest - Rs.1,98,500/-
on 4 instalments and 5th and
final demand @ 10%.
He submitted that as he had obtained loan from HDFC he accepted the allotment at a higher price under due risk and paid the amount under protest. The respondent brought to our notice a reply received from the Deputy Director DDA under RTI Act dt. 10.1.2008 which is extracted below :
It is therefore request to furnish the desired information of final price in respect of the DDA flats under SFS charged from the allottees of the flats no. B-148 & B-154 of which possession given in 1984-85 in East of Kailash, Pocket-B (Now Mount Kailash)
As per available 5th & final allotment cum demand letter the cost of flat in respect of flat No. B-148, East of Kailash is Rs.2,34,800/- and flat No. B-154 East of Kailash is Rs.2,34,800/-
Undisputed facts of the case are that the complainant was one of the 54 successful allottees consisting of 40 under general category and 14 under SC/ST category in a draw held during 1982 and was communicated the estimated price of the flat on 6.7.1982. The complainant belonged to the latter category. Though all the 40 general category allottees were given flats at a final price of Rs.2,34,800/- during 1984 as against the provisional price of 2,22,600/- the complainant could not get the benefit of this price as some general category applicants who were unsuccessful in the draw of lot of 1982 had approached the High Court and obtained a stay.
So the issue before us is whether it is pricing of the flat or whether it is treating similarly placed persons in a dissimilar fashion. The complainant was successful during the draw of flats in 1982 along with other 53 applicants. Stay was granted against 14 applicants in 1982 which was vacated during 1990 by the High Court. For no fault of the complainant this litigation has taken place. He was not the cause of the litigation. He was only a sufferer. Those applicants who were successful during the 1982 draw were charged a provisional estimated cost of Rs,2,20,000/- in 1982 and finally they were charged Rs.2,34,800/- as per the letter dt.10.1.2008 addressed to the complainant by Shri Rakesh Bhatnagar, Director (Housing)-1/PIO DDA.
Hence, to charge the complainant at higher rate than those who were allotted along with him would be unfair and unjust in our view. Hence, the catena of judgments wherein the issue was pricing of the flat/plot is not applicable to this case, because the complainant is not questioning the increase in price per se. The complainant is willing to accept the revision of the price from Rs.2,20,000/- to Rs.2,34,800/-
The Honble Supreme Court 1994 Supp (3) SCC in DDA Vs. Pushpendra Kumar Jain observed that mere identification or selection of the allottee does not clothe the person selected with a legal right to allotment at the price prevailing on the date of draw of lots and further that the estimated prices mentioned in the brochure are illustrative and are subject to revision/ modification depending upon the exigencies of lay out, cost of construction etc. The purport of this judgment is that soon after the draw of lots, the DDA intimates the estimated price of the flat and they are within their rights to revise the same. In this case the estimated price was Rs. 2,20,000/- which was communicated soon after the draw of lots. DDA is within its right to revise the same to the same level at which other successful allottees secured their flats. According to the information received by the complainant from the Office of DDA by exercising his right under the Right to Information Act the revised price which was charged to similarly placed successful allottees in the draw of lots was Rs.2,34,800/- which the DDA could have charged and not Rs.6,13,000/- during December, 1991.
In a normal course the complainant would have got the demand cum allotment letter along with 40 general category persons but for the stay order issued by the High Court of Delhi against the allotment to reserved category allottees. By causing delay in communication of allotment any applicant is a loser as he has to stay elsewhere and pay rent till the possession of the flat is delivered to him and so he cannot be made to incur loss by paying rent to the residential property and also paying higher amount for delayed communication of allotment.
Hence, keeping in view the principle of equity and natural justice, the complainant should be given the flat at the same price at which, those who were successful in the draw of lots along with him.
The National Commission in 2001 CCC 538 (NS) answered the following question:
Q. When the possession of the plot originally allotted in a particular sector could not be given to the allottee for any reason for no fault of his and HUDA (Haryana Urban Development Authority) is required to allot an alternative plot in lieu thereof in any other sector, what price HUDA is to charge for the alternative plot allotted in the different sector?
Ans. The issue before us is the allotment of alternative plot. It is also to be seen that if for no fault of the allottee, he is deprived of his plot allotted to him and in lieu of that he is allotted some other plot in the same or any other sector he cannot be asked to pay the price over and above of original plot which he will have to pay.
The ratio of the above decision is to a great extent applicable to this case.
The right of housing arising out
of such a scheme is a fundamental right within the meaning of Articles 19 (1)(e) and 21 of the Constitution of India, but there cannot
be any doubt whatsoever that the action of a State must satisfy the principal
requirements of Article 14, viz., treating persons similarly situated equally
and grant of equal protection to them.
Reasonableness and fairness is the heart and soul of Article 14 of the
In view of the above discussions, we do not find any merit in this appeal. However, we feel that the State Commissions order requires to be slightly modified as the State Commission had directed to refund the excess amount received by it over and above the actual demand raised at first instance within two months. In this case the actual demand raised in the first instance was Rs.2,20,000/- but the successful allottees along with the complainant, were charged Rs.2,34,800/- hence the amount charged over and above this amount shall be refunded to the respondent by the DDA along with the sum of Rs.50,000/- towards compensation and costs.