D.K. JAIN, J., PRESIDENT

1.       This Revision Petition, arising out of an Execution Application, by the  Complainant, is directed against the order, dated 05.09.2013, passed by the State Consumer Disputes Redressal Commission, Delhi (for short “the State Commission”), in First Appeal No. FA-767/2010, which had been preferred by the Complainant against the order, dated 09.09.2010, passed by the District Consumer Disputes Redressal Forum-II, New Delhi (for short “the District Forum”) in Execution Application No.286 of 2010, preferred by him.  By the impugned order, the State Commission, while affirming the order, dated 09.09.2010, passed by the District Forum, has dismissed the Appeal.   

2.       The case has a chequered history. Therefore, in order to appreciate the controversy involved in the matter, it would be necessary to notice a few material facts. These are:

2.1     On 18.10.1979, vide his Application No. 36056, the Complainant had got himself registered  with the Delhi Development Authority (for short “the DDA”) for allotment of a flat under the ‘New Pattern Scheme, 1979’.  He deposited the registration amount of ₹4500/-. His Priority Number was 32919.   After 23 years of registration, on 31.05.2002 the draw of lots for allotment of Middle Income Group (MIG) flats was held by the DDA for the applicants with Priority Nos. 32416 to 34055.  The Complainant found that his Priority Number was not included in the draw held, as neither his name nor priority number figured in the result list for the said draw. Responding to his representations dated 13.06.2002 and 04.07.2002, the DDA included his name in the next draw held on 05.07.2002,  and allotted an MIG flat, bearing No. 74, Pocket-E, Sector-17, Dwarka, Phase-II, vide Demand-cum-Allotment letter dated 01.08.2002/ 09.08.2002, on cash down payment of ₹8,80,232/-.  Since, according to the Complainant, even the basic amenities were missing in Pocket-E; the flat allotted had locational disadvantages and above all, the draw was not meant for the Registrants in his category, vide his letters dated 22.08.2002 and 05.09.2002, he requested the DDA to include his name in the next draw for allotment of another flat, in the category he was entitled to. The request was rejected by the DDA and the same was intimated by it to the Complainant, vide DDA’s letters dated 07.01.2003 and 10.02.2003. After protracted correspondence between the parties, on 19.11.2004, the DDA cancelled the allotment of the flat allotted to the Complainant.

3.       In the aforesaid background, alleging deficiency in service on the part of the DDA in not including his name in the draw of lots held on 31.05.2002 and not allotting the flat in the phase/sector, where the allotments to the applicants, having priority number just preceding and succeeding to him, were made, the Complainant filed a Complaint, being Complaint Case No. 203 of 2005, before the District Forum.  The Complainant, inter-alia, prayed for a direction to the DDA to allot to him an MIG flat in phase/sector in which flats were allotted to the priority numbers just preceding and succeeding to his priority number, in the draw held on 31.05.2002, by restricting its cost as charged from the allottees in the said draw and to pay him a compensation of ₹5,00,000/- towards mental shock, agony, huge loss and injury suffered by him.

4.       The District Forum, vide its order dated 24.03.2006, partly accepted the Complaint. While holding that on account of non-inclusion of the priority number of the Complainant in the draw held on 31.05.2002, there was definitely deficiency on the part of the DDA and though a flat was allotted to the Complainant in the draw held on 05.07.2002, it suffered from some locational disadvantages, directed the DDA to pay to the Complainant a lump-sum compensation of ₹1,00,000/-, besides refund of registration amount of ₹4,500/-. Thus, the prayer of the Complainant for allotment of a flat was rejected on the ground that since the Complainant did not prove that the DDA was bound to allot to him another flat as per any Rules or Regulations, the rejection of his representations in this regard was justified.

5.       Dissatisfied with the order of the District Forum, both the parties preferred Appeals before the State Commission. Appeal No. 394 of 2006 was preferred by the Complainant for grant of further relief in the form of a direction to the DDA to allot an MIG flat and Appeal No. 699 of 2006 was preferred by the DDA against award of compensation in favour of the Complainant.

6.       The State Commission, vide its order dated 26.07.2006, while disposing of the Appeal, preferred by the Complainant, inter alia, observed that the DDA had allotted a flat to the Complainant in the draw held on 05.07.2002 but the Complainant did not make any payment pursuant to the Demand-cum-Allotment letter and as a consequence the allotment was cancelled; the insistence of the Complainant for being allotted a flat in the same locality where others were allotted was unjustified and uncalled for; and for the inadvertent negligence of the DDA, the District Forum had adequately awarded compensation of ₹1,00,000/-.  However, since the registration money of ₹4,500/- was still lying with the DDA and District Forum had directed the DDA to refund it, the State Commission directed that the DDA may consider the allotment of any other flat as per rules, out of the already allotted flats, which may be lying vacant, or any other flat and if it is not possible then they will include the name of the Complainant in the first draw to be held in future for the registrants in the waiting list. As a consequence thereof, the State Commission, vide its order dated 11.07.2008 dismissed the Appeal, preferred by the DDA.

7.       Still dissatisfied, the DDA preferred two Revision Petitions, being Revision Petitions No. 4589 and 3901 of 2008, before this Commission, which were dismissed as grossly time barred and infructuous respectively, vide a common order dated 29.07.2009.  Costs of ₹10,000/- was also imposed on DDA in Revision Petition No.4589 of 2008. Thus, the order, dated 26.07.2006, passed by the State Commission, inter alia, directing DDA to include Complainant’s name in the draw of lots for allotment of a flat attained finality.

8.       Since the final order dated 26.07.2006 was not complied with by the DDA, despite representations, the Complainant was left with no option but to file an Execution application against the DDA under Sections 25 and 27 of the Act, before the District Forum, being Execution Application No. 286 of 2010.

9.       During the pendency of the Execution Application, vide its letter dated 14.07.2010, DDA allotted flat No. 84, Sector-12, Pocket-2, Dwarka, New Delhi to the Complainant and issued a Demand-cum-Allotment letter bearing No. 77626 dated 13.07.10 – 19.07.10 at the current price of ₹31,52,916/-.  The said Demand-cum-Allotment letter was received by the Complainant on 15.07.2010.  As the flat was allotted at the current price, vide his letter dated 26.08.2010, the Complainant objected to the same and requested for limiting its cost to ₹8,80,232.70, as was demanded vide demand letter No. 18505 dated 01.08.2002 – 09.08.2002, when the second allotment was made. 

10.     However, without adverting to the objection raised by the Complainant and without making even a remote reference to the said allotment, vide its order dated 09.09.2010, the District Forum disposed of the Execution Application by the following cryptic order:

          “Both are present.  Hon’ble National Commission on 29.7.2009 has directed to pay Rs.10,000/-.  DDA has paid this amount by cheque and received by the complainant.  Execution is decided accordingly.”

11.     Against the said order, the Complainant preferred Appeal (No. 767 of 2010) before the State Commission along with an application for stay against automatic cancellation of the flat in terms of allotment letter. State Commission vide order dated 21.12.2010 directed the parties to maintain status quo with regard to the subject matter of the case pending the appeal. However, as noted above, by the impugned order, the State Commission while affirming the afore-extracted order dated 09.09.2010, passed by the District Forum, has dismissed the said Appeal. The State Commission observed as under:-

“14. On perusal of the record, we find that execution application No. 286/10 was rightly dismissed by the Ld. District Forum concerned in full satisfaction through its order dated 09.09.2010.  Ld. District Forum-II in Complaint Case No. 203/05 allowed compensation of ₹1 lakh to the complainant for not including his priority number by DDA in draw held on 31.5.2002.  Thus, the appellant/complainant was adequately compensated for deficiency committed by the DDA in its draw held on 31.5.2002. This amount of ₹1 lakh was deposited in the Hon’ble National Commission when Revision Petition No. 3901/08 and Revision Petition No. 4589/08 were filed.  The complainant/appellant was allowed to withdraw this amount.  He is also free to withdraw this amount if it has not been withdrawn earlier. Cost of ₹10,000/- imposed by Hon’ble National Commission in Revision Petition No. 4589/08 also stands fully paid. Therefore, execution petition was dismissed in full satisfaction by the Ld. District Forum concerned.  

15.     So far as the pricing/cost of the allotted flat is concerned, it falls within the domain of executive functions of the respondent, DDA.  Fixation of price is also a policy matter.  It is well settled legal position now that the Consumer Courts do not exercise jurisdiction or interfere in policy matters through which prices of property/flats etc. are fixed.”

12.     Hence, the present Execution Revision Petition by the Complainant.

13.     I have heard the Complainant, who has himself presented his case and Learned Counsel for the DDA.

14.     At this juncture, it may be noticed that while issuing notice in the Revision Petition on 26.11.2013, it was directed that the subject flat, being flat No. 84, Sector-12, Pocket 2, Dwarka, New Delhi, shall not be allotted to any third party, if not already allotted.  However, as the Complainant did not make payment for the amount demanded towards the cost of the flat allotted to him, within the stipulated time, according to the DDA, the allotment of the flat, vide its letter dated 19.07.2010, automatically stood cancelled as per the terms and conditions mentioned in the notice of demand.  Therefore, in order to avoid any complications in future, by order dated 28.07.2014, the DDA was directed to maintain status quo in respect of the flat. Since the flat was still available, during the course of hearing on 10.04.2015, Counsel for the DDA was asked to seek instructions if it could be re-allotted/regularized in favour of the Complainant, as he was now ready and willing to pay the demanded price of the flat.  In the affidavit dated 03.07.2015, by the Director (Housing), DDA, it is stated that under the existing policy, a cancelled flat cannot be restored.  In this behalf, a reference is made to office circular dated 12.05.2005, which reads as follows:

          “There has been no explicit policy so far for restoration of the registration wherein allotment alongwith registration is cancelled either on the request of the allottee or due to non payment of dues.  In the recent past, DDA allowed such restoration only in E.H.S. cases wherein due to wrong costing, demand letters were issued by the DDA at higher cost and allottees had cancelled their registration due to cost factor.

          In order to have clear guidelines in the matter, it is hereby clarified that restoration will be considered only in cases wherein DDA is at fault.  Other cases of restoration of registration such as on the request/fault of allottee will not be considered.”

15.     It is stated that in the light of the said circular, case of the Complainant was examined by the Vice-Chairman of the DDA, who held that the delay in making the payment by the Complainant cannot be regularized and thus, the Complainant is not entitled to allotment of Flat No. 84, Pocket-2, Sector-12, Dwarka, New Delhi. Some notings on the file, placed before the Vice-Chairman, have also been annexed with the affidavit. The Complainant, in his reply affidavit filed on 24.08.2015, has pleaded that the DDA has committed serious illegality in not bringing to the notice of the Vice-Chairman, the interim order passed by the State Commission on 21.12.2010, when the file was put up to him on 23.06.2015 for his final decision in terms of the order passed by this Commission on 10.04.2015.  According to the Complainant, in the teeth of the said order as also the orders passed by this Commission on 26.11.2013 and 28.07.2014, whereby the parties were directed to maintain status quo in respect of the flat, the allotment could not be automatically cancelled on 15.01.2011. It is asserted that since admittedly it was a case of missing priority number, when the draw of lots was held on 31.05.2002, DDA’s circular dated 25.02.2005 was squarely applicable.

16.     In the light of the afore-stated factual scenario, I am constrained to observe that the DDA has not treated the Complainant properly and his case has not been considered in its correct perspective. It is not in dispute that order dated 26.07.2006, inter-alia, directing the DDA to consider the case of the Complainant for allotment of a flat in the future draw of lots, had attained finality. As a matter of fact, in deference to the said order, during the pendency of execution proceedings before the District Forum, the DDA allotted the flat in question to the Complainant, vide its letter dated 14.07.2010 at the current price of ₹31,52,916/-.  As according to the Complainant there was serious lapse on the part of the DDA in not including his name in the draw of lots held as far back as on 31.05.2002, he was entitled to a flat at a price, which was charged from other registrants under the scheme, who were much lower to him in seniority as per the priority number. In short, his stand was that the subject flat should have been allotted to him at a price of a similar flat in the year 2002, which at the highest was ₹8,80,232/-, when another flat was offered to him pursuant to the draw of lots held on 05.07.2002. Since his stand did not find favour with both the Fora below, he filed this Petition, in which, the aforenoted interim orders, directing maintenance of status quo in respect of its possession came to be made.

 17.     The core question for consideration is whether, in view of the aforenoted factual scenario, the Complainant could be deprived of the subject flat allotted to him in terms of DDA’s letter dated 14.07.2010, on the ground that it stood automatically cancelled on account of non-payment of the amount as per the allotment-cum-demand notice?

18.     Having bestowed my anxious consideration to the facts at hand, I am of the opinion that answer to the question has to be in the negative. I am convinced that the Complainant had a reasonable cause in contesting the price of the flat and in not making payment initially, in respect thereof, in terms of the allotment letter, though ultimately he has now reconciled to accept the allotment on DDA’s terms. Therefore, in the in the instant case, the question of automatic cancellation of allotment on account of non-deposit of the amount demanded within the stipulated time, did not arise. In my view, the afore-extracted circular, pressed into service by the DDA to reject the prayer of the Complainant is also irrelevant for deciding the issue at hand. I am also of the opinion that in so far as the present case is concerned, even if there was any increase in the price of similar flats allotted after the year 2010, though the question of pricing is not specifically raised on behalf of the DDA, yet it will get neutralized as no compensation is being awarded to the Complainant for the harassment and mental agony that he must have gone through in fighting protracted legal battle, for the redressal of his grievance, with the mighty DDA, besides being deprived of the user of the flat.

 19.     Consequently, the Petition is allowed; the orders passed by the Fora below are set aside and the DDA is directed to deliver a peaceful and vacant possession of flat No. 84, Pocket 2, Sector 12 Dwarka, New Delhi to the Complainant on his making payment of the total cost of flat (₹31,52,916/-), as demanded in terms of Demand-cum-Allotment letter No. 77626, dated 13.07.2010-19.07.2010, within two months of the receipt of a copy of this order. Since, admittedly, the flat has remained unoccupied throughout, the DDA shall ensure that it is in a perfect habitable condition, at the time of delivery of its physical possession, on a mutually agreed date and time. The Revision Petition stands disposed of in the above terms, with no order as to costs.