APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON :      11^th   October   2017

O R D E R

PER DR. B.C. GUPTA, PRESIDING MEMBER

        This first appeal has been filed under section 19 read with Section 21 (a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 03.05.2007, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in consumer complaint No. 20/2006, filed by the present respondent,  vide which the said complaint was allowed.

2.      Briefly stated, the facts relevant for the disposal of the present case are that Smt. Sadhana Sagar, the daughter of the present complainant applied for allocation of a flat at Motia Khan under the fourth self-financing scheme of the Delhi Development Authority (DDA).  Vide demand-cum-allotment letter dated 01.04.1998, flat no. 201, block no. 2, type-IIIA, Motia Khan was allotted to her for a total cost of Rs. 23,86,986/-.  A sum of Rs. 19,43,404/- was demanded vide the said allotment letter after deducting the amount already deposited.  Later on, the said demand was modified to Rs. 17,87,214.00, on a representation made by the allottee.  The full payment as per the modified demand is stated to have been made by the allottee on 29.05.1998.  It is alleged, however, that despite writing several letters, the property in question was not constructed properly by the OP DDA, as a result of which, the possession of the same could not be obtained.  The complainant, who is father of the allottee, filed the consumer complaint in question, seeking a total compensation of Rs. 42,05,470/- from the DDA on account of interest for late completion, depreciated cost, making alternative arrangements etc.

3.      The complaint was resisted by the OP DDA by filing a written statement before the State Commission, in which they stated that the complainant Naresh Chander Sagar had no authority to file the complaint on behalf of Sadhana Sagar, because the Special Power of Attorney (SPA) executed in his favour by her, did not authorize him to institute the present complaint.  The complaint should, therefore, be dismissed on this ground alone.  Further, the possession of the flat was given to Sadhana Sagar in terms of demand-cum-allotment letter and the conveyance deed was also executed on 13.01.2006.  However, there was no protest of any kind from the allottee at the time of taking possession, or execution of the conveyance deed on 13.01.2006.  There was, therefore, a concluded contract between the parties and the complainant could not be permitted to repudiate the same.  The OP DDA further stated in their written reply that in clause 4(f) of the demand-cum-allotment letter, it was mentioned that four copies of the unsigned conveyance deeds were being sent alongwith.  The allottee was required to get these forms duly stamped from the office of the Collector of Stamps, Delhi and then return three copies of the same duly stamped to the DDA, within 120 days from the date of issue of demand letter.  It was also made clear that the possession letter shall be issued after the receipt of the conveyance deed forms duly stamped.  The conveyance deed papers were got stamped by the allottee on 18.10.2005 and submitted to the office of the DDA, whereafter the possession letter was issued on 11.11.2005.  The allottee took possession at the site and thereafter, the conveyance deed was also executed on 13.01.2006.  There was, therefore, no deficiency in service or fault on the part of the OP DDA, rather, they had waived off the maintenance charges, which the allottee was supposed to pay for late submission of the required documents within the stipulated period.  The OP requested that the complaint should be dismissed, keeping in view the above facts of the case.

4.      The State Commission, while deciding the case observed that unless and until, the flat was in a habitable condition and equipped with all essential facilities like water, electricity etc., the allottee could not be forced to take possession of the same and give the conveyance deed papers fully stamped.  It was the duty of the DDA to make the flat in a habitable condition, and for their failure to do so, there was deficiency of service on their part.  The State Commission directed the OP DDA to pay interest @ 12% p.a. from the date of the last deposit, w.e.f. 01.06.1998 till the date of possession given on 13.01.2006.  The litigation cost of Rs. 10,000/- was also imposed upon the DDA.  Being aggrieved against the order of the State Commission, the OP DDA is before this Commission by way of the present first appeal. 

5.      Notice of the appeal was sent to the complainant/respondent, but the same could not be served upon him.  The substituted service of the complainant/respondent was then affected through publication in the newspapers, but still there was no appearance on his part and hence, he was proceeded against ex-parte.

6.      The learned counsel for the appellant/OP DDA has drawn attention to the allotment letter dated 01.04.1998, issued by the DDA in favour of Sadhana Sagar.  The learned counsel stated that as per condition ‘5’ of the terms and conditions, four copies of the unsigned conveyance deed had been sent to the allottee alongwith the allotment letter and the allottee was asked to get the forms stamped from the office of the Collector of Stamps, Delhi and return three copies of the same to the DDA within 120 days of the date of issue of the demand letter.  Thereafter, letters were sent to the allottee on many occasions, reminding her to submit the conveyance deed papers, but the same were submitted quite late i.e. on 13.01.2006 only.  The learned counsel stated that the delay in giving the possession was due to the reason that the allottee failed to file three copies of the conveyance deed forms, duly stamped by the Collector of Stamps.  The condition of the flat was very much known to the allottee at the time of allotment and she could have declined to accept the same, but nothing of that sort was done by the complainant.  Under the circumstances, there was no deficiency in service on the part of the DDA and hence, the consumer complaint merits dismissal.  The learned counsel has also drawn attention to the Special Power of Attorney in favour of the complainant Naresh Chander Sagar and stated that he was not authorised to institute the consumer complaint in question. 

7.      I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

8.      In their written version filed before the State Commission as well as during arguments before me, the learned counsel for the petitioner has drawn attention to the Special Power of Attorney (SPA) executed by Sadhana Kumar (Sagar) in favour of Naresh Chander Sagar.  The said Power of Attorney reads as follows:-

  “FOR TAKING PHYSICAL POSSESSION OF THE FLAT

I, Smt. Sadhana Kumar d/o Mr. Naresh Chander Sagar allottee of flat no. 201, 2^nd Floor, Block No. 2, Type IIIA, Motia Khan Residential Scheme under 4^th SFS do hereby appoint my father Mr. Naresh Chander Sagar, IRSE (Retd.), R/o A-50, Hauz Khas, New Delhi- 110016 as my lawful special attorney to collect the possession letter and physical possession in respect of the above said flat.  The signatures of the attorney so appointed by me are attested below.  I ratify the actions done by my Attorney.”

9.      A plain reading of the Special Power of Attorney indicates that the same had been filed with a special purpose to collect the possession letter and take final possession of the said flat.  Nothing has been indicated in the Power of Attorney as to whether the allottee authorized the present complainant to file the consumer complaint on her behalf.  It is evident, therefore, that Naresh Chander Sagar was not authorised to file the complaint on behalf of Sadhana Sagar.  Even if he wanted to file the consumer complaint on behalf of Sadhana Sagar, he should have filed the same in the name of Sadhana Sagar through him as power of attorney holder.  Under the circumstances, therefore, the consumer complaint in the present form is not maintainable and the same should have been dismissed by the State Commission on this ground only. 

10.    Now coming to the merits of the case, it has been amply made clear by the OP DDA in the allotment letter sent by them that the allottee shall get the conveyance deed forms stamped from the office of Collector of Stamps and furnish three copies of the same in the office of DDA within 120 days from the date of allotment.  However, no explanation is forthcoming from the allottee or her attorney, as to why it was not possible for them to send the conveyance deed forms duly stamped within time.  They have raised the plea that the flat was not in a habitable condition, but no such evidence has been brought on record to substantiate the version of the complainant.  In case, they were not satisfied with the condition of the flat, they could very well have refused to accept the allotment from the OP DDA.  The complainant has also not indicated whether the flat had become habitable in the year 2005-2006, when they decided to take possession of the same.  The observation made by the State Commission is, therefore, unfair that the flat was not in a habitable condition and the same seems to have been made, without proper evidence being on record.

11.    Based on the discussion above, this appeal is allowed, the order passed by the State Commission is set aside and the consumer complaint in question is ordered to be dismissed, being not maintainable and also on merits.  There shall be no order as to costs.