Revision Petition No.3649 of 2014,Revision Petition No.4051 of 2014

29th January, 2015.

Petitioner Counsel: Mr. PRADUMAN KUMAR AGGARWAL, Mr. T.N. SAXENA, Mr. VIPIN KUMAR SAXENA
Respondent Counsel: Ms. DEEPAKSHI JAIN, Mr. MOHIT GUPTA

Cases Cited:
Lucknow Development Authority Vs. M.K. Gupta, 2012 ALL SCR (O.C.C.) 1=AIR 1994 SC 787 [Para 10,11,14,17]
Ghaziabad Development Authority Vs. Balbir Singh, 2004(5) ALL MR 771 (S.C.)=2004 (5) SCC 605 [Para 11]
U.T. Chandigarh Administration & Ors. Vs. Amarjeet Singh & Ors., 2009 CTJ 486 (SC) (CP) [Para 11,16]
Lucknow Development Authority Vs. Balbir Singh, [Para 11]
Chandigarh Housing Board Vs. Avtar Singh, 2010 ALL SCR 2458=(2010) 10 SCC 194 [Para 11,15]
Narne Construction Private Ltd. & Ors. Vs. Union of India & Ors., 2012(4) ALL MR 521 (S.C.)=(2012) 5 SCC 359 [Para 11]
Virender Jain Vs. Alaknanda Cooperative Group Housing Society Ltd. & Ors., 2013 (6) SCALE 571 [Para 11]
Morgan Stanley Mutual Fund Vs. Kartick Das, (1994) 4 SCC 225 [Para 11]
Punjab Urban Planning and Development Authority & Anr. Vs. Krishan Pal Chander, I (2010) CPJ 99 (NC) [Para 14]
Delhi Development Authority Vs. Krishan Lal, F.A./486/2006, Dt.27/09/2011 [Para 15]
Delhi Development Authority Vs. Paschim Vihar Resident Cooperative Urban Thrift & Credit Society Ltd., R.P./1040/2006, Dt.09/03/2010 [Para 16]
Delhi development Authority Vs. Sandeep Khatri, R.P./710/2014, Dt.25/08/2014 [Para 16]
Subodh Kumar Baheti Vs. Delhi Development Authority, R.P./2335/2012 [Para 18]
ONGC, 1994 AIR SCW 3287 [Para 19]
Empire Builders Vs. Anthony Xavier Andrade, II (2009) CPJ 239 (NC) [Para 20]

JUDGMENT

Mr. V. K. JAIN, Hon'ble President :- Parveen Kumar, one of the complainants in this case, applied to the petitioner Delhi Development Authority under its Housing Scheme 2010 for allotment of a residential flat. Another application for similar allotment was submitted by him in the joint name of himself and his father Shri Sham lal. No allotment was made to them. Rather they received a letter from Delhi Development Authority stating therein that since they had violated the terms & conditions of the scheme by submitting more than one application, amount of Rs.1,50,000/- each deposited by them has been forfeited. Being aggrieved from the aforesaid forfeiture the aforesaid complainants approached the concerned District Forum by way of a complaint impleading not only the Delhi Development Authority but also the Punjab National Bank through Mansa Branch to which the applications were submitted.

2. The complaint was resisted by the petitioner/opposite party, Delhi Development Authority inter alia on the grounds that the District Forum at Mansa had no territorial jurisdiction to entertain the complaint. The complainants were not consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act, they having deposited only the registration money and no allotment having been made to them. On merits, the forfeiture was defended on the ground that the complainants had submitted two applications for allotment of residential flats, thereby contravening the terms & conditions of the scheme under which the applications were submitted.

3. The District forum vide its order dated 13-03-2012 directed Delhi Development Authority to refund the amount of Rs.3,00,000/- to the complainants along with interest on the said amount at the rate of 9% per annum. The opposite party No.3 was also directed to pay compensation amounting to Rs.25,000/- and cost of litigation amounting to Rs.1,000/- to the complainants.

4. Being aggrieved from the order passed by the District Forum the petitioner Delhi Development Authority approached the concerned State Commission by way of an appeal. The opposite party No.2-Punjab National Bank also filed a separate appeal. The appeal filed by Punjab National Bank was allowed whereas the appeal filed by the petitioner Delhi Development Authority was dismissed. Being aggrieved from dismissal of the appeal filed by it, Delhi Development Authority is before this Commission by way of this revision petition.

R.P.

No.4051 OF 2014

5. The complainant in the aforesaid case deposited a sum of Rs.1,000/- with the petitioner for registration under weaker income category and a registration certificate dated 08-07-1986 was issued to him. No house, however, was allotted to him. The complainant, therefore, approached the concerned District Forum seeking a direction to the petitioner to allot a house to him.

6. The complaint was resisted by the petitioner on the ground that only registrants upto the year 1979 have been partially allotted houses and the name of the complainant would be included in the draw of lots in due course. It was also stated in the reply that if the complainant wants vacant house in Krishna Vihar Scheme then she would give her consent in the office of the petitioner board. The petitioner also took an objection that since the complainant does not come in the category of consumer the District Forum does not have jurisdiction to hear the case.

7. The District Forum vide its order dated 28-10-1997 directed the petitioner to allot a house to the complainant within one month, in the scheme in which he had got registered. The petitioner was also directed to pay Rs.1,000/- as compensation and cost of litigation. Being aggrieved from the order of the District Forum the petitioner approached the concerned State Commission by way of an appeal. Vide impugned order dated 24-04-2014 the State Commission allowed the appeal filed by the board. Being aggrieved from the order of the State Commission the complainant is before us by way of this revision petition.

8. The first question which arises for our consideration is as to whether the complainant in these cases can be said to be consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. The aforesaid provision, to the extent it is relevant provides that consumer means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised. The expression service has been defined in Section 2(1)(o) of the Act to mean service of any description which is made available to potential users and includes though not limited to the provision of facilities in connection with housing construction. Therefore, the next question which arises for our consideration is as to whether the aforesaid complainants had hired or availed the services of the opposite parties in connection with housing construction.

9. The question of providing services in connection with housing construction, in our view would arise either on allotment of a residential plot or a residential flat which is yet to be constructed, to the applicant or if he is registered and placed in a waiting list, for such an allotment. There would be no question of a person availing or hiring a service in connection with housing construction till either such an allotment is made to him or he is registered for such an allotment. The development of the plots or the construction of houses will be undertaken only for those persons to whom a residential plot or house is allotted, or who is registered for and awaiting allotment of a yet to be developed plot or yet to be constructed house. Also there would be no occasion to undertake the construction of houses for the allottees in a case where a ready built up house or a fully developed plot is allotted to him, unless, one or more facilities/amenities in relation to the said house/plot are yet to be provided by the concerned Development Authority.

10. In Lucknow Development Authority Versus M.K. Gupta, AIR 1994 SC 787 : [2012 ALL SCR (O.C.C.) 1], the Honble Supreme Court examined the question as to whether the statutory Authorities such as Lucknow Development Authority or Delhi Development Authority are amenable to Consumer Protection Act for any act or omission relating to housing activities such as any delay in construction and possession of the house to the allottees, non-completion of the flat within the stipulated time or defective and faulty construction etc. Holding that such Authorities are amenable to the provisions of the said Act, the Honble Court, inter-alia observed and held as under:

Construction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire services of a builder or contractor. The latter being for consideration is service as defined in the Act. Similarly when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contract. The one is contractual service and other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act.

Any defect in construction activity would be denial of comfort and service to a consumer. When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immovable property as argued but deficiency in rendering of service of particular standard, quality or grade. Such deficiencies or omissions are defined in sub-clause (ii) or clause (r) of Section 2(1) as unfair trade practice, xxxxxx Therefore, if such authority undertakes to construct building or allot houses or building sites to citizens of the State either as amenity or as benefit then it amounts to rendering of service and will be covered in the expression service made available to potential users. A person who applies for allotment of a building site or for a flat constructed by the development authority or enters into an agreement with a builder or a contractor is a potential user and nature of transaction is covered in the expression service of any description.

11. In Ghaziabad Development Authority versus Balbir Singh, 2004 (5) SCC 605 : [2004(5) ALL MR 771 (S.C.)], the Honble Apex Court, inter-alia held as under:

Thus the law is that the Consumer Protection Act, 1986 has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities. Such authorities become liable to compensate for misfeasance in public office i.e. an act which is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen.

Drawing a distinction between construction of houses and sale of sites, by way of public auction, the Apex Court in U.T. Chandigarh Administration and Ors. vs. Amarjeet Singh & Ors. 2009 CTJ 486 (SC) (CP), inter-alia held as under:

The decisions in Lucknow Development Authority and Ghaziabad Development Authority make it clear that where a public development authority having invited applications for allotment of sites in a layout to be formed or for houses to be constructed and delivered, fails to deliver possession by forming the layout of sites or by constructing the houses within the stipulated period the delay may amount to a deficiency in service by treating the development authority as a service provider and the allottee as the consumer. But where existing sites are put up for sale or lease by public auction by the owner, and the sale/lease is confirmed in favour of the highest bidder, the resultant contract relates to sale or lease of immovable property.

There is no hiring or availing of service by the person bidding at the auction. Nor is the seller or lessor, a trader who sells or distributes goods.

The sale price or lease premium paid by the successful bidder of a site is the consideration for the sale or lease, and not consideration for any service or for provision of any amenity or for sale of any goods.

In a scheme for development and allotment, the allottee has no choice of the site allotted. He has no choice in regard to the price to be paid. The development authority decides which site should be allotted to him.

The development authority fixes the uniform price with reference to the size of plots. In most development schemes, the applications are invited and allotments are made long before the actual development of the layout or formation of sites. Further the development scheme casts an obligation on the development authority to provide specified amenities. Alternatively the developer represents that he would provide certain amenities, in the Brochure or advertisement. In a public auction of sites, the position is completely different. A person interested can inspect the sites offered and choose the site which he wants to acquire and participate in the auction only in regard to such site. Before bidding in the auction, he knows or is in a position to ascertain, the condition and situation of the site. He knows about the existence or lack of amenities. The auction is on as is where is basis.

With such knowledge, he participates in the auction and offers particular bid. There is no compulsion that he should offer a particular price.

When the sites auctioned are existing sites, without any assurance/representation relating to amenities, there is no question of deficiency of service or denial of service. Where the bidder has a choice and option in regard to the site and price and when there is no assurance of any facility or amenity, the question of the owner of the site becoming a service provider, does not arise even by applying the tests laid down in Lucknow Development Authority vs. Balbir Singh.

In Chandigarh Housing Board Vs. Avtar Singh (2010) 10 SCC 194 : [2010 ALL SCR 2458], the Administrator, Union Territory Chandigarh framed a scheme for allotment of a land to a Cooperative House Building Society. A large number of societies challenged the said scheme by way of a writ petition filed in Punjab & Haryana High Court. By way of an interim order, the High Court permitted the societies to deposit 10% of the tentative price, subject to their filing an undertaking to deposit the balance amount with interest in case the writ petitions were dismissed and they were to accept allotment of flats under the new scheme. Pursuant to the said direction, the societies collected 10% of the tentative price from their members and deposited the same with Chandigarh Housing Board. The writ petitions later came to be dismissed.

While dismissing the writ petitions, the High Court permitted the societies, which were eligible for allotment or had been allotted the sites, to pay balance amount along with interest.

Though the members of the society paid the balance Earnest Money and interest, the land was not allotted to the societies. Therefore, some of their members applied for refund of the amount paid by them, indicating that they were no more interested in the flats. The Board however, forfeited 10% earnest money and did not refund the interest component. Being aggrieved, the aforesaid members approached the concerned District Forum by way of a complaint. The District Forum, State Commission as well as this Commission having ruled in favour of the members, the Board approached the Honble Supreme Court and it was inter-alia contended that the District Forum did not have jurisdiction to entertain the complaints filed by the members of the society because there was no privity of contract between them and the Board. Relying upon its earlier decisions in Lucknow Development Authority, [2012 ALL SCR (O.C.C.) 1] (supra) and Ghaziabad Development Authority, [2004(5) ALL MR 771 (S.C.)] (supra), the contention was rejected by the Honble Supreme Court. Thus, in the aforesaid case, the Honble Supreme Court held the member of a society which had been registered and was awaiting for allotment of land from the Chandigarh Housing Board to be a consumer within the meaning of Consumer Protection Act, 1986, despite the fact that no allotment had by that time been made to the societies of which the complainants were the members.

In Narne Construction Private Ltd. & Ors. Vs. Union of India & Ors. (2012) 5 SCC 359 : [2012(4) ALL MR 521 (S.C.)], the opposite party promoted ventures for development of lands into housing site and invited the intending purchasers through paper publication and brochures to join as members. The complainant responded and joined as members on payment of fees.

The sale was not on as it is where it is basis and the terms and conditions applicable to the members stipulated sale of only developed plots. The registration of the plots was to be made after sanction of layout by the authorities concerned. The sale price was for the developed sites and providing infrastructure and not for the raw land. Noticing that the opposite party was obliged to develop the plots and obtain permissions/approvals of the layouts, it was held that this was a case where a clear cut assurance was given to the purchasers as to the nature and extent of the development that would be carried by the appellant company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchasers for valuable consideration and therefore, the company was to render service to the purchasers and it would be accountable before the consumer forum in respect of any deficiency or defect in the said service.

In Virender Jain Vs. Alaknanda Cooperative Group Housing Society Ltd. & Ors. 2013 (6) Scale 571, the appellants before the Honble Supreme Court, who were enrolled as members of the Cooperative Housing Society had applied for flats being constructed by the said society and had deposited certain installments, were held to be consumers within the meaning of the Consumer Protection Act.

The Honble Court rejected the contention that they should have been directed to avail the statutory remedy available under the Cooperative Societies Act.

In Morgan Stanley Mutual Fund Vs. Kartick Das, (1994) 4 SCC 225, dealing with a person, who had applied for allotment, but to whom no allotment had been made, the Honble Supreme Court, inter-alia held as under:

Therefore, it is after allotment, rights may arise as per the contract (Article of Association of Company). But certainly not before allotment. At that stage, he is only a prospective investor (sic in) future goods. The issue was yet to open on 27.04.1993. There is not purchase of goods for a consideration, nor again could he be called the hirer of the services of the company for a consideration. In order to satisfy the requirement of above definition of consumer, it is clear that there must be a transaction of buying goods for consideration under Clause 2(1)(d)(i) of the said Act. The definition contemplates the pre-existence of a completed transaction of a sale and purchase. If regard is had to the definition of complaint under the Act, it will be clear that no prospective investor could fall under the Act.

The legal proposition which emerges from the above rendered decisions of the Honble Supreme Court is that a person, who is allotted a flat or a plot to be developed by a statutory authority such as Delhi Development Authority or Avas Vikas Parishad as well as a person, who is registered with such an Authority for the purpose of allotment of such a flat/plot and is awaiting allotment would be a consumer within the meaning of Section2 (1) (d) of the Consumer Protection Act, 1986. If however, the flat/plot is sold by such a statutory authority by way of a public auction on as is where is basis and such sale is not accompanied by an obligation to carry out any further development such as providing/augmenting infrastructural facilities viz. roads, sewerage, electricity, water facilities etc., the purchaser shall not be a consumer within the meaning of Section 2(1)(d) of the said Act.

12. As far as the person, who obtains for allotment of a built up flat/developed plot is concerned if the statutory authority does not undertake an obligation to carry out any further development activity such as providing or augmenting infrastructure or is not required to render any other service in connection with such allotment, he will not be a consumer within the meaning of the Act. If however, the sale / allotment of built up flats/developed plots is accompanied by such an obligation on the part of the concerned development authority, the purchaser would be a consumer within the meaning of Section 2(1) (d) of the Consumer Protection Act.

13. As far as a person who applies for allotment of a plot/flat is concerned, he will not be a consumer within the meaning of Section 2(1) (d) of the Act, if neither any allotment is made to him nor he is registered for and awaiting such an allotment. Such a person cannot be said to have hired or availed the services of the concerned development authority in connection with housing. Mere submission of an application for allotment, which does not result either in allotment or registration and consequent inclusion in the awaiting list for such an allotment, does not confer upon him the status of a consumer as defined under Section 2(1) (d) of the said Act.

14. In Punjab Urban Planning and Development Authority & Anr. Vs. Krishan Pal Chander, I (2010) CPJ 99 (NC), the complainant / respondent applied for allotment of land but no allotment was made to him. He approached the concerned District Forum by way of a complaint, which was allowed. Being aggrieved, the petitioner before this Commission approached the concerned State Commission by way of an appeal. The State Commission held the complainant to be a consumer. Being aggrieved, the Development Authority approached this Commission by way of the revision petition. Setting aside the order passed by the fora below, this Commission held that the respondent was not a consumer as no allotment had been made in his favour. When the learned counsel for the respondents in the said case sought to rely upon the decision of the Honble Supreme Court in Lucknow Development Authority, [2012 ALL SCR (O.C.C.) 1] (supra), this Commission was of the view that what had been held in the said decision of the Honble Supreme Court was that the deficiency in service either in construction of the building or any other defect would fall within the meaning of Clause (o) of Section 2 of the Act. This Commission was of the view that till the allotment of the flat, the respondent had not become the consumer.

15. In Delhi Development Authority Vs. Krishan Lal, First Appeal No. 486 of 2006, decided on 27.09.2011, the complainant/respondent had applied for allotment of a plot under Rohini Residential Scheme of DDA but no allotment was made to him for more than fifteen years. This Commission took the view that mere registration by a person in any scheme for allotment of plots or flats would not make such person a consumer within the meaning of Consumer Protection Act. However, in view of the binding decision of the Honble Supreme Court in Chandigarh Housing Board, [2010 ALL SCR 2458] (supra), where the members of a society which was awaiting allotment of land from Chandigarh Housing Board, but to which no allotment had been made, were held to be Consumer, the person who gets himself registered for such an allotment and is awaiting allotment would be a consumer within the meaning of Section 2(1)(d) of the Act, since by paying the registration money and awaiting allotment, he can be said to have availed or hired the services of the concerned development authority in connection with housing construction. It would be immaterial in such a case whether the house is to be constructed by the development authority or by the registrants.

16. In Delhi Development Authority Vs. Paschim Vihar Resident Cooperative Urban Thrift & Credit Society Ltd., Revision Petition No. 1040 of 2006, decided on 09.03.2010, the respondent had applied for allotment of built up shop by way of a tender. When he went to take the possession of the site purchased by him, certain defects were noticed by him. In the meanwhile, conveyance deed was executed in his favour. In view of the defects noticed by him, he sought refund of the additional stamp duty which he had paid. Such refund having been refused to him, he approached the concerned District Forum, seeking refund of the said duty, along with interest and compensation. Relying upon the decision of the Honble Supreme Court in Amarjeet Singh (supra), it was held that the complaint before the consumer forum was not maintainable.

In Delhi development Authority Vs. Sandeep Khatri, Revision Petition No. 710 of 2014, decided on 25.08.2014, the respondent submitted application for allotment of a flat under housing scheme, 2006 and a flat was allotted to him in due course. The possession of the flat to him, however, was delayed. Alleging deficiency in service on account of delayed possession, he approached the concerned District Forum. The State Commission having ruled in his favour, DDA approached this Commission by way of a revision petition. Noticing that the complainant in that case had been allotted a ready built up flat on as is where is basis and the DDA had not promised to render any service in respect of the subject flat to the complainant, it was held that he was not a consumer within the meaning of Consumer Protection Act.

17. In First Appeal No. 183 of 1992, decided on 18.08.1994, the complainant/respondent applied to the petitioner Board for allotment of a plot. He paid the cost of application form as well as registration fee.

His name however, was not included in the draw of lots. Alleging deficiency in service, he approached the concerned District Forum by way of a complaint. It was contended on behalf of the appellant Board that since the respondent had only applied for allotment of site and no allotment had been made to him, he was not a consumer. The contention however, was rejected relying upon the observations made by the Honble Supreme Court in Lucknow Development Authority, [2012 ALL SCR (O.C.C.) 1] (Supra) and noticing that he had paid the cost of application form as well as the registration fee and consequently the Board was deemed to have undertaken to include his name in the draw of lots for allotment of a plot.

18. In the complaint subject matter of RP/3649/2014, the application form was deposited by the complainants with Punjab National Bank, which was not one of the Banks nominated by Delhi Development Authority to collect the applications for allotment. Though the complainants are residents of Mansa, this is not their case in the complaint that the application forms were deposited by them at Mansa. DDA does not have an office at Mansa. It was clearly stated in the Brochure issued by the DDA that any dispute shall be subject to jurisdiction of the Delhi Courts only. On issue of notice to it, DDA filed a reply taking a preliminary objection that the District Forum did not have territorial jurisdiction to entertain the complaint. The said objection however, was not accepted observing that the applications were filled up by Mansa Branch of Punjab National Bank and forwarded to the opposite party No.1, Delhi Development Authority. The State Commission took the view that Punjab National Bank at Mansa was acting as an agent of the DDA. It was also held that since Punjab National Bank, Mansa had given publicity to the said scheme in its territorial part of the cause of action had arisen at Mansa. In our view, the District Forum and the State Commission were entirely wrong in taking the said view. Section 11 of the Consumer Protection Act, to the extent it is relevant for our purpose reads as under:

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction

(a) The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or;

(b) Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution, or

(c) The cause of action, wholly or in part, arises.

Since DDA does not have an office at Mansa, clause (a) above is clearly inapplicable. Since the application form was deposited at Delhi and the communication impugned in the complaint was also issued from Delhi, the cause of action entirely arose in Delhi. As far as Clause (b) above is concerned, neither the permission of the District Forum was obtained for instituting the complaint against Delhi Development Authority at Mansa nor was Punjab National Bank either a necessary or a proper party to the complaint. Therefore, Clause (b) also would not apply to facts of this case. Consequently, the District Forum did not have territorial jurisdiction to entertain the complaint. In taking this view, I am supported by the decision of this Commission in Subodh Kumar Baheti Vs. Delhi Development Authority Revision Petition No.2335 of 2012, where the complainant a resident of Bhilwara in Rajasthan field a complaint against Delhi Development Authority and ICICI Bank at Bhilwara. It was held by this Commission that since DDA does not have an office at Bhilwara, the District Forum at Bhilwara did not have territorial jurisdiction to entertain the complaint.

19. In ONGC case 1994 AIR SCW 3287, the Honble Supreme Court, dealing with the concept of cause of action in the context of Article 226 (2) of the Constitution, inter-alia observed as under:-

It is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to conclusion that those facts give rise to a cause of action within the courts territorial jurisdiction unless those facts pleaded are such which have a nexus or relevance with the lis that is involved in the case. Facts which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the Court concerned.

Therefore, filing up of the application forms at Mansa will not constitute even a part of the cause of action since filling up of the form has no relevance to the issue involved in the complaint.

20. Learned counsel for the complainant in this case relied upon the decision of this Commission In Empire Builders Vs. Anthony Xavier Andrade II (2009) CPJ 239 (NC). In the above referred case, this Commission took the view that objection elating to jurisdiction is required to be taken in the fora in the first instance at the earliest possible opportunity and the principles analogous to Section 21, CPC would be applicable. It was noticed by this Commission that the petitioner had not raised any objection to the pecuniary jurisdiction of the District Forum even though several other objections were taken. However, in the case before us, the objection relating to lack of territorial jurisdiction was taken by the petitioner DDA at the earliest possible opportunity by incorporating the same in the written statement filed by it.

21. IN RP 3649 of 2014, DDA had invited applications for allotment of built up flats on as is where is basis. This is not the case of the complainant that the allotment of the built up flats carried an obligation to provide services such as water facilities, electricity supply, construction of roads, sewerage etc. This is also not their case that the development of the area in which the flats proposed to be allotted by DDA were situated was not complete and further development on the part of the DDA was required to make them habitable. In our opinion, when a ready built up flat is sought to be allotted and such an allotment is not accompanied by an obligation to carry out any further development such as providing / augmenting services such as roads, sewerage, electricity connection, water facilities etc., the allottee will not be a consumer of DDA within the meaning of Section 2(1)(d) of the Consumer Protection Act, unless he can make out a case of some other deficiency in connection with housing construction such as delay in handing over possession or execution of the conveyance deed etc. In such a case, there will be no distinction between a person, who purchases such a built up flat by way of auction / tender or a person who acquires the said flat by way of an allotment, on the basis of a public draw. The paramount consideration in such a case would be as to whether any service remained to be provided by the development authority to the allottee and the complainant was alleging deficiency in rendering of such a service. Mere forfeiture of the application money by a development authority purporting to act as per the terms and conditions of the offer made by it cannot be said to be a deficiency in relation to a housing construction. Therefore, the revision petition No.3649/2014, filed by Delhi Development Authority needs to be allowed.

22. Coming to the complaint subject matter of RP/4051/2014, the grievance of the complainant is that though she got registered for allotment of a house way back on 08.07.1986, no allotment has been made to her.

The case of the respondent/opposite party in this regard is that such allotment are to be made on the basis of seniority through draw of lots and in the general category, in which the complainant is registered, only some of the registrants of 1979, have been allotted houses.

This is also the case of the opposite party that it is ready to provide a house to the complainant in Krishan Vihar Scheme, where some houses are available. The State Commission allowed the appeal filed by the respondent holding that the complainant was not a consumer since no allotment has been made to her. Though, the District Forum directed allotment of a house to her in the same scheme in which she was registered, it gave no reason for giving such a direction when the turn of the complainant is yet to mature.

Obviously, the complainant who is a registrant of 1986 cannot be given priority over those, who were registered much earlier and are still awaiting allotment from the respondent Board. The complainant did not accept the offer made by the respondent Board to allot a house to her in Krishan Vihar Colony where some vacant houses are available.

In our opinion, the District Forum was not at all justified in directing allotment of a house to the complainant in the same scheme in which she was registered, when persons who were registered much earlier are still awaiting allotment. The complaint therefore is liable to dismissed on merits.

23. For the reasons stated hereinabove, revision petition No.3649/2014, filed by DDA is allowed and the complaint filed by the respondents/complainants in the said revision petition is dismissed. The revision petition No. 4051/2014 is dismissed. No order as to costs.

Ordered accordingly.