The instant complaint under section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a purchaser against the Developer i.e. Central Government employees welfare Housing Organisation (CGEWHO) i.e. Opposite Party No. 1 and the Contractor/Builder (Opposite Party No. 2) on the  allegation of deficiency of services, primarily on the part of Opposite Party No. 1 in a dispute of housing construction.

          Succinctly put, complainant’s case is that pursuant to an advertisement for construction of a project named Kolkata (phase- II) Housing Scheme at Belgharia Expressway lying and situated at Badra (North) Main Road, Shaktigarh, Birati, Kolkata- 700051, Dist- North 24 Parganas within local limits of North Dum Dum Municipality, complainant after fulfilment of eligibility criteria applied for allotment of one dwelling unit in the said project. On receiving the said application of the complainant, on 27.08.2012 an allotment letter of one such dwelling unit was issued by the Opposite Party No. 1 in favour of the complainant along with the payment schedule. The Opposite Party No. 1, who is not in construction activity, engages OP No. 2 for the purpose of development and construction of the 690 dwelling units to be built up in the said project. Accordingly, OP No. 1 entered into an agreement with the Opposite Party No. 2 on 03.06.2011 for construction of Trunkey Housing Project. The tentative cost of different type of dwelling units of project was mentioned in the ‘Sale Brochure of Kolkata phase-II housing scheme- 2010’ and as per Sale Brochure the tentative cost of type- A, type-B, type- C, type-D dwelling units were fixed at Rs. 15.12 lakhs , Rs. 27.25 lakhs, Rs.33.19 lakhs and Rs. 39.08 lakhs respectively and the costs, indicated towards different types of dwelling units are including anticipated escalation payable till March, 2013 on the basis of price index, tentatively taken at 3% per year. The complainant was served a notice for payment of first instalment before 31.01.2011 whereby the tentative cost of the said unit was fixed at Rs. 39,08,000/-. The complainant has stated that he has paid the full consideration on diverse dates. However, he was shocked to receive ‘final call up letter’ which was issued by the Director (Finance) of CGEWHO on 24.11.2014 whereby the complainant was forced to make the 6^th and final instalment of Rs. 13,71,502/- excluding the cost of parking under stilt area. The complainant has alleged that as per terms of the agreement the construction should commence tentatively in October, 2010 and should have been completed within 30 months thereafter. However, the construction work of the said housing scheme was started only in the month of June, 2011 and the construction work is considered not yet completed as the Completion Certificate is yet to be issued by the competent authority. Anyhow, handing over the dwelling units was initiated from 31.12.2014 after a delay of 1 year 9 months from the date of completion of the project as per the Sale Brochure of the housing scheme. The complainant has stated that the Occupancy Certificate has been issued by the North Dum Dum Municipality on 09.10.2014 and the same was uploaded on the website of CGEWHO on 1.12.2014. The complainant has also alleged that after getting physical possession of the dwelling units they started noticing that there was gross irregularity in imposing additional cost arbitrary causing pecuniary loss to the complainant. The complainant has further alleged that the anticipated increase of  13.62% on account of escalation on announced cost was initially disclosed by the OP No. 1 in the pre-final cost calculation statement uploaded on the website of CGEWHO on 5.5.2014 along with the minutes of PMC meeting held on 30.04.2014. By uploading the pre-final cost calculation statement on 05.05.2014, the cost per sq. ft. super built up area of dwelling unit (i.e. Rs. 2595/-+ service tax at 3%) was brought to the notice of the allottees/ owners. In the same statement , the cost per sq. ft super built up area of dwelling unit as per announced cost of the dwelling unit was depicted as Rs. 2284/- to show 13.62% shock escalation. Thus CGEWHO has tried to mislead the allottees including the complainant by showing lesser figure of escalation knowing that the announced cost was including anticipatory escalation @ 3% per year till March 2013. The complainant has also stated that the OP No. 1 has misappropriated a large amount in the project cost towards service tax amounting to Rs. 6,30,92,273/- and also wrongfully usurped the amount of Rs. 3,51,96,513/- towards reserve fund for their personal benefit etc. The complainant has further alleged that the amount of materials and labour escalation was also calculated by the OP No. 1 is excessive one than the original cost etc. The complainant submits that the OP No. 1 have misappropriated the fund amounting to several lacks rupees towards cancellation charges since no such amount towards withdrawal and cancellation charges has been reflected in the pre-final cost calculation uploaded on the website of CGEWHO on 05.02.2015. Hence, the Opposite Party is deficient in service and liable for unfair trade practice when it fails to complete the project in time as per the Sale Brochure. The project was to be completed by OP No. 1 within 30 months from the date of construction which was tentatively in the month of October, 2010 but the project could not be completed within the stipulated time. The complainant has specifically stated that the OP No. 1 has collected Rs. 2,75,000/- from about 449 allottees for allotment of parking spaces under stilt area though the same is clearly not permissible after the decision of the Hon’ble Supreme Court of India in Civil appeal No. 2544 of 2010 dated 31.8.2010. The complainant has stated that he send a notice through speed post upon the Opposite  Party No. 1 on 15.03.2016 to which on behalf of OP No. 1 a reply was given but being not satisfied with the same, the complainant has come up in this commission with this complaint with the prayer for several reliefs, viz.- (i) Execution and registration of a proper deed of conveyance in favour of the complainant in respect of the scheduled  flat, along with all common facilities and amenities as mentioned in the sale Brochure, on calculation of final cost price of the schedule flat adjusting/paying back the various refunds to which the complainant is entitled to as mentioned under various heads of the prayer below. (ii) Computation and fixation of the final cost of the scheduled flat excluding the proportionate share in the total amount of Reserve Fund (Rs. 3,51,96,513/-) already collected from 582 allottees including the complainant as stated under Para-13, which stands at Rs. 72,752/-, is to be refunded by the Opposite Party- 1 to the complainant along with statutory interest on the same amount. (iii) Computation and fixation of the final cost of scheduled flat excluding the proportionate share in the total amount of Service Tax (Rs. 6,30,92,273/-) recovered from 582 allottees including the complainant as stated under Para- 14 to 18, which stands at Rs. 1,30,412/- which  is to be refunded by the Opposite Party- 1 to the complainant along with statutory interest on the same amount. (iv) Computation and fixation of the final cost of scheduled flat excluding proportionate share in the total unspent amount towards the cost of land, conversion of use of land for residential purposes, survey, soil investigation etc. (Rs. 16,06,67,322/-) recovered from 582 allottees including the complainant as stated under Para 19 & 20, which stands at Rs. 3,32,101/- , which is to be refunded by the Opposite Party- 1 to the complainant along with statutory interest on the same amount. (v) Computation and fixation of the final cost of scheduled flat excluding proportionate share in the Difference Cost of Cement and Steel (Rs. 15,48,15,999/-) recovered from 582 allottees including the complainant as stated under Para-21, which stands at Rs. 3,20,006/-, which is to be refunded by the Opposite Party- 1 to the complainant along with statutory interest on the same amount; (vi) Computation and fixation of the final cost of scheduled flat excluding proportionate share in excess amount of Rs. 32,52,52,531/- recovered towards Materials and Labour Escalation (i.e. Rs. 59,34,89,157/- in place of Rs. 26,82,36,626/- from 582 allottees including the complainant as stated under Para-22, which stands at Rs. 6,72,301/-, which is to be refunded by the Opposite Party- 1 to the complainant along with statutory interest on the same amount; (vii) Refund of proportionate share in the unrecovered amount of Rs. 10,27,35,270/- towards compensation for delay in completion of work/project by M/s. P S Group Reality Ltd. within the stipulated time as stated under Para- 23, which stands at Rs. 2,12,355/-, which is to be refunded by the Opposite Party- 1 to the complainant along with statutory interest on the same amount; (viii) Computation and fixation of the final cost of schedule flat excluding the unadjusted amount of Equalisation, Withdrawal and Cancellation Charges recovered from the allottees as stated under Para- 26 and 27 after verification and the proportionate share of the same amount is to be refunded by the Opposite Party-1 to the complainant along with statutory interest on the same amount; (ix) Payment of a sum of 2,00,000/- by the Opposite Party- 1 to the complainant towards compensation  for the delay of 21 months in completion of the project by the Opposite Party- 1 (i.e. CGEWHO) within the stipulated period of 30 months time from the date of commencement of construction as per the “Sale Brochure of Kolkata Phase-II Housing Scheme” as stated under Para-28. (x) Payment of an amount of Rs. 1,00,000/- by the Opposite Party-1 to the complainant towards compensation for the deficiencies observed in the Scheduled Flat in respect of difference in Super Built Area, materials and workmanships as stated under as stated under Para-30 & 31 in the petition. (xi) Delivery of the entire stilt area (i.e. common area) to the Executive Committee of KV-II AOA, Kolkata along with other common areas and facilities/ amenities as stated under Para- 32 & 33. (xii) Refund the entire amount Rs. 2,75,000/- recovered from the complainant towards the cost of parking under ‘stilt area’ by the Opposite Party- 1 to the complainant as stated under Para- 33 along with statutory interest on the same amount. (xiii) Completion of the deficiencies in services in common areas and facilities/amenities as stated under Para-34 to 37 in the petition by the Opposite Party-1 within a period of six months time. (xiv) Delivery of the Notarized/Certified copies of the Completion and Occupancy Certificates, issued by the Competent Authority in respect of the Revised Approved Layout/ Building Plan No. 51 for the year 2012-13, by the Opposite Party- 1 to the complainant as stated under Para-24. (xv) Compensation to the tune of Rs. 2,50,000/- by the Opposite Party- 1 to the complainant for the mental and physical agony which are being suffering by the complainant for the last couple of years out of the aforesaid deficiency of service and unfair trade practice. (xvi) Compensation to the tune of Rs. 75,000/- to the complainant towards Litigation cost etc.

          The Opposite Party No. 1 by filing a written version disputed and denied the allegations made by the complainant stating that the complaint is bad for mis-joinder of necessary party and as the complainant did not seek remedy under Arbitration and Conciliation Act, 1996 in terms of Clause 39 of the agreement, the compliant is not maintainable. The OP No. 1 has also taken a plea that as they undertake social welfare scheme at ‘no profit no loss’ basis for the Central Government employees they cannot be categorised as ‘consumer’ within the definition under the Act. The specific case of the OP No. 1 is that the allotment letter cum call up notice dated 29.1.2010 issued by them clearly provides the components of the 6^th and final instalment would include actual cost towards escalation, interest towards capitalization charges, apartments owners associations charges, reserved fund, service tax and other statutory levies/charges, if any, along with the cost of parking (s) if allotted. The OP No. 1 has stated that the complainant has never raised any objection as to any of the clause in the said allotment letter on the basis of which one type-D dwelling unit measuring about 1716 sq. ft. had been allotted in favour of the complainant and the complainant in terms of the said allotment letter had made payments. The OP No. 1 has stated that the parameters given in respect of dwelling units/flats has been mentioned in clause v of the part A of the CGEWHO Rules and the same are clearly provisional and is in the realm of the plan and proposal and a subject to the variation/variance in consonance with the actual project work being undertaken from time to time and also sanction of plan. The type-D flat to which the price was settled at Rs. 39.08 lakhs tentatively included anticipatory escalation payable till March, 2013 on the basis of price index and which had been taken at a rate of 3% per annum and this payment was to be made good by the complainant by application money and five instalments thereafter as indicated clause vii of the CGEWHO rules. The 6^th and final instalment is supposed to comprise balance actual cost including escalation plus interest towards equalization charges plus reserved funds plus other statutory levies/charges plus apartment owners associations charges plus cost of parking if allotted.  The OP No. 1 has categorically stated that the types, areas, costs as indicated are all tentative and subject to revision and cost indicated does not include actual cost and included the anticipated escalation cost payable only till March, 2013 on the basis of the rise in price index@ 3% per annum. The OP No. 1 has specifically stated that in terms of the final call up letter the complainant was supposed to pay Rs. 10,27,037/- which the complainant paid without any demur or protest and as such the sole purpose of the complaint of making illegal profit. The OP No. 1 has stated that the cost of dwelling unit will be subject to escalation, on account of market prices, labour charges, cooperative society/apartment owners association charges, essential alterations, additions etc and it was provided that all such revision of cost will be charged to the beneficiaries and they will be liable to pay the same. The OP No. 1 has spell out that the construction has started only on 01.09.2011 and the construction of the project was completed on 01.03.2014 and after completion of the works and upon fulfilment of all the statutory formalities the application for issuance of Occupancy Certificate was made by OP No. 1 to the competent authorities on 30.05.2014 and Occupancy Certificate had been issued by North Dum Dum Municipality on 09.10.2014. Accordingly, the communication of the completion of the project was informed to the beneficiaries/allottees including the complainant vide memo No. A-404/1 dated 24.11.2014  and the final call up notice had been issued. The OP No. 1 has denied the allegation of misappropriation of any amount whatsoever under the head of reserve fund, service taxes etc and further stated that as there is no deficiency of services on the part of them, the complaint should be dismissed.

          The Opposite Party No. 2 by filing a separate written version has stated that there is no privity of contract exist between them and the complainant and as such the compliant is bad for mis-joinder of party. The OP No. 2 has stated that the entire price of the flat has been paid by the compliant to OP No. 1 and no point of time any money has been paid by the complainant to OP No. 2 in any manner whatsoever and as such there is no fiduciary relationship between the complainant and OP No. 2 exists for which the compliant is not maintainable against them. 

          The parties to the case have tendered evidence through affidavit.  They have also given reply against the questionnaire set forth by their adversaries.  Besides the same, the parties have relied upon several documents in support of their respective cases.  At the time of final hearing, all the parties have filed brief notes of arguments.

          The pleadings of the parties clearly depict that the complainant claiming himself to be a ‘consumer’ within the meaning of Section 2(1)(d) of the Act has lodged the complaint against the developer i.e. Central Government Employees Welfare Housing Organisation (CGEWHO) and the builder/contractor P. S. Group Realty Ltd. on the allegation of deficiency in services for not providing the flat in accordance with the ‘Sale Brochure of Kolkata Phase-II Housing Scheme-2010’.   The fact remains that the complainant had applied for allotment of a dwelling units (Stilt + 6 floors with lift) to be constructed under Type-A, Type-B, Type-C and Type-D consisting of six dwelling units.  Accordingly, allotment letter was issued by OP No.1 along with payment schedule and in accordance with the said payment schedule, the complainant has paid the consideration amount in favour of OP No.1.  The materials on record indicate that there was no privity of contract exists between the complainant and OP No.2.  In other words, the entire price of the flat has been paid by the complainant in favour of OP No.1 and at no point of time, any amount has been paid by the complainant to OP No.2.  The OP No 1 had entered into an agreement with OP No.2 on 03.06.2011 for construction of Trunkey Housing Project in the said complex.  In other words, OP No.1, who is not in construction activity engaged OP No.2 for the purpose of development and construction of the dwelling units, parking spaces and other common facilities and amenities which are generally provided in a group housing project.  On perusal of the prayer clause of the petition of complaint, it would reveal that the complainant has not sought for any relief against OP No.2. Therefore, the complainant has no occasion to implead OP No.2 as a party to this case.  In any case, the inclusion of OP No.2 will not be a dent to the complainant’s case.

          The OP No.1 took a plea that as they have constructed the project being an autonomous body of the Ministry of Housing and Urban Affairs, Govt. of India and has been set up for the execution of housing projects in India meant for Central Government Employees at a ‘no-profit-no-loss’ on self-financing basis and not providing any service for any consideration, the complaint is not maintainable.  In their BNA, OP No.1 has mentioned about a decision reported in I (1992) CPJ 318 [P.K. Kuriakose & Ors. – Vs. – Air Force Naval Housing Board] but has not placed the said decision before the Bench for consideration.  For appreciation of the matter, it would be worthwhile to reproduce the definition of Section 2(1)(d) of the Act which runs as follows-

          “Consumer means any person who –

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other then the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose”.

Explanation:- for the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”.

       The foregoing provision provides that the ‘consumer’ is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails of services for commercial purposes.   In the case beforehand, it is palpably clear that the complainant after fulfilling the criteria had applied for a dwelling unit on consideration and on payment of the entire consideration on demand, the possession of the flat/unit has been handed over to the complainant but the execution and registration of Sale Deed is yet to be executed.  Moreover, the complainant has alleged that the OP No.1 has failed to fulfil its promise in handing over the flat/unit within the time frame.  It simply indicates the relation between the complainant and OP No.1 as ‘consumer’ and ‘service provider’.  Therefore, under any stretch of imagination, it cannot be said that as the project was floated by OP No.1 on no-profit-no-loss basis, it cannot come under the purview of the Act. 

       The OP No.1 has also taken a plea that in view of Clause-39 of the Brochure (CGEWHO Rules) the dispute should have been referred to the President of the Governing Council of CGEWHO and the President shall appoint Arbitrator to adjudicate in the matter, whose decision shall be final and binding on the beneficiary and the CGEWHO.  In Clause-39, it has been specifically mentioned that request for arbitration of a dispute will be entertained only if it is made within two months of the cause of action and prior to taking possession of the dwelling unit/flat.  Possession will not be given till the arbitration proceedings are complete.

       Evidently, after receiving final call up letter dated 24.11.2014, the complainant paid the balance consideration amount by way of 6^th and final instalment and took possession of the flat/unit.  Therefore, as per Clause-39 after accepting possession, the complainant had hardly any scope to approach for arbitration.  Upon hearing the Ld. Advocates on the issue and keeping in view the avowed object behind the legislation of the Act and the authorities, it can be said that a Consumer Forum should not get bogged down by hyper technicalities and in a complaint under the Act, it has to be seen whether the complainant is a ‘consumer’ or not in accordance with Section 2(1)(d) of the Act and whether there was any deficiency on the part of the service provider according to Section 2(1)(g) read with Section 2(1)(o) of the Act.  In the case of DLF Ltd. - vs. - Mridul Estate Pvt. Ltd. reported in III (2013) CPJ 439 the Larger Bench of Hon’ble National Consumer Commission considering several decisions of Hon’ble Supreme Court reported in – (1) the case of SBP & Co - vs.- M/s. Patel Engineering Company  Ltd. & Anr., AIR  2006  SC  450; (2) National Seeds Corporation Ltd. - vs. - M. Madhusudan Reddy & Anr., I (2012) CPJ 1 (SC); (3) Lucknow Development Authority - vs. - M.K. Gupta, III (1993) CPJ 7 (SC) and several other judgements has observed that the Consumer Fora constituted under the C.P. Act are not bound to refer the dispute raised in the complaint on an application filed under Section 8 of the 1996 Act seeking reference of the dispute to an Arbitral Tribunal in terms of valid arbitration clause in the agreement entered into between the parties.  The OP in CC/188 of 2010 preferred an appeal in the Hon’ble Supreme Court and the Hon’ble Supreme Court in the case of Rosedale Developers Pvt. Ltd. - vs. - Aghore Bhattacharya reported in (2015) 1 WBLR (SC) 385 has held that the National Commission did not commit any error by holding that the remedy of arbitration available to the complainant does not bar the jurisdiction of the Consumer Fora and the Consumer Fora are not under an obligation to refer the matter to the Arbitral Tribunal.

          After amendment to Section 8 of Arbitration Act, 2015 a bunch of applications filed by the developers/builders and in disposing of the same by the Larger Bench of the Hon’ble National Commission  reported in  III (2017) CPJ 270  (Aftab Singh - vs. - EMAAR MGF Land Ltd. & Anr.) has observed that in the context of consumer jurisprudence, the Hon’ble Supreme Court has not disturbed the earlier opinion regarding the arbitrarily of consumer disputes rendered in the pre-amendment era rather it has affirmed the protection granted to the consumers from private resolution.  After a detailed discussion with reference to several judgement of the Hon’ble Supreme Court including the decision reported in (2016) 10 SCC 386 (A. Ayyasamy - vs. - A. Paramasivam & Ors.) the Hon’ble National Commission has arrived at the conclusion that in light of overall architecture of the Consumer Act and Court - evolved jurisprudence, amended Sub Section (1) of Section 8 cannot be construed as a mandate to the Consumer Forums, constituted under the Act, to refer the parties to arbitration in terms of the arbitration agreement.  Consequently, the Hon’ble National Commission reject the arguments on behalf of the builder and hold up that an arbitration clause between the complainant and the builder cannot circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made to Section 8 of the 1996 Act.

          At the time of final hearing, Mr. Netai Ch. Saha and Mr. Soumen Roy Chowdhury, Ld. Advocate for the OP No.1 and OP No.2 respectively have invited my attention to prayer (ii) to (xv) excepting prayer Nos. (ix), (xi) and (xv) of the prayer clause of the petition of complaint and submitted that the complainant did not seek any relief against OP No.2 and further it has been submitted that basically the prayers in the prayer cause of petition of complaint relates to computation and fixation of the final cost of the scheduled flat.  In this regard, the Ld. Advocates for OP Nos. 1 & 2 have relied upon a decision passed by the Hon’ble National Commission in RP/2509/2002 dated 19.01.2010 [Jagdish Gurnani – Vs. – Lacknow Development Authority].  In the said case, the Hon’ble National Commission referring to several decisions of the Hon’ble Supreme Court and also the earlier decisions of the Hon’ble National Commission has observed that the determination of final price will not come within the ambit of the Act.  In this regard, it would be pertinent to refer some relevant paragraphs of the said decision which are reproduces below –

          “This has been the view of this Commission starting with order of this Commission in the case Himachal Pradesh Housing Board – Vs. – Surender Mohan Suneja & Anr. [1986-99 CONSUMER 3699 (NS)] in which it was held – it has been repeatedly pointed out by this Commission pricing is not a factor falling within the purview of the scrutiny of the Consumer Forum, unless it be a case where there is a fixation of price by law or the price is marked on the container or on goods, where the transaction is one of Sale of Goods.  This was also reiterated by this Commission in the case of National Consumer Awarness Group (Regd.), Chandigarh – Vs. – The Housing Commissioner, Pubjab Housing Development Board, Chandigarh [OP No.238 of 1998 decided on 29.05.1997], in which it was held –

          CPA, 1986 Section 2(1)(e) – Consumer dispute pricing price, referred to in various sections in the price fixed by or under any law and not the price fixed otherwise.  The price is determined by the Board in accordance with the procedure evolved by it and there is no statutory control over the fixation of price and the same cannot, therefore, be interfered with.  The pricing of flats built up by the public authority or plots developed by the authorities is not a consumer dispute.

          This was also confirmed by the Hon’ble Supreme Court in the case of Bareilly Development Authority& Anr. – Vs. – Ajay Pal Singh & Ors. [AIR 1989 Supreme Court 1076], in which it was held –

          “when the brochure indicated estimated costs and other terms of allotment issues- fact that actual cost may increase or decrease is clearly indicated in brochure in view of which increase in cost of houses by development authority cannot be labelled as arbitrary and discriminatory.  In the case of Ghaziabad Development Authority – Vs. – Gurudutta Pundey [RP No.152 of 2002 decided on 21.08.2002] this Commission relying upon the judgement of the Hon’ble Supreme Court in the case of Premji Bhai Parmar & Ors. – Vs. – Delhi Development Authority & Ors. [AIR 1980 SC 738: (1980) 2 SCC 129 [has observed that price of the property was in the realm of contract between the seller and a buyer.

          It was, in these circumstances, Supreme Court did not interfere.

          The Hon’ble Supreme Court in the case of Premji Bhai Parmar & Ors. – Vs. – Delhi Development Authority & Ors. [AIR 1980 SC 738: (1980) 2 SCC 129] held that – price of land building material, labour charges and cost of transportation, quality and availability of land, supervision of management charges are all variable factors and enter into fixation of prices.  Their cost varies time wise, place wise and availability wise.  All these factors cannot be overlooked ........”.

          Mr. Devajyoti Barman, Ld. Advocate for the complainant has submitted that on an in-depth study of sale brochure, Articles of agreement, General Conditions of Contract, pre-final cost calculation statement uploaded in CGEWHO’s website on 05.05.2014 and 05.02.2015, technical brochure, circulars/notifications of Govt. of India, final call-up letter etc., the complainant came to know that the OP No.1 had included huge excess/unspent amount in the project cost under the head of reserve fund, service tax, cost of land and other land components, difference in costs of cement and steel, materials and labour escalation but did not recover any compensation from the OP No.2 for delay in completion of the project beyond 24 months as per agreement between OP No.1 and OP No. 2 dated 03.06.2011.

          Keeping in view the authority referred above, there cannot be any doubt that the complainant cannot seek any relief in a Forum constituted under the Act,  so far as prayer relates to computation and fixation rather pricing of the costs of the schedule flat which is  subject matter of consideration.

          The complainants were aware that the price indicated in the brochure was tentative and the final cost would be fixed after taking into account various factors and reasons which affect the final price. In this regard it would be worthwhile to point out that as per Rule 16 of CGEWHO Rules the cost of dwelling units with or without garages for each scheme will be work out by CGEWHO and intimated at the time of announcing their scheme. The cost will inter alia including interest on investment in land purchased for a scheme, common amenities, cost of reserved fund, charges towards registration of land etc. the cost will be reviewed at the different stages of construction and will be subject to escalation on account of market price and prevailing labour wages, AOA charges, essential alteration, addition etc. All revision of cost will be charged to beneficiaries and they will be liable to pay the same. Therefore, when the complainant had taken physical possession of the flat in peaceful condition and in this regard they also submitted their acceptance and undertaking along with other documents without any demur or protest, the claim of the complainant regarding fixation of price etc is nothing but mere illusory.

          So far as service tax is concerned, it may be recorded that it is statutory duty on the part of service provider to pay the service taxes as and when it becomes due and the same shall be recovered in the final instalment from the allottees.  The levy of service tax has been done as per Finance Act, 2010.  According to Section 66 (e)(b) of the Act where the entire consideration for property is paid after completion of the construction i.e. after issuance of Occupancy Certificate by the competent authority, no service tax is payable.  In the instant case, money was received prior to obtaining Occupancy Certificate from the local Municipality and as such there is no exemption for payment of service tax. The responsibility of levying collecting and assessing the service tax lies with the Central Board of Excise and Custom (CBEC) and as per the extant statute and rules framed thereunder every person providing any of the specified taxable service is required to pay service tax. The service tax being an indirect tax, its burden is to be borne by the person who receives the services, but it is to be collected and paid to the Government exchequer by the service provider. Therefore, question of misappropriation of the amount under the Head of Service Tax is not at all acceptable.

          Ld. Advocate for the  complainant has argued much in respect of stilt parking space and submitted that the stilt parking space being the common areas of the allottees/beneficiaries, the OP No. 1 has no authority to recover Rs.2,75,000/- from the complainant towards the cost of parking under stilt area and the same should be refunded to the complainant. To fortify the submission, Ld. Advocate for the complainant has placed reliance to a decision of the Hon’ble Supreme Court in Civil Appeal No. 2544 of 2010 (Nahalchand Laloochand Pvt. Ltd. vs. Panchali Cooperative Housing Society Limited).

          The referred decision does not appear to be applicable in the fact and circumstances of the present case. In the case before hand, it is evident that on 30.04.2014 a meeting was held by OP No. 1 with beneficiaries/ allottees and Project Monitoring Committee members and in the said meeting a resolution was adopted with regard to allotment of stilt parking areas (point No. 9). In the said resolution it has been decided-

          “In the scheme brochure it was clearly mentioned that few scooter/car parking under stilts are provided on extra cost and as per the notification CGEWHO will be going ahead with the allotment of stilt parking. It was also confirmed that the respective parking (if allotted) along with the DUs  will be registered in favour of beneficiary. It is also intimated that the cost announced for the parking is an internal adjustment on project account and the amount recovered from car parking shall be credited to total project cost on which the due cost is computed. Accordingly, the proportional benefit on receipt of parking is ploughed back in the project account as a whole benefiting all beneficiaries to keep in equality on both beneficiaries who oft for stilt car parking and otherwise.”

          The decision in the case of Nahalchand Laloochand Pvt. Ltd (supra) was altogether on a different context and in the said case Nahalchand Laloochand Pvt. Ltd. as a promoter developed few properties in Mumbai and entered into agreement for sale of flats with flat purchasers. The flat purchasers are members of Panchali Co-operative Housing Society Limited. The promoter filed a suit before the City Civil Court, Bombay for permanent injunction restraining the society from encroaching upon or interfering with its possession in respect of 25 parking spaces in the stilt portion of the building. In that perspective, the Hon’ble Supreme Court has observed that the promoter has not acquired any right to sell stilt parking spaces. In our case, the allottees and the project Monitoring Committee members in a meeting held with OP No. 1 on 30.04.2014 has agreed to decide and passed a resolution authorising the OP No. 1 to go ahead with the allotment of stilt parking in respect of 449 flats out of 690 flat purchasers. Moreover the amount to be collected for stilt car parking shall be credited to total project cost on which the dwelling unit cost is computed. Therefore, the referred decision is totally mismatch with the facts and circumstances with the present case.

          The materials on record indicates that the date of commencement of the construction is to be reckoned from the date of calling of the second instalment and as the second instalment was called on 01.09.2011, the OP No. 1 was under obligation to hand over the flats/unit within 30 months thereof i.e. within 01.03.2014. The fact remains that after completion of construction and statutory formalities, the OP No. 1  had applied for Occupancy Certificate from the North Dum Dum Municipality on 30.05.2014 and evidently on 09.10.2014 the North Dum Dum Municipality issued Occupancy Certificate in accordance with Rule 34 (2) of the West Bengal Municipal Building Rules. Thereafter, communication for completion was informed to the complainant on 24.11.2014 along with final call up notice. Therefore, it is quite clear that there was no negligence or deficiency on the part of Opposite Party in handing over the dwelling units/flats in favour of the allottees within the schedule period. Therefore, by any stretch of imagination it cannot be said that there was any deficiency on the part of CGEWHO (OP No. 1) in providing services to the allottees/beneficiaries in accordance with the promise made by them in the ‘Sale Brochure of Kolkata Phase-II Housing Scheme- 2010’ within the meaning of Section 2 (1)(g) read with section 2(1)(o) of the Act.

          At the time of advancing argument Ld. Advocate for OP No.1 has fairly submitted that his client is all along ready to execute the sale deed in favour of the allottees/beneficiaries including the complainant and it is the allottees who are showing apathy to get the deed executed in favour of them. However, the Ld. Advocate for the OP No. 1 has failed to produce a single scrap of paper that they have ever requested the allottees/beneficiaries to get the deed executed in favour of them. Therefore, since the situation compelled the complainant to lodge the complaint, the OP No. 1 must be saddled with some litigation cost which I quantify at Rs. 20,000/-.

          In view of the above discussion, the complaint is allowed on contest against Opposite Party No. 1 in part and dismissed against Opposite Party No. 2 with the following directions:

          (i) The Opposite Party No. 1 is directed to execute and register the Deed of Conveyance in respect of the Unit/flat as per allotment letter dated 27.08.2012 and stilt car parking area (if any) within 60 days from date subject to payment of stamp duty and cost of registration etc. by the complainant;

          (ii) The Opposite Party No. 1 is directed to pay Rs. 20,000/- to the complainant as costs of litigation to be paid within 60 days from date.