The Himachal Pradesh Housing & Urban Development Authority (HIMUDA) has filed this revision petition against concurrent orders of the Consumer Disputes Redresssal Forum, Bilaspur District and the Himachal Pradesh State Consumer Disputes Redressal Commission. The complaint of Sri D.K. Sharma and another, seeking refund of excess price charged for the flat allotted to him has been allowed by both. As per the Complainant, the flat in Strawberry Hills, Phase-III Housing Colony constructed by the revision petitioner/HIMUDA, was allotted to him on 4.7.2003 at the price of Rs.11,48,000/-. Subsequently, in 2004 & 2005 flats of the same category in the same project were sold by HIMUDA to certain others, at a much lower rate of Rs.9,30,000/- . Having failed to get satisfactory response from HIMUDA, the Complainant filed a consumer complaint seeking refunds of difference between the two i.e. Rs. 2, 28,660, with 18% interest from the date of deposit together with compensation and costs. While allowing the complaint, the District Forum has observed: -
“The learned counsel for the opposite party contended that the complaint is barred by limitation as the flat was allotted to the complainants vide letter dated 11.07.2003 and after making full payment, the possession was taken over on 25.07.2003. The learned counsel further contended that the complainants are estopped to file the complaint due to their act, conduct and acquiescence as they never contested against the cost of the flat and made full payment without any protest and further that the flat sold to the complainants was having better location, whereas the left out flats were having poor location and defects as a result of which the left out flats were not opted by prospective allottees. The learned counsel also contended that the Board of Director took decision in its meeting held on 13.09.2001 to auction the left out flats by organizing ‘Sale Mela’ and reserve price fixed at original cost worked out at the time of initial costing and further the Board of Director in its 135th meeting dated 09.01.2004 approved to sell unsold units on ‘First Come First Service Basis’ as well as by organizing ‘Sale Melas’ whenever necessary. The learned counsel for his contention has relied on order dated 31.07.2007 passed by Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No.1835 of 2004- titled as Himachal Pradesh Housing and development Authority versus Satish Kaul and has also contended that the complainants cannot change their stand when they have agreed to abide by the terms and conditions of allotment. We have considered the contentions raised by the learned counsel for the opposite party and the authority supra of Hon’ble National Consumer Disputes Redressal Commission and are of the considered opinion that the said authority is based on different facts. In the present case, as per admission of opposite party in para-5 of the reply and decision/approval of Board of Director, the flat which was allotted to the complainants cannot be considered comparatively better as it was originally allotted to different allottees and the same was surrendered by them. The Board of Director in its 129th meeting held on 13.09.2001 decided to put the left out flats to auction by organizing ‘Sale Melas’ and fixed reserve price as original cost worked out at the time of initial costing. Pursuant to the decision of the Board, the opposite party sold four left out category-II flats on frozen cost of Rs.9,30,000 to S/Shri Shashi Rawat, Dr. Brajesh Singh, Tek Chand Goswami and Madhu Goswami and Ajit Singh Bhatia. The decision of Board of Director dated 13.09.2001 fully covered the case of the complainants. The left out flats at frozen cost were sold on 01.07.2004, 12.07.2004, 28.03.2005 and 03.05.2005 as is evident from document Annexure- RX and the present complaint was filed on 02.11.2005 i.e. within a period of two years from 01.07.2004 and 03.05.2005 the dates which gave cause of action to the complainants to agitate the matter.”
2. In the appeal filed by HIMUDA, the State Commission agreed with the conclusion reached by the District Forum and observed that:-
“In para-4 of the reply, appellant very categorically stated that the respondents applied for the left out flats. It has come on record, rather stated by the appellant itself in its reply, that at its 129th meeting held on 13th September, 2001, the Board of Directors of the appellant took the decision to freeze the original cost at the time of initial costing of the left out flats and to sell them by organizing Melas on a first-come –first-serve basis. Copy of the resolution was submitted by the appellant itself as an enclosure of Annexure:R-3. Annexure: R-3, which is a copy of decision of the Board taken at an undated meeting, according to which the procedure approved at 129th meeting of selling the left out flats at frozen original cost, had been followed till the date of the meeting at which decision, Annexure:R-3, was taken. As noticed hereinabove, Annexure:R-3 is undated, but a reading of this document shows that the meeting was held after 27.10.2003, in which Hon’ble Chief Minister expressed concern regarding unsold inventory. That means the decision, which was taken at 129th meeting to sell the left out flats at frozen original cost, on first-come-first basis, had been followed upto the date of the meeting at which decision, Annexure:R-3, was taken and that date was subsequent to 27.10.2003.”
3. The revision petition now filed before this Commission on behalf of the HIMUDA primarily raises the same issue. We have heard Mr. Y. R. Prabhakara Rao, Advocate on behalf of the RP/ HIMUDA and have carefully perused the documents filed by him. The issue of limitation has again been raised by the revision petitioner. It is contended that the period should be computed from the date of allotment to the complainant. This argument has very rightly been rejected by the fora below. The cause of action arose only when similar flats were sold by HIMUDA to others at lower rates and not before. We therefore, have no hesitation in endorsing the view taken by the fora below on this point.
4. Before the District Forum, the Complainant had also raised issues regarding quality of construction and lack of amenities. No relief was granted in respect of those allegations by the District Forum. However, as no dispute was raised in relation to these issues of quality and amenities, the State Commission has rightly limited the consideration to the question of the differential price.
5. On the issue of different prices charged for similar flats, learned counsel for the revision petitioner admitted that in both the cases, the flats were part of the same project. However, he argued that they were sold under two separate schemes. The Complainant was sold under the original scheme, which was advertised in 1992 and under which allotments were made initially in April, 1997. Subsequent, sale of flats at reduced price was as per a later decision of the Board to conduct Loan Melas for sale of left over flats. This argument is factually incorrect. The orders of the fora below clearly show that the Complainant was allotted a flat, which had earlier been allotted to three different purchasers on three different dates i.e. 10.4.1997, 6.10.1998 and 24.9.2001. All three had declined to accept it. Even in the Written response filed by the RP/OP before the District Forum, It is admitted that allotments under the self financing scheme at Strawberry Hills Phase-III was completed in January, 2001. It is also admitted that some flats were left over due to cancellation/surrender of allotments when the Complainant applied for allotment on 9.7.2003 in Strawberry Hills Phase-III.
6. Mr. Anand Prakash, Advocate, counsel for the respondent/Complainant drew our attention to the document listed at Annexure R-8 before the fora below. This is copy of the agenda item for a meeting of the HP Housing Board. It shows that in pursuance of the Board decision of 13.9.2001, Sale Melas were organised during the first week of January, 2002. It also shows that by 24.1.2002, ninety six units were sold out in Sale Melas. He argued that this should be read together with the written response of the RP/OP before the District Forum in which it is accepted that the Board of Directors had on 9.1.2001 approved the proposal to sell the left over flats in Sale Melas, with ‘freezing of cost of all unsold units at original cost’. This list of unsold units included flats in Strawberry Hills, Phase-III, as well. The Counsel argued that the complainant was allotted one therein. He had not applied under any freshly advertised scheme. We find that this argument is supported by the records before us.
7. We therefore, conclude that the revision petitioner/ HIMUDA has utterly failed to make out any case against the impugned order. The revision petition is held to be without any merit and is dismissed as such. |
