The present Revision Petition had been filed against the  impugned judgment dated 20^th January, 2017 passed by the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (for short, ‘State Commission) in Appeal No.991 of 2011.

2.      The facts of the case as per the Petitioner/Complainant are that the Petitioner had applied for the Rajendra Nagar Instant Allotment Scheme advertised by the Respondent. The Respondent /Opposite Party allotted house No.6–H/ 233, the cost of which was Rs.4,50,000/- vide allotment letter/payment schedule dated 15.06.1996. Apart from 70% amount to be deposited in four quarterly instalments. Remaining 30% along with interest would also be paid in quarterly instalments. It was a Self-Financing Scheme. As mentioned in clause (c) and (d) of the said allotment letter that the possession could be taken after 70% payment of the final cost of the house and (d) in case if he wanted to pay the entire money in one instalment within a month no interest would be charged and one percent rebate in cost would be given. The total amount of Rs.4,50,000/- was paid by the petitioner within one month on 12.07.1996 and possession of the said flat was taken on 17.06.1996. He then received a letter from the Respondent on 20.02.2004, wherein it was informed that there were dues of Rs.2,89,517/- on the said house. The Petitioner sought an explanation from the Respondent  as to on what basis the cost had been enhanced as he had already paid the entire amount and had also taken the possession on 17.06.1996 but the Respondent did not give any satisfactory reply in their letters issued dated 29.07.2004 and 12.12.2008. Hence, the petitioner was forced to file a complaint before the District Forum for this inappropriate behaviour of the respondent. The respondent should have calculated the final cost prior to giving the possession and not after eight years. Even if cost escalation was kept in mind for the said advertised scheme, even then it cannot be more than 10%. The petitioner had taken the possession after completing all the formalities and the petitioner had made the complete payment to the respondent as per the payment schedule given in the allotment letter. Fixing the cost after giving possession and stating that the sale deed registry would be done after payment of the same, came under the category of unfair trade practice. He, therefore, prayed that the Respondent/Opposite Party may be directed not to get any amount apart from the amount mentioned in the allotment letter/payment schedule dated 15.05.1996 and that the letter dated 20.02.2004 issued by the Respondent  for demanding the differential amount of Rs.2,89,517/- because of being in the nature of deficiency in service and unfair trade practice is, liable to be quashed. He also prayed that the Respondent may also be directed to get executed the sale deed immediately after taking the duty as fixed by the State Govt. without taking the differential amount and also to pay Rs.20,000/- to the Complainant for  mental torture.

3.      The Respondent/Opposite Party filed their written reply, wherein they have stated that the petitioner by depositing Rs.45,000/- applied for a house no. 6 H/ 233 Rajendra Nagar under the Instant Allotment Scheme on 15.06.2007 and vide letter dated 15.06.2007 the allotment letter and payment schedule of the said house was again issued by the authority according to which Rs.4,45,000/- was the estimated cost of the house.  Possession of the house was taken by the petitioner on 17.06.1996 after completing the formalities and after giving an affidavit dated 12.07.1996. According to paragraph 3 of the affidavit, in the event of the authority giving the possession, the cost fixed by the authority would be paid to the authority as per the terms fixed by the authority. In the event of any objection in making the payment, the possession of the said house would be returned to the Authority.  The fact that the Petitioner took the possession of the house after making the full payment of Rs.4,45,000/- was not admitted, because as per the allotment letter and payment schedule dated 15.06.1996, only the estimated price of the said house was declared as Rs.4,50,000/-. The Petitioner was  informed by the authority through registered letter No.825/CDM/2002 dated 20.09.2002 that the final price of the house was Rs.6,71,297/- and he was asked to deposit the differential amount of Rs.2,21,297/- lease rent of Rs.3,352/- within one month of the receipt of the letter and in case of delayed deposit, the amount would have to be deposited along with interest as applicable as per the rules. Thereafter vide letter No.1785 dated 11.11.2003 sent through courier, it was informed to get the Registry done by presenting the deposit receipt of the amount due towards the house by 30.11.2003. It was again informed through reminder letter no. 640 dated 13.02.2004 to get the registry done by 29.02.2004 after depositing the due amount. After informing about the due amount and sending two reminders, vide letter no. 697 dated 20.02.2004, it was informed that the due amount towards the house was Rs.2,89,517/- to be paid with interest by 28.02.2004 and registry be got executed. The entire amount had not been deposited by the Petitioner. He had taken possession after depositing  only the estimated cost and after giving affidavit dated 12.07.1996.

4.      The District Consumer Disputes Redressal Commission, Ghaziabad( for short, ‘District Forum’), vide its order dated 18^th April 2011 while allowing the Complaint, held as under:

               “The letter dated 20.02.2004 issued by the OP/ GDA is quashed. The OP is ordered that in the light of the above said letter, no enhanced amount be taken from the complainant and after deposit of the rent fixed by the State Government, sale deed be executed in favour of the complainant within three month. OP shall pay to the complainant Rs.5,000/- as compensation for mental torture and Rs.2,000/- as litigation cost”.

5.      Aggrieved by the order of the District Forum, the Respondent/Opposite parties filed an appeal before the State Commission. The State Commission while allowing the Appeal, observed under;

               “ This fact is undisputed that complainant had been allotted by the appellant Ghaziabad Development Authority, house no. 6– H/233. It is evident from the evidences that the allotment letter that was issued the amount of Rs.4,50,000/- was shown as estimated price. This estimated price was deposited by the complainant and he also took possession of the house on 17.06.1996. This is established that the development authorities, who organize the residential schemes, mostly at the initial stages, estimated price is mentioned by them as the development authorities do lot of public utilities works in those residential schemes and final price is fixed after calculation of the said works. In this context also, final price of Rs.6,71,297/- was intimated vide their dated 20.09.2002 and differential amount was asked to be deposited. This is an established rule that Consumer Forums cannot determine the price of any property. The allotment letter that was given to the allottee, it was clearly mentioned that Rs.4,50,000/- was the estimated price of the house. The affidavit that was presented by the allottee to the Development Authority in that also the allottee had deposited that in the event of possession being given by the authority, the complainant shall deposit the fixed price with the authority as per the terms of the authority. In this way, the allottee is bound by the terms of the allotment and he is bound to pay the final fixed price of the house.

               In view of the above said discussions, we find that the judgment given by the District Consumer Forum is not legally tenable. District Consumer Forum does not have the jurisdiction to determine the final price. Hence, the judgment/ order of the District Forum is liable to be set aside and the appeal of the appellant is liable to be allowed.

               The appeal of the appellant is accepted and the judgment/ order dated 18.04.2011 passed by the District Consumer Forum in complaint No.76 of 2009 is rejected. Parties to bear their own costs.”

6.      Hence, the present Revision Petition.

7.      I have heard the learned counsel for the Petitioner. He contended that no doubt in the allotment letter dated 15.06.1996, the estimated cost of the house Rs,4,50,000/-, he also admitted  that the Petitioner had stated on oath in his affidavit dated 12.07.1996 before Ghaziabad Development Authority as under;

“2.    I state on oath that in the event of the possession being given by the authority, I shall deposit with the authority the price as determined by the authority in accordance with the terms of the authority and in case of any default, shall return the possession of the said house to the authority.

3.       I state on oath that till the execution of the agreement/sale deed my possession in the above said house will be of a licencee and the authority shall have the right to back the possession in case sale deed is not executed or payment is not made and I shall not protest.”

8.      However, he contended that it was wrong on the part of the Respondent to have enhanced the price of the house after  a lapse of 8 years of the allotment letter. In support of his arguments, the learned counsel for the Petitioner has relied upon the judgement passed by the Hon’ble Supreme Court dated 26.02.2004 in Appeal (Civil) No. 3706 of 1998 in the case titled as Bareilly Development Authority vs. Vrinda Gujarati & Ors. In which the Hon’ble Supreme Court, held;

“We have already referred to the allotment letter, undertaking by way of affidavit and Chart of Escalation etc. and as per the above undertaking, the BDA is entitled to collect the enhanced price from the allottees. Once the respondents owe money to the appellant, it is fully in the competence of the Authority to recover the same. The parties to this action are bound by the terms of the contract. This Court in its judgment in the case of Bareilly Development Authority & Anr.vs. Ajai Pal Singh & Ors. , (1989) 2 SCC 116 has clearly held that the authority or its agent after entering into the field of ordinary contract acts purely in its executive capacity. Thereafter, the relations are no longer governed by the constitutional provisions but by the legally valid contract which determines the rights and obligations of the parties inter se. At page 124 of the judgment, this Court has also held that once the respondents have given their written consent accepting the changed and varied terms and conditions, they cannot be permitted to contend that the authority has gone back on its original terms and conditions to their detriment. This Court further held that once the respondents have entered into the realm of concluded contract pure and simple with the authority they cannot step out of the terms of the contract unless some statute steps in and confers some special statutory obligations on the authority in the contractual field.

The above view was endorsed by this Court in its judgment in Indore Development Authority vs. Sadhana Agarwal (Smt.) & Ors., (1995) 3 SCC 1.

This Court in paragraph 9 of this judgment held as under: "But taking all facts and circumstances into consideration, this Court said that it cannot be held that there was misstatement or incorrect statement or any fraudulent concealment, in the brochure published by the Authority. It was also said that the respondents cannot be heard to say that the Authority had arbitrarily and unreasonably changed the terms and conditions of the brochure to the prejudice of the respondents. In that connection, it was pointed out that the most of the respondents had accepted the changed and varied terms. Thereafter they were not justified in seeking any direction from the Court to allot such flats on the original terms and conditions."

This Court further in paragraph 10 of the judgment held as under: "So far the facts of the present case are concerned, it is an admitted position that in the proforma attached to the application for registration, the appellant said that the price mentioned by them was a probable and estimated cost, the definite price shall be intimated at the time of the allotment. Thereafter, the appellant had been informing the respondents and others who had got themselves registered, from time to time regarding the escalation in the cost of the flat. One of the reasons for the rise of the price for the LIG Flat from Rs.60,000 to Rs.1,16,000 appears to be the increase in area of the flat itself from 500 ft. to 714.94 Sq. ft. From 1982 to 1984, possession of the flats could not be delivered because of the dispute pending in the Court which also contributed to the increase in the cost of the flat. Admittedly, the respondents came in possession of the flats in the year 1984,. In the facts and circumstances of the case, we are satisfied that no interference was called for by the High Court."

We are, therefore, of the opinion that only obligation on the BDA was to provide the houses in question on the contractual price and in that regard the judgment of this Court in L.I.C. of India & Anr.vs. Consumer Education & Research Centre & Ors.,(1995) 5 SCC 482 was cited. The above judgment has no relevance with the present case.

It was denied by the BDA that the respondents have paid full amount towards the cost of the flats as alleged. The enhancement in the cost was due to actual increase in the cost of the flat as detailed in the chart annexed as Annexure-N which formed part of the supplementary affidavit filed before this Court. Such enhancement, in our opinion, was in accordance with clauses 2 and 15 of the Brochure of May, 1990 and the said enhancement was also in accordance with clause 2 of the allotment letters dated 10.12.1991 issued to various applicants. The said enhancement was clearly accepted by the respondents by their various affidavits of undertakings filed on 19.4.1994 and other respective dates before the BDA. The respondents after undertaking to pay the enhanced amount and after taking possession of the flats on that ground cannot be allowed to raise frivolous contentions to avoid payment to the appellant.

At the time of hearing, learned counsel made an appeal to the Court to reduce the rate of interest from 18% to 6% on the ground that the allottees under the Scheme in question belonged to Middle Income Group and, therefore, they would not be in a position to pay the interest. In our view, once the liability of the respondents to pay the balance amount remaining unpaid out of the final cost of the flat is not struck down and remains in existence, the appellant cannot be asked to forego the interest for the period, or any part thereof, for which the said amounts remain unpaid. The High Court is not right in creating double jeopardy for the BDA directing it to pay interest to the respondents while at the same time to direct the respondents not to pay interest on the unpaid amounts. However, taking note of the financial status of the respondents and in the peculiar facts and circumstances of the case, we direct the respondents to pay simple interest @ 9% on the enhanced price of the flats. The enhanced price of the flats shall be paid in six monthly equal instalments together with accrued interest payable on diminishing balance on or before the 10th of every succeeding month commencing from April 2004. If the respondents commit any two defaults in the payment of instalments on the enhance price, the interest @ 18% shall be recovered from them by the BDA. The amounts deposited by the respondents as per the interim order, if any, will be given credit to. According to the Brochure, the Housing Scheme is a Self-Financing Scheme wherein the allottees were to pay the cost of the flats in quarterly instalments. The parties are bound by the terms of the contract in regard to the payment of the original cost of the flats as per the agreement. For the foregoing reasons, the present appeal filed by the BDA deserves to be allowed. The judgment and order of the High Court dated 14.5.1996 in CMWP No. 36735/95 is set aside. But however, we make no order as to costs.”

9.      However, this citation does not appear to support the case of the Petitioner. As per the above citation, the allottees have to pay the amounts as indicated in the brochure/allotment letters and after undertaking to pay the enhanced amounts and after taking the possession of the flats.  

10.    In the case in hand, the contention of the Complainant is that he was well aware that the price of the house would be increased. In fact, as per his affidavit, he himself had stated that in the event of the possession being given by the authority, he shall deposit with the authority the price as determined by the authority in accordance with the terms of the authority and in case of any default shall return the possession of the said house to the authority. He also stated on oath that the authority shall have the right to take back the possession in case the payment is not paid and he would not make any protest.

11.    Thus, in view of the above discussions, we find that no jurisdictional or legal error has been shown to us in the impugned order to call for interference in the exercise of powers under Section 21(b) of the Consumer Protection Act, 1986. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity in allowing the Appeal filed by the Respondent /Ghaziabad Development Authority and also setting aside the order of the District Forum.  Hence, the present Revision Petition being devoid of any merits is hereby dismissed.

12.    No order as to cost.