1.      This consumer complaint under section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act’) read with section 12 alleges unfair trade practice and deficiency in service on the part of the opposite party and seeks refund of the amount deposited with compensation and other costs. 

2.      The facts, in brief, according to the complainant, are that the opposite party has charged it an excess of basic allotment rate of Rs 10,500/- per sq meter plus 5% preferential location charges (PLC) against an allotment rate of Rs 3,425/- per sq m plus 5% PLC in violation of the judgments of the Hon’ble Allahabad High Court and Supreme Court. It is contended that it is now further charging ‘building construction delayed charges’ on such rate. It is stated that the complainant is the owner of plot no. 1B, Block C, Cassia Fistula Estate, CHI-04, Gautam Budh Nagar, UP measuring 1022.40 sq m. The plot was initially allotted to one Manoj Jain on 02.06.2008 under the Left-Over Residential Plot Scheme 2004 @ Rs 3,425/- per sq m on payment of Rs 3,42,500/- on 19.11.2004 under the category of fully developed plots. Complainant obtained the site on transfer from Manoj Jain in 2010 who had been coerced to pay Rs 10,500/- per sq m at the time of transfer and also withdraw his WP (C) No. 42915/2008 on 16.04.2012. Complainant paid Rs 40,40,000/- on 20.05.2010 and 55,27,680/- on 01.07.2010 to opposite party through Manoj Jain, i.e. a total of Rs 1,12,71,960/- in addition to various other payments before a possession certificate dated 25.06.2010 was issued to him. Transfer Deed was executed on 23.07.2010 after payment of necessary stamp fees. The complainant states that he developed the site and constructed on the plot with necessary approvals including extension of time since there was a 5-year period for the same and applied for a Completion Certificate (CC). It is stated by the complainant that the opposite party has demanded delayed charges of RS 11,27,197/- up to 05.04.2017 for issuance of CC and extension of time on the basis of penalty @ 4%, 5% and 6% for the respective years on the lease premium of Rs 1,12,71,960/- as per lease deed dated 18.06.2010.

3.      Complainant states that various Writ Petitions (WPs) were filed against the escalation of demand by the opposite party and the Hon’ble High Court of Allahabad in WP no. C 100 of 2008 Anand Kumar Vs. GNIDA, dated 14.08.2012 allowed the WP and set aside the demand of Rs 10,500/- and restored the original demand of Rs 3,425/- per sq m. The SLP before the Hon’ble Supreme Court by the opposite party came to be dismissed vide order dated 20.08.2015 and a revised notice for payment of Rs 3,425/- was issued. The complainant came to know of these developments through another allottee (Ms. Kshama Sanghavi) who received the notice on 04.11.2015.

4.      However, the penalty being levied by the opposite party is as per the revised rates which the opposite party cannot charge in view of the order of the Hon’ble Allahabad High Court and Supreme Court. It is contended that since he stepped into the shoes of the original allottee, Manoj Jain, the demand by the opposite party is wrong; however, his representation dated 08.07.2016 was rejected on 19.07.2016. Information sought under the Right to Information Act was denied and instead, an additional levy of “Pratikar” as additional compensation to farmers, was levied. To an RTI query dated 09.08.2016, the opposite party informed on 06.09.2016 that “Pratikar” applied to all allottees. It is complainant’s contention that this levy is without any statutory basis. A legal notice issued by him dated 26.10.2016 was not replied to by opposite party. The complainant is before this Commission with the prayer to direct the opposite party to:

(i)     refund Rs 1,97,28,757/- along with pendente lite and future interest @ 15% per annum from the date of filing of this complaint till realization;

(ii)     set aside the demand letter dated 24.06.2016 demanding Rs 11,27,197/- for delayed charges for construction and direct the opposite to demand delayed charges @ 5% on Rs 36,76,806/- and to direct opposite party to issue NOC and Completion Certificate on the basis of the said payment;

(iii)    restrain the opposite party from raising any demand regarding “Pratikar” or any other levy due to farmer’s compensation at any rate much less @ Rs 1,465/- per sq m as sought to be levied by opposite party;

(iv)   direct opposite party to refund Rs 11,84,056/- along with pendente lite and future interest @ 15% p.a. from the date of filing of this complaint till realization; and

(v)     any other order deemed fit and proper.

5.      Upon notice, the complaint was resisted by the opposite party by way of written statement denying the averments as misconceived and barred by time. It is stated that the complainant is a transferee of the original allottee, and payments were made by him as indicated in the allotment letter. No excess amount is stated to have been charged. The original allottee had at no time challenged the rate of allotment. It is denied that the rate charged is in violation of the judgment of the Hon’ble Allahabad High Court or Supreme Court. The transfer was effected in July 2010 and the period of construction was a condition of the transfer. The Transfer Deed dated 23.07.2010 recorded the valuation based on the circle rate of Rs 14,000/- per sq m and it was agreed that the complainant would be liable for all dues, charges, interest, penalty, etc. as per the terms and conditions of the Lease Deed. The complainant has raised issues after 8 years of executing the Transfer Deed. Opposite party states that the complainant being a company, the purchase of the plot was for commercial purpose. The allotment was made @ Rs 10,500/- which was accepted by the original allottee and the documents were duly registered. As regards the order of the High Court and Supreme Court, it is argued that the orders were not in rem but in personam and the complainant was not a party to it. Hence, he cannot seek relief under the order after 3 years. The case of Kshama Sanghavi is one of an original allottee whereas in the instant case the original allottee had withdrawn his case before effecting the transfer. It is denied that there was any unilateral escalation in the rate of allotment or that the original allottee Manoj Jain had withdrawn the case due to pressure. The WP having been withdrawn, it cannot be agitated by either the original allottee or his transferee at this point in time. Transactions between the original allottee and the transferee cannot be agitated in this complaint. The transfer of allotment was approved on the joint application of the original allottee and the complainant and there was no mention of any financial transactions in it. The opposite party, in sum, contends that the complainant has no case to contend that the allotment be pegged @ Rs 3,425/- per sq m since the original allottee had withdrawn his WP in 2010 before the transfer deed and the transfer had been effected @ Rs 10,500/- per sq m on which basis all other payment of fees for delay and completion of construction was to be calculated. The “Pratikar” of Rs 1,465/- per sq m was on the basis of an order of the Hon’ble High Court upheld by the Supreme Court and a challenge to it was dismissed by this Commission and cannot be raised at this stage.

6.      Parties led their evidence and filed rejoinder, affidavit, and evidence as well as short synopsis of arguments. I have heard the learned counsel for the parties and carefully considered the material on record.

7.      Learned counsel for the complainant argued that the opposite party was liable for unfair trade practice and deficiency in service since it unilaterally revised the allotment rate contrary to the judgment of the Hon’ble High Court upheld by the Hon’ble Supreme Court. As he had stepped into the shoes of the original allottee, the complainant claimed to be entitled to consequential benefits, rights and liabilities, including refund of excess money collected, levy for delay in construction and “Pratikar”. Reliance is placed on Hon’ble Supreme Court’s judgment in Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh, CA No. 7042 of 2019 dated 22.07.2021 that held that transferees have same rights as the original allottees. It was argued that the benefits of the Allahabad High Court judgment dated 14.08.2012 confirmed by the Supreme Court on 20.08.2015 are also available to the complainant as the transferee since it relates to “successful allottees”, which included the original allottee/transferor, Manoj Jain. He relied upon the judgment of the Supreme Court in State of UP Vs. Arvind Kumar Srivastava, CA No. 9849 of 2014 dated 17.10.2014 that held that in case a relief is given by the court, all other identically situated persons need to be treated alike by extending the benefit as it would otherwise amount to discrimination and be violative of Article 14 of the Constitution of India. Accordingly the issue of applicable rates has to be considered in these terms. As regards “Pratikar”, since the scheme was for ‘Left-over’ allotments and the scheme brochure did not mention the same, the charging of this levy based on the Allahabad High Court order of 2011 is erroneous. Complainant placed reliance on this Commission’s order in Surbhie Sindhwaani Vs. M/s Prateek Infraprojects India Ltd., CC No. 3266 of 2017 which struck down charging of additional compensation to farmers if not mentioned in the scheme brochure.

8.      On behalf of the opposite party, the learned counsel argued that the refund of Rs 1,97,28,757/- comprising principal amount of Rs 88,66,857/- and interest of Rs 1,08,61,900/- from 19.06.2010 to 18.08.2018 @ 15% was inadmissible as it was charged at the premise rate of Rs 3,425/- per sq m whereas it should have been @ Rs 10,500/-. The allotment was accepted and part payment made by the original allottee and lease deed executed by the opposite party on 18.06.2010. The complainant, as the transferee, as per permission dated 19.07.2010, is stated to not be entitled to seek refund or interest thereon. The judgment of the Allahabad High Court is stated to have no application to the case as the complainant was not a Writ Petitioner to whom relief was granted and the original allottee had withdrawn his WP on 16.04.2012. The order of the Hon’ble Supreme Court was to direct the opposite party to give effect to the benefits to the respondents. Hence the order was in personam and not in rem. It is contended that the allotment letter dated 02.06.2008 where the rate of Rs 10,500/- was fixed was not under challenge and could not be challenged as it was completely barred by limitation. The grant of relief on this prayer would result in unjust enrichment according to the opposite party. Also, the claim had no basis as the complainant, having paid Rs 1,21,15,440/-, was seeking refund of Rs 1,97,28,757/- with 15% interest from 01.09.2018 till realization. The plea for waiver of charges for delay in construction is stated to be contrary to terms and conditions of the lease deed requiring construction within three years or the balance time after transfer failing which extension charges were to be paid based on the allotment rate of Rs 10,500/-. The “Pratikar” or additional compensation of Rs 1,464/- per sq m is justified by the opposite party as it is pursuant to the judgment of the Allahabad High Court which the complainant, as the transferee, is required to pay. The claims for refund and non-applicability of additional compensation are stated to be money suits which cannot be claimed after 10 years in 2018. Similarly, neither the Lease Deed of 2010 nor the Transfer Memorandum of 2010 can be challenged after 8 years. The case of Kshama Sanghavi cited pertains to an original allottee whereas the complainant is a transferee and Laureate Buildwell (supra) and Surbhi Sindwaani (supra) are distinguishable cases. Reliance was placed on the Hon’ble Supreme Court’s judgment Sanjay Goel Vs Greater Noida Industrial Development Authority & Anr., CA No. 3748 of 2018 dated 15.05.2018 and this Commission’s order in RA No. 147 of 2018 dated 16.04.2018 in Sanjay Goel Vs Greater Noida Industrial Development Authority & Anr., in CC No. 1709 of 2016.

9.      From the foregoing, the issue is whether the complainant is entitled to the benefits of the judgment of the Allahabad High Court and Supreme Court in the case of Anand Kumar Vs. GNIDA both as a transferee who stepped into the shoes of the original allottee and as a petitioner who withdrew his WP in the matter as also whether this judgment was issued in rem or in personam considering the fact that the Hon’ble Supreme Court adjudicating the SLP in the matter directed the order to be applicable to the ‘respondents’ even though this concerned a policy issue.

10.   I have considered the argument of the counsel for the parties and examined the record. The complainant challenges the enhanced rate in Writ Petition (Civil) no.42915 of 2008 before the Allahabad High Court. During the pendency of the Writ Petition, the complainants had accepted the enhanced rate and got the lease deed executed in its favour on 23.07.2010 and thereafter, the above writ petition was dismissed as withdrawn on 16.04.2012. Thus, the complainant had waived his right to challenge the enhanced rate. Even otherwise, the writ petition was dismissed without any liberty to file a fresh writ petition on the same cause of action. Hence, the present complaint cannot be filed in the year 2018.

11.   As regards the judgment of Allahabad High Court in Anand Kumar vs Greater Noida 2012 SCC Online ALL 4202 dated 14.08.2012 as well as the judgment of the Hon’ble Supreme Court in the case of Greater Noida Industrial Development Authority vs Anand Kumar (2015) 17 SCC 620, these judgments are in personam. Hence, the benefit cannot be given to the persons similarly situated who were not parties to the above writ petition or the appeal. A judgment in personam is binding upon the parties and not open to the general public as held by the Supreme Court in UP Power Corporation Ltd., vs Ram Gopal (2021) 13 SCC 225.

12.   In so far as the demand of the opposite party in respect of the delay challenge is concerned, it is in terms of the lease dated 23.07.2010 and no illegality has been pointed out in this respect. The complaint has no merit and is liable to be dismissed.

12.    For the aforesaid reasons, in the facts and circumstances of this case, the complaint is dismissed with no order as to costs.