1.      Heard Ms. Priyanka Sinha, Advocate, for the complainants and Mr. Abhishek Chaudhary, Advocate, for the opposite party.

2.      48 flat buyers have filed above complaint, as a representative case, for directing the opposite party to (i) handover possession of the flats to the complainants, complete in all respect as per specifications, forthwith, (ii) not to demand any amount other than as indicated in Brochure, (iii) to remove deficiency in construction in respect of use of marble and aluminium sink, (iv) to pay Rs.8000/-, per month as rent from due date of possession till delivery of actual possession, (v) to pay exemplary damage for mental agony and harassment, (vi) to pay compensation for delay in handing over possession, (vii) to pay the costs of litigation; and (viii) any other relief which may be deemed fit and proper in the facts and circumstances of the case. IA/1/2012 and IA/15414/2018 were allowed and permission to sue as a class action case under Section 12 (1) (c) of the Consumer Protection Act, 1986 was granted, vide order dated 09.11.2020. RA/189/2020, for review of order dated 09.11.2020 was rejected on 12.01.2021.

3.      The complainants stated that Kanpur Development Authority (the opposite party) launched a project of group housing, namely “Ashiana Housing Scheme” at Jajmau, Kanpur City, in the year 2007 and made wide publicity of it. Under this project, four storied building, of 100 flats on each story (total 400 flats) had to be constructed for different categories of the persons as mentioned in the schedule. Registration for allotment was started from 01.11.2007 and last date for registration was 26.11.2007. Registration money was Rs.80000/-. Tentative cost of ground floor flats was Rs.9.30 lacs and other flats was Rs.7.75 lacs. Attracting with lucrative representation and believing on it, all the complainants applied for allotment of the flat and deposited registration money within time. Allotment was done by draw of lottery on 15.12.2007, in which, all the complainants were allotted flats under their category. Allotment Letters were issued to them on 05.02.2008 onward. According to clause 6.10 of the Brochure, 25% of tentative cost including registration money had to be deposited within 3 months from the date of issue of allotment letter and under Clause 6.20, remaining 75% of the cost had to be deposited in 3 equal three monthly instalments. Along with allotment letter, payment schedule was slightly changed and first instalment had to be deposited till 25.02.2008, second instalment till 25.04.2008, third instalment till 25.07.2008 and fourth instalment till 25.10.2008. Under clause-16.00, period of possession was given as 15 months and latest within 18 months from the allotment. The complainants timely deposited their instalments. Mrs. Shama Parveen (complainant-2) deposited an extra amount of Rs.253800/- on 06.05.2009 under some confusion. In spite of payment of entire sale price within time, the opposite party could not deliver possession on promised date. When the possession was not offered on due date, Mrs. Shama Parveen gave an e-mail dated 23.03.2012, inquiring for possession from the opposite party. The opposite party, vide letter dated 06.06.2012, informed her that she was not depositing her instalments and required her to deposit dues forthwith and if the instalments was deposited then to produce its receipts within 7 days. In local newspaper dated 12.07.2012, a news was published that the project “Ashiana Housing Scheme” was incomplete and hard earned money of flat buyers was blocked. Immediately thereafter, the opposite party issued demand letters dated 20.07.2012, to the complainants demanding extra-amount. Mrs. Shama Parveen, through an application dated 27.08.2012, sought for information inter-alia that on the basis of which Government Order/ Rules, costs of the flats were enhanced, under Right to Information Act, 2005. Executive Engineer, vide letter dated 01.10.2012, informed that “Ashiana Housing Scheme” was for the persons of “High Income Group”; in the Brochure, tentative costs were mentioned and after completing construction, final costing was done according to the guide-lines of the government; the construction was delayed due to stay orders of the High Court and due to damage of culvert near KESA office due to laying down of sewer pipeline under JNURM scheme. As information in respect of final costing was vague, Mrs. Shama Parveen filed an appeal on 03.10.2012, for supply of full information but it was not supplied. Mrs. Shama Parveen, through her application dated 01.11.2012, sought for inspection of the records, inter-alia of Final Costing Records, under Right to Information Act, 2005. Some of the complainants moved representation dated 04.09.2012 and reminder dated 03.10.2012 before District Magistrate, for taking back of the increased price and handover possession to all the allottees. The complainants moved a representation dated 27.09.2012, to Vice-Chairman of the opposite party for handing over possession of the flats to the allottees and withdrawing demand of enhanced price. The complainants moved a representation dated 03.10.2012, to Hon’ble Chief Minister, for handing over possession of the flats to the allottees and withdrawing demand of enhanced price. The complainants stated that due to stay order of High Court, 253 flats were constructed instead of 400 flats and explanation for delay was incorrect. Alleging that the opposite party has committed deficiency in service, the complaint was filed on 22.11.2012, inasmuch as the construction of the project was unreasonably delayed due to which, cost was increased; the allottes were not liable to pay any enhanced cost as they had already made full payment in the year 2008 and the construction was not done as per specifications.        

4.      The opposite party filed its written reply (short counter affidavit) on 05.07.2013 and contested the complaint. The material facts relating to the project, allotment of the flats to the complainants and deposits made by them, have not been disputed. It has been stated that the construction was delayed due to stay orders of the High Court and due to damage of culvert near KESA office due to laying down of sewer pipeline under JNURM scheme. One of the allottee of this project, namely Sunil Bajpai, allottee of Flat No.11 in Block 13 of this project, had challenged the final demand notice dated 14.01.2013 in Writ Petition (C) No.19413 of 2013, before Allahabad High Court, which was disposed off, vide order dated 10.04.2013, directing to the petitioner to deposit the demanded amount and to the opposite party to handover possession within one month of the deposit. The complainants have concealed the fact that sizes of the corner flats were increased from 68.90 sq. meter to 77.79 sq. meter and other flats to 77.20 sq. meter, which was one of the factor for enhancement of the price. Total 116 allottees have deposited the enhanced amount. It was clearly mentioned under Clause-18.80 of Registration Booklet that the cost of the flats, as shown, was tentative and after completion of the construction, final costing would be done and the allottees had to pay that amount before taking possession. In the schedule price also it was mentioned as tentative cost. Final costing was done according to the guidelines framed by Government, vide Circular No. D/1246/JS-1/12-13 dated 26.11.2012 and demand of increased cost was made on the basis of final calculation of the cost. It has been denied that the opposite party had supplied incomplete information under Right to Information Act, 2005. Various preliminary objections were also raised.            

5.      The complainants filed Rejoinder Reply on 25.09.2013, in which, the facts stated in the complaint were reiterated. They stated that area of all the flats were mentioned as 78 sq. meter in the Brochure and area of the flats did not increase. The order of Allahabad High Court has no relevance in the present case. Government Order No.4049/9-Aa-1-99, Lucknow dated 20.11.1999 provided guidelines for costing to be followed by all Development Authorities and Avas Evam Vikas Parishad U.P. Under Clause-6, it has been stated that final cost should not increase more than 10% of the cost as notified at the time of inviting applications. No reason has been given for increasing the cost, inasmuch as the reason of increase in area, is false. Sub-standard materials have been used in construction. The plasters were falling and marbles were separating. Window glasses were in broken conditions. The construction has been unreasonably delayed, which was still incomplete as is proved from the report of S.S. Das & Associates (Engineers, Valuers & Surveyors) Kanpur dated 26.08.2013/02.09.2013. Sewage pipelines are not laid nor it was connected with individual flats. The complainants filed Affidavit of Evidence of various complainants and documentary evidence. The opposite party filed Affidavit of Evidence of Ram Kumar Chaudhary and documentary evidence. Both the parties filed their short synopsis.

6.      I have considered the arguments of the parties and examined the record. A perusal of order of Allahabad High Court passed in Writ Petition (C) No.19413 of 2013 Sunil Bajpai Vs. Kanpur Development Authority, dated 14.01.2013, shows that it was passed on the consent of the petitioner. As such it does not lay any binding precedent.

7.      Under clause-16.00 of the Registration Booklet, period of possession was given as 15 months and latest within 18 months from the allotment. As such due date of possession was August, 2009. The opposite party issued demand letters dated 20.07.2012, to the complainants allegedly on completion of the construction. As such there was delay of about three years. The opposite party stated that the construction was delayed due to stay orders of the High Court and due to damage of culvert near KESA office due to laying down of sewer pipeline under JNURM scheme. So far as stay order is concerned, it has not been denied by the complainants but they stated that due to stay order entire project was not stopped only some blocks were stopped due to which 253 flats were constructed in place of 400 flats. The opposite party did not dispute this fact. However obstruction of construction due to damage of culvert is not disputed. In the present case, the complainants want to take possession as they had deposited entire cost of the flats in the 2008, as such, delay is not much material.

8.      Main grievance of the complainants is in respect of increase of the costs of the flat. A perusal of demand notice issued to Mrs. Shama Parveen Khan (complainant-2) dated 20.07.2012, shows that Rs.693700/- was demanded for increase in cost, Rs.85136 was demanded for lease rent and Rs.500/- was demanded towards miscellaneous expenses. The opposite party has given only reason for increase in the cost that sizes of the corner flats were increased from 68.90 sq. meter to 77.79 sq. meter and other flats to 77.20 sq. meter, This reason is incorrect inasmuch as in Registration Booklet, sizes of each flat was notified as 78 sq. meter. Although the cost in Registration Booklet was tentative and the opposite party is competent to revise the cost after final construction but the cost was revised on incorrect ground and not due to increase of actual cost of construction.

9.      The opposite party has relied upon judgment of this Commission dated 15.11.2021 passed in CC/493/2016 K.V. Narendra Babu and others Vs. State of Telangana and others, in which, relying upon judgement of Delhi High Court in Sheela Wanti Vs. DDA, 57 (1995) DLT 801 (FB) and Supreme Court in DDA Vs. Ashok Kumar Behal, (2002) 7 SCC 135, it has been held that pricing of flats by Housing Authority cannot be questioned in the Court. The complainants relied upon judgment of Supreme Court in Kanpur Development Authority Vs. Sheela Devi, (2003) 12 SCC 497, DDA Vs. Joint Action Committee, (2008) 2 SCC 672 and Karnataka Industrial Areas Development Board Vs. Prakash Dal Mill, (2011) 6 SCC 714, in which it has been held that cost should not be increased arbitrarily. The opposite party has relied upon Circular No. D/1246/JS-1/12-13 dated 26.11.2012, which is subsequent to issue of demand notice.

10.    The complainants also filed a report of S.S. Das & Associates (Engineers, Valour’s & Surveyors) Kanpur dated 26.08.2013/ 02.09.2013, showing various deficiency in construction. It is also alleged that sewage pipelines was not laid nor it was connected with individual flats. This report has not been controverted. As such the opposite party is liable to remove deficiency in construction.

ORDER

In view of the aforesaid discussions, the complaint is partly allowed. The demand notice dated 20.07.2012, demanding Rs.693700/- for increase in cost, is set aside. The opposite party is directed to remove deficiency in construction and compete it as per specification within two month from the date of the judgment and issue fresh demand notice to the complainants and other similarly situated persons within one month thereafter. On deposit of the amount, the opposite party shall execute conveyance deed in favour of the flat buyers and handover possession to them without any further delay. The flat buyers who have taken possession and settled their dispute will not be entitled to reopen their dispute.