BEFORE:

HON’BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER

HON’BLE DR. SADHNA SHANKER, MEMBER

For the Appellant                Mr Siddharth Sengar, Advocate      

For the Respondent             Mr Navlendu Kumar, Advocate

ORDER

PER SUBHASH CHANDRA

1.     This first appeal under section 19 (i) of the Consumer Protection Act, 1986 (in short, ’the Act’) is directed against the order dated 30.05.2022 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (in short, ‘the State Commission’) in complaint case no. 136 of 2018 allowing the complaint.

2.     We have heard the learned counsel for the parties and have perused the material on record.

3.     The relevant facts of the case in brief are that the appellant which is an Urban Development Authority had allotted a flat “White Bell” no. 104 in its project Madhuban Bapudham flats scheme of Ghaziabad to the respondent in the year 2012 at a tentative/ estimated price of Rs.36.00 lakhs on 19.09.2012. A two BHK Type B flat was allotted on 31.01.2012 to the respondent. On 09.03.2018, the appellant conveyed to the respondent that the flat would be handed over shortly and that the final evaluation of costs was being finalised. The respondent moved the State Commission through a complaint on the ground that the flat had been allotted on the promised price of Rs.36 lakh whereas the GDA had made him pay a sum of Rs.41,61,600/-. It was contended that the extra amount of Rs.5,61,000/- had been charged in the name of interest which was unjustified since all the payments had been made by him as per the schedule. It was therefore, contended that charging of interest was without justification as he had not been declared as a defaulter in payment. It was also contended that this amount was contrary to the GDA’s own registration booklet for the scheme as per which the cost of the flat was Rs.36 lakh although various discounts were available including upfront payment discount of 5%. The respondent also submitted that despite his paying the last instalment towards the flat in January 2016, possession had not been delivered. Possession was prayed for or, in the alternative, refund Rs.36 lakh sought along with Rs.5,61,000/- with interest @ 15% per annum (totalling to Rs.9,70,909/-) and Rs.9,65,900/- towards cost of delay at 15% per annum. In addition, litigation cost of Rs.2.00 lakh and compensation for mental agony of Rs.1.00 lakh was prayed for.

The complaint was decided on contest whereby the State Commission directed the appellant to hand over possession of the flat within 60 days without additional charges except monthly maintenance charges after handing over possession along with Completion and Occupation Certificates and NOCs from Fire, Pollution Control, Civil Aviation and Traffic departments with interest @ 10% on the deposited amount from the respective dates of deposit till the date of actual possession within 60 days failing which, with interest @ 15% per annum. In the alternative, the appellant was directed to refund Rs.41,61,600/- within 30 days or with interest @ 15% per annum along with Rs.15,000/- per month from 01.01.2016 till compliance within 30 days failing which, with interest @ 15% per annum. It was also directed to pay Rs.1,50,000/- within 60 days or, in lieu thereof, pay it with interest @ 15% and also to pay Rs.20 lakh towards rent of the flat, mental harassment and agony.

4.     It is the appellant’s case that as per the scheme of allotment of flats, Clause 14 provided for allotment on lease hold basis for 90 years under which lease rent of 10% of land cost and the difference of estimate and final cost was payable at the time of possession/ execution of the lease deed and as per Clause 15, possession of the flat was to be given after completion of development work and payment of premium/ other charges, lease rent and registration of lease by allottee at the cost of the allottee. It was contended that the original cost of Rs.36 lakh was only tentative and that the scheme guidelines made it clear that the final cost would be determined when construction was completed. It was contended that the State Commission had erred in not appreciating these aspects. The appellant had conveyed to the respondent that the final price of the flat was Rs.39,60,000/- along with lease rent and parking charges and had called upon the respondent to pay the balance amount of Rs.3,60,000/-, lease rent of Rs.55,202/- and parking charges of Rs.2,50,000/- by 31.03.2019 during the pendency of the complaint. It had also been conveyed that if the possession was not taken over within the prescribed period, Rs.1200/- per month towards security would be required to be paid. Despite reminders dated 26.02.2019, 29.06.2019 and 13.09.2021 the respondent failed to comply. It was further contended that the State Commission had gone beyond the relief prayed for and thereby exceeded its jurisdiction. It was argued that the respondent had no cause of action, since the appellant had neither declined possession nor decided to refund the deposited amount and only a letter dated 09.03.2018 had been issued indicating that the final costing of the project was under process. The State Commission has erred in not considering that the appellant had consented in the application form dated 19.09.2012 that the flat was acceptable to him as per the rules of the appellant. Reliance was placed on the judgment of the Hon’ble Supreme Court in the case of Bareilly Development Authority and Anr., vs Ajai Pal Singh and Ors., 1989 SCC (2) 116 wherein it was held that where the contract entered between the State and the person aggrieved is non-statutory and purely contractual, the rights are governed as per the rights of the contract. Reliance was also placed on this Commission’s order in Ajay Kumar vs Agra Development Authority and Anr.. Revision Petition no.1072 of 2013 wherein it was held that an initial tentative cost and revised final cost in a project of Government Development Authority was normal and any enhancement does not indicate deficiency or negligence or unfairness. It was also contended, on the basis of this Commission’s order in National Consumer Awareness Group (Regd.), Chandigarh vs The Housing Commissioner, Punjab Housing Development Board, Chandigarh, OP No. 238 of 1993 decided on 29.05.19967 that consumer fora cannot interfere with the fixation of prices in a consumer dispute to argue that the scheme’s brochure indicated only the estimated cost and therefore, the determination of the final costs could not be considered arbitrary and discriminatory.

5.     Per contra, the learned counsel for the respondent argued that the project cost of the flat was Rs.36 lakh including registration and reservation amount of Rs.7,20,000/- had been paid by the respondent. It was contended that as per the payment schedule the amount was to be paid in 12 instalments from 31.03.2013 to 31.12.2015, interest @ 12% per annum was also to be paid by the respondent which amounted to Rs.5,61,600/- for the period of construction. The appellant had not responded to three letters addressed to them seeking the rationale for this interest. According to the respondent interest of Rs.5,61,600/- was not justified as he had not defaulted in the payment of cost of construction. It was also submitted that as per the final assessment of the cost in 2019, GDA had clearly indicated cost at Rs.39,60,000/-. However, the respondent had already paid Rs.41,61,600/-.

6.     It was also contended that the State Commission had incorrectly held the appellant liable to compensate the respondent for delayed possession on the basis of the judgment of the Hon’ble Supreme Court in Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors., (2018) 5 SCC 442, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, (2020) 18 SCC 613 and Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan, in CA No. 12238 of 2018 decided 02.04.2019, (2019) 5 SCC 725.

7.     Learned counsel for the respondent on the other hand contended that the failure to deliver possession of the flat on 01.01.2016, i.e., after three years period for construction constituted deficiency in service and the demand of additional money was an unfair trade practice. It was argued that the State Commission had rightly held that the demand by the appellant dated 07.01.2019 was not justified as it was after 41 months from the date of proposed delivery of possession. It was contested that the price of the flat in the brochure was tentative. As per the brochure the inclusion of parking charges of Rs.2,50,000/- vide letters dated 07.01.2019 was stated to have been unjustly charged since the brochure had provided for parking as a salient feature and no price for the same had been indicated. It was contended that there was no ambiguity in the order of the State Commission and that the relief granted was valid and just in view of the parties being bound by the terms and conditions of their agreement.

8.     From the foregoing, it is evident that the appellant had indicated only a tentative cost for White Bell no.104 Type B allotted to the respondent under its scheme Madhubhan Bapudham Flats Scheme. As per Clauses 14 and 15 of the brochure, the final pricing was to be determined when the project was getting ready for being handed over. It is also manifest that the respondent had conveyed concurrence to accepting the final price and conditions of the allotment at the time of the booking of the flat. As regards car parking, the brochure, while providing for the same, had not indicated whether it would be covered or open. The allotment of covered parking to the respondent however, cannot be seen to be arbitrary or discriminatory. It is being provided to other allottees as well and the cost of the same is being charged equally from other allottees too. The contention of the respondent, therefore, cannot be sustained.

9.     In view of the fact that the final costing was to be decided at the stage of handing over of the flat including parking which was provided as covered parking, it was not discriminatory against the respondent as it applied to all allottees. The respondent had also given consent to the pricing to be fixed by the appellant authority. It is now not open to the respondent to contend that the pricing had introduced an element of interest which was discriminatory or arbitrary. As held by this Commission in Sudha Nagla vs Rajasthan Housing Board through the Resident Engineer Rajasthan Housing Board (RP no. 1209 of 2016 decided on 10.05.2016) relying upon the judgment of the Hon’ble Supreme Court in Delhi Development Authority vs Ashok Kumar Behal, (2002) 7 SCC 135, it is not for consumer fora to enter into the domain of costing of projects and it is not open to the respondent to contest the same and to claim it to be arbitrary, discriminatory or perverse. For this reason we are not inclined to uphold the respondent’s contentions in this regard.

10.   In the light of the discussion above, we do not find merit in the contention of the respondent with regard to pricing, or any evidence of discrimination against the appellant. The State Commission has erred in arriving at its findings to hold that the appellant was liable for deficiency in service and unfair trade practice and in awarding various reliefs as per the impugned order. An Urban Development Authority which works on a “no profit” basis and provides subsided housing to allottees who choose to apply to it need not be evaluated on the same yardstick of commercial entities such as a builder who operates on different parameters. As held in Agra Development Authority (supra), it is normal if there is some deviation in the estimates and final costs in such projects. In the instant case also, costing has been finalised at the end of the execution period as already mentioned in the brochure and has included the element of a covered car park which cannot be held to be arbitrary or discriminatory. The contention of the respondent that interest has been charged during the period of construction and that the cost of Rs.36 lakh was the final cost which amounted to additional cost cannot, therefore, be considered to be valid.

11.   In view of the foregoing reasons, the appeal is found to have merit and is accordingly allowed. Order of the State Commission is set aside.  There shall be no order as to costs.

12.   Pending IAs, if any, stand disposed of by this order.