2.     The Complaint was resisted by the Opposite Parties by filing Written Statement contending that the joint Complaint Section 21 (a) (i) of the Consumer Protection Act, 1986 is not maintainable as there is no joint cause of action and compensation claimed by the Complainants does not exceed 1 crore. It was contended that Section 12 (1) (c) of Consumer Protection Act 1986 permits two or more Consumers to file a joint Complaint if they are having the same interest and that too with the permission of the Court and does not permit the addition of the relief claimed by each of them to artificially raise the pecuniary jurisdiction for the purpose of invoking the pecuniary jurisdiction of this Commission. It was stated that the pricing of the flat, houses etc. constructed by a Public Authority is a civil dispute and not a Consumer dispute. It was further stated that due to unavoidable circumstances, the “final tentative cost” was not fixed and directly “final cost” was fixed. Therefore, Clause No.11 which states that the enhancement of final cost shall not be more than 10% over the “final tentative cost” becomes inoperative as “final tentative cost” was never fixed. It was also contended that “Sampoornam” project which was notified vide Demand Survey Notification dated 19.09.2009, was under self-financing scheme and the final cost of the construction was to be accepted by the allottees.

3.     Heard the Learned Counsel for the Complainants and Opposite Parties No.2 & 3 and carefully perused the record. None appeared on behalf of Opposite Parties No.1, 4 & 5. Learned Counsel for the Complainants submitted that in the demand survey notification issued by Opposite Party No.2, it was categorically stated that any enhancement of the ‘final cost’ would not exceed more than 10% of the ‘final tentative cost’. Enhancement of cost to Rs.47,85,000/-, was about 70% of the tentative cost mentioned in the Agreement which was contrary to the demand survey notification DS/2009 dated 19.09.2009 and also Clause 2 of the Agreement dated 15.07.2011. This Commission, vide order dated 16.08.2017, directed the Opposite Parties to give details of the amount quoted as final cost. Opposite Parties No.2 and 3 filed affidavit dated 13.12.2017 before this Commission wherein it was stated as follows:-

        This Commission, vide order dated 31.01.2018 again directed the Opposite Parties to file breakup of tax liability by filing another affidavit. Opposite Parties No.2 and 3 filed affidavit dated 26.11.2018 explaining the charge levied under the heading ‘Tax’, as follows-

4.     Learned Counsel for Complainants submitted that Opposite Parties No.2 and 3 charged miscellaneous expenses and tax such as Rs.1,50,000/- for car parking, 15% advertisement charges, fire services charges and legal charges, totalling to Rs.11,74,79,031/-(around 4.5 lakh per flat) had been included under the Heading ‘Tax’. Also, Over Head Charges @15% was included in the final cost. Final cost of land Rs.18,00,30,060/- was also highly inflated arbitrarily as the Housing Board sought to charge the Complainants for the built-up space (1400 sft. x 270 flats @ Rs.476.27 per sft.) as opposed to the available land area of Acres 4.42 (21,392.8 square yards @ 4287 per square yard) which comes to 9.17 crores only.

5.     Learned Counsel for the Complainants also stated that as per Agreement dated 05.07.2011 the project was to be completed within 24 months from the commencement of the scheme. Opposite Party No.2 completed the construction of two blocks on 30.06.2014 and third block was completed on 03.09.2016. It was submitted that the Housing Board obtained the “Occupancy Certificate’ from the Greater Hyderabad Municipal Corporation on 25.05.2020, with a delay of 6 years. Till date the possession of the flats had not been handed over to the Complainants and they are bearing the burden of housing loans.

6.     Learned Counsel for the Opposite Parties No.2 and 3 resisted the Complaint stating that Opposite Party No.2/Telangana Housing Board is an autonomous body constituted under Andhra Pradesh Housing Board Act 1956, and is covered by AP Housing Board Self Financing Regulation 1975. The Board was constituted to provide houses on “No Profit No Loss basis” to the general public. It works on the model of Self-Financing Scheme (SFS) and funds are borrowed from public sector Financial Institutions such as HUDCO which are repaid from the amounts collected from the Flat Owners. The allegation that enhancement of cost to Rs.47,85,000/-, was 70% of the tentative cost is false. The demand survey notification and brochure envisaged three costs. Firstly the ‘Tentative Cost' or 'Notified Cost' mentioned in the notification. Secondly, the ‘Final Tentative Cost’, which was to be informed to the Complainants on finalization of tenders and lastly the ‘Final Cost’. The terms and condition stipulated that the ‘Final Cost’ shall not exceed 10% over the ‘Final Tentative Cost’ and not the initially notified ‘Tentative Cost’. The Complaint had been filed by the Complainants claiming as if the condition states that the ‘Final Cost’ shall not exceed 10% of initially notified ‘Tentative Cost’ which is a deliberate attempt to mislead this Commission.

7.     Learned Counsel for Opposite Parties No.2 and 3 submitted that ‘Final Tentative Cost’ was not fixed due to unavoidable circumstances and directly the ‘Final Cost’ was fixed. Clause-11 of the Agreement states that enhancement of Final Cost shall not be more than 10% over the final tentative cost. The enhanced cost of the flat was exclusive of the cost of one car parking area, water and electricity charges etc. which amounted to Rs.34,84,610/- whereas the tentative cost of the flat which was earlier notified was Rs.30,80,000/-.The difference between the enhanced Cost and the Tentative Cost was Rs.4,04,610/-(Rs.34,84,610- Rs.30,80,000) which comes to 13.14% only. The Final Cost of the Flat was Rs.47,85,000/- which was inclusive of one car parking area, taxes, water and electricity charges etc. The Learned Counsel relied on the Clause-23 of AP Housing Board Self Financing Scheme Regulation, 1975, which reads as follows: -

“23. (1) The estimated cost of flat/ house shall comprise of:

(i) The cost of land;

(ii) the cost of development which shall include external amenities such as laying of water supply mains, drainage main, street lights and formation of roads provision of dust proof Surfacing

(iii) the cost of civil works (iv) the cost of internal amenities’ such as water supply and electricity: (v) supervision charges on construction and provisions or amenities etc., at such rate as the Board may fix from time to time.”

8.     It was submitted that 15% overhead charges in the Final Cost were statutory and not arbitrary as it was decided in the APHB meeting dated 10.08.2009 before the inception of Demand Survey Notification 2009. Item No.03/SI. No. 21352 of minutes of the APHB meeting reads as: -

“Resolved to adopt over heads/administrative charges on all Self-Financing Scheme of the APHB at 10% on cost of Construction for the houses/flats/Developed plots having plinth area up to 600 sft and at 15% on cost of construction for the houses/ Flats/developed plots having area above 600 sft. In case of developed plots 10% administrative charges up to 111.11 sq. Yards from ongoing and future schemes.”

9.     It was further submitted that enhancement, therefore, was only of 13.14% and not of 70% as alleged by the Complainants. It was contended that the delay in construction of the project was beyond the control of the the Housing Board and hence extension of time was given as per the terms of the Agreement. The construction of the first two Blocks was completed on 30.06.2014 and that of the third Block was completed on 03.09.2016. The contention of the Complainants that the open space was not provided is not correct as 10% of the total area of the layout has been left for open space as per layout Rules.

10.   Complainants filed rejoinder on 14.03.2017 to the written statement filed by Opposite Parties No.2 & 3 mainly reiterating the contentions and allegations made in the Complaint. It was stated that the Complainants cannot be made to suffer by Opposite Parties No.2 & 3 for the fault on the part of third party. The enhancement of cost by Opposite Party No.2 is, therefore, arbitrary and illegal. It was also submitted that all three blocks were to be constructed in one go, which Opposite Parties No.2 & 3 failed to do. After lapse of seven years Opposite Parties 2 & 3 cannot be permitted to bifurcate common areas and seek separate consideration for the same.

11.   Learned Counsel for the Opposite Parties raised the issue of maintainability. He submitted that the joint Complaint under Section 12 (1) (c) of the Consumer Protection Act, 1986 is not maintainable and the Complainants are required to file individual Complaints. However, this Commission, vide order dated 16.08.2017, allowed the application under Section 12 (1) (c) of the Act. Moreover, Larger Bench of this Commission in Ambrish Kumar Shukla & 21 ors. Vs Ferrous Infrastructure Pvt. Ltd. [Consumer Case No. 97 Of 2016] laid down the following proposition of law:-

“The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest.  A complaint on behalf of only some of them therefore will not be maintainable.  If for instance, 100 flat buyers / plot buyers in a project have a common grievance against the Builder / Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 aggrieved persons will be compelled either to file individual complaints or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project.  This, in our view, could not have been the Legislative intent.  The term ‘persons so interested’ and ‘persons having the same interest’ used in Section 12(1)(c) mean, the persons having a common grievance against the same service provider.   The use of the words “all consumers so interested’ and “on behalf of or for the benefit of all consumers so interested”, in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking a common relief and consequently having a community of interest against the same service provider.”

        In view of the above, the joint Complaint under 12 (1) (c) of the Act is maintainable.

12.   Before deciding the Complaint on merit, it is to be noted that 135 Complainants filed the instant Complaint before this Commission. Some of them withdrew from the Scheme or settled their dispute during the pendency of the Complaint and some Complainants took possession and executed deeds of conveyance before the date of Occupancy Certificate. Now, the main dispute between the Parties relates to the common amenities such as (1) Pricing, (2) Delayed Possession and (3) Car Parking charges.

13.   Regarding the jurisdiction to entertain matters with respect to the discretion of the Housing Authority in fixing the prices of Flats, it is a settled position that enhancement of cost, rate of instalments and alteration in the terms and conditions by the Authority at the time of allotment of the houses/flats is not arbitrary. In the case of Sheela Wanti v. Delhi Development Authority and Other, 57 (1995) DLT 801 (FB), Full Bench of Delhi High Court held that the mechanism of Price Fixation is necessarily to be left over to the executive unless there is hostile discrimination and arbitrariness which is not so in the instant case. In the case of Manohar Lal Sharma vs. D.D.A & Ors. 1994 (1) CPJ 29 (NC)) had clearly held as: -

“After adverting to the relevant decisions on the point this Commission held that the question of pricing cannot be gone into by the Consumer Forums since the price of the Flats is not fixed by any law and that even if any excess charge has been collected by way of price that will not constitute a ground for contending that there is a deficiency in service on the part of the opposite party.” This Commission also in the case of Mukund Damodar Raghuvir vs. SIDCO Ltd. III (2015) CPJ 29 (NC) on the similar issue held as under: -“10. Before we go into the merits of the case, we address ourselves to the point raised by the Respondent whether this Commission has jurisdiction to entertain matters with respect to the discretion of the Housing Authority in fixing the prices of the Flats. We place reliance on the Judgment of the Apex Court reported in (1989) 2 SCC 116, between Bareilly Development Authority vs. Ajai Pal Singh & Ors., in which the Apex Court has laid down that substantial enhancement in cost and rate of instalments and alteration in other terms and conditions by the Authority at the time of allotment of the houses/Flats is not arbitrary. The registered persons cannot, therefore, challenge under Article 226 of the Constitution the subsequent alterations by the Authority on ground of arbitrariness. In Sheela Wanti vs. Delhi Development Authority and other batch of cases, the Full bench of Delhi High Court held that the mechanics of Price Fixation have necessarily to be left to the executive unless there is hostile discrimination and arbitrariness which is not so in the instant case.

14.   The Apex Court in DDA vs. Ashok Kumar Behal & Others (2002) 7 SCC 135 laid down that the consistent view taken by the Hon’ble Supreme Court is that fixation in prices of Flats under different schemes cannot be challenged under Article 226 of the Constitution and laid down the principle that Pricing of Flats lies only within the domain of the Housing Authority. As pricing of Flats by Housing Authority cannot be questioned even under Article 226, it is clear that the scope of judicial review, with respect to fixation of prices, under the Consumer Protection Act, 1986, is very limited. This Commission, therefore, refrain from going into the Final Cost as disputed by the Complainants. However, not fixing ‘Final Tentative Cost’ is certainly a lapse on the part of the Opposite Parties which is one of the main reasons leading to the present litigation.

15.   Next issue relates to car parking charges of Rs.1,50,000/-.  Levy of Car Parking charges was as per Clause 7 of Demand Survey Notification 2009 which reads that “Tentative cost notified for flats is exclusive of parking charges and taxes” and Clause 17 of the Terms and Conditions of Agreement which clearly and expressly provided that Tentative cost of Rs.30,80,000/- was exclusive of parking charge and final cost of Rs.47,85,000/- was inclusive of parking charge of Rs.1,50,000/-. From the above, it is clear that the tentative cost of flat was exclusive of the cost of parking which was duly conveyed to the Complainants, vide Demand Survey Notification 2009. Hon’ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. Vs DLF Southern Homes Pvt. Ltd. [Civil Appeal No. 6239 of 2019] decided on 24.08.2020 observed as follows: -

 “53.We are unable to accede to the above submission. The ABA contained a break-up of the total price of the apartment. Parking charges for exclusive use of earmarked parking spaces were separately included in the break-up. The parking charges were revealed to the Flat buyers in the brochure. The charges recovered are in terms of the Agreement.”

“54.The decision of this Court in Nahalchand Laloochand Private Limited v. 24 “KAO Act” 52 Panchali Cooperative Housing Society Limited25 turned on the provisions of the Maharashtra Ownership Flats Act 1971, as explained in the subsequent decision of this Court in DLF Limited v. Manmohan Lowe26 . The demand of parking charges is in terms of the ABA and hence it is not possible to accede to the submission that there was a deficiency of service under this head.”

        For the foregoing discussion and the settled law as well as terms and condition of the Demand Survey Notification, parking charges levied by Opposite Party No.2/Telangana Housing Board are justified and does not amount to unfair trade practice.

16.     Regarding delay in delivery of possession, the Learned Counsel for the Complainants stated that as per Agreement dated 05.07.2011 the project was to be completed within a period of 24 months from the commencement of the scheme. Opposite Party No.2/Housing Board had completed the construction of 1st & 2nd Block on 30.06.2014 and the construction of 3rd Block was completed on 03.09.2016. The Housing Board obtained “Occupancy Certificate’ from Greater Hyderabad Municipal Corporation only on 12.05.2020. Till date possession of the Flat has not been handed over to most of the Complainants and they are bearing the burden of Housing loans obtained for the purpose of buying the Flats.  Clause 3 of the Flat buyer Agreement specifies that “3.Payment schedule…For the delay in payment of installments, the purchaser shall pay the interest for the belated period at 14% per annum.” Clause 13, relating to completion of flats, registration and delivery of possession reads as follows: -

“13.Time for completion, registration and delivery: The seller complete the construction of the flat within 24  months from the date of commencement of the Scheme, unless circumstances beyond the control of the seller warrant extension of time and register and deliver the same to the purchaser at his cost on his paying the entire price(including, any additional price as contemplated under clause 4 herein) and on his depositing the registration charges, stamps, etc., and fulfilling all the conditions. In case of delay in completion ,registration and /or delivery, due to circumstance, beyond the control of the seller like litigation, court orders, local resistance, order of government and other authority force major causes, etc., the purchaser shall not be entitled to claim any compensation, interest etc..”

17.     Combined reading of Clauses 3 & 13 laid down in the Agreement clearly stipulates that if the buyer fails to pay on time, then the buyer is liable to pay 14% interest p.a. On the other hand, if Housing Board delays in delivery of possession, no right is provided to the Complainants/flat buyers. An Agreement or a term thereof is substantively unfair, oppressive or unconscionable to one of the Parties. In view of the facts and circumstances of the case, it is held that the Clause 3 relating to delay in payment by the flat buyers and Clause 13 relating to delay in delivery of possession by Opposite Party No.2 are one sided, unfair. I find that delay in delivery of possession by Opposite Party No.2/ Telangana Housing Board amounts to deficiency in service. 

18.     For the foregoing discussion, Complaint is partly allowed and Opposite Party No.2 is directed to pay simple interest to the Complainants at the rate of 6% p.a., on the amount paid from the due date of possession till the date of offer of possession, after the date of obtaining occupancy certificate. For some Complainants, who have taken possession, the above compensation be paid upto the date of their taking possession. Opposite Party No.2 shall also pay a cost of Rs.25,000/- to each Complainant. The above compensation payable to the allottees in terms of this order shall be adjusted against the balance amount, if any, payable by them. The Complainants who entered into specific settlement with Opposite Party No.2 and those who withdrew and surrendered their title, right and interest in the flat would not be entitled to the benefit of the present order. The order shall be complied within three months.