Per Shri B.A.Shaikh, Hon’ble Presiding Member.

1.      These three complaints are being disposed of by this common order as common questions of law and facts are involved in them. These complaints are filed under Section 17 of Consumer Protection Act, 1986.

2.      The common case of all the complainants in these complaints in brief is as under.

         The opposite party (for short O.P.) Nos.1 and 2 are respectively  Chief Officer and Estate Manager of Nagpur Housing and Area Development Board which are the two units of Maharashtra Housing and Area Development Authority (for short MHADA). The O.P. No.3 is the Chief Executive Officer of Nagpur Housing and Area Development Board. The O.Ps. gave public advertisement  in the news paper in the second half of the year 2009, calling applications for allotment of the flats in the housing scheme called as MHADA City on certain terms and conditions, to the prospective buyers. As per the said advertisement, draw was to be conducted after receiving the applications by the O.Ps. In pursuance of the said advertisement, the complainants submitted applications to the O.Ps. as they were interested in purchasing one flat each described in each of the complaint.  The complainants were selected under the said draw for the above purpose. They were offered the respective flat under the said scheme as described in detail in each of the complaint. The complainants paid various amount from time to time as demanded by the O.Ps. as described in detail in each of the complaint. However the additional demand of money made by the O.Ps. to the three complainants bearing Nos.cc/16/69, cc/16/70 and cc/16/96 is not paid by them as the said demand is illegal for the reason given in  detail in each of the said complaint. The flat No, amount paid and additional amount demanded are specified complaint wise in the following table.

3.        As per the instructions of the O.Ps., all the allottees of the flat of MHADA City including the complainants formed a Co-operative Housing Society and it is duly registered with the Registrar of Co-operative Societies.

4.       The complainants also provided their family particulars with photograph alongwith the declaration on a stamp paper of Rs.100/- as demanded by the O.Ps.  The complainants contacted the O.Ps. number of times for getting possession of the flat. But they denied on one or the other pretext like contractor left the work, water connection is not sanctioned by Nagpur Municipal Corporation, the works of  carpenter, plumber and electrician remained unfinished and  the “No Objection Certificate(NOC)/ Occupancy Certificate (O.C)” from Nagpur Municipal Corporation is not yet received by the O.Ps.

5.           The O.Ps. ought to have completed the construction of building No.2 in which the flats were allotted to the complainants. As assurances of O.P.Nos.1 and 2, substantial amounts of the price of the flats was paid to O.Ps. and relevant documents were furnished to them by the complainants. The O.Ps. ought to have communicated the date of delivery of the possession of the flats to the complainants. The O.Ps. ought to have executed sale deed of the flats after getting out standing amounts from the complainants. Thus the O.Ps. rendered deficient service  to the complainants and they adopted unfair trade practice. Hence common prayer is made in all the complaints by the complainants to the following effect.

1. Direction be given to the O.Ps. to pay interest @ 15% P.A. over the entire amount paid by them to the O.Ps. and specified above, till the delivery of possession of the flat alongwith registered sale deed of each of them.
2. The O.Ps. be directed to pay to the respective complainant compensation of Rs.50,000/- in each of the complaint for physical and mental harassment and for not delivery of the possession of the flat after receiving substantial amount of price from all the complainants.
3. To direct the O.Ps. to complete the construction and other related works of the flats described in the complaints and deliver their possession to the complainants after obtaining requisite occupation certificate/No Objection Certificate from Nagpur Municipal Corporation, Nagpur and/or from other competent Authorities.
4. To declare the additional demand made to the respective

complainant as specified in the aforesaid table, is without any lawful reason and thus illegal and it amounts to deficiency in service or unfair trade practice on the part of O.Ps. 

5. To direct the O.Ps. to pay litigation cost specified in each of the complaint to the respective complainant.

6.       The complainants in support of the complaints filed copies of the following documents.

          Receipts issued by the O.Ps. about payment, letters of selecting in draw, letters issued by the O.Ps. to the complainants for advance contribution, relevant pages of the prospectus/broacher  published by the O.Ps., housing loan document, letters issued by O.Ps. for forming Co-operative Housing Society and the list of allottees, letters of making additional demand, letter issued under the Right to Information Act (RTI) for knowing the reasons for charging an additional amount, information sought by Chief Promoter.

7.      The complainants also filed rejoinder to the respective complaint. The learned advocate of the complainant also filed written notes of arguments in each of the complaint.

8.       On the other hand, the O.Ps. resisted the complaint by filing their common identical reply in each of the complaint. Their case in brief is as under.

1. All these complaints are not maintainable under Consumer Protection Act as it is now well settled law that the pricing of tenement/flat is out of purview of Consumer Protection Act, 1986. The subject matter of all these complaints is pricing of the respective flat. Hence on this preliminary objection, all these complaints deserve to be dismissed.
2. As per the booklet published in the news paper, at the instance of O.Ps. the area and price of the flats is tentative/provisional and it is subject to  change during further course and stages of construction and further subject to acceptance of terms and conditions mentioned in the booklet. Initial area of the flats in complaints bearing Nos.16/69, 16/70 and 16/96 was enhanced by the sanctioning authority. Hence additional amount was claimed from those complainants. But they have not paid the said amount. 
3. No relief for sale deed and possession of the flat can be sought without payment of provisional price demanded by the O.Ps. The complaints are thus premature in law.
4. The subject mater of each of these complaints is within the pecuniary jurisdiction of the District Consumer Forum as its value is not more then Rs.20,00,000/- and on this ground also, these complaints deserve to be dismissed.
5. It is not disputed that the complainants have made applications under the aforesaid housing scheme and they were declared as successful in the draw for getting the flats described in each of the complaint. It is also not disputed that complainants paid certain amounts as described in the complaints of witch receipts are also issued. However these amounts are paid as an advance contribution under the above scheme and the complainants are bound to pay more in accordance with the additional demand. The complainants have committed default in payment of the money within stipulated time. Therefore they can not blame the to O.Ps.
6. The complainants are liable to pay interest @ 13.5% P.A. as per clause No.10-A of appendix for delay in payment of price of the flats.
7. The complainants have not come with clean hands before this Commission.
8. The complainants were asked to form Co-operative Housing Society as required under law and accordingly they have formed provisional Co-operative Housing Society alongwith other allottees in the name of “Sayali Co-operative Housing Society” which is duly registered.
9. There is no negligence or deficiency in service or unfair trade practice on the part of O.Ps. As per the sanctioned plan, the construction of all 320 flats under the scheme called as “MHADA City” have been completed by the O.Ps., as per specification mentioned in the information booklet. After completion of the scheme, the application for issuance of occupation certificate was submitted to the office of Nagpur Municipal Corporation and the said certificate is awaited from that office. The provisional price of the flats under the scheme got enhanced and it is communicated to the respective persons to whom flats have been offered in the said scheme. After receiving the occupation certificate from Nagpur Municipal Corporation, the allotment and sale of the flat would be govened by the provisions of “MHADA (Estate Management, Sale, transfer and exchange of tenement)  Regulation, 1981. All these complaints therefore deserve to be dismissed with cost.

9.      The O.Ps. in support of their aforesaid defence filed copies of following documents.

Advertisement letter dated 26/09/2009, information booklet, building sanction permit and commencement certificate dated 26/09/2010, offer letters, acceptance letters, appendix signed by the complainants, affidavits by the complainants, letters issued to the complainants, demand letters issued to the complainants, computation sheet, letters issued to Nagpur Municipal Corporation dated 16/12/2013. The O.Ps. also filed sanctioned plan, completion certificate of building No.1 and 2, letters issued to Nagpur Municipal Corporation, direction issued by environment department, order passed by Junior Magistrate First Class in Criminal case No.13066/2015, notices issued to the persons for illegal occupying the tenement, environmental clearance certificate issued by Environment Department of State of Maharashtra, letters issued to Executive Engineer of Nagpur Municipal Corporation and documents relating to pricing of tenements.

10.       The O.Ps. also filed affidavit of Mr.Naresh Bhalchandrao Shinde, their Dy.Engineer in support of their aforesaid defence. The learned advocate of the O.Ps. also filed written notes of arguments.

11.       We have heard advocate Mr.G.M.Burde who appeared for the complainants and advocate Mr.H.N.Verma who appeared for the O.Ps. in all the complaints. We have also perused the record and proceedings of all these complaints. 

12.      The sum and substance of the submission of learned advocate of the complainants is as under.

i)        The complainants have paid the various amounts as specified in the respective complaints. But the O.Ps. have made illegal demand of money in three complaints bearing No.CC/16/69, CC/16/70 and CC/16/96 and hence the said amount was not paid. The details of the said illegal demand are given in the said three complaints. Though the advertisement was given in the second half of the year 2009 inviting the general public for purchasing 320 residential flats in “MHADA City” and though substantial amounts have been already paid to the O.P. by the complainants still the O.Ps. have not obtained “No Objection Certificate/Environmental Clearance Certificate” from the competent authority as required for giving possession of the flats and therefore the O.Ps. may be held liable for deficiency in service and/or unfair trade practice on their part.

ii)       The defence raised by the O.Ps. in their reply is not tenable in law. Complaints are maintainable before this Commission as the relationship exists in between the complainants and the O.Ps. as consumer and service provider.

iii)      The learned advocate of the complainants relied on the decisions in the following cases.

1. Municipal Corporation Katni through the Commissioner…..V/s……Jay Chand Sharma, Katni, in Revision Petition No.208/1997 decided on 24/01/2001 by the Hon’ble National Commission. In the said case Hon’ble National Commission allowed interest from the date after two years of registration till date of possession.
2. Nalini Nanjundaiah……V/s……Bangalore Development Authority and another, in appeal No.16/1996, decided on 29/05/2002. In the said case, it is held by Hon’ble National Commission that complainant is entitled to interest from various dates of deposits.
3. Harbans Singh……V/s…..Lucknow Development Authority, in first appeal No.195/1992, decided on 16/12/1993. In the said case, it is held by Hon’ble National Commission that 15% per annum interest will start accruing and same would be continued till delivery of house in question.
4. Haryana Urban Development Authority ……V/s……Pawan Kumar Gupta, IV (2013) CPJ, 365 (NC). In the said case, Hon’ble National Commission partially modified the order reducing rate of interest from 18% P.A. to 15% P.A..
5. Ramesh Kumar…….V/s……Prasanna Bhandary, II (2014) CPJ, 301 (NC). It is held in  the said case by Hon’ble National Commission that delay in delivery of possession, amounts to deficiency in service when the respondent already  paid entire due amount along with interest to the petitioner, within stipulated period.
6. Ghaziabad Development Authority…….V/s……Vishnu Dutt Dimri, 2002 (1) CPR 151 (NC).. In the said case it is held that though Commission could not go into original pricing of flats, change in pricing on the basis of formula provided in scheme could be looked into and examined. In that case there was no provision for charging enhanced price.
7. M/s. Fair Air Engineers Pvt.Ltd. and another…V/s…N.K. Modi, AIR 1997, Supreme Court 533. It is held in the said case that by virtue of Section 3 of Consumer Protection Act, 1986, the Fora can proceed with the matters in accordance with the provisions of the said Act rather than relegating the parties to Arbitration proceeding pursuant to contract between the parties.

    viii)  Shri Manohar Burde Son of Ganpatrao Burde……V/s…..Chief

          Officer, Nagpur Housing Area Development Board and others,

          in consumer complaint No.CC/16/52, decided by State

         Commission, Circuit Bench, Nagpur on 20/02/2017.

         Under identical facts and circumstances that of present case,

the complaint of that case was partly allowed.

13.     On the other hand, the learned advocate of the O.Ps. made submission in brief is as under.

         The defence raised by the O.Ps. in their reply is duly supported by documents and therefore it can be accepted. The question of pricing of tenaments is involved in these complaints and hence complaints are not maintainable under Consumer Protection Act. The construction of the entire building has been duly completed but the occupancy certificate is not issued by Nagpur Municipal Corporation though the O.Ps. are trying their level best to obtain the same  and it is under process. The O.Ps. have not rendered deficient service to the complainant and they have not adopted any unfair trade practice and the same is also not proved by the complainants. Therefore all the complaints deserve to be dismissed.

          The learned advocate of the O.Ps. relied on the decisions in the following cases.

1. Delhi Development Authority…….V/s……Carmini Chopda, reported in 1996 (1) CPR 42. It is held by Hon’ble National Commission in the said case that the question of pricing of flat can not be gone in to by the Consumer Fora under Consumer Protection Act, 1986, so the question of refund of interest on installments paid towards price of the flat can not be decided by Consumer Fora and it can be decided by Civil Court only.
2. A.N.Saijal………V/s……Delhi Development Authority, reported in II (1995) CPJ 17 (NC). It is held that in the catena of cases, the Hon’ble National Commission has held that the pricing of a flat or plot does not fall within the four corners of the Consumer Protection Act, 1986.

14.        It is seen that the relationship of the consumer and service provider in between complainants on one side and O.Ps. on one side is not disputed. The payment made by the complainants in installments to the O.Ps. as specified in the aforesaid table is also not disputed by the O.Ps. Moreover the O.Ps. have admitted the allotment of the aforesaid flats to the complainants as described in the aforesaid table.

15.       We find that in view of the aforesaid relationship in between both the parties and payment of consideration, it can be said that the dispute in between both the parties fall within the purview of consumer dispute as contemplated under Consumer Protection Act, 1986 and hence all the complaints are maintainable as filed before this Commission under Consumer Protection Act.

16.       So far as the issue of pricing of the respective tenement is concerned, it is seen that it is an advance contribution made by the complainants to O.Ps. from time to time and as per the public advertisement given by the O.Ps., no final price of the said tenement/flats is yet fixed by the O.Ps. but it is to be fixed finally when the flats are to be given in possession of the respective complainants. Thus the complainants have paid the provisional/tentative price of respective flat to the O.Ps. Hence we are of the clear view that no issue of pricing is involved in the present complaint and hence all the complaints are maintainable before this Commission. The aforesaid both decisions relied on by the learned advocate of O.Ps. on the point of pricing of the flats are does not applicable to the aforesaid facts and circumstances of the present case.

17.       No doubt the complainants in three complaints bearing C.C./16/69, CC/16/70 and CC/16/96 have not paid the additional amount demanded by the O.Ps. from them. However they will have to pay the final price of their respective flat fixed by the O.Ps., as per law as and when demanded by them at the time of delivery of the possession of the flat to them.

18.       It is thus not disputed that the public advertisement was given on 26/09/2009 by the O.Ps. inviting the general public for purchasing flats under project called as “MHADA City”. The building sanction permit and commencement certificate was issued by competent authority on 20/09/2010 and offer letter was given to the respective complainants in the year 2012. The complainants had given acceptance letter immediately in response to those offer letters admitting all the terms and conditions as per appendix.

19.      The complainants paid the tentative price of their respective flats to the O.Ps. till the year 2013. However till this date the O.Ps. have not come with a specific case that all the flats with the requisite occupation certificate are ready for delivery of their possession to the respective complainant. In our view the complainants can not wait for unlimited period for taking possession of the flats with requisite occupation certificate.

20.        A very long period has been already passed from the payment of substantial amount of consideration by each of the complainant to the O.Ps. The O.Ps. have not come with such a case that they had informed the complainants before accepting their application for allotment of the flat or at the time of giving public advertisement that construction of the flats would commence only after obtaining requisite environment certificate and that they will not be responsible for delay in delivery of possession of flats due to certain technical problems and particularly due to delay in issuing occupation certificate by competent authority. In the case of Arun Datta and anothers…….V/s…….Unitech Ltd. and another, reported in III (2016) CPJ, 165 (NC), the Hon’ble National Commission has made the  following observations.

           “It was obligatory for the builder to either obtain requisite environment clearance before accepting any booking in project or atleast to inform the buyer that construction would commence only after obtaining requisite clearance. Such discloser having not been made, the O.P/builder was clearly deficient in rendering service to its consumers.”

21.       We thus find that the aforesaid observations made by the Hon’ble National Commission in the case of Arun Datta…V/s…Unitech Ltd. are squarely applicable to the facts and circumstances of the present case. Thus we find that as the O.Ps. did not give any such public advertisement that the construction could commence only after obtaining requisite clearances and that delivery of possession of flats if delayed due to non-issuance of occupation certificate they will not be responsible and when as such there is a  very  long period has been already passed since making of payment  of substantial amount by the respective complainants to the O.Ps., that constitutes deficiency in service on the part of O.P.Nos.1,2 and 3

22.      Therefore we hold that the complainants are entitled to interest @ 15% P.A. over the respective amount paid by them to the O.Ps. as specified in the aforesaid table. We also find that considering dates of payment of various amounts the said interest is to be awarded from the date 01/05/2015 over the respective amounts till the possession of the flat is delivered alongwith the sale deed to the respective complainant. Moreover, we also find that the complainants in each of the complaint is entitled to compensation of Rs.50,000/- for physical and mental harassment and litigation cost of Rs.25,000/-.

// ORDER //

1.      All these six complaints bearing Nos. CC/16/69, CC/16/70, CC/16/96, CC/16/97, CC/16/98 and CC/16/137 are partly allowed as under.
2.      The O.P.Nos.1, 2 and 3 are directed to deliver possession of the respective flat described in detail in each of the complaint to the respective complainant within six months from the date of this order. They shall also execute sale deed of the said flat within six months from the date of this order in favour of the respective complainant, by accepting from each of the complainant final price of the respective flat fixed by them, on the date of sale deed.
3.      The O.P.Nos.1, 2 and 3 are also directed to pay to the respective complainant interest @ 15% P.A. over the following amounts shown in the table from the date 01/05/2015 till delivery of the possession of the respective flat alongwith sale deed to each of them.

4.     The O.P.Nos.1, 2 and 3 are also directed to obtain “Occupation Certificate” and “No Objection Certificate” from Nagpur Municipal Corporation or any other requisite certificate from competent authority, within six months from the date of this order.
5.     The O.P.Nos.1, 2 and 3 are also directed to pay compensation of Rs.50,000/- for physical and mental harassment and litigation cost of Rs.25,000/- to each of the complainant in each of the complaint.
6.       Copy of this order be furnished to both parties free of cost.