State Consumer Disputes Redressal Commission
City And Industrial Development Corp Of ... vs Mr. Narendra Vasudeo Joshi on 30 November, 2012
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First Appeal No. A/99/1269
(Arisen out of Order Dated 19/02/1999 in Case
No. 456/96 of DCF, Mumbai(Suburban))
1. CITY AND
INDUSTRIAL DEVELOPMENT CORP OF MAHARASHTRA LTD
CICO BHAVAN, CBD
BELAPUR, NAVI MUMBAI
...........Appellant(s)
Versus
1. MR. NARENDRA
VASUDEO JOSHI
83/5, MADHU MAHAL, SHRADHANAND X RD,
MATUNGA, MUMBAI-19.
...........Respondent(s)
BEFORE:
HON'BLE Mr. S.R.
Khanzode PRESIDING MEMBER
HON'BLE MR. Dhanraj
Khamatkar Member
PRESENT:
Mr.Prakash Kadam,
Advocate for the appellant.
Respondent-Mr.N.V. Joshi present in person.
ORDER
Per Shri Dhanraj Khamatkar, Honble Member This appeal takes an exception to an order dated 19/02/1999 passed by District Forum, Mumbai Suburban in consumer complaint No.456/1996.
2. The facts leading to this appeal can be summarised as under :-
The original complainant/respondent had applied for flat vide application dated 15/07/87 to the original opponent/appellant.
The scheme wherein the complainant/respondent had applied is known as Demand Registration Survey 1987.
The complainant/respondent initially paid `7,500/- through demand draft to the opponent/appellant. The complainant/respondent had applied for hire purchase scheme under Priority-II. According to the complainant/respondent, price of the tenement would be around `2,47,500/-. On or about 28/06/1996 the complainant/respondent received a letter from opponent/appellant which states that the complainant/respondent was successful in the allotment of tenement and after reading the letter, complainant/respondent came to know that the terms and conditions of the earlier agreement has been altered. He noticed the following discrepancies :-
(i) Scheme was changed from hire purchase scheme to outright purchase scheme.
(ii) Rate per square feet was enhanced from `299/-
to `999/-.
(iii) Area allotted had changed from 70 sq.mtrs to 100.20 sq.mtrs.
(iv) There was change in the location also.
3. The complainant/respondent alleged that this was done by the opponent/appellant to force the complainant/respondent to withdraw from the scheme. It is contended by the complainant/respondent that opponent/appellant has delayed the construction for making profit. Considering this as deficiency in service on the part of opponent/appellant, complainant/respondent had filed consumer complaint praying to direct the opponent/appellant to allot the same tenement at the price allotted to the allotment holders in 1994 or earlier, not to initiate any action for forfeiture of EMD, cancellation of allotment and grant of allotment of tenement to any other person pending hearing and final disposal of the complaint. Complainant/respondent also prayed for `20,000/-
as compensation for mental agony and legal expenses.
4. Opponent/appellant challenged the complaint by filing written version contending therein that there is neither deficiency in service on their part nor unfair trade practice as alleged by the complainant/respondent.
Opponent/appellant further contended that they are company registered under the Companies Act and it is a Government Company. They further stated that they are constituted by the Government of Maharashtra with a view to discharge the duties of the State Government as enshrined under Part IV of the Constitution of India. They further stated that making profit is not their objective. Their objective is to provide affordable houses to the citizens. Appellant/opponent stated that complainant/respondent had not opted for outright purchase, but this does not mean that he was in Priority-I i.e. Hire Purchase. The priorities have been decided by the Board of Directors of the appellant/opponent and these priorities are as under :-
Priority I - Houseless in Bombay and working in New Bombay applied for purchase.
Priority II - Out right purchasers having no tenement in New Bombay Priority III - Rest of the applicants.
5. Since, complainant/respondent was not working in Navi Mumbai and not opted for outright purchase, he was placed in Priority-III and he was accordingly informed on 20/01/1990. The appellant/opponent further contended that main grievance of the complainant/respondent is about price escalation and this point was raised by the purchasers who registered under the Demand Registration Survey and who subsequently formed DRS-87 Applicants Association had filed a consumer complaint before National Commission vide Original Petition No.273/1993 which was decided by the National Commission by its order dated 11/01/1995 observing that dispute about pricing of the flat or plot does not fall within the purview of the Consumer Protection Act, 1986. Therefore, the opponent/appellant prayed that complaint may please be dismissed.
6. District Forum, after going through the complaint, written version filed by the opponent/appellant, additional say filed by the complainant/respondent, evidence filed by both the parties on affidavit and pleadings of the Advocates had allowed the complaint and directed the opponent/appellant to allot tenement No.2 in Sector-8, Type H-6 at New Panvel only upto 100 sq.mtr. area at rate charged to be taken `430/- per sq.ft. for a sum of `4,63,819/- to the complainant within three months from the date of receipt of the order. Aggrieved by this order, org. opponent has filed this appeal.
7. We heard Advocate Mr.Prakash Kadam for the appellant and respondent in person.
8. Admittedly, appellant being a Planning & Development Authority for the area had floated a scheme known as Demand Registration Survey 1987 in New Mumbai. Admittedly, the complainant has registered himself under the scheme.
The booklet of the scheme is in the appeal papers. It clearly states that registration however does not necessarily give guarantee to the applicant about allotment of flat/tenement from the CIDCO.
However, whenever the scheme is finally drawn up in future with all the final details of costs, built up area, eligibility/reservations and preferences, the applicants who will be registering now under the present demand registration survey will be considered first. It further states that an applicant registering now will however be given the final option of either continuing with his registration or withdrawing from the scheme. In case of withdrawal before issuance of the final acceptance letter by CIDCO the registration amount paid by him will be refunded without any payment of interest. The scheme gives the eligibility criteria. It gives the details of booking on outright as well as hire purchase basis. In the said booklet, there is a clause which says that CIDCO may at its discretion include new clauses of reservations, order of preferences of allotment etc. which it may decide in future. CIDCO reserves the right of final acceptance or rejection of any application for tenement as may be made in response to this advertisement.
9. Under these terms and conditions, the original complainant/respondent has registered himself under the scheme. In the appeal papers, there is a final allotment letter and it is under Priority-III. Complainant/Respondent has challenged this on the ground that his priority has been changed and consideration for tenement has been increased nearly to four folds. In their written version, opponent/appellant has stated that priorities of the allotment has been decided by the Board of Directors in their meeting dated 17/10/1989 and as per the priority decided by the appellant, priority of the respondent/complainant has been fixed and accordingly, allotment is made. Respondent/complainant has tried to argue that his registration is a contract and there cannot be changes in the contract. On perusal of the Demand Registration Booklet, it is abundantly made clear that it is a demand registration survey only and this demand registration 1987 was challenged by the Association of DRS-87 Applicants before the National Commission. They have challenged the price escalation also. In its order, the National Commission had observed that question of price is only relevant when the goods are purchased from a trader and the price charged is in excess of what has been fixed by any law or declared on the package. The quantum of consideration is not relevant in relation to service. Deficiency in service has been defined under clause (g) of Section 2(1) of the Consumer Protection Act, 1986 as deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
If a person has undertaken to perform a service pursuant to a contract or otherwise and demands consideration which in the opinion of the hirer is exorbitant it cannot be said to be a deficiency in rendering of service.
10. This Commission consistently held that dispute about pricing of flat or plot does not fall within the purview of Consumer Protection Act, 1986. In this respect, reference can be made to Gujarat Housing Board V/s. Datania Amritlal Fulchand & Ors., First Appeal No.241 of 1991 decided on 07/10/1993 and Gurinder Bedi V/s. Delhi Development Authority, III (1993) CPJ 404 (NC). Hence, complainant/respondent cannot be now permitted to contend that appellant/CIDCO cannot charge escalation charges or any charge. The respondent/complainant had tried to argue that his complaint is not covered by this decision of the National Commission. He had filed copies of following judgements of the Supreme Court and High Court (1) Indore Development Authority V/s. Sadhana Agarwal & Ors., (1995) 3 SCC 1;
(2)Lucknow Development Authority V/s. M.K. Gupta, (1994) 1 SCC 243;
(3)Dwarika Prasad Pandey V/s. Allahabad Development Authority, AIR 1999 ALLAHABAD 11;
(4)Smt.Sheelawanti & Anr. V/s. D.D.A. & Anr., AIR 1995 DELHI 212;
(5)Ashok Kumar Behal & Anr. V/s. Union of India & Ors., AIR 1994 DELHI 149.
and tried to argue that prices charged by the appellant/opponent for the tenement and the change in his priority list is a violation of the contract. Respondent/complainant has argued his case vehemently. We appreciate his argument. We put on record that respondent/complainant had eloquently argued his case. The order passed by the National Commission in Original Petition No.273/1995 is confirmed by the Apex Court in Civil Appeal No.5754/1995 by order dated 25/03/1996. District Forum had miserably failed to appreciate the facts of the case and arrived at wrong conclusion which cannot stand to the scrutiny of law and facts. At the time of registration final prices were not fixed by the appellant and no agreement was entered. It was only a registration and not agreement. We hold accordingly and pass the following order :-
-: ORDER :-
1.
Appeal is allowed.
The impugned order dated 19/02/1999 is hereby set aside. Consequently, consumer complaint No.456/1996 stands dismissed.
2. Parties to bear their own costs.
3. Copies of the order be furnished to the parties.
Pronounced Dated 30th November 2012 [HON'BLE Mr. S.R. Khanzode] PRESIDING MEMBER [HON'BLE MR. Dhanraj Khamatkar] Member dd