National Consumer Disputes Redressal
Engineers India Ltd. vs Ghaziabad Development Authority And ... on 15 November, 2000
ORDER
B.K. Taimni, Member
1. The Complainant - Engineers India Limited, Indirapuram Allottees Welfare Association is a registered body under the Societies Registration Act, 1860. The Society was registered in 1995 for ostensible purpose of taking care of the welfare of the allottees in the Indirapuram Scheme floated by Opp. Party No.1, the GDA. The Complainant has alleged that while most of the members have deposited four out of five instalments, the allotment of houses under the above-mentioned four out of five instalments, the allotment of houses under the above-mentioned Scheme of GDA is no where in sight till the date of filing of the complaint in 1996, in spite of the promises held out that the flats will be completed by December, 1993. The prayer of the Complainant is to direct the GDA to hand over the possession of the flats with all the facilities, to direct the Opp. Party to pay penal interest @24% per annum from December, 1993 on which date the first Opp. Party was to deliver the flats till the date of handing over of the flats, award of Rs. 5.00 lakhs towards the cost of the case and award of compensation of Rs. 1.00 lakh to each of the Members on account of deficiency of service on the part of the GDA and any other relief deemed appropriate under the circumstances.
2. The brief facts of the case are that in order to help their employees, Opp. Party No.2 Engineers India Limited (EIL) took up the matter with GDA for allotment of houses in Ghaziabad, being in proximity to Delhi in order to solve the problem of permanent residence to their employees. Initially, it was for 100 employees of the EIL. Subsequently, the number went upto 215. The arrangement was the EIL would interact with GDA on behalf of the its employees and also send the cheques of the instalments being paid for each of the Member of the Association/Employee of EIL. According to the Complainant, most of the members have paid four out of five instalments due but the Opp. Party has failed to maintain the dead line of delivery of the flats by December, 1993. Since the Opp. Party No.1 had failed to show any satisfactory progress of work on the site, they delayed the payment of instalments. It is their case that till the date of filing, of the complaint, the flats were not complete even after expiry of three i.e. after 1993. Hence, this complaint directing the Opp. Party No.1 to hand over the flats with costs.
3. In their reply, Opp. Party No.1 have taken the plea that the complaint is not maintainable on behalf of EIL Indirapuram Allottees Welfare Association, as it has got itself registered subsequent to the services rendered by the individual allottees whose names figured in the Annexure. In the view of GDA, it is the individual allottee, who should approach the appropriate forum for seeking redressal. It is also their contention that no where in the brochure issued by them with regard to Indirapuram Scheme, it has indicated a definite period for allotment. Their main ground is that since the allottees did not deposit their instalments in time, the work could not start and also the allottees are not entitled to any relief. It is their case that the Complainants should be directed to pay the revised price of the houses/flats and GDA is willing to hand over the possession of the flats within a few months. It was also their contention that no other relief is available to the Complainants.
4. A perusal of the record at this stage shows a very checkered route which the whole case took. In the first instance, we see that Opp. Party No.1 - GDA taking their own time in filing their reply which they did in April, 1997 which is almost one year after filing the complaint, and, this in spite of a statutory time limit for filing reply within 30 days, under Section 13 of the Consumer Protection Act. The Commission, by its order dated 9.12.1996 was pleased to give the Opp. Party GDA four weeks' time to file the reply, but even then the reply was filed after a delay of more than four months. Based on the reply filed by the GDA, the Commission passed order, dated 29.4.1997 that "possession of flats which have been allotted to the Members of the Petitioner - Association, shall be delivered over to those Members immediately on, their remitting to the GDA whatever balance amount is due by each one of them in payment of instalment numbers 1 to 5, within a period of one month from today, and exhaustive list showing the balance amount payable by each of the Members of the Petitioner - Association to make up the full amount of instalment numbers 1 to 5. The possession of the flats shall be given to such of the Members who comply with the condition stipulated above namely, payment of full amount of instalment Nos. 1 to 5.....". No such details of the instalments due was made within the time limit given to the GDA, in the absence of which allotment was also deferred. By their affidavit, dated 6.11.1998, the Opp. Party No.1 through Joint Secretary, GDA, UP, it was stated that presently 160 flats in different toweres of same category are completed in all respects which can be handed over and the remaining 37 flats required by the Members will be completed very shortly. Subsequently, in the same affidavit it was stated that the remaining 37 (thirty seven) flats will be completed after delivery of possession within six months due to reason that the earlier contractor has left the work in complete and fresh steps have been taken to give it to a new contractor. It is seen that even though the Opp. Party GDA were given a period of four weeks (sic) to supply details of the payment to be made by each allottee, yet compliance was affected only sometime in August, 1998, through which they intimated to the individual members of the Association of the balance amount which need to be deposited calculated up to 30.12.1998. Before paying this amount when the Members visited the site to inspect as to the progress of the work, they found the work to be incomplete in pursuance of which the Complainants filed affidavit dated 16.9.99 stating that flats were incomplete and supporting it with photographs of the site. A counter affidavit was filed by Executive Engineer, GDA, dated 20.10.99 that the flats are complete and ready to be handed over; he also enclosed some photographs in support of their affidavit. Another affidavit was filed by the Petitioner showing the status of the flats saying that they are still incomplete and not fit to take possession even in the year, 2000.
5. By order dated 11.1.99, the Commission again directed GDA to hand over the possession of flats by March, 1999 upon payment of the outstanding dues to the GDA for them. This was based on the affidavit by the GDA dated 6.11.98 that most of the flats are ready and rest shall be ready for possession very shortly. The GDA was also asked to give the details of the price escalatio of the flats from the original price to Rs. 9.30 lakhs for Ground Floor, Rs. 8.45 for First and Second Floor and Rs. 8.73 lakhs for the Third Floor, subsequently brought down to Rs. 7.5 lakhs, Rs. 6.90 lakhs and Rs. 6.99 respectively. The break-up of estimates has been filed along with affidavit of GDA, dated 3.1.2000. As against this, the EIL Employees' Association have given the cost escalation based on the criteria given in the brochure which was filed along with their affidavit, dated 19.1.2000.
6. The main argument of the Complainant is that they are all employees of the Government of India Public Sector Undertaking who with a view to secure their future have invested their life savings for purchase of a flat. These flats were to be completed by December, 1993 and at different time they have paid different amounts of instalments, but once they found out that there was no progress from this side, the schedule of payments was not maintained. The Complainants have paid 80% of the price of the flats on the basis of assurances held out by the GDA from time to time at the highest level. At the time of booking of flats, GDA had promised the flats at the following prices:
Scheme Cost of Flat Dt. Of Completion
------- --------- -------------
In (Rs.) Anukampa - GF 3,35,000/- December, 1993 HIG - FF 3,20,000/- December, 1993 Four -SF 3,20,000/- December, 1993 Storied - TF 3,25,000/- December, 1993
7. It was also their contention that since the houses were booked under the Self Financing Scheme (SFS) payment by instalments was linked with the progress in construction. It is their contention that till date, the flats are not ready for being handed over in spite of expiry of seven years from the scheduled date of December, 1993, this in spite of repeated assurances given by the GDA to the Complainant Association and to the National Commission. It was also their contention that for no fault on their part, final costs of the flats were increased to Rs. 9.30 lakhs for Ground Floor, Rs. 8.45 lakhs for First Floor and Second Floor and Rs. 8.73 lakhs for Third Floor. On their intervention with the Competent Authority of GDA, the prices of the flats have been brought down to Rs. 7.50, 6.70 and Rs. 6.99 lakhs, respectively. It is true that GDA has agreed to pay interest at the rate of 18% on the deposits made by the Members till 31.3.99 but this does not cover their main ground of contentions that the possession of the flats be given/handed over immediately and the arbitrary increased price be limited to the scheme given out in the brochure. It is their contention that the GDA be directed to hand over the possession of the flats completed in all respects based on the prices given in the brochure. The learned Counsel for the Complainant drew our attention to 1997 (10) SCC 339 wherein according to him, the allottee is not liable to pay interest on account of non-payment when the flats are not completed within the stipulated time. He also drew our attention to 1995 (3) SCC (1) Para 9 in which it was held that:-
"The final cost should be proportionate to the approximate or estimated cost mentioned in the offers or agreements. The High Court was justified in saying that in such circumstances, the Authority owed a duty to explain and to satisfy the Court, the reasons for such high escalation. We may add that this does not mean that the High Court in such disputes, while exercising the writ jurisdiction, has to examine every detail of the construction with reference to the cost incurred. The High Court has to be satisfied on the materials on the record that the Authority has not acted in any arbitrary or erratic manner". He also drew our attention to 1997 (9) SCC 372 in which the Hon'ble Supreme Court held that escalation charges can be claimed only on the basis of the contract between the parties. In the present case, there was a stipulation that the escalation charges would be calculated on the basis of basic Price Index. The escalation costs would be limited to that extent only. In the present case, the price worked out by the GDA is not based on the relevant clause in the contract to this effect. It was argued by the Complainant that "the allottees are entitled to compensation for the delay ont he part of the Housing Board, which has not been satisfactorily explained to the Court or to the Tribunal from the date on which the possession was liable to be given". 1994(1) SCC 243 Lucknow Development Authority v. N.K. Gupta. It was also argued that "the object of the Act cannot be defeated on the ground that the Housing Board is a public authority. public authorities are as much bound by the law as any other private person". 1994 (1) SCC 243, Lucknow Development Authority Vs. N.K. Gupta.
8. On the other hand, it was argued by the Counsel for the Opp. Party No.1 that initially the complaint was filed for 185 persons and which was enhanced to 199 persons whereas the actual figure of the members of the Association is 205. According to him, these are different cases which have been clubbed together as the registration of the Association is after December, 1993, hence this Court should not entertain the Complainant's complaint. It was also their contention that the case involves complicated question of fact and as such it should not look into this complaint as it was originally filed for not handing over of the possession of the completed flats and payment of interest of interest @24% from December, 1993 till the date of possession and the Commission should limit its inquiry only to the prayers made in the complaint. It was also argued by the learned Counsel for the GDA that even though no such prayer was made by the Complainant in the original application but this Commission got into the question of pricing and issued the uncalled for interim directions for the chart, indicating the pricing as also the increase in price on different work. According to the GDA, this Commission cannot go into the pricing of the flat as determined by this Commission in Housing Board Haryana Vs. Kartar Singh of Hissar (1) 1995 CPJ Page 7 (NC). He also relied on this Commission's Case - Cosmic Software Vs. New Okhla Industrial Development Authority reported in Volume II 1994 page 116 (NC) wherein a view was taken that where the contract itself contemplates refixing of the price and is refixed after completion of the work, thus the price escalation is no deficiency in service. Reliance is also placed on Indore Development Authority Vs. Sadhna Aggarwal reported in 1995 Volume III SCC Page 1 wherein the Hon'ble Supreme Court upheld 100% escalation. They also relied on the case of D.G.& T.R. Vs. DDA reported in (1) 2000 CPJ 7 (MRTPC) in which MRTP had taken the view that there is no unfair trade practice on the part of the Authority if the escalated price is charged by the Authority. He also relied on the decision of the Hon'ble Supreme Court Bareilly Development Authority Vs. Ajai Pal Singh reported in (1989) 2 SCC 116 and DDA Vs. Pusphedra Kumar Jain 1994 Supp 3 SCC 494. It was argued that the apartments were ready for possession in November, 1999 and the only thing left was, as per their affidavit dated 6.12.99, to fix the date for handing over the possession of the flats subject to the willingness of the Members of the Complainant Association to deposit the dues as per the schedule and enter into the execution of the lease agreement by depositing the stamp papers. It was argued by the learned Counsel of the GDA that the Commission repeatedly passed interim orders in an unprecedent manner in the original complaint which are contrary to the principles of law laid down by the Hon'ble Consumer Forums that the Consumer Forums have no power to pass interim order in the original complaint. 1994 Vol-II CPJ (SC) Pg. 7. It is his contention that perhaps because of these orders these allottees have been defaulters continuously. It is their contention that the allottees are defaulters and as per the law laid down by the Hon'ble Supreme Court, the GDA cannot be compelled to deliver the possession. He has also relied on the decision of the Hon'ble Supreme Court in the case of Prashant Kumar Sahi Vs. GDA reported in 2000 (4) SCC 120, where the allottee had not tendered scheduled instalments, the Authority was found to be well within its right not to deliver the possession and to demand penal interest on the balance amount from the due dates of instalments. Opp. Party No.1 relies on Clause 3.30 read with 16.40 of the brochure for the purpose of costing and the power of the GDA to increase the cost as per contrct. Clause 12.00 was relied upon for the purpose that after possession lease has to be executed. Clause 13.00 was relied on to show that the possession was possible only after the full payment was made. Clause 15.00 was relied on to show that no guaranteed period was indicated to hand over possession of the flat but this clause became irrelevant because appreciating delay itself on the part of GDA, interest @ 18% has already been granted by the GDA to each of the allottee on their deposits till 31.3.1999 and thereafter possession was offered by GDA but is being avoided by the Complainants. It was the contention of the GDA that the allottees/members of the Complainant Association have been avoiding to take possession on one pretext or the other i.e. by challenging tyhe pricing or by challenging the status of construction or by pointing out deficiencies in the construction but the fact remains that several similarly situated allottees have taken possession of their respective apartment in the same very scheme. The GDA's contention is that Complainant be directed to take possession of the respective flats by depositing the amount as demanded by the GDA failing which they are at liberty to take back their money along with interest @ 12% as directed by Hon'ble Supreme Court in the case of GDA Vs. G.S. Anand.
9. We have perused the material on record and also heard the arguments. Before going into the merits of the case, it is necessary to dispose of the preliminary objections of the Opp. Party No.1. Their first objection is that the Complainants have themselves registered in the year 1995. Subsequent to the service rendered by the answering Respondent to the allottees. Section 2 (b) defines the Complainant; Sub-section (ii) of Section 2(b) reads as follows: "Any voluntary Consumer Association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force". It could not be the intention of the legislature that the group coming into existence before any specific cause of action alone are eligible under Section 2(b) (ii) to file a complaint. That would be a too narrow depication to read. There are any number of examples where welfare associations are normally formed after taking possession of the flats to product and promote the common interest of the users. The Complainants are completely covered by the definition given under 2(b) (ii) of the Act, hence this objection of the Opp. Party No.1 is not tenable. In the light of the above, the second objection that the individual allottee should approach the appropriate forum in the light of the pecuniary jurisdiction is also not maintainable. Once the Complainants have come before this Commission on the basis of being a registered society and the pecuniary interest is more than 20 lakhs, which is the case here, the Complainant can be brought only before us, that is what has been done in the instant case. Hence this objection is also not tenable. We also do not share the view of the Opp. Party GDA that this case involves complex question of facts and details, hence fit to be agitated before a Civil Court. As a matter of fact, this Commissions has only to go into the question of deficiency of service which we find writ large on the face of it. Other details relate to ensuring adherence to the terms given in the Brochure issued by Opp. Party GDA. These can be gone into by this Commission, hence quite capable to deal with the matter here itself.
10. The facts as narrated above clearly show that the GDA while accepting the application for allotment of houses under the Indirapuram Scheme had not indicated any definite date as is apparent from the perusal of the brochure. But the record also shows that Clause 15 of the Brochure clearly says "possession is expected to be given early" but in the present case even though the scheme was floated in 1991 and at least four instalments were made albeit with minor delay, but today, i.e. after expiry of almost 10 years, GDA has not been able to substantiate their ability to hand over possession of flats complete in all respects, to the Complainants. The main issues involved are handing of the possession and the price to be charged by the Opp. Party No. 1.
11. A perusal of the record shows that through the affidavit, dated 28.4.97 filed by the Opp. Party No.1 they stated that of the 205 employees of the Complainant, 17 employees have collected their refund and to the remaining employees who are really consumers, possession will be handed over within a few months. This was the status on 28.4.97. By another affidavit, GDA states that the possession will be handed over by 31.3.1999. But the photographs showing the status of the flats filed by the Complainants, counter affidavit dated 20.10.99 filed by the Opp. Party No.1 enclosing some more photographs showing that they are complete and yet more photographs taken on 20.10.99 and filed by the Complainants which again show that the work is in progress and had no chance to be completed. In our view much work need to be done by the Opp. Party No.1 to complete the flats in all respects before they are found fit for giving possession to the Complainants.
12. In the present case, the contention of the Opp. Party No.1. is that since instalments were not made in time by the Complainants, they have no right to ask for the delivery of the possession of the flats. It is worth remembering that GDA was dealing through a Central Government PSU. As far as the payment is concerned it was the EIL who on behalf of its employees were making the payment in_bulk along with the list of the employees on whose behalf the amount/instalments were being deposited. Learned Counsel for the Opp. Party No.1 relied on the case of Prashant Kumar Sahi Vs. GDA reported in 2000(4) SCC 120. In the present case we are not inclined to order the delivery of the possession without any penal interest for the balance amount from the date of instalment. But it needs to be seen while the complainants are liable to be penalised for default payments but that does not necessarily mean that the the Respondent No.1 would not complete the work on site. In spite of clear assurances given at the highest level from the GDA and also the affidavit filed before this Commission, GDA has not been able to prove to our satisfaction that even today the flats are ready in all respects for handing over possession. GDA has already relied on Clause 15 of the brochure to show that no guaranteed period was indicated to hand over the possession of the flats to them but they admitted the same and further discussion becomes unnecessary because appreciating delay itself on behalf of the GDA, interest @ 18% has already been granted by the GDA to each of the allottees on their deposit till 31.3.99. It thus appears that delay in handing over possession on account of delay in completing the construction has been admitted and this does not remain the issue any more.
13. The other related issue is the price to be charged by the GDA. Originally, the flats were to cost between Rs. 3,32,000/- depending upon the floor to be given to an allottee. This was revised upwards to Rs. 8.73 lakhs- Rs. 9.30 lakhs and subsequently reducing to between Rs. 6.70 lakhs - Rs. 7.55 lakhs, respectively. Accordingly GDA filed the reasons for escalation head-wise along with affidavit dated 3.1.2000. As a counter to this, the Complainants have filed a revised costing based on the Basic Pricing Index through an affidavit dated 9.1.2000. The argument of the learned Counsel for the Opp. Party is that this Commission has no jurisdiction to look into the matter of pricing and in this regard he has relied on Cosmic Software Vs. New Okhla Industrial Development Authority reported in Vol.II 1994 page 116 (NC). Reliance is also placed on Indore Development Authority v. Sadhna Aggarwal reported in 1995 Vol.III SCC page 1. He has also relied on the decision of the Hon'ble Supreme Court reported in 2000 CPJ 7 (MRTPC) in which the Hon'ble Supreme Court held there is no unfair trade practice on behalf of the authority if the escalated price is charged by the authority. He also relied on 1989 Vol.II SCC 116 and 1994 Supp. 3 SCC 494. The decision of this Commission in the case of Housing Board of Haryana Vs. Kartar Singh is not applicable as in the instant case, we are neither going into the pricing policy nor in this case the possession was given to the allottees, hence this case does not help the Opposite Party's arguments.
14. Clause 3.30 of the brochure deals with the question of price which reads:
NOTE:
"Cost announced are only for the current financial year. Every year in April cost will be revised basing on the Basic Price Index for the year and appreciation of the cost will be limited to that extent only".
15. The learned Counsel for the Respondent wishes us to read clause 3.30 along with clause 12 - the latter dealing with executing the deed. Clause 13 was relied on to show that the possession was possible only after the full payment was made.
16. Clause 15 was relied on to show that no guarantee period was indicated to hand over possession of the flat but this clause became irrelevant. As discussed earlier, delay in handing over possession has been admitted by the GDA for which the GDA is compensating the allottees with interest @ 18% on the amounts deposited by the allottees. Clause 12 is of no real use to the Opp. Party - GDA at this stage, as the stage for execution of sale deed has not been reached till date. Clause 13 states that the possession is possible only after full payment. It is not disputed that possession should be given after the full payment but the real question at what point of time was the GDA ready to give the completed houses for possession. Note to Clause 3.30 of the brochure categorically states that the escalation is to be based on the Basic Price Indexing. The chart showing escalation in prices under several Heads made available to this Commission by GDA is not supported by the figures showing even a distant co-relationship of their price escalation with the basic price index. On the other hand, the Complainants have filed the chart showing its co-relationship with the basic price index which are based on the price indexation of all the materials used for construction; they have relied on the date published by the Reserve Bank of India's Bulletin, based on Wholesale Price Index (W.P.I) and Consumer Price Inded (C.P.I.). This data/information made available which is more scientific and clearly in accordance with the terms of the Brochure has not been rebutted at any stage by the Opp. Party - GDA. According to the data supplied by the Complainant worked out as per the terms of the contract, the price of each floor works out to as follows:-
Ground Floor Rs. 4,52,345/-
First Floor/Second Floor Rs. 4,30,161/-
Top Floor Rs. 4,37,556/-
17. Since it is based on the terms of the contract, there is sufficient ground to adopt this figure as a final price to be charged by the GDA.
18. The learned Counsel for the Opp. Party No. 1 has relied upon the judgment of the Hon'ble Supreme Court in DG & TR Vs. DDA reported in (1) 2000 CPJ 7 (MRTPC) wherein the Hon'ble Supreme Court has held that there is no unfair trade practice on the part of the authority if the escalated price is charged by the authority. The critical and crucial question in the instant case is not the escalation but the parameters of escalation. These parameters have been determined and clearly spelled out in the brochure in the "NOTE" to Clause 3.30 of the brochure which has already been reprocued above which states clearly "every year in April cost will be revised basing on the basic price index for the area and the appreciation for the cost will be limited to that extent only". In the same judgment quoted above, the Hon'ble Supreme Court has clearly held that "the applicant is bound to pay the escalated price in terms of the relevant clause contained in general terms and conditions incorporated in the brochure". At no stage or at any time, the Opp. Party, GDA has substantiated that the chart given by them showing the escalation in the price is in any way linked or based on the basic price index whereas the Complainants have come about the escalated price based on the form given in the terms of the brochure referred to earlier. Hence, we have no option but to accept the escalated price given by the Complainant based on the terms and condition s given out in the brochure which is binding to both the parties.
19. The argument of the learned Counsel for the GDA that the relief in terms of price has not been sought in the original complaint filed by the Complainant also does not, in our view, is maintainable for the simple reason that not until very late the Opp. Party GDA has ever whispered the escalation in price. Their written statement filed by the GDA as late as April, 1997 also does not contain or make any reference to any escalation price. It is apparent that since the escalated price was not known known to the Complainant, they could not seek relief through their complaint. The Opp. Party GDA itself informs the Complainant/allottees of the escalated price only in late 1998. The Complaint was filed in 1996. We pondered over the objection of the Opp. Party, GDA. If we do not address the question of pricing itself and ask the GDA to deliver the possession, the question of pricing could then become a matter for litigation between the parties as the price being asked by GDA is exhorbitantly high and is not shown to be in terms of the brochure. About ten years have passed and possession is yet to be given; further litigation shall only delay the whole matter further. Therefore, keeping in view the facts and circumstances of this case and in order to avoid multiplicity of litigation, the Commission decided to look into this aspect as well.
20. Deficiency of service by GDA is writ large and they cannot absolve themselves of the responsibility for the harassment and inconvenience caused to the allottees.
21. In the light of the discussions above, we find that the interest of equity and justice, GDA be directed to hand over the possession of the completed flats within three months from the date of this order on the following terms:
I) The Floor-wise price be fixed on the basis of Original/Booking price plus escalation linked to the Basic Price Index. Since the Complainants have already worked out this price, taking into consideration the figures upto March, 1999, this be updated by adding the figures upto December, 2000 and then arrive at an escalated price which will be the final price to be paid by the allottees;
II) Interest @ 18% shall be payable by each of the allottee to the GDA for the delay in payment of instalment for the period - when the instalment was due and when it was actually paid; and III) Interest @ 18% as already admitted, to be paid by the GDA upto March, 1999, be extended upto December, 2000.
22. Even though clear deficiency of service is observed on the part of GDA, we are not inclined to give any other relief or compensation sought by the Complainant.
23. In our view, this will settle the long standing dispute between the Complainants and the Opposite Party No.1.
24. No order as to costs.
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