National Consumer Disputes Redressal
Kartar Singh vs Delhi Development Authority on 19 September, 2007
Equivalent citations: I(2008)CPJ93(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. Appellant was the complainant before the State Commission, where he had filed a complaint alleging deficiency in service on the part of the respondent, Delhi Development Authority (DDA).
2. Undisputed facts of the case are that the appellant/complainant registered himself under the 6th Self-financing Scheme' by depositing Rs. 15,000 on 23.7.1985. He was not found to be successful in any draw of lots. When the respondent DDA started 'Self-Financing Registration Scheme' for retired/retiring public servants, the appellant/ complainant registered himself under the scheme in 1991 and was successful in the draw of lots held on 24.7.1992. After having paid the amount in two instalments, a letter of possession was issued on 3.6.1993 and actual possession was delivered on 22.8.1993. The consideration in respect of allotted house was fixed at Rs. 6,63,780 after catering for the amount already deposited by the complainant under the earlier scheme. It was the case of the complainant that price charged from him is much more than similarly placed allottee in the same area. It is in these circumstances that a complaint was filed before the State Commission. It was the case of the complainant that he has been charged Rs. 3,35,800 in excess as compared to similarly placed allottee which should be returned with interest along with compensation of Rs. 2 lakh. State Commission after hearing the parties dismissed the complaint. Aggrieved by this order, this appeal has been filed before us.
3. We see on record that on a representation made by the complainant and one other person before the Directorate of Public Grievance, Cabinet Secretariat, a reply was filed giving details of the costing in respect of the flat, allotted to the appellant/complainant. DDA also informed the complainant along with other person namely, O.P. Rajpoot, giving details of the basis on which final costing had been arrived at.
4. Issue before us is whether the price charged from the complainant against his allotment made is any way discriminatory as compared to the other allottee(s) in the same area during the same period?
5. Having heard the learned Counsel for both the parties and perusal of material on record two things emerge--firstly, that the comparison with similarly placed other persons in the same area cannot be sustained for the simple reason that the others were successful in the draw of lots way back in 1987-88 and had been making the payment in instalments and secondly, can a Consumer Fora go into the question of pricing?
6. As far as the first point is concerned, there is no dispute that the allottee with whom the complainant wants to compare himself, was successful in the draw of lot in 1987-88 and had been making timely payments of instalments under the 'Self-financing Scheme', whereas the complainant was successful only in 1992 and he was asked to pay the amount as per prevailing price.
7. When we compare the costing done in respect of the persons, i.e., allottees of flats E-5 and E-8, as brought out in the affidavit filed by the respondents before us, three differences in the costing are perceptible which have made material difference between the price charged from the other allottees, i.e., of flat No. E-5.
8. From the two allotment letters it is clear that while the appellant had paid nothing except the Registration charges of Rs. 15,000 at the time of earlier registration, the other allottee Shri Prem Kumar Dua had paid over 75% of the total cost Rs. 3,03,670 against the cost of the house of Rs. 3,93,500 and has also been a set-off on account of late construction. This is not the case in respect of the appellant. Basic difference as per affidavit of the respondent, appears to be on account of land price revision from Rs. 160 per sq. mt. to Rs. 975 per sq. mt. As per Policy of DDA which cannot be interfered as per law laid down by the Supreme Court in DDA v. Ashok Kumar Bahl and Ors. . The other difference is on account of free hold charges and actual period interest, details of which have been given in the additional affidavit filed before us, which remained unrebutted. When we see the details of costing filed along with the additional affidavit, we find that 'cost of 'equalisation of flat' and 'equalisation charges' are the same major difference is on the land rate charged as also the free hold charges as well as the actual period interest (API). The major difference is on account of land premium. As already stated earlier since this has been revised as per policy of DDA, we cannot go into the question of revised land premium. As far as the 'charges of free hold' are concerned, admittedly, the other allottee was allotted flat on 'lease-hold' basis whereas the appellant has been allotted flat on 'free-hold' basis. It is also not in dispute that while the other allottee had been making the payments of instalments as per terms, the appellant decided to purchase the flat on lumpsum basis and on request by the appellant, the DDA permitted him to pay the demanded amount in two instalments, which was done. In these circumstances, the appellant shall also be liable to pay actual period interest (API) to place him at par with the other allottee. As far as the second issue is concerned it is by now settled law that the Consumer Fora cannot go into the question of pricing as per law laid down by this Commission in the case of National Consumer Awareness Group (Regd.) v. The Housing Commissioner, Punjab Housing Development Board III (1997) CPJ 88 (NC), wherein it was held that:
9. The price is determined by the Board in accordance with the procedure evolved by it and there is no statutory control over the fixation of the price and the same cannot therefore be interfered with. The pricing of flats built by the public authority or plot developed by the authorities is not a consumer dispute.
10. It maybe pertinent to mention here that we directed the respondent to file an affidavit by way of evidence giving the details of costing especially with reference to the 'actual-period-interest'. This was filed along with detailed costing worked out in respect of the four allottees including that of the appellant along with resolution of the respondent Board authorising the DDA to charge the price of the land at the time of allotment. As a counter to this the appellant has also filed counter-affidavit but it is in negative terms and does not at any stage, meet the points parawise especially with regard to the 'actual-period-interest' brought on record in the form of affidavit by the respondent.
11. We have very carefully gone through the judgment of the Hon'ble Supreme Court in the case of Delhi Development Authority v. Pushpendra Kumar Jain 1994 Supp (3) SCC 494, in which the Hon'ble Supreme Court clearly held that what should be charged is the price at the time of allotment. It is the case of the appellant that while he was allotted flat in Novemberl992, the other allottee was issued letter of allotment of flat in December 1992, yet the latter allottee has been charged less price. After perusal of material on record, and contentions of the parties, we see no merit in this for the simple reason that the other allottee was successful in the draw of lots in 1987-88 and had been paying instalments as per terms from earlier years. In these circumstances, we are clearly of the view that two unequal situations cannot be treated at par in view of the circumstances already enumerated above.
12. We would also like to reproduce what the Hon'ble Supreme Court held in the case of Premji Bhai Parmod and Ors. v. DDA . Even though Hon'ble Supreme Court was dealing with a writ petition under Articles 32 and 14 of the Constitution, yet ratio of the judgment cannot be lost sight of. Their Lordship held:
A petition to the Supreme Court under Article 32 is not a proper remedy nor is the Court a proper Forum for reopening the concluded contracts with a view to getting back a part of the purchase price paid and the benefit taken. The DDA is covered by Article 12 and while determining the price of flats constructed by it, it acts purely in its executive capacity. But after the State or its agents have entered into the field of ordinary contract, no question arises of violation of Article 14 or of any other constitutional provision. In absence of any special statutory power or obligation on the State in the contractual field apart from the contract. The petitioners are bound by the terms and conditions of the contract. The camouflage of Article 14 cannot conceal the real purpose motivating the petitions, namely, to get back a part of the purchase price of flats paid by the petitioners with wide open eyes after flats have been securely obtained. Those who contract with open eyes must accept the burdens of the contract along with its benefits. Reciprocal rights and obligations arising out of contract do not depend for their enforceability upon whether a contracting party finds it prudent to abide by the terms of the contract. The jurisdiction under Article 32 is not intended to facilitate avoidance of obligations voluntarily incurred.
and goes on to hold that price fixation is within the discretion of the Executive with which Supreme Court ordinarily refrains from interfering. Ratio of the judgment, in our view, is that price fixation is within the discretion of the Executive in this case-DDA.
13. It is by now settled law that Consumer Fora can go into the question of 'pricing', it also does not amount to a 'consumer dispute' as per law laid down by this Commission in the case of National Consumer Awareness Group (Regd.) v. The Housing Commissioner, Punjab Housing Development Board (supra); Gujarat Housing Board v. Datama Amrit Lal Fulchand and Ors. III (1993) CPJ 351 (NC); Gurminder Bed v. DDA III (1993) CPJ 404 (NC), ,and most of other judgments of this Commission.
In the aforementioned circumstances we see no merit in this appeal, hence dismissed.