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2011(3) CPR 46
UTTAR PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, LUCKNOW
Bhanwar Singh, President and Mrs. Rachna, Member
S.G.M. Rizvi —Appellant
versus
New Okhla Industrial Development
Authority —Respondent
Appeal Nos. 744 and 745 of 2008
Decided on 2.3.2010
Counsel for the Parties:
For the Appellant:Mr. T.H. Naqvi, Advocate.
For the Respondent:Mr. Rajnish Kumar, Advocate.
IMPORTANT POINT
There is nothing wrong in calculating and including reasonable interest in tentative cost of flats and also make a provision for penal interest in case of default by allottees, in payment of their instalments.
Headnote:(i) Consumer Protection Act, 1986—Sections 2(1)(r), 15 and 17—Real Estate—Unfair trade practice—Delay in delivery of possession of flat , enhancement of cost and unfair trade practice of realizing substantial amount which was earmarked for lower income group of society and included in final cost of flats—Complaints dismissed by District Forum—Marginal delay of six months in handing over possession cannot provide any basis to deprive the Authority of its right to enhance cost at the time of determining final price—Matter pertaining to determination of final cost being well within right of Authority, complainants are not entitled to any relief—Impugned judgment affirmed. (Paras 5, 8 and 12)
(ii) Consumer Protection Act, 1986—Sections 2(1)(r), 15 and 17—Real Estate—Unfair trade practice—Delay in delivery of possession of flat , enhancement of cost and unfair trade practice—Cost of individual flat was advertised in public notice and specifically mentioned in brochure as well as in allotment letters—It was not necessary for Authority to disclose each and every count being charged as price of flat—Recital/ disclosure of tentative cost with rider regarding fixation of final cost subsequently at appropriate stage was sufficient notice to all concerned including allottees—Contention that allottees came to know about subsidy amount having been realized from them, subsequent to getting possession will not change the situation nor it will have any adverse bearing upon Authority’s right to fix cost-tentative as well as final. (Para 6)
(iii) Consumer Protection Act, 1986—Sections 2(1)(r), 15 and 17—Real Estate—Unfair trade practice—Price of a flat is assessed on the basis of future cost of construction—If allottee does not pay amount of instalments or in one lump-sum as might have been agreed between parties, his liability to pay penal interest is there—There is nothing wrong in calculating and including reasonable interest in tentative cost of flats and also make a provision for penal interest in case of default by allottees, in payment of their instalments. (Paras 9 and 10)
(iv) Consumer Protection Act, 1986—Section 24-A—Complaint —Delay—Defects in flat— Defects were pointed out more than one and half years after possession had been taken—Such belated complaint could not be taken notice of—If there were any defects they should have been pointed out at the time of taking possession and also mentioned in deed of possession and in that eventuality, allottees must have accepted delivery of possession under protest subject to removal of such defects. (Para 11)
Bhanwar Singh, President—these two appeal Nos. 744/2008 and 745/2008 have arisen out of the same judgment of March 18, 2008 whereby three complaints of Sri S. G.M. Rizvi, Sri Rajiv Raina and Smt. Anshul Agrawal were dismissed. All the three complainants had pleaded that in the matter of allotment of houses to them the New Okhla Industrial Development Authority had played unfair trade practice by realizing excessive price of the flats allotted to them. Sri. S.G.M. Rizvi was the allottee of Flat No. 26-D, Mansarovar Apartments, Sector-61 while Sri. Rajiv Raina was the allottee of Flat No. 25-C and the third allottee Smt. Anshul Agrawal had in her favour allotment of flat No. 26-C. The tentative cost of each flat was Rs. 15,71,000. The complainants deposited the entire price by way of instalments and obtained possession of their respective houses on 29.3.2000. According to the terms and conditions of the brochure the allottees were to be inducted into possession of flats up October, 1999 but there was about six months delay in handing over possession to them. Subsequently the Development Authority informed the allotteees vide its letter of March, 2004 that the final cost of the flats had been determined as Rs. 16,82,000. The complainants deposited the difference of the tentative and finally determined cost, however, under protest. They filed their complaints agitating against delay in delivery of possession, enhancement of the cost and unfair trade practice of realizing a substantial amount which was earmarked for lower income group of the society and included in the final cost of the flats. On the face of these pleadings the complainants stated that the Development Authority had committed deficiency in service.
2. The New Okhla Industrial Development authority contested all the complaints and asserted its right to enhance the tentative cost of the flats depending upon various factors. The authority had conceded that there was some delay in handing over possession of the flats. The authority determined the final cost on 31.3.2004 and realized the additional cost in accordance with the terms and conditions of the brochure.
3. The District Consumer Forum, Gautam Budha Nagar, having scrutinized the pleading of the parties and the documentary evidence filed by them recorded a finding that there was no deficiency in rendering service of providing flats to the three complainants. The delay in handing over possession being not unprecedented was held to be justified and likewise it was concluded that the authority had a right to determine the final cost of the flats. The District Consumer Forum also did not find any cogent ground to award interest to the complainants and since there was no evidence of the sub-standard material having been used in construction of the flats, request for compensation on the account of the defect in the flats was also rejected. On the basis of these findings, all the three complaints were dismissed.
4. Feeling aggrieved of the said judgment Smt. Anshul Agrawal filed Appeal No.745/2008 while Sri. S.G.M. Rizvi preferred the other Appeal No. 744/2008. In this way only two complainants preferred the two appeals in hand.
5. The first issue raised before us relates to the final cost of the flats being Rs.16,82,000 each as against the initial cost of Rs. 15,71,000. The difference emerges out as Rs.1,11,000 only. The third floor accommodation had a lesser increase of Rs. 72,000 only. Indeed the determination of the final cost three and a quarter years after the possession had been delivered appears to be somewhat delayed but since the increase is marginal i.e. less than 10%, it can be said to be justified. Although this Commission time and again has observed in its decisions that final cost should be determined by the Development Authorities/Builders within a reasonable time from the date of possession or from the date of the registration of the sale/lease deed, yet if satisfactory explanation for the delay in su
