ANIL KUMAR vs Bulandshahar Khurja Development Authority

THIS revision petition challenges the order dated 03.02.2010 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (in short, ''the State Commission'') in First Appeals no. 1388 of 2002 (filed by Bulandshahar Khurja Development Authority - in short, ''the BKDA'') and 1125 of 2008 (filed by the petitioner herein - hereafter, ''the complainant''). By this order, the State Commission allowed the appeal filed by BKDA, dismissed the appeal filed by the complainant and imposed a cost of Rs.5,000/- on the complainant.

THE facts of the case are that the BKDA floated a housing scheme including a scheme for the economically weaker sections (EWS) of the society called the Yamunapuram Scheme under which the complainant, a person belonging to the EWS, registered himself by paying the registration fee of Rs.1,510/-. By letter dated 31.08.1991, the BKDA informed the complainant that a housing unit had been reserved/allotted for/to him under the EWS housing scheme and asked him to pay Rs.3,500/- by 10.10.1991. The complainant deposited this amount also by the due date. Thereafter, by its letter dated 11.06.1993, the BKDA asked the complainant to deposit Rs.5,000/- by 25.07.1993 before commencing the process of allotting/handing over possession of the housing unit. This letter also intimated that after this lumpsum payment, the complainant shall have to pay 30 half-yearly equated instalments of Rs.1,553/- each on 25th September and 5th March, beginning with the financial year 1993-1994. It appears that by its letter dated 27.10.1993, the BKDA allotted house no. C-182 to the complainant.

(i) The comPlainant filed his comPlaint before the District Consumer DisPutes Redressal Forum, Bulandshahar (in short, ''the District Forum'') in July 1993 alleging deficiency in service on the Part of the BKDA on the ground that it had increased the Price of the housing unit arbitrarily much in excess of Price indicated in its brochure inviting aPPlications for the YamunaPuram Housing Scheme. The BKDA contested the comPlaint on the ground, inter alia, that it had the necessary authority under the relevant rules governing houses constructed under its housing schemes to enhance the Price of its housing units and the allottees of such housing units were bound to comPly with the said Provisions. (ii) On aPPraisal of the Pleadings and evidence brought on record, the District Forum, by its order dated 06.05.2002, held the BKDA guilty of deficiency in service in that the latter was unable to establish by accePtable evidence the enhancement in the Price of the flat allotted to the comPlainant and directed it to hand over Possession of house no. C-182 within 60 days from the date of the order on Payment of the balance amount in instalments in the same manner as indicated at the time of making reservation in favour of the comPlainant. In addition, BKDA was directed to Pay cost of Rs.5,000/- within the same Period, failing which it was liable to Pay interest @ 12% Per annum from the due date till realisation.

AGGRIEVED by this decision, the BKDA went up in appeal before the State Commission. By its impugned order, the State Commission allowed the appeal of the BKDA with the following observations: "As regards the enhancement of the price we are of the considered view that every Development Authority is well within its rights to raise the price of a house of course subject to certain restrictions - one of them being that it should be justifiable as per cost of construction, etc. In the case in hand, Mr. A. K. Mishra, learned counsel appearing for the Development Authority has submitted before us that the rate of compensation of the acquired land determined for payment to the farmers/owners of the land on which Yamunapuram Housing Scheme was floated had been enhanced by court of competent jurisdiction and it was in the light of this enhancement that the Development Authority had no option but to increase the price. True that the relevant papers had not been filed before us or before the District Forum below but it was not essential to do so as the complainant had himself failed to carry out the terms and conditions of the allotment. He being a defaulter was not entitled to any benefit under the scheme or act. We are, therefore of the decisive view that the impugned judgment dated 06.05.2002 is not sustainable. In the result, this appeal stands allowed. Accordingly, the appeal is hereby allowed with costs which we quantify at Rs.5,000/- and the judgment dated 06.05.2002 passed in complaint case no. 282 of 1993 by the District Consumer Forum, Bulandshahar is hereby quashed."

AS noted above, the complainant had also filed an appeal against the order dated 22.05.2008 passed by the same District Forum in execution proceedings initiated by him. The complainant moved this execution application during the pendency of the appeal filed by the BKDA. The District Forum dismissed this application in view of the interim stay order dated 06.05.2002 granted by the State Commission while considering the appeal filed by BKDA and consequently the State Commission dismissed the complainant''s appeal (no. 1125/SC of 2008).

WE have heard Mr. Lav Kumar Agarwal, learned counsel for the petitioner/complainant and Mr. Sunil Kumar, learned counsel for the BKDA and considered the documents brought on record.

THE revision petition has been filed after a delay of sixty days. On consideration of the application seeking condonation and after the petitioner/complainant had paid cost of Rs.5,000/- to the respondent/BKDA, this delay was condoned. Further, in compliance of our directions dated 23.05.2011 and 24.01.2012, the BKDA filed a copy of the judgment of the reference Court against the order of the Special Land Acquisition Officer for acquisition of land for the Yamunapuram Scheme as well as an affidavit of an officer of the BKDA seeking to furnish explanation for enhancement of the price of the flat.

IN his submissions, learned counsel for the petitioner took preliminary objection to considering the additional documents which we had directed the BKDA to file on the ground that no evidence/ documents could be considered at the stage of the revision petition. The proposition that a revision petition has to be decided on the basis of the pleadings, evidence and documents filed before the District Forum and the State Commission in accordance with the provisions of section 21(b) of the Consumer Protection Act, 1986 (''the Act'') is valid. However, the directions of this Commission in this case were mainly to ascertain the facts underlying the increase in the price of the flat allotted to the complainant. In any case, it is settled law that the Consumer Fora cannot examine the pricing of housing units constructed by housing development entities, including the statutory authorities, unless the actual pricing is shown to be against the declared criteria/terms, if any. Hence, the impugned order cannot be faulted on that count.

IN its written version filed before the District Forum, the BKDA has clearly admitted that if the petitioner/complainant was unable to pay the enhanced price of the housing unit allotted to/reserved for him, he was entitled to get his reservation cancelled and seek refund of the amount deposited by him in accordance with the rules of the Authority. On the other hand, it is seen from the order of the State Commission that the allotment of the house in question (C-182) in favour of the petitioner/complainant had been cancelled on account of his default in paying the stipulated amounts and the house had been allotted to another person before the order dated 06.05.2002 of the District Forum was passed and interim order dated 26.02.2003 was issued.

FROM the documents brought on record, it is also clear that the BKDA itself deviated from the terms of payment by the allottees under the EWS Housing Scheme that were published initially in its brochure. In the brochure, the estimated cost of EWS Scheme house (consisting of one room, cooking space and one toilet-cum-bathroom, on 400 sq. ft plot area) was Rs.18,000/-. The registration amount was Rs.1,510/-; the reservation amount was Rs.1,500/-; thereafter, the sum of Rs.5,000/- was to be paid in four equal half-yearly instalments and the balance amount in 15 years with interest @ 8% per annum. As against this, the complainant had to pay Rs.1,510/- for registration on 17.02.1989, Rs. 3,500/- as reservation amount on 10.10.1991 and thereafter Rs.5,000/- in lumpsum by 25.07.1993, in addition to thirty (30) half-yearly instalments of Rs.1,553/- towards the balance cost. Thus, except the registration amount, the terms of payment were altered unilaterally by the BKDA in a manner obviously detrimental to the allottees (including the complainant) without any clarification whatsoever. Hence, even if the right of the BKDA to enhance the cost of the housing unit on account of escalation in compensation for acquired land as well as cost of developmental works is conceded, the deficiency in service in so altering the terms of payment, even for allottees of the EWS Housing Scheme, without any prior notice or explanation whatsoever cannot be overlooked.

IN these circumstances, the order of the State Commission allowing the appeal of the BKDA and, on top of that, directing the complainant to pay cost of Rs.5,000/- to the BKDA cannot be sustained.

IN our view, the interest of justice and equity would be served if the revision petition is partly allowed, the order of the State Commission is set aside and the BKDA is directed to refund to the petitioner/complainant the amount deposited by him with interest @ 12% per annum thereon from the dates of respective deposits and cost of Rs.10,000/- for all proceedings so far. We order accordingly. This payment may be made within four weeks from the date of this order, failing which the entire amount (including cost) shall carry further interest @ 15% per annum from the date of this order till realisation.