DIRECTOR GENERAL (INVESTIGATION AND REGISTRATION) vs DELHI DEVELOPMENT AUTHORITY

THE unfair trade practice enquiry has been undertaken on the basis of the complaint made by the applicant in the compensation application (the complainant for convenience). THE subject- matter of both the proceedings is allotment of a flat under the Self Financing Scheme (the Scheme for convenience) floated by and on behalf of the respondents. THE cause of action in both the proceedings is the omission on the part of the respondents in giving possession of the flat allotted to the complainant on account of non- payment of the final cost fixed by and on behalf of the respondents with respect to the flat in question. Since common questions of law and fact are found arising in both these proceedings, we have thought it fit to dispose of the same by this common judgment of ours.

THE facts giving rise to both these proceedings move in a narrow compass. THE complainant had applied for registration and allotment of a flat in the Scheme. Under the Scheme, the price of the flat was provisionally fixed at Rs. 4,77,200/- approximately. It was subject to the final cost as determined when the flats were constructed and made available for possession. It appears that the complainant in all paid Rs. 4,31,828/- till 20th April, 1992. THE respondents, by their letter of 21st March, 1994, demanded payment of Rs. 7,17,700/- as the cost of the flat as against the price of the flat fixed earlier at Rs. 4,77,200/-. THE escalation price in the sum of Rs. 2,92,512/- was thus demanded from the complainant. He thereupon made a complaint to this Commission charging the respondents with adoption of and indulgence in unfair trade practices within the meaning of Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (the MRTP Act for brief) on the ground of raising the price of the flat by nearly 3 lakhs and also on the ground that its possession was not handed over till the payment was made. THE Commission directed the DG to investigate into the matter and to submit his Preliminary Investigation Report (PIR). Apropos, the DG submitted his PIR with his opinion that the respondents were found guilty of adoption of and indulgence in unfair trade practices as alleged in the complaint. A Notice of Enquiry (NOE) thereupon came to be issued. THE respondents have filed their reply and have . resisted the proceeding on several grounds. It appears that, in the meantime, the complainant approached the High Court of Delhi challenging the decision of the respondents in claiming the escalated price of Rs. 2,92,512/- and also the omission on the part of the respondents in not handing over possession of the flat allotted to him on account of non-payment of the escalated price. It appears that pursuant to some interim order passed by the High Court of Delhi, the complainant paid the escalated price of the flat together with interest thereon to the respondents and obtained possession of the flat in question. Thereafter he has moved one application under Section 12B of the MRTP Act claiming compensation in the sum of Rs. 6,36,699/- by way of interest on the deposited amount and by way of damages for the mental agony and torture suffered by him. The respondents have filed their reply and have resisted the compensation application on various grounds.

It is not necessary for us to enter into various questions raised before us in this petition. It may be sufficient to note that, under the general terms and conditions for registration of application for allotment of a flat in the scheme in question, it has been clearly specified in Clause 2 thereof that the cost mentioned was a provisional one and the final cost will be determined at the time when flats were constructed and became ready for handing over possession and the concerned applicant will have to pay the cost of the flat as finally determined and demanded when the flat in question is constructed and ready for handing over possession. In that view of the matter, it is difficult to come to the conclusion that the respondents have indulged in any unfair trade practice by demanding the escalated price after determining the final price of the flat under the scheme in question.

A reference deserves to be made to the binding ruling of the Hon''ble Supreme Court in the case of Bareilly Development Authority v. Ajay Pal Singh & Ors., reported in AIR 1989 Supreme Court 106. In that case also the Bareilly Development Authority (BDA for convenience) had undertaken construction of dwelling units for people belonging to different income groups. In the brochure containing the terms and conditions it was mentioned that the cost mentioned in the brochure was only the estimated cost which was subject to increase or decrease according to the rise or fall in the price at the time of completion of such dwelling units. Subsequently, the BDA revised the cost of dwelling units and informed the registrants about the same and required them to pay accordingly. It was challenged on the ground that the cost demanded, as compared to the one advertised in the brochure, was much beyond the means of the petitioner and it was arbitrary. In that context, the Hon''ble Supreme Court came to the conclusion that the relations between the parties would be contractual in nature and the petitioners could only claim rights conferred upon them by the contract in the absence of any statutory obligations on the part of the BDA in the said contractual field. The aforesaid ruling of the Hon''ble Supreme Court has been followed by the High Court of Delhi in its Full Bench ruling in the case of Smt. Shilawati & Ant. v. The Delhi Development Authority & Anr., reported in 1991 (32) DRJ (FB) 403. The High Court of Delhi refused to entertain the petition against escalation of prices of dwelling units made by and on behalf of the Delhi Development Authority (DDA for convenience) in that case. The aforesaid rulings of the Hon''ble Supreme Court and the High Court of Delhi are obviously binding to this Commission in view of the Full Bench ruling of this Commission in the case of The Director General (Investigation and Registration) v. Holy Angels School, reported in (1998) 6 CTJ 129. In the present case, the DDA has been charged with adoption of and indulgence in unfair trade practice on the basis of the demand of the escalation price in the sum of Rs. 2,92,512/- and the omission to give possession till the payment in that regard is met with. The fixation of price is an executive decision as held by the Hon''ble Supreme Court in its aforesaid ruling in the case of Ajit Pal Singh (supra). It would not be open to this Commission to enter into that arena. 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. In that view of the matter, the respondents cannot be said to have indulged into any kind of unfair trade practices.

IN view of our aforesaid discussion, we are of the opinion that the respondents are not found guilty of adoption of and indulgence in any kind of unfair trade practices within the meaning of Section 36 A of the MRTP Act. IN view of this conclusion of ours, the respondents are liable to pay no compensation to the complainant. IN the result, both the proceedings fail. The NOE is accordingly discharged. The compensation application is accordingly rejected. There shall, however, be no order as to costs on the facts and in the circumstances of the case. Compensation Application rejected.