GEORGE THOMAS vs GHAZIABAD DEVELOPMENT AUTHORITY

THE complainants have filed this Original Petition against the Ghaziabad Development Authority and its officers seeking directions to hand over possession of the constructed and completed flats as per the specifications contained in Indira Puram Scheme No. 559 of each of the complainants and to further pay interest at the rate of 24% p.a. from the 31st December, 1992 till the date when possession of the completed flat was to be given to the complainants or in the alternative a direction to pay damages at the rate of Rs. 350/ - per sq. ft. being the difference between the cost of an accommodation at the time of booking in the year l989 present cost plus interest at the rate of 24% from the date of complaint.

THE controversy has arisen out of the following facts: The Ghaziabad Development Authority (hereinafter referred to as the Authority) announced "Indira puram Scheme No. 559" for construction of certain houses. The registration was opened on 27.6.1989 and closed on 31.7.1989. The salient features of the Indira Puram Scheme No. 559 (hereinafter referred to as the Scheme) were as follows: "(i) The application forms were priced at Rs. 25/ - and were to be submitted on or before 31.7.1989. (ii) The approximate covered area of the proposed flat was contained in Table I of the said Brochure bearing the title "Indira puram Apartments on Hire Purchase." The Code for the said Scheme was No. 559 and it contained six categories of the constructed flats beginning from One Room Apartments (with bath and toilet) for the price of Rs. 1.60 lakhs, to composite Four Rooms Apartments priced upto Rs. 7.25 lakhs. The construction was to be done in prime land very close to Delhi. (iii) The Indira Puram Scheme contemplated a specific payment plan in Clause 3.40. The payment plan comprised of an initial payment of 10% of the price as registration deposit, followed by another payment of 15% of the total price as reservation amount, aggregating in all to the payment of 1 /4th of the total price of the flat at the stage of the reservation letter itself. Out of the remaining 75% of the price, 40% thereof (i.e. 30% of the total price) was to be paid over the next 3 years in equalized 6 monthly instalments with a built in annualized interest of 15 per cent. It was at this stage upon payment of 55% of the total price that the possession of the fully constructed flat was to be handed over to the complainant. (iv) The balance 60% of the remaining 75% (i.e. 45% of the total price) was to be paid thereafter in subsequent monthly instalments for the next 15 years while the allottees enjoyed the possession of the flats. Interest at 15% p.a. was built into each one of the instalments as well. (v) The provisions dealing with interest are Clauses 3.50 and 3.60, and are being set out for the sake of Convenience: ''3.50 INTEREST PAYABLE ON INSTALMENTS No interest is payable on instalments under Self Financing Schemes and 15% interest is payable on instalments under Hire Purchase Scheme. 3.60 PENAL INTEREST If the amount payable to Ghaziabad Development Authority are not paid within the prescribed time limit, penal interest at the rate of 18% per annum shall be payable alongwith the payable amount.'' (iv) There were several onerous conditions of eligibility set out in para 4.00 which are also being extracted : ''4.00 ELIGIBILITY 4.10 The applicant must be a citizen of India. 4.20 He/she should have attained the age of majority. 4.30 The applicant must not own any, residential house or plot in full or in part, on lease -hold or free -hold basis in Ghaziabad either in his/her own name or the name of his/her, wife/husband or in the name of his/her minor or dependent children. If, however, individual share of the applicant in the joint owned plot or land under the residential house less than 62.7 Sq. Mtrs. (75 Sq. Yds.) an applicant for the registration of house /plot can be given. 4.40 Only one house/plot will be allotted to the applicant in his/her (husband/wife) name or in the name of any dependent member of the family. 4.50 Persons who are already registered with the GDA under its various schemes can also get themselves registered under this scheme by paying the full amount fixed for the scheme. However, for allotment purposes, they will be considered at par only with others in this scheme. These Codes are to be filled in this application form.'' (vii) Clause 13 contained the commitment that the possession of the flat shall be given to the allottees after the payment of the amounts specified as payable under the said Indira Puram Scheme viz. 55% of the total price. Clause 13.11 deals with the possession of the flat by the allottee : ''13.11 Possession of the house shall be given to allottee only after the amount which is payable before possession of house has been deposited by him/her in Hire Purchase. In case houses are ready before all the instalments are due, the allottee has to pay the balance instalments due before possession in lump -sum. This provision relating to possession has to be read alongwith Clause 15, namely time of completion of house which reads as follows: 15.00 TIME OF COMPLETION OF HOUSE Possession of land is expected to be given to the allottees within two years. Houses are expected to be completed within two and half years.''"

The complainants applied under the scheme for allotment of flats on the basis of the firm commitment made by the Authority and made payments as provided under the scheme. It is the case of the complainants that combined reading of Clauses 13 and 15 makes it clear that each of the complainants were entitled to obtain possession latest by December, 1992 upon the payment of 55% of the total price. In these circumstances, the amount aggregating to 55% of the final purchase price was paid by the purchasers to the Authority. The aggregate amount collected by the Authority from complainants was about Rs. 45 lakhs. According to the complainants the period stipulated for handing over possession expired in the month of December, 1992. They made representations in writing to the senior officers of the Authority and also impressed upon them to deliver the possession as assured, but with no results. According to the complainants, there was no specific demarcation, location or identification of the buildings where the flats were to be constructed. It is further stated by the complainants that from the month of August/ September, 1994 some of the complainants started receiving a peculiar letter sent by an officer of the Authority wherein it was stated that in view of certain problems which remained unidentified, the opposite party was unable to allot apartments in Indira Puram No. 559 Scheme. Option of five other schemes were given with the price of the flat varying from Rs. 3.60 lakhs to Rs. 6.35 lakhs. No particulars of the place or the area where the proposed new schemes were being planned or the particulars of the proposed new scheme or the period within which flats were to be allotted was indicated. The case of the complainant is that there is a total deficiency in service by the Authority and amounts to clear admission of gross and wholesale defect and deficiency by the Authority despite having received consideration there for. The gross deficiency of service has to be viewed in the context of stringent and onerous conditions of eligibility including the condition that the allottee should not own any other land in Ghaziabad either in his own name or in the name of his/her spouse etc. As a result, due to harsh eligibility conditions, the complainants did not even get themselves registered in any other such scheme, many of which were floated by reputed private builders like the Unitech, the Ansals, etc. The opposite parties have made a solemn representation, and the complainants having acted on the said representation and having changed their stand and collectively deposited about Rs. 45 lakhs, the respondents are now estopped from going back on their solemn representation and promise handing over physical possession of the fully constructed flats. Under these premises the above noted reliefs were claimed by the complainants.

THE complaint is contested on behalf of the Authority. The stand taken by the Authority as disclosed in the Counter Affidavit is as under : The scheme was given up due to unavoidable reasons. In terms of the brochure of the scheme the Vice -Chairman of the Authority had the power to make changes in the scheme. The allottees were sent consent letters to get flats in other schemes of Indira puram Scheme in lieu of the Scheme No. 559. The complainant No. 1, George Thomas, at his request has been allotted a flat in Kaushambi Apartments and some of the complainants have also got their refunds. In view of the difficulties of completing the scheme, an offer was made to the complainants inviting their option for flats in other schemes. Those who have taken back the money deposited by them are no longer consumers within the meaning of the Act. In place of Apartments under Scheme No. 559, Indira Puram has been built at the place stated and it is located at the back side of Kaushambi. Due to certain unavoidable reasons, the flats could not be bull t under the scheme and consent letters were sent to the allottees on 13th May, 1994 offering them flats in other schemes of Indira Puram. According to the orders of the Vice -Chairman, refunds under the scheme would be without deduction and without interest. No harassment has been caused to the complainants by the opposite parties

WE have heard the learned Counsel for the parties. No explanation has come forward on behalf of the opposite parties as to why the scheme was given up and abandoned. The stand taken by the Authority was that the scheme was given up due to unavoidable reasons. The complainant applied in the year 1989 and the possession of the flats to be delivered on 31st December, 1992. The complainants had paid 55% of the total price before 31st December, 1992. The opposite parties by letter dated 13th May, 1994 informed the complainants that due to certain problems they were unable to allot apartments in Indira Puram Housing Scheme No. 559. According to the complainants the purported option of five other schemes was given with the price of the flat varying from Rs. 3.60 lakhs to Rs. 6.35 lakhs. No particulars of the place or the area where the proposed new schemes were being planned or the particulars of the proposed new scheme or the period within which flats were to be allotted was indicated. Nothing was mentioned as to what had happened to the substantial sums of money lying with the Authority to the account of the complainants. After taking into consideration the totality of circumstances, we find there is deficiency in service on the part of the opposite parties in not constructing the flats and giving possession of the same to the complainants. No plausible explanation whatsoever has come forward as to why the Indira Puram Scheme No. 559 was abandoned. There was deficiency in service on the part of the Authority who informed the complainants after five years that the scheme had been abandoned. The complainants are right in their assertion that due to harsh eligibility conditions, they did not even get themselves registered in any other scheme many of which were floated by the private builders. The scheme was floated by the Authority to sub -serve the public interest to provide residential flats to the general public including the complainants at a reasonable rate. The Authority kept the money for nearly five years and thereafter informed the complainants that the scheme had been abandoned. The Vice -Chairman of the Authority passed an order that the refund of the amount would be without interest. In our opinion the order passed by the Vice -Chairman was highly Improper and unjust. The Authority had utilised the amount of the complainants all these years whereas the complainants had been wrongly deprived of the use of the amount which was deposited by them with the Authority. If the complainants have to find out a similar premises, they have to pay a very high price. The complainants have to be compensated for the loss suffered by them on account of negligence and deficiency in service on the part of the Authority. The negligence on the part of the Authority is very apparent inasmuch as after collecting the required consideration, it neglected the construction of the flats. As a result, we allow this complaint. The relief of possession cannot be granted to the complainants as no flats have been constructed by the Authority in Indira Puram Scheme No. 559 However, they are entitled to the refund of the amounts deposited by them and compensation for the loss suffered by them.

THE claimants have claimed interest at the rate of 24% p.a. But, in our opinion, it will meet the ends of justice if the complainants are awarded interest at the rate of 18% p.a by way of compensation on the amount which the Authority is required to refund. This is also so, because under Clause 3.6 of the scheme reproduced above, the Authority recovers interest at the rate of 18% p.a. on defaults on the amounts payable to it. Therefore, the rate of interest that should be allowed to the complainant must be the same.

AS a result, we direct the Authority to refund the amounts paid by each of the claimants with interest calculated at 18% p.a. from 1st January, 1993 till the date of payment. The claimants who got the alternative allotment would be allowed interest at the same rate upto the date their amounts were adjusted in other schemes of the Authority. The claimants are also entitled to costs which we quantity at Rs. 10,000/ -. The Original Petition is disposed in the terms indicated above. Original Petition disposed of.