GUJARAT HOUSING BOARD vs DATANIA AMRITLAL FULCHAND

THIS is an appeal against the order of the State Consumer Disputes Redressal Commission, Gujarat at Ahmedabad dated August 27,1991 by which the complaint filed by the present respondents was partly allowed and the Gujarat Housing Board (for short the Board) was directed to refund to each of the complainant, the excess amount recovered by way of member''s contribution together with 15 per cent per annum interest on the said excess amount from the date of payment by the individual complaint till refund by the Board. The Board was also ordered to refix the amount of instalment at Rs. 635/- as was originally fixed by the Board instead of Rs. 745/- re-fixed by the Board and to refund whatever excess amount or the differential amount between Rs. 745/- and Rs. 635/-might have been paid by the individual complainant, together with interest on such differential amount at the rate of 15 per cent annum from the date of respective instalment till refund thereof by the Board. The State Commission also determined the book value of the fait at Rs. 70,000/- for all purposes and each of the complainant was also allowed Rs. 200/- by way of costs. The Board was directed to implement the above order within eight weeks from the date of the order.

FEELING aggrieved by that order, the Board has come before this Commission by way of this appeal. The facts of the case as appear from the record are that the Board floated three schemes; one of the schemes was for construction of 312 houses for Middle Income Group persons at a tentative price of Rs. 70,000/-for each house. It was so disclosed in the brochure. We are not concerned with the other two schemes. The five complainants joined the MIG Scheme relating to 312 flats and paid the initial deposit of Rs. 10,000/- each as stipulated in the brochure. The balance price was to be paid in instalments of Rs. 635/-each spread over a period of thirteen years by each of the complainants. The allotment letters were issued to each of the complainants. They were allotted flats on the first floor. However, as each of them wanted a flat on the ground floor, each of them made an application to the Board for allotment of a flat on the ground floor, stating that they wanted transfer to the ground floor, if available. On the receipt of the said applications from the five complainants, the Board vide its letter dated January 13,1989 accepted the applications and allotted the flats to them on the ground floor. By that letter the Board further demanded a sum of Rs. 1,000/- by way of transfer fees from each of the complainants. Each of the complainants paid the said amount. In the meanwhile, the complainants were waiting for an order of possession by way of transfer. For about one year, the complainants did not receive any communication from the Board for handing over possession of the flat allotted to each of them. Ultimately by letter dated March 7, 1990 the Board informed the complainants about the allotment of particular flat to the particular complainant and recasted the value of the fait so allotted at Rs. 81,600/- (in the Memo of Appeal, the revised price is mentioned as Rs. 81,000 for each flat). At the time of taking possession of the flats, the complainants did not raise any objection in regard to the price. They are still in possession of the flats. It may be mentioned here that the instalments were also revised from Rs. 635/- to Rs. 745/- spread over for a period of 13 years.

IT appears that the complainants issued a registered notice to the Board stating that as there was a delay in handing over the possession of the flats, they had suffered loss of rent and interest on capital. It was also stated in the notice that the price was orginally fixed at Rs. 70,000/- and the same could not be revised to Rs. 81,600/-. They asked for the refund of the excess price paid. (According to the Board, it has not received any such notice). Thereafter, the complainants have filed the complaint before the State Commission claiming the reliefs.

THE complaint was contested by the Board by filing a counter affidavit. From the order of the State Commission, it is not clear what pleas were taken by the Board in its counter. However, the order shows that the Board has alleged that there was some dispute between the Board and Ahmedabad Electricity Company with respect to some grid line passing over the flats. In the Memo of appeal it is explained that there overhead high tension lines and as per the regulations of the company, certain portions of the buildings had to be demolished and thereafter only the electric connection could be obtained. After following the due procedure and making the premises complete the possession was given to the present complainants. It may be mentioned here that in the Memo of Appeal the Board has alleged that the Ahmedabad Electricity Company had informed the Board by its letter dated 6th September, 1988, to pull down the premises of Block No. 18 and Block No. 19 (one room of the top floor of both the Blocks) to avoid accidents because the high tension line of 132 KV was passing over these two blocks. According to the complainant respondents the Board had not taken proper care and caution while constructing these flats and due consideration was not given to the rules and regulations of the Electricity Company and thus there was negligence on the part of the Board.

WE have heard both the parties and gone through the records. The complainants have not been given any relief by the State Commission for the delay in the delivery of possession of the flats to the complainants and therefore, we need not go into that question. Moreover, the Board has explained the cause of delay in delivery of possession. It was due to the high tension line passing over the particular two blocks and the Ahmedabad Electricity Company had asked the Board to demolish a portion of these two blocks (one room of the top floor of each Block). After complying with that direction and completing the flats, the possession was delivered to the complainants on the ground floor. The complainants have not controverted the said allegation the Board in their reply to the Memo of appeal. Therefore, the delay in the delivery of possession has been well explained by the Appellant Board.

THE main dispute in the present case is whether the Board is entitled to revise the cost of the flats and whether the Fora constituted under the Act can go into that question? We are of the opinion that consumer Fora cannot question the pricing of the flat by a Housing Board of Society so long as the price is not fixed by any law. In this context, reference can be made to Premji Bhai Parmar and Others v. Delhi Development Authority and Others, 1980 S.C. 738. Though the case relates to writ jurisdiction under Articles 14 and 32 of the Constitution the observations made in that case are applicable to the present case. In that case, some surcharge was added to the price set out in the brochure. Each petitioner had paid the price and entered into possession of the allotted flat. All the petitioners in the writ petition contended that the Delhi Development Authority had levied and collected a surcharge as part of purchase price of the flats arbitrarily and without the authority of the law and has collected the same from them in violation of its object of functioning on ''no profit no loss, basis and thereby made a huge profit. The Court remarked that: "In price fixation executive has a wide discretion and is only answerable provided there is any statutory control over its policy of price fixation and it is not the function of the Court to sit in judgment over such matters of economic policy as must be necessarily left to the Government of the day to decide. The experts alone can work out the mechanics of price determination; Court can certainly not be expected to decide without the assistance of the experts, (see Prag Ice and Oil Mills v. Union of India, (1978) 3 SCR 293 at P. 330)." It was also remarked: "They were advised by the brochures to look at the flats before going in for the same. They were lucky enough to get allotment when the lots were drawn. Each one of them was allotted a flat and he paid the price voluntarily. They are now trying to wriggle out by an invidious method so as to get back a part of the purchase price not offering to return the benefit under the contract, namely, surrender of flat. The Authority in its affidavit in reply in term stated that it is willing to take back the flats and to repay them the full price. The transaction is complete, viz., possession of the flat is taken and price is paid. At a later stage when they are secure in possession with title, petitioners are trying to get back a part of the purchase price and thus trying to re-open and wriggle out of a concluded contract only partially,,. There is no statutory obligation upon the Housing Board to sell the flat at the tentative price mentioned in the brochure. The price of the land, building materials, labour charges and cost of transportation, quality and availability of land, supervision and management charges are all variable factors that enter into price fixation.

Under the Consumer Protection Act (for short the Act) the question of price is relevant only under Sub-clause (iv) of Clause (c) of Sub-section (1) of Section 2 which reads as follows:" "(c) "complaint,, means any allegation in writing made by a complainant that " (iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods; with a view to obtaining any relief provided by or under this Act". That clause shows that the question of price is only relevant in respect of sale of goods. In the present case, we are concerned with Clause (o) read with Sub-clause (ii) of Clause (d) of the said Sub-section. "Price" is not relevant under those clauses.

IT has been the consistent view of this Commission also that a dispute regarding the pricing of a flat by a Housing Board, Society or a builder is not a ''consumer dispute. In this regard, reference can be made to the latest order passed by this Commission in Revision Petition No. 40 of 1992 titled Southern Investments v. A.S. Krishnamurthy (decided on 13th September, 1993) wherein it was remarked: "........pricing is not a factor which fails within the purview of Consumer Redressal Forum". That case related to the purchase of an apartment from a builder. One of the grounds in the complaint was that excess price had been charged from the complainant. The lower Forums had directed the refund of the alleged excess amount said to have been collected by the revision petitioner from the complainant. In the revision petition filed by the builder, this Commission set aside that portion of the direction.

IT may be mentioned here that in the present case, the Board has given a reasonable explanation about the reason for effecting an increase in the price of flats. As stated earlier, the Board had to pull down one room of the first floor in the above mentioned two blocks and then complete the flats. This must have caused increase in the cost of the flats. For the foregoing reasons, we hold that the State Commission could not have gone into the question of the price of the flats paid by each of the complainants. Consequently, it was also not within its jurisdiction to refix the instalment. Accordingly, we accept the present appeal, set aside the impugned order passed by the State Commission and dismiss the complaint. We make no order as to costs.