GURINDER BEDI vs DELHI DEVELOPMENT AUTHORITY

THIS is an appeal against the order dated 10th April/12th April, 1991 passed by the State Commission, Delhi in Case No. C-5/90 on the file of that Commission. The brief facts are that the present Appellant who was Complainant before the State Commission had got herself registered for allotment of two bed rooms flat in the Self-Financing Scheme with the Respondent -Delhi Development Authority (for short the DDA) on the terms and conditions given in the brochure issued by the latter and deposited an amount of Rs. 10,000/- as registration fee. She was allotted flat on the third floor in Sidharth Extension, Pocket C vide letter dated 4th August, 1982 at an estimated cost of Rs. 1,24,000/-. She deposited 90% of the estimated cost and according to the schedule of payment the balance of 10% was payable at the time when the letter of demand was to be issued. According to the complainant the letter of demand was to be issued within 24 months of the date of the allotment letter. In May, 1988 she received letter dated 10th May, 1988 from D.D. A. allotting her flat bearing No. 210-D at a price of Rs. 1,57,900/-. After giving a credit of Rs. 33,542/- on account of interest @ 7% per annum, according to the terms contained in the brochure payable by the DDA to the complainant on the deposited amount, she was required to deposit Rs. 13,042/-. According to the complainant this increase in the price of the flat was unwarranted. It was also pleaded by her in her complaint that the possession of the flat was delivered to her in September, 1988 and even at that time the flat was not fit for possession and it became fit for habitation in February/March, 1989. She, therefore, prayed for various amounts totalling Rs. 1,12,373/- details of which have been given in complaint.

THE claim was contested by the DDA on the ground that the disposal cost of the flat allotted to the petitioner had been worked out on the basis of the approved pricing policy of the Authority based on "No Profit No Loss Basis,,. It was explained that the main reason for escalation in the cost of the flat over the tentative cost worked out in 1982, was that though the construction of the flats was started in 1982 but the same could not be completed till 1988. In the said period there has been tremendous increase in the cost of material and labour. In reply to the complainant''s allegation that she had been discriminated against as the flats in the same area which were allotted in 1986 were allotted at the cost of Rs. 1,42,200/- and the appellant was not included in the draw for allotment of flats in 1986, DDA replied that the flats allotted in 1986 had been completed by then but the flat allotted to the complainant could not be completed till 1988 and moreover, there was only nominal increase in the cost taking into consideration the cost of flats which were completed in 1986. Both the parties filed affidavits before the State Commission supporting the respective contentions. On behalf of the DDA affidavit of Shri R.S. Verma, Executive Engineer was also filed stating that the possession of the flat was delivered to the complainant on 7th September, 1988 and at that time the flat was complete in all respects. One Shri R.L. Madan, Assistant Director, Self Financing Scheme, DDA had filed his affidavit to the effect that the possession letter in relation to the complainant was prepared on 20th July, 1988 and was issued on 4th August, 1988. He further stated that DDA issued 5th and final demand letter after the completion certificate from the Engineer.

THE opinion among the President and the Members of the State Commission was divided. The President held that the DDA was entitled to charge escalation price from the allottee if the building was not completed within a short period after the expiry of two years. According to him if the flats could not be completed within 2 years those should have been completed within a reasonable period thereafter or at the most within a period of three years. He, therefore, held that DDA was entitled to claim escalation cost in construction of the flats at the most for

PERIOD of three years from the date of allotment. Taking these factors into consideration that the estimated price of the flat in 1982 was Rs. 1,24,000/- and actual cost in 1986 was Rs. 1,42,000/-, the President assessed the rate of escalation at Rs. 450/- per month and consequently, he fixed price of the flat on 1st August, 1985 at Rs. 1,40,000/-. As the flat was allotted to the complainant at the price of Rs. 1,57,900/- the President of the State Commission held that the allottee was entitled to the refund of say Rs. 17,500/ - from the DDA. The complainant-allottee was also allowed interest @ 7% per annum on the above amountfrom8th June, 1988 till March, 1991 amounting to Rs. 3,350/-. Therefore, according to the opinion of the President, the complainant was entitled to Rs. 20,850/- with future interest @ 10% per annum from 1st August, 1991 till the date of payment. However, the remaining two members of the Commission namely, Shri B.L. Anand and Dr. (Mrs.) Avtar Pennanthur differred from the findings arrived at by the President. Shri B.L. Anand inter alia took the following facts into consideration: (i) That the parties were bound by the terms of the brochures and it was made amply clear in the brochure that the fifth and final instalment was to be issued separately and the same could include the possible increase in the tentative cost of the flat. (ii) In the brochure itself it was clearly explained that the cost indicated was provisional and was liable to be revised. (iii) The complainant accepted the possession without any protest and the complaint was filed at a later stage after fully availaing the services and thus it was nothing but an after thought and deserves no consideration. (iv) The escalation in the cost was beyond the control of the DDA. The price of steel, cement, marble, etc. were increased every year on account of inflation. He; therefore, was of the opinion that such type of unwanted litigation against the welfare organisation like DDA has to be discouraged and therefore, the complaint was liable to be rejected.

DR . (Mrs.) Avtar Pennathur, Member agreed with the views expressed by Shri B.L. Anand, Member and found no justification in the complainant''s prayer for the grant of Rs. 1,12,373/- and held that the complaint was misconceived. The net result of the order of the State Commission was that the complaint filed by the appellant herein was dismissed in the light of the majority view.

FEELING aggrieved of that order, the complainant has filed this appeal before this Commission. We have heard the parties and have gone through the records of the case carefully. We are of the opinion that the Forums constituted under the Consumer Protection Act, 1986 (for short the Act) are not empowered to go into the question of fixation of the price of the flats. Deficiency in relation to ''service, has been defined in Clause (g) of Section 2(1A) of the Act. It reads as follows: "deficiency,, means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.,, Charging of escalated price by the DDA, in our opinion does not fall within the definition of ''deficiency, in the rendering of service by the DDA. This point was considered by us in First Appeal No. 241 of 1991 decided on 7th October, 1993 wherein it was held that the pricing is not a factor which falls within the purview of the Consumer Disputes Redressal Forums.

HENCE , we are of the opinion that there was no statutory obligation upon the DDA to sell the flat to the complainant at the tentative price mentioned in the brochure and the escalation price claimed by it cannot form the subject matter of a dispute under the Act. The result is that the present appeal fails and the same is dismissed. We make no order as to costs.