HARIDWAR DEVELOPMENT AUTHORITY vs PAWAN KUMAR JAIN

THIS is an appeal against the judgment and order dated 4.9.1999 passed by the District Forum, Haridwar in Complaint Case No. 124/1995, Pawan Kumar Jain v. Haridwar Vikas Pradhikaran.

THE claim was filed seeking three reliefs therein. First for refund of Rs. 38,500/- along with interest which is said to have been realised by the appellant, Haridwar Development Authority. This relief has been allowed. The second relief as claimed, was that the Development Authority should rectify all the defects in construction. This relief has also been allowed. It is admitted by the parties that after the order was passed by the learned Forum on 4.9.1999, the defects have been removed. It was argued by the learned Counsel for the claimant that new defects have cropped up. The relief as granted has been satisfied and for the new defects, the claimant can file new complaint or go to the Civil Court.

The third relief was regarding the fixation of instalments. It is said for similar plots, the Development Authority has fixed instalments at the rate of Rs. 9,986/- whereas for the complainant, it has fixed instalment for Rs. 12,131/-. For this relief, the learned Forum directed that this is not within the competence of the Forum and the complainant can go to the Civil Court and may seek relief. It is said that the complainant filed a Civil Suit No. 123/2001 in the Civil Court and the suit has been decreed. We are not concerned with this decree.

SINCE, on two accounts we are not concerned, we have to take only the case of refund of Rs. 38,500/-. To scan the pleadings, the case of the complainant is that he booked a house in the Medium Income Group, the estimated value of which was Rs. 1,80,000/-. But the Development Authority charged Rs. 38,500/- more on the ground that the house allotted to the complainant is on the ground floor and some instalment has been given to him. According to the admitted case of the parties, the house is in three storeys and according to the complainant, the price of each flat in any of the storey was only Rs. 1,80,000/-. The learned Forum agreed with the contention of the claimant and allowed the refund of Rs. 38,500/- along with interest against which, the present appeal has been filed. We have heard the learned Counsel for the parties and gone through the records. The affidavit of the complainant dated 9.9.1997 itself, says in para 2 that price of Rs. 1,80,000/- was not the final price but it was the estimated price. It is true that in the registration book, it is not written that there shall be different prices for houses in each storey, but in this registration book also, the price as written is estimated price only. Therefore, the final price was still to be fixed. It is beyond our comprehension that any builder will charge equal price for any flat, it may be at any floor. Every builder charges higher price for the ground floor. Ground floor had been given to the complainant. There is specific evidence for this, and the papers also show that a sum of Rs. 1,80,000/- was the estimated price and that was not the final price. Now, what is the final price ? After the allotment the Development Authority issued a letter dated 24.7.1993 that the price of the house of the complainant shall be Rs. 2,18,500/- and this is for the reason, the house is on the ground floor. The complainant, himself after this letter entered into the house on 4.8.1993. He did not make any objection to it. Then the sale deed was executed. In this sale deed also, the price was shown to be Rs. 2,18,500/-. No objection whatsoever was raised. If the complainant was not agreeable to take at the price of Rs. 2,18,500/- then he should have made protest or should have refused to take the house. But still he got the sale deed and lease deed, therefore, he is stopped from again raising the plea that he has been forced to make extra payment.

EVEN otherwise, it is settled principle of law that it is beyond the jurisdiction of the Forum to decide about the price of a house. The National Commission in the ruling reported in III (2002) CPJ 154 (NC), Major Loknath Jaggi v. Chairman, Bhopal Development Authority, has very specifically held : "In our view, the District Forum was right in its appreciation of our order in the case of Joginder Bedi v. DDA, III (1993) CPJ 404, and deciding to regulate the matter to Civil Court. Hon''ble Apex Court has held in several cases that Consumer Courts cannot go into the question of costing of flats, hence, to this extent, the State Commission erred in granting relief by way of refund of Rs. 47,700/- charged by BDA as cost escalation."

The ruling is supported by the finding of the judgment of the Hon''ble Supreme Court. The learned Counsel for the Development Authority referred the ruling reported in I (1995) CPJ 7 (NC), Housing Board, Haryana v. Kartar Singh Etc. of Hisar, wherein, it was held : "We are of the opinion that under the Consumer Protection Act the pricing policy cannot be challenged after the allottee has taken possession of the house. It has been the considered view of this Commission that the question of pricing of the flat by Housing Authority or Board is not a consumer dispute. In this respect reference can be made to Gujarat Housing Board v. Datania Amritlal Fulchand & Ors., III (1993) CPJ 351 (NC). If any amount has been illegally charged by the Housing Board the proper Forum for the complainants is to recover it from the Housing Board through a Civil Court."

Similar is the view propounded in rulings I (1996) CPJ 285 (NC)=1996 NCJ 200, Delhi Development Authority v. Kamini Chopra, and II (2002) CPJ 41 (NC)=2002 NCJ 101 (NC), Shri Vidya Sagar v. The Chandigarh Housing Board. It has been held in the ruling reported in III (1997) CPJ 88 (NC)=1997 NCJ 648 (NC), National Consumer Awareness Group (Regd.), Chandigarh v. The Housing Commissioner, Punjab Housing Development Board, Chandigarh, that : "The price is determined by the Board in accordance with the procedure evolved by it and there is no statutory control over the fixation of the price and the same cannot, therefore, be interfered with. The pricing of flats built by the public authority or plots developed by the authorities is not a consumer dispute."

IN the ruling reported in IV (2002) SLT 247=2002 (2) ANJ (SC) 1057, Ratanlal Vachhani v. The Jabalpur Development Authority, the cost of the flat was agreed between the parties, it was subsequently enhanced. But in this case, there was no such agreement. There was only estimated cost, final cost was still to be settled. Therefore, this ruling shall not apply. Even otherwise, a relief was claimed in the Hon''ble High Court and the Hon''ble High Court has directed to approach the Supreme Court. However, the Supreme Court held that the order of the High Court was not correct but in this case, since the cost of the flat was not agreed upon, this ruling shall not apply. At least the dispute cannot be decided by a Fora. The complainant can approach the Civil Court or the Hon''ble High Court as the case may be.

THE complainant himself did not say what was the agreed price. According to him, also, Rs. 1,80,000/- was only estimated price. In view of what has been said above, this relief also could not have been granted by the Forum and the complaint should have been dismissed for this relief as well. In view of what has been said above, this appeal is to be allowed to this extent. ORDER The appeal is allowed to the extent that the order of the learned Forum dated 4.9.1999 is modified to the extent that the complaint for recovery of Rs. 38,500/- along with interest thereat is dismissed. However, the complainant is at liberty to file a civil suit in the Civil Court and in case, any such suit is filed our finding above, shall not in any way prejudice either of the parties. Cost of this appeal shall be easy. Appeal allowed.