RAJ KUMARI vs Ghaziabad Development Authority

MS. Raj Kumari, the complainant applied for L.I.G. flat under Code 562 in a Scheme known as Indrapuram Phase II Self Financing Scheme for M.I.G., L.I.G. flats launched by the Ghaziabad Development Authority (GDS in short) in 1989. The registration was kept open from 15.9.1989 to 16.10.1989. As per the representation made in the Brochure, the flats were to be completed within two and half years'' time i.e., upto April, 1992. The terms and conditions of the scheme required the complainant to pay Rs. 18,000/- towards registration charges alongwith the application. These were paid. Subsequently another sum of Rs. 18,000/- was paid towards reservation amount. Thereafter, the remaining amount was paid by way of six monthly instalments of Rs. 24,000/- each. After having paid the entire amount of Rs. 1.80 lakhs as per the annexure enclosed with the Brochure, the complainant made an enquiry from the respondent about the possession of the house. Despite repeated enquiries made personally as well in writing no satisfactory answer was given to her. Instead vide letter dated 10.3.1999 an alternative accommodation of EWS category of houses was offered to the complainant. This was stated to be in view of non-availability of flat in question. Approval was to be communicated to the complainee within one month from the date of the issue of the letter. On the aforesaid facts, the grievance of the complainant is that having received the entire amount and retaining it for a period of more than 7 years, the delayed offer made on behalf of the complainee and that too for an accommodation not in the same category, the complainee clearly indulged in unfair and restrictive trade practices in so far false mis- representation was made and unjustified cost was imposed on the complainant. It is thus, prayed that cease and desist order be passed and for having suffered harassment a suitable compensation may be allowed alongwith interest @ 24% per annum on the deposits as made. The possession of the allotted flat is also prayed to be handed over to her.

ON being satisfied that a prima facie case has been made out against the complainee a Notice of Enquiry was directed to be issued under Sections 36A, 36B(a), 10(a)(1) read with 36D and 37 of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred MRTP Act in short). The Ghaziabad Development Authority (hereinafter referred as respondent, denied the allegations as levelled against it. It has been contended that due to sudden and unavoidable circumstances, the possession of the L.I.G. flat could not be handed over to the complainant. The offer for an alternative accommodation was however made to the complainant. The latter was also offered refund of its deposits alongwith interest @ 5% as provided in the Brochure. The complainant accepted neither of the proposals and filed a complaint before the Commission. The respondent Authority is a public organization and undertakes to provide flats to the public at cost, contended the respondent. Therefore, no mala fides can be alleged against it. But for the circumstances it could have handed over the flat in question. The latter, therefore, could not be charged for having indulged in any restrictive or unfair trade practices for which it is required to pay compensation as prayed for against the respondent. On completion of pleadings, the following issues were framed : (1) Whether the respondent has been indulging in restrictive and unfair trade practices as alleged in the Notice of Enquiry ? (2) Whether the alleged restrictive trades practices are not prejudicial to the public interest ? (3) Whether the alleged unfair trade practices are prejudicial to the interest of the consumer/consumers generally ? Evidence on both sides was led in the form of affidavit and counter-affidavit supported by respective documents. The respective Advocates representing the parties reiterated their stand as taken in the written submissions.

We have carefully considered the rival submissions and have also gone through the supporting documents. No doubt it is on the representation of the respondent that the complainant not only applied for a flat but also paid the entire amount as demanded, there is, however, no material placed before us to show that the respondent made a misleading representation knowing fully well that there is going to be some difficulty in construction of the flats in question. This appears to have surfaced subsequently. It has also not been established that the Board has adopted deceptive practices for the purpose of promoting sale and use of the flats which is a necessary pre-requisite condition to be satisfied as held in the case of Rajasthan Housing Board v. Smt. Parvati Devi etc, reported in III (2000) CPJ 9 (SC)=VII (2000) SLT 50=JT 2000 (6) SC 237. On the other hand, being a public organisation it is stated to operate on ''no profit no loss'' basis. It is also not the case that despite availability of a flat of the category as allotted to the complainant, the same was not given to it and the respondent manipulated the conditions of delivery to impose unjustified cost on the complainant. Rather the offer for an alternative accommodation was declined by the complainant, may be rightly so as the flat was not of the same category. Therefore, the charge of unfair or restrictive trade practices has not been established on the part of the complainant.

AS per terms and conditions of the contract, the complainant was entitled to refund of its deposits alongwith interest @ 5% p.a. as also offered by the respondent. In this connection we may like to state that in case of Ghaziabad Development Authority v. Union of India & Anr., reported in II (2000) CPJ 1 (SC)=IV (2000) SLT 654=JT 2000 (7) SC 256, Their Lordships of Supreme Court have held that interest @ 12% would be reasonable and equitable. The judgment was delivered in the context of Indrapuram Scheme. Accordingly respectfully following the aforesaid judgment which is binding on us we would direct the respondent to refund the entire amount deposited with interest @ 12% p.a. from the date of deposits as made. This should be done within four weeks of the receipt of the order where after an affidavit of compliance may be filed within six weeks. In view of our conclusion that no unfair or restrictive trade practices has been established on the part of the respondent, no compensation for harassment and mental agony is allowable to the complainant. Otherwise also in view of the contract being commercial, no compensation for injured feelings is allowable as held by the Lordships of Hon''ble Supreme Court in case of Ghaziabad Development Authority v. Union of India (supra), in the present case which has been filed under UTPE No. 213/ 98 No order as to the costs on the facts and in the circumstances of the case. Application disposed of.