RAM KISHORE TTWARI vs G.D.A.

BOTH these appeals (No. 2592/98 and 2593/98) have been filed against the common judgment dated 21.9.1998 passed by the District Forum, Ghaziabad. As both these appeals arise out of the same judgment, they are being disposed of by a common judgment.

THE facts of the case, stated in brief, are that the complainant booked a flat in Kaushambi Apartment Scheme under self financing scheme on 30th November, 1988. THE cost of the house at that time was declared to be Rs. 3,00,000/-, out of which Rs. 30,010/- was deposited on the same day with the opposite party. THEreafter on 23rd March, 1989 a sum of Rs. 30,000/- was deposited as reservation amount. On 5.2.1991 another sum of Rs. 60,000/- was deposited. THEreafter by letter dated 23rd July, 1991 House No. 103, Aravali Apartment was allotted to the complainant and indication was given to take the possession after paying a sum of Rs. 45,000/-. It is alleged that same type of house to other allottees are being allotted at the rate of Rs. 2,60,000/-. THE complainant has not been given possession over any house. Hence he requested the opposite party to complete all the conveniences in the house and to pay interest on the amount deposited by him. THE opposite party should also refund a sum of Rs. 40,000/- which has been charged in excess from him and a sum of Rs. 45,000/- be not realised from him and the demand be cancelled. On behalf of the opposite party it has been admitted that the house was allotted to the complainant and he deposited a sum of Rs. 3,00,000/-. It is alleged that the cost of the flat at Rs. 3,00,000/- was an estimated cost and the final costing is done at the time of handing over the possession. According to the opposite party, the District Forum has no jurisdiction to decide on the escalation price of the flat. A sum of Rs. 2,60,000/- has been realised from other allottees in Kaushambi Apartment Scheme Phase I while the complainant was allotted a flat in Kaushambi Apartments Phase II. On account of this fact a sum of Rs. 40,000/- cannot be refunded to the complainant and the demand of Rs. 45,000/- cannot be quashed.

After perusing the evidence on record and hearing the parties, the learned District Forum held that it has no jurisdiction to decide about the costing of the house. It further held that the last instalment was deposited on 5.2.1991 and hence the possession of the flat could have been given by the opposite party by 31st March, 1991. Keeping in view of these facts, the learned District Forum came to the conclusion and directed that within two months the development work and the conveniences shall be completed by the opposite party and possession is to be delivered. It was further ordered that on the deposited amount the opposite party shall pay interest from 1.4.1991 at the rate of 18% per annum till the date of possession. For mental torture etc. a sum of Rs. 2,000/- was allowed. In default of compliance of the order within the time allowed, the opposite party was directed to pay damages in the form of interest at the rate of 21% per annum. It was further held that if any amount is due against the complainant, the same be adjusted from the interest payable to the complainant and the balance amount is to be paid by the complainant.

AGGRIEVED against this order, both the parties have come in appeal and have challenged the correctness of the order passed by the learned District Forum. We have heard learned Counsel for the parties.

LEARNED Counsel for appellant has argued that in Phase I of Kaushambi scheme, the price of apartment was initially fixed at Rs. 2,60,000/- while the cost of the flat allotted to the complainant was fixed at Rs. 3,00,000/-. It is an admitted fact that there are two phases in which Kaushambi apartments have been constructed. Some of the flats form part of Kaushambi Scheme Part I and rest of the flats belong to Kaushambi Scheme Part II. The price of the flats in both these schemes were different. In Phase I the price fixed was Rs. 2,60,000/- while the price fixed for Phase II was Rs. 3,00,000/-. In Phase II, where the flat has been allotted to the complainant, the increase in cost is challenged by the complainant. As a matter of fact, the position on this point has now been made clear by the judgment of the National Commission as allowed by the Hon''ble Supreme Court in the case of B.H. Tolani v. Rajasthan Housing Board & Ors., I (1994) CPJ 69 (NC). The National Commission in this case has approved the finding of the State Commission that the costing cannot be challenged before the Consumer Forum. In the case of Shimla Development Authority v. Asha Rani, AIR 1996 SC 1591, it was held by the Hon''ble Supreme Court that the allottee is bound to bear not only escalation in construction cost but also of escalation of value of land acquired under Land Acquisition Act under various stages. In the case of Sanjay Nagar Residents Welfare Association v. Vice Chairman, Ghaziabad Development Authority, in II (1995) CPJ 58 (NC), in Original Writ Petition No. 212/92 decided on 11th January 1995 reported, the National Commission has held that cost of construction is to be fixed at the time of handing over the possession, therefore, the Consumer Forum cannot go into question of costs of flats as costs are in the nature of pricing. Thus in view of the pronouncement of the Hon''ble Supreme Court, the escalation in the cost cannot be challenged under the Consumer Protection Act and the District Forum or Commission cannot go beyond the costing and the cost arrived at by the Development Authority is to be paid by the allottee. Thus, on this account the complainant is not entitled for refund of Rs. 40,000/- charged extra from him because the initial cost fixed for Phase II flats was Rs. 3,00,000/-. There must be valid reason for the Development Authority to have fixed the price of flats in Phase II at Rs. 3,00,000/-. The escalation of price for this scheme is Rs. 45,000/- which has to be paid by the complainant. Thus we find that the appeal of the complainant has no force and is liable to be dismissed. The next question which arises, according to the arguments of the learned Counsel for the appellant, is that no interest should be levied against the Development Authority because a letter was received long back in the year 1991 for taking possession of the flats after paying the amount due on account of escalation. According to the learned Counsel the flat was completed and possession could have been taken by the complainant in that year, while according to the complainant there were deficiencies in the building which had to be completed before he could have taken possession of the same. As these deficiencies were not completed, the complainant did not take possession of the flat. It may be mentioned that a sum of Rs. 3,00,000/- was deposited by the complainant while rest of the amount of Rs. 45,000/- which was escalation in price, was not deposited by the complainant in the year 1991 but was deposited on 18th August, 1998 during the pendency of the proceedings. This fact was disclosed during the course of arguments. Actually a sum of Rs. 51,795/- was deposited on 18.8.1998. Now there is a dispute as to whether the letter of possession alleged to be dated 10.7.1991 was served on the complainant or not. There is no evidence on record to show that this letter was served on the complainant for taking possession as the complainant had denied about receipt of the letter and has alleged that when he visited GDA office he was given copy of this letter from the file. Unless there is a proof of delivery of the letter or sending of the letter through registered post by GDA, it cannot be said that this letter was actually posted and received by the complainant. Therefore, the contention of GDA that it had despatched the letter dated 10.7.1991 for taking possession to the complainant cannot be relied upon. It has however been argued by the Counsel for GDA that by the same letter dated 10.7.1991 the complainant was also asked to deposit escalation price of Rs. 45,000/-. As this was not deposited, the possession could not be given to the complainant. It has been held that this letter was not received by the complainant and hence the deposit of this amount could not have been made by the complainant towards the escalation of the price. However, this amount has already been deposited during the pendency of the litigation as seen in the earlier part of the judgment.

IN view of the observations made above, it is apparent that GDA did not inform the complainant to take possession of the flat in dispute as alleged by GDA. The possession has not been delivered so far and the learned District Forum had directed the GDA to, deliver possession of the flat within two months. Even after depositing of Rs. 51,795/- on 18.8.1998, the possession of the flat has not been delivered by the GDA which could have been easily done after deposit of the above amount.

IN view of these observations and the facts of the case we find that the finding of the learned District Forum is perfectly correct. Therefore, the order and judgment of the learned District Forum to that extent is confirmed. However, the learned District Forum has given 21% interest if the deficiency is not removed within two months from the date of the judgment. This could not have been done by the learned District Forum as it will amount to penal interest. Therefore, the damages in the form of interest at the rate of 21% per annum is reduced to 18% per annum.

Thus we find that both these appeals are liable to be dismissed. ORDER

BOTH these appeals are dismissed and the judgment and order of the learned District Forum is confirmed. This judgment shall be placed on the records of Appeal No. 2592/98 and a copy of it shall be placed on the record of 2593/98 GDA v. Ram Kishore Tiwari, which shall also be governed by this judgment. Let copy of this order be made available to the parties as per rules. Appeals dismissed. ______________