S.K.GUPTA vs NAGAR VIKAS PRADHIKARAN

THE brief relevant facts necessary to be mentioned for determining the point in controversy are that the complainant in pursuance of sixth Self Financing Scheme for residential Complex below Bishop Cotton School, Phase-11, Kasumpti, New Shimla, applied for the allotment of plot Type-B category. THE plot, according to the complainant, was required to be delivered to the complainant within one year from floating of the Scheme although this is disputed by the opposite party. THE possession of the plot, according to the complainant, was delivered by the opposite party on 18.4.96 and the lease deed was also executed with the opposite party on 18.4.96. THE complaint was filed afterwards on 8.5.96. THEre is no material on record to show that possession was taken over under the lease deed under protest.

THE fundamental question raised by the opposite party which requires our consideration is whether the complainant after taking over the possession of the plot and entering into the lease deed agreement, can be heard to say that there has been unnecessary delay in the development of plot. This precise question has been considered by the National Commission in Sarthak Behuria and Another v. The Orissa State Housing Board, III (1993) CPJ 384 (NC)=I (1994) CON.LT 438, whereby the National Commission by relying upon the judgment of the Supreme Court in Premji Bhai Parmar and Others v. Delhi Development Authority & Others, AIR 1980 SC 738, has observed in para 12 of the judgment as follows : "Moreover after taking possession of the houses the complainants cannot be heard to say that there has been unreasonable delay in the construction of houses. In this context, reference to Premji Bhai Parmar and Others v. Delhi Development Authority and Others, AIR 1980 SC 738 will be useful. The Court 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 terms 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".

This case is squarely covered by our judgment in Sant Ram Sharma v. Shimla Development Authority, Original Complaint No. 51 of 1993 and other connected complaints decided on 22.5.97, as the complaint has been filed after taking over the possession of the plot and entering into lease deed agreement and, therefore, the complainant is not entitled to any relief(s) for delayed delivery of the possession of the plot. The complainant has claimed compensation for delayed delivery of the possession of the plot and also for escalation of price. The escalation of price is not within the jurisdiction of this Commission, as has been held by us in various cases.

MRS. Ranjana Parmar, learned Counsel for the complainant has, however, vehemently contended that this Court has awarded @ 18% interest in similar cases whereas the complainant is being deprived of the interest although the complaint might have been filed after entering into the lease deed agreement and taking over the possession of the plot. This results in clear discrimination and violation of fundamental right guaranteed under Article 14 of the Constitution. There cannot be a waiver of fundamental rights. This argument is wholly untenable in the eyes of law. Relief against denial of equality before the law or the equal protection of the law can be claimed against executive action or legislative process but not against judicial action. The reason is the "State", to whom the injunction against denying equality before the law or equal protection of the laws is directed by this Article, has been defined for purposes of this part in Art. 12 and the expression will not include a judicial Tribunal.

FURTHER, the discretion of judicial officers is not arbitrary and the law provides for revision by Superior Courts of orders passed by Subordinate Courts. In such circumstances there is hardly any ground for apprehending any capricious discrimination by judicial Tribunals (AIR 1955 SC 191 may be referred to). Furthermore, once a contract is entered into between the parties, the question of arbitrariness would not arise because the rights and liabilities stem from the contract. In view of foregoing, there is no force in this complaint and the complaint is dismissed with no orders as to costs. Complaint dismissed.