V.K.CHATURVEDI vs U.P. AWAS EVAM VIKAS PARISHAD (ASSISTANT COMMISSIONER)

PETITIONER was the complainant before the District Forum, where he had filed a complaint alleging deficiency in service on the part of the respondents.

VERY briefly the facts of the case are that the petitioner/complainant in response to an advertisement floated by the respondents, registered himself for a flat in 1982 for which he deposited Rs. 5,000 and again Rs. 5,000 in 1985. The petitioner was allotted a flat on 18.10.1994 and after completing the formalities, possession of which was given on 19.2.1995. The case of the complainant before the District Forum was that at the time of floating the scheme in 1982, the cost of the flat was shown as between Rs. 60,000 and Rs. 80,000 and some of the flat purchasers have been given flats for Rs. 2,25,000 whereas the petitioner is being charged a higher price - as per letter of allotment Rs. 3,79,040 and along with interest and arrears Rs. 5,06,323. It was stated in the complaint that since the petitioner has been given interest @ 5% on the deposited amount of Rs. 10,000, it should be increased to 18% p.a., that being the rate at which the respondents are charging for delayed payment of instalments. It is also stated in the complaint that the area given to him was less, i.e., 94.9 sq. mtrs. against 130.4 sq. mtrs. and building has several defects. Several representations were made to the respondent and since no satisfactory reply was forthcoming, a compliant was filed before the District Forum in the year 2001 praying for charging the price of Rs. 2,25,000 and payment of interest @ 18% on the deposited amount as well as rebate of Rs. 10,000 for having deposited the money in lump sum as also seeking direction to be given to the respondent to execute the registered sale-deed. The District Forum after hearing the parties dismissed the complaint. Aggrieved by this order an appeal filed before the State Commission met with the same fate. Aggrieved by this order this revision petition has been filed before us. We heard the petitioner who was in person and also learned Counsel for the respondent. In our view, the complaint itself is time-barred. This plea was taken before the District Forum, who have not really dealt with this point. Undisputedly the possession of the flat was taken by the petitioner in February, 1995 and the complaint alleging deficiency in service was filed in 2001. In our view, without filing an application for condonation of delay, in terms of Section 24(a) of the Consumer Protection Act, 1986, the complaint was clearly time-barred.

Be that as it may, the main grievance before us that he should be charged the same price which was reflected in the brochure at the time of floating the scheme, we are unable to appreciate this for two reasons. Firstly, it is settled law that Consumer Forums cannot go into the question of ''Pricing'' and secondly, that there is no protest of any sort after receiving the allotment letter in October 1994 that new price is not acceptable. To the contrary he signed on the dotted line of the Hire Purchase Agreement. In fact allotment letter clearly stated the balance amount payable after taking into consideration the amounts already deposited by the petitioner, and in fact some instalments were paid and no protest was made. Making this issue after 5 or 6 years of taking the possession does not stand our scrutiny, this clearly appears to be an afterthought. The petitioner/complainant relies upon a judgment of the Hon''ble Supreme Court in the case of Om Prakash v. Assistant Engineer, Haryana Agro Industries Corporation & Anr., II (1994) CPJ 1 (SC), in which it was held that the price at the time of agreement would be payable. By now, it is settled law that the agreement between the parties in respect of house would be a ''letter-of-allotment'' which was issued in October 1994 and it is the prevailing rate on that date which would be followed. The judgment (supra) will not have any bearing to this case for one good reason that Hon''ble Supreme Court was looking into the question of a movable property and that too where the prices are fixed and Supreme Court has repeatedly held that in the matter of housing, Consumer Forums cannot go into the question of pricing, hence we see no merit in the plea taken by the petitioner.

MUCH was also made out about the discrimination shown to him in respect of allotment of flats whereas some other people allotted flats charging lesser price. After perusal the material on record, we find in this regard two points needs to be noted - firstly, that some of the allotments made in early 1990s were on auction basis and secondly, undoubtedly the petitioner could be allotted flats only when he has approached the respondent for allotment of flats which was done only in 1994. As per the material on record, declaration signed by the petitioner for including his name in the draw of lots was given only in 1994, in view of which the petitioner would not be entitled to any allotment before that date. In view of the facts narrated above, no discrimination can be fastened on the part of the respondents. We see no merit in this plea of the petitioner either.

AS rightly held by the District Forum we are of the same view that the petitioner could not raise the question of any deficiency in the construction of the flat in view of the undertaking given by him at the time of taking possession that after inspection of the flat, he found no defect and the house is complete in all respects. In view of the fact that the allotment was made in response to his willingness to participate in draw of lots in October 1994, and possession was given within a period of 4 months, i.e., on 19.2.1995, in view of which, in our view, the petitioner shall not be entitled to any interest, more so when the respondents have already given rate of interest @ 5% p.a. on the deposited amount of Rs. 10,000 and delay if any in getting the house would, in our view, lie with the petitioner. The petitioner never applied/opted for inclusion in any draw of lots. The petitioner also relied upon the judgment passed by the Hon''ble Supreme Court in the case of Lucknow Development Authority v. M.K. Gupta , III (1993) CPJ 7 (SC)=AIR 1994 SC (787). He wanted to rely upon the ground that in case of defect or deficiency in service would be unfair trade practice and would amount to denial of service thus, complainant would be entitled to file a complaint with regard to defect as deficiency in service on the part of the Government/Semi Government/Local Body. This is not the question before us. We would have entertained this plea of the complainant with regard to defects, if any, provided the petitioner had filed the complaint on this point within the prescribed time period.

IN the aforementioned circumstances, we find no merit in the revision petition filed before us, hence dismissed. Revision Petition dismissed.