1. THIS revision arises out of the order dated 16.12.1997 of the U.P. State Consumer Disputes Redressal Commission, in Complaint No. 299 of 1997, dismissing the appeal of the petitioner against the order of the District Forum, Ghaziabad.
2. THE facts in brief are as under : Vishnu Datt Dimri, respondent in this revision petition, filed a complaint before the District Forum, Ghaziabad, seeking direction to the respondent to hand over possession of the allotted flat, grant of interest from the date of deposit, i.e. 9.8.1996 till the date of handing over possession, rebate @ 1% amounting to Rs. 3,600/ - and Rs. 2 lakhs for mental torture and costs of litigation. The District Forum, after hearing both the parties and perusing the records before it, came to the conclusion that the complaint of the complainant was to be allowed as the entire amount towards the cost of the flat had been deposited on 9.8.1996 and he should have been given the possession of the flat maximum till 31.8.1996. In such circumstances, he was entitled to the interest from 1.9.1996 till the handing over of the possession of the flat. The District Forum passed the following order :
''Having accepted the complaint of the complainant, the opposite party is directed to develop the allotted flat and hand over the possession to the complainant with all civic amenities within a period of two months after the judgment and also to pay interest at the rate of 18% p.a. on the deposited amount of the complainant w.e.f. 1.9.1996 till the date of handing over possession. Apart from this @ 1% Rs. 3,600/ - be also paid as rebate to the complainant. Apart from this for mental torture and cost of litigation in the said period Rs. 3,000/ - be paid as compensation. In the event of non -compliance of this order during aforesaid period the opposite party shall pay 21% interest.''
Aggrieved by the order of the District Forum, the respondent, Ghaziabad Development Authority went in appeal to the State Commission which, in a detailed order, upheld the order of the District Forum, with further costs of Rs. 1,000/ -. The State Commission has also upheld the award of interest at the rate or 18% as awarded by the District Forum while relying on the judgment of the National Commission in the case of George Thomas & Ors. v. Ghaziabad Development Authority, I (1999) CPJ 18 (NC).Still not satisfied with the order of the State Commission, the Ghaziabad Development Authority has come in revision before us.
3. HEARD Counsel appearing on both sides. A perusal of the record shows that the Flat No. AK -4/109, M.I.G. (F/S), Indirapuram, was allotted to the complainant/respondent under the ''Instant Sale Allotment Scheme, 1996'', which was a scheme floated for the purpose of sale of leftover flats and which were not allotted in the original scheme in the year 1991. The terms and conditions of the Instant Sale Scheme read as under :
''Terms and conditions for allotment under instant sale (i) The flat allotted under the ''instant sale'' shall not be exchanged. If it is exchanged by the allottee at his own will, an amount of 20% of the maximum price will be payable as transfer fee. (ii) The amount deposited against the flat to be allotted under the ''instant sale'' shall not be refunded. (iii) In the payment of the amount payable against the allotted flat under ''instant sale'' is not made by allottee as per the given details of payment, action to cancel the allotment will be initiated by giving intimation to the allottee by two registered letters. The allottee will be responsible for such cancellation. (iv) If the allottee gets the allotment cancelled at his own will, the amount deposited shall not be refunded and as per rules the flat will be allotted to some other party. Note: If the total cost of the flat is deposited lump -sum by the applicant within one month, 1% rebate shall be given on the cost informed.''
4. THE respondent had applied under this Instant Sale Scheme of the year 1996 by paying Rs. 36,000/ - representing 10% of the total cost of the flat and was issued the allotment letter which reads as under :
''Ghaziabad Development Authority, Ghaziabad (U.P.) - 201301 (Allotment Letter -cum -Payment Schedule) Letter No. 042/IAC -28/95 To Mr./Ms. Vishnu Datt Dimri, Power Grid Corporation of India, Ltd. Flat Deptt., F&A Deptt., 14th Floor, Hemkunt Chambers, 89, Nehru Place, New Delhi - 110 019 Sub : Allotment and Payment Schedule of house. Ref : Instant Allotment Camp/Allotment dated 22.6.1996. Dear Sir/Madam, I have been directed to inform you that you have been allotted house in the Instant Allotment Scheme as per details given below : 1. Allotment Code : 111113 2. Scheme Name : IndiraPuram Housing Scheme 3. Property/Category : M.I.G. F/S 4. House No. : AK -IV/109 5. Payment Plan : Self Financing 6. Estimated Cost : Rs. 3,60,000/ - 7. Bank Name : GDA Cash Counter, G. Bad. 9. Payment Schedule : (a) Already paid amount (Registration Amount) - Rs. 36,000/ -. (b) Balance of registration amount Rs. 0.00 is to be paid within a week from the date of issuing this letter. (c) Balance payment (60%) is to be deposited in four quarterly instalments including 18% interest and schedule for balance payments is as follows : Sl. No. Description Due Date Instalment Amount 1. Instalment No. 1 22.9.1996 68,580.00 2. Instalment No. 1 22.12.1996 66,150.00 3. Instalment No. 2 22.3.1997 63,720.00 4. Instalment No. 3 22.6.1997 61,290.00 (d) Remaining 30% of the estimated cost will be paid in 4 quarterly instalments, the schedule for the instalments will be as follows : Sl. No. Description Due Date Instalment Amount 1. Instalment No. 1 22.9.1997 31,860.00 2. Instalment No. 1 22.12.1997 30,645.00 3. Instalment No. 2 22.3.1998 2 9,430.00 4. Instalment No. 3 22.6.1996 28,215.00 9. Other terms and conditions : (a) The amount deposited in this scheme is non -refundable. (b) If the amount payable to Ghaziabad Development Authority is not paid within the prescribed time -limit, penal interest at the rate of 21% per annum shall be payable along with the payable amounts. If the payment is not made within three months after its due date along with penal interest, if any, the allotment shall be treated cancelled without any notice. (c) Possession can be taken after 70% payment of final cost of the house. (d) If you want to pay the entire money in one instalment within month, no interest will be charged and one per cent rebate in cost will be given. Yours sincerely, Sd/ - xx (Incharge Instant)''
From the date, it is quite clear that the instant sale in the present case is entirely different from the Scheme originally floated by the G.D.A. because, the original scheme is ''6000 Houses at Indirapuram under Hire Purchase Scheme - Code - 615'', which was floated in the year 1991 and the present instant sale scheme is of the year 1996.One important distinction between the two schemes is that in 1991 Hire Purchase Scheme, Code No. 615, the flats were yet to be built and the applicants were to make the payments from time -to -time to finance the project. While, in the present case, i.e. the Instant Sale Scheme of the year 1996, the Authority sold the builtup flats to the applicants against down payment at a certain specified price. Neither in the terms and conditions nor in the letter of allotment had the GDA reserved to itself a right to revise or raise the price. In fact, the very purpose of the scheme was that all those who pay within 30 days should get possession of the flats immediately. The applicant -respondent applied for such Instant Sale Scheme on 22nd June, 1996 by depositing Rs. 36,000/ - representing 10% of the total price. Since he wanted to be furnished of what exact amount to be deposited of the balance consideration, he approached the Authority who on 11.7.1996 called upon the respondent to deposit the balance amount of Rs. 3,24,000/ -. The respondent -applicant within 30 days from that date, i.e. 11.7.1996 deposited the balance amount of Rs. 3,24,000/ - on 9th August, 1996, i.e. upto 11th July, 1996 the only balance payment which was payable, according to the GDA was Rs. 3,24,000/ - which was duly deposited. After this deposit, it would only be fair that the GDA should have immediately delivered possession of the flat allotted to him. Instead of doing that they, as usual, started finding some dilatory methods for delaying the possession and started causing harassment to the respondent who was already out of pocket to the extent of full price of the flat. Ultimately, when the respondent failed to get possession of the flat, he was forced to approach the District Forum under the Consumer Protection Act at Ghaziabad. Before the District Forum various pleas were taken by the GDA which could not be termed anything but excuses for non -performance of the contract on their part and explanations for the harassment that had resulted to the respondent. In spite of the fact that in the contract there is no provision for charging enhanced price and in spite of the fact that these were the builtup flats ready for disposal and there could not be any escalation after the date of allotment, they took up the unethical plea, untenable in law of the final cost being yet to be determined and taking that too by more than 100% and stated that the cost of the flat was Rs. 9 lakhs. It may be pointed out that even in the case of E.I.L. when the matter came up before Court, the G.D.A. was asked to disclose how the cost was calculated. The flats were given on hire purchase which includes the cost of escalation during construction and interest on the amount whereof had been deducted under that scheme, it came down, on GDAs own showing, to Rs. 7,55,700/ -. Even that amount under hire purchase scheme which clearly provides for final cost determination at the end of the construction has not been accepted by this Commission as fully justified. Even though Courts and this Commission cannot go into the original pricing of the flats, the change in the pricing on the basis of a formula provided in the scheme itself can be looked into and examined by this Commission. That would be so, where the scheme itself provides for escalation. But, in the instant sale scheme, there was no such right reserved and the question of any escalation in the cost of an already built up flat could not arise. Even on 11.7.1996, in response to an inquiry from the respondent, the GDA had itself indicated that the balance payable is only Rs. 3,24,000/ -. Even in the letter dated 11.7.1996 the GDA has not given any indication of the possible escalation in the price. The text of the letter is reproduced hereunder.
''Ghaziabad Development Authority, Ghaziabad Letter Ref. No. Memo/96 Dt. 11.7.1996 Shri Vishnu Datt Dimri, Power Grid Corporation of India Ltd., Hemkunt Chambers, 89 Nehru Place, New Delhi - 19. Subject : Allotment of Constructed (Nirmit Bhavan) flat under Self Financing Scheme atIndira -puram. With reference to your letter dated 1.7.1996 you are informed that vide letter No. 042 -1AC -28/1995 dated 22.6.1996, flat No. Appellant -IV/109 has been reserved under the Scheme. The estimated cost of the flat is Rs. 3,60,000/ -, against which you have already deposited Rs. 36,000/ - and the balance due from you is Rs. 3,24,000/ -. The land on which the building is being constructed is an undisputed land. If you pay the whole dues to this office and get the lease deed and sale deed executed and comply with the other conditions, Ghaziabad Development Authority shall have no objection in according the permission for keeping the said reserved flat under mortgage in favour of Power Grid Corporation of India Ltd., for obtaining finance for the cost of the flat. Sd/ - xxx Officer -in -charge (Instant Allotment) Ghaziabad Development Authority.''
According to the above text of the letter also, there is no indication of any cost revision or price revision. In any event, unless such a rate is reserved there, the question of any price revision could not arise because the concept of instant sale clearly means that it is an agreement to sell at a price certain without any stipulation of any variation in the price, just as the purchaser is bound that he cannot obtain any change in the flat of what has been allotted to him.5.THE argument of the learned Counsel for the GDA is that the final costing done in the present case was identical to the case of E.I.L. It is to be noted that the present case is entirely different from the E.I.L. case, as the present case, the GDA itself had mentioned in the application dated 22.6.1996 stated that ''applicant is interested to purchasing the available flat under the instant sale scheme'' (emphasis supplied), i.e. the flats were already available and were ready for possession of the purchasers. But, the EIL Scheme was the self -financing scheme of 1991, when the flats were under construction. THE present scheme is instant allotment scheme where the whole amount was to be paid instantaneously and the flats were ready for possession being given to the allottees, as these were the left over flats of the original scheme. In the light of these clear facts, we are at pain to observe that this is not the first case where has come before us where a common man, a citizen of this country, has been put to utmost hardship and inconvenience on account of callous and unethical behaviour of GDA. This Authority needs to set its house in order through honest efforts.
6.IT is shocking to note that even in the instant allotment scheme a person after being out of packet to the extent of full price of the flat which amount he had taken on loan and for which he was granted permission by the GDA to create mortgage on the said flat, is still out of possession and the comfort of living in his own flat is still eluding. He is being put to extra hardship to continue to live in a rented accommodation and continue to pay interest to his employers from whom he must have taken a loan.
7. CERTAIN instances were brought to our notice where the allottees under the Instant Sale Scheme have been given possession of the flats without asking for any escalation in the cost by the Ghaziabad Development Authority, i.e. the flats were delivered at the price mentioned in the allotment letter. One such case, in this behalf would be that of one Ms. Purnima Sajkar whose letter of allotment also indicated Rs. 5,48,900/ - as estimated cost and when she took possession nothing extra was charged against which she had been given possession of the flat. This goes to indicate that the words estimated cost have been mentioned as a routine expression without intending to be what it conveys and that appears to be correct view because the flats which were the surplus flats left out after allotment to S.F.S. and other candidates, which means that the authorities in the G.D.A. must have known what the cost is when the flats were sold and that there is, further, no provision for enhancement of this cost or revision of cost in the letter of allotment.
8. THE Hire Purchase Scheme and the Instant Sale Scheme are altogether different and one cannot be compared with the other. Although the balance amount is deposited by the respondent within 30 days of letter dated 11.7.1996 yet, the contention of the GDA that the balance amount should be paid within 30 days from 22.6.1996, to enable the respondent to ask for the rebate at the rate of 1% amount to Rs. 3,600/ -, we think that there is some substance in this submission. It is a matter of simple arithmetic calculation and the respondent should have made the deposit by 22nd July, 1996 and not within 30 days from the date of the letter dated 11.7.1996 from the GDA. For that reason, the respondent will not be entitled to the rebate at the rate of 1% i.e. Rs. 3,600/ -.
9. IN the light of the above discussion, we order that the orders of the District Forum and the State Commission are modified to the extent that the respondent will not be entitled to claim the rebate of 1%, i.e. Rs. 3,600/ -. The last part of the order provides that in the event of non -compliance, the rate of interest shall be 21% is also deleted. Except for this modification, the impugned order is upheld. The amount which the GDA has already paid by way of interest shall be adjusted against the total amount due and payable to the respondent/complainant. The possession of the flat should be delivered forthwith or in any event within four weeks from today, if it is not already delivered. With these observations, the Revision Petition is dismissed. Revision Petition dismissed.
