Tamil Nadu
Housing Board & Ors. Vs. Sea Shore Apartments Owners Welfare
Association [2008] Insc 35 (9 January 2008)
C.K.
Thakker & P. Sathasivam C.K. Thakker, J.
1. The
present appeals are filed against an order passed by the State Consumer
Disputes Redressal Commission, Madras (State Commission for short) on
July 24, 1995 in Original Petition Nos. 143-149 of 1995 and confirmed by the
National Consumer Disputes Redressal Commission, New Delhi (National
Commission for short) on February 25, 2002 in First Appeal Nos. 500-506 of
1995.
2.
Shortly stated the facts are that the Tamil Nadu Housing Board (hereinafter
referred to as the Board) was constituted under the Tamil Nadu
Housing Board Act, 1961 (Act 17 of 1961). The primary object of creation of the
Housing Board was to acquire land in the neighbourhood areas of developed
cities at a reasonable price and to construct tenements, houses and flats
thereon for providing residential accommodation to needy people of different
income groups and categories. In the year 1982, vast piece of land admeasuring
about 28 acres of Thiruvamiyer, Chennai was acquired by the State of Tamil Nadu under the Land Acquisition Act,
1894 for a public purpose, viz. for the development of the area known as South
Madras Neighbourhood Scheme. On February 27, 1991 the Board approved a proposal to construct seven different
types of flats. It proposed to construct 102 flats under its High Income Group
Scheme (HIG Scheme for short). In order to assess demand from public,
an advertisement was issued by the Board on March 21, 1991 inviting applications for registration under the title
Avail a chance of owning your own flat in Thiruvanmiyur Extension, Madras. Seven types of flats were
mentioned in the said advertisement along with plinth area, tentative price,
initial deposit, monthly instalment, repayment period, amount of deposit for
registration, etc. It was stated that pursuant to the said advertisement
applications were made by interested persons.
There
was overwhelming demand and several persons applied. The record reflects that
finally instead of seven types of flats, fifteen types of flats were
constructed under HIG Scheme. The Board issued letters on August 13, 1993 to the applicants asking them
whether they were willing to purchase flats. Necessary details of the type,
design, plinth area, tentative selling price and other particulars were
supplied. Draw was conducted on October 15, 1993 and provisional allotment letters were issued on October 19, 1993. Tentative cost was specified in
the letter which was to be paid within a period of 21 days. Final allotment
order was made on August
9, 1994 wherein final
cost of the flat was mentioned.
An
agreement was entered into between the Housing Board and allottees on August 22, 1994. In the said agreement, it was
mentioned that it was agreed between the parties that the ultimate cost of the
total construction of the flat was subject to the outcome in the award of
compensation in land acquisition proceedings pending adjudication and the final
amount will be fixed on that basis which will be paid by the members.
Thereafter possession of flats was given to all allottees. The members were
then asked to pay additional amount. The respondent-Sea Shore Apartments Owners
Welfare Association [Association for short] felt that the demand made
and amount recovered by the Housing Board was neither legal nor proper. It
could not have demanded more amount. The amount which was fixed earlier was
already paid and the members of the Association were not treated fairly. It,
therefore, made representation on December 26, 1994 against the additional amount. In
the said representation, the Association asked the Board to give reasons for
enhancement of price of flats as also for reduction of period of payment of instalments
from 15 years to 13 years. The Board, however, did not reply to the said
letter. Even subsequent letter was not responded. Seven complaints were,
therefore, filed by the allottees before the State Commission on May 26, 1995 under Section 12 of the Consumer
Protection Act, 1986 (hereinafter referred to as the Act).
Prayers
were made in the complaints to direct the Board and its officers to return the
escalation amount paid by the members of the Association with interest thereon;
to restrain the Board and its officers from insisting on payment of excess
amount as demanded; to direct the Board to collect the instalments in 15 years
as per the order of allotment issued earlier; to pay compensation of rupees one
lakh for the loss sustained and mental agony suffered by the members of the
Association and to pay costs of the complaints. It was also stated that the
complainants had claimed relief for those members also whose names had been
given in the Annexure to the complaints.
3. A
reply was filed by the Board controverting averments made and allegations levelled
in the complaints. It was stated that under the Demand Assessment Scheme, the
price mentioned in the advertisement was only tentative. Originally,
the proposal was for construction of seven types of flats but because of great
demand, it was finalized into fifteen types of flats. It was also stated that
the construction cost was increased because of increase in ground area, plinth
area and also because of payment of excess compensation to the land owners
whose lands had been acquired for the purpose of construction of flats. It was
contended that if the allottees were really aggrieved over the increase in
cost, they could have well surrendered the flats. But they did not do so.
They
accepted the increase in price and took over possession of property. It was
also contended that the Consumer Forum had no jurisdiction to deal with and
decide the matters relating to fixation of price of flats and on that ground
also, the complaints were not maintainable. It was submitted that the demand of
price could not be said to be illegal, fanciful or otherwise unreasonable and
the complaints were liable to be dismissed.
4. The
State Commission considered the rival contentions of the parties and held that there
had been deficiency in service on the part of Board inasmuch as there
was illegal demand by the Board of additional amount which was neither legal
nor proper. The Commission observed that when the possession was sought to be
given to the allottees, they had no option, but to take possession of the flats
and that is how possession was taken over by the members and the said
circumstance could not go against them. According to the State Commission, the
complaint of the complainant- Association that escalation was unjust,
unwarranted and illegal was well founded and ought to be upheld. According to
the State Commission, three-fold defence put forward by the Board had
no basis whatsoever. In the opinion of the State Commission, the defences as to
(i) increase
in the plinth area,
(ii) increase
in the area of land, and
(iii) payment
of excess amount of compensation to the land owners were vague and no
particulars were furnished.
No
details were supplied as to excess payment of compensation. It was also not
clear whether the entire excess amount of compensation paid to the land owners
was in respect of land on which flats were constructed by the Board and
allotted to the members of the Association. It was not open to the Board,
commented the State Commission, to demand from members of the Association, the
entire amount which it had paid to the land owners towards enhanced
compensation. The State Commission also held that the Board had no right to
reduce the period of recovery of amount by instalments from 15 years to 13
years and the said action was illegal.
Accordingly,
all the complaints were allowed and the demand made by the Board was quashed
and set aside. Refund of amount was also ordered.
5.
Being aggrieved by the order passed by the State Commission, the Board
approached the National Commission. The National Commission by a short order
dated February 25, 2002 dismissed all the appeals observing
inter alia that the State Commission recorded that not a scrap of paper
has been filed by the opposite party to show that there was any land
acquisition proceedings before any court in respect of the lands in
question. According to the National Commission, the action of the Board in
increasing price was on non existing grounds and hence the demand was not legal.
The
appeals were accordingly dismissed.
6. The
Board has challenged these decisions by filing present appeals. On November 25, 2002, notice was issued. On September 15, 2003, leave was granted after hearing
the parties. Operation of the impugned order was also stayed subject to the
appellants depositing the disputed amount in the Court within a period of four
weeks from the date of the order. The Registry was directed to invest the said
amount. The matters were thereafter ordered to be posted for hearing. That is
how the matters are before us.
7. We
have heard the learned counsel for the parties.
8. The
learned counsel for the Board strenuously urged that the Commissions were
clearly in error in invoking the provisions of the Act and in observing that
there was deficiency in service. According to the learned counsel,
dispute in the instant case related to fixation and determination of price of
flats. Such dispute cannot be resolved under the Act. Consumer Commission has
no power, authority or jurisdiction to inquire into, deal with and decide such
questions.
Even
otherwise, in view of allegations and counter-allegations and assertions and
retractions, only civil court can enter into disputed questions of fact on the
basis of evidence adduced by the parties and Commissions exercising summary
power were in error in encroaching the jurisdiction of civil court which could
not have been done.
9. It
was also submitted that from the facts it was clearly established that in 1991
what was done by the Board was to formulate a scheme and tentative price was
fixed. In view of overwhelmed response, the scheme was changed from seven types
to fifteen types flats. There was increase in plinth area, in ground area as
also payment of excess compensation to land owners. It was, therefore, clearly
stated in 1993 to all the applicants whose names had been registered in 1991
about the revised price, the period within which the amount was to be paid and
the reasons for fixation of higher price.
It was
also stated that at the time of registration in 1991, it was clearly indicted
that for those who opted to make payment in instalments, the period of
repayment was 13 years. In 1993, however, when applications for allotment were
called for, the period was indicated as 15 years. The said mistake was
rectified at the time of final allotment. With an open eye, it was accepted by
the allottees and agreements were signed by them giving undertakings. It was
thereafter not open to the allottees to challenge fixation of price of flats by
the Board. They were estopped from doing so under the doctrine of promissory estoppel.
It was also submitted that when complaints were filed before the State Forum, a
counter-affidavit was filed on behalf of the Board wherein it was asserted that
there were three-fold reasons for increase of price; viz.,
(i)
increase in plinth area,
(ii) increase
in ground area, and
(iii) payment
of enhanced compensation to land owners.
In
view of the above pleas and defences, the State Commission ought to have dismissed
the complaints. The State Commission, however, failed to do so.
But
even otherwise, the State Commission did not consider all the defences in their
proper perspective and held that the Board was not entitled to claim additional
amount and issued certain directions including refund of amount with interest.
Obviously, the Board was aggrieved and it approached the National Commission.
But the National Commission also, without considering the points raised by the
Board confirmed the order passed by the State Commission and dismissed the
appeals. Both the orders, therefore, are not in consonance with law and are
liable to be set aside.
10.
The learned counsel for the complainants supported the order passed by the
State Commission and confirmed by the National Commission. He submitted that
the State Commission has considered all the contentions raised by the Board and
after perusing the materials placed before it, recorded a finding that none of
the three defences raised by the Board was well-founded and hence could not be
upheld. It was a pure finding of fact based on evidence. The National
Commission affirmed the order passed by the State Commission observing that the
findings recorded by the State Commission were findings of fact and they did
not call for interference. Such order cannot be said to be illegal or otherwise
unreasonable which can be interfered with in exercise of discretionary
jurisdiction of this Court under Article 136 of the Constitution and the
appeals may be dismissed.
11.
Having heard the learned counsel for the parties, in our opinion, all the
appeals should be allowed. From the record, it is clear that in 1982, a huge
land admeasuring about 28 acres at Thiruvanmiyur Extension, Chennai was
acquired by the State under the Land Acquisition Act for public purpose,
namely, for the purpose of development of area known as South Madras Neighbourhood
Scheme. Amount of compensation was paid to the land-owners as per the award but
it was enhanced in reference proceedings. The Board came up to this Court, but
the enhanced compensation was confirmed.
It is
also clear from the Scheme initially prepared, i.e. seven types scheme and
fifteen types scheme which was subsequently finalized, there was difference in
plinth area as also ground area. So far as price is concerned, in 1991, when
the names of applicants were registered, it was clarified that the price
indicated was tentative price and it was subject to final
price being fixed by the Board. In any case when the scheme was altered
from seven types to fifteen types flats, it was stated that the amount shown
was merely tentative selling price. The intending purchasers,
therefore, were aware of the fact that the final price was to be fixed by the
Board. In fact an agreement to that effect was executed by all prospective allottees
wherein they agreed that they would pay the amount which would be finally fixed
by the Board.
12.
Clause 18 of the agreement entered into between the parties and signed by all allottees
is extremely important and reads thus;
It
is expressly agreed between both the parties that after the finalizatin of the
total cost of construction of flat and the value of the land in accordance with
the award of compensation declared by the Tribunals and Courts the Purchaser
shall pay to the Vendor on demand before the registration of the Sale Deed the
difference between the amount already paid by the purchaser as per clause 2
above and the price amount finally fixed by the Chairman the Vendor.
13. In
the circumstances, it cannot be said that the allottees were not aware of the
above condition and they were compelled to make payment and thus were treated
unfairly or unreasonably by the Board.
14.
The State Commission in the impugned order observed that it was the case of the
Board that excess amount of compensation was awarded to the land owners. It
proceeded to state that the excess compensation had been awarded in respect of
lands covered by other schemes in the neighbourhood and the Board attempted to
shift the burden of the excess amount on the allottees of Thiruvanmiyur
Extension Scheme. It also stated that no evidence was produced by the Board to
show that there was any land acquisition proceeding before any court in respect
of land covered by HIG Scheme No. 102 (though Clause 18 of the agreement
extracted hereinabove expressly refers to such proceedings). It also observed
that an affidavit was filed by the Secretary of the Complainant-Association
that HIG Scheme No. 102 was not involved in any land acquisition proceedings
before any court and the said averment has not been rebutted by the Board.
(It
may, however, be stated that in the reply filed by the Board before the State
Commission, it was asserted that one of the reasons for increase in cost was
due to excess amount of compensation allowed to the land-owners). The State
Commission observed that all the three defences raised by the Board were
delectably vague, without any particulars as to how much escalation
was due to plinth area, how much was due to increase in the land area and how
much was due to payment of enhanced compensation to land owners. It went on to
state that the cost of enhanced compensation and increased area must also
have been taken into consideration in fixing the tentative selling price.
The action of the Board, in the opinion of the State Commission was, therefore,
unjust and arbitrary.
15. It
was also held that reduction of period of payment of balance amount from 15
years to 13 years by monthly instalments amounted to deficiency in
service and that part was, therefore, illegal. Accordingly, the following
directions were issued by the State Commission;
1.It
is declared that the opposite parties are entitled to claim from the members of
the complainant Association for the flats allotted to them under No.102 HIG
Scheme at Thiruvanmiyur Extension only the selling price mentioned in Ex.A2(a)
containing the particulars of this Scheme.
2. The
opposite parties are directed to refund to the members of the complainant
Association who have made full payment, the excess amount collected with
interest thereon at 12% from the date of collection till payment.
3. In
respect of the Members of the Complainant Association who have opted for
payment in instalments, the opposite parties are directed to re-schedule the
balance of payment as per Ex.A2 (a) in monthly instalments for 15 years instead
of 13 years and adjust the excess payment made if any, towards future instalments.
4. The
opposite parties are also directed to pay a consolidated sum of Rs.7,000/- as
costs to the Complainant Association at the rate of Rs.1,000/- per
complaint.
16.
The National Commission, without discussing the evidence on record as also
contentions raised by the Board, conclusions arrived at and reasons weighed
with the State Commission, confirmed the findings by a brief order.
17. As
observed earlier, it was contended by the Board before the State Commission and
National Commission that fixation of price of flats cannot fall within the
purview of the Commission. It is, no doubt, true that housing
construction had been included in the definition of service in
clause (o) of Section 2(1) of the Act by the Consumer Protection (Amendment)
Act, 1993 [Act 50 of 1993]. But it was submitted that the fixation of
price cannot be made subject matter of dispute and Consumer Commission
could not deal with the question as to adequacy of price. A specific contention
was raised by the Board before the State Commission and National Commission,
but it was decided against the Board though according to the Board, the point
was covered by earlier decisions of the National Commission itself.
18.
The learned counsel for the Board referred to a decision of the National
Commission in Gujarat Housing Board v. Akhil Bhartiya Grahak Panchayat &
Ors., (1996) 1 CPJ 103. Considering the provisions of the Act, the National
Commission held that the Consumer Commission had no jurisdiction to go into the
question of pricing of houses and plots, sold or allotted on hire purchase
system by the Development Authority or Housing Board. The Commission relied
upon its earlier decision in Gujarat Housing Board v. Datania Amritlal Fulchand
& Ors., (1993) 3 CPJ 351.
19.
True it is that in Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC
243, this Court stated;
When
private undertakings are taken over by the government or corporations are
created to discharge what is otherwise State's function, one of the inherent
objectives of such social welfare measures is to provide better, efficient and
the cheaper services to the people. Any attempt, therefore, to exclude services
offered by statutory or official bodies to the common man would be against the
provisions of the Act and spirit behind it. It is indeed unfortunate that since
enforcement of the Act there is a demand and even political pressure is built
up to exclude one or the other class from operation of the Act. How ironical it
is that official or semi-official bodies which insist on numerous benefits,
which are otherwise available in private sector, succeed in bargaining for it
on threat of strike mainly because of larger income accruing due to rise in
number of consumers and not due to better and efficient functioning claim
exclusion when it comes to accountability from operation of the Act. The spirit
of consumerism is so feeble and dormant that no association, public or private
spirited, raises any finger on regular hike in prices not because it is
necessary but either because it has not been done for sometime or because the
operational cost has gone up irrespective of the efficiency without any regard
to its impact on the common man. In our opinion, the entire argument found on
being statutory does not appear to have any substance. A government or
semi-government body or a local authority is as much amenable to the Act as any
other private body rendering similar service. Truly speaking it would be a
service to the society if such bodies instead of claiming exclusion subject
themselves to the Act and let their acts and omissions scrutinized as public
accountability is necessary for healthy growth of society.
20.
The above observations make it clear that when private undertakings are taken
over by the State or its Instrumentalities, any attempt to exclude the services
offered by such statutory bodies to the common-man from the application of the
Act must be discouraged. It would be against the spirit behind the benevolent
legislation. At the same time, however, it cannot be overlooked that price
fixation depends on several factors. Normally, therefore, it would not be
appropriate to enter into adequacy of price.
21. It
may be profitable at this stage to refer to a decision of this Court in Premji Bhai
Parmar & Ors. v. Delhi Development Authority & Anr., (1980) 2 SCC 129.
The petitioner in that case purchased a plot offered by the
respondent-Authority and after payment of price took possession thereof.
Subsequently,
however, he filed a petition under Article 32 in this Court contending that the
surcharge collected by the authority was illegal and violative of Article 14.
Dismissing the petition, this Court held that the remedy sought by the
petitioner to reopen the concluded contract with a view to getting back a part
of the purchase price paid and benefit taken was not proper.
22.
The Court stated;
Conceding
for this submission that the Authority has the trappings of a State or would be
comprehended in 'other authority' for the purpose of Article 12, while
determining price of flats constructed by it, it acts purely in its executive
capacity and "is bound by the obligations which dealings of the State with
the individual citizens import into every transaction entered into the exercise
of its constitutional powers. But after the State or its agents have entered
into the field of ordinary contract, the relations are no longer governed by
the Constitutional provisions but by the legally valid contract which
determines rights and obligations of the parties inter se.
No
question arises of violation of Article 14 or of any other constitutional
provision when the State or its agents, purporting to act within this field,
perform any act. In this sphere, they can only claim rights conferred upon them
by contract and are bound by the terms of the contract only unless some statute
steps in and confers some special statutory power or obligation on the State in
the contractual field which is apart from contract".
23.
The Court went on to state;
The
principal contention canvassed on behalf of the petitioners is that the
treatment meted to them by the Authority is discriminatory inasmuch as no
surcharge was levied on flats in MIG scheme constructed and allotted prior to
November 1976 and after January 1977. MIG flats involved in these petitions
were constructed and were available for allotment in November 1976 and the lots
were drawn in January 1977. There is one more MIG scheme at Munirka where the
allotment took place at or about the same time but in which case no surcharge
was levied. The contention is that once for the purpose of eligibility to
acquire a flat, the criterion is grounded in income brackets, MIG, LIG, et et.
those in the same income bracket form one class even for the purpose of
determining disposal price of flat allotable to them irrespective of situation,
location or other relevant determinants which enter into price calculation and
therefore, in the same income group there cannot be differentiation by levying
of surcharge in some cases and charging only the cost price in other cases and
that the discrimination is thus writ large on the face of the record because by
levying surcharge in case of petitioners they have been treated unequally and
with an evil eye. It is difficult to appreciate how Article 14 can be attracted
in the circumstances hereinabove mentioned. Cost price of a property offered
for sale is determined according to the volition of the owner who has
constructed the property unless it is shown that he is under any statutory
obligation to determine cost price according to certain statutory formula.
Except the submission that the Authority has a proclaimed policy of
constructing and offering flats on 'no profit no loss' basis which according to
Mr. Nariman has a statutory flavour in the regulations enacted under the Act,
the Authority is under no statutory obligation about its pricing policy of the
flats constructed by it. When the flats were offered to the petitioners the
price in round figure in respect of each flat was mentioned and surcharge was
not separately set out and this price has been accepted by the petitioners. The
obligation that regulations are binding on the Authority and have provided for
a statutory price fixation formula on 'no profit no loss' basis will be
presently examined but save this the Authority is under no obligation to fix
price of different flats in different schemes albeit in the same income group
at the same level or by any particular statutory or binding formula. The
Authority having the trappings of a State might be covered by the expression
'other authority' in Article 12 and would certainly be precluded from according
discriminatory treatment to persons offering to purchase flats in the same
scheme. Those who opt to take flats in a particular income-wise area-wise
scheme in which all flats came up together as one project, may form a class and
any discriminatory treatment in the same class may attract Article
14.
But to say that throughout its course of existence the Authority would be bound
to offer flats income- group-wise according to the same price formula is to
expect the Authority to ignore time, situation, location and other relevant
factors which all enter the price structure. In price fixation executive has a
wide discretion and is only answerable provided there is any statutory control
over its policy of price fixation and it is not the function of the Court to
sit in judgment over such matters of economic policy as must be necessarily
left to the Government of the day to decide.
The
experts alone can work out the mechanics of price determination;
Court
can certainly not be expected to decide without; the assistance of the
experts.
24.
Again, in Bareilly Development Authority v. Ajai Pal Singh, (1989) 2 SCC 116,
the Authority (BDA) constructed plots for persons belonging to different income
grups.
The
terms and conditions contained in the brochure empowered the BDA to revise the
cost of price and to enhance the rate of flats. The petitioners got themselves
registered for allotment of flats. Notices were issued by the BDA intimating
the petitioners regarding the costs of flats and the rate of instalments. The
said action was challenged under Article 226 of the Constitution. The High
Court of Allahabad, placing reliance on R.D. Shetty v. International Airports
Authority, (1979) 3 SCC 489 held that the BDA acted arbitrarily and
unreasonably in unilaterally enhancing the cost of flats and the rate of instalments
and directed the BDA to redetermine the issue. The BDA approached this Court.
25.
Allowing the appeal, setting aside the judgment of the High Court and
distinguishing International Airports Authority, this Court observed;
Even
conceding that the BDA has the trappings of a State or would be comprehended in
'other authority' for the purpose of Article 12 of the Constitution, while
determining price of the houses/flats constructed by it and the rate of monthly
instalments to be paid, the 'authority' or its agent after entering into the
field of ordinary contract acts purely in its executive capacity. Thereafter
the relations are no longer governed by the constitutional provisions but by
the legally valid contract which determines the rights and obligations of the parties
inter-se. In this sphere, they can only claim rights conferred upon them by the
contract in the absence of any statutory obligations on the part of the
authority (i.e. BDA in this case) in the said contractual field.
(emphasis
supplied)
26.
Recently, in Chief Administrator, PUDA v. Shabnam Virk, (2006) 4 SCC 74, the allottee
had filed an affidavit clearly indicating that she would undertake to abide by
all the terms and conditions of allotment letter and the amount indicated
therein for allotment of a house. There was nothing to show that the increase
was possible only when there was increase in the cost of construction. It was
held by this Court that the allottee was liable to pay amount as stipulated in
the allotment letter. It was observed;
It
is to be noted that the respondent herself had accepted in the undertaking that
she accepted the allotment of the house and undertook to abide by all the terms
and conditions of the allotment letter. It is not in dispute that in the
allotment letter the figure as demanded has been reflected. That being so the
respondent was liable to pay the amount as stipulated in the allotment letter.
As
there is no dispute that the respondent had in fact filed an affidavit clearly
indicating that she undertook to abide by all the terms and conditions of the
allotment letter, the amount indicated in the allotment letter was the amount
in respect of the allotment of the house.
We
find nothing in the quoted clause to show that the increase was possible only
when there was an increase in the cost of construction. The clause quoted above
does not reflect any such intention of the parties.
27. In
our considered opinion, the State Commission as well as National Commission ought
to have considered all these aspects. Even if they were of the view that after
the amendment of the Act in 1993 and in the light of inclusion of housing
construction within the meaning of service in clause (o) of
Section 2(1), the Commission had jurisdiction to deal with and decide disputes
relating to deficiency in service under the Act which included the issues
raised, it was obligatory on them to consider whether the controversy raised in
the proceedings with regard to fixation of price would be justiciable on the
facts and in the circumstances of the case, particularly in the light of the
contentions raised by the Board that there was increase in plinth area, ground
area and payment of enhanced compensation to land owners. They were also
required to consider that the Board does not have land of its own and the land
was acquired under the Land Acquisition Act by paying compensation as
determined in accordance with the provisions of that law. The Commissions also
could not ignore the fact that when the advertisement was issued for the
purpose of registration of intending purchasers of flats, they were clearly
intimated that the price shown was merely a tentative price. Again,
when the scheme was altered the intending purchasers were informed that the
price was tentative and they would have to pay price finally determined by the
Board. They consented and entered into an agreement by giving an undertaking
that they would pay the price determined by the Board.
When
the question of giving possession of flats came up, the Board informed them to
pay the remaining amount so that possession could be delivered to them. They
made such payment and obtained possession. It was, therefore, contended by the
Board that the allottees were estopped from raising the contention that
additional amount could not have been recovered from them. It was open to the allottees
not to pay the additional amount demanded by the Board and not to take
possession. By agreeing to pay the amount and by paying such amount and taking
possession, now they want to go behind the concluded contract between the
parties. In our considered opinion, all these questions were required to be
gone into by the State Commission as also by the National Commission.
The
orders passed by both the Fora are, therefore, liable to be set aside.
28.
Before we part with the matter, we may refer to one more aspect. After the
Board approached this Court and notice was issued, the respondent-Association
filed a counter- affidavit in this Court through Secretary of the Association.
In the said affidavit, the orders passed by the State Commission and affirmed
by the National Commission were sought to be supported. One may appreciate allottees
taking such stand supporting the orders which were passed in their favour. But
while doing so, certain averments and remarks have been made which were not
necessary for determining the question. For instance in paragraph 12 of the
affidavit-in-reply, it was stated;
A
public undertaking like the Housing Board has not only to act fairly, but also
openly it cannot suppress vital documents and play the game of hide and seek.
We have given to ourselves a democratic Constitution. Accountability and
transparency are the pillars of democracy. There must be sun shine in the
corridors of power. It is lamentable that the bureaucrats of the Housing Board
are still living in the atmosphere of British Raj and accountability and
transparency are anaethima to them.
29. In
paragraph 16 of the counter, similar allegations have been levelled. It was
stated that an instrumentality of State is expected to conduct its affairs in
transparent manner, but the Board failed to do so. At another place, it was
said that service oriented body like the Housing Board cannot act like private
bodies and take a Shylockean attitude. In our opinion, all those
observations could have been easily avoided.
Since
we are setting aside both the orders and remitting the cases to the State
Commission for deciding afresh in accordance with law, it would not be
appropriate to say anything more on this. Let the matter rest there.
30.
For the foregoing reasons, all the appeals are allowed. The order passed by the
State Commission and confirmed by the National Commission is set aside. All the
complaints are remitted to the State Commission to decide them in accordance
with law after hearing the parties. On the facts and in the circumstances of
the case, there shall be no order as to costs. Amount if any, deposited by the
appellant-Board in this Court may be refunded to the Board with accrued
interest thereon.
Since
the original complaints were filed in 1995, the State Commission will give
priority to the cases and decide them as expeditiously as possible preferably
before June 30, 2008.
31. At
this stage, we may clarify that we should not be understood to have expressed
any opinion one way or the other on the controversy raised by the parties. All
the observations made by us hereinabove are limited for the purpose of holding
that the State Commission as also National Commission ought to have dealt with
and decided the contentions raised by the Housing Board. Therefore, as and when
the complaints will be placed for hearing before the Commissions, they will be
decided strictly on their own merits without being inhibited by those observations.
32.
Ordered accordingly.
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