MOTILAL JHALANI
(N.A.)
20 August 2020
DISTRICT CONSUMER DISPUTES REDRESSAL FORUMKOLKATA UNIT - II (CENTRAL)8-B, NELLIE SENGUPTA SARANI, 7TH FLOOR,KOLKATA-700087. Complaint Case No. CC/407/2018( Date of Filing : 11 Sep 2018 ) 1. Motilal JhalaniFlat No.-302, Radha Krishna Apartment, Hanskhali Pool,Bakultala, Howrah-711109............Complainant(s)Versus1. Bengal Shrachi Housing Development Ltd.Shrachi Tower, 686, Anandapur, E.M. Bypass,Kolkata-700107.2. Housing Department, Govt. of West BengalL.A. Branch, New Secretariat Building, 1, K.S. RoyRoad, Kolkata-700001.............Opp.Party(s) BEFORE: HON'BLE MR. Swapan Kumar Mahanty PRESIDENT HON'BLE MRS. Sahana Ahmed Basu MEMBER For theComplainant:Ld. Lawyer, AdvocateFor the Opp.Party:Dated : 28 Jun 2019Final Order / JudgementShri Swapan Kumar Mahanty, President. This is an application u/s.12 of the C.P. Act, 1986.Brief stated, the facts of the case are :-Complainant applied for for allotment of flat in the Lower Income Group Housing Complexknown as “Green Wood Nest” at Moza-Ghuni, New Town, Rajarhat and he was allotted a flatbeing No.-3C, Maze-2 through lottery at a total consideration of Rs.11,40,000/-. As perClause-32.1 of the General Terms and Conditions, the O.P.-1 endeavors to complete construction of the building and handover possession to the allottee within 33 months. That on 22/06/2016complainant received a letter from the O.P.-1 regarding revision of rate in respect of LIG/MIGUnit, Green Wood Nest along with a Notification No. 738-H1/1M-2/2007 (Pt) dated 17/08/2015.-1-
By virtue of the said Notification, the value of the subject flat increased at Rs.22,79,806/- in steadof Rs.11,40,000/-. The above Notification come in to force with effect from the date of its issuei.e. 17/08/2015. The allotment issued on 27/02/2012. Thus, the Notification dated 17/08/2015 isnot applicable to the complainant.Further case of the complainant is that on 23/11/2017 he received Allotment Letter of the subjectflat from the O.P.-1 and the sale price of the flat excluding service tax/GST has been mentioned asRs.22,79,806/- instead of Rs.11,40,000/-. Complainant accepted the allotment letter subject toapplicability of the Notification dated 17/08/2015 of the Housing Department, Govt. of WestBengal. Hence, the complainant has filed this consumer complaint praying for change the saleprice of the flat as per original terms and conditions of the price and payment schedule,compensation and litigation cost.The O.P.-1 has contested the case by filing W.V. wherein they have denied all the allegations.Complainant is not a consumer within the purview of the C. P. Act, 1986. The value of the flat isRs.22,79,806/-. Thus, this Forum has no pecuniary jurisdiction to entertain the consumer case. Thepositive case of the answering O.P. is that the complainant approached the O.P.-1 for allotment of2 BHK flat in lower MIG Scheme at Green Wood Nest complex on 16/02/2011 by agreeing thegeneral terms and conditions and also deposited Rs.50,000/- as booking amount. The answeringO.P. vide letter dated 27/02/2012 intimated the complainant regarding selection of his namethrough lottery against Flat No.3C, Meze-2. No allotment letter was issued in favour of thecomplainant. On account of delay in obtaining sanctioned plan from the Jyangra Hatiara No.-2Gram Panchayat, the answering O.P. approached the purchasers including the complainant fortheir approval in writing within 15 days from the date of letter dated 10/08/2012 agreed to waitfor completion of the Project due to force majeure condition. Complainant vide letter dated10/08/2012 agreed to wait till completion of the project and also expressed his unwillingness toreceive the booking amount with agreed interest. The answering O.P. vide letter dated 22/06/2016requested the complainant regarding confirmation for revision of rate in respect of LIG/MIG Unit,Green Wood Nest in terms of Notification No.738-H1/1M-2/2007(Pt) dated 17/08/2015 of theHousing Department, Govt. of West Bengal. The revised rate is fixed by the Housing Department,Govt. of West Bengal after considering the escalation of land, construction and development costof the project. The complainant vide e-mail dated 25/07/2016 confirmed the revised rate of the flatand also terms and conditions of the letter dated 19/07/2016 of the answering O.P.Further case of the answering O.P. is that Rajarhat Panchayat Samity vide Memo No.No.1352/RPS dated 26/05/2017 sanctioned the project plan and project work is going on theanswering O.P. issued allotment letter dated 23/11/2017 to the complainant in respect of FlatNo.3C on the 3 Floor measuring an area of 551 sq. ft. (Built up area 470 sq. ft.) at Green WoodrdNest, Tower- Meze-2, Rajarhat within the District of North 24 Parganas for a total price ofRs.22,79,806/-. Complainant duly accepted the allotment letter and its terms and conditions on21/12/2017. By accepting the allotment letter the complainant has concluded the contract with theanswering O.P. which is valid and binding upon the parties. Complainant also made payment ofRs.4,30,589/- to the answering O.P. on 22/12/2017 at his own will which proves his acceptance ofthe terms of the Allotment Letter. Under Section-62 of the Indian Contract Act, the complainantcannot raise any dispute after accepting the terms of the allotment letter and payment ofRs.4,30,589/-. There is no deficiency in service on the part of the answering O.P. Accordingly, theanswering O.P. has prayed for dismissal of the consumer complaint with cost.-2-
1. 2. 3. 4. In spite of service of notice O.P.-2 did not turn up to contest the case. As such, the case hasproceeded ex-parte against the O.P.-2.In the light of the pleadings of the parties the following points are came up for determination :-Is the consumer complaint maintainable in its present form and in law ?Has the District Forum pecuniary jurisdiction to try and entertain the consumer complaint ?Whether the price charged vide letter dated 22/06/2016 from the complainant against hisallotment of Flat No. 3C, Meze-2 at Green Wood Nest, New Town, Rajarhat is any waydiscriminatory as compared to price and payment schedule annexed with letter dated27/02/2012 of the O.P.-1 ?Is the complainant entitled to get any relief as prayed for ? Decision with ReasonsPoints No.-1 to 4. All the points are taken up together for brevity in discussion. To prove their case both parties have adduced evidence on affidavit. They have also filedquestionnaire and replies vis-à-vis relevant documents in support of their respective cases. Wehave also examined the entire material on record and given a thoughtful consideration to thearguments advanced before us. Fact remains that the complainant approached the O.P.-1 for allotment of 2 BHK Flat inlower MIG Scheme at Green Wood Nest complex, Rajarhat on 16/02/2011 by depositingRs.50,000/- and also accepted the terms and conditions. It is also true that the O.P.-1 issuedprovisional allotment letter in respect of Flat No.-3C, Meze-2 to the complainant. Initially, thevalue of the subject flat was Rs.11,40,000/-. There is also no dispute that on account of variousforce majeure condition which includes delay in obtaining sanctioned plan from the competentauthority the development works of the project got interrupted. Letter dated 10/08/2012,03/07/2014 and 13/07/2015 go to show that the O.P.-1 had approached all the successful persons in the lottery either to wait for completion of the project which got interrupted due to forcemajeure or to take refund of all monies along with interest at the rate of 12 percent per annum oraccept alternate allotment at Baruipur project. It is also true that the complainant vide letter dated10/08/2012 and 21/07/2014 wants to wait till the hurdles are overcome by the O.P.-1 andunwilling to take refund the advance booking money with interest. On perusal of the record it appears that the Housing Department, Govt. of West Bengal byits Notification No.738-H1/1M-2/2007(Pt) dated 17/08/2015 enhanced sale price of LIG/MIG flatof its all housing projects of different Joint Venture Company/Assistant Sector Company ofW.B.H.B. which includes the Green Wood Nest Project where complainant’s subject flat issituated. The revised rate is applicable to the subject project since the project was not commencedprior to such notification and no sanctioned plan was approved by the competent authority. Recordfurther speaks that the O.P.-1 vide letter dated 22/06/2016 and 19/07/2016 intimated thecomplainant about revision of rate in respect of LIG/MIG Unit at green Wood Nest, Rajarhat in -3-
1. terms of the Notification No.738-H1/1M-2/2007(Pt) dated 17/08/2015 of the HousingDepartment, Govt. of West Bengal and the complainant duly accepted the revised rate includingterms and conditions vide letter dated 07/07/2016 and 25/07/2016. Thus, the terms and conditionsare final and also binding upon the parties. We also note that vide letter dated 23/11/2017 the O.P.-1 issued allotment letter of FlatNo.-3C on 3 Floor measuring about 551 sq. ft. built up area at Tower- Maze-2 at Green WoodrdNest for a total price of Rs.22,79,806/- excluding service tax/GST and the complainant dulyaccepted the said allotment letter and its terms and conditions on 21/12/2017 and also madepayment of Rs.4,30,589/- on 22/12/2017 at his own accord. By accepting and making payment interms of the allotment letter the complainant has concluded the said contract with the O.P.-1.Thus, the contract is legal, valid and binding upon the parties. Moreover, it is not the case of thecomplainant that he was forced to sign the terms and conditions of the allotment letter. In terms of the Housing Department Notification dated 17/08/2015 the O.P.-1 is entitled toclaim the revised rate and the complainant cannot raise any dispute regarding terms andconditions which he has already accepted. It is now settled law that the Consumer Fora cannotgot into the questions of pricing as law laid down by the Hon’ble NCDRC in the case of NationalConsumer Awareness Group (Regd) - Vs. - The Housing Commissioner, Punjab HousingDevelopment Board reported in 1998 CTJ 103 (CP) III (1997) CPJ 88 (NC) wherein it was heldthat -“The price is determined by the Board in accordance with the procedure evolved by it and there isno statutory control over the fixation of the price and the same cannot therefore be interferedwith. The pricing of flats built by the public authority or plot developed by the authorities is not aconsumer dispute.” The complainant accepted the terms and conditions of the allotment letter dated23/11/2017 in respect of the subject flat vide letter dated 21/12/2017 and also made payment ofRs.4,30,589/- on 22/12/2017 at his own accord. By accepting and making payment in terms of theallotment letter dated 23/11/2017 the complainant has concluded the said contract with theO.P.-1. Thus, the contract is legal, valid and binding upon the parties. In our opinion, there is nodiscriminatory in the revised price of the flat as compared with the letter dated 27/02/2012 of theO.P.-1 and in terms of the Notification No.738-H1/1M-2/2007(Pt) dated 17/08/2015 of theHousing Department, Govt. of West Bengal. The Ld. Advocate appearing for the O.P.-1 has argued that the value of the subject flat isRs.22,79,806/- and the complainant has claimed compensation of Rs.3,00,000/-. Therefore, thevalue of the subject flat and compensation comes to Rs.25,79,806/-. Thus, the consumer complaintis not maintainable as the District Forum has no jurisdiction to try and entertain the complaint. Onthe contrary, the complainant has contended that the value of the subject flat is Rs.11,40,000/- andhe has claimed Rs.3,00,000/- as compensation. Thus, the value of the subject flat comes toRs.14,40,000/- and this Forum has jurisdiction to entertain the instant consumer complaint. For appreciation of the matter, it would be pertinent to have a look to the provisions ofsection 11 (1) of the Act which provides –“11. Jurisdiction of the District Forum. –-4-
1. Subject to the other provisions of this Act, the District Forum shall have jurisdiction toentertain complaints where the value of the goods or services and compensation, if any, claimed “does not exceed rupees twenty lakhs ”. Needless to say, the jurisdiction means the authority of a Court/Forum to administer justicesubject to the limitations imposed by law, which are three-fold, viz. – (a) as to subject matter; (b)as to territorial jurisdiction and (c) as to pecuniary jurisdiction. If any Court or Forum passes anyorder without any competence, the said order would be a nullity. It is well settled that thequestion of territorial and pecuniary jurisdiction has to be ascertained at the initial stage or in thenascent phase of the proceeding. However, in a decision reported in (2005) 7 SCC 791 (HarshadChiman Lal Modi – vs. – D.L.F. Universal Ltd. & Anr.) the Hon’ble Apex Court has observedthat the question of pecuniary jurisdiction or territorial jurisdiction has to be dealt with before theCourt/Forum where the suit/complaint has been instituted and not in an appellate stage. Therefore, it is incumbent upon a Forum constituted under the Act to see at the time of admissionof complaint that the provisions contained in Section 11or Section 17or Section 21 of the Act arestrictly followed so that a real consumer may not suffer on technical fault at the end of the day. The Act does not specifically lay down as to how a complaint is to be valued for the purposeof jurisdiction. However, the Hon’ble National Commission is consistent with the view that it isthe total value of the goods and / or services as well as that of compensation would determine thepecuniary limit of jurisdiction of Consumer Forum. In a decision reported in 1996 (2) CPR 26(M/S Quality Foils India Pvt. Ltd Vs Bank of Madura Ltd and Anr.) a larger Bench of Hon’bleNational Commission presided by Justice V. Balakrishna Eradi has observed – ‘in our view, where a claim of compensation is pleaded in a Consumer Complaint, then thetotal value of the goods and / or services as well as that of compensation would determine thepecuniary limit of jurisdiction’. In a decision dated 12.03.2012 in RP/2679/2011 (P.S. Srijan Enclave and Ors Vs SanjeevBhargav) the National Commission has observed thus: “ it is settled Law that determination of pecuniary jurisdiction in respect of a dispute regardingservice relating to housing would include the value of the property as a whole as well as thecompensation demanded in the complaint.” Recently, in the case of Ambrish Kumar Shukla & 21 Ors. – Vs. – Ferrous Infrastructure Pvt.Ltd. reported in I (2017) CPJ 1, the Larger Bench of the Hon’ble National Commission whilediscussing on the point has observed thus- “ It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Actthat it’s the value of the goods or services and the compensation, if any, claimed which determinesthe pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination ofthe pecuniary jurisdiction based upon the cost of removing deficiencies in the goods purchased orthe servicers to be rendered to the consumer. Therefore, the cost of removing the defects ordeficiencies in the goods or the services would have no bearing on the determination of thepecuniary jurisdiction. If the aggregate of the value of the goods purchased or the services hiredor availed of by a consumer, when added to the compensation, if any, claimed in the complaint byhim, exceeds Rs.1.00 crore, it is this Commission alone which would have the pecuniary Giving instance to the same it has been stated – ‘ jurisdiction to entertain the complaint ....”. if for-5-
instance, a house is sold for more than Rs. 1.00 crore, certain defects are found in the house, andthe cost of removing those defects is Rs. 5.00 lacs, the complaint would have to be filed before thisCommission, the value of services itself being more than Rs. 1.00 crore’. Therefore, there cannot be any dispute that it is the value of goods or service andcompensation claimed, which determines the pecuniary jurisdiction of the Consumer Forum. TheDistrict Forum enjoys a pecuniary jurisdiction not exceeding Rs.20 lakhs. In the instant case, thevalue of the subject flat, as per revised rate of Housing Department, Govt. of West Bengal isRs.22,79,806/- and the complainant claimed compensation of Rs.3,00,000/- which comes toRs.25,79,806/-. Certainly the claim amount is beyond the pecuniary jurisdiction of the DistrictForum. In view of the above discussion, the consumer complaint is liable to be dismissed and allthe points under determination answered in the negative.In result, the case fails.Hence,OrderedThat the consumer complaint be and the same is dismissed on contest against the O.P.-1 and alsodismissed ex-parte against the O.P.-2 being not maintainable for want of pecuniary jurisdiction.However, there will be no order as to costs. [HON'BLE MR. Swapan Kumar Mahanty] PRESIDENT [HON'BLE MRS. Sahana Ahmed Basu] MEMBER-6-
