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PETITIONER: GHAZIABAD DEVELOPMENT AUTHORITY

       Vs.

RESPONDENT: SANCHAR VIHAR SAHKARI AVAS SAMITILTD., GHAZIABAD

DATE OF JUDGMENT:       10/05/1996

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) KURDUKAR S.P. (J)

CITATION:  1996 AIR 2021            1996 SCALE  (4)497

ACT:

HEADNOTE:

JUDGMENT:                             WITH                 CIVIL APPEAL NO-7439 OF 1995 Sanchar Vihar Sahkari Avas Samiti Ltd., Ghaziabad V. Ghaziabad Development Authority, Ghaziabad                          O R D E R S.P. KURDUKAR,J.      These two  appeals can  be disposed  of by  this common order since they arise out of a judgment and order dated May 19, 1995  in Original Petition No.345 of 1993 passeed by the National Consumer  Disputes Redressal  Commission, New Delhi (for short ’National Commission’). 2.   Civil Appeal  No.7199 of  1995 is  filed  by  Ghaziabad Development Authority  through  its  Vice  Chairman  whereas Civil Appeal  No.7439 of  1995 is  filed  by  Sanchar  Vihar Sehkari Avas Samiti Ltd., Ghaziabad (hereinafter referred to as the ’Complainant’). 3. The  complainant is  the society  company, comprising  of about 200  persons as  its members.  They have been allotted the plots  under the  scheme called  G.D.A.’s  Govind  Puram Plots/Housing, Code:  537, 538 and 539. It is averred in the petition by  the complainant  that the Ghaziabad Development Authority has  violated the terms and conditions inasmuch as failed to  put them  in possession  of the  plots within the stipulated period  as prescribed  in rule 15 of the brochure issued by  the Ghaziabad  Development Authority (hereinafter referred to  as the  ’Authority’). It  is further complained that the Authority has charged interest in contravention and in violation  of clause  3.50 of the brochure as these plots have been  resistered under the Self Financing Scheme. It is further averred  that the  Authority has  also charged penal interest  for   delayed  payment  of  the  instalments.  The complainant,  therefore,   prayed  that   the  Authority  be directed to  give possession  of the  duly  developed  plots

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within  three   months  from  the  date  of  order  of  this Commission;  to   refund  the  amount  of  Rs.  26,70,246.00 recovered by  way of  interest and  penal  interest  on  the instalments: and  pay interest @ 18% per annum on the amount deposited with the Authority w.e.f. April 19,1992. 4. The  Authority filed its reply to the aforesaid complaint and stated  that the plots have been allotted to the members of  the   complainant  on  16.3.1994.  and  the  letters  of allotment have  been sent  to them.  As regards  charging of interest, it  is stated that clause 3.50 of brochure relates to flats  and houses  built under  Self Financing Scheme and the said  clause does  not apply to the plots. The Authority relied upon  column 9  in Annexure-1 of the brochure wherein it is  provided that  balance amount  payable  in  six  half yearly  instalments   with  15%   interest.  The  Authority, therefore, prayed  that the  claim of  the claimant  is  not sustainable and the complaint be dismissed. 5. The  National Commission  on perusal  of the materials on record held  that the complainant has made out no ground for awarding any  interest or  damages. The National Commission, however, opined  that the  Authority which has collected the interest amounting  to Rs.  25,37,669/- as  indicated in the complaint had  no authority  to charge  the same  in view of clause 3.50  which relates  to Self  Financing  Scheme.  The National Commission  further  held  that  the  Authority  is within its  rights to charge penal interest for the delay in payment of  instalments. Consistent  with these findings the National Commission by its order dated May 19, 1995 directed the Authority to refund the amount of interest charged @ 14% on the  basis of  column 9 of table 1 to the complainant. It is this  order which  is the  subject matter of challenge in both these appeals. 6. Civil  Appeal No,7199  of 1995  is fiIed by the Authority challenging the  order of  the National  Commission  to  the extent it  directs the  Authority to  return the  amount  of Rs.25,37,669.00 to  the complainant.  The complainant  being partly aggrieved  by the  impugned order of Commission filed Civil Appeal  No.7439  of  1995  whereby  it  permitted  the Authority to  charge penal  interest on  delayed payment  of instalments. 7. Heard  learned counsel  for the  parties and  perused the materials on  record. The  entire controversy  in both these appeals centers around the interpretation of clause 3.50 and column 9  of table  1, Annexure  1 of the brochure issLed by the Authority.  It  is  not  disputed  before  us  that  the claimants’ claim  arise under  the brochure  and clause 3.50 and table  1 are  part of the said brochure. The brochure is at Annexure-1  in Civil Appeal No. 7439 of 1995 filed by the complainant. Title  of the brochure is Govind Puram Plots-be directed to  give possession  of the  duly  developed  plots within  three   months  from  the  date  of  order  of  this Commission;  to   refund  the   amount  of   Rs.26˜70?246.00 recovered My  way of  interest and  penal  interest  on  the instalments; and  pay interest 3 18% per annum on the amqunt deposited with the Authority w.e.f. April 19, 1992. 4. The  Authority filed its reply to the aforesaid complaint and stated  that the plots have been allotted to the members of the complainant on 16.3.1994 and the letters of allotment have been  sent to them. As regardg charging of interest, it it stated  that clause 3.50 of brochure relates to flats and houses built  under Self  Financing  Schemes  and  the  said clause does  not apply  to the  plots. The  Authority relied upon column  9 in  Annexure-l of  the brochure wherein it is provided that  balance amount  payable in  six  half  yearly instalments with  15% interest.  The  Authority,  therefore,

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prayed that the claim of the claimant is not sustainable and the complaint be dismissed. 5. The  National Commission  on perusal  of the materials on record held  that the complainant has made out no ground for awarding any  interest or  damages. The National Commission, however, opined  that the  Authority which has collected the interest amounting  to Rs.  25,37,669/- as  indicated in the complaint had  no authority  to charge  the same  in view of clause 3.50  which relates  to Self  Financing  Scheme.  The National Commission  further  held  that  the  Authority  is within its  rights to charge penal interest for the delay in payment of  instalments. Consistent  with these findings the National Commission by its order dated May 19, 1995 directed the Authority to refund the amount of interest charged @ 14% on the  basis of  column 9 of table 1 to the complainant. it is this  order which  is the  subject matter  of challege in both these appeals. 6. Civil  Appeal No.  7199 of 1995 is filed by the Authority challenging the  order of  the National  Commission  to  the extent it  directs the Authority to return the amount of Rs. 25,37,669.00  to  the  complainant.  The  complainant  being partly aggrieved  by the  impugned order of Commission filed Civil Appeal  No. 7439  of 1995  whereby  it  permitted  the Authority to  charge penal  interest on  delayed payment  of instalments. 7. Heard  learned counsel  for the  parties and  perused the materials on  record. The  entire controversy  in both these appeals centers around the interpretation of clause 3.50 and column 9  of table  1, Annexure  1 of the brochure issued by the Authority.  It  is  not  disputed  before  us  that  the claimants’ claim  arise under  the brochure  and clause 3.50 and table  1 are  part of the said brochure. The brochure is at Annexure-1  in Civil  Appeal No.7439 of 1995 filed by the complainant.  Title   of  the   brochure  is   Govind  Puram Plots/Housing, Code  537, 538  and 539.  It is issued by the Ghaziabad Development  Authority, Ghaziabad,  Uttar Pradesh. It is common premise that the said brochure is applicable to the  housing   scheme  of   the  complainant.  In  order  to appreciate  the   rival  contention  we  may  reproduce  the relevant clauses of the brochure. 8. Clause  3.44 deals  with the  instalments.  It  reads  as under:      Balance cost of the Plots/Houses is      payable if half yearly instalments,      details  of   which  are  given  in      column 9  of table  1. More details      will be intimated afterwards.      Clause 3.50-  Interest  payable  on      instalments:      No   interest    is   payable    on      instalments  under  Self  Financing      Schemes and 15% interest is payable      on instalments  under the  Purchase      Scheme. 9. Table  1 annexed  to the  brochure sets  out the  various details in  twelve columns.  The relevant  column in table 1 column 9 and it reads as under:      "balance amount payable in six half      yearly   instalments    with    15%      interest". 10. Mr.  O.P. Rana,  learned  Senior  counsel  appearing  in support of  Civil Appeal  filed by  the Authority  contended that the  entire brochure  has to  be read  together because this was  an advertisement  to the  public at  large and  in terms of the brochure applications from the eligible persons

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were invited  for  allotting  houses/plots  under  the  said scheme.  When  the  applicants/members  of  the  complainant applied to  the Authority  under the  present  scheme  their applications were processed, scrutinized as peW the brochure and were  given  the  instalment  facility  as  regards  the payment of  balance amount in six half yearly instalments in terms of  column 9,  table 1  annexed to  the said brochure. Column 9 provides that if the facility of payment of balance amount in  six half  yearly instalments is being availed of, then applicants are required to pay interest @ 15% per annum on the  balance amount  of instalments.  He urged  that  the members of the complainant did avail the facility of payment of balance  amount in  six half  yearly instalments  as  per column 9 in table 1 and accordingly paid the interest at 15% per annum.  Mr. O.P.  Rana, therefore, urged that it is open to  the   complainant  now   to  say   that  the  amount  of 26,70,246.00 paid  to the  Authority was not payable and the same be refunded. 11. Mr.  Narender Kaushik, learned counsel appearing for the complainant, however,  strongly relied  upon the  wording of clause 3.50  of the  brochure and  urged that  the  National Commission has  committed no  error in  issuing direction to the Authority  to refund the amount of Rs.25,37,669/- to the complainant. 12. In our opinion the National Commission was not justified in dissecting  clause 3.50  and column  9 of  table 1 of the brochure. The  brochure published by the Authority has to be read together.  It is  true that clause 3.50 is silent about the liability  of the applicant to pay the interest @ 15% on the balance  amount but that clause in our opinion has to be read with  table 1, column 9. This we say so because table 1 sets cut  the details relating to scheme, name and code, the property category,  number of plots, approximate cost of the plots,   payment   plan/pay   plan,   registration   amount, reservation amount,  balance amount  payment  schedule  etc. Since the  complainant and  its  members  have  availed  the facility of  payment of balance amount in the Self Financing Scheme in  six half  yearly instalments and accordingly paid the interest  with 15% per annum it would be too late in the day to  say that  in the Self Financing Scheme they were not liable to  pay interest  on the balance amount as claimed by the Authority.  If the  members of  the complainant were not agreeable to  the payment  of interest on the balance amount 3.50 as prescribed in column 9 of table 1 then they ought to have objected  to the liability to pay the interest provided therein  and   should  have   raised  the   dispute  at  the appropriate time.  Having acquiesced  in the mode of payment in instalments  as per column 9 of table 1 in our opinion it would not  be permissible  for the  complainant to  raise  a dispute as  regards the  payment of  interest thereon. It is thus in  our opinion  that the  finding of the Tribunal, "We have carefully  perused the  brochure and  find that  clause 3.50 makes  no distinction  between the houses and plots. In any case  rule clearly states that no interest is payable on instalments under the Self Financing Scheme. Column 9 in the table in Annexure-I cannot override the rule as mentioned in clause 3.50.  We  are,  therefore,  of  the  view  that  the interest cannot  be charged  from those who have applied for the plots  under Self  Financing Scheme",  is  an  erroneous interpretation of the brochure and in particular clause 3.50 and column  9 of table 1. The entire brochure is required to be read  as a  whole as  it relates  to various  schemes  of housing to  the eligible  persons. Table  1 which is part of brochure has  to be  read in consonance with clause 3.50. It would not  be correct  to read  clause 3.50  in isolation to

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column 9 of table 1 and to come to the conclusion that since no provision as regards the interest is made in clause 3.50, the Authority  is not  entitled to  charge interest  on  the balance amount being paid in instalments. We are, therefore, of the  opinion that  clause 3.50  is required to be read in conjunction with  column 9  of table 1 of the brochure. With respect we  are unable  to agree  with the  finding  of  the National Commission  on this  issue and accordingly the same is unsustainable. 13. Coming  to the  appeal filed  by the  complainant (Civil Appeal No.7439  of 1995)  we are  of the  opinion  that  the National Commission has made no mistake in refusing interest or damages  for delayed  possession  of  the  plots  to  the members of  the complainant.  During the course of arguments it was brought to our notice that the lands in question were the subject  matter  of  land  acquisition  proceedings  and because  of   the  interim   orders  obtained  by  the  land owners/claimants the  authority was  unable to  finalize the acquisition proceedings  and  obtained  possession  thereof. During the  course  of  hearing,  learned  counsel  for  the claimants produced in Court a zerox copy of the letter dated 19.2.1996 addressed  to the  individual plot  holders. It is signed by  the Joint Secretary, Ghaziabad Vikas Pardhitaran, Ghaziabad. Taken  on record. We have perused the said letter and Mr.  Rana, learned  Senior counsel,  appearing  for  the Authority assured  the Court that every necessary steps will be taken by the Authority to hand over the possession of the plots to  the applicants  who have  been allotted  the plots under the  present scheme. We hope the Authority will do the needful in terms of the letter dated 19.2.1996. 14.  In   the  result  the  order  passed  by  the  National Commission   to   refund   the   amount   of   interest   of Rs.25,27,669/- to  the complainant  is quashed and set aside and the  Civil Appeal  No.7199 of  1995 filed  by  Ghaziabad Development Authority  is allowed.  Civil Appeal  No.7439 of 1995 filed  by the complainant is dismissed. The parties are directed to bear their own costs.