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CASE NO.: Appeal (civil)  7907-7913 of 2003

PETITIONER: TAMIL NADU HOUSING BOARD & Ors.

RESPONDENT: SEA SHORE APARTMENTS OWNERS WELFARE ASSOCIATION

DATE OF JUDGMENT: 09/01/2008

BENCH: C.K. THAKKER & P. SATHASIVAM

JUDGMENT: J U D G M E N T

C.K. Thakker, J.

1.              The present appeals are filed against  an order passed by the State Consumer Disputes  Redressal Commission, Madras (\021State  Commission\022 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 (\021National  Commission\022 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 \021the Board\022) 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 (\021HIG  Scheme\022 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  \023Avail a chance of owning your own flat\024 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.  

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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 [\021Association\022 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 \021the Act\022).  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

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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  \021tentative\022. 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 \021deficiency in service\022 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, \023three-fold defence\022 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

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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 \023not 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\024.  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  \021deficiency in service\022.  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

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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

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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 \021tentative price\022 and it was  subject to \021final price\022 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  \023tentative selling price\024.  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; \023It 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\024.

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

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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 \021delectably  vague\022, 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  \023must also have been taken into consideration  in fixing the tentative selling price\024. 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 \021deficiency in service\022 and that  part was, therefore, illegal.  Accordingly, the  following directions were issued by the State  Commission;  \0231.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\024.

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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 \021housing  construction\022 had been included in the  definition of \021service\022 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 \021fixation  of price\022 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; \023When 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

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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\024. 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 \021price  fixation\022 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; \023Conceding 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

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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;         \023The 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

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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\024.

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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;  \023Even 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\024.                               (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;  \023It is to be noted that the respondent  herself had accepted in the  undertaking that she accepted the  allotment of the house and undertook

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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\024. 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 \021housing construction\022 within the  meaning of \021service\022 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 \021tentative price\022.  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

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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; \023A 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\024.   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 \021Shylockean  attitude\022.  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

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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.