Brij Lal Singh vs Ghaziabad Development Authority

We heard learned counsels for the revisionist - complainant and the respondent - Ghaziabad Development Authority (G.D.A.), and perused the material on record.

This revision has been filed by the complainant against the Order dated 22.09.2011 of the State Commission vide which the State Commission allowed the appeal of the G.D.A. and set aside the Order dated 10.12.2009 of the District Forum.

Brief facts, shorn of unnecessary detail, are that the revisionist - complainant was allotted a house under a self-financing scheme of the respondent - G.D.A. on 04.05.1994. He paid the originally estimated cost of Rs.1,72,440/- to the G.D.A. He was inducted into possession of the house by the G.D.A. on 25.08.1994, and has since been in continuous possession thereof. Subsequently the final cost of the house was fixed at Rs.2,51,214/-. He did not pay the difference of Rs.78,774/-, that is, he did not pay the difference between the estimated cost and the final cost. The sale-deed of the house was not executed by the G.D.A. in his favour.

The contention of the complainant was that no amount was due against him, after receiving the "total and last cost" of Rs.1,72,440/- the G.D.A. had handed over possession of the house to him.

The contention of the G.D.A. was that its Vice Chairman has the right to decide the final cost and that the subsequent increase in cost was absolutely correct, the complainant has neither paid the full cost, and nor handed back possession of the house to the G.D.A. as had been affirmed and committed by him prior to taking possession.

The District Forum vide its Order dated 10.12.2009 partially allowed the complaint:

Consequently on the basis of the complete examination by cancelling the increased cost Rs.78,774/- made by the opposite party with regard to the allotted house No. RM-39B Rajender Nagar, Sahibabad, Ghaziabad to the complainant it has been ordered that the opposite party is entitled to increase maximum upto 10% on the estimated cost Rs.1,72,440/- of the allotted house to the complainant and the opposite party according to the above after receiving the increased cost as per law from the complainant of the above allotted house the registered sale deed of the house be executed in favour of the complainant. Both the parties shall bear their cost of this case.

(as per the translated copy furnished by the complainant)

The G.D.A. filed appeal before the State Commission. The State Commission heard both sides, appraised the case, and through a reasoned Order dated 22.09.2011 set aside the Order dated 10.12.2009 of the District Forum and dismissed the complaint of the complainant:

More-over, there is a special feature subsisting in the case before us and it is the affidavit of Sh. Brij Lal which he has submitted while moving an application to the Vice Chairman of the Ghaziabad Development Authority. He had sworn the affidavit, a copy of whereof is annexure No. 4 before us and in that affidavit he had made a commitment that in case, possession of the house was handed-over to him then and there, he would abide by the decision of the Ghaziabad Development Authority in respect of the price escalated, if any. Not only this but he had also made a commitment that if he was not agreeable to pay the escalated cost he would restore the possession of the house to the Development Authority. Mr. Anand has argued that this affidavit was not filed by the appellant before the District Consumer Forum and, therefore, it should not be taken notice of. We are not inclined to uphold this submission as a document like an affidavit cannot be manufactured and this was the affidavit sworn by the respondent / complainant while seeking for delivery of possession. His request for delivery of possession was conceded to by the Ghaziabad Authority and as is admitted to him he entered into possession of the house on 25.08.1994. He has enjoyed the pleasure of possession of the house for about 17 years until the date. Although the litigation is pending for the last 8 years, he has not offered to restore possession of the house to the Ghaziabad Development Authority. He may still have this option and if not willing he is at liberty to return the house and claim his money back without any liability of interest. However, in case he opts to continue with the possession and wants sale-deed to be executed in his favour he has to pay the escalated price of course subject to adjustment of the payments he has made.

Having regard to the sanctity of the affidavit which he has not yet rebutted, we are inclined to accept this appeal, set aside the judgment in question and dismiss the complaint of the respondent / complainant.

In the result, the appeal succeeds and it is hereby allowed.

(underlining supplied by us)

We find the State Commission's impugned Order dated 22.09.2011 to be well-appraised and well-reasoned. We note in particular the observations of the State Commission quoted in para 5 above. On the face of it, we find no jurisdictional error, or a legal principle ignored, or miscarriage of justice.

We note that in his affidavit dated 28.06.1994 the complainant had affirmed as below to the G.D.A.:

That I say on oath that in the event of given possession by the authority I shall pay the decided cost to the authority and if there will be any lapse in the payment then I shall hand over the possession of the above house to the authority.

That I say on oath that my possession of the above house shall be of a leasee till any agreement deed / sale deed executed by the authority in the event of not executing the above deed and not making the payment, the authority shall have right to dispossess me and shall retain the possession and I shall have no objection for that.

That I say on oath that in event of the possession of the house is given to me in the prescribed period I shall get the agreement deed / sale deed executed in my favour from the authority.

That I say on oath that I shall neither sell to anybody nor enter into agreement to sell with any person of the above house without prior permission of the authority.

That I say on oath that the explained condition in the affidavit if violated by me then the authority shall have the right to cancel my allotment and shall take back the possession of the above house for which I shall have no objection.

(as per the translated copy furnished by the G.D.A)

(underlining supplied by us)

We also note that the veracity and authenticity of the said affidavit has not been disproved by the complainant.

The complainant paid the originally estimated cost of Rs.1,72,440/-. The G.D.A. subsequently arrived at the final cost of Rs.2,51,214/-. The complainant did not pay the difference of Rs.78,774/-. The complainant was given possession of the subject house on his affirmation on affidavit to pay the final cost decided by the G.D.A. and in the contingency of any lapse in payment to hand over possession of the subject house to the G.D.A. He did not pay the full cost of the subject house, and has been enjoying possession thereof since 1994.

We may note that there is a distinction between a private builder firm or company and a government development authority. The G.D.A. is a government development authority. It works ( / is required and expected to work) as per the prescribed administrative, financial and technical rules laid-down and prescribed by the government, and its accounts are subject to audit.

It has nowhere been shown by the complainant that the G.D.A. committed any infringement of any administrative, financial or technical rule in his case. Nor has it been shown by the complainant that the G.D.A. has in any manner differentiated between him and other similarly situate persons in the subject or similar self-financing schemes. And it has also not been shown by the complainant that the G.D.A. adopted any arbitrary or wrong or unlawful or corrupt etc. practice in his case.

The revision petition being misconceived and devoid of merit is dismissed.

Needless to add, the G.D.A. shall deal with the complainant's case as per its rules and as per the law, in the normal wont of its functioning