Jeevan Adhar Co-operative House Building Society Ltd. v. Chandigarh Housing Board and Anr.

2. The present appeal arises from the Order dated 08.11.2019 passed by the National Consumer Disputes Redressal Commission, New Delhi[2] in MA/525/2017 in First Appeals No.150-152 of 1999 (hereinafter referred to as the ‘Impugned Order’), whereby the NCDRC noted that the Now ‘Jeevan Adhar Co-op House Building First Society Ltd.’. Hereinafter abbreviated to ‘NCDRC’. complainant (Appellant herein) is entitled to escalation w.e.f.[3] 23.12.1994 to 30.04.1997 and proceeded to dispose of the execution application holding that the Order of the NCDRC, as modified by this Court, stood complied with.

THE FACTUAL MILIEU:

3. On 28.05.1991, The Administrator, Union Territory, Chandigarh notified the scheme for allotment of land to Co-operative House Building Societies in the Union Territory of Chandigarh through the Chandigarh Housing Board (Respondent No.1 herein) with a view to promote private housing and optimum utilization of land by constructing multi-storied structures. The Chandigarh Housing Board by a Letter dated 24.10.1991 informed the complainant to deposit 25% of the price of the land to be allotted, which the complainant deposited by 31.01.1992. The land was to be allotted before 31.05.1992, and the complainant alleged that the Chandigarh Housing Board failed to give possession within the agreed time-frame. Subsequently, on 04.06.1993, the complainant was informed that they have been allotted 1.12 acres of land in Sector 49A, Chandigarh. It is alleged that there was a lapse on the part of Chandigarh Housing Board for the delay in passing over the price to the Abbreviation for ‘with effect from’. Chandigarh Administration. Thereafter, the complainant received another Letter of Allotment dated 23.12.1994 informing that the allotment in Sector 49 stands cancelled and they have been allotted land in Sector 48A. The possession of the land was finally delivered to the complainant on 06.09.1995.

4. The complainant filed Complaints No.20 & 22 of 1996 alleging deficiencies on account of delay in delivery of possession and for want of basic essential services on the part of the respondents/opposite parties therein despite receiving more than 25% of the price for the land. The Consumer Disputes Redressal Commission, Union Territory, Chandigarh (hereinafter referred to as the ‘State Commission’) vide Order dated 25.01.1999 partly allowed the complaint holding that there was deficiency in service as the land remained undeveloped, for the requisite sanction from the Divisional Town Planner was obtained on 10.10.1996, which was after the institution of the complaint. It was held that the opposite parties were not entitled to ground rent/lease money. The complainant was held entitled to 5% rebate, where the payment had been made in time. The complainant was further held entitled to interest @ 18% p.a.[4] from 31.01.1992 till the Chief Engineer of the Chandigarh Administration or an officer next below him would certify in writing that the land in Expands to ‘per annum’. question had become habitable and the amount recoverable in this regard should be adjustable qua the future ground rent/lease money. The complainants were held entitled to get a consolidated cost of Rs.5,000/- (Rupees Five Thousand).

5. The appellant filed First Appeal No.55 of 1999 against the order passed in Complaint No.22 of 1996, and First Appeal No.74 of 1999 against the order passed in Complaint No.20 of 1996. The Respondent also moved the NCDRC by filing First Appeals No.150-152 of 1999 against the above order. The NCDRC vide Order dated 07.07.2008, partly allowed the appeal of the Chandigarh Housing Board and reduced the interest from 18% p.a. to 12% p.a. on the amounts deposited by the complainant. Further, the appeal by the appellant was also partly allowed and it was held: ‘As regards cost of escalation, the complainant would be entitled to the cost of escalation w.e.f. the date of allotment i.e. 23-12-1994 and not earlier date and the cost of escalation would be confined to the very limited period, till the plan as sanctioned in 10.10.1996, plus a reasonable time of six months to get the plan proposed and get it sanctioned. We fix this date 30-04-1997. If any further delay was caused in raising construction Ops/Appellant would not be liable to pay escalation in the cost of construction. Unfortunately Jeewan Adhaar Cooperative House Building Society Ltd. In this appeal has not given any estimate about the escalation cost of construction between the aforesaid period. The cost of construction between the aforesaid period. The cost of escalation is required to be calculated on the basis of PWD schedule of rates on the basis of difference in rates between dates of allotment and 30-04-1997 on the basis of permissible FAR on the allotted land. The Chandigarh Housing Board shall get it calculated by the Architect of Chandigarh Administration and is directed to deposit the amount to cost of escalation within six months with the State Commission for payment to the complainant Jeewan Adhaar Co-operative House Building Society with interest @ 9% on the amount of cost of escalation. The appeal of Jeewan adhaar Co-operative House Building Society Ltd. is allowed in part in above terms.’

6. The appellant filed a Review Petition before the NCDRC being M.A. No.207 of 2008 in First Appeals No.55 & 74 of 1999 contending that the respondents therein themselves have admitted that the land was fit for construction only on 15.10.1998. On this basis, they sought: i) the lease rent and interest on installments be charged from 15.10.1998, and; ii) the cost of escalation be allowed upto 15.10.1998 instead of 10.10.1996. Vide Order dated 24.10.2008, the NCDRC noted that the limited question that arose for its consideration was the date from which the complainant would be charged lease rent and interest on installments. It was further noted that at Page 10 of the Order dated 07.07.2008, the date(s) were mentioned as 10.10.1996. The NCDRC, relying on Letter dated 08.03.2000 of the Chief Engineer, Chandigarh Administration, allowed the review and held ‘… there is an error apparent on the fact of the record hence in view of the provisions of section 22 of the Consumer Protection Act at second para of page 10 of our order the dates mentioned stands substituted as 15.10.1998 instead of 10.10.1996.’

7. Thereafter, the appellant approached this Court by way of Special Leave Petitions (Civil) No.693-696 of 2009, which became Civil Appeals No.1675-1678 of 2010. Vide Order dated 16.08.2017, these appeals were disposed of by reducing the rate of interest awarded by the NCDRC from 18% p.a. to 9% p.a. Subsequently, M.A. No.525 of 2017 was filed by the appellant in First Appeals No.150-152 of 2017 before the NCDRC for execution of the Order dated 16.08.2017 passed by this Court. Vide the Impugned Order, the NCDRC disposed of the application, inter alia, noting that the order of the NCDRC, as modified by this Court, stands complied with.

SUBMISSIONS BY THE APPELLANT:

8. Learned senior counsel Mr. G. Umapathy, contended that the NCDRC failed to appreciate that by the Order dated 24.10.2008 passed in the Review Petition, the date(s) was/were changed from 10.10.1996 to 15.10.1998 at Page 10 of the Order dated 07.07.2008 passed in First Appeals No.55 & 74 of 1999, so the escalation and interest on deposit would be charged up to 15.10.1998 instead of 10.10.1996. In the face of this, it was argued that the NCDRC fell in error by holding that the appellant would be entitled to escalation w.e.f. 23.12.1994 to 30.04.1997, when it actually should have been 15.10.1998 as was decided in the Order dated 24.10.2008.

9. It was argued that this Court vide the Order dated 16.08.2017 merely altered the rate of interest from 18% p.a. awarded by the NCDRC to 9% p.a.. Thus, the other findings attained finality and the period of grant of escalation and interest on deposit remained unaltered from 23.12.1994 to 15.10.1998. It was vehemently argued that the NCDRC erred in traversing beyond the order passed by it in M.A. No.207 of 2008 and the Order dated 16.08.2017 passed in C.A. Nos.1675-1678 of 2010 by this Court, which was wholly impermissible.

10. Learned senior counsel relied on certain precedents and argued that an Executing Court cannot go beyond the order under execution, unless it is shown that the order in question was passed by a Court inherently lacking jurisdiction, which would make it a nullity. In the present case, the Impugned Order is wholly without jurisdiction as the NCDRC could not have gone beyond the affirmed order passed by this Court and such order could not have been varied at the stage of execution.

11. It was pointed out that the Chandigarh Housing Board itself has admitted in Para 6 of the Reply filed pursuant to the Order dated 24.10.2008 of the NCDRC that the appellant is entitled to escalation from 23.12.1994 to 15.10.1998 and the interest thereon, and that the said amount has to be calculated as per PWD Schedule rates, and that CPWD rates as calculated by itself and PEC are almost the same. In such an event, it was argued, restricting escalation to 30.04.1997 is both contrary to facts and law and in any event is beyond jurisdiction, tantamounting to going behind the decree affirmed by this Court. On these grounds, it was prayed to allow the appeal and set aside the Impugned Order.

SUBMISSIONS BY RESPONDENT NO.1:

12. Per contra, learned counsel Mr. S.N. Terdal argued that the Appellant has raised a legally unsustainable demand beyond the unambiguous terms of the Review Order dated 24.10.2008, by wrongly claiming that not just in the second paragraph at Page 10 of the NCDRC Order dated 07.07.2008, but the dates mentioned should be read as substituted [as 15.10.1998 instead of 10.10.1996] in the entire text of the Order dated 07.07.2008.

13. It was contended that the said legally untenable assertion of the appellant was rightly rejected by the NCDRC vide the Impugned Order, which being unexceptionable, deserves to be upheld by this Court. It was argued that the Appellant is, in fact, seeking undue benefit at the cost of public funds by seeking to re-write the said unchallenged ex-parte Order dated 24.10.2008 of the NCDRC, which was obtained by the appellant more than 15 years back.