ORDER
B.K. Taimni, Member
1. Petitioner was the Opposite Party before the District Forum where two separate complaints were filed by (i) M.S. Badgujar and (ii) Artist Village Apartment Owner’s Association. Since the cause of action was the same, the District Forum went on the decide the complaint through a single order passed b ti on 18.4.1998 wherein Petitioner was held to be deficient in rendering the services. Two separate appeals were filed by the Petitioner which were dismissed by a single order – hence this Revision Petition. We also go on to pass a single order on two Revision Petitions filed before us.
2. Brief facts of the case are that the Petitioner floated a scheme ‘Own your Home Scheme 85’ in Belapur, New Bombay wherein the Petitioner was to provide various categories of separate built up houses wit a provision to further construct within the FSI provided under the various enactments of the Maharashtra State Government. The exact language used in the Brochure in us follows:
“Each house has a small courtyard and/or terrace to augment the built-up space. Furthermore, the houses are incremental, i.e. they can be extended by their occupants (as indicated in the designs). In order to achieve this, each house has been built on an individual site. The principal bearing walls are independent of those of the neighbours – thus allowing any house to be extended unilaterally (with the previous permission of the Town Planning Officer of CIDCO).”
(emphasis supplied)
3. After taking over the possession of the houses, when the residents approached the Petitioner to obtaining approval for further construction but within the FSI, the Petitioner asked for additional premium for the same, quoting several provisions of the Brochure, Sale-Deed, General Development Control Regulations, some instructions/letters issued by the State Government and other Documents. Alleging deficiency on the part of Petitioner by way of demanding additional premium for incremental construction, when no such provision exists either in the Brochure or Sale-deed, a complaint was filed before the District Forum, who after examining all the arguments/material/instructions on the subject held that the Petitioner CIDCO has no authority to ask for additional premium for incremental construction with the FSI. Appeals filed against this order by the Petitioner, before the State Commission, were dismissed, hence these Revision Petitions.
4. It is argued by the Learned Counsel for the Petitioner that both the lower forum erred in their appreciation of law and facts, hence arrived at a erroneous conclusion. In support of this he relies on Clause 2(d) and 2(j) and Clause 3 of the Lease Deed executed between the parties.
5. These clauses read as under:
2(d) – Not to damage or destroy or demolish the said building constructed thereon or permit or suffer any damage to or destruction demolition of the said buildings and not to erect any structure, permanent or temporary on the said land without the consent in writing of the Corporation.
2(j) – At the end of the term hereby granted or upon the sooner determination there of to yield up and quiet deliver to the Corporation the said land and the said building and all fittings and fixtures therein good and tenantable repair without demanding or being entitled to receive any compensation of the loss thereof or any part thereof.
6. From Clause 3, the Learned Counsel wanted to draw our attention that it provided for summary eviction in case of breach of conditions, as also the Petitioner not only remained the owner of the land but also retained general control of the use and maintenance of the tenements. No constructions could be carried out without prior permission.
7. It was also argued by the Petitioner that the case ‘for practical purposes’ – amounts to a pricing dispute which cannot be gone into the consumer forum. It was also argued by the Learned Counsel for the Petitioner that they have a right to charge additional premium on unutilized FSI for which law was laid by the Division Bench of Bombay High Court in writ Petition 1779 of 1990. Their case is also supported by Clause 3(VI) and Clause 7 of the New Bombay Land Development Regulations Learned Counsel for the Petition also relied upon the circular dated 6.8.1993 in support of his contention. Finally, the complaint ought to have been dismissed as time barred. On the basis of all the points of law raised by the Petitioner this Petition needs to be allowed and complaint needs to be dismissed as it can have very serious for reaching remifications and financial implications on the State Government. On the other hand, it was argued by the Complainants that all the points are mere repetitions of the points raised before the District Forum and State Commission. They have been examined at the length by both the lower forums and arrived at a concurrent finding both on facts and law. No new point has been raised in Revision Petition calling for interference in the well reasoned order of the District Forum and affirmed by the State Commission, hence this Petition needs to be dismissed with costs.
8. We have heard the arguments and perused the voluminous material on record. As has been rightly discussed by both the lower forums, only point of controversy is whether the Petitioner could charge additional premium on incremental constructions within the FSI on the built up flats handed over by the Petitioner to the Artists under the said scheme?
9. On perusal of material on record we see that as already discussed by the District Forum Clause 2(d) and (f) of the sale deed does not entitle the Petitioner to charge additional premium. What Clause 2(d) states is that no structure can be erected on the said land without a written consent of the Corporation. This is not the case here. In compliance of this provision, application was made seeking consent of the Petitioner for additional construction. Clause 2(f) is not relevant as it laid down the point relating to re-entry or resumption of land. We are not concerned with the issue here. As for Clause 3 of the Sale deed is concerned, again it does not help the Petitioner. Nowhere it states the right of the Petitioner to charge additional premium on the incremental construction. All these need to be viewed in the light of what is contained in the Brochure.
Furthermore, the houses on incremental i.e. they can be extended by their occupants (as indicated in the design) in order to achieve this——.’
10. The design and lay out of the houses was such – the principal bearing walls are independent —- thus allowing any house to be extended unilaterally (with the previous permission of the Tour Planning Officer of CIDCO). There is not a whisper of any additional premium payable for incremental construction but within the FSI.
11. A bogie is now being attempted to be raised that there is a pricing dispute – hence outside the purview of consumer forums – Nothing can be far from truth. Both the District Forum and the State Commission have dealt with the point ably keeping in view the orders passed by this Commission. Asking for additional premium is not an issue of price of a flat/house. We see no merit in this argument.
12. We have also seen the judgments of Bombay High Court passed in W.P. 1779/90. The opening words of the judgment are “—– under the terms and conditions of the contract, the Respondents were entitled to levy and charge the premium in question for the use of residuary FSI”. Suffice here to say that there was no such provision either in the Brochure or the State Deed, i.e. the contract. Hence the judgment does not apply in the facts of the present case.
13. We have also seen the judgments of Bombay High Court passed in W.P. 1779/90. The opening words of the judgment are “—– under the terms and conditions of the contract the Respondents were entitled to levy and charge the premium in question for the use of residuary FSI”. Suffice here to say that there was no such provision either in the Brochure or the State Deed, i.e. the contract. Hence the judgment does not apply in the facts of the present case.
14. We have also seen Clause 3(VI) and Clause 7 of the new Bombay Disposal of Land Regulations 12975, which read as under:
Clause 3(VI). To build according to the building regulations of municipal regulations or development control rules in force from time to time – The lessee shall not at any time during the lease erect any building, erection or structure or any portion of the demised land except in accordance with the building, regulations or development control rules framed by the Corporation from tie to time or the municipal regulations or nay other regulations in force from time to time.
Clause 7 – Permission for extension of time – If the intending lessee obtains development permission and commences construction in accordance with the conditions of agreement to lease made between him and the Corporation but has been unable to complete the construction within the time stipulated in the agreement to lease for reasons beyond his control, the Managing Director may permit extension of time for completing of buildings, factory, structure or other work on payment of additional premium at the following rates.
15. A simple reading of these provision will reveal that they are not even remotely related to the case in hand. Clause 3(VI) is applicable where in the Petitioner has leased out the ‘land’ only to the lessee. This is not the case here. In the instant case, certain construction has already been made – within the F.S.I. Clause 7 is not relevant here. No time limit was prescribed either in the Brochure or in the Lease Deed for carrying out the incremental construction. Having done that CIDCO now i attempting to take shelter in totally unrelated, irrelevant grounds. It will not be incorrect to state that these Regulations relate to disposal of land wherein we are concerned with a post-construction (may be in part) stage. No merit is seen in this argument.
16. As far as the question of limitation raised by the Petition is concerned, we see that this point has been very ably discussed at length at the District Forum and we are in full agreement with the reasoning given by it, when it held the complaint to be within time as well as covered by the provisions of Consumer Protection Act, 1986.
17. We have also seen the circular dated 6.8.1993 revising the terms and conditions for grant of permission to the apartment owners, which allegedly now confers authority to charge additional premium for construction of additional areas, which is now available to them (apartment owners) due to modification in the GDCRs regarding Balconies, staircases and other areas of buildings. We see that two things in this circular go against the Petitioner. One – that this related to those apartments wherein certain addition FSI accrued on account of change in the Regulations with regard to Balconies/Staircases, etc. This was not the case here Brochure of the Artist Village under ‘Own Your house Scheme-85’ was quite categorical for construction of additional incremental area. The Scheme envisaged part construction by the Petitioner for a certain price and rest of construction left for the purchaser. In our view these instructions shall have no bearing in the present case, keeping in view the facts of the case and the spirit behind issue of the circular. This circular cannot have any bearing in the instant case for another reason, i.e. Application for incremental construction was made in 1992, whereas these instructions were made effective with immediate effect in August, 1993. On both these counts, this circular cannot have any bearing on the case in hand.
18. In view of the above, we see no merit in the Revision Petition filed before us and are dismissed with costs of Rs. 5,000/- in each case which should be paid within six weeks of the order.