ORDER
C.M. Nayar, J. (Chairman)
1. The present complaint has been filed under Sections 36B(a) and 10(a)(i) of the Monopolistic and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the Act). The respondent in the month of March, 1998 floated a Residential Scheme by the name of “Swarn Nagri” in Sector 31, Greater Noida situated near Surajpur-Kasna Road, Distt. Gautam Budh Nagar, U.P. and invited the general public through newspapers and other media to apply for residential plot in the aforesaid scheme @ Rs. 1,600/- per sq. mtr. The applicant obtained an application form and the Brochure at a cost of Rs. 250/- for making an application to the respondent for allotment of a plot. It is submitted by the complainant that the respondent has represented inter-alia that the residential plots would be allotted to the applicants @ Rs. 1,600/- per sq. mtr. Therefore, the complainant was required to pay a total amount of Rs. 3,20,000/- for a plot of 200 sq. mtrs. A sum of Rs. 40,000/- as Registration Fee was deposited on 23rd March, 1998.
2. The complainant has next stated that various clauses of the Brochure as issued by the respondent were in the nature of unfair and restrictive trade practices, thus violating the provisions of the Act. Paragraph 8 of the complaint may be referred to as below :
“That a perusal of the respondent’s Brochure revealed that several of its clauses were in the nature of unfair and restrictive trade practices in terms of the provisions of the Act as they were deceptive, misleading and tended to bring about manipulation of prices and/or conditions of delivery of services so as to impose unjustified costs and restrictions on the consumers. Some of the impugned clauses of the Brochure are reproduced herein below ;
(a) A-5 : Normally no extension in payments shall be allowed. If the amount payable to the Authority is not paid within prescribed time limit, extension of time for such default period under very exceptional cirucumstances may be allowed upto maximum of 3 months subject to the condition that during the entire payment plan such extension shall not be more than three. In the event of extension, interest @ 20% per annum compoundable quarterly shall be payable On the defaulted amount for the default period.
(b) A-6 : The total cost of the plot as mentioned above may vary as the actual dimensions of the plot. Also in case of increase in cost of acquisition or development, the increase in cost shall be borne by the allottee proportionately.
(c) B-3 : The Greater Noida Industrial Development Authority reserves the right to revise land premium at any stage prior to allotment. If rates are revised, applicants would be informed through a press release which would appear in the last week of April, 1998. Allotment would be decided by draw of lots amongst those applicants who convey their cosent in writing.
(d) E : Those applicants who have not been allotted plots will be returned their Registration Money without interest. If the period of deposit of such money with the Authority is less than one year. However, if the period of deposit is more than one year, 6% simple interest shall be paid for the entire period of deposit.
(e) F: SURRENDER/CANCELLATION :
F-1 : In case of surrender before allotment the entire Registration Money deposited shall be refunded without interest.
F-2 : In case of surrender after the allotment but within 30 days from the date of allotment, 10% of the Registration Money shall be forfeited and balance amount deposited shall be refunded without interest.
F-3 : In case of surrender after 30 days and within 45 days of allotment, 50% of the Registration Money will be forfeited and balance amount deposited shall be refunded without any interest. “No separate notice shall be given for the same”.
F-4 : In case the allotment is sought to be surrendered after 45 days but before 6 months from the date of allotment. 10% deduction of the total premium of plot shall be made. Balance amount, if any, shall be refunded without any interest “No separate notice shall be given for the same”.
F-5 : In case the allottee fails to deposit the due amount within the stipulated time, allotment will be liable for cancellation and in case of such cancellation, the money so deposited till the date of cancellation will be forfeited.
P-1 : The Chief Executive Officer or any authorised officer reserves the right to make such additions/ alternation or modification in the terms and conditions of allotment from time to time as he may consider just expedient.
P-3 : If due to any “Force majeure ” or such circumstances beyond the Authority’s control, the Authority is unable to make allotment or the possession of the allotted plot, entire registration or the deposits, depending on the stage of allotment will be refunded along with simple interest at the rate of 6% per annum if delay in refund is more than one year from such date.”
3. The price of the plot was subsequently raised to Rs. 2,400/- per sq. mtr. as will be evident from reading of communication dated 17th June, 1998 which was sent to the complainant and the same may be reproduced as under :
“The Authority in reference to the condition B-3, Section II of brochure Svarna Nagari Residential Scheme floated in the month of March, 1998 has decided to revise the rate of allotment from Rs. 1,600.00 per.sq. mt. to Rs. 2,400.00. You are requested to give your consent in writing before 30th June, 1998 so that your name could be included in the draw of lot. The date of receiving consent in this case shall be the date on which the application Is actually received at the office of the Authority. Subsequent claim on the basis of postal certificate will be entertained.
If you do not want to accept the offer, the Authority is ready to refund the deposited registration money. For this, kindly discharge the receipt issued by the bank by signing on it and send it to the office of the Authority under registered post as kindly refund my registration money deposited as per rule.”
4. The main grievance of the applicant is two fold. Firstly, that the respondent could not arbitrarily raise price of the plot from Rs. 1,600/- to Rs. 2,400/- without assigning valid reasons. Secondly, the condition subsequently imposed that the plot must be built within a period of five years could not be imposed on the complainant when it was not stated in the Brochure.
5. We have heard learned Counsel for the parties and do not find any force in the contention raised by the complainant. Reference may be made to condition No. B-3 as incorporated in the Terms and Conditions for allotment of plots which clearly states that the land premium may be raised at any stage prior to allotment. This clause may be referred to as under :
“B-3. The total cost of the plot as mentioned above may vary as per the actual dimensions of the plot. Also in case of increase in cost of acquisition or development, the increase in cost shall be borne by the allottee proportionately.”
6. The complainant was clearly given an option vide communication dated 17th June, 1998 which has been reproduced in the earlier part of this order that the complainant was at liberty to have refund of the Registration Money. However, the complainant had chosen to accept the terms of the allotment and he could not subsequently resile from the same. Moreover, as per the condition No. A-6 incorporated in the terms and conditions of the allotment of the plots it is clearly stated that the total cost of the plot may vary for various reasons. This clause may be referred as under :
“A-6 : The total cost of the plot as mentioned above may vary as the actual dimensions of the plot. Also in case of increase in cost of acquisition or development, the increase in cost shall be borne by the allottee proportionately.”
The law is well settled in the Full Bench Judgment of Delhi High Court reported as 57 (1995) DLT 801 (FB)=AIR 1995 Delhi 212 in the matter of the Smt. Sheelawanti and Anr. v. D.D.A. and Anr. We may refer to paragraphs 13, 14 and 15 of the same as follows :
“13. Further, while holding that price fixation is in the nature of a legislative action even when it is based on objective criteria founded on relevant material and that the Government cannot fix any arbitrary price, the Supreme Court observed thus :
“The Court has neither the means nor the knowledge to re-evaluate the factual basis of the impugned orders. The Court in exercise of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence.”
14. Relying on the observations in the earlier decision in Gupta. Sugar Works in State of U.P., 1987 (Suppl.) SCC 476 : AIR 1987 SC 2351 to the effect that the Court neither acts like a Chartered Accountant nor like an Income-tax Officer and it has only to examine whether price determined was with due regard to considerations provided by the statute and whether extraneous matters had been excluded from determination and while upholdings (Para 58) that price fixation is not within the province of the Courts and that judicial function in respect of such matter exhausted when there is found to be rational basis in the conclusions reached by the concerned authority, it observed :
Judicial review is not concerned with matters of economic policy. The Court does not substitute its judgment for that of the Legislature or, its agents as to matters within the province of either. The Court does not supplant the “feel of the expert” by its own views. When the Legislature acts within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which are conclusive provided such findings satisfy the test of reasonableness. In all such cases, judicial inquiry is confined to the question whether the findings of fact are reasonably based on evidence and whether such findings are consistent with the laws of the land.
15. Similar observations to the effect that “price fixation” is neither the forte nor the function of the Court and it is not within the province of the Court to examine the price structure in minute detail, if it is satisfied that the pricing is not arbitrary or is not a result of the application of any wrong principle are also found in an earlier judgment of the Supreme Court in Kerala State Electricity Board v. S.N. Govinda Prabhu & Bros., 1986(4) SCC 198 : AIR 1986 SC 1999.”
7. The Supreme Court has also held in the judgment reported as JT 1995 (3) S.C. 1 in the matter of Indore Development Authority v. Smt. Sadhana Agarwal and Ors., that though the Authority owed a duty to explain and satisfy the Court the reasons for escalation, it does not mean that it has to examine every detail of the construction with reference to the cost incurred, The High Court has to be satisfied on the materials placed on the record that the Authority has not acted in an arbitrary or erratic manner. The proforma attached to the application for registration clearly mentions that the price was a probable and estimated one. The definite price shall be intimated at the time of the allotment. No fault can be found with the action of the Authority. In the present case also the respondent had clearly stated in the Brochure itself that the total cost of the plot may vary for various reasons such as actual dimensions of the plot, increase in the cost of acquisition or development and the same shall be borne by the allottee proportionately. Therefore, we do not find any ground to accept the first contention as raised by the complainant.
8. Terms and conditions of the Brochure as challenged have not been forced on the applicant. Rather he chose to pay the remaining instalments as demanded. The grievance of the applicant in this regard has no force.
9. The other plea as raised by the learned Counsel for the complainant at the time of hearing is that no period for building the plot is prescribed in the Brochure. The respondent has fixed the period of five years to complete the construction. Reference is invited to the letter dated 25th September, 2000 wherein it has been clarified that “the allottee is required to construct the allotted plot within 5 years from the date of allotment and maximum of three years extension with 4%, 6% and 8% extension charges respectively for each year shall be granted. The complainant as it is stated not yet taken possession of the plot and therefore, the period as prescribed in this regard is of no consequence. The complainant shall be at liberty to take this plea or any other plea which may arise at a subsequent stage with the respondent authority and in case he does so the respondent shall consider the same and pass appropriate order in accordance with law. Accordingly, the complaint is dismissed. Notice of Enquiry is discharged. There shall be no order as to the costs.