State Consumer Disputes Redressal Commission
Mahaveer Chand Nahar, No.2, Barnaby ... vs Chennai Metropolitan Development ... on 30 September, 2011
Date of filing : 20.11.2009 Date of order: 30.09.2011 BEFORE THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI (BENCH II) Present: Thiru.A.K.Annamalai, M.A., M.L., M.Phil., Presiding Member Judicial Thiru.S.Sambandam, B.Sc., MemberC.C.No.60/2009
FRIDAY, THE 30rth DAY OF SEPTEMBER 2011.
Mahaveer Chand Nahar, No.2, Barnaby Avenue, Kilpauk, Chennai -10.
.
Complainant Vs.
1. Chennai Metropolitan Development Authority, No.1, Gandhi Irwin Road, Egmore, Chennai-600 008.
Rep. by its Member Secretary.
2. The Collector, Kancheepuram District, Kancheepuram.
3. The Deputy Tahsildar, Tambaram Taluk, Tambaram. .. Opposite parties
4. V.Sampath Kumar, 7A2, Malaviya Avenue, Thiruvanmiyur, Chennai 600 041.
Rep. by his Power Agent, D.Kartheesan, S/o.Mr.Duraisamy Naidu, ..
Added as 4th opposite party Pursuant No.1, VOC Nagar, 2nd Main Road, to the direction given by this Honble Kodambakkam, Chennai 600 024. Forum in its order dt.26.10.09 passed in CCSR No.1484 of 2008.
This complaint coming on before us for hearing finally on 07.09.2011, upon perusing the material documents, and upon hearing the counsel for appellants side, and having stood over till this day for consideration, this Commission made the following order.
Counsel for the Complainant : M/s.S.Vasudevan, Advocate.
Counsel for the Opposite parties 1 to 3 : Called absent.
Counsel for the 4th opposite party : Called absent.
A.K.ANNAMALAI, PRESIDING MEMBER JUDICIAL
1. The complaint filed under Section 17 of the Consumer Protection Act- 1986 Complainant filed a complaint against the opposite parties claiming direction for to pay a sum of Rs.55,68,000/- being the cost of the defective plot purchased due the negligence and deficiency committed by the opposite parties and Rs.10,00,000/- towards mental agony and for costs.
2. The details of complaint in brief are as follows : The complainant purchased plot No.23 in lay out known as Balaji Nagar in Survey No.24/7 Okkiam Thoraipakkam at Chennai to the extent of 2673 sq. ft. under the sale deed dated 15.4.04 from one V.Sampathkumar to whom the 4th opposite party sold the property in 1996. The Plot was approved in the approval No.PPDLO No.56/1994 by the 1st opposite party to whom wrong particulars of measurement in survey number and Field Map book details were furnished by 3rd opposite party and without taking care of the physical verification the 1st opposite party given approval for the lay out and for the same 2nd opposite party as administrative head responsible and originally the 4th opposite party was not added as a party and in view of the complaint returned by this commission with a direction to include the developer of the site as per Exhibit A12 and A13. 4th opposite party was added and claiming the reliefs as stated above, through this consumer complaint.
3. In this proceedings the opposite parties 1 to 4 failed to appear even after receipt of the notice and thereby the opposite parties 1 to 3 are set exparte 4th opposite party was set exparte on 27.1.11 and opposite parties 1 to 3 were set exparte on 11.2.2011.
4. In this complaint enquiry in the absence of opposite parties the complainant side filed his proof affidavit along with documents which are allowed to be marked as Exhibit A1 to A13.
Exhibit A1 dated 27.06.94 Xerox copy of the approved lay out plan together with the FMB Sketch. Exhibit A2 dated 18.09.96 Xerox copy of Sale deed. Exhibit A3 dated 15.04.04 Xerox copy of Sale deed. A4 21.06.06 Xerox copy of Fees receipt paid for Application for Patta. Exhibit A5 - Xerox copy of Present FMB Sketch submitted by the 3rd opposite party.
Exhibit A6 dated 20.08.07 Xerox copy of Letter from complainant to the 1st opposite party. Exhibit A7 dated 02.09.07 Xerox copy of Reminder letter from complainant to 1st opposite party.
Exhibit A8 dated 11.09.07 Xerox copy of Letter by 1st opposite party to 2nd opposite party. Exhibit A9 dated 11.09.07 Xerox copy of Reply by 1st opposite party to complainant. Exhibit A10 dated 21.8.08 Xerox copy of Legal notice together with acknowledgement cards. Exhibit A11 -Xerox copy of Encumbrance Certificate together with certificate for Guideline value Exhibit A12 dated 18.09.08 Xerox copy of the complaint filed in CCSR No.1484/2008. Exhibit A13 dated 26.10.09 Xerox copy of the order passed in OPSR No.1484 of 2008.
5. The points for consideration are :-
1.
Whether the complaint is in time ?
2. Whether there are deficiency of service and negligence on the part of the opposite parties 1 to 4 ?
3. To what relief ?
6. Point No.1 :- In this complaint enquiry complainant contended that he has purchased an approved plot from 4th opposite party to whom one V.Sampathkumar sold as a developer of plot sold the same in 1994. The complainant purchased the plot said to be an extent of 2673 sq.ft. as an approved plot in the lay out developed by 4th opposite party and approved in PPDLO 66 of 1994 by the 1st opposite party. But actually when the complainant applied for patta in the year 2007 he came to know that the extent of the plot was only for 940 sq. ft. alone instead of 2673 sq. ft. and thereby there was deficiency in service in approving the lay out without verifying the actual measurement and the 3rd opposite party furnished the wrong measurement and F.M.Book details on which basis without verification the 1st opposite party given approval for the lay out. From these details it is clear that the complainant has purchased the plot on 15.4.04 and alleged that he came to know about the defects in the measurement and the extent of the plot when he applied for patta in 2007 only. Even after that after making correspondences with the 1st opposite party and getting reply on 11.9.07 he has come forward with the filing of complaint in 2008. As per the averments the original cause of action starts when he purchased the plot in the month of April 2004 and for the defects in plot he should have filed the complaint within two years from the date of purchase even though he alleged that when he has applied for patta only in 2007 he came to know about the defect. He has not produced any document for rejection of patta only for the reason that the plot was in lesser extent than the original extent as per the sale deed. He has filed only a receipt as Exhibit A4 dated 21.6.2006 for payment of fees to apply for patta. If the complainant supposed to apply for patty even after 10 years from the date of purchase whether that date could be a cause of action for limitation cannot be considered as an acceptable one. When the complainant alleged to have purchased the plots by paying huge amount he must be more careful to verify the extent of land purchased either before the purchase or as soon as the purchase was made which act any prudent man will do in such transaction. In those circumstances the reasons stated by the complainant that he came to know only in the year 2007 about the defect in size of the plot is not an acceptable and believable one and seems to be invented for the purpose of getting over the period of limitation and thereby we are of the view that the complaint is barred by limitation as filed beyond two years after the date of cause of action.
7. Point No.2 : In this complaint enquiry the complainant alleged that due to the wrong decision of the 1st opposite party in giving the approval of the lay out for the plot purchased by the complainant to the developer 4th opposite party in the approval No.CPP DLO 66/1994 for which he had produced copy of the approved lay out plan together with FMP sketch as Exhibit A1 in which the following details are mentioned as total extent. (1.65 (Ac) 6677 M. Nnumber of plots 23 shop site 1 convening shop site 2 are all mentioned and details of approval number as PPDL 66/94 signed on 27.6.94 are mentioned relating to the lay out of house sites in survey No.24/07 and 24/98 of Okkiam Thorappakkam Village. This plan does not contained the details relating to the extent of each and every plot for the plots 1 to 23 and relating to the size of the plots allotted to shops. The complainant contended in the complaints that the Natarajan has purchased the lands for development in 4 different sale deeds to the extent of 1.71 acre and formed a lay out known as Balaji Nagar which was approved by the 1st opposite party. Further the complainant stated in the complaint that the CMDA 1st opposite party approved lay out has been shows the entire length of lay out on the western side 498 sq ft whereas after actual measurement in July 2007 it is only 454 sq ft. In view of the discrepancy the 3rd opposite party refused to issue a patta in favour of the complainant. In this regard even as per the averments of the complainant Natarajan has purchased 1.71 acres under various sale deeds for forming a lay out and in the lay out as per Exhibit A1, the total extent is shown as only as 1.65 acre and for the remaining 6 cent no details are furnished and when the complainant purchased the plot through the sale deed as per Exhibit A3 in which the description of the property is mentioned as only as one ground 273 sq. ft. (2673 sq. ft) and on the boundaries of both sides were given without furnishing the details of actual measurement on each side that is length and breath of the plot. But in the sale deed copies purchased by 4th opposite party sold to whom sold by Natarajan as per Exhibit A2 in which the description of property in the schedule it is clearly mentioned the measurement as East to West on the Northern side 58 ft and the southern side 59 6 ft South to North on the Eastern side 35 on the Western side 56 ft in all measuring to one ground and 273 sq ft and this property was purchased by 4th opposite party in the year 18.9.1996 and the same was sold by 4th opposite party through his power of attorney to the complainant as per Exhibit A3 in 2004 nearly after 8 years. Exhibit A1 approval of the layout was given on 27.6.94 and as soon as the approval the developer sold the same to one V.Sampathkumar by describing the exact measurement of the spot and whereas the complainant purchased the same without any such description of the measurement o the plot and he has not taken care to measure the plot before purchase for the same or after the purchase. Even before this Commission complainant has not come forward to file any report or document to prove that the present existence of the plot No.23 is only for 940 sq ft with the details of each side of actual measurement and as also not taken any steps through his Commission under Section 13 of the Consumer Protection Act 1986. He has not produce to find out the actual extent of land available on any document relating to the CMDA approval proceedings regarding the details submitted by 3rd opposite party and the actual original site plan for approval of layout submitted by developer or promoter and regarding the details of the alteration or modification if any allowed or rejected by the 1st opposite party are all not elicited.
8. In those circumstances the complainant has wrongly delivered chosen this Commission for his relief and for which the remedy lies before some where else and this is not a proper Forum for the same. The learned counsel for the complainant relied upon the rulings to establish the maintainability of the complaint against the opposite parties 1 to 3 reported in,
(i) 1994 (I) SCC page 243 Lucknow Development Authority Vs M.K.Gupta
(ii) 2007 INDLAW NCDRC II (NC) - BENCH AT CHENNAI.
Joint Sub Registrar, District Registrars Office Shanmugapuram, Dindigul District Vs. Tmt.
Maragatham, Shanmugapuram, Palani.
(iii) 2010 I SCC page 512 Urban Improvement Trust, Bikaner Vs. Mohan Lal Even though those rulings are in favour of the complainant as far as the maintainability of the complaint relating to the duties of opposite parties 1 to 3 and the alleged negligence and deficiency of service in view of the findings as discussed above and for the reasons already stated they are not helpful to the complainant to succeed his case. Hence we hold that the complainant failed to prove any deficiency or negligence on the part of the opposite parties 1 to 3 and any case against 4th opposite party.
9. POINT NO. 3 : In view of the findings in point No.1 and 2 against the complainant the complainant is not entitled for any relief as prayed for in this complaint.
10. In the result the complaint is dismissed. No order as to costs.
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL LIST OF DOCUMENTS Exhibits of the complainant A1 27.06.94 Xerox copy of the approved lay out plan together with the FMB Sketch.
A2 18.09.96 Xerox copy of Sale deed.
A3 15.04.04 Xerox copy of Sale deed in favour of complainant.
A4 21.06.06 Xerox copy of remittance chalan for applying patta.
A5 -
Xerox copy of Present FMB Sketch submitted by the 3rd opposite party.
A6 20.08.07 Xerox copy of Letter from complainant to the 1st opposite party.
A7 02.09.07 Xerox copy of Reminder letter from complainant to 1st opposite party.
A8 11.09.07 Xerox copy of Letter by 1st opposite party to 2nd opposite party.
A9 11.09.07 Xerox copy of Reply by 1st opposite party to complainant.
A10 21.8.08 Xerox copy of Legal notice together with acknowledgement cards.
A11 -Xerox copy of Encumbrance Certificate together with certificate for Guideline value A12 18.09.08 Xerox copy of the complaint filed in CCSR No.1484/2008.
A13 26.10.09 Xerox copy of the order passed in OPSR No.1484 of 2008.
Exhibits of the opposite parties -nil-
S.SAMBANDAM A.K.ANNAMALAI, MEMBER PRESIDING MEMBER JUDICIAL INDEX : YES / NO sg/B-II/aka/ T.N Govt.