National Consumer Disputes Redressal
Ghaziabad Development Authority vs Yogesh Kumar on 7 March, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.3455 OF 2007 (From the order dated 22.08.2007 in Appeal No.861/2007 of the State Commission, U.P.) Ghaziabad Development Authority Petitioners(s) Versus Yogesh Kumar Respondent(s) BEFORE : HONBLE MR.JUSTICE ASHOK BHAN, PRESIDENT HONBLE MRS. VINEETA RAI, MEMBER For the Petitioners(s) : Mr.Krishnanand Pandey, Advocate For the Respondent(s) : Mr.Manoj R.Sinha, Advocate Pronounced on 7th March, 2012 ORDER
PER VINEETA RAI, MEMBER This revision petition has been filed by the Ghaziabad Development Authority (hereinafter referred to as the Petitioner) being aggrieved by the order of the State Consumer Disputes Redressal Commission, Uttar Pradesh (hereinafter referred to as the State Commission) in favour of Yogesh Kumar, Respondent herein, who was the original complainant before the District Forum.
In his complaint before the District Forum, Respondent had contended that he had applied for a 90 Sq.Mtr. plot in Property Category Plot E Scheme under Govindpuram Plot Scheme of the Petitioner/Authority for a consideration of Rs.55,800/-. Respondent deposited Rs.5,810/- along with the application form to the Petitioner/Authority on 31.10.1999.
Petitioner/Authority informed the Respondent that a plot had been reserved in the above category in Respondents name and that Respondent has to pay the remaining amount in three quarterly installments. Respondent accordingly paid the full amount after which he was allotted Plot No.G-223 and was also asked to pay Rs.2,500/- towards sewer and water connection charges which he also paid. However, even thereafter the possession of the plot was not given to the Respondent on the plea that there was an unauthorized encroachment on the plot in the form of a Poultry Farm. Feeling aggrieved by the action of the Petitioner/Authority in not handing over the plot to him as assured, Respondent filed a complaint before the District Forum on grounds of deficiency in service and requested that Petitioner/Authority be directed to hand over the possession of the plot No.G-223 allotted to Respondent in the said Scheme and to refund the extra amount out of the total amount of Rs.91,176/- taken from the Respondent while the cost of the plot was Rs.55,800/- along with interest @ 24% per annum till disposal of the complaint, Rs.1 lakh as compensation for mental agony and harassment and Rs.50,000/- as litigation cost.
The Petitioner/Authority on the other hand contended that there was no deficiency on its part as despite sending a possession letter to the Respondent, it was not possible to hand-over the possession of the plot because of the illegal Poultry Farm on the said plot and that as soon as it was removed, the possession of the plot would be handed over. It further stated that Respondent has also not paid dues amounting to Rs.3,259/- although, he had been given due notice to pay this amount.
The District Forum after hearing both parties and on the basis of evidence filed before it allowed the complaint and directed the Petitioner/Authority to hand over the possession of the plot to the Respondent within one month after removal of the illegal Poultry Farm failing which Respondent will be entitled to receive compensation of Rs.500/- per month from the Petitioner/Authority. Apart from this Petitioner/Authority was also directed to pay the Respondent, Rs.35,496/- taken as extra amount from the Respondent, along with 12% interest from the date of payment till realization, Rs.2,000/- for mental and physical harassment and Rs.1100/- as costs.
Aggrieved by this order, Petitioner/Authority filed an appeal before the State Commission. During the pendency of the Appeal before the State Commission, Petitioner/Authority put forward an additional contention that since Respondent had deliberately concealed information that his wife, Smt.Sapna Goel, already had a house transferred in her name by her sister through the Petitioner/Authority, as per Section 4.30 of G.D.A.s Plots/housing Scheme Code 537, 538 & 539, Respondent was not entitled for allotment of another plot under the Scheme.
The State Commission after hearing both parties and on the basis of the evidence filed before it, dismissed the appeal by observing as follows:
From a perusal of the stand of the GDA it is clear that they have admitted that the house had been allotted.
Even they have admitted that vide letter dated 1.5.95 extra dues were demanded which were paid. The complainant did approach to delivery of possession but nothing was done and a stand was taken that at the spot unauthorized user is there having poultry farm. Suffice to say that once there is allotment and there is complete deposit, peaceful possession with no encroachment is the minimum obligation of the Development Authority which seems to have been not complied with, which is deficiency in service.
As regards the transfer of allotted accommodation in the name of the complainants wife by her sister, it is an independent action and that could not be curtailed in view of Section 4 and 11 of the terms and conditions of the Brochure.
Hence, the present revision petition.
Counsel for both parties made oral submissions.
Counsel for Petitioner brought to our notice the provisions under Section 4.30 of the Brochure of the Scheme which reads as follows:
The applicant must not own any residential house or plot in full or in part, on lease hold of free hold base in Ghaziabad either in his/her own name or in the name of his/her wife/husband or in the name of his/her minor of dependent children. If, however, individual share of the applicant in the jointly owned plot or land under the residential house is less than 62.7 Sq.mtrs.(75 Sq.Yds) an application for the registration of house/plot can be given.
Counsel for Petitioner stated that since it is an admitted fact that Respondents wife, Smt.Sapna Goel already had a house transferred in her name which was allotted by the Petitioner/Authority, Respondent was not eligible for allotment of plot under the Scheme as per Section 4.30 quoted above.
Unfortunately, the State Commission failed to appreciate this important statutory provision and dismissed this contention by stating that it was an independent action and could not be curtailed.
Counsel for Respondent on the other hand pointed out that this plea had never been taken by the Petitioner/Authority before the District Forum and in fact, this was put forward before the State Commission during the course of execution of decree and was therefore, not admissible.
Apart from this and more importantly, Section 4.30 would not apply to the Respondent in this case as he was not married in 1998 when he had applied for a plot and was subsequently given a letter of possession. It is on record that since the house was transferred in the name of Respondents wife only in 2006 by her sister, therefore, the State Commission had rightly observed that this case would not be governed by Sections 4.30 and 11 of the terms and conditions in the Brochure of the Scheme.
We have heard learned Counsel for both parties and have gone through the evidence on record. It is a fact that the Petitioner failed to give possession of the plot in question to Respondent despite his having paid the entire amount and after an allotment letter had been issued to him. The plea that there was an unauthorized Poultry Farm and therefore, the plot could not be handed over to him is only a delaying tactic and cannot be taken as a reason for not handing over the possession of the plot to Respondent. It was the responsibility of the Petitioner/Authority to having ensured that an encroachment free plot was handed over to the Respondent as per the terms and conditions of the Brochure of the G.D.A.s Plots/housing Scheme. Regarding the contention of the Petitioner/Authority that Respondent was not eligible for allotment and possession of the plot in view of Section 4.30 of the G.D.A.s Plots/housing Scheme since his wife already had a house in her name, we cannot accept this contention since at the time of the allotment in 1998, Respondent was not married and the plot was transferred to his wife only in 2006 i.e. several years after the plot had been allotted to him. We, therefore, agree with the State Commission that the Petitioner/Authority has been guilty of deficiency in service in not handing over the possession of the plot to the Respondent and uphold the same. This Revision Petition is, therefore, dismissed.
Petitioner is directed to hand over the possession of the allotted Plot No.G-223 to the Respondent within a period of six weeks from the date of receipt of this order failing which Respondent will be entitled to receive Rs.500/- per month as compensation from the Petitioner/Authority till such time that he is given possession of the plot. Petitioner/Authority is also directed to pay the Respondent, Rs.35,496/- taken as extra amount from the Respondent, along with interest @ 12% per annum from the date of payment till realization, Rs.2,000/- for mental and physical harassment and Rs.1100/- as costs.
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(ASHOK BHAN J.) PRESIDENT Sd/-
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(VINEETA RAI) MEMBER /sks/