National Consumer Disputes Redressal
Sunita Murali vs Bank Sahyog Sehkari Awas Samiti Ltd. & ... on 29 August, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 8 OF 2018 1. SUNITA MURALI W/o Shri. S.R. Murali
R/o. House No. 1327, Sector-17, Faridabad-121002 ...........Complainant(s) Versus 1. BANK SAHYOG SEHKARI AWAS SAMITI LTD. & ANR. 350, Basement Sector 4, Main Market, Vaishali, Ghaziabad 2. M/S. RISHABH BUILDING PVT. LTD. . ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE DR. INDER JIT SINGH,MEMBER
For the Complainant : Mr. Onkar Prasad, Advocate
Mr. Rajive R. Raj, Advocate For the Opp.Party : Mr. R.M. Sinha, Advocate for OP-1
Mr. P.M. Sinha, Advocate for OP-2
Dated : 29 Aug 2022 ORDER
DR. INDER JIT SINGH, MEMBER
1.The present Complaint dated 22.12.2017, filed in the Commission on 02.01.2018 by the Complainant, who is/was a bank employee, u/s 21 (a) (i) of Consumer Protection Act 1986 (hereinafter referred to as Act") against the Opposite Parties (OPs) as detailed above; inter alia praying for handing over possession and registration of a sale deed for a land/plot measuring 150 sq. yds. in Bank Enclave, Indirapuram, Ghaziabad or an amount equivalent to the cost of plot at current market price/circle rate i.e. Rs.2.00 crore and a sum of Rs.10.00 lacs on account of harassment, mental agony, worry and suspense and Rs.1.00 lac towards legal expenses.
2. Notice dated 05.04.2018 was issued to the OPs to file their response/Written Statement within a maximum period of 45 days. Both OP-1 and OP-2 filed their reply/Written Statement dated 01.07.2018, Rejoinder dated Sept.2018 was filed by the Complainant on the replies of OPs. Evidence by way of Affidavit dated 27.09.2018 was filed by the Complainant on 03.10.2018, by OP-1 and OP-2 on 16.01.2019. Affidavit of admission/denial of documents was filed by OP-1 & OP-2 on 25.10.2018. Both the Complainant and OP-1 filed their written synopsis/arguments.
3. Briefly stated, the facts of the case are as follows:-
3.1. Complainant is a bank employee. OP-1 is a society registered under the provisions of U.P. Co-Operative Societies Act 1965 with an object as acquiring land, providing land and other facilities to its members. OP-2 is a Company registered under the provisions of the Companies Act,1956 and inter alia engaged in the real estate business of construction and sale of various residential and commercial projects/township, shopping malls etc.
2. OP-1 had 442 members. It purchased land measuring 36786 sq.mts. (about eight acres) during 1991. At the time of purchase, the permitted use of said land was residential. Subsequently, as per new GDA Master Plan 2021, the use of approx. 28000 sq. mts. out of above was converted into Green/Agricultural.
3. OP-1 allotted plots to its 127 members, including the Complainant covering about 12000 sq. mt. of land. In the meanwhile, the layout plan was cancelled by GDA due to non-payment of statutory charges/fees by OP-1.
4. Subsequently, OP-1 decided to construct multi-storied housing scheme on the said land comprising of flats, shopping complex, common facilities etc. and vide its letter dated 27.12.2010 sought permission from Uttar Pradesh Awas Vikas Parishad (UPAV) for development and construction of the project on the land in collaboration with non-member/reputed firms, which was accorded on 08.02.2011. Consequently, OP-1 after inviting the bids, entered into a collaboration agreement dated 01.04.2011 with OP-2 for construction and development of the project. However, as OP-1 could not obtain the sanction of layout plan from GDA, no construction took place as per this collaboration agreement.
5. Later on, OP-1 decided to sell the land to a non-member and to refund to the existing members an amount equal to double/more out of the sale consideration. In the meanwhile, OP-1 purchased the plots from 114 members, out of the 127 members by duly registered sale deeds and paid the mutually agreed sale consideration. OP-1 also reserved an area of 4032 sq.yds for the remaining 13 members.
6. Subsequently, OP-1 applied to UPAV for permission for sale of 24940 sq. mts. (about five acres) of land out of a total of 36786 sq. mt. and got the permission on 14.08.2013. Pursuant to this permission, OP-1 invited bids for sale of this land, and accepted the offer of OP-2 who was the only bidder, for an amount of Rs.55.00 crore. Accordingly, a sale deed was executed on 01.10.2013 between OP-1 and OP-2 under which OP-1 transferred all its rights/title/interest etc. in the land measuring 24940 sq. mts. to OP-2 and handed over the physical possession of the land to OP-2.
It has been averred in the Complaint that:-
4.1. On 29.07.2000, Complainant applied for a plot measuring 150 sq. yds. at Kanawhi, Ghaziabad, to be known as Bank Enclave, Indirapuram, Ghaziabad, for an amount of Rs.2,15,000/- and paid an initial booking amount of Rs.51,000/- vide receipt No. 1340 dated 29.07.2000. OP-1 allotted the plot vide allotment letter dated 24.08.2000 and asked for a further amount of Rs.25,500/- which was paid on 15.12.2000 and acknowleged by OP-1 vide letter dated 15.12.2000. Later on, another amount of Rs.25,000/- was paid vide cheque No. 911445. OP-1 also issued a Share Certificate No. 507 on 22.08.2000. Complainant also claims to have paid the remaining amount of Rs.1,50,000/- in cash to OP-1. Complainant made correspondence with OP-1 during 2006-2010 for matters relating to society membership. Complainant alleges that despite paying the full consideration of Rs.2,15,000/-, OP-1 had not given her the possession of the plot. Complainant also claims that Promoter/Director of OP-2, in 2012, offered him a sum of Rs.35.00 lacs as compensation of plot but not paid till date. Then again in January 2017, he offered a sum of Rs.10.00 lacs as compensation of plot, but not paid till date. It is averred in the Complaint that conduct of OPs has been completely insensitive and arbitrary and amounts to deficiency in service as defined in Section 2 (g) read with 2 (o) of Act.
OP-1 in their reply/written statement has admitted that :-
5.1. Complainant became member of OP-1 Society and was allotted a plot vide allotment letter dated 24.08.2000. However, OP-1 has admitted receipt of a total sum of Rs.76,500/- only out of total consideration of Rs.2,15,000/- and has denied cash receipt of Rs.1,50,000/- as claimed by the Complainant. OP-1 further stated that the Complainant has been shown to be member of the Society only till June 2009, and ceases to be the member of the Society since she has not taken part in the election of the Society conducted on or about 09.06.2018. According to OP-1, as on date, Complainant is not a member of the Society. According to OP-1, even assuming that membership as the Complainant is restored though not prayed, the Complainant is either entitled for refund as the amount already paid or to be considered at par with other members of the Society in the balance land subject to decision of Hon'ble Allahabad High Court where a Writ Petition bearing No. 45454 of 2014 filed by few of the members is pending. OP-1 claims that allotment letter dated 24.08.2000 was only tentative and was further subject to decision of the Society depending upon the circumstances and Society never allotted a plot of 150 sq.yds. to the Complainant and has never given possession of the same to the Complainant. OP-1 refers to para 5, 6 & 15 of the allotment letter in this regard, which is reproduced below:-
"Para 5-If for any reason whatever whether within or beyond the control of the society the whole or part of the project is abandoned: no claim will be entertained except that the money will be refunded in full without interest".
"Para 6--If any member fails to pay any installment or amount on due date a late fee @20% per annum thereon will be charged from the member, if dues remain unpaid for a period of one month from the date of Notice, the entire amount of Earnest Money i.e. 10% of the cost already paid by the member against the Booking of the plot will be forfeited in favour of society and booked plot will stand cancelled without any further notice there by defaulting Member shall cease to have any lien or right on defaulting plot. The balance amount paid by the member will be refunded without any interest on production of original receipt and Documents".
"Para 15--The allotment of the plot is entirely at the discretion of the Society and the Society has a right to reject any offer without assigning any reason thereof".
5.2. The society allotted plots to 127 members out of 442 and transferred 12000 sq.mts. of land to them vide registered sale deeds. Subsequently, plots of 114 out of these 117 were purchased back by the Society at a sale consideration approximately double of their deposits. 13 members did not agree, so an area of 4032 sq. yds. was reserved for them (Complainant was not one of them). OP-1 claims that remaining 315 members out of 442 furnished an affidavit that they were not interested in the land.
5.3. On 14.08.2013, OP-1 got permission to sell 24,940 sq. mts. out of total of 36,786 sq. mts. to a non-member and subsequently, sold the same to OP-2 vide sale deed dated 01.10.2013 for a total consideration of Rs.55.00 crore, out of which, OP-2, at the instance of OP-1, refunded to its members who had surrendered their membership or sale deeds to the Society directly and rest amount was given to the Society which has refunded the same to its members.
5.4. Order dated 14.08.2013 vide which permission was granted by UPAV to OP-1 to sell 5 acres of land to OP-2 was challenged by way of Writ Petition No. 61371/2013, which was disposed of vide order dated 08.11.2013 directing Housing Commissioner to hear the grievances of the members against the order dated 14.08.2013. The Housing Commissioner vide its order dated 02.05.2014 upheld the order dated 14.08.2013. However, Addl. Commissioner directed Opposite Party -1 to allot plots to 13 petitioners, after taking balance consideration. The order dated 02.05.2014 is now challenged by way of Writ Petition No. 45454 of 2014 by 9 new members of the Society, which is pending before Hon'ble High Court of Allahabad, and Hon'ble High Court vide its order dated 29.08.2014 have issued directions to OP-1 Society not to create any third party interest in the balance property, i.e., 12000 sq. mts.
5.5. OP-1 contends that since Complainant ceased to be a member of Society, Complaint is not maintainable. OP-1 has also categorically denied that Society or OP-2 ever offered to Complainant pay a sum of Rs.35.00 lacs in 2012 or Rs.10.00 lacs in 2017, as alleged in the Complaint.
5.6. OP-1 has further stated that as on date out of 442 members, 288 have resigned and taken their money back. The Society has only 154 members now. As on date, Society has only 3 acres of land as the rest 5 acres have been sold to OP-2 with permission of UPAV Parishad. Therefore, the above 154 members are to be accommodated out of 3 acres of land.
OP-2 in its reply/written statement has stated as follows:-
1. OP-2 and complainant are not subject to any contract, i.e. has no privity of contract with each other, OP-2 has no responsibility qua the Complainant and Complainant has no locus-standi to file the present Complaint against OP-2. OP-2 after execution of sale deed dated 01.10.2013 is not even having any obligation qua OP-1. The collaboration agreement dated 11.04.2011 also became redundant.
2.OP-2 has also denied that Promoter/Director of OP-2 had any occasion to offer a sum of Rs.35.00 lacs as Rs.10.00 lacs to the Complainant.
7. In the rejoinder, the Complainant has stated that according to OPs, Complainant is not among 127 members, hence she is one among 315 members out of total of 442. As per collaboration agreement dated 11.04.2011, 315 duly constructed and completed residential flats were to be given to 315 members.
8. In the evidence by way of affidavit, parties have by and large taken the same stand and reiterated their pleas as contained in their Complaint /written statements.
9. Heard the counsel of Complainant and OPs at length. While the Complainant has argued that she has made entire payment for the plot, OPs have denied it. Complainant states that it is not a case of abandonment of the project, as the same as bear surreptitiously transferred to the builder (OP-2), OP-1 surreptitiously increased the members of the Society from 250 to 442 thereby jeopardizing the interest of original members of the Society, that the Committee of management indulged into lot of illegality and irregularity, which resulted in numerous FIRs against the committee of management, that Complainant has not given any affidavit to OP-2 and it appears that OPs have forged signatures of Complainant for executing false and forged affidavit. OP-1 on the other hand argued that the scheme of allotment of plots of land is abandoned, the Complaint is barred by limitation, identical issue is pending for adjudication before the Hon'ble High Court of Allahabad, the Complainant had not made full payment of Rs.2,15,000/-, Hon'ble High Court has upheld the sale of 5 acres of land. However, the Hon'ble High Court stayed any alienation in the balance land of 3 acres except with the leave of Court.
10. During the arguments on 10.08.2022, it emerged that OP-2 has allotted units to 168 members out of 315 of OP-1. After hearing both sides, while reserving the judgment, this Commission had directed the OP-2 to file written synopsis in which he may also clarify the situation as to how 168 members were separated out of 315 members and were allotted flats. Till date, OP-2 has not filed any written synopsis and/or clarified this issue.
11. On going through the facts of the case, perusal of documents produced and hearing both sides, it is seen that:
11.1. Complainant has not been able to produce any valid proof/document with respect to payment of Rs.1,50,000/- in cash to OP-1. It seems difficult to accept that in the circumstances where Complainant has paid Rs.51,000/- and Rs.25,000/- (total Rs.76,500/-) through Cheque/under proper receipts, he would have paid Rs.1,50,000/- in cash without even insisting on any receipt from OP-1. Hence, the plea of Complainant that he has paid full consideration price viz Rs.2,15,000/- for the plot allotted vide letter dated 24.08.2000 is not accepted.
11.2. OP-1 applied for sanction of Layout Plan of plotted colony before Ghaziabad Development Authority. For that purpose OP-1 had to deposit External Development Charges. OP-1 issued notice to its members including the Complainant dated 15.12.2000 and 31.08.2001, demanding External Development Charges on proportionate rate but the Complainant did not respond. Due to not depositing External Development charges, Layout Plan was not sanctioned and project of plotted colony failed.
11.3. In the meantime, term of Committee of Management of OP-1 expired and Administrator was appointed in the year 2003. New Committee of Management was elected in the year 2009. Then a meeting of General Body of OP-1 was called in the year 2010, in which they passed a resolution to sell 5 acres of land and from sale proceed to construct multi-storey building for the Members. In pursuance to that resolution, OP-1 applied for necessary permission which was granted by UPAV on 08.02.2011. Therefore, OP-1 sold 24940 sq.mtr. on 14.08.2013. But construction of multi-storey building for the Members on remaining land has delayed due to litigation and interim orders. Presently interim order dated 29.08.2014 passed in Writ C. No.45454 of 2014 is continuing.
11.4. With the signing of sale deed dated 01.10.2013, the Collaboration Agreement dated 11.04.2011 has become infructuous. Sale of 5 acres of land was approved by UPAV and has been upheld by the Hon'ble Allahabad High Court. Presently the alienation of balance 3 acres of land in possession of OP-1 has been stayed by the Hon'ble Allahabad High Court.
11.5. OP-1 has not issued any notice and/or formal order of cancellation of Complainant's membership of Society after giving her an opportunity to respond to such notice and/or of being heard in the matter. OP-1 has argued that Complainant ceased to be member of the Society since 2009 as she did not take part of the election of the Society. Principles of natural justice demanded that OP-1 should have issued notice if they intended to cancel membership of the Society. Perusal of written statement by OP-1 shows that they may be open to consider the case of Complainant to restore her membership and treat her at par with other members in future. A member in Co-operative Society is a share-holder. His Membership cannot come to an end due to non-participation in election.
11.6. OP-2 has allotted flats to some of the erstwhile members of OP-1 Society in the project undertaken in the 5 acres purchased by OP-2 from OP-1.
12. For the reasons stated hereinabove and after giving a thoughtful consideration to the entire facts and circumstances of the case, and various pleas raised by the learned Counsels for both the sides, the Consumer Complaint is disposed of with following directions/reliefs:-
Complainant is not entitled to relief prayed for viz handing over possession and registration of a sale deed for a land/plot measuring 150 sq. yds. in Bank Enclave, Indirapuram, Ghaziabad or an amount equivalent to the cost of plot at current market price/circle rate i.e. Rs.2.0 crore and a sum of Rs.10.00 lacs on account of harassment, mental agony, worry and suspense, and Rs.1.00 lakh towards legal expenses.
If Complainant still wants to continue as member of the OP-1 Society and/ or want to be in the reckoning of any future scheme of OP-1 in the balance land with OP-1, she may file a formal representation before the Competent authority of the Society within 30 days of this order, and Competent Authority of OP-1 will in turn consider her representation/request within 45 days of receipt of her request and pass appropriate orders as per law, keeping in view court orders, if any;
Considering that OP-2 has allotted housing units to some of the erstwhile members out of 315 of OP-1, if Complainant also still wants to be considered by OP-2 in any housing scheme, present or future, in the land purchased by OP-2 from OP-1, she will file a formal representation before the Competent Authority of OP-2 within 30 days of this order, and Competent Authority of OP-2 will in turn consider her representation/ request within 45 days of receipt of her request and pass appropriate orders as per law, keeping in view court orders, if any;
In the event of OPs considering her request favourably, Complainant will have to choose one of her application, either with OP-1 or OP-2, but not both, subject to fulfillment of all requisite requirements and making required payments.
In case OP-1 rejects the request of the Complainant for restoration of her membership, it will refund the amount of Rs.76,500/- paid by her with simple interest @6% p.a. from the date of receipt till the date of payment within two months of such rejection.
Parties to bear their respective costs.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER ...................... DR. INDER JIT SINGH MEMBER