State Consumer Disputes Redressal Commission
Haryana Urban Development Authority, ... vs Bhupendra Nath Ranjen Son Of Shri M.L. ... on 22 February, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.229 of 2006 Date of Institution: 31.01.2006 Date of Decision: 22.02.2012 Haryana Urban Development Authority, through its Estate Officer, HUDA, Faridabad. Appellant (OP) Versus Bhupendra Nath Ranjen son of Shri M.L. Ranjen R/o E-100, Sector-21, Jalvayu Gihar, Noida, through G.P.A. Ramehswar Bansal s/o S.R. Bansal, R/o H.No.169, Sector-17, Faridabad. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri D.K. Jangra, Advocate for appellant. None for respondent. O R D E R
Justice R.S. Madan, President:
Case called several times since morning but none put in appearance on behalf of the respondent-complainant though the case is fixed for arguments. It is already 1.00 P.M. This appeal relates to the year 2006. Heavy pendency of appeals/complaints as well as non-cooperative attitude of the parties/their counsel is the reason for heavy cause list. Under these circumstances we do not think it appropriate to adjourn this appeal indefinitely and therefore we proceed to decide the same after hearing the learned counsel for the appellant-opposite party and going through the case file.
Challenge in this appeal is to the order dated 05.12.2005 passed by District Consumer Forum, Faridabad in complaint No.481 of 2004.
The brief facts of the present case as emerged from the record are that Bhupendra Nath Rangen-complainant (respondent herein) was allotted plot No.2411 measuring 250 sq. yards in Sector-2, Faridabad vide allotment letter bearing memo No.1716 dated 18.11.1998 in defence quota on a tentative price of Rs.5,50,000/-. Complainant deposited Rs.55,000/- alongwith his application as earnest money and Rs.82,500/- within 30 days from the date of issue of allotment to constitute the earnest money as 25% of the consideration amount. The remaining 75% price of the plot was to be deposited in lump sum without interest within 60 days from the date of allotment letter or in six annual instalments. Complainant did not deposit any amount after the aforesaid deposits of 25%. Opposite Party (appellant herein) issued notices to the complainant in this behalf on 31.10.2000 and 2.5.2002. Complainant moved an application dated 24.10.2001 whereby he requested the opposite party to refund the money deposited by him and surrendered the plot. However, the Opposite Party offered possession of the plot to the complainant vide memo No.27117 dated 26.5.2003 but the complainant did not come forward to take the possession. Due to non-payment of the instalments, the due amount towards the plot in question accumulated to Rs.8,63,253/-. Notice under Section 17(1) of the HUDA Act, 1977 was issued to the complainant vide Memo No.7733 dated 17.2.2004 whereby he was informed to deposit an amount of Rs.71,14,000/- but he failed to comply with the aforesaid notice. Complainant invokes the jurisdiction of the District Consumer Forum with the grievance that the opposite party did not refund the surrender value to him despite repeated requests. Complainant sought direction to the opposite party to refund the surrender value alongwith interest @ 18% per annum from the date of deposit till actual realization and to pay compensation of Rs.1,00,000/- for harassment and mental agony besides litigation expenses.
On 20.04.2005 the complainant moved an application before the District Forum wherein it was prayed that he had engaged Rameshwar Bansal son of S.R. Bansal, H.No.169, Sector-17, Faridabad as his General Power of Attorney holder to take possession of the plot in question for residential purpose. It was further stated that as HUDA delayed the development of the plot and for that reason he was not liable to pay interest on the delayed payment.
Opposite Party appeared and contested the complaint by filing written statement stating therein that the complaint was not filed as per the provisions of Section 2 of the Consumer Protection Act, 1986. No copy of G.P.A. as alleged by the complainant was produced. More so, the G.P.A. holder is not entitled to file complaint in view of law laid down in J.R. 2002 Consumer U.P. 233. It was further stated that the complainant was already offered the possession of the plot after completion of the development work vide Memo No.27117 dated 26.05.2003 but the complainant himself did not come forward to take possession and also failed to deposit the due price of the plot despite notices issued to him and an amount of Rs.8,63,000/- was due towards the complainant in respect of the plot. It was prayed that the complaint merited dismissal.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum accepted complaint and issued following directions:-
.The complaint of the complainant therefore succeeds and to satisfy the grouse of the complainant, the following order is passed:-
i) The respondent is ordered to give physical possession with complete development and basic amenities of plot No.2411, Sector-2, Faridabad to the complainant. In case, the possession of the said plot is not possible then allot another alternate plot in lieu of the originally allotted plot on the similar price in some developed pocket of the same sector.
ii) The respondent is also ordered to pay interest @ 12% p.a. on the deposit of the complainant w.e.f. its deposit till delivery of the physical possession of the plot as ordered above.
iii) The respondent is further ordered not to charge any kind of interest, panel interest, compound interest, penalty and extension fee from the complainant uptil the period of delivery of the physical possession of the plot as ordered above. In case, the area of the alternate plot is found more or less then original allotted plot, the price of the same be assessed on the similar price on which the original plot was allotted.
iv) The respondent is also ordered to pay Rs.50,000/- on account of escalation charges,, since price of the construction material has escalated manifold.
v) The respondent is also ordered to pay Rs.20,000/- on account of mental agony and harassment.
vi) The respondent is also ordered to pay Rs.5000/- as litigation charges.
The respondent is ordered to comply with the order of the Forum within 30 days after receiving the copy of the present order.
Aggrieved against the order of the District Forum, the opposite party has come up in appeal.
We have heard learned counsel for the appellant and perused the case file.
It is contended by the learned counsel for the appellant that after depositing 25% of the plot price, the complainant Bhupendra Nath Ranjen has failed to deposit even a single penny and he (complainant) even did not deposit the enhanced compensation although notices in this behalf were issued to the complainant on 31.10.2000 and 2.5.2002. Learned counsel has further argued that as per Clause 7 of the letter of allotment, the possession was to be offered on completion of development work in the area which was completed and the possession of the plot was offered to the complainant vide letter bearing Memo No.72117 dated 26.5.2003 but he himself failed to take possession. It was further contended that the complaint through G.P.A. was not maintainable.
The contention raised on behalf of the appellant is attractive. It is well settled law that the parties to a contract are bound by the terms and conditions of the agreement. In the instant complainant has alleged that there was delay on the part of HUDA in offering possession of the plot. The contention so raised on behalf of the appellant is not sustainable in view of Clause No.7 of the allotment letter which is reproduced as under:-
7. The possession of the site will be offered to you on completion of the development works in the area.
The above clause of the allotment makes it clear that the possession was to be delivered to the complainant after completing the developments. Admittedly, the plot was allotted to the complainant vide letter dated 18.11.1998 and the possession was offered on 26.5.2003. Thus, it cannot be said that there was any deficiency in service on the part of the opposite party in offering the possession to the complainant in view of the provisions of Section 2(1)(g) of the Consumer Protection Act, 1986 which has been discussed by Honble Supreme Court in case cited as Rajasthan Financial Corporation and another versus Commander S.C. Jain (Retd.) and another 2010 CTJ 481 (Supreme Court) (CP), as under:-
Financing Deficiency in service Consumer Protection Act, 1986 Section 2(1)(g) Section 2(1)(o) Appellant Corporation after considering the request made by the respondent for setting up a manufacturing unit, sanctioned loan of Rs.18,000/- for machinery and Rs.1,26,000/- as the working capital limit for that business Dispute regarding the release of the sanctioned loan District Forum dismissed the complaint State Commission refused to entertain his appeal He moved a review petition which also got rejected Respondent thereupon preferred a revision petition before the National Commission Corporation directed by the National Commission to pay compensation of Rs.1,50,000/- with 12% interest and cost of Rs.10,000/ - Impugned order not sustained Set aside Appeal allowed.
Para 15 and 18 of Commander S.C. Jains case (Supra) are as under:-
15. For deciding whether the respondent ought to be awarded compensation, it is important to consider the meaning of deficiency as provided under Section 2(1)(g) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act):
(g) Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;
18. Thus, it is clear that the Act has provided provision for correcting the shortcomings in the service or goods provided by way of awarding compensation or other means specified in the provision above mentioned only when the Consumer Forum comes to the conclusion that there is deficiency in service provided or goods sold. The loss suffered by the respondent for the reason of not being able to start the unit cannot be the basis for awarding the compensation specifically when the respondent was at fault for the non release of the balance loan amount. Therefore, when there is no deficiency found on the part of the appellant-Corporation, it cannot be asked to pay compensation.
The facts of the instant case are attracted to Commander S.C. Jains case (Supra). The offer of possession to the complainant on 26.05.2003 in view of clause 7 cannot be termed as deficiency in service.
The other aspect of the case is that the complainant has filed the amended complaint through General Power of Attorney Rameshwar Bansal son of S.R. Bansal. G.P.A. has no interest and could not be treated as a Consumer and, therefore, complaint on his behalf is not maintainable. More so, no G.P.A. has been tendered on the record. It has not been disclosed by the complainant as to what was the relationship between the complainant and G.P.A. Ramehswar Bansal. It appears that Rameshwar Bansal who has acted on behalf of allottee, is a property dealer and even in that capacity the General Attorney is trying to acquire rights by avoiding stamp duty. Complainant Bhupendra Nath Ranjen who has surrendered the plot and filed complaint seeking refund of the surrender value but lateron amended the complaint through G.P.A. As to what is the relationship of the complainant with the G.P.A. has not been explained. The lust of securing the plot by G.P.A. who is a property dealer cannot be allowed to sustain. It has been seen in number of cases that the property dealers keep an eye on the disputed plots and in connivance with the staff of HUDA who also at the back and call of the property dealers manipulate the things in their favour, which practice is prevalent in this part of the Country which requires to be curbed. The lust for earning more profits after allotting the plot by HUDA, is increasing day by day, without actual profit reaching to the original allottee. The purpose of allotting the plots in urban estates, is to provide better facilities with respect to residential as well as commercial plots and the same should not be converted into a profits earning machine. We, therefore, are of the view that once the plot has been surrendered by the original allottee, who initially wanted to take refund the surrender value of the deposited amount but later on fell in lust to get more money from the G.P.A. who is a property dealer, cannot be allowed to retain the plot in such a flimsy manner. To curb such a tendency, Honble Apex Court has taken a serious view in this regard. Reference is made to the observation made by Honble Supreme Court in Special Leave Petition (C ) No.13917 of 2009 titled as Suraj Lamp & Industries Pvt. Ltd. Versus State of Haryana and another decided on 11.10.2011 dealing with consequence of Power of Attorney holder acquiring rights, held as under:-
III-Effects of SA/GPA/WILL transactions
3. The earlier order dated 15.5.2009, noted the ill-effects of such SA/GPA/WILL transactions (that is generation of black money, growth of land mafia and criminalization of civil disputes) as under:
& quot; Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons: (a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.
(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.
(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin.
Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption.
This kind of transactions has disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such `power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of musclemen to `sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions & quot;
It also makes title verification and certification of title, which is an integral part of orderly conduct of transactions relating to immovable property, difficult, if not impossible, giving nightmares to bonafide purchasers wanting to own a property with an assurance of good and marketable title.
The facts of the instant case are fully attracted to Suraj Lamp & Industries Pvt. Ltd. versus State of Haryana and another case (Supra). Thus, the complaint filed by the complainant through G.P.A. is not maintainable. Hence, the impugned order passed by District Consumer Forum cannot be allowed to sustain.
Accordingly, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 22.02.2012 President B.M. Bedi Judicial Member