State Consumer Disputes Redressal Commission
City & Industrial Development ... vs Saw.Meena Sunil Mohite on 19 June, 2015
1 F.A.No. :31/13
Date of filing:24.01.2013
Date of order:19.06.2015
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO.: 31 OF 2013
IN COMPLAINT CASE NO. : 218 OF 2011
DISTRICT FORUM : AURANGABAD
City and Industrial Development Corporation Ltd.,
Aurangabad (CIDCO),
Through its Administrator,
Shri.Dadarao S/o Bhikaji Dandge,
R/o Udyog Bhavan, Town Centre,
CIDCO, New Aurangabad. ...APPELLANT
VERSUS
1. Sou. Meena W/o Sunil Mohite,
R/o ED-32/11, Bharat Mata Nagar,
N-12 HUDCO, Aurangabad.
2. Tapadiya Cine Market,
C/o Tapadiya Constructions,
Tapadiya Terraces, Adalat Road,
Aurangabad. ...RESPONDENTS.
Coram : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mrs.Uma S.Bora, Hon`ble Member.
Present : Adv.Mr.S.M.Jondhale for appellant,
Adv.Mr.L.M.Patil for respondent No.1.
O R A L JUDGMENT
( Delivered on 19th June 2015 )
Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. This appeal is directed against the judgment and order dated 7.11.2012 passed by Dist.Consumer Forum, Aurangabad in 2 F.A.No. :31/13 C.C.No.218/2011 directing appellant/org.opponent No.1 CIDCO to transfer the property godown No.43 situated in N-4 Cidco, Aurangabad in the name of Smt.Vaishali Gajanan Zalwar who purchased the same from complainant Smt.Meena Mohite. Further appellant/opponent No.1 is directed to pay to the complainant compensation of Rs.25,000/- towards mental agony and Rs.1,500/- towards cost of the proceedings.
(For the sake of brevity appellant City & Industrial Development Corporation Ltd, Aurangabad is hereinafter referred as opponent No.1 CIDCO and respondent No.1 Smt.Meena Sunil Mohite as complainant and respondent No.2 Tapadiya Cine Market as opponent No.2)
2. Brief facts giving rise to this appeal are that:-
Complainant Smt.Meena Mohite purchased the godown bearing No.43 situated in N-1 Town Centre, CIDCO, from opponent No.2 "Tapadia Cine Market" builder and developer vide deed of assignment dated 23.9.2008. It was purchased with the consent of opponent No.1 CIDCO. Opponent No.2 with the requisite permission of opponent No.1 had constructed complex over the plot No.1 admeasuring 5666.10 Sq.mtr. which is named and styled as "Tapadia Cine Market" and sold the shops to the prospective purchasers by executing declaration deed. Complainant Smt.Meena Mohite purchased one shop with godown No.43 and respondent No.2 executed the deed of assignment in favour of complainant with permission of opponent No.2 CIDCO. Thereafter on the basis of said deed of assignment, opponent No.1 transferred said property i.e. godown in the name of complainant vide order dated 12.11.2008. Accordingly, the property is mutated in the name of complainant in the record of rights maintained by opponent No.1 CIDCO.
However, due to financial crisis the complainant proposed to sell the same property to Smt Vaishali Zalwar and executed deed of agreement by 3 F.A.No. :31/13 receiving an earnest money of Rs.50,000/- and agreed to execute deed of assignment by receiving balance amount. Thereafter by application dated 26.5.2010 complainant sought requisite permission from opponent No.1 and paid requisite charges and requested opponent No.1 to transfer the same property in the name of Smt.Vaishali. However, opponent No.1 despite repeated request of the complainant did not transfer the property in the name of said Smt.Vaishali. Therefore alleging deficiency on the part of opponent No.1, complainant filed consumer complaint seeking direction to the opponent No.1 CIDCO to accord requisite permission for transfer of the property i.e. godown No.43 in the name of Smt.Vaishali and further claimed compensation at Rs.5 lakh towards deficiency in service and mental agony.
3. Opponent No.1 by its written version resisted the complaint on the following among other grounds:-
It did not dispute that complainant Smt.Meena Mohite purchased the property from opponent No.2 with its permission. It also did not dispute that complainant had applied permission to sell the property to Smt.Vaishali and paid requisite charges of Rs.12,500/-. However, it is contended that though the opponent No.2 made construction with its permission and submitted declaration, there is no mention about godown. It is further contended that site of godown is not included in the FSI. But opponent No.2 has shown premises of shop as godown and therefore godown cannot be transferred. It has denied all other adverse averments made by complainant and by raising preliminary objection viz. complainant is not its consumer and complaint is barred by limitation. It is further contention that without prior notice U/s 133(3)(a) and Maharashtra Regional Town Planning Act etc. complaint is not maintainable.4 F.A.No. :31/13
4. Opponent No.2 by its separate written version submitted that he has sold the property in question to the complainant as godown by executing deed of assignment with the permission of opponent No.1 CIDCO. It is also submitted that he has received completion certificate from opponent No.1 and further it has also submitted revised plan of the constructed property.
5. On hearing both side and considering documents on record Dist.Consumer Forum held that complainant is consumer of opponent No.1 and complaint is maintainable. Further District Consumer Forum held that opponent No.1 CIDCO has committed deficiency in service neglecting to accord necessary permission to transfer property in question to Smt.Vaishali Zalwar by complainant Smt.Meena Mohite etc. In keeping with these findings Dist.Consumer Forum allowed the complainant's claim as noted above.
6. Feeling aggrieved by that judgment and order, opponent No.1 CIDCO came to this Commission in appeal.
7. We heard learned counsel for appellant/opponent No.1 and respondent/complainant and perused the written notes of argument submitted by counsel appearing for appellant and complainant/respondent. We have also perused the copy of impugned judgment and order, copies of complaint, written version and other documents including revised deed of declaration submitted by opponent No.2. However, we have had no opportunity to hear the counsel for opponent No.2 as he remained absent and failed to submit written notes of arguments.
8. Almost all the facts except the contention of opponent No.1 CIDCO that permission for construction of godown was not given to opponent 5 F.A.No. :31/13 No.2 but it was for the construction of shop etc. are not disputed. It is also not disputed that after completion of construction, completion certificate was issued by opponent No.1 CIDCO in favour of opponent No.2 builder and further complainant purchased the property in question from opponent No.2 builder with its permission. Further according to opponent No.1 CIDCO, opponent No.2 builder was asked to furnish revised deed of declaration but he failed to furnish revised declaration. Therefore permission as sought by complainant for selling property is not considered. Therefore the crux in this matter is as to whether opponent No.1 has committed deficiency in service or not?
9. On the date of final hearing, counsel for appellant as well as respondent/complainant remained absent. However, when the matter was fixed for judgment, counsel for appellant and respondent advanced their arguments.
10. Mr.Jondhale appearing for appellant/opponent CIDCO submitted that since builder has not submitted revised deed of declaration, the application of the complainant seeking permission for alienation of property in favour of Smt.Vaishali is not considered. However, he further submitted that now pending appeal opponent No.2 revised the declaration and the same is under consideration. Not only this but he has further submitted that appellant/opponent No.1 CIDCO has decided to grant permission as sought by the complainant and sought adjournment. But as the matter is pending since long and no reasons are given as to why permission for alienation of the property in question by opponent No.2 in favour of complainant was granted without receiving revised declaration from opponent No.2 we are declined to grant adjournment.
6 F.A.No. :31/1311. Further it is submitted by Adv.Jondhale appearing for appellant/opponent CIDCO that since opponent No.2 was already informed to submit revised declaration and he has not submitted revised declaration despite repeated reminders, Permission as sought by complainant is not accorded. Therefore according to him no deficiency in service is committed by opponent No.1 CIDCO. But District Consumer Forum without considering this fact wrongly allowed complainant's claim.
12. Per contra, Mr.C.M.Patil learned counsel appearing for the complainant submitted that despite repeated oral request and reminders the opponent CIDCO did not give any response and therefore complainant was constrained to file the consumer complaint. Therefore District Consumer Forum has rightly considered and allowed the complaint.
13. Considering the undisputed facts that complainant has purchased the property in question from Opponent No.2 builder with permission of opponent No.1 CIDCO we find much force in the submission of Mr.Patil learned counsel appearing for the complainant. If the opponent No.2 would not have submitted revised declaration as sought by opponent/appellant CIDCO, it should not have issued completion certificate and further it should not have permitted opponent No.2 builder to alienate property in favour of complainant. But when undisputedly complainant has legally purchased the property in question from opponent No.2 with the permission of opponent No.1 CIDCO and opponent No.2 CIDCO recorded the same property in the name of complainant, the contention of opponent CIDCO that permission as sought by complainant was not considered for want of revised declaration from opponent No.1 cannot be sustained. Therefore 7 F.A.No. :31/13 the arguments advanced by Shri.Jondhale learned counsel for the opponent CIDCO cannot be accepted.
14. Since undisputedly opponent CIDCO despite repeated request and reminders in writing failed to consider the complainant's application for permission, it is obvious that opponent No.1 CIDCO has committed deficiency in service. However, it is submitted by learned counsel for the opponent/appellant CIDCO that though opponent No.1 CIDCO accepted transfer charges of Rs.12,500/- from complainant, complainant cannot be treated as consumer of opponent CIDCO. As opponent CIDCO is being a Government owned company cannot be treated as a service provider and therefore consumer complaint is not maintainable. It is further submitted that complaint is being filed without statutory notice U/s 159 A under MRTP Act, complaint is not maintainable. Further he has submitted that complaint is also barred by limitation. But we find no merit in this submission. Firstly, because when undisputedly complainant issued as many as 4 reminders in writing, it cannot be accepted complaint is not maintainable for want of statutory notice etc. Further when undisputedly reminder letters was issued on 14.9.2010, complaint was filed on 10.5.2010 within two years from the last reminder, it cannot be accepted that complaint is barred by limitation. Moreover when undisputedly opponent CIDCO has received transfer charges of Rs.12,500/- towards complainant's claim for permission, it was obligatory on the part of opponent CIDCO either to grant or refuse the permission. But since undisputedly no response was given by opponent CIDCO, it amounts to deficiency in service. Accordingly considering all these facts District Consumer Forum has rightly held.
15. Moreover, it is pertinent to note here that when undisputedly opponent CIDCO has permitted opponent No.2 to alienate the same property in favour of complainant and after issuance of completion 8 F.A.No. :31/13 certificate, now contention of opponent CIDCO that construction is not as per approved plan and opponent No.2 has not submitted revised declaration, is being hit by the principle of estoppel, cannot be sustained. Not only this but when opponent CIDCO itself has mutated property in question in the name of complainant, it cannot be disputed that complainant is entitled to alienate the same property with permission of opponent CIDCO by payment of requisite charges. When opponent CIDCO has accepted the transfer charges from complainant it was obligatory on its part to accord necessary permission as sought by complainant and record the property in the name of purchaser Smt.Vaishali Zalwar. Accordingly District Consumer Forum rightly held and directed opponent CIDCO to record property in the name of Smt.Vaishali Zalwar. District Consumer Forum also has rightly awarded compensation towards mental agony and holding that opponent CIDCO has committed deficiency in service. Thus we find no error or infirmity in the impugned judgment and order. Hence no interference is warranted.
16. In the result, appeal is being devoid of any merit liable to be dismissed. Hence the following order.
O R D E R 1. Appeal is dismissed.
2. Having regard to the peculiar facts of the case we direct the parties to bear their own cost.
3. Copies of the order be sent to both the parties.
Sd/- Sd/- Uma S.Bora S.M.Shembole, Member Presiding Judicial Member Mane