State Consumer Disputes Redressal Commission
M/S Sannidhanams Constructions vs Smt.Vasantha Reddy on 9 January, 2024
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
FA. No.438/2022 AGAINST ORDERS IN
E.A.No. 02/2015 IN C.C.No.113/2012
ON THE FILE OF DISTRICT CONSUMER
FORUM-III, HYDERABAD.
Between :
1.M/s.Sannidhanams Constructions, A partnership firm having its registered office at Flat no.401,4th floor, Fair View Plaza, Himayathnagar, Hyderabad, Represented by its Managing Partner Smt.V.Padmanjali, W/o.V.Dhananjaya Chary, Aged about 51 years, Occupation:Business, R/o.23-5-325, Lal Darwaza, Shalibanda, Hyderabad, Present R/o.Flat No.502, H.No.3-3-78, Sri Urmilok Towers, Kutbiguda, Kacheguda, Hyderabad 500 023.
2. Smt.V.Padmanjali, W/o.V.Dhananjaya Chary, Aged about 51 years, R/o.23-5-325, Lal Darwaza, Shalibanda, Hyderabad, Present R/o.Flat No.502, H.No.3-3-78, Sri Urmilok Towers, Kutbiguda, Kacheguda, Hyderabad 500 023. ... Appellants/ Respondents 1 & 2/ Opposite parties 1 & 2 And
1.Smt.Vasantha Reddy, W/o.M.Sarabha Reddy, Aged about 53 years, Occupation:Housewife, R/o.Flat No.202, II Floor, Sannidhanams, Sai Urmilok Towers, Kacheguda, Hyderabad. ... Respondent/ Petitioner/ Complainant
2. Sri Ashok Lodha, S/o.Abhai Mal Lodha, Aged about 30 years, Occupation: Business, R/o.1-10-38/2/6, Flat No.304, Lotus Flora Apartments, Begumpet, Hyderabad.
3. Sri LP.Saigal, S/o.Late Dr.Satyanarayan Pershad Saigal, Aged 75 years, Occupation:Advocate, H.No.3-78, Kacheguda, Hyderabad.
24. Smt.Urmila L.Saigal, W/o.L.P.Saigal, Aged about 70 years, Occupation:Housewife, R/o.H.No.3-78, Kacheguda, Hyderabad.
5. Smt.Priya Saigal, W/o.Dilip Saigal, Aged about 41 years, Occupation:Business, R/o.H.No.3-6-208, Flat No.501, 5th Floor, Abhirupa Apartments, Street No.16, Himayatnagar, Hyderabad 29.
6. Smt Suparna (Saigal) Kishan, W/o.Sri Sanjay Kishan, Aged 38 years, Occupation: Housewife, R/o.H.No.16-11-741, Gaddiannaram, Dilsukhnagar, Hyderabad. .... Respondents/ Respondents 3 to 7/ Respondents 3 to 7 (Respondents 2 to 6 are not necessary parties to the appeal) Counsel for the Appellants : M/s.V.Gowri Sankara Rao. Counsel for the Respondent : M/s. Gogineni Krupachand-R1.
QUORUM: Hon'ble Smt. M eena Ramanathan,Incharge President And Hon'ble Sri K.Ranga Rao, M ember-Judicial.
TUESDAY THE NINTH DAY OF JANUARY, TWO THOUSAND TWENTY FOUR.
Order : (Per Hon'ble Sri K.Ranga Rao, M ember-Judicial.) ****
01). This appeal is filed by the appellant/respondents/opposite parties 1 & 2 u/s.73(1)(a) of Consumer Protection Act, 2019 praying this State Commission to set aside the impugned order dt.13.5.2022 passed in E.A.No.02/2015 in C.C.No.113/2012 by District Commission-III, Hyderabad by which order, the District Commission-III, Hyderabad sentenced the appellants/ respondents/opposite parties 1 & 2 to undergo simple imprisonment for two years and to pay fine of Rs.20,000/-, in default to suffer simple imprisonment for two months for the offence punishable u/s.27 of the Consumer Protection Act.
302). For the sake of convenient discussion, the parties are referred to as arrayed in the main Consumer Complaint.
Appellants are the opposite parties 1 & 2 , Respondent no.1 is the complainant and respondent nos.2 to 6 are the opposite parties 3 to 7 in C.C.No.113/2012 on the file of District Consumer Disputes Redressal Commission-III, Hyderabad.
03). The following few facts would help to know the background of filing the present appeal by the appellants/opposite parties 1 & 2:
The respondent/complainant filed C.C.No.113/2012 against the opposite parties 1 to 7. The said complaint was allowed by the District Commission with the following terms:
i. The opposite parties 1 to 7 shall get the documents released from mortgage with GHMC immediately;
ii. The opposite parties 1 to 7 shall register the sale deed relating to subject flat no.202 admeasuring 1632 sq.ft. with undivided share in land admeasuring 64.86 situated on the 2nd floor in the proposed multi storied residential complex, 'Sannidhanams Sai Urmilok Towers' along with one car parking in the premises bearing Municipal no.3-3-78, admeasuring 636.96 sq.yards situated at Kacheguda, Hyderabad;
iii. The opposite parties 1 to 7 shall pay jointly and severally a sum of Rs.4 lakhs towards compensation and Rs.2000/- towards costs. Time for compliance is 30 days.
04). For the sake of clarity, it is to be mentioned that opposite parties 1 & 2 are the builders. Opposite party no.3 is the financier of opposite parties 1 & 2. Opposite parties 4 to 7 are the land owners.
Opposite parties 4 to 7 filed F.A.No.1296/2013 and opposite party no.3 filed F.A.No.51/2014 challenging the order passed in C.C.No.113/2012, before Telangana State Consumer Disputes Redressal Commission. The State Commission after considering the material borne by the record allowed the said two appeals in part and modified the order of the District Commission to the effect that except for registration of the flat in favour of the complainant, opposite parties 3 to 7 cannot be fastened with the said liability for the reason that they have nothing to do with the transaction which had taken place between the buyer 4 (complainant ) and the builder i.e. opposite parties 1 and 2. The State Commission further observed that since the subject flat was mortgaged with GHMC authorities by the builder i.e. opposite parties 1 & 2 for the purpose of getting the entire complex built in accordance with the norms, a duty is cast upon the opposite parties 1 & 2 to get the said mortgage released and to see that the sale deed is registered in favour of the complainant and the entire process shall be completed within a period of 30 days from the date of receipt of the order under appeals F.A.No.1296/2013 and F.A.No.51/2014.
05). As the appellants/opposite parties did not comply the modified order, the complainant filed E.A.No.02/2015 in C.C.No.113/2012 before the District Commission-III, Hyderabad with a prayer to punish the respondents/opposite parties 1 & 2 (appellants herein) with imprisonment for a term which shall not be less than one month, but which may extend to 3 years or with a fine which shall not be less than 2000/- but which may extend to Rs.10,000/- or with both for non compliance of the order dt.18.11.2013 passed by the District Commission-III, Hyderabad in C.C.NO. 113/2012.
06). The District Commission after hearing the arguments and after considering the material borne by the record found opposite parties 1 & 2 guilty for the offence punishable u/s.27 of the Consumer Protection Act,1986 and accordingly convicted them u/s.255(2) of Cr.P.C. for the offence u/s.27of the Consumer protection Act,1986 and sentenced them to undergo simple imprisonment for two(2) years and to pay a fine of Rs.20,000/- and in default to suffer the simple imprisonment for two(2) months.
07). Aggrieved by the above order, the appellants/opposite parties 1 & 2 preferred the present appeal with the following grounds:
The order of the District Commission in allowing E.A.No.02/2015 is contrary to law , weight of evidence and probabilities of the case;5
The District Commission ought to have dismissed the Execution Application for impossibility of execution ;
The District Commission knows it very well that the subject flat no.202 at Sannidhanams Sai Urmilok Towers was under mortgage with GHMC and Occupancy Certificate was not issued due to deviation in the construction of the flat;
The District Commission failed to see that the
appellants/opposite parties 1 & 2 have already
submitted application with GHMC for
regularization under BRS Scheme by paying
Rs.10,000/- on 28.1.2016;
The District Commission failed to see that in view of pendency of Public Interest Litigation (PIL) i.e. W.P.(PIL) No.63/2016 before the Hon'ble Telangana High Court, all the 1,17,000 BRS applications could not be further processed by GHMC;
The District Commission failed to see that in view of the mortgage of subject flat with GHMC, the Sub- Registrar is not registering the flat in favour of respondent no.1/complainant;
The District Commission failed to see that the complainant failed to turn up and accept the alternative flat nos.101 & 502 instead of her flat no.202;
The District Commission failed to see that though the appellants/opposite parties 1 & 2 offered to pay the market value of the flat i.e. a sum of Rs.70 lakhs towards the cost of the flat, subject to the condition of re-delivering the flat to the appellants/opposite parties 1 & 2, the respondent/complainant never came forward and accepted for the said proposal;
The District Commission failed to see various memos filed by the appellants/opposite parties offering alternative flat to the respondent/ 6 complainant, but the respondent/complainant adamantly not accepting the same;
The District Commission failed to see that the Managing Partner of appellant no.1/opposite party no.1 firm is a law abiding woman, she made all sincere efforts to settle the issue, but could not register the flat in the name of respondent/ complainant, in view of the impossibility for execution/compliance of the orders passed by the District Commission in C.C.No.113/2012 for the reason of BRS Scheme is sub-judice before the Hon'ble High Court;
The District Commission failed to see that there was no intentional failure, default or disobedience on the part of the appellants/opposite parties in complying the orders passed by the District Commission, but for the reason beyond their control;
The District Commission committed material irregularity and illegality in punishing the appellants/opposite parties 1 & 2 to undergo simple imprisonment for a period of two years and to pay fine of Rs.20,000/-.
With the above grounds, the appellants/opposite parties 1 & 2 prayed this State Commission to set aside the orders passed by the District Commission-III, Hyderabad in E.A.No.02/2015 dt.13.5.2022 and consequently dismiss E.A.No.02/2015 with costs.
08). Heard the arguments of the appellants and the learned counsel for the appellants 1 & 2 by and large reiterated the quintessence of the grounds of the appeal. The respondent no.1/complainant is absent and there is no representation on her behalf. Hence the arguments of her are treated as heard so as to decide her stand basing on the material borne by record and reserved the appeal for judgment.
09). The point that arises for consideration is whether the impugned order dt.13.5.2022 passed in E.A.No.02/2015 in 7 C.C.No.113/2012 is sustainable in view of the BRS Scheme is sub-judice before the Hon'ble Telangana High Court vide W.P.(PIL) No.63/2016?
10). To decide the point for consideration, we have carefully examined the whole material borne by the record including the evidence of PW.1/complainant and RW.1/1 st opposite party, RW2 who is husband of opposite party no.1 and Exs.R1 to R5 marked on behalf of the appellants/opposite parties 1 & 2 in E.A.No.2/2015 in C.C.No.113/2012 and the same would manifest that the respondent/complainant/PW.1 in her evidence categorically stated that the appellants/opposite parties 1 & 2 have paid a sum of Rs.4,02,000/- to her on different dates in part compliance of the order dt.18.11.2013 in C.C.No.113/2012, but they have failed to comply the Clauses 1 & 2 of the said orders.
11). Evidence of RWs.1 & 2 shows that they have paid an amount of Rs.4 lakhs to the respondent/complainant by which they have partly complied the orders of the District Commission passed in C.C.No.113/2012. The execution of Sale Deed in favour of the respondent/complainant in respect of flat no.202 is pending and the peittioner/complainant is well aware that the Building Regularisation Scheme (BRS) adopted by GHMC has been stayed by the Hon'ble High Court for the State of Telangana on 22.10.2015 and the said stay has been continuing and the same is in force. More than 1,17,000 applicants could not get their properties regularised because of the said orders passed by the Hon'ble High Court. RWs.1 & 2 ( opposite party no.1 and her husband) have already paid an amount of Rs.10,000/- on 28.1.2006 as part payment out of Rs.24,000/- to GHMC under the BRS and they are ready to pay the balance as and when GHMC receive the same. Once the Building Regularisation Scheme (BRS) is approved by the Hon'ble High Court, the mortgage of flat no.202 would be released from the GHMC authorities and then only they can register and execute the sale deed in favour of the respondent/complainant. There is no delay on their part and they have no intention to drag the matter. Nine memos are borne by the record which are as follows:8
1. Memo dated 17.4.2019 stating that " As per the directions of the Commission submitting the orders in WP(PIL) No.63/2016 passed by the Hon'ble High Court, at Hyderabad prays this Commission to pass appropriate reliefs in the interest of justice" 2. Memo, dated 16.7.2019, stating that " as per the directions of the Commission, prepared Sale Deed on necessary Non-Judicial Stamp papers and entire format given to the Counsel for the Petitioner/complainant, the same sent to the Petitioner and informed they are ready for registration, whenever she comes to India from abroad, will get it registered and hence prayed this Commission to close E.A.No.2/2015 in C.C.No.113/2012". 3. Memo dated 14.11.2019, stating that " they are ready for execution of Sale Deed and presenting for registration for which the petitioner/complainant ought to have not objected for the same and for the reasons mentioned herein".
4. Memo dated 11.12.2019, stating that " they have made an application under Right to Information Act, to the Deputy Commissioner, GHMC, Circle No.16, Abids, Hyderabad seeking information about the status of BRS Application of the Respondents in respect of the subject matter for which GHMC started clearing of BRS applications pending" . 5. Memo, dated 07.03.2022, stating that the alternative flats either 101 or 502 could be negotiated with the concerned owners and get the registered in favour of the petitioner".
6. Memo dated 09.03.2022, stating that " On negotiations, the petitioner/complainant accepted for alternative Flat of 502, instead of her Flat of 202 registration and stated that the owner of Flat No.502 is an NRI and she undertakes negotiate with him for ensuring the registration within one month". 7. Memo dated 08.04.2022 stating that "The Opposite parties No.1 to 3 are trying to fetch the alternative flat to the petitioner/complainant, that flat owner is NRI at Germany and requested time of 15 days for compliance".
8. Memo, dated 21.4.2022, stating that "alternatives have been negotiated with the petitioner and offered the Market Value of the Flat no.202, a sum of Rs.70,00,000/- in lieu of registration of the flat as the mortgage clearance of the said flat is taking time in view of the procedural aspects in GHMC and to show the bonafides of the Respondents, intends to deposit the said sum of Rs.70,00,000/- provided one week time may be granted".
Memo, dated 26.04.2022, stating that "both the parties are having negotiations actively and the negotiations are expected to come to an end by 16.05.2022 and the matter may likely to be settled, prayed this Commission to grant time till 16.05.2022 for final settlement in the matter".9
The above memos are filed by opposite parties who are the appellants herein and the same show that they got prepared the sale deed in the name of the respondent/complainant on necessary non judicial stamp papers and they also offered alternative flats 101 or 502 to the complainant instead of her flat no.202 and they also offered to pay a sum of Rs.70 lakhs towards the cost of the flat no.202. But the respondent/complainant has not come forward to accept the same and she insists for the registration of the flat no.202 purchased by her from the appellants/opposite parties 1 & 2.
Exs.R1 to R4 letters substantiate the submission of appellants/opposite parties 1 & 2 that they made sincere efforts to get the Occupancy Certificate from the GHMC authorities and further they also requested GHMC authorities to release the mortgage of flat no.202 so that they can register the said flat in the name of the respondent/complainant, but for the stay of BRS Scheme by Hon'ble High Court passed in W.P.(PIL) No.63/2016 dt.206.2016, they could not do the same.
12). Ex.R5 marked in E.A.No.2/2015 in C.C.No.113/2012 is copy of order in W.P.(PIL) No.63/2016 of the Hon'ble High Court, Hyderabad, dt.20.6.2016 which order was passed by the then Hon'ble Justice Sri Dilip B.Bhosale and Hon'ble Sri Justice P.Naveen Rao. A perusal of the said order shows that the petitioner - Forum for Good Governance represented by its Secretary Sri M.Padmanabha Reddy filed W.P.No.63/2016 before the Hon'ble High Court against the respondents 1 to 5 under Article 226 praying that Hon'ble High Court may be pleased to issue a Writ Order or a direction, one more in the nature a Writ of Mandamus declaring (i) the action of the respondents in proposing to extend the cut off date from 15.12.2007 to 28.10.2015 by way of an amendment to Section 455 - AA of GHMC Act ,1955 for the purpose of regularizing illegal constructions made within the territorial jurisdiction of the Greater Hyderabad Municipal Corporation (Amendment) Act,2016 published in the State Gazette No.5 dt.19.04.2016 as illegal, arbitrary and unconstitutional being in violation of Articles 14 and 21 of the Constituion of India; ii). the action of the Respondents in proposing to regularize illegal constructions made within the territorial jurisdiction of the 10 Greater Hyderabad Municipal Corporation by issuing orders in G.O.Ms.No.152 Pm a & UD (M1) Department dated 2.11.2015 as illegal , arbitrary and unconstitutional being in violation of Articles 14 & 21 of the Constitution of India; (iii). consequently quash Section 11 of the Greater Hyderabad Municipal Corporation ( Amendment) Act ,2016 published in the State Gazette No.5 , dated 19.04.2016; and (iv). further consequently quash the Rules in G.O.Ms.No.152 M.A. & UD (M1) Department dated 02.11.2015.
In the said order since the Government Pleader sought time to take instructions and to file counter affidavit, while posting the said writ petition to 18.07.2016, the Hon'ble High Court passed the following order :
In the meanwhile, the State Government may receive the applications seeking regularization in terms of the notification dated 02.11.2015, but they shall not pass final orders on the application."
For the sake of clarity, the respondents 1 to 5 in the above Writ Petition W.P.(PIL) 63/2016 are the following:
1. The State of Telangana, Represented by its Principal Secretary, Municipal Administration & Urban Development, Secretariat, Hyderabad.
2. The Greater Hyderabad Municipal Corporation, Represented by its Commissioner, Boorgula Rama Krishna Rao Bhawan, Hyderabad.
3. The Commissioner, Greater Hyderabad Municipal Corporation, Boorgula Rama Krishna Rao Bhawan, Hyderabad.
4. The Hyderabad Municipal Water Supply & Sewerage Board, represented by its Vice Chairman cum Managing Director, Khairatabad, Hyderabad.
5. The Telangana State Transmission Corporation, Represented by its Managing Director, Somajiguda, Hyderabad.
The Hon'ble High Court for the State of Telangana in the case of Forum for Good Governance vs. Principal Secretary, Ma.Ud.Hyd., 4 others on 28.4.2021 comprising Hon'ble Chief Justice Sri.Hima Kohli and Hon'ble Justice Sri B.Vijaysen Reddy passed a common order in W.P.(PIL) No.219 OF 2020, W.P.No.8059 of 2020, W.P.No.17957 of 2017, W.P.(PIL) No.63 of 2016, W.P.(PIL) No.211 of 2020, W.P.(PIL) No.241 of 2020, W.P.(PIL) No.250 of 2020 & WP (PIL) No.277 of 2020. For the ready reference the said order is reproduced hereunder:
111. Learned counsel for the respondent/State states that he has filed a copy of W.P.(C) no.1236/2020 entitled Juvvadi Sugar Rao v. Union of India and others which is pending before the Supreme Court wherein, the State of Telangana has been impleaded as the respondent no.5 and the state of Tamil Nadu and Andrha Pradesh as the respondents no.6 and 7.
2. A challenge has been laid to G.O.Ms.No.287 dated 03.04.2008 and G.O.Ms.No.276 dated 02.07.2010 in the said petition wherein notice was issued by the Supreme Court on 16.12.2020. Further, the petitioner therein has been directed to implead all the State Governments/Union Territories in the said matter.
Learned counsel states that service has yet to be effected on the newly impleaded respondents and the State of Telangana has not yet filed a counter affidavit.
3. In view of the aforesaid submission, it is deemed appropriate to close all the petitions. After the Supreme Court takes a decision in the captioned petition, it shall be for the parties to seek consequential relief, if any, by approaching the Government authorities.
4. The present petitions are accordingly closed along with the pending applications if any, with a direction that the order dated 18.10.2016 passed in W.P.(PIL)No.63 of 2016 shall continue to operate till a decision is taken by the Supreme Court on the captioned petition.
A perusal of the above order shows that the interim order passed in W.P.(PIL) 63/2016 continues till a decision is taken by the Hon'ble Supreme Court in W.P.(C) No.1236 of 2020 which is pending on the file of Hon'ble Supreme Court. The learned counsel for the appellants/opposite parties 1 & 2 filed the copy of W.P.(s) (Civil) No(s) 1236/2020 dt.25.04.2022.
A perusal of the above order shows that the Hon'ble Supreme Court directed to list the above Writ Petition after three weeks and the same shows that the said Writ Petition is still pending before the Hon'ble Supreme Court.
The order in W.P.(PIL) 63/2016 which was referred supra makes it clear that the State Government of Telangana may receive the applications in terms of the notification dt.2.11.2015. But they shall not pass the final orders on the applications.
13). The learned counsel filed the copy of the acknowledgement for new application for Building Regularization . A perusal of the same shows that the Greater Hyderabad Municipal Corporation issued the said acknowledgement stating that "this is to acknowledge that application for new building regularisation has 12 been received from M/s.V.V.Padmanjali having application No.2000093447 dt.28.01.2016" .
The learned counsel for the appellant/opposite parties 1 & 2 also filed the copy of DD for Rs.10,000/- drawn in favour of the Commissioner, GHMC which amount as per the appellants/opposite parties 1 & 2 paid by them for the regularization of the deviation of the sanctioned plan in the construction of the complex which as per the appellants1 & 2 is negligible i.e. below 10%.
14). The above facts disclose that the Hon'ble Supreme Court in the Writ Petition mentioned supra has to take a decision with regard to the BRS Scheme, as the matter is sub-judice i.e. pending before the Hon'ble Supreme Court, the Government of Telangana State is unable to take a decision with regard to applications filed for Building Regularization. If the Hon'ble Supreme Court takes a decision and dispose off the said writ petition, then it will be possible for the Government of Telangana to pass the final orders in applications filed for Building Regularization including the application of the appellants/opposite parties 1 & 2.
No doubt the District Commission has got every power to punish the defaulters such as the appellants/opposite parties 1 & 2 for non compliance of the orders passed in C.C.No.113/2012 u/s.27 of Consumer Protection Act,1986 but ought to have considered the fact that the issue pertaining to BRS Scheme is sub-judice before the Hon'ble Supreme Court and in view of the same, it is quite probable for the appellants/opposite parties 1 & 2 that they cannot release mortgage of the flat no.202 of the respondent/complainant from GHMC and cannot execute registered sale deed for the said flat in the name of the respondent/complainant. The fact situation makes it manifest that it is impossible for the appellants/opposite parties 1& 2 to comply the order dt.18.11.2013 in C.C.No.113/2012 particularly with regard to the release of the mortgage of flat no.202 and execution of the Sale Deed for subject flat in the name of the respondent/complainant. As such, it can be concluded that there is no intentional default in complying the order passed in C.C.No.113/2012 on the part of the appellants/opposite parties 1 13 & 2. It is to be noted that admittedly the complainant has taken possession of the flat and is residing in the same.
15). As such having considered the totality of the facts, we are of the considered view that it is just and proper to suspend the order passed in E.A.No.02/2015, dt.13.5.2022 in C.C.No.113/2012 by the District Commission-III, Hyderabad till the Hon'ble Supreme Court takes a decision with regard to the BRS Scheme in W.P.(C)No.1236 of 2020. But we make it clear that the moment the said Writ Petition is disposed off by the Hon'ble Supreme Court, the appellants/opposite parties 1 & 2 shall take steps for the release of the mortgage of the flat no.202 from the GHMC authorities and to execute the registered Sale Deed for the said flat in favour of the respondent/complainant, failing which the respondent/ complainant is at liberty to seek for revocation of the order of suspension of the order passed in E.A.No.02/2015 in C.C.No.113/2012 or she is at liberty to file a fresh Execution Application. Accordingly, the appeal is disposed of .
Sd./- Sd/-
I/c. PRESIDENT MEMBER-JUDICIAL
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Dated:09.1.2024