State Consumer Disputes Redressal Commission
01. M/S. Narne Estates (P) Ltd, ... vs Wg. Cdr (Retd) Amitabh Bhattacharya, ... on 21 January, 2013
A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD FA 78/2011 against CC. No. 472/2010 on the file of District Consumer Forum I, Hyderabad. Between : 01. M/s. Narne Estates (P) Ltd No. 1, Gunrock Enclave, Karkhana, Secunderabad 500 009 02. Col. No. Sri Narne Ranga Rao. Chairman & Managing Director M/s. Narne Estates (P) Ltd No. 1, Gunrock Enclave, Karkhana, Secunderabad 500 009 ..Appellants/opposite parties 1 &2 And 01. Wg. Cdr (Retd) Amitabh Bhattacharya Aged about 49 years, R/o 143, Vivekananda Nagar, OPP : NIT Garden, Wardha Road, Nagpur 440 015 Respondent/complainant 02. Sqn Ldr ( Retd) T V Ramana Rao General Manager, Customer Service & Vice President Corporate Affairs, Narne Estates Pvt Ltd, Gunrock Enclave, Secunderabad 500 009. 03. Col. ( Retd) KTA Bhandula General Manager, Customer Service, Narne Estates Pvt. Ltd 1 Gunrock Enclave Secunderabad 500 009 Respondents/ Ops 3 & 4 (Respondents 2 & 3 are not necessary parties to this Appeal ) Counsel for the Appellants : M/s. K. R. Koteswara Rao Counsel for the Respondents : M/s. T. Varalakshmi for R-1 Coram ; Sri R. Lakshminarasimha Rao Honble Member
And Sri T. Ashok Kumar ..
Honble Member Monday, the Twenty First Day of January Two Thousand Thirteen Oral Order : ( As per Sri T. Ashok Kumar , Honble Member ) *****
01. This is an appeal preferred by the opposite parties as against the orders dated 30.11.2010 in CC 472/2010 on the file of the District Consumer Forum I, Hyderabad. For convenience sake, the parties as arrayed in the complaint are referred to as under :
2. The brief facts of the complaint are as under :
He was allotted plots bearing nos. 56 and 57 admeasuring 250 sq. yards each in Block No. B, D, Sector
-5, East City by the OP on payment of Rs.9,290/- on 24.09.1995 for a total consideration of Rs.65,500/- to be paid in equal monthly instalments of Rs.1,500/- per month for 36 months and Rs.1,000/- as the last payment. He paid last installment of Rs.1,000/- on 29.06.1998. In reply to his letter dated 21.01.1999, he was informed by OP. 3 that the development works will be taken up from March, 1999 and the complainant had to pay Rs.2,000/- per month for the booked plots.
The request of the complainant vide letter dated 15.06.1999 to buy under buyback policy was refused by Ops and on his request he was allotted plot no. 65 and 66 admeasuring 500 sq. yards in Sector 5, Block AL instead of plot no. 56 and 57 in Block BD. Further, the Ops allotted plot nos. 28 & 29 (CP) in Block AE to the complainant without any prior intimation. Instead of plot no. 65 and 66 in sector 5, Block AL and executed a sale deed on 22.03.2003 under document no. 1219/2003 but did not deliver peaceful possession of the said plots to him. The Ops misguided him stating that there was no dispute of the land and later to his legal notice dated 01.01.2009 to provide alternate plots or refund the amount and letters, the OP offered to buy back the plots @ Rs.500/-
per sq.yard as the land was in dispute in the Court and forwarded a format of no claim certificate/No due certificate and GPA for resale and he rejected the same but the Ops did not deliver possession of the same. Hence the complaint seeking for refund of Rs.1,57,995/- cost of the plots with interest @ 18% PA thereon from 03.10.2008, to pay a sum of Rs.15,93,115/- difference of the market price and cost paid by the complainant, Rs.one lakh towards mental agony etc and Rs.one lakh for expenses and costs of Rs.50,000/-.
3. OPs filed counter opposing the claim of the complainant and denying the allegations made in the complaint and disputing the claim and the brief facts of the counter are as under :
The complainant was allotted plots with no. 56 and 57 in Sector 5 Block BD of East City admeasuring 250 sq yard each for Rs.63,500/- and it was paid by 29.06.1998 in instalments and at his request they changed allotment to sector 5 Block AL and plot no. 65 and 66(ISP) and thereafter to plot nos. 28(CP) and 29(CP) in Block AE. The sale deed was executed on 22.03.2003 vide document no. 1219/2003. Due to escalation of prices and labour charges, the developmental works have not been completed and the members have been requested to cooperate with regard to delivery of possession of the plots and the same was intimated to the complainant on 18.04.2007. The Ops wanted to purchase the plots @ Rs.500/- sq. yard in Sector 5 but the complainant expected Rs.900/- to rs.1000/- per sq. yard. When he brought the matter to their notice vide letter dt. 3.10.2008, that the plot no. 29 along with other plots in Block AE was fenced and he came to know of the dispute about the said plots with the original owner and requested to transfer by sale deed a clear plot or alternatively refund cost of plot no. 29, they informed some miscreants who purchased land close by had encroached upon the complainants plots and the matter had been taken up by Bhongir court and expressed the hope to resolve the issue soon and will get clear title. They sent a format of the claim certificate etc with the offer of buyback @ Rs.500/- per sq. yard but the complainant rejected the same. As per the request of the complainant, they are in the process of resale and that there is no deficiency in service or unfair trade practice on their part and that the relief sought for in the present CC for refund of sale consideration paid earlier and for such relief is contractual obligation and in such case for enforcing any such obligation the complainant has to approach Civil court for specific performance of the contract but not before the Forum and that the District Forum has no jurisdiction to entertain the complaint and thus prayed to dismiss the complaint.
4. Considering the evidence affidavits of the parties to the proceedings and the documents marked by them in the above complaint, the District Forum allowed the complaint in part directing the opposite parties to pay Rs.5 lakhs towards cost of the plots, Rs. One lakh towards mental agony and Rs.2,000/- towards costs within 30 days.
5. Aggrieved by the said orders, the opposite parties preferred the above appeal on several grounds and mainly contending that the impugned order was passed by the Members only without any law and in violation of the provisio and as per Sub-section 2 of section 14 of Consumer Protection Act, 1986 every order shall be signed by its President and Member of the District Forum and that the order under appeal is beyond the scope of reference made under subsection 1 of section 14 of C P Act and that even though the District Forum accepted the contention of Ops that the sale deed has been executed on 22.3.003 and possession has been delivered erroneously passed an order stating that due to encroachment of the plot the complainant is entitled to receive Rs. 5 lakhs towards cost of his two plots and that even though the Ops 1 and 2 have come forward to buy back the plots of the complainant at the rate of rs.500-/ per sq. yard as a good will gesture the complainant refused to accept the price offered and requested to buy back the plots as per presumed high market rate and thus the dispute is with regard to quantum of rate per sq. yard and no other issues like deficiency in service and unfair trade practice and that if the complainant cannot wait till the encroachment dispute in the Civil Court settled the Ops can consider and allot alternative plots in lieu in keep up their reputation in the market and as a good will gesture at the terms agreeable to all the parties concern and that the complainant is liable to pay developmental charges and additional developmental charges and that the District Forum has no jurisdiction to entertain the complaint but none of the said points agitated by the Ops were considered and thus prayed to allow the appeal and set aside the impugned order.
6. Now the point for consideration is, whether the orders of the District Forum are sustainable?
7. The first and foremost ground agitated by the Opposite parties in this appeal is that the order passed by only two Members of the District Forum is without any authority. According to them, U/s. 14 (2) of CP Act every order passed by the District Forum shall be signed by its President and the Member or Members. In the said context, perusal of S. 22 (D) of Consumer Protection Act, 1986 is necessary and it reads as under :
Vacancy in the office of the President : when the office of President of a District Forum, State Commission or of the National Commission, as the case may be, is vacant or a person occupying such office is, by reason of absence or otherwise unable to perform the duties of his office, these shall be performed by the senior most member of the District Forum, the State commission or of the National Commission, as the case may be.
Provided that where a retired Judge of a High Court is a member of the National Commission, such member or where the member of such members is more than one, the senior-most person among such members, shall preside over the National Commission in the absence of President of that Commission.
In view of the said provision, in the absence of President of the District Forum the duties of his office shall be performed by the Senior-most member of the Forum and therefore, the order under appeal passed by two members is valid and thus the objection of the Ops in the said context holds no water.
08. As per the decision of the Honble Supreme Court in Fakir Chand Gulati Vs. Uppal Agencies Pvt.
Ltd. reported in 2008 (4) CPR 449 (SC) and the decision reported in C.D.J 2012 S.C 370 between M/S Narne Construction (P) Ltd., Vs Union of India and others and so also, the decision between Lucknow Development Authority Vs M. K. Guptha reported in (1994) I SCC 243 the housing activity comes under the definition service and this Forum can entertain the complaint and thus Jurisdiction point agitated by the complainant is not helpful to him.
09. There is no dispute that the complainant became a member in the venture floated by the opposite party vide membership number 22825 and that he was allotted with plot nos. 56 and 57 in Block BD of section 5 of East City venture in Ranga Reddy District and that basing on Ex. B6 letter dt. 14.2.003 the complainant requested Ops to shift his allotment to plot nos. 28 and 29 in Block AE, and that Ops executed Ex. A13 sale deed dt. 22.3.2003 by document No. 1219 of 2003 in favour of the complainant in respect of plots no.56 and 66 in Block AL of sector 5. The said Ex. A13 sale deed containing photograph and thumb impression of the complainant and therefore in the circumstances of the case there is acceptable force in the contention of the Ops that at the request of the complainant vide his letter dt. 4.09.1999 his allotted plots 56 and 57 in Block BD in sector V were changed to plot nos. 65 and 66 in Block AL of sector V. according to the complainant the Ops did not deliver possession of the said plots to him but there is recital about delivery of possession in the sale deed.
However, Ops in their written arguments submitted before the District Forum have stated that with regard to delivery of possession of the plots to the complainant subsequent to sale deed the developmental works have not been completed due to fluctuation in the cost of material, labour etc and thus requested the complainant to pay the additional developmental charges but the complainant did not pay the same. There is no convincing material from the side of the Ops that the complainant agreed to pay additional developmental charges. The Ops did not mention the nature of developmental works and its estimated expenditure by giving break up figures . Similarly there is no dependable evidence that the Ops have undertaken developmental works. Therefore claiming additional developmental charges by Ops, was not justified and in the circumstances narrated supra and in view of clear mention in the written arguments described supra and an inference has necessarily to be drawn that the possession of the plots was not delivered to the complainant even though there is a recital in the sale deed in the said context. Ex. A15 letter dt. 3.`10.2008 addressed by complainant to Ops discloses that his representatives found on 28.9.2008 that plot no. 29 along with many other plots in Block AE, sector V, had been fenced and that he was told by the Manger of the OP that there were disputes with the original owner and plot no. 29 was not cleared for building or resale and that the complainant requested the Ops to transfer by sale deed a clear titled plot,. Similar in dimension and location etc with clear title or refund cost of the plot as per existing market rate that is 3.10.2008 for which Ex. A16 dt. 29.10.2008, reply was given by the OP stating that some miscreants who have purchased land close by have installed kadis around the land have encroached the plots of the complainant and that the matter has been taken up in BHongir Court and that Ops were hopeful of resolving the issue soon and thus requested the complainant to bear with them till then. Again, the complainant sent e-mal ( Ex. A17) and letter dt. 4.11.2008 requesting the Ops to allot fresh plots which can be disposed of easily or refund prevailing market rate, Then he received Ex. A20 reply dt. 21.11.2008 wherein it is intimated that the matter has been taken up in the Court and being pursued vigorously to resolve the issue assuring the complainant to clear his two plots during 2009.
Subsequently Ex. A21 letter dt. 7.1.2009 was addressed by the Ops to the complainant informing that as a customer oriented company they are catering buyback as a special scheme bale out members in dire financial need @ Rs.500/- per sq. yard in sector V and requested the complainant to forward enclosed no claim certificate duly signed and a general power of Attorney in their favour duly registered in sub registrars office original sale deed enabling them to confirm his resale request. All the said correspondence further strengths the contention of the complainant that possession of the plots registered under Ex. A13 was not delivered to him. Had the Ops were not at fault in the said context they would not have assured the complainant to resolve the issue. Ex. A11 statement of Account dt. 10.3.2003 discloses that development charges of Rs.75,000/- were paid and balance under the said head is Zero. It also discloses that out of Rs.73,000/- towards cost of the plot, Rs.69,250/- was paid and balance of Rs.3,750/- had to be paid and that Rs.14,000/- towards registration charges, Rs.12,000/- were paid and Rs.2,000/- balance had to be paid and that Rs.75,000/- towards interest charges were not paid. When development charges was shown as zero again claiming Rs.50,000/- towards development/addl. Development charges is not justified because the fault was with the Ops in not completing the development works. In view of the above discussion, the contention of the Ops that sale deed has been executed on 22.3.2003 and possession of the plots had been delivered to the complainant is no more helpful for them in this case. The said lapses on the Ops certainly causes mental agony to the complainant. The complainant claimed Rs.3,500/- per sq. yard or at the rate of prevailing market value and he did not place any dependable evidence in the said context. Ex. A11 statement discloses that in total the complainant paid Rs.1,56,250/- by 10.3.2003. Similarly there is no dependable evidence of the side of OPs also that the then market value of the property was Rs.500/- sq. yard which is certainly low.
Discussing all the said aspects and striking the balance between both the claims, the District forum directed the opposite parties to pay Rs. 5 lakhs towards cost of his two plots admeasuring 500 sq. yards and Rs. One lakh compensation towards mental agony and Rs. 2000/- towards costs of litigation.
Absolutely there are no valid grounds to interfere with the order of the District Forum in the said context. However, Ops are directed to pay such an amount, a duty cast upon the complainant to re-convey the plots covered by Ex. A13 sale deed in favour of Ops within four weeks from the date of payment of amounts so awarded by the District Forum to the complainant.
10. In the result, the Appeal is disposed of modifying the order of the District Forum and Ops are directed to pay Rs.5 lakhs towards costs of the plots admeasuring 500 sq. yards Rs. One lakh compensation for mental agony and Rs.2,000/- costs of the complaint awarded by the District Forum and upon such payments within four weeks the complainant shall reconvey the plots covered by Ex. A13 sale deed in favour of the opposite parties. The parties shall bear their own costs of the Appeal. Time for compliance four weeks.
MEMBER MEMBER DATED : 21/01/2013