National Consumer Disputes Redressal
Jit Pal Singh vs Taneja Developers & Infrastructure ... on 31 August, 2020
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1184 OF 2014 (Against the Order dated 26/09/2014 in Complaint No. 8/2013 of the State Commission Punjab) 1. JIT PAL SINGH S/o Shri Nanak Sharan House No.2406, Sector-37-C, Chandigarh Punjab ...........Appellant(s) Versus 1. TANEJA DEVELOPERS & INFRASTRUCTURE LTD. & ANR. Through its Chairman, Regd office at -9, Kasturba Gandhi Marg, New Delhi-110 001. 2. Taneja Developers & Infrastrucutre Ltd, Through its Authorized Signatory/ Regional Manager, Branch Manager, Regional Office, SCO-51-52, Sector-118, (Chandigarh-Kharar Road, NH-21), TDI City, Mohali, Punjab. ...........Respondent(s) FIRST APPEAL NO. 1570 OF 2016 (Against the Order dated 09/11/2016 in Complaint No. 8/2013 of the State Commission Punjab) 1. SANYAM DUDEJA S/O. SH. DARSHAN DUDEJA, HOUSE NO. 1959 PHASE-X, MOHALI, PUNJAB ...........Appellant(s) Versus 1. JITPAL SINGH & 2 ORS. H NO. 89, SECTOR-15-A, CHANDIGARH 2. TNEJA DEVELOPERS & INFRASTRUCTURES LTD., THROUGH ITS CHAIRMAN, REGD. OFFICE 9, KASTURBA GANDHI MARG, NEW DELHI-110001 3. TNEJA DEVELOPERS & INFRASTRUCTURES LTD., REGIONAL OFFICE SCO 51-52, SENIOR 118, (CHANDIGAR-KHARAR ROAD, NH-21), TDI CITY, MOHALI PUNJAB ...........Respondent(s) FIRST APPEAL NO. 24 OF 2015 (Against the Order dated 26/09/2014 in Complaint No. 8/2013 of the State Commission Punjab) 1. M/S. TANEJA DEVELOPERS & INFRASTRUCTURE LTD. THROUGH ITS AUTHORISED REPRESENTATIVE HAVING ITS REGISTERED OFFICE AT : 9, KASTURBA GANDHI MARG, NEW DELHI-110001 ...........Appellant(s) Versus 1. JIT PAL SINGH S/O. SH. NANK SHARAN, RESIDENT OF HOUSE NO. 2406, SECTOR-37-C, CHANDIGARH ...........Respondent(s) FIRST APPEAL NO. 722 OF 2016 (Against the Order dated 12/04/2016 in Complaint No. 179/2015 of the State Commission Punjab) 1. DINESH KAPOOR S/O SH.SATISH KAPOOR R/O HOUSE NO.3011,SECTOR-46C, CHANDIGARH ...........Appellant(s) Versus 1. M/S. TANEJA DEVELOPERS & INFRASTRUCTURE LTD. THROUGH CHAIRMAN 9,KASTURBA BANDHI MARG, NEW DELHI-110001 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER For the Appellant : For Jit Pal Singh, : In person For Sanyam Dudeja : Mr. Hitesh Kumar and Mr. Gulzar Hussain, Advocates For Dinesh Kapoor : Ms. Savita Malhotra, Advocate For TDI : Ms. Kanika Agnihotri and Ms. Sukriti Gandhi, Advocates and Mr. Ritesh Vijhani, Authorized For the Respondent :
Dated : 31 Aug 2020 ORDER R.K. AGRAWAL, J., PRESIDENT
1. The challenge in First Appeal Nos. 1184 of 2014, 24 of 2015 and 722 of 2016, filed under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"), one by M/s. Taneja Developers and Infrastructure Ltd. (Appellant in First Appeal No. 24 of 2015/Opposite Parties before the State Commission in Complaint) and two by the Complainants, namely Jit Pal Singh and Dinesh Kapoor (Appellants in First Appeal No. 1184/14 and First Appeal No. 722/16 respectively), is to the Orders dated 26.09.2014 and 12.04.2016 passed by the Punjab State Consumer Disputes Redressal Commission at Chandigarh (for short "the State Commission") in Consumer Complaint Nos. 08/13 and 179/15 respectively.
2. By the impugned Order, dated 26.09.2014, while allowing the Consumer Complaint No.08 of 2013, the State Commission has directed the Opposite Party Developer either to allot a Plot of 250 sq. yards in Sector 118, Mohali to the Complainant on the same terms and conditions of the Allotment Letter of Plot No. 529 or in case the same size Plot is not available in that area then to allot any other Plot of the choice of the Complainant subject to adjustment of payment of the excess/less area of the Plot of 250 sq. yards and to deliver the possession within three months with all ancillary amenities. Alternatively, if the Complainant was not interested to accept any offered Plot, the Opposite Party Developer was granted liberty to refund the deposited amount of ₹17,12,500/- along with interest @ 15% p.a. from the date of receipt till payment and to also pay a sum of ₹5,00,000/- to the Complainant on account of escalation in the costs of purchase of new Plot. The Opposite Party Developer was also directed to pay a sum of ₹1 lakh as compensation for Unfair Trade Practice in addition to litigation costs of ₹21,000/-. First Appeal Nos. 1184 of 2014 and 24 of 2015 arise out of the order dated 26.09,2014 passed by the State Commission in Consumer Complaint No. 08/2013 filed by Jit Pal Singh.
3. Dinesh Kapoor had filed First Appeal No. 722 of 2016 challenging the Order, dated 12.04.2016 passed by the State Commission which while allowing the Consumer Complaint No. 179 of 2015, had directed the Opposite Party Developer to develop and deliver the possession of the Plot in dispute to the Complainants within six months of the final outcome of the litigation regarding the acquisition of the Khasra numbers where the Plot of the Complainant was located and to further pay a sum of ₹3,00,000/- as compensation for the harassment and mental agony.
4. First Appeal No. 1570 of 2016 has been filed by one, Sanyam Dudeja, Authorized Signatory of Opposite Party Developer, i.e. Taneja Developers & Infrastructure Ltd. challenging the Order dated 09.11.2016 passed by the State Commission, Chandigarh in Miscellaneous Application Nos. 1464 of 2015 and 641 of 2016 in Consumer Complaint No. 08 of 2013. By the impugned order, the State Commission has found him guilty of filing a false affidavit in the Consumer Complaint No. 08 of 2013 and has directed the Registrar of the State Commission to file a Complaint against him before Chief Judicial Magistrate, Chandigarh.
5. Since the facts and question of law involved in all these Appeals are similar except for minor variations in the dates and events, these Appeals are being disposed of by this common Order. However, for the sake of convenience, First Appeal No. 1184 of 2014 is treated as the lead case and the facts enumerated hereinafter are taken from Complaint No. 08 of 2013.
6. Succinctly put, the material facts, giving rise to filing of the Complaint, are that One, Kapil Nagpal booked one Plot admeasuring 250 Sq. yards with the Opposite Party Developer in a Scheme launched by them for providing Plots at their township, namely, TDI City at Mohali (Now Sector 118), Kharar Road, Punjab, by paying the booking amount of ₹3,00,000/- on 26.10.2005. The total sale consideration of the booked Plot was ₹20,37,500/- including External Development Charges (EDC) amounting to ₹4,12,500/-. Vide Allotment Letter, dated 28.05.2008, the Opposite Party Developer allotted Plot No. 529, Sector 118, Mohali to the said Kapil Nagpal. The present Complainant had purchased the said Plot from Kapil Nagpal by paying a sum of ₹8,56,250/- i.e. the total payment made by him to the Opposite Party Developer and on 13.08.2008, he also deposited a sum of ₹1,00,000/- with the Developer as transfer charges of the said Plot in his name. Consequently, the Plot was transferred in the name of the present Complainant. According to the Complainant, he has paid the total amount of ₹17,12,500/- to the Developer out of total consideration of the Plot of ₹20,37,500/ till 23.01.2009. It is stated that the Opposite Party Developer was under an obligation to deliver physical possession of the booked Plot within six months from the date of launch, i.e. upto 22.05.2009 after providing the basic amenities. It is alleged that the Opposite Party Developer has neither provided the physical possession of the Plot nor has developed the basic amenities. They were not interested to give possession of the Plot as there was increase in the market rate of the Plots and they wanted to sell them on higher rate. Feeling aggrieved, the Complainant initially filed the Consumer Complaint No. 392 of 2012 before the District Consumer Disputes Redressal Forum I, U.T. Chandigarh. However, the same was dismissed for want of pecuniary jurisdiction. Subsequently, a fresh Complaint was filed by the Complainant before the State Commission alleging deficiency in service on the part of the Opposite Party and seeking directions to them to give physical possession of the allotted Plot; to pay interest @18% p.a. on the deposited amount of ₹17,12,500/- from the date of deposit till delivery of actual possession; to pay ₹10,00,000/- on account of increase in cost of construction; to pay ₹2,00,000/- towards compensation for mental tension and harassment and to pay ₹33,000/- as cost of litigation.
7. Upon notice, the Complaint was resisted by the Developer by filing Written Version and raising the preliminary issues that; (i) since the transaction between the Kapil Nagpal and the present Complainant, was purely of a commercial nature, the complaint was not maintainable before the State Commission; (ii) no cause of action has accrued to the Complainant to maintain the Complaint before the State Commission, Chandigarh; and (iii) the Complaint was bad for non-joinder of necessary parties as Mr. Kapil Nagpal from whom the Complainant purchased the Plot in question was not impleaded as party respondent.
8. On merits, it was pleaded, inter-alia, in the Written Statement that the proposal of the Opposite Party Developer to develop a Mega Housing Project on an area of 160 acres with an investment of over ₹266.50 Crores was accepted by the Directorate of Industries and Commerce, Punjab and the Letter of Intent was issued in favour of them on 21.12.2005 in view of the Industrial Policy - 2003 formulated by the Government of Punjab to attract new investments in the State. The Government of Punjab also agreed to make the acquisition of land under the provisions of Land Acquisition Act, 1894 for the Opposite Party Developer to the extent of 10% of the total area of the Project for the purpose to facilitate the Developer to fill up the "Critical Gap Area". The Plot No. 529, initially allotted to Shri Kapil Nagpal and transferred in the name of present Complainant, fell in the "Capital Gap Area" for which the Government of Punjab issued the process of acquisition. However, the notification issued in this regard was challenged by the landlords before the Hon'ble High Court in C.W.P. No. 15651 of 2009. In these circumstances, it was open for the Complainant either to opt for withdrawal of the deposited amount in terms of the original application or he should wait uptil the disposal of the Writ Petition by the Hon'ble Punjab and Haryana High Court. The Complainant had satisfied himself about the development work at site and the notification issued by the Government of Punjab for acquisition of land under the "Critical Gap Area" before purchasing the Plot from Mr. Nagpal. Hence, there was no deficiency in service on the part of the Opposite Party.
9. On appreciation of the material available on record and the evidence adduced by the parties before it, the State Commission, as noted above, vide order dated 26.09.2014 allowed the Complaint. While rejecting the preliminary objections raised by the Opposite Party Developer, the State Commission observed as under:-
" Firstly taking the preliminary objection taken by the Opposite Parties in their written statement that the deal is purely a commercial between the Complainant and Kapil Nagpal, therefore, the Complainant does not come within the definition of the consumer. Originally, the plot was booked in the name of the Kapil Nagpal and with the consent of the Opposite Parties, it was transferred in the name of the Complainant. Complainant has specifically mentioned in his complaint that the plot was intended to be purchased by him for his own residential purposes. The OPs have not stated that the Complainant is possessing any other plot in the area, therefore, in case the plot has been purchased for own residential purposes then it cannot be said that the transaction is commercial in nature, otherwise, the plot was booked any they had allotted plot and promised to give the possession along with ancillary facilities in the shape of development of the area but they have failed to allot the plot in favour of the Complainant. Accordingly, it has been alleged that there is deficiency in services on the part of the Ops, therefore, relationship of Consumer and Service Provider emerges from the dealing between the parties, therefore, we are of the opinion that the Complainant is a "Consumer" as defined under Section 2(1)(d)(ii) of the Act.
10. With regard to merit of the case, the State Commission observed as under:-
" Site Plan of the Plot in question has been placed on record by the Complainant Ex. C-21 whereas the Ops in their evidence has not placed on the record, the Khasra Numbers, which were acquired by the Government of Punjab to cover the Critical Gap Area and whether Plot No. 529 is a part of that area. Although in the pleadings, it has been stated that notification under Section 4 & 6 were issued by the Government of Punjab. Although notification under section 6 of the Land Acquisition Act, has been placed on the record as Ex. O-3 and in the meantime the land owners had challenged the acquisition proceedings. No documents has been placed on the record by the Ops that the possession of the said land was taken by the Government of Punjab and further it was handed over to the Ops. In case the possession was not taken over by the Government of Punjab or handed it over to the Ops then how the Ops can show that land as a part of their project. Even if it is admitted that Plot No.529 comes under the land, which was acquired by the Government of Punjab for the Ops under the policy "Critical Gap Area" in case it has been so done, it amounts to unfair trade practice on the part of the Ops".
11. In the Consumer Complaint No. 179 of 2015, the State Commission while allowing the Complaint, observed as under:-
" In all these circumstances, when the non-delivery of possession of the plot was beyond the control of the Opposite Parties, it cannot be said that the Complainant is entitled to any compensation for the delay in delivery of possession of plot. The best for him was to accept the alternative plot so offered to him or to get the refund of the amount so deposited by him but the same was not acceptable to him. If he himself is interested to wait for the outcome of the litigation to get the possession of the plot in dispute itself, this Commission cannot allow any compensation for the late delivery of possession. However, for the harassment and agony, which has been suffered by him and is likely to be suffered by him, he is entitled to suitable compensation and the litigation costs. "
12. Hence, the Complainants in both the Complaints as well as the Opposite Parties in Consumer Complaint No. 08 of 2013, are before us in Appeals for setting aside the impugned order passed by the State Commission.
13. During the pendency in the Appeals, Jit Pal Singh, filed I. A. No. 2079 of 2016 in First Appeal No. 1184 of 2014 stating that the Miscellaneous Application No.1464 of 2015 in C. C. No. 08 of 2013 was filed by him before the State Commission under Sections 195 and 340 of Code of Civil Procedure 1908 for initiating proceedings against Sanyam Judeja, Authorized Signatory of the Opposite Parties for commission of offence u/s 191, 193, 200 of IPC in view of filing false affidavit before it to the effect that the Plot No.529, Sector 118, TDI Ciity, Mohall fell in the "Critical Gap Area" and the land of the Plot was under acquisition through Punjab Government. However, in the First Appeal No. 24 of 2015 filed by them against the Order, dated 26.09.14 of the State Commission, in para 11 they have admitted that the title of Plot No.529 validly vested with them. Hence, the said Plot was neither a part of so called "Critical Gap Area" nor was under acquisition by the Punjab State Government. Besides, Developer had sold possessionable Plots in Sector 118 to new Allottees at much higher rate instead of first discharging its responsibility to offer possession of Plot to the Complainant. It was prayed that the new events accompanied with more facts may kindly be considered along with main case of Appeal.
14. An identical I. A. No. 5191 of 2016 was again filed by the said Complainant stating that the Opposite Party Developer had sold three storeys floors on a Plot area of 250 sq. yards in the Project "Connaught Residency" which is located at 3 minutes walking distance from the location of the allotted Plot to the Complainant. However, the Complainant is waiting for Plot even after lapse of 8 years. He requested the Developer through email to allot him three storeys floors in the same Project on payment of construction Cost. He further prayed that the application be decided along with main Appeal.
15. Subsequently, I.A. No. 12310/16 was filed by the Complainant Jit Pal Singh seeking updation of the position taken in respect of I.A. No. 2079 of 2016 regarding filing of false Affidavit. It was submitted that vide Order, dated 09.11.2016, the State Commission has allowed the M.A. No. 1464 of 2015 filed u/s 195 and 340 Cr. P. C with the following order:-
" Registrar of this Commission is directed to draft and submit the complaint to the C.J.M, Chandigarh under her signatures for his appearance before C.J.M. Chandigarh. Sanyam Dudeja is directed to execute a personal bond in the sum of ₹10,000/-."
In this context of the matter, a direction was sought to dismiss the First Appeal No. 24 of 2015 and to allow the First Appeal No. 1184 of 2014.
16. It is pertinent to mention here that First Appeal No. 1570 of 2016 has been filed by Satyam Dudeja against the aforesaid Order dated 09.11.2016. By the said Order, the State Commission while holding Mr. Sanyam Dudeja, the Authorized Signatory of the Opposite Party Developer guilty of committing an offence punishable u/s 193 of IPC by filing a false affidavit, has held as under:-
"8. He has not placed on the record Annexure A-1, i.e., site plan approved by Chief Town Planner, Punjab, Chandigarh in which Plot No. 529 is there and the Public Information Officer, Chief Town Planner, Punjab, Chandigarh in its letter No. 1340 - CTP (PB)/1 - 78 dated 14.11.2014 (Annexure A-5) replied that as per approved revised layout plan, approved vide no. 5967 - CTP (Pb.)/MPR - 13 dated 24.08.2011 (Drawing No. DC/TDI/MP-1/R-4 dated 16.05.2011), Plot No. 529 is in the residential pocket. Therefore, it is clear that Plot No. 529 was itself not in the critical gap area but approaching road to Plot No. 529 was in the critical gap area. Respondent No. 3, Sanyam Dudeja in his reply also stated that the land in front of the plot, Khasra No. 32/3/3 and 32/4/1 is in the critical gap area. They have taken the plea that in case the passage in front of the plot is in critical gap area then the plot will also be considered in the critical gap area but they have not stated any circumstances how it can be treated as a critical gap area. In fact the respondent in their written statement and in the affidavit filed before the Commission, should have stated that plot is there but approaching road leading to this Plot No. 529 is in critical gap area but Sanyam Dudeja in his affidavit filed before this Commission stated that plot No. 529 itself is in critical gap area, which makes it clear that Sanyam Dudeja has filed a wrong affidavit before this Commission by concealing the fact that in fact approaching road leading to plot No. 529 was in critical gap area but he stated on Oath in the affidavit that the plot itself is in critical gap area. As per Section 191, who being legally bound by an Oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement, which is false and which he either knows or believes to be false or does not believe to be true, is said to give false evidence, which is an offence under Section 193 IPC. Therefore, prima-facie Sanyam Dudeja has committed an offence punishable under Section 193 of the IPC by filing a false affidavit in the proceedings of Consumer Complaint No. 3 of 2013 before this Commission."
17. The Complainant, Jit Pal Singh filed another I.A. No. 6901 of 2018 praying for interim relief in the form of appropriate interest on the deposited amount for the period of delay from the due date of possession i.e. 22.05.2009 to the actual date of possession.
18. Before adverting to the rival contentions of the learned Counsel for the parties, we deem it proper to add here that on 30.05.2018, learned Counsel appearing for the Developer made the statement at Bar that they are willing to allot an alternative plot of identical specification in the same locality or to refund the money with reasonable interest. However, the said proposal was not acceptable to the Complainant. Thereafter, I.A. No. 11727 of 2018 was filed by the Complainant stating that the prayer of the Appellant/Complainant was for possession of an alternative plot only in Sector 118, Mohali and therefore, the assertion in Para No.1 of the Order, dated 30.05.2018 that the Appellant is not ready to take possession of an alternative plot in the same locality is not correct.
19. Accordingly, on 05.03.2019, the learned Counsel for the parties were directed to file an affidavit stating therein as to whether any vacant plot is available in Sector -118 which can be given to the allottees at the same price. The learned Counsel appearing for the Appellant/Complainant in First Appeal No. 722 of 2016 also submitted on 05.03.2019 that a Project for construction of a high rise building on a piece of land in Sector - 118 was proposed by the Developers but because there are no buyers, the Developers have approached the Appropriate Authorities for selling the land covered by the said high rise building, which has not been constructed, by carrying out the plots to the erstwhile allottees of Sector 118. The Counsel for the Developer was directed to file a detail affidavit regarding the said situation.
20. In compliance of the Order, dated 05.03.2019, Mr. Ritesh Vijhani, Authorized Signatory of the Opposite Party Developer filed an affidavit on 01.04.2019. The relevant paragraph of the Affidavit are reproduced as under:-
"3. I state that there are no ready plots available for sale in Sector 118. I, however, state that the Appellants have been offered alternate plots and refund along with interest on various occasions. I state that the said offers were refused by the Appellant. I state that even now that Respondent is willing to offer Plot No.5131, 5225, 5256 in Sector 116, at the raid paid by the Appellant towards the original booking.
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5. I state that the Appellant is now claiming that the Respondent herein has promised plots to some of its buyers who had originally purchased plot in the subject township more specifically in Sector 118. I state that even as per the affidavit of the Appellant it is borne out that the said development is in its infant stage and is pending approvals/sanctions.
6. I state that the Respondent is in endeavor to settle the disputes with the buyers, who had been allotted plots which due to the "Critical Gap Area" could not been handed over, have been offered the option to register for allotment of plot admeasuring approximately 250 sq. yards at an additional cost of ₹2500/- per Sq. Yards payable towards the basic sale price in the proposed site in Sector 118. I state that the said buyers were duly informed that the allotment is tentative and shall be confirmed subject to obtaining necessary permissions and approvals.
7. Inter-alia, agreeing upon the aforementioned terms, the Respondent executed Memorandum of Settlement with the following individuals and have tentatively allotted the corresponding plots to the buyers:
Name of the Buyer Tentative Allotment/ Area Addl. Rate Payable per Sq. yards.
Sh. Parvinder Singh GL 168/250 Sq. yards ₹2500/-
Sh. Shiv Dayal GL 171/250 Sq. yards ₹2500/-
Sh. Satbir Singh Cheema GL 176/250 Sq. yards ₹2500/-
Sh. Pradeep Kapoor GL 177/250 Sq. yards ₹2500/-
Mr. Jasbir Gorever GL 190/250 Sq. yards ₹2500/-
I state that subject to the aforementioned terms and conditions that the allotment shall be confirmed upon approval of layout plan and obtaining necessary approvals. I state that the Respondent is willing to settle the dispute and offer tentative allotments in terms, para material to the aforementioned terms, subject to the Appellant withdrawing all the pending litigations against the Respondent.
21. Vide Order, dated 02.04.2019, this Commission has directed the Opposite Party to reserve two plots out of the available vacant plots in the upcoming Project in Sector 118.
22. In the affidavit filed on 01.04.2019, it has been submitted by the Opposite Party Developer that no ready Plots are available for sale in Sector 118 and they are willing to settle the dispute with the Complainants by offering an alternative plot or refunding the deposited amount with reasonable interest. 23. Under these circumstances, we deem it proper in the interest of justice to direct the Opposite Party Developer to allot an alternative plot of 250 Sq. Yards in the proposed site in Sector 118, Mohali to the Complainants in First Appeal No. 1184 of 2014 and First Appeal No. 722 of 2016 on the same terms and conditions of the original allotment. In case the offered Plot is not acceptable to the Complainants, the Opposite Party Developer has to refund the deposited amount with interest @ 9% p.a. from the date of respective deposits till actual payment. The Opposite Party Developer shall also be liable to pay a sum of ₹5,00,000/- to both the Complainants on account of escalation in the costs of construction and ₹1,00,000/- towards deficiency in service and Unfair Trade Practice. Besides, the Opposite Party has also to pay a sum of ₹50,000/- to each of the Complainants in above two Appeals towards costs of litigation. The First Appeal Nos. 1184 of 2014, 24 of 2015 and 722 of 2016 are disposed of in above terms. The above directions have to be complied with by the Opposite Party within a period of 8 weeks from the date of receipt of a copy of this order.
24. So far as, the First Appeal No. 1570 of 2016 is concerned, we agree with the well-reasoned finding recorded by the State Commission, Chandigarh. From the paragraph 8 of the impugned Order dated 09.11.2016 which has been extracted above, it is clear that the Appellant has failed to establish that the Plot No. 529 which was allotted to the Complainant Jit Pal, was covered in "Critical Gap Area". We do not find any illegality with the order passed by the State Commission and accordingly, the First Appeal No. 1570 of 2016 is dismissed as devoid of any merits.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER