State Consumer Disputes Redressal Commission
Housing Commissioner, vs Yusuf Ali Aagarwal on 30 May, 2014
M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.) FIRST APPEAL No. 1730 /2013. 1. HOUSING COMMISSIONER, M.P. HOUSING BOARD, HEAD OFFICE : 4TH FLOOR, MOTHER TERESA ROAD, PARYAVAS BHAWAN, BHOPAL (M.P.). 2. EXECUTIVE ENGINNER, PROJECT DIVISION, M.P. HOUSING BOARD, SHOPPING COMPLEX, A.B. ROAD, INDORE (M.P.). 3. ESTATE OFFICER, M.P. HOUSING BOARD, SHOPPING COMPLEX, A.B. ROAD, INDORE (M.P.). .APPELLANTS. VERSUS YUSUF ALI AAGARWAL S/O SHRI PHIDA HUSSAIN, R/O A.E./4, L.I.G. COLONY, BEHIND MAYA MEDICAL, INDORE (M.P.). .RESPONDENTS. FIRST APPEAL No. 2408 /2013. SHARAD MAHAJAN, S/O LATE SHRI VALLABHDAS MAHAJAN, R/O AE-3, LIG COLONY, INDORE (M.P.). . APPELLANTS. VERSUS 1. YUSUF ALI AAGARWAL S/O SHRI PHIDA HUSSAIN, R/O A.E./4, L.I.G. COLONY, BEHIND MAYA MEDICAL, INDORE (M.P.). 2. M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT BOARD, THROUGH ITS HOUSING COMMISSIONER, SHRI PRAVEEN GARG, 4TH FLOOR, MOTHER TERESA MARG, PARYAVAS BHAWAN, BHOPAL (M.P.). 3. M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT BOARD, THROUGH EXECUTIVE ENGINNER, SHRI R.K. NIGAM, PROJECT DIVISION, SHOPPING COMPLEX, A.B. ROAD, INDORE (M.P.). - 2 - 4. M.P. HOUSING AND INFRASTRUCTURE DEVELOPMENT BOARD, THROUGH ITS ESTATE OFFIER, SHOPPING COMPLEX, A.B. ROAD, INDORE (M.P.). .RESPONDENTS. BEFORE: HONBLE SHRI JUSTICE RAKESH SAKSENA, PRESIDENT HONBLE SMT. NEERJA SINGH, MEMBER COUNSEL APPEARING FOR THE PARTIES : SHRI YUSUF ALI COMPLAINANT IN PERSON. SHRI G.K. SHRIVASTAVA, LEARNED COUNSEL FO APPELLANTS / OPPOSITE PARTIES NO.1, 2 AND 3. SHRI DEEPESH JOSHI, LEARNED COUNSEL FOR APPELLANT / SHARAD MAHAJAN O R D E R
(PASSED ON 30-5-2014) The following order of the Commission was delivered by Rakesh Saksena, J. :
Since both the aforesaid appeals arise out of the common impugned order passed by the District Consumer Disputes Redressal Forum, Indore, they are being disposed of by this common order.
2. The appellant of both the appeals have filed these appeals against the order dated 16.7.2013 passed by the District Forum, Indore in Case No.1438/2010 whereby the complaint filed by respondent / Yusuf Aagarwal has been allowed.
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3. In short, the case of the complainant is that he had purchased apartment A.E. / 4, 1st Floor, in LIG Colony from M.P. Housing Board, Indore on 21.7.2005. Ground floor Apartments viz. A. E. / 1 and A. E./ 3 were allotted to Laxmichand Jain and Sharad Mahajan (appellant of Appeal No.2408/2013) respectively. Around the apartments there had been common service land / marginal open space (M.O.S.) for parking and common services. Drains and sewer lines etc. of the apartments passed through this common service land. Officers of the Housing Board illegally, against the circulars of the Board, allotted the said common service land to the ground floor apartment allottees. This act of Housing Board was against the provisions of the M. P. Prakoshtha Swamitva Adhiniyam, 2000 (For brevity hereinafter referred to as the Prakoshtha Adhiniyam) and the Easements Act. The allotment of the common service land to ground floor apartment allottees was illegal and deserved to be cancelled since the act of allotment made by the Board to them amounted to deficiency in service. It was also prayed by the complainant that the said common service land be restored to its original position and compensation be awarded to the complainant for his suffering physical and mental agony.
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4. Since Sharad Mahajan was not impleaded as party, it was objected by the opposite party / Housing Board that the complaint suffered with non-joinder of necessary party, therefore, it was liable to be dismissed. It was also contended by the opposite parties that no notice under section 84 of the M.P. Griha Nirman Mandal Adhiniyam, 1972 was given, therefore, the complaint was not maintainable. The Housing Board, except the aforesaid technical objection, did not plead anything justifying the allotment of the common service land to Sharad Mahajan.
5. The Forum after perusal of record allowed the complaint and directed the Board to cancel the allotment of the common service land made to ground floor apartment allottees according to rules and to amend the lease in such a manner that it could be used as common passage for parking and sewer lines etc. Aggrieved by the order of the Forum appellants have filed the instant appeals.
6. A preliminary objection has been raised by respondent that the appeal by appellant / Sharad Mahajan is not maintainable since he was not a party before the District Forum. In our opinion, this objection is not sustainable in view of the provisions of section 15 of the Consumer Protection Act, 1986 which provides
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that any person aggrieved by an order made by the District Forum may prefer appeal against such order to the State Commission. A bare perusal of this provision indicates that if a person is aggrieved by order passed by the District Forum, he can challenge that order before the Commission. Since the order passed by the District Forum purports to affect the interests of Sharad Mahajan, he is entitled to file the appeal against the said order.
7. Learned counsel for the appellants submitted that in the absence of a notice under section 84 of the M.P. Griha Nirman Mandal Adhiniyam no complaint could be entertained against the Board or the officers of the Board. This question has been considered by the District Forum elaborately. It has been observed by the District Forum that the complainant had sent notices Annexures 12, 13 and 14 to the Commissioner of the Board, therefore, it could not be held that no notice was given to the Board before filing the complaint. We find no fault with the finding of the District Forum.
8. Learned counsel for the appellant / Sharad Mahajan vehemently argued that District Forum committed serious mistake in not directing impleadment of the appellant. Appellants interests
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were directly affected by the dispute raised by the complainant, since the allotment of the adjacent land to him was questioned before the District Forum. He was not afforded opportunity of being heard before passing an order directing Board to cancel his allotment / lease deed. However, we have heard learned counsel of appellant / Sharad Mahajan at length. It is true, had Sharad Mahajan been impleaded as party, it would have been better but, merely by his non-impleadment the impugned order passed by the District Forum could not be held to be bad in law. The District Forum considered this aspect and held that since the complainant had purchased the apartment from the Board, only the Board, being service provider, could be proceeded against by the complainant for deficiency in service and not appellant / Sharad Mahajan. The complaint under the provisions of the Consumer Protection Act, 1986 (for short the CP Act) could be filed against a person who could be brought within the category of manufacturer, trader or service provider. Since Sharad Mahajan did not fall in any of the said categories, the complainant was not expected to seek any relief from him. It was only Board who could have removed the deficiency in service. In our opinion, therefore, the complaint could not be held to be not maintainable by mere non-impleadment of appellant / Sharad Mahajan.
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9. Learned counsel for the appellants submitted that an order directing cancellation of the lease / allotment by the Board was beyond jurisdiction of the District Forum since such an order or direction could not have been issued within the powers conferred on Board under the provisions of section 14 (1) of the CP Act. We find no substance in the submission made by the learned counsel for the appellants for the reason that section 14 (1) of the CP Act provides that if the allegations contained in the complaint about the services were proved, the District Forum could issue an order to the opposite party directing him to do one or more of the things enumerated in Section 14 (1) of the C.P. Act. Clause (e) of section 14 (1) clearly provided for the removal of the defects in goods or deficiencies in the services in question. In case the deficiencies are found in the services rendered by the opposite party, the District Forum would be well within its power to order removal of the deficiencies by the opposite party. If the deficiency could be removed by cancellation of lease / allotment illegally granted by the Board, as done in the instant case, the order of cancellation cannot be held to have been passed in excess of the jurisdiction conferred on the Forum by the provision of Section 14 of the CP Act.
10. Learned counsel for the appellants submitted that in view of the circular No.01/2002 dated 2.1.2002 issued by the M.P.
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Housing Board, the appurtenant land of the apartments left vacant under M.O.U. could be allotted to ground floor apartment owners as additional land for the purpose of kitchen garden or for use as open land. Controverting the aforesaid submission, the respondent / complainant drew our attention to Annexure 2, the circular of the Board No.2009/E.M./1/96 dated 12.4.1996. The circular is reproduced below :
izk;% ;g ns[kk x;k gS izdks"B Hkouksa ls yxh gqbZ vfrfjDr Hkwfe dk vkoaVu Hkwry ds vkoafV;ksa dks fd;k tk jgk gS A ;g mfpr ugha gS izdks"B LokfeRo vf/kfu;e ds vuqlkj tks Hkwfe vkxs ihNs ,oa vktw cktw esa NksMh tkrh gS og ,e-vks-,l- ds rgr NksMh tkrh gS ,oa bl izdkj dh Hkwfe dkeu lfoZlst ds vUrxZr vkrh gS vr% bl izdkj dh ,e-vks-,l- ds rgr NksMh xbZ Hkwfe dk vfrfjDr Hkwfe ds :i esa Hkwry ds izdks"B Lokfe;ksa dks u fd;k tkos] dsoy Hkwry ds Lokfe;ksa dks izdks"B esa izosk gsrq ftruh Hkwfe dh vko;drk gks ,oa mlesa vU; izdks"B Lokfe;ksa dk n[ky u gks og Hkwfe izdks"B ds vkoaVu ds lkFk gh vkoafVr dh tk ldrh gS A bl ifji= dk ikyu dBksjrk ls fd;k tkos A
11. A bare perusal of Annexure 2 indicates that the common service lands which are left vacant as M.O.S. should not be allotted to ground floor apartment owners. It has also been observed that this circular should be strictly followed. It is true that circular dated 2.1.2002 indicated that in case additional land was allotted to a ground floor apartment owner, at the most it could be used as kitchen garden or open land.
Even this circular mentioned about the decision of the Board that the land left vacant under MOU around the
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12. What is common areas and facilities has been defined in section 3 (i) of the Prakoshtha Adhiniyam. It provides :
Common areas and facilities in relation to a building means all parts of the building or the land on which it is located an all easements, rights and appurtenances belonging to the land or the building, which are neither in the exclusive possession of an apartment owner in terms of his deed of apartment, nor are handed over or intended to be handed over to the local authority or other public service agency.
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13. The aforementioned provisions of the Prakoshtha Adhiniyam give a clear indication that the Board which comes in the definition of promoter cannot alter interest of an apartment owner in the common areas and facilities attached to the land on which apartment is located.
14. From the evidence and material on record it is apparent that the Board should not have allotted / granted lease of the M.O.S. parking and common services land to Sharad Mahajan, the ground floor apartment allottee, in contravention of the provisions of Prakoshtha Adhiniyam and also against the circular of the Board No.2009/E.M./1/96 dated 12.4.1996. Act of Board of granting such lease clearly fell within the definition of deficiency in service. It is expected of the Housing Boards to act fairly, reasonably and not arbitrarily. They should exercise their powers in accordance with the principles of rationality and reasonableness. It is also to be noted that appellant / Sharad Mahajan himself is the Deputy Housing Commissioner in M.P. Housing & Infrastructure Development Board, Indore.
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15. For the aforesaid reasons we find that the District Forum correctly concluded that the act of Board in allotting the M.O.S./ common services land to ground floor apartment allottee was not justified and amounted to deficiency in service on the part of respondent / Board.
16. In view of the above, we find no substance in these appeals. The appeals are accordingly dismissed. This order be retained in First Appeal No.1730/2013 and a copy of the same be kept in the record of First Appeal No.2408/2013.
PRESIDENT MEMBER