State Consumer Disputes Redressal Commission
The Administrator,City & Industrial ... vs Dilip Deepchand Manwani, on 16 January, 2009
1 F.A.No.: 46 OF 2004
Date of filing :12.01.2004
Date of order :16.01.2009
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
APPEAL NO. :46 OF 2004
IN COMPLAINT CASE NO.: 305 OF 1999
DISTRICT CONSUMER FORUM :AURANGABAD.
1. The Administrator,
City & Industrial Development
Corporation of Maharashtra Ltd.,
Udyog Bhavan, Town Centre,
Cidco, Aurangabad.
2. City & Industrial Development
Corporation of Maharashtra Ltd.,
Udyog Bhavan, Town Centre,
Cidco, Aurangabad, through its
Administrator.
3. The Managing Director,
City & Industrial Development
Corporation of Maharashtra Ltd.,
IInd floor, Nirmal Building,
Nariman Point,
Mumbai 21. ...APPELLANTS
(Org.Opponents)
VERSUS
Dilip Deepchand Manwani,
R/o Plot No.56, N-3, Cidco,
Aurangabad. ...RESPODNENT
(Org.Complainant)
CORAM : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
Mrs.Uma S.Bora, Hon`ble Member.
Present : Adv.Shri.S.S.Tope for appellants, Adv.Shri.V.R.Mundada for respondent.
2 F.A.No.: 46 OF 2004O R A L O R D E R Per Shri.S.G.Deshmukh Hon`ble Presiding Judicial Member.
1. The present appeal is filed by CIDCO against the judgment and order dated 10.11.2003 in complaint case No. 305/99 passed by District Consumer Forum, Aurangabad.
2. Respondent/Complainant`s case before the Forum is that, his brother Satish Manwani was allotted plot No.2 situated at Neighbourhood E-1, Town Centre, CIDCO, New Aurangabad admeasuring 646.39 Sq.Mtr. @ Rs.853.25 ps per Sq.Mtr. the total lease premium is of Rs.5,51,532/- Vide allotment letter dated 8.5.1990 and he deposited an amount of Rs.25,000/-. It is contended that, allottee Satish Manwani deposited balance amount of Rs.5,26,532.30ps. and documentation charges. However required documents i.e. agreement to lease, possession slip and site plan were not executed in favour of Shri.Satish Manwani. It is contended that, appellant informed to allottee Satish Manwanni to execute the agreement to lease vide letter dated 21.6.1991. It is contended that, due to continuous ill health Satish Manwani could not execute the same. It is contended that, Satish Manwani who was unmarried expired on 26.5.1992. Appellant wrote a letter on 24.5.1993 addressed to deceased Satish Manwani that he had not executed necessary agreement to lease it should be executed within 15 days otherwise allotment of plot will be cancelled. It is contended that complainant approached to respondent No.1 for transfer of said plot No.2 in his favour, being his brother Satish is expired. Time was granted for obtaining letter of administration in his name from the competent court. It is contended that, complainant and other successor of deceased Satish applied to Civil Court, Aurangabad for granting letter of administration and accordingly same was granted in favour of complainant on 9.11.1996. The said letter of administration 3 F.A.No.: 46 OF 2004 was submitted to the appellant on 11.12.1996. it is contended that appellant after submission of the said letter issued letter dated 16.12.1996 to the complainant informing that plot in question has been transferred in his name subject to certain compliance. It is contended that, complainant deposited the amount of Rs.3800/- on 30.12.1996 including documentation charges of Rs.300/-, administration charges of Rs.2500/- and lease rent of Rs.1000/- for 10 years. It is contended that complainant was informed that he will be called for execution of agreement to lease and other necessary documentation. Actual possession will be handed over to him after actual measurement of the plot. It is contended that, appellant authorities conducted the measurement of the said plot in August 1997 in presence of complainant and recorded actual measurement. It is contended that, area of 34.50 sq.mtr. was found less than original area of 646.39 sq.mtr as shown in the allotment letter. It is contended that, plot being situated in prime business locality and complainant had deposited full lease premium, complainant insisted for possession of the complete area. However appellants were insisting him to accept possession as per actual measurement. It is contended that, complainant received notice dated 4.9.97 from the appellant calling him for execution of agreement to lease. As the plot area was found less by 34.50 sq.mtr. complainant submitted his representation on 18.9.97 showing his readiness and willingness to execute necessary agreement to lease on handing over the actual possession of allotted area. He was not informed about action taken . Therefore complainant prepared the building plan of the proposed building to be constructed on the said plot by taking into consideration of the original allotted plot area. It is contended that, complainant was required to incur heavy expenses on account of obtaining of letter of administration and heavy fees of Architect etc. Complainant had raised loan for payment of lease premium of plot on interest. He is not delivered clear and actual possession of the plot. He was insisting for actual possession of allotted area of 646.39 4 F.A.No.: 46 OF 2004 sq.mtr. before execution of any document. He issued reminder on 29.6.98 to the appellant. Instead of delivering the possession of plot as per allotment letter he was served with another notice dated 1.7.1998 asking him to execute agreement to lease within 15 days. Complainant issued legal notice to the appellant on 16.7.1998. It is contended that appellant issued reminder cum notice dated 24- 25/2/1999 calling him for execution of the documents. Complainant replied the same on 22.3.1999. It is contended that, appellant failed to deliver the possession of plot though he had paid full amount of lease premium for allotted area of the plot. They failed to fulfil their obligation, though entire lease premium was paid in 1990. Complainant approached the Forum directing appellant to deliver clear and vacant complete possession of the plot as per allotment letter and for heavy compensation.
3. Appellant appeared before the Forum and resisted the claim. It is contended that, as the plot was found less to the extent 34.50 sq.mtrs. as such it was decided to refund the amount of lease premium collected to that extent and to execute agreement to lease and accordingly marketing section was directed to do the needful. However complainant approached and insisted that he will not accept the refund nor will accept plot of less than the size shown in allotment letter and insisted CIDCO should provide the plot of the size allotted. The contention of complainant can not be complied as no piece of land is available to make it complete as demanded and it is mere impossibility. It is contended that, complainant is insisting for so, only in order to avoid execution of agreement to lease so as to avoid liability of payment of service charges and also of additional lease premium i.e.charged on failure of making construction within a period of 3 years from the date of execution. It is contended that, in order to avoid said liability complainant is putting forth this illegal demand. It is contended that, complainant alongwith legal heirs of deceased Satish has filed writ petition 1879/97 challenging the liability of 5 F.A.No.: 46 OF 2004 additional lease premium which was to the tune of Rs.4,04, 910/- in respect of other plots. It is contended that, insistence of complainant for handing over possession of the plot admeasuring 646.39 sq.mtr. is malafide. It is contended that there is no deficiency in service on their part. The relief claimed by complainant are not sustainable.
4. The Forum below after going through the papers and hearing the parties allowed the complaint and directed the appellant to execute lease deed in favour of complainant to the extent of 611.89 sq.mtrs. within 1 month. Appellant is also directed to pay amount for 34.50 sq.mtrs to the complainant at present market rate. Further appellant is directed to allot plot of 34.50 sq.mtr. in same adjacent locality. Appellant is further directed to pay Rs.10,000/- towards damages to the complainant.
5. Being aggrieved by the said judgment and order passed by the District Forum, Aurangabad, CIDCO came in appeal.
6. Notices were issued to the appellant as well as respondent. Learned counsel Shri.Sambhaji Tope appeared on behalf of CIDCO whereas learned counsel Shri.V.R.Mundada appeared on behalf of respondent. We heard both the counsels at sufficient length. Learned counsel Shri.Tope submitted that, it was incumbent on the complainant to execute agreement to lease and to obtain possession of the plot within a period of 8 days from the date of final payment. Learned counsel submitted that, original allottee was informed vide letter dated 21.6.1991 to take physical possession of plot from Asstt.Survey Officer. He was also intimated to submit building plan within 6 months from the date of completion of full lease premium as per CIDCO rule. Learned counsel submitted that, even after receipt of letter original allottee did not turn to execute agreement to lease and to obtain possession. He submitted that, as per terms and condition if the allottee fails to execute agreement to lease or commit breach of 6 F.A.No.: 46 OF 2004 terms and condition appellant was entitled to cancel allotment in question. Even then appellant gave sufficient opportunity to the original allottee and thereafter they had intimated allottee vide letter dated 24th May 1993 also for executing agreement to lease. He was intimated that allotment will be cancelled on his failure to execute agreement. Learned counsel submitted that, complainant even did not intimate about death of original allottee for a period of about one year. Learned counsel submitted that, even the complainant was asked to execute agreement to lease and to take possession of the plot. He submitted that, in actual measurement plot was found less by 34.50 sq.mtr. It was practically impossible for them to hand over the possession of the plot mentioned in the allotment letter. It is contended that, CIDCO was ready to refund amount of lease premium collected to that extent and to execute agreement to lease. Accordingly, marketing section was directed to do needful. But complainant was insisting that, he will not accept the refund nor he will accept plot on lease less than the size shown in the allotment letter. Learned counsel submitted that, complainant was avoiding to execute agreement to lease only to avoid liability of payment of service charges and also additional lease premium which would have been charged on failure of making construction within the period of 3 years. He submitted that, there is no fault on the part of appellant for not handing over the possession of the plot in question. He submitted that, there can not be said to be deficiency on their part. Learned counsel submitted that, Forum directed to execute lease deed in favour of complainant to the extent of 611.89 sq.mtr. and also directed to pay amount of 34.50 sq.mtr. to the complainant at market rate and even also directed appellant to allot the plot of 34.50 sq.mtr. in some adjacent locality which is not correct.
7. On the other hand learned counsel Shri.Mundada for the respondent fully supported the judgment and order passed by the Forum. Learned counsel submitted that, the allottee had deposited 7 F.A.No.: 46 OF 2004 entire amount of lease premium in the year 1990 itself. He was allotted the plot admeasuring 646.39 sq.mtr. vide allotment letter dated 8.5.1990 He submitted that in actual measurement plot was found less by 34.50 sq.mtr. He submitted that, they had paid the entire lease premium in the year 1990, appellant ought to have executed agreement to lease in respect of original area 646.39 sq.mtr. According to him Forum rightly directed the appellant to pay amount for 34.50 sq.mtr at present market rate. He submitted that, as there was deficiency on the part of appellant Forum rightly directed the appellant to allot 34.50 sq.mtr. in the adjacent locality as compensation. Learned counsel submitted that, complainant has made representations time to time for execution of the agreement to lease. Learned counsel for the respondent relied on;
i) Gaziabad Development Authority -V/s Balbir singh, 2004 AIR 1987 SCW 2362,
ii) Haryana Urban Development Authority -Vs- Vijay Agrawal, 2004 AIR SCW 4405,
iii) Haryana Urban Development Authority -Vs- Shital Prashad Jain, 2004 AIR SCW 4430,
iv) H.P.Housing Board -Vs-Varinder Kumar Garg and another, 2004 AIR SCW 4634,
v) Haryana Urban Development Authority -Vs- Nirma Mittal, 2004 AIR SCW 4688,
vi) Haryana Urban Development Authority -Vs-
Smt.Priti Chawla, 2004 AIR SCW 4690,
vii) Haryana Urban Development Authority -Vs-Raj Kumar Rathi, 2004 AIR SCW 5063,
viii) Haryana Urban Development Authority -Vs-Manoj Kumar and another, 2004 AIR SCW 5297,
ix) Haryana Urban Development Authority -Vs-
Mukesh Kumar, 2004 AIR SCW 5432,
8 F.A.No.: 46 OF 2004
x) Haryana Urban Development Authority -Vs- Raj
Laxmi, 2004 AIR SCW 5742,
xi) Haryana Urban Development Authority -Vs- Shanti
Devi, 2004 AIR SCW 5743.
8. We perused the papers and gave our anxious thoughts to the arguments advanced by both the counsels. There is no dispute that, plot No.2 situated at Neighbourhood E-1(Town Centre),Cidco, New Aurangabad admeasuring about 646.39 sq.mtr. @ Rs.853.25 ps. per sq.mtrs total amounting to Rs.5,51,532. 26 paise had been allotted to Satish Manwani vide allotment letter 8.5.1990. There is also no dispute that, Satish Manwani had deposited entire amount of lease premium.
Allotment letter has been brought on record by the respondent. Clause No.7 of the allotment mentions "the allottee is required to execute lease agreement and he has to obtain the possession of the plot within the period of 8 days from the date of final payment. If he fails to take over the possession within a prescribed period, it will be deemed that he has taken over the possession after 8 days from the said date of final payment. Accordingly, the date of possession will be treated as final for other legal purpose".
Clause 8 mentions that, "allottee is required to submit building plan within 6 months and complete construction within 3 years from the date of agreement without fail". As per clause 10 " as soon as possession is taken the plot holder should be fully responsible for the protection of the plot and encroachment etc. on the plot". Clause No.9 also mentions that, "service charges are liable to be paid to the Cidco on the efflux of 3 years from the date of agreement or from the date of obtaining a completion and occupancy certificate from the corporation whichever is earlier".
9 F.A.No.: 46 OF 2004Clause No.19 of the said letter mentions that, if the allottee fails to pay balance lease premium on the due dates or failed to execute agreement to lease or commit breach of terms and condition or to submit plans to the Administrator or to complete construction works in accordance with the terms and conditions of the agreement the allotment of the plot made in his favour will be cancelled and whatever money paid by him shall without prejudice to any other rights, remedies and power stand forfeited.
It has also come on record that, appellant No.1 had informed under letter dated 21.6.1991 to the allottee Satish Manwani that he is to execute the agreement within 15 days from receipt of the letter and he is also asked to take physical possession of the plot from Assitt.Surveyor and after execution of agreement to lease without further delay. It is also apparent that even after receipt of letter dated 21.6.1991 Satish Manwani allottee did not execute agreement and did not take physical possession of the plot. It has also come on record that appellant gave letter dated 24 th May 1993 addressed to Satish Manwani requesting him to execute agreement to lease within 15 days from the date of receipt of this final notice. He was also warned on failure his allotment will be cancelled.
According to the respondent Satish Manwani died on 26.5.1992. It is to be noted that present respondent/complainant who is brother of deceased Satish Manwani the original allottee intimated the appellant about death of his brother vide letter dated 14.6.1993 i.e. after period of more than 1 year of the death. It is to be noted that original allottee Satish Manwani expired on 26.5.1992 and present complainant applied for letter of administration on 2.7.1993 i.e. after more than 1 year of the death of his brother. It also appears from the record that, complainant informed the appellant about death of his brother only on the receipt of letter dated 24.5.1993 addressed to his 10 F.A.No.: 46 OF 2004 brother by the appellant. Complainant could have applied for letter of administration immediately after the death of his brother, after immediately intimating the death of his brother to appellant. It is to be noted that complainant did not mention the date on which the balance amount of Rs.5,26,532.30 ps. had been deposited by his brother. As per clause No.7 of the allotment letter the allottee was required to execute agreement to lease and to obtain possession of the plot within a period of 8 days from the date of final payment. We have mentioned that, complainant did not mention the date of final payment of premium in his complaint. It is also apparent from the clause No.7 of the allotment letter that if allottee fails to take over the possession within prescribed period it will deemed that he has taken over the possession after 8 days from the said date of final payment. Accordingly, the date of possession will be treated as final for all other legal purpose. Clause No.10 of allotment letter also mentions that as soon as possession is taken plot holder should be fully responsible for the protection of the plot the Corporation does not take any responsibility about encroachment etc. on the plot. It appears that even though the condition about deemed possession is mentioned appellant gave ample opportunity to the original allottee and also the complainant by giving letters dated 21.6.1991, 24.5.93 for executing agreement to lease. It is apparent from the letter of administration brought on record by the complainant that his brother Satish Manwani died on 26.5.1992 due to heart attack. No evidence regarding continuous ill health of allottee is brought on record to show that due to continuous ill health he could not execute lease deed. It has also come on record that, actual measurement of the plot was conducted and plot was found smaller than size mentioned in the allotment letter. It has come on record that area 34.50 sq.mtr. was found less than original area 646.39 sq.mtr. It has also come on record that, present appellant had asked the complainant to accept possession of the plot as per actual measurement and execute agreement. But it appears that, complainant did not accept the same.
11 F.A.No.: 46 OF 2004It has also come on record that the present appellants were ready to refund amount of lease premiums collected to that extent and to execute agreement to lease. Accordingly, they had informed marketing section to do needful. It appears that complainant insisted that he will not accept the refund nor he will accept the plot on lease less than size shown in the allotment letter and insisted CIDCO to provide plot in size allotted to him in the allotment letter.
9. It is not the case of complainant that appellant failed to hand over the possession of plot though the allotment was of 1990. We have mentioned that complainant did not mention the date of payment of balance amount. We also mentioned that appellant had given letter dated 21.6.1991 to the original allottee for executing agreement to lease and obtain possession of the plot. We have also mentioned that even after receipt of the letter in question deceased Satish Manwani did not take any steps to receive the possession and to execute agreement to lease. We have mentioned that present complainant did not intimate appellant about death of his brother till they received letter dated 24th May 1993 from the appellant addressed to Satish Manwani for executing agreement to lease. It appears that appellant had intimated time to time to the allottee and also complainant for executing agreement to lease and to obtain the possession.
10. It has also come on record that, complainant has filed writ petition bearing No.1879/97 challenging liability of additional lease premium which was to the tune of Rs.4,04,910/- in respect of other plots. Thus, it appears that complainant and prior to him his deceased brother were avoiding to execute agreement to lease and obtain possession in order to avoid liability of payment of service charges and also additional lease premium which would have been charged on them on failure of making construction within 3 years from the date of execution of agreement. Thus, the delay in executing 12 F.A.No.: 46 OF 2004 agreement to lease and obtain possession can not be attributed to the appellant but same is to be attributed to the complainant and prior to him his deceased brother. It also reveals that amount to be refunded was offered to the respondent in pursuance to the decision taken on revealing the fact that land was not available to the extent as anticipated in the allotment letter. Complainant denied to accept the possession of plot which is in existence. We have mentioned that appellants have mentioned that no such plot is available for handing over to the complainant. The Forum below did not consider all these aspect and erred in holding that delay in executing agreement to lease and handing over possession is on the part of appellants. Forum also erred in directing appellant to pay amount for less area of 34.50 sq.mtr. at present market rate when there was no fault on the part of appellant for handing over the possession and execution of the document. In the circumstances there is no deficiency on the part of appellant, we are inclined to allow the appeal in part.
The ratio in cited case by the respondent/complainant is not helpful to the complainant as complainant could not prove the deficiency on the part of appellant. It also be mentioned that, amount accepted by appellant for less area of 34.50 sq.mtr. is required to be refunded to the complainant. The amount was with the appellant since depositing of the same. Same is required to be refunded with interest @ 6% .a. It is also apparent that appellants are unable to hand over the possession of the plot admeasuring 646.39 sq.mtrs. as per allotment letter as plot in question is found less by area 34.50 sq.mtrs. Accordingly we partly allow the appeal.
O R D E R 1. Appeal is partly allowed.
2. Order directing appellant to allot the plot of 34.50 sq.mtr. in the same adjacent locality, order directing appellant to pay Rs.10,000/- towards damages and the order directing appellant 13 F.A.No.: 46 OF 2004 to pay amount at market rate for less area of 34.50 sq.mtrs are hereby quashed and set aside.
3. Appellant is to execute lease deed in favour of complainant to the extent of 611.89 sq.mtr.
4. Appellant to refund the amount accepted for 34.50 sq.mtr. which is found less to the complainant with interest @ 6% p.a. from the date of deposit.
5. In the circumstances parties bear their own cost.
6. Copies of the judgment be issued to both the parties.
Mrs.Uma S.Bora S.G.Deshmukh
Member Presiding Judicial Member.
Mane