National Consumer Disputes Redressal
M/S. Megacity Developers & vs Smt. Seetha Ratna K. Rao on 1 November, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1058 OF 2011 (From the order dated 19.02.2010 in Appeal No.125/2010 of the State Commission, Karnataka) M/S. MEGACITY DEVELOPERS & BUILDERS LTD. REP. BY MANAGING DIRECTOR C.P. YOGESHWAR Petitioner No.1 C.P. GANGADAREESHWARA EXECUTIVE DIRECTOR M/S. MEGACITY DEVELOPERS & BUILDERS LTD. .Petitioner No.2 PRESENTLY AT NO.1 CHANDRALOK APARTMENT, 5TH CROSS, GANDHINAGAR BANGALORE- 580 009 Versus SMT. SEETHA RATNA K. RAO W/O K. KRISHNA MURTHY R/at FLAT NO. B-304, ADARSH HILL KUMARASWAMY LAYOUT, BANGALORE 56 0 078 Respondent (s) REVISION PETITION NO. 1096 OF 2011 (From the order dated 19.02.2010 in Appeal No.125/2010 of the State Commission, Karnataka) M/S. MEGACITY DEVELOPERS & BUILDERS LTD. REP. BY MANAGING DIRECTOR C.P. YOGESHWAR Petitioner No.1 C.P. GANGADAREESHWARA EXECUTIVE DIRECTOR M/S. MEGACITY DEVELOPERS & BUILDERS LTD. .Petitioner No.2 PRESENTLY AT NO.1 CHANDRALOK APARTMENT, 5TH CROSS, GANDHINAGAR BANGALORE- 580 009 Versus SMT. SEETHA RATNA K. RAO W/O K. KRISHNA MURTHY R/at FLAT NO. B-304, ADARSH HILL KUMARASWAMY LAYOUT, BANGALORE 56 0 078 Respondent (s) REVISION PETITION NO. 1097 OF 2011 (From the order dated 19.02.2010 in Appeal No.125/2010 of the State Commission, Karnataka) M/S. MEGACITY DEVELOPERS & BUILDERS LTD. REP. BY MANAGING DIRECTOR C.P. YOGESHWAR Petitioner No.1 C.P. GANGADAREESHWARA EXECUTIVE DIRECTOR M/S. MEGACITY DEVELOPERS & BUILDERS LTD. .Petitioner No.2 PRESENTLY AT NO.1 CHANDRALOK APARTMENT, 5TH CROSS, GANDHINAGAR BANGALORE- 580 009 Versus SMT. VEENA K. RAO D/O K. KRISHNA MURTHY R/at FLAT NO. B-304, ADARSH HILL KUMARASWAMY LAYOUT, BANGALORE 56 0 078 Respondent (s) BEFORE: HONBLE MR.JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR.SURESH CHANDRA, MEMBER For the Petitioner : Mr. Gurudatta Ankolekar, Advocate Pronounced on : 1st November, 2011 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER By this common order, we shall dispose of the above mentioned three revision petitions since common question of facts and law are involved in these cases.
2. Brief facts as alleged by respondents/complainants are that they were lured away by the advertisements issued by the petitioners/opposite parties who claim to be the promoters and developers of residential layouts consisting of sites of various dimensions in and around Bangalore under the name and style Megacity developers and builders, thought of becoming members of the said project floated as Vijragiri Township.. Each one of these respondents opted to purchase sites of their choice as per the cost fixed by the petitioners who accepted their membership.
Petitioners collected the money and provisionally allotted the sites and also executed the sale deed and issued the possession certificate . But thereafter, petitioners failed to handover the actual possession of the said sites inspite of repeated requests and demands made by the respondents. Actually the said project was not completed. There were no developmental activities at all. On repeated insistence, respondents came to know that due to some legal hurdles, project could not be completed in time and they were kept in dark about the progress of the said layout. Being fed up with the hostile attitude of the petitioners, respondents got issued the legal notice, but there was no proper response. Thus, there was deficiency in service on the part of the petitioners. Accordingly, respondents filed complaints before the District Consumer Disputes Redressal Forum, Bangalore (for short District Forum).
3. In the written statement filed by the petitioners, it is stated that petitioners did not acquire the required area of land for the formation of the said township. They have entered into an agreement to sell with the owners of land, even owners of land have executed GPA in their favour. In addition to that, petitioners have moved the statutory authorities for sanction permission, but unfortunately authorities have refused to accord the sanction to convert the said agricultural land into non agricultural purpose. Due to change in the circumstances and the above said legal hurdles, petitioners are unable to form the layout as promised. They expressed their desire to refund the amount to the respondents/members alongwith the interest as per bank rate.
Respondents have not come forward to receive the same. Due to the legal hurdles, petitioners are unable to complete the said project. As on today, no such vacant sites alleged to have been allotted to the respondents are available at the disposal of the petitioners, hence it is not in a position to identity it. There is no deficiency in service of any kind on the part of the petitioners.
4. District Forum, vide its order dated 21.7.2008, allowed the complaint of the respondents and directed the petitioners to refund the amount alongwith interest @ 16% and also awarded compensation of Rs.1 lakh and litigation of Rs.1,000/- to each of the respondents.
5. Aggrieved by the order of the District Forum, petitioner filed appeals before Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short State Commission). State Commission, vide common order dated 19.2.2010, dismissed the appeals of the petitioners, at the admission stage itself.
6. Aggrieved by the order of the State Commission, petitioners have filed the present petitions.
7. It is contended by learned counsel for the petitioners that as per sale deed executed between the parties, vacant possession of the property in question was handed over to the respondents, which is clear from clause 9 of the sale deed and respondents have no case at all.
8. Clause 9 and 10 of the sale deed dated 30.3.2000, executed between the parties read as under:-
09. The VENDORS have handed over all the attested true Xerox copies of the title deed/documents pertaining to the title of the Schedule Property to the PURCHASER and also have delivered physical vacant possession of the Schedule Property today to the PURCHASER thus completing the sale transaction in favour of the PURCHASER in all aspects which is hereby acknowledged by the PURCHASER.
10. That the VENDORS further convenant with the PURCHASER that the PURCHASER shall have the Khatha of the Schedule Property transferred in their name in the revenue department as the absolute owners thereof and the VENDORS undertake to execute necessary documents for the transfer of Khatha in the name of the PURCHASER as the Absolute Owners thereof in future.
9. Though according to clause 9 of the above sale deed, vacant possession has been handed over to the purchaser, however as per clause 10 of the sale deed for transferring of the property in the name of the respondents, the vendor, i.e., petitioners have to execute the necessary documents for the transfer in the name of the purchasers (Respondents). Admittedly, the properties have has not been transferred in the name of the respondents.
10. In the grounds challenging the impugned order, petitioners themselves have admitted that though there is no deficiency of service, except some delay in providing the civic amenities. This clearly goes to show that till date petitioners have not provided the civic amenities.
11. We fail to understand if the possession has already been given to the respondents as per sale deed which was executed in 2000, then what is the hitch in getting the property transferred in the name of the respondents, though more than 11 years have elapsed.
12. In this respect, it would be pertinent to refer to the relevant findings of the State Commission which reads as under:-
No doubt the respondent / complainants have approached the appellants after coming to know about the advertisements deposited the amounts as mentioned in their complaints. It seems that the land owners of the appellants have executed the GPA in their favour. No doubt the appellants have executed the registered sale deeds in their favour and issued the possession certificates. The grievance of the respondents is that they have invested their hard earned money about a decade back but they are unable enjoy the fruits in spite of the fact that the appellant / Ops having executed the registered sale deeds and issuing the possession certificates but the appellants have failed to put them in actual physical possession which amounts only to a symbolic possession. Paragraph (8) of the impugned order clearly observed by the DF that the appellant / Ops are required to' obtain the permission from the concerned Deputy Commissioner for conversion of agricultural land into non agricultural purpose but the Deputy Commissioner did not sanction them the permission. The land acquired by the OP later on 'taken over by BMRDA as well as BMICAPA. Therefore, the appellants themselves have admitted that they could not complete the said project. The appellant / Ops efforts to get permission from the Revenue Department to convert the said agricultural land into non agricultural land also not fulfilled. Since no developmental activities have taken place in the said township the respondents have sought for the amount paid by them 10 years back. Actual physical possessions were not given to the respondent / complainants by the appellant but the possession certificates which were given are only symbolic.
The arguments advanced by the learned counsel for the appellants that the complainants themselves are kept mum for 10 years without ascertaining their rights of possession cannot be accepted and the same does not hold water. Even if any registered sale deeds have been executed only symbolic possession were given. But subsequent development by the BMRDA and by the BMICAPA goes to show that the appellants lose their right of ownership. Therefore, the DF has rightly passed the order by allowing the complaints filed by the respective complainants against the appellants. Hence we find no good ground to entertain these appeals.
13. Under these circumstances, petitioners cannot deprive the respondents of their legal rights to have the property transferred in their name.
Admittedly, as per findings of the State Commission, petitioners themselves have admitted that they could not complete the project and as per petitioners own admission there has been delay in providing civic amenities.
Thus, deficiency is writ large in these cases.
14. In Lalit Kumar Gupta & Ors. Vs. DLF Universal Ltd. (First Appeal No.88 of 1999 and 345 of 2001) decided by this Commission on 6.5.2002, it has been laid down;
That there has been a delay in delivery in handing over the possession of the Town House which is a deficiency in service within the definition of this word as per CPA, 1986.
15. In Narsingh Singh through LRs & Ors. Vs. Shanti Devi through LRs & Ors., 2010 (115) DRJ 601, Delhi High Court has observed;
It is well settled that where two Courts below have given a concurrent findings of facts, this Court under Article 227 of the Constitution of India shall not disturb the findings even if there is some mistake committed in appreciation of some part of evidence. Under Article 227, this Court does not correct the mistakes of law or mistakes of facts. The intervention of the this Court under Article 227 has to be only in those exceptional cases where the fora below had either not exercised their jurisdiction or had acted beyond jurisdiction or had ignored the well-settled legal proposition and acted contrary to law.
16. Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli Bikshalu and others, (AIR 1999 (SC) 3095) has observed;
It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below.
17. Recently, Supreme Court in Rubi (Chandra) Dutta vs. United India Insurance Co. 2011 (3) Scale 654 observed that;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. IN this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.
18. Since two Fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, in our opinion, the present petitions are nothing but gross abuse of the process of law and the same are totally frivolous in nature, which are required to be dismissed with punitive costs of Rs.50,000/- (Rupees fifty thousand only) each. Accordingly, we dismiss these petitions with costs of Rs.50,000/- each.
19. Out of the costs, Rs.25,000/-
each, shall be paid to each of the respondents, in these three petitions.
20. Petitioners are directed to deposit the costs by way of cross cheque for the sum of Rs.75,000/- in the name of Consumer Legal Aid Account and three cheques in the sum of Rs.25,000/-
each, in the name of each of the respondents; within four weeks from today.
21. In case the costs are not deposited within the prescribed period, the petitioners shall be liable to pay interest @ 9% p.a. till realization.
22. The cost awarded to the respondents shall be paid to them only after the expiry of period of appeal or revision preferred, if any.
23. Accordingly, all the revision petitions stand disposed of.
24. Pending applications also stand disposed of.
25. List for compliance on 9.12.2011.
J. (V.B. GUPTA) PRESIDING MEMBER ...
(SURESH CHANDRA) MEMBER Sg.