State Consumer Disputes Redressal Commission
1. Narne Estates Private Limited. ... vs 1. Mr. P. Rama Mohan Sastry,, Hyderabad ... on 11 December, 2012
A.
P.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
FA 917/2011 against CC 698/2009
on the file of the District Consumer Forum I, Hyderabad.
Between
:
Narne Estates Private Limited
Rep. by its Chairman & Managing
Director
Col. ( Retd)
Narne Ranga Rao,
Office at Gunrock Enclave,
Sikh village, Secunderabad 500 009
Col. ( Retd).
Narne Ranga Rao
Managing Director
M/s. Narne Estates Pvt. Ltd
86, Gunrock Enclave, Sikh Village
Secunderabad 500009
Gokul Narne
S/o Col. ( Retd)
Narne Ranga Rao
Director, M/s. Narne Estates Pvt. Ltd
Gunrock Enclave, Sikh Village
Secunderabad 500 009 ..
Appellants/Ops
And
Mr. P. Rama Mohan Sastry,
S/o P. Rama Rao
Hindu, aged about 69 years, R/o D.No.
25-52/2/1
Krishna Kunj, East Anand Bagh
Malkajgiri, Hyderabad ..1st Respondent/complainant
N. Gopal Naidu, S/o late N. V.
Naidu
Director, M/s. Narne Estates Pvt. Ltd
R/o 12-114, Balaji Nagar, Yapral,
J.J.Nagar Post, Secunderabad 500087 ..2nd
Respondent/OP No,4
( not a necessary party )
Counsel
for the Appellants : M/s.
K. R. Koteswara Rao
Counsel
for the Respondents : Mr.
K. Jagadish for R1
R2
is not necessary party to this appeal.
Coram ;
Sri R.
Lakshminarasimha Rao Honble Member
And Sri T. Ashok Kumar .. Honble Member Tuesday, the Eleventh Day of December Two Thousand Twelve Oral Order : ( As per Sri T. Ashok Kumar , Honble Member ) ****
01.This is an appeal preferred by the unsuccessful opposite parties as against the orders dated 06.01.2011 in CC 698/2011 on the file of the District Consumer Forum-1, Hyderabad. For convenience sake, the parties as arrayed in the complaint are referred to as under :
2. The brief facts of the complaint are that The complainant was allotted the membership No. 26146 and initially allotted plots with Nos. 43 and 44 admeasuring 500 sq. yards in G Block in Sector EX of East City on payment of Rs.10,000/- initially and he paid the balance amount in monthly instilments of Rs.1500/- p.m. the last installment in January, 2000 and Rs.1,88,684/- in total which included Rs.87,500/- towards development charges. The Ops issued statement of account dated 31.08.2006 stating that the complainant paid entire sale consideration of the said plots and there were no dues. The complainant addressed a letter dated 04.11.2006 requesting the Ops to register the said plots in his name, for which, the Ops offered to register the plots along with nos. 45 and 46 in sector V of Block V and that the complainant accepted the offer on the condition that no extra payment will be made by him. Thereafter, the Ops sent reply dt. 31.3.2007 reallotting the plot nos. 45 and 46 sector V, Block V to the complainant and demanding the complainant to pay Rs.32,750/- as development charges, Rs.50,000/- as registration charges and Rs.37,500/- as shift charges, the total being Rs.1,22,2562/-.
The complainant vide his letter dated 28.05.2007 denied the demand of additional payment of Rs.1,22,500/- and demanded to register the plots immediately. The Ops vide letter dated07.04.2007 had contended that the complainant had to pay rs.100/- per sq. Yard as the registration charges were increased by the Government w.e.f 01.02.007. The statement of Account dated 10.04.2007 was sent to pay Rs.1,20,250/- to the complainant. . In spite of payment of tota amount as per the statement of account dated 31.08.2006, the Ops faied to register the plots in his favour. Hence the complaint alleging deficiency in service and unfair trade practice on the part of the Ops.
03. OPs 1 to 3 filed counter opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts of the counter are as under
:
The re-allotment of plot no. 45 and 46 in Sector V, Block V was given as per request dated 04.11.2006 of the complainant and statement of account dated 10.04.2007 was issued pursuant to re-allocation of the plots, As per clause 10 of the terms and conditions and membership agreement dt.28.06.1995 the plots will be registered after final sanction of layout by the Town Planning Department and on receipt of complete payments from members. The plots were re-allotted after consent of the complainant on condition of payment of additional amount in the statement of account dated 10.04.2007. The complainant has to abide by the terms and conditions of the agreement dt.28.06.1995.
The complainant was requested to pay the development charges of Rs.32,750/- incurred by the OP, to pay Rs.37,500/- towards shift charges and Rs.50,000/- towards registration charges vide letter dt. 31.3.2007. Instead of Rs.450/- per sq. yard towards development works the Ops requested the members only to ay Rs.250/- per sq. yard. The developmental charges were fixed in 1995 and later the rates were escalated and still he is due at Rs.37,250/- towards development charges of reallocated of the plots vide nos. 45 and 46 ins sector 5 and even then they expressed willingness to execute register sale deed and that there is no deficiency in service on their part and prayed for dismissal of the complaint
04. Both sides filed her evidence affidavit reiterating their respective pleadings and Ex. A1 to A10 were marked on behalf of the complainant and Ex. B1 to B20 were marked for the OP.
5. Having heard both sides and considering the evidence on record, the District Forum allowed the complaint and directed OPs 1 to 3 to execute the sale deed in favour of complainant conveying title in Plot no.
45 and 46 of Sector V, Block V of East City ( totally admeasuring 500 sq. yards) without demanding any amount and to pay compensation of Rs.20,000/- only towards mental agony etc and costs of Rs.2,000/- only to the complainant within 30 days. The complaint against OP 4 is dismissed.
6. Aggrieved by the said orders, the unsuccessful opposite parties 1 to 3 preferred the above appeal on several grounds and mainly contending that the complainant has failed to pay the development charges, shifting charges and registration charges, the complainant is not a consumer and there are several disputed questions of facts in the matter are involved and hence the complaint is not maintainable and therefore he has to approach Civil Court as per the provisions of C.P. Act and that the complainant had not paid the additional development charges, shift charges and enhanced registration charges and therefore he is not entitled for registration of the plots 45 and 46 in the venture referred to in the pleadings in his favour and that the Ops did not render any deficient service as alleged nor resorted to any unfair trade practice on the part of Ops and thus prayed to allow the appeal and set aside the orders under appeal.
7. Heard both sides with reference to their respective contentions in detail.
8. Now the points for consideration is whether the order of the District Forum is vitiated either in law or on facts ?
9. One of the important legal aspects agitated by the Ops is that he District Forum has no jurisdiction to entertain the complaint as the relief sought for is one in the nature of specific relief/specific performance and that for granting such equitable relief basing on contractual obligations are conferred only civil courts but not on the Consumer Forum and that the District Forum did not appreciate the said aspect. Whereas the complainant contends that the development of the venture for the purpose of selling it as plots after duly adding the value by providing infrastructure obtaining lay outs etc constitute itself by a kind of serice and therefore the said objection is not sustainable and that the Consumer Forum certainly has jurisdiction to entertain the present complaint.
10. In several decision the Honble Supreme Court of India and Honble National Commission it was held that the development of land for the purpose of selling it as plots and house sites after duly adding value by way of providing infrastructure, obtaining lay outs and other permissions from the local government etc. constitutes by itself a kind of service and in that view of the matter when a person purchases a plot from the developer he not only purchased the plot but also the service associated with it. The recent decision of Supreme Court in Fakir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. reported in 2008 (4) CPR 449 (SC) fortifies this view. The said view was supported by the Honble Supreme Court in a case reported in C.D.J 2012 S.C 370 between M/S Narne Construction (P) Ltd., Vs Union of India and others. The another decision of the Honble Supreme Court of India in Fakirchand Gulati Vs Uppal Agencies Pvt. Ltd., reported in III (2008) CPJ 48 (SC)= 2009 (4) C.P.R 449 S.C support the case of the complainant in the said context, so also, the decision between Lucknow Development Authority Vs M. K. Guptha reported in (1994) I SCC 243. Coming to the question of the jurisdiction admittedly the opposite party has been engaged housing construction activity at Hyderabad. It comes under the service as defined under Sec.2(1)(O) of the C. P. Act which reads as follows. Service means service of any description which is made available to potential users and includes, but not limited to, the provisions of facilities in connection with the banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of a personal service. By virtue of Sec. (2)(1) (O) of the C.P Act the complainant undoubtedly entitled to file the instant consumer complaint in the light of the housing activity taken up by the opposite party. Therefore, the contention of the opposite party that the Consumer Forum has no jurisdiction could not be appreciated in its favour. Since the complainant purchased a plot from the OP/developer he comes within the meaning of a consumer . Further, the Honble High Court of A. P. in Batch of writ petition nos. 28246 of 2009 etc.. vide orders dated 13.08.2010 held that consumer Fora do not suffer lack of jurisdiction to entertain complaints in such matters. There is no dispute that the complainant became a member in the venture floated by the opposite parties with membership No. 21146 and that he was initially allotted plot nos. 43 and 44 admeasuring 500s q. yards in G Block in sector EX of East City Venture of the Ops and that he paid an amount of Rs.1,88,684/- in installments which includes Rs.87,500/- towards development charges by January, 2000 and that later on vide Ex. A4 dated 31.3.2007 the Ops informed the complainant that as per his request vide Ex. A3 letter dated 4.11.2006 he was re-allotted with plots nos. 45 and 46 in Block 5 Sector V. in the said Ex. A4 letter the Ops requested the complainant to pay Rs.32.750/- towards development charges, Rs. 50,000/- towards registration charges and Rs.37,500/- towards shift charges. The grievance of the complainant is that without any right or entitlement the Ops demanded the complainant to pay additional development charges, shift charges and enhanced registration charges beyond 1.2.2007. The stamp duty and registration charges are liable to be paid to the Government at the time of registration of the sale deed and collecting such charges from the complainant in installments along with cost of the plot certainly amounts to deficiency in service and unfair trade practice. There is no dependable evidence from the OP side that they had taken up such and such developments at the shifted side and incurred such and such expenditure giving break up figures as to how it could claim particular additional development charges so as to demand for payment of additional development charges. Development charges agreed to be paid by the complainant wasRs.100/- to Rs.120/- per sq. yard that too in monthly installments when developmental works commenced and as already described supra there is no clinching evidence from the Ops that such and such developmental works commenced at the relevant site. Further there is no undertaking or agreement from the complainant to pay amount towards additional developmental charges, shifting charges, so also, enhanced stamp duty registration charges beyond 1.2.2007. In such circumstances, there is no justification for the Ops to claim such charges from the complainant relied upon a decision reported in III (2012) CPJ 5 between Narne Constructions Private Ltd Vs. Srikanth Vedantham. When the complainant requested the Ops vide his letter dt.
4.11.2006 to shift his plots to a sector where registration can be done immediately without any extra cost to him as the registration of the plot agreed to be sold earlier was delayed and the said proposal was accepted by the Ops 1 to 3 there is no justification for the Ops to dodge the matter on the pretext that he has to pay additional development charges, shift charges etc towards reallotted plots. When registration charges are collected in installments and retained with Ops 1 to 3 we feel it just and reasonable to say that the complainant need not be saddled with enhanced registration charges beyond 1.2.2007 and the Ops 1 to 3 have to bear the same it is much more so when the registration of the plots was not done immediately after payment of the amount agreed to be paid by the complainant to the opposite parties. The District Forum rightly discussed the said aspects and directed the Ops 1 to 3 to execute registered sale deed in favour of the complaint conveying title in plot nos. 45 and 46 of sector V, Block V of East City total admeasuring 500s q. yards without demanding any such additional development charges, shift charges and enhanced registration charges. When such plots are ordered to be conveyed in his favour further ordering the Ops 1 to 3 to pay Rs.20,000/- compensation towards mental agony etc could not be appreciated and in the circumstances of the case the said amount is liable to be scaled down to Rs.5,000/- only while maintaining costs of Rs.2000/- ordered to be paid to the complainant by Ops 1 to 3 as it is. Thus, the order under appeal is liable to be modified.
11. In the result, the Appeal is allowed in part modifying the order of the District Forum scaling down the compensation awarded by it to the complainant from Rs.,20,000/- to Rs.5,000/- only and the rest of the order confirmed. Parties shall bear their own costs of the Appeal. Time for compliance four weeks.
MEMBER MEMBER DATED 11.12.2012.