State Consumer Disputes Redressal Commission
M/S. Venkateswara Housing Pvt. Ltd., ... vs The Guntur Municipal Corporation, Rep. ... on 26 September, 2012
BEFORE THE A BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD F.A.No.875/2011 against C.C.No.142/2006, District Forum, Guntur. Between: M/s. Venkateswara Housing Pvt. Ltd., Rep. by its Authorized Director Sri K.V.Subba Rao, S/o.Gopala Rao, Hindu , Aged about 54 years, having its registered office at Door No.11-1-73, Station Road, near Zinnah Tower, Guntur. Appellant/ Complainant And The Guntur Municipal Corporation, Rep. by its Commissioner, having its office at opposite Gandhi Park, Guntur. Respondent/ Opp.party Counsel for the Appellant : M/s. K.Siva Rama Prasad Counsel for the respondent : Notice served QUORUM: THE HONBLE JUSTICE SRI D.APPA RAO, PRESIDENT, AND SRI S.BHUJANGA RAO, HONBLE MEMBER.
WEDNESDAY, THE TWENTY SIXTH DAY OF SEPTEMBER, TWO THOUSAND TWELVE.
Oral order (Per Sri S.Bhujanga Rao, Honble Member)s.
**** This appeal is directed against the order dt.24.6.2011 of the District Consumer Forum, Guntur made in C.C.No.142/2006, which is filed by the complainant seeking direction to the opposite party Municipal Corporation to issue B.R.S. certificate under B.R.S. Scheme, as per assessment, in favour of the complainant by declaring that the notice dt.3.2.2006 bearing no.209/96/G3-UC ROC no. 63/96/ B.O. III is illegal and the consequential permanent injunction restraining the opposite party not to interfere with the peaceful possession and enjoyment of the complainants property or not to demolish or coercive steps against the complainants property with regard to the assessment bearing nos.14142/B, 14142/8, 14142/7, 14140 and 14141/A respectively .
The appellant is the complainant and the respondent is the opposite party in C.C.No.142/2006 .
The brief case of the complainant is that the complainant which is a registered company, having acquired site, constructed a multi storied building complex, in the year 1996, in accordance with the approved plan. Thereafter, the complainant has been paying municipal tax for the assessment nos.14142/B, 14142/8, 14142/7, 14140 and 14141/A. As per G.O.Ms.No.419 M.A. dated 30.7.98 a sum of Rs.15,75,000/- was paid by the complainant to the opposite party towards penal amount under B.R.S. Subsequently, there was no demand notice or letter from the opposite party authorities with regard to the balance amount, if any, as per the said G.O. and the opposite party kept quiet. The complainant has been waiting all along to hear from the opposite party authorities. The complainant made several representations and also personally approached the opposite party and requested to issue B.R.S. certificate, but no response from them. Non performing the service amounts to deficiency in service. Hence the complaint.
Resisting the complaint, the opposite party filed written version denying the material allegations made in the complaint and contended that the opposite party approved the plan for construction of the multi storied building in favour of the complainant. While executing the work, the complainant deviated the sanctioned plan, against which action was initiated by the then officials in U.C.No.63/96 and a notice under Section 42(1) and 43(1) of APUDA Act 1975 and under Section 452 HMC Act 1955 was issued to the complainant. Soonafter receiving the notice, the complainant filed a civil suit in O.S.No.304/97 against this Corporation on the file of the Honble Addl. Subordinate Judge Court, Guntur and obtained interim orders. Under the shade of the interim orders, the complainant completed the construction in deviation to the approved plan.
While things stood thus, the Government of A.P introduced the Building Regularisation Scheme popularly known as B.R.S. Scheme vide G.O.Ms.No. 419 MA dt. 30.7.2008. As per the said Government Order all the deviations made against the sanctioned plan and unauthorized constructions made in between 1.1.1985 to 30.6.1998 are entitled for regularization. The building of the complainant is also entitled for regularization in pursuance of the said Government Order. The complainant has voluntarily applied for regularization under B.R.S. Scheme by paying an amount of Rs.15,75,000/-
towards penal amount along with Form A and Form B. The said application was scrutinized and the penal amount has been calculated and arrived at Rs.28,34,338/-. The opposite party also issued endorsement to the complainant to pay the balance amount and also to withdraw the court case in O.S.No.304/97 filed against the opposite party. But the opposite party failed to comply the endorsement. The opposite party, from time to time, instructed the complainant to pay the balance penal amount, but in vain. For the reasons best known to the complainant he did not turn up to pay the balance penal amount and to get the regularized plan released.
Subsequently, the B.R.S has been strucked down by Honble High Court of A.P. and the B.R.S. Scheme is not in force. Hence the question of regularizing the deviations at this stage does not arise.
The opposite party further contended that since the construction was not yet regularized, the opposite party issued a notice as per the provisions of HMC Act,1955 calling upon the complainant to remove the unauthorized deviations, within the time stipulated in the notice. Instead of complying the notice, the complainant approached the District Forum and filed the complaint. There is no deficiency in service on the part of the opposite party. Hence the complaint is liable to be dismissed.
During the course of enquiry , the complainant and opposite eparty have filed their respective affidavits in support of their cases and got marked Exs.A1 to A32 and EXs.B1 to B16 respectively.
On consideration of the material on record , the District Forum came to the conclusion that there is no deficiency in service on the part of the opposite party and disposed of the complaint with the following directions:
1. The complainant is directed to apply for the present BPS Scheme for regularization of the deviations/unauthorised constructions regarding his assessments which are in the name of complainant in the complex within a period of two weeks form the date of receipt of copy of this order.
2. Opp.party is directed to receive the application of the complainant under BPS Scheme and consider the same in accordance with the provisions of BPS Scheme with regard to the assessments which are in the name of the complainant by adjusting the amount of Rs.15,75,000/- earlier paid by the complainant under B.R.S.Scheme, within a period of four weeks from the date of receipt of application made by the complainant under BPS Scheme.
Aggrieved by the said order, the complainant preferred the above appeal contending that the impugned order of the District Forum is contrary to law, arbitrary, improper and unjust. That the District Forum erred in directing the complainant to apply for present BPS Scheme for regularization. The District Forum should have seen that the construction of the appellants property is prior to 1998 and the application of the appellant is pending since 1998 and hence there is BRS and Act 6 of 2003 applicable to the present case. That the District Forum failed to see that the BPS is not in existence at present i.e. closed in December,2010. Hence the directions of the District Forum are absurd and void under law. Hence the order of the District Forum is liable to be set aside.
We heard the counsel for both the parties and perused the evidence on record including the written arguments filed by the opp.parties.
Now the points for consideration are
1. Whether the impugned order of the District Forum is liable to be set aside ? If so, on what grounds
2. To what relief?
It is not in dispute that the complainant is having property under five assessments and building was constructed in the year 1996 . The Municipal Corporation levied the municipal taxes and collected the same from the complainant under the said assessment is also not in dispute.
Admittedly, as per G.O.Ms.No.419 MA dt.30.7.98, Government introduced a Scheme called Building Regularisation Scheme/B.R.S. for regularization of deviations and unauthorized constructions by way of collecting penal amounts. In pursuance of the said G.O. the complainant paid a total sum of Rs.15,75,000/- by 2.3.2001 as mentioned in Ex.B4 for regularization of the deviations in construction of building relating to the said five assessment numbers.
According to the complainant, the said amount of Rs.15,75,000/-
is sufficient towards penal charges payable for regularization of the deviations. But the case of the opposite party is that after payment of Rs.15,75,000/- by the complainant, the officials of the opposite party calculated the penal charges for unauthorized deviations, in accordance with the G.O.Ms.No.419 and arrived at a total amount of Rs.29,34,338/- as shown in Ex.B4 and demanded the complainant under Exs.A4 to A8 notices to pay the balance amount of Rs.13,59,338/- for regularizing the unauthorized construction and deviations made by the complainant. But the complainant has not paid the balance amount as demanded by the opposite party Corporation for regularizing the deviations and unauthorized construction of the complex.
Admittedly the said B.R.S. Scheme was in force till 2001, and as per the G.O.Ms.No.419 it was strucked down by the Honble High Court . Therefore under the said scheme the opposite party could not proceed further in regularizing the deviations of unauthorized constructions. It is not in dispute that to avoid consequential action of demolishing the unauthroised construction, the Govt. of A.P. passed Act 6 of 2003 which is called A.P. Regularisation of Unauthorised Constructions in the Municipal Corporations, Municipalities and Urban Development Authority Act,2003 and the same was published in the A.P.Gazette dt.15.4.2003 vide Ex.B6. Subsequently, the Govt. of A.P. issued G.O.Ms.No.901 Municipal Administration and Urban Development (M1) Department making rules called The Andhra Pradesh Regularisation and Penalisation of unauthorisedly constructed building and buildings constructed in deviation of the sanctioned plan Rules,2007 vide EX.B16 . Later the Govt. of A.P. issued Ex.B15 Memo clarifying the issues raised for implementing the Building Penalisation Scheme . In view of the clarification under Ex.B15 , the amount paid by the complainant towards penalization charges for regularization under B.R.S. Scheme.
Admittedly the complainant has not applied for the regularization under the present BPS scheme . In view of the above facts and circumstances , we do not find any deficiency in service on the part of the opposite party .
Further the relief of declaration that the notice issued by the opposite party to the complainant is illegal and arbitrary and consequential relief of permanent injunction restraining the opposite party not to interfere with the peaceful possession and enjoyment of the complainants property cannot be granted by the District Forum under the provisions of the Consumer Protection Act . The appropriate Forum to grant such relief is Civil Court.
The appellant/complainant has not placed any material on record to show that the BPS Scheme is not in existence at present.
For the afore mentioned facts and circumstances of the case , we do not find any grounds to interfere with the order of the District Forum.
In the result, the appeal is dismissed confirming the order of the District Forum with costs of Rs.5000/-.
PRESIDENT MEMBER Pm* 26.9.2012