State Consumer Disputes Redressal Commission
Sh. Amar Nath, vs Indian Railway Welfare Organisation, on 12 July, 2007
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 12.07.2007 Complaint No.-358/98. 1. Sh. Amar Nath, .Complainants S/o Late Sh. Pandit Sadhu Ram, R/o Flat NO.152, 2nd Floo, Rail Vihar, Sector 33, Noida, Distt. Gautam Budh Nagar, U.P. 2. Ms. Veena Devi, W/o Sh. Suresh Kumar, R/o flat No.161, Ist Floor, Rail Vihar, Sector 33, Noida, Distt. Gautam Budh Nagar U.P. 3. Sh.Kanwal Preet Singh, S/o Sh. Avtar Singh, R/o Flat No.60, 2nd Floor , Rail Vihar, Sector 33, Noida, Distt. Gautam Budh Nagar U.P. 4. Sh. M. Sharma, W/o late Sh. K.K. Sharma, R/o Flat NO.69 3rd Floor, Rail Vihar, Sector 33, Noida, Distt. Gautam Budh Nagar U.P. 5. Sh. P.C. Gupta, S/o late Sh. V.P. Gupta, R/o Flat No.59, 2nd Floor,Rail Vihar, Sector 33, Noida, Distt. Gautam Budh Nagar U.P. Versus Managing Director Opposite Party Indian Railway Welfare Organisation, through Railway Complex, Sh. Brij Lal, AR. Behind Shankar Market, New Delhi-110001 CORAM: Justice J.D. Kapoor, President Ms. Rumnita Mittal, Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral) Complainants who are allottees of upper floor at Rail Vihar have claimed the following relief alleging unfair trade practice on the part of OP:-
a) Quash the decision of the OP society taken vide its letter dated January, 1995 whereby offering to allot the common area land located in the front and rear side of the ground floor flats since the impugned offer of allotment to the ground floor allottees is illegal, arbitrary, unilateral, malafide and bad in law and also against the terms of the rules and regulations of the OP society as well as the sanctioned plans of the dwelling units and the housing complex by NOIDA Administration and also for the facts and reasons as explained above.
b) Direct the OP society to withdraw the offer of exclusive use of the common area located in the front and rear of the ground floor flats,
c) Direct the OP society to demolish the encroachment of the said common area by demolishing the boundary wall around the said common area, so as to enable the allottees to raise columns from the ground floor level to the top floor flats in order to expand the balconies and verandahs as per the sanction already accorded/granted by the NOIDA Administration for the purposes can be executed,
2. Aforesaid reliefs have been sought on the following allegations :-
(i) OP is a society. OP promotes housing complexes all over India on No Profit No Loss basis for the serving, retired railway employees as well as their widows. OP developed and promoted a housing complex at Sector 33, NOIDA, Distt. Gautam Budh Nagar, U.P. and allotted 187 four storeyed flats (ground plus three), including the complainants, as per draw of lots.
(ii) OPs action in offering a portion of the front and back area (subject to levy of some charges) to the ground floor allottees was arbitrary and unauthorized. The scheme of allowing the use of the front and back area exclusively by the ground floor allottees is illegal and arbitrary not only as per the policy, but is also contrary to the plans sanctioned by the land allotting authority/NOIDA. The action of the OP in offering the common area to the ground floor is, therefore, not only bad in law but is also contrary to the rules of allotment.
(iii) The OP issued a letter in January, 1995 addressed to only the ground floor allottees levying some charges from the ground floor allottees for the extra facility of a boundary wall and use of the open space.
(iv) A conspiracy was thus entered into by and between the OP and the ground floor allottees with malafide intentions and ulterior motive to defraud the upper floor allottees of their right and title in the common area cost for which they had paid.
3. OP refuted the allegations and raised the following averments in its defence:-
(i) The portion of the common area in the front of the ground floor flat enclosed by a wall was only allotted against the payment of the cost of the wall. The allottees of the ground floor were on payment of the charges only to have the right of usage of the said part of the common area right and title of which continues to vest in favour of the OP. The OP which is the lessee of the land allotted by the NOIDA Administration has permitted the allottees of the upper floors to extend their balconies, at their own cost, as per the approved plans sanctioned by NOIDA Administration.
(ii) On the face of it the allegations and the nature of relief sought by the complainants show that these are of purely civil nature and do not fall within the ambit of the provisions of the Consumer Protection Act, 1986.
(iii) Reliefs are being sought in the form of mandatory injunction, temporary injunction as contemplated by the Code of Civil Procedure. The complainants have mainly challenged the action of the OP in offering a portion of front and back area of the ground floor subject to levy of certain charges. Front and back portion of the common area in front of the ground floor was only allotted subject to payment of cost of the wall and therefore the allot tees of the ground floor had right of usage of the said area , right and title of which continues to vest in the OP.
4. On the face of it, nature of allegations of complainants and pleas raised by the OP in support of their action dispute and nature of reliefs sought by the complainants squarely fall within the ambit of civil remedy, as none of these allegations amounts to either unfair trade practice or deficiency in service. Complaint is dismissed being not maintainable under the provisions of Consumer Protection Act, 1986.
5. Copy of order as per statutory requirement be forwarded to the parties and to the concerned District Forum and thereafter file be consigned to record.
6. FDR/Bank Guarantee, if any, be release under proper receipt.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member HK