National Consumer Disputes Redressal
M/S. Narne Estates Pvt. Ltd. & Anr. vs Wg. Cdr (Retd) Amitabh Bhattachrya on 5 November, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2081 OF 2013 (Against the Order dated 21/01/2013 in Appeal No. 78/2011 of the State Commission Andhra Pradesh) 1. M/S. NARNE ESTATES PVT. LTD. & ANR. REP BY ITS CHARIAMAN & MANAGING DIRECTOR, 1 GUNROCK ENCLAVE, KARKHANA SECUNDERABAD - 5000009 A.P 2. COL. N RANGA RAO., CHAIRMAN & MANAGING DIRECTOR, M/S NARNE ESTATE PVT LTD., 1 GUNROCK ENCLAVE, KARKHANA SECUNDERABAD - 5000009 A.P ...........Petitioner(s) Versus 1. WG. CDR (RETD) AMITABH BHATTACHRYA R/O 143 VIVEKANAND NAGAR, OPP NIT GARDEN, R/O 8-3-234/355, WARDHA ROAD NAGPUR - 440015 MAHARASTRA 2. SQN LDR (RETD) T.V RAMANA RAO, GENERAL MANAGER. CUSTOMER SERVICE, M/S NAMES ESTATES PVT LTD., 1 GUNROCK ENCLAVE, KARKHANA SECUNDERABAD - 5000009 A.P 3. COL (RETD) KTA BANDULA, GENERAL MANAGER, M/S NARNE ESTATE PVT LTD., 1 GUNROCK ENCLAVE, KARKHANA SECUNDERABAD - 5000009 A.P ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. PREM NARAIN, MEMBER For the Petitioner : Mr. Bhagabati Prasad, Adv. For the Respondent : Mr. K.S. Rama Rao, Adv.
Dated : 05 Nov 2015 ORDER Petitioners/Opposite Parties No.1 & 2 have preferred this revision against order dated 21.01.2013 passed by A.P. State Consumer Disputes Redressal Commission, Hyderabad (for short, 'State Commission').
2. Brief facts are, that Respondent No.1/Complainant was allotted plots bearing nos. 56 and 57 admeasuring 250 sq. yards each, in Block No.B. D. Sector -5, East City by the petitioners on payment of Rs.9,290/-on 24.09.1995 for a total consideration of Rs.65,500/- to be paid in equal monthly instalments of Rs.1,500/- per month for 36 months and Rs.1,000/- as the last payment. Respondent No.1 paid last installment of Rs.1,000/- on 29.06.1998. In reply to respondent no.1's letter dated 21.01.1999, by Respondent No.3/Opposite Party No.4 they informed him that development works will be taken up from March, 1999 and he had to pay Rs.2,000/- per month for plots. The request of respondent no.1 vide his letter dated 15.06.1999, to buy under buyback policy was refused by the petitioners and on his request he was allotted plot nos.65 and 66 admeasuring 500 sq. yards in Sector 5, Block AL, instead of plot no. 56 and 57 in Block BD. Further, petitioners allotted plot nos. 28 & 29 (CP) in Block AE to respondent no.1, without any prior intimation instead of plot nos. 65 and 66 in sector 5, Block AL and executed a sale deed on 22.03.2003 but did not deliver possession of the said plots to him. The petitioners misguided him stating that there was no dispute of the land and later in response to his legal notice dated 01.01.2009 to provide alternate plots or refund the amount, respondents offered to buy back the plots @ Rs.500/- per sq. yard, as the land was in dispute in the Court and forwarded a format of "No Claim Certificate/No Objection Certificate" and GPA for resale. Respondent No.1 rejected the same but petitioners did not deliver possession of the same. Accordingly, respondent no.1 filed consumer complaint seeking refund of Rs.1,57,995/- cost of the plots with interest @ 18% PA thereon from 03.10.2008, to pay a sum of Rs.15,93,115/- difference of the market price and cost paid by him, Rs.one lakh towards mental agony etc. and Rs.one lakh for travelling, boarding and loading expenses and of Rs.50,000/- toward legal expenses.
2. Petitioners in their written statement have stated, that respondent no. 1 was allotted plots no. 56 and 57 in Sector 5 Block BD of East City admeasuring 250 sq yard each for Rs.63,500/- and paid the amount in instalments. At respondent no.1's request, they changed the allotment to sector 5 Block AL and plot no. 65 and 66(ISP) and thereafter to plot nos. 28(CP) and 29(CP) in Block AE. The sale deed was executed on 22.03.2003. Due to escalation of prices and labour charges, developmental works have not been completed and members have been requested to cooperate with regard to delivery of possession of the plots and the same was intimated to respondent no.1 on 18.04.2007. Petitioners wanted to purchase the plots @ Rs.500/- sq. yard in Sector 5 but respondent no.1 expected Rs.900/- to Rs.1,000/- per sq. yard. When he brought the matter to their notice vide letter dt. 3.10.2008, that plot no. 29 along with other plots in Block AE was fenced and there is dispute about the said plots with the original owner and requested to transfer by sale deed a clear plot or alternatively asked for refund of cost of plot no. 29. The petitioners informed that some miscreants who had purchased land close by, had encroached upon respondent no.1's plots and matter had been taken up by Bhongir Court. Petitioners sent a format of the claim certificate etc. with offer of buyback @ Rs.500/- per sq. yard but respondent no.1 rejected the same. As per request of respondent, no.1, they are in the process of resale. There is no deficiency in service or unfair trade practice on their part. For relief sought for refund of sale consideration, respondent no.1 has to approach Civil court for specific performance of the contract but not before this Forum and District Forum has no jurisdiction to entertain the complaint and thus prayed for dismiss of the complaint.
3. District Consumer Disputes Redressal Forum-I, Hyderabad (for short, 'District Forum') vide order dated 30.11.2010, partly allowed the complaint and directed petitioners to pay Rs. 5 lacs towards cost of plots, Rs.1 lac as compensation towards mental agony etc. and Rs.2,000/- towards costs.
4. Being aggrieved, petitioners filed appeal before the State Commission which vide impugned order modified the order of District Forum and directed petitioners to pay Rs.5 lacs towards cost of the plots admeasuring 500 sq. yards, Rs.1 lac as compensation for mental agony and Rs.2,000/- as costs. It further directed that upon such payments within four weeks, respondent no.1 shall reconvey the plots covered by Ex. A13 sale deed in favour of the petitioners.
5. We have heard learned counsel for parties and gone through the record.
6. It is submitted by learned counsel for petitioners, that at the request of respondent no.1 vide its letter dated 14.2.2003, plots were changed and was allotted and registered plot Nos. 28 and 29 in AE Block of Sector V of East City. However, part of Plot No. 29 was subsequently encroached by the neighbouring plot owner. Therefore, petitioners filed a case against the said encroacher. Hence, petitioners cannot be blamed for this.
7. It is further submitted, that respondent no.1 has not come with clean hands and twice he had changed the plots and the plots which were in encroachment after the sale deed was executed, itself were allotted to him by change of earlier plots pursuant to his request vide letter dated 14.2.2003. Lastly, it is submitted that respondent no.1 itself wanted to buy-back the plots at the rate of Rs.500/- per sq. yard, which would have fetched Rs.2,50,000/- against an investment of merely Rs.1,56,000/- paid in installments over a span of 8 years. The State Commission grossly erred in upholding the order of the District Forum and committed material irregularity, as there was no basis for granting the aforesaid compensation.
8. On the other hand it has been submitted by learned counsel for respondent no.1, that petitioners had taken substantial amount from respondent no.1 and even layout plan has not been approved. Moreover, there is no development. Thus, there is no ambiguity or infirmity in the impugned order.
9. District Forum in its order held;
"19. The opposite parties admitted that the complainants' plot was encroached upon and a case was pending in Bhongir court and expressed hope to clear his plot during 2009.
20. However, the plots were not cleared and their possession was not delivered to the complainant even by April, 2010
21. The complainant had requested the opposite parties to either transfer plots, with clear titled to him, or refund the cost of the plots as per prevailing market rate. Correspondence took place between the parties in this regard. The opposite parties offered Rs.500/- per Sq. yard which was not acceptable to the complainant. He prayed the Forum for a direction to the opposite parties for payment @ Rs.3,500/- per Sq. yard or prevailing market rate. The opposite parties in their written arguments, relied on the decision of Hon'ble National Commission in case of Manpreet Kaur Vs. Vice-Chairman Meerut Development Authority and others reported in CPR (NC) 2 (2010) to contend that non-payment of development charges and other statutory amounts does not entitle the plot holder for registration and he is entitled for refund of the plot cost paid by him with 9% interest and stated that refund of plot cost by them to the complainant is justified."
It further held;
"But when there is litigation and encroachment upon some plots in a layout, the market value of the plots goes down drastically. In fact no one may like to buy such plots. In the present case, the plots of the complainant were encroached upon and their possession had not been delivered to him. However, it must be borne in mind that the rate offered by the opposite parties to the complainant is the rate for disputed plots. Though the rate is offered may be less, in view of lack of clear title, the market value may not be as high as contended by the complainant. A balance has to be struck between both claims. We feel it justified to direct the opposite parties to pay Rs.5,00,000/- towards the cost of his plots admeasuring 500 Sq. yards. Further, the complainant must have endured mental agony for years due to deficiency in service and unfair trade practice of the opposite parties. Hence, he is also entitled for compensation."
10. The State Commission while modifying the order of District Forum in its order observed;
""All the said correspondence further strengths the contention of the complainant that possession of the plots registered under Ex.A13 was not delivered to him. Had the Ops were not at fault in the said context they would not have assured the complainant to resolve the issue. Ex.A11 statement of Account dt. 10.3.2003 discloses that development charges of Rs.75,000/- were paid and balance under the said head is Zero. It also discloses that out of Rs.73,000/- towards cost of the plot, Rs.69,250/- was paid and balance of Rs.3,750/- had to be paid and that Rs.14,000/-towards registration charges, Rs.12,000/- were paid and Rs.2,000/- balance had to be paid and that Rs.75,000/- towards interest charges were not paid. When development charges was shown as zero again claiming Rs.50,000/- towards development/ addl. development charges is not justified because the fault was with the Ops in not completing the development works. In view of the above discussion, the contention of the Ops that sale deeds has been executed on 22.3.2003 and possession of the plots had been delivered to the complainant is no more helpful for them in this case. The said lapses on the Ops certainly causes mental agony to the complainant. The complainant claimed Rs.3,500/- per sq. yard or at the rate of prevailing market value and he did not place any dependable evidence in the said context. Ex.A11 statement discloses that in total the complainant paid Rs.1,56,250/- by 10.3.2003. Similarly there is no dependable evidence of the side of OPs also that the then market value of the property was Rs.500/- sq. yard which is certainly low. Discussing all the said aspects and striking the balance between both the claims, the District Forum directed the opposite parties to pay Rs.5 lakhs towards cost of his two plots admeasuring 500 sq. yard and Rs.One lakh compensation towards mental agony and Rs.2,000/- towards cost of litigation. Absolutely there are no valid grounds to interfere with the order of the District Forum in the said context. However, Ops are directed to pay such an amount, a duty cast upon the complainant to re-convey the plots covered by Ex.A13 sale deed in favour of OPs within four weeks from the date of payment of amounts so awarded by the District Forum to the complainant. In the result, the Appeal is disposed of modifying the order of the District Forum and Ops are directed to pay Rs.5 lakhs towards costs of the plots admeasuring 500 sq. yards Rs.One lakh compensation for mental agony and Rs.2,000/- costs of the complaint awarded by the District Forum and upon such payments within four weeks the complainant shall reconvey the plots covered by Ex.A13 sale deed in favour of the opposite parties. The parties shall bear their own costs of the Appeal. Time for compliance four weeks."
11. As per record, the offer made by petitioners to respondent no.1 through letter dated 08.12.2008 was not accepted by him. Respondent No.1 replied on 11.01.2009 in which he clearly stated, that he did not agree with the terms of the "buy back". It is important to note that prior to these letters, respondent no.1. had requested petitioners through letter dated 17.11.2008, for allotment of fresh plots which could be disposed of easily as he was in dire need of money or refund the money at the market rates. Respondent No.1 has mentioned in the letter, that he will surrender the sale deed as the plots were in dispute. Petitioners on the other hand, asked respondent no.1 to forward a 'No Claim Certificate' as they cannot re-purchase the plots but buy back the plots. It is important to note, that respondent no.1 in his letter dated 04.11.2008 did not ask the petitioners to sell the plots. Respondent No.1 has clearly stated, that he wanted allotment of fresh flats which he could dispose off easily. In fact, petitioners did not answer any query of respondent no.1 as to fresh allotment or refund of money. Instead, petitioners asked respondent no1. that they have a 'buy back' scheme under which they could buy his allotted plots @ Rs.500/- per sq. yard.
12. It is an admitted fact, that possession of plots in question has not been handed over to respondent no.1,till date. Thus, petitioners are enjoying the entire cost of plots deposited by respondent no.1. for more than 16 years. On the other hand, respondent no.1 after paying the entire cost of the plots, is still empty handed. In this regard, District Forum has also held;
"19. The opposite parties admitted that the complainant's plot was encroached upon and a case was pending in Bongir court and expressed hope to clear his plot during 2009.
20. However, the plot were not cleared and their possession was not delivered to the complainant even by April, 2010."
13. Thus on the face of record it is clear, that petitioners are acting arbitrarily and malafidely. There is a deficiency in service on their part, since respondent no.1 did not get possession of the plots, as those plots were under litigation. Moreover, there is a deficiency on the part of the petitioners also for not providing alternate allotment or refunding the money. Thus, the order passed by the State Commission has no infirmity in it.
14. It is well settled, that under Section 21(b) of the Consumer Protection Act, 1986( for short, 'Act') scope of revisional jurisdiction is very limited. This Commission can interfere with the order of the State Commission only where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
15. The Hon'ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed;
"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 than 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 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 findings of two Fora".
16. From the examination above it is clear that findings of fact reached by Fora below are based on correct appreciation of the evidence on record. The impugned order does not suffer from any illegality, material irregularity or jurisdictional error which could justify intervention in exercise of powers under Section 21(b) of the Act. Thus, present revision petition having no legal force, is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only).
17. Petitioners are directed to deposit the cost by way of demand draft in the name of 'Consumer Legal Aid Account' of this Commission, within four weeks from today.
18. In case, petitioners fail to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a. till realization.
19. List for compliance on 11th December, 2015 at 2.00 P.M. ......................J V.B. GUPTA PRESIDING MEMBER ...................... PREM NARAIN MEMBER