State Consumer Disputes Redressal Commission
Y.Hari Prasad S/O Y.Shivannarayana vs M/S Narne Estates Pvt. Ltd on 28 April, 2011
BEFORE THE A BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No. 595 OF 2009 AGAINST C.C.No.839 OF 2006 DISTRICT FORUM-I HYDERABAD Between: Y.Hari Prasad S/o Y.Shivannarayana Aged about 43 years, Occ: Business R/o 4-58/A, Kukatpally, Hyderabad-072 ...Appellant/complainant A N D M/s Narne Estates Pvt. Ltd., rep. by its Deputy General Manager (Customer Service), 1, Gunrock Enclave Secunderabad-009 ...Respondent/opposite party Counsel for the Appellants Sri K.Visweswara Rao Counsel for the Respondent M/s RVR Associates QUORUM: HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT SMT M.SHREESHA, HONBLE MEMBER
AND SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER THURSDAY THE TWENTY EIGTH DAY OF APRIL TWO THOUSAND ELEVEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member)
1. The unsuccessful complainant is the appellant.
2. Briefly, stated the facts of the case are; the appellant applied for allotment of a plot in the venture floated by the respondent.
The plot bearing No. S6 measuring 500 sq.yards under sector IV in the East city for a consideration of the 30,000/- was allotted to him.
3. It is contended on behalf of the appellant that he had noticed the size of the plot was less than 300 sq.yds and brought it to the notice of the respondent who stated to have assured to adjust the deficit extent of the land and meanwhile the appellant had shifted his residence in the year 1999 to Karamchedu and he said to have been informed by his neighbour in the month of February 2006 that a registered letter was sent to him and the letter dated 13.2.2006 which was sent to him disclosed the cancellation of his allotment as also a cheque for `30,000/- was enclosed thereto. The appellant stated to have approached the respondent and expressed his willingness to pay the development charges subject to the respondent providing the deficit extent of the land for which the respondent through their letter dated 26.6.2006 expressed its inability to complete with the terms of the request of the appellant.
4. It is contended on behalf of the respondent that the appellant was due a sum of `50,000/- towards development charges. It is submitted that the plot was originally allotted to T.Vallabhai Patel and subsequently it was transferred in the name of the appellant and through letter dated 25.7.2006 he was informed that a plot measuring 500 sq.yards was allotted to him.
It is contended that neither the original allottee nor the appellant had paid the developmental charges and after waiting for a long time, the respondent had cancelled the allotment and refunded the sale consideration of `30,000/- to the appellant.
5. The appellant has filed his affidavit and the documents Exs.A1 to A8. On behalf of the respondent, its Chairman and Managing Director Col. N.Ranga Rao has filed his affidavit and got marked Exs.B1 to B15.
6. The District Forum has dismissed the complaint on the premise that as per the conditions mentioned in application form, the respondent has the right to cancel the allotment of plot and refund the amount in case of default committed by the member and that the appellant failed to pay the development charges.
7. Feeling aggrieved by the order of the District Forum, the complainant has come in appeal contending that there was variation in size of the plot as the plot offered was of 500 sq.yds and the one allotted is of 300 sq.yards. It is submitted that the venture was floated by the respondent without obtaining approval of the DTCP and that the charges demanded for development of the plot is equal to the deficit area of the plot.
8. Written arguments of the respondent filed.
9. The points for consideration are:
1) Whether the allotted plot is of 300 sq.yards or 500 sq.yards?
2) Whether there was any deficit area of the allotted plot?
3) Whether the appellant is liable to pay development charges to the respondent?
4) Whether the cancellation of allotment is valid?
5) To what relief?
10. POINTS NO.1 TO 5 On submission by application of the appellant, the respondent had allotted plot 6 admeasuring 500 sq.yards in Sector 4 in East City for a consideration of Rs.30,000/-. Originally, the plot was allotted to T.Vallabhai Patel who requested the respondent to transfer the plot in the name of the appellant herein. By virtue of the letter, the respondent was authorised to collect the development charges from the appellant and accordingly the allotment was transferred on 23.5.1996 in the name of the appellant. The appellant had furnished his address as the resident of Karamchedu Village.
11. The appellant had stated that he had noticed variation in the area of the plot and through letter dated 22.12.2001 he had brought it to the notice of the respondent that the plot allotted to him was of 250 sq.yards. The respondent has admitted that the plot allotted the appellant was deficit 500 sq.yards and as such it had allotted two plots bearing Nos.62 and 63 admeasuring 500 sq.yards in the same block i.e., block S and Sector IV. It is interesting to see the respondent allotting a plot measuring less than the area of the plot offered to be allotted and on being questioned about the variation in the size of the plot, the respondent had allotted two plots admeasuring 500 sq.yards instead of a single plot of the same area.
12. It is the contention of the appellant that for a long time development work was not taken up and he was required to pay the development charges in proportion to the progress of development work.
Whereas it is submitted on behalf of the respondent that the total cost of the plots allotted after basic development work was tentatively fixed and the total cost of the plot consists of the cost of the extent of the plot area and the development charges. It is contended that more than half of the allottees failed to pay the development charges and as such the cost of the development work was increased day by day and that the allotment was cancelled after sending letters to him which were received by him.
13. Admittedly, the appellant has paid cost of the plot as shown in the statement of account dated 18.3.1996. The development charges of `50,000/- was stated to be due from the original allotted and there after the plot was transferred in the name of the appellant. The respondent has filed letters dated 23.1.1996, 24.3.1996, 20.6.1999, 16.5.2000, 13.10.2001, 26.2.2001, 22.12.2001 and 1.1.2002. Except the cancellation letter, the receipt of other letters is denied by the appellant. The respondent had not sent the letters through registered post nor had it brought on record any document showing acknowledgement of receipt of the letter by the appellant. The respondent has taken two mutually inconsistent pleas that the appellants parents had received the letters and the other plea being that the respondent had left his village Karamchedu and shifted his residence without furnishing prior intimation to the respondent.
14. The terms and conditions of the allotment letter are binding on both the parties. There was discrepancy in the area of the plot allotted which was subsequently rectified by allotment of two plots. In the letter dated 24.3.1996, it was stated that the appellant has to pay the development charges on being given intimation at an appropriate time. The third para of the letter reads as under:
We also take this opportunity to point out that transfer of such plots are with existing assets/liabilities. We have completed the basic cost of land of `30,000/-. However, the development charges of `50,000/- would have to be paid at the appropriate time. The development works in S Block is planned for end of 1996, the program being indicated in our successive news letter. The payments are required to be commenced only when the physical works start.
15. The respondent has failed to establish its contention that the development work had started in the month of July 1997. The cancellation letter which was sent through registered post only was communicated to the appellant. It is the obligation of the respondent to inform the commencement of the development work to the appellant and then demand him for development charges. The two facets of the same fact cannot be ignored and particularly the duty cast on the respondent has to be considered while observing whether the appellant was at fault in making payment of the development charges. When there is no intimation of commencement of the development work and progress of such work to the appellant, the appellant cannot be found fault with, for non-payment of development charges. Through the notices dated 22.12.2001, 6.6.2006 and 15.9.2006 the appellant had consistently expressed his readiness to pay the development charges from the moment he had come to know about the completion of the development work through the cancellation letter till 1.1.2002. There was no re-allotment of the plot for quite long time even after the discrepancy in the area of the allotted to the notice of the respondent. The letter dated 1.1.2002 would clearly show the deficiency in service on the part of the respondent in allotting a plot of less size than the one that was offered to be allotted. Coupled with this sort of negligence, the failure on the part o the respondent in furnishing information of commencement, progress and completion of the development work to the appellant in our view constitute the deficiency in service on their part.
16. The respondent has stated that nearly half of the allottees had not paid the development charges and as such the cost of the development work had been increased. There is no denying of the fact that the plot nos.62 and 63 allotted to the appellant have not been re-allotted to any other member of the scheme. The appellant had expressed his readiness to pay the development charges as claimed by the respondent. The cancellation of allotment by the respondent cannot be unilateral and it is arbitrary and against the terms and conditions agreed upon, as the respondent failed to communicate the commencement and progress of the development work without performing of which obligation, it cannot demand the development charges. In the circumstances, we are inclined to hold the appellant entitled to the relief of restoration of the allotment. The appellant in case encashed the cheque, he should pay the amount of `30,000/- to the respondent besides the development charges.
In the result the appeal is allowed. The order of the District Forum is set aside. Consequently the complaint is allowed directing the opposite party restore the allotment of the plots bearing No.62 and 63 in Block S of Sector 4 of East City and execute sale deed in favour of the appellant after collecting the development charges from him. Costs of the proceedings quantified at Rs.2,000/-. Time for compliance four weeks.
PRESIDENT MEMBER MEMBER Dt.28.04.2011 KMK*