State Consumer Disputes Redressal Commission
1.Haryana Urban Development ... vs R.T. Batra Son Of Shri Bhagwan Dass, ... on 23 May, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.712 of 2006 Date of Institution: 10.03.2006 Date of Decision: 23.05.2012 1. Haryana Urban Development Authority, Sector-12, through its Estate Officer, HUDA, Faridabad/Administrator, HUDA, Faridabad. 2. Chief Administrator, HUDA, Sector-6, Panchkula. Appellants (Ops) Versus R.T. Batra son of Shri Bhagwan Dass, Resident of 3/19, East Punjabi Bagh, New Delhi, through its G.P.A. Shri Inderjeet Garg son of late Shri Bhim Sain Garg, Resident of H.No.62-A, Neel Gigi Apartment, Alakhnanda, New Delhi. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Raman Gaur, Advocate for appellant. Shri Kamal Mor, Advocate for respondent. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 24.01.2006 passed by District Consumer Forum, Faridabad in complaint No.655/2005.
The brief facts of the present case not disputed between the parties are that plot No.1078 located in Sector-64, Faridabad was allotted to complainant R.T. Batra vide allotment letter bearing Memo No.A-64-2K/55 on the tentative price of plot of Rs.1865/- per sq. yard. The complainant R.T. Batra deposited 10% alongwith the application form and 15% after the allotment, however, thereafter the complainant did not deposit even a single penny towards the price of the plot including the enhanced price of the plot which were demanded by the opposite parties from the complainant vide letters dated 18.04.2002 and 04.10.2002. Instead of depositing the instalments of the plot as well as the enhanced price of the plot, the complainant through his G.P.A. Inderjeet Garg filed the instant complaint with the averments that the opposite parties-HUDA failed to offer the possession of the plot to him after completing all the development works like like water, sewerage, electricity pole, rainy water drainage pipe, school, parking and shopping centre etc and thus sought direction to the opposite parties to deliver the actual physical possession of the plot in question with full development surrounding the plot No.1078, Sector-64, Faridabad or to deliver possession of some alternative plot with full development; to pay 15% interest on the deposited amount from the date of deposit till the delivery of possession; to pay Rs.1,00,000/- on account of mental agony and harassment suffered by the complainant; not to charge any penalty and interest or extension fee from the complainant in respect of the plot and to pay Rs.5500/- as litigation expenses.
Upon notice, the opposite parties appeared and contested the complaint by filing written statement stating therein that the development works, being a lengthy process were to be completed with the passage of time and thereafter the possession of the plot was to be delivered to the complainant. It was further stated that as per Clause 6 of the letter of allotment, till the offer of possession, no interest was to be charged on the instalments if deposited within the stipulated period but in the instant case the complainant failed to adhere to the terms and conditions of the allotment letter and therefore, there was no deficiency in service on the part of HUDA. Rather the complainant himself was negligent for not depositing the instalments as well as the enhanced price of the plot which was demanded from him vide notices issued on 18.4.2002 and 04.10.2002. The complaint through G.P.A. was not maintainable. Thus, denying any kind of deficiency in service on their part, the opposite parties prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum accepted the complaint and granted following relief to the complainant:-
i) The respondents are ordered to deliver the physical possession of the plot with all facilities and amenities, as claimed by the complainant in his complaint and further explained above in this order.
ii) The respondents are further ordered in case the physical possession of the allotted plot is not feasible in near future then allot an another plot in lieu of the originally allotted plot, and further deliver the physical possession of the alternative plot with complete development, which has been demanded by the complainant for the originally allotted plot.
iii) The respondents are ordered not to charge any kind of interest, penal interest, compound interest, penalty and extension fees uptil the period of delivery of the plot as ordered above.
iv) The respondents are ordered to pay interest @ 12% per annum on the deposited amount of the complainant w.e.f.
its deposit till the delivery of the physical possession of the plot as ordered above.
v) The respondents are also ordered to pay Rs.50,000/- on account of escalation charges and Rs.20,000/- for mental agony.
vi) The respondents are ordered to pay Rs.5000/- on account of litigation charges.
The complainant himself or through his G.P.A. can get comply with the order of the Forum.
The respondents are ordered to comply with the order of the Forum within 30 days after receiving the copy of the order.
Aggrieved against the order of the District Consumer Forum, the opposite parties have come up in appeal.
We have heard learned counsel for the parties and perused the case file.
On behalf of the appellants it has been argued that the complaint through G.P.A. was not maintainable but the District Consumer Forum did not take into consideration this legal aspect of the case. In support of his arguments, learned counsel for the appellants has referred to the decision rendered by this Commission in Appeal No.229 of 2006 decided on 22.02.2012, Haryana Urban Development Authority vs. Bhupendra Nath Ranjen wherein by relying upon the decision rendered by Honble Apex Court, the G.P.A. has been held not a consumer.
It is further contended on behalf of the appellants that the complainant himself remained deficient by not depositing the instalments as per the terms and conditions of the allotment letter because after depositing 25% of the tentative price of the plot at the time of allotment, the complainant did not deposit even a single penny thereafter and thus, no deficiency in service can be attributed to the opposite parties for not delivering the possession of the plot to the complainant.
On the other hand, learned counsel for the respondent has contended that the order of the District Consumer Forum has already been complied by the opposite parties and possession of the plot has been delivered to the complainant vide Possession Certificate bearing Memo No.S-4798 dated 27.12.2007 and thereafter the plot has been transferred in the name of Sudesh Sharma wife of Lt.A.K. Sharma Resident of 272, Sector 15-A, Faridabad.
Having considered the rival contentions of the learned counsel for the parties, it is not disputed that Inderjeet Garg is a Property Dealer who had purchased the plot on the basis of G.P.A. and as a purchaser through G.P.A., he has filed the complaint and further sold this plot to Sudesh Sharma wife of Lt.A.K. Sharma Resident of 272, Sector 15-A, Faridabad.
At the time of filing complaint, the G.P.A. had no authority to file complaint being not a consumer and further when G.P.A. has already sold this property to Sudesh Sharma wife of Lt.A.K. Sharma, the complainant has no right to file the complaint. It is a case in which HUDA officials are hobnobbing with the complainant and the new purchaser and illegally transferred the plot in the name of Sudesh Sharma despite the fact that the appeal is pending before the State Commission. The question whether the G.P.A. falls within the definition of consumer has been discussed by this Commission in Appeal No.229 of 2006 decided on 22.02.2012, titled as Haryana Urban Development Authority Vs. Bhupendra Nath Ranjen, the relevant part of which is reproduced as under:-
The other aspect of the case is that the complainant has filed the amended complaint through General Power of Attorney Rameshwar Bansal son of S.R. Bansal. G.P.A. has no interest and could not be treated as a Consumer and, therefore, complaint on his behalf is not maintainable. More so, no G.P.A. has been tendered on the record. It has not been disclosed by the complainant as to what was the relationship between the complainant and G.P.A. Ramehswar Bansal. It appears that Rameshwar Bansal who has acted on behalf of allottee, is a property dealer and even in that capacity the General Attorney is trying to acquire rights by avoiding stamp duty. Complainant Bhupendra Nath Ranjen who has surrendered the plot and filed complaint seeking refund of the surrender value but lateron amended the complaint through G.P.A. As to what is the relationship of the complainant with the G.P.A. has not been explained. The lust of securing the plot by G.P.A. who is a property dealer cannot be allowed to sustain. It has been seen in number of cases that the property dealers keep an eye on the disputed plots and in connivance with the staff of HUDA who also at the back and call of the property dealers manipulate the things in their favour, which practice is prevalent in this part of the Country which requires to be curbed. The lust for earning more profits after allotting the plot by HUDA, is increasing day by day, without actual profit reaching to the original allottee. The purpose of allotting the plots in urban estates, is to provide better facilities with respect to residential as well as commercial plots and the same should not be converted into a profits earning machine. We, therefore, are of the view that once the plot has been surrendered by the original allottee, who initially wanted to take refund the surrender value of the deposited amount but later on fell in lust to get more money from the G.P.A. who is a property dealer, cannot be allowed to retain the plot in such a flimsy manner. To curb such a tendency, Honble Apex Court has taken a serious view in this regard. Reference is made to the observation made by Honble Supreme Court in Special Leave Petition (C ) No.13917 of 2009 titled as Suraj Lamp & Industries Pvt. Ltd. Versus State of Haryana and another decided on 11.10.2011 dealing with consequence of Power of Attorney holder acquiring rights, held as under:-
III-Effects of SA/GPA/WILL transactions
3. The earlier order dated 15.5.2009, noted the ill-effects of such SA/GPA/WILL transactions (that is generation of black money, growth of land mafia and criminalization of civil disputes) as under:
& quot; Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons: (a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.
(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.
(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin.
Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption.
This kind of transactions has disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such `power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of musclemen to `sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions & quot;
It also makes title verification and certification of title, which is an integral part of orderly conduct of transactions relating to immovable property, difficult, if not impossible, giving nightmares to bonafide purchasers wanting to own a property with an assurance of good and marketable title.
The facts of the instant case are fully attracted to Suraj Lamp & Industries Pvt. Ltd. versus State of Haryana and another case (Supra). Thus, the complaint filed by the complainant through G.P.A. is not maintainable. Hence, the impugned order passed by District Consumer Forum cannot be allowed to sustain.
The case in hand is fully covered by our earlier decision rendered in Bhupendra Nath Ranjens case (Supra) which is based on the judgment rendered by Honble Apex Court in Special Leave Petition (C ) No.13917 of 2009 titled as Suraj Lamp & Industries Pvt. Ltd. Versus State of Haryana and another decided on 11.10.2011. Thus, the complaint filed by the complainant through G.P.A. is not maintainable which is against the statutory provision of the Consumer Protection Act.
The contention raised on behalf of the respondent-complainant that since the order has been implemented and the plot has further been sold to Sudesh Sharma, clinches the issues that how the officials of HUDA in connivance with G.P.A. who is a Property Dealer, are bent upon to sell the property of HUDA by concealment of facts. Merely that the impugned order has been implemented is not a ground to endorse the view of the District Consumer Forum, which is based against the statutory provision of the Consumer Protection Act. Complainant R.T. Batra who is the original allottee of the plot, has nowhere disclosed his relationship with the G.P.A. Inderjeet Garg on the basis of which the G.P.A. was given to Inderjeet Garg. In other words, the G.P.A. is a property dealer who by securing the plot in connivance with the officials of HUDA, has sold the plot to Sudesh Sharma during the pendency of the appeal though the possession of the plot was delivered subject to the final decision of the present appeal. Hence, the clever device of the complainant as well as his G.P.A. cannot be allowed to sustain.
As a sequel to our aforesaid discussions, we accept this appeal and set aside the impugned order passed by the District Consumer Forum which is totally against the provision of law and dismiss the complaint. Consequently, the plot No.1078 located in Sector-64, Faridabad stands restored to HUDA as per the provisions of Section 144 of the Code of Civil Procedure (restitution).
The statutory amount of Rs.25,000/-
deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 23.05.2012 President B.M. Bedi Judicial Member