Date of Filing: 10.07.2018
Date of Order: 14.10.2019
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – I, HYDERABAD
P r e s e n t
HON’BLE Sri P.VIJENDER, B.Sc. L.L.B. PRESIDENT.
HON’BLE Smt. D.NIRMALA, B.Com., LLB., MEMBER
ON THIS THE MONDAY THE 14th DAY OF OCTOBER, 2019
C.C.No.298 / 2018
Between
Sri P.Srinivasa Rao,
S/o. Sri PVA Narsimham,
Hindu, Male, aged 53 years, Occ: Unemployee,
R/o. LIG Flat No.L8/TF, Phase-IV, KPHB Colony
Kukatpally, R.R.District, Rep.by his G.P.A.Holder,
Kalluru Hanumantha Rao, S/o. Sri Iyyanna,
Aged about 77 years, R/o. LIG 8/8, 4th Phase,
KPHB Colony, Kukatpally, Hyderabad. ……Complainant
And
- The Telangana State Housing Board,
Rep.by its Vice Chairman & Managing Director,
Gruhakalpa, M J Road, Nampally, Hyderabad.
.
- The Telangana State Housing Board,
Rep.by its Executive Engineer ( Housing),
(Western Division), KPHB Colony,
Kukatpally, R.R.District. ….Opposite Parties
Counsel for the complainant : Mr.G.V.S.Prasad Rao.
Counsel for the Opposite Party No.1 : Mr.K.Sampath Kumar.
O R D E R
(By Sri. Sri P. Vijender, B.Sc., LL.B., President on behalf of the bench)
1) This complaint has been preferred under Section 12 of Consumer Protection Act, 1986 alleging that refusal to register the flat in the name of the complainant by opposite party amounts to deficiency of service. Hence r a direction to the opposite party to register the flat bearing No.L/8/12/TF, IV Phase No.1992 in the name of the complainant as a nominee of original allottee late K.Sivaram at the cost of the complainant and to award a compensation of Rs.5,00,000/- for causing mental agony to the complainant by not registering the flat and award cost of this complaint at Rs.20,000/-
2) The complaint averments in brief are that :
Late Sivaram, S/o. of Sri Subrahmanyam applied for the LIG flat with A.P.Housing Board and paid requisite amount. He was allotted flat No.L/8/12/TF IV phase No.1992 and sent a letter dated 2.9.1986 to that effect. As per the terms of allotment late Sivaram was to deposit a sum of Rs.9,900/- towards 30% of the tentative cost of the flat and accordingly he paid it. After the construction of the flat it was fit for occupation and possession of same was offered to him after collecting the cost and on execution of agreement of sale with conditions mentioned therein. After payment of installments the Housing Board delivered the possession of the flat to late Sivaram and he started living in it and paid taxes regularly to the municipality and power bills to the Electricity board since the power supply was released in the name of allottee.
Late Sivaram was un-married and he nominated the complainant as his nominee in the application form submitted to the Housing Board. He died issueless on 15.7.2000. The complainant as a nominee of original allottee Sri K.Sivaram is in the possession, occupation and enjoyment of the flat and regularly paying municipal taxes, electricity bills etc. The complainant intimated the death of late Sivaram through a letter dated 27.1.2015 and requested for registration of the flat in his name as a nominee. Then he was directed by the opposite parties to pay balance installments as original allottee had not paid entire amount of sale consideration as per the agreement entered by them. Hence the complainant paid the balance sale consideration with interest and penalties there on which was to a tune of Rs.1,48,700/- on 19.2.2015 under four receipts and made a request for registration of the flat in his name. But there was no response. Hence the complainant got issued legal notice on 20.2.2017 to the opposite parties asking them to register the flat in his name. For the said notice opposite parties gave a reply on 8.3.2017 informing that he is not entitled for registration since his nomination is not as per regulations and he was directed to obtain a legal heir certificate from Civil Court declaring him he is the sole legal heir of original allottee and submit the said certificate for transfer of registration of flat in his name.
The complainant got issued a public notice on 3.3.2017 stating that he is the nominee of original allottee late K.Sivaram for flat No.L/8/123/TF IV phase No.1992 allotted by the opposite party and if any one got any claim over the said property . To the said public notice , no objection was received as on date. The complainant submitted a representation to the opposite parties on 9.3.2018 requesting to register the flat . But there was no response. The original allottee late Sivaram was an un-married and he had no legal heirs like brothers and sisters and both of his parents were already died. Hence late K. Sivaram nominated the complainant as his nominee in the application Form submitted to the opposite parties. Now there are no legal heirs to late Sivaram and complainant as a nominee has been enjoying the possession of the flat for all these years after death of original nominee Late K.Sivaram. But opposite parties by not registering the flat in the name of the complainant as the original allottee’s nominee caused deficiency of service. Hence the present complaint.
3) Opposite parties in his written version as admitted that A.P.Housing Board allotted LIG No.L/8/12/TF, IV phase, Kukatpally to Late Sivaram and sent him a letter dated 2.9.2986 and the said Sivaram made down payment as per terms of allotment letter and entered into agreement for sale of multistoried flat and he was given physical possession of the flat on payment of interest and incidental charges in quarterly installments for registration of the flat in his name.
It is further stated in the written version that late Sivaram had not submitted any family members details to the Housing Board but at the time of entering into agreement he executed nominated the present complaint describing him as his cousin brother and the person to whom the said flat shall be transferred in the event of his death. The complainant submitted letter on 27.1.2015 with the death certificate of K.Sivaram stating that he is the nominee and whether there are any dues for payment of the same. The opposite party did not direct the complainant to pay the balance installments . But the complainant on his own paid Rs.1,48,700/- on 19.2.2015. The said amount was paid by the complainant to the credit of the account of K.Sivaram and after taking into account of said payments to the Accounts Officer of the Housing Board certified that still an amount of Rs.14,170/- is due in respect of the said flat as on 31.3.2015. The complainant on his own paid the same through ESeva in the name and to the account of the allottee and submitted the receipt with letter dated 30.6.2015. The representation of the complainant was circulated by the 2nd opposite party to the head office for necessary orders. The head office sent a file back for an enquiry whether the allottee was un-married, whether his parents and other family members are there or not etc., to re-circulate the file.
To the legal notice of the complainant reply was given on 8.3.2017 informing that as per regulations 27-II of APHB regulations nomination can be given only in favour of family members of allottee and under Sec.2F of said regulations cousin brother is not a family member and complainant was advised to obtain legal heir certificate fr[a1] om competent Civil Court declaring him as sole legal heir of late K.Sivaram and submit the same for registration of the flat in his name.
Thereafter the complainant submitted a letter dt. 19.3.2018 including public notice issued in news papers and once again repeated his request for registration of the flat. The very nomination by late Sivaram is not valid as per the regulations hence request of the complainant was not accepted. The complainant instead of making efforts for obtaining legal heir certificate from competent Civil Court approached this Forum. As per the record the initial of original allottee is’ K’ whereas that of the complainant is “P” and thus sur names are different. Under the law the nominee is only an agent / representative of legal heirs of the deceased allottee and is entitled to receive the property as an agent of legal heirs and if the allottee was not having any legal heir he ought to have executed a will in favour of the complainant. Since the complainant failed to obtain a legal heir certificate from the competent Civil Court, the opposite party has not executed registered sale deed . The opposite parties have no objection to register the flat in the name of the complainant at his cost if secure’s a legal heir certificate from a Civil Court. Hence the complaint has no merits and liable to be dismissed.
4) In the enquiry the complainant got filed his evidence affidavit reiterating material facts of the complaint and got exhibited 22 documents which are admitted. For the opposite parties there is no evidence affidavit and no documents in support of the stand taken in the written version.
5) On a consideration of the material brought on the regard the following points have emerged for consideration :-
1. Whether the opposite party caused deficiency of service to the complainant by not registering the subject flat in his name as nominee of original allottee?
2. Whether the complainant is entitled for registration of the flat in his name and for grant of compensation?
3. To what relief?
6) Point No.1: The opposite parties in the written version has admitted that Late K.Sivaram was allotted subject flat and he paid initial amount as scheduled in the application form and entered into an agreement of sale and after construction of the flat it was delivered to his possession. The opposite party has not denied the complainant’s version that original allottee late K.Sivaram died on 15.7.2000 and the complainant as nominee continuing to be in possession, occupation and enjoyment of subject flat and in fact he has been paying property tax and power supply consumption charges to the concerned departments. The claim of the complainant that he as the nominee of original allottee late Sivaram has been admitted by the opposite party but its contention is the nomination is itself is not valid because as per regulations of the Housing Board nominee should be a family member and the complainant is not a family member of original allottee Sivaram. At para 3 of page 2 of the written version the opposite parties have categorically stated that late Sivaram at the time of entering into agreement of sale of multi storied flats with the Housing Board had executed nomination nominating the present complainant describing him as his cousin brother and said flat shall be transferred in his name in the event of his death. Hence no further proof is required for the complainant to substantiate that he was nominated by the late Sivaram for the execution of sale deed in his name in the event of his death. But the stand of the opposite party is the very nomination of the complainant by the original allottee late Sivaram is not valid as he is not a family member. Had it been so what made the Housing Board not to reject the nomination of the complainant asking the original allottee to name someone from his family is not explained. The nomination of the complainant by the late Sivaram as nominee describing him as his cousin brother to whom the subject flat shall be transferred in the event of his death itself is sufficient for the opposite parties to register the flat in the name of the complainant. Having not rejected the nomination executed by late Sivaram and having to allowed the complainant be in a possession and enjoyment of the flat as nominee of late SivaRam for all these 18 years the opposite parties is estopped to say that the complainant is not entitled for registration of the subject flat in his name.
The opposite party at para 5 page 3 of the written version has categorically stated that the Head office had sent back the file to the opposite party NO.2 asking to enquire whether allottee was unmarried whether his parents and other family members are there or not etc., and to recirculate the file. Then why the opposite parties did not enquire the said facts and why report was not submitted to head office is not explained. It is evident from para 5 page 3 of written version that head office did not direct the opposite party No.2 to ask the complainant to obtain a legal heir certificate from a competent Civil Court declaring him as sole legal heir of original allottee late K.Sivaram. The material on the record has clearly proved that the complainant as a nominee of original allottee Sivaram is entitled for registration of subject flat in his name by registering the flat having accepted the nomination of the complainant as a nominee of original allottee late Sivartam and thereby caused deficiency of service. Accordingly the point is answered in favour of the complainant.
7) Point No.2:- Since the opposite party caused deficiency of service having not registered the subject flat in the name of the complainant. Hence the complainant is entitled for reliefs of registration of the flat and compensation. Accordingly the point is answered in favour of the complainant.
8) PointNo.3:- In the result the complaint is allowed in part directing the opposite parties:
1) To register the subject flat bearing No. L/8/12/TF, IV –Phase No.1992 in the name of the complainant within two months from the date of service of order at the cost and expenses of complainant.
2. To pay a sum of Rs.10,000/- as compensation to the complainant for causing mental agony and inconvenience by not registering the flat.
3. To pay a sum of Rs.5,000/- towards cost of this complaint.
Time granted for compliance is thirty days from service of this order.
Dictated to steno transcribed and typed by her and pronounced by us on this the 14th day of August, 2019.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESS EXAMINED
NIL
Exhibits filed on behalf of the Complainant:
Ex.A1 - Copy of Receipt issued by A.P.H.B, dt.16.1.1981
Ex.A2 – Copy of .Allotment letter issued by A.P.H.B
Ex.A3 – Copy of Payment of quarterly installment intimation letter
Ex.A4 – Copy of certificate of death dt.16.8.2000
Ex.A5 – Notice of property Tax
Ex.A6 – Miscellaneous receipt
Ex.A7 – Property tax demand notices cum cash - challan
Ex.A8 - Property tax demand notice, dt. 5.9.2008
Ex.A9 – GHMC property tax bill 2010 to 2011, dt 31.8.2010
Ex.A10 – GHMC property tax bill 2011 to 2012, dt.13.5.2011
Ex.A11 to A13 – Mee-seva property tax receipts.
Ex.A14 & A15– E- seva payment of division name western
Ex.A16 - AP. On line original receipt of property tax.
Ex.A17 – GHMC property Tax Collection receipt , dt.14.3.2017
Ex.A18 – Legal notice , dt.27.2.2017
Ex.A19 – Postal acknowledgement
Ex.A20 – Reply legal notice , dt.8.3.2017
Ex.A21 - Letter to the opposite party by complainant
Ex.A22 – Special Power of Attorney for a Court case, dt. 2.6.2018.
Exhibits filed on behalf of the Opposite parties:
Nil
MEMBER PRESIDENT
