BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD.

 C.C.No.9/2012

Between:

N.Jagannadham,S/o.N.Kistaiah,

Aged 72 years,

Occ:Retired  Government Servant,

R/o.H.no.12-5-150/3A,

South Lalaguda,

Secunderabad- 500 017.                                    …. Complainant

       And

1.Vice Chairman & MD

A.P.Housing Board, Gruhakalpa,

Mukaramjahi Road,

Hyderabad  500 001.

2. The Executive Engineer (Hg.)

North Division,

A.P.Housing Board,

Bharatnagar Colony,

Hyderabad – 500 018.                                         … Opp.parties

Counsel for the Appellant                :         Mr. M.V.Ramana

Counsel for the Respondents      :      Mr.B.Janardhan  

  QUORUM: SMT.M.SHREESHA, HON’BLE INCHARGE PRESIDENT,

                                           And 

  SRI S.BHUJANGA RAO, HON’BLE MEMBER.

                        WEDNESDAY, THE SIXTH  DAY OF FEBRUARY, 

TWO THOUSAND THIRTEEN.

Oral Order  : (Per Sri S.Bhujanga Rao, Hon’ble Member).

                                 ***

             The complainant  filed the complaint under  Section 17(a)(i) of Consumer Protection Act, 1986 against  the opposite parties   seeking direction to  opposite parties to allot and register the land appurtenant to Flat no.B-12 F/4 on the Southern side admeasuring 80 sq. yds., as per the enclosed schedule/plan, by collecting the cost therefore   as indicated in G.O.Ms.no.6 and to pay costs  to  the complainant .

        The brief case of the complainant as  set out in the complaint is as follow:

The complainant has been allotted flat  bearing no. B-12/F4(LIG) Municipal No.7-1-621/504 (in short flat) situated in the ground floor at Sanjeevareddy Nagar Colony, Hyderabad,  under Hire Purchase Scheme of the opposite party no.1  and a Lease cum  Sale Agreement was executed in 1970, whereby  sale consideration was agreed to be paid in 30 years, in  instalments. The complainant paid the entire sale consideration by 1994 and a regular registered  Sale Deed bearing document no.3009/1994  was executed on 15.10.1994.

        At the time of allotment of flat to the complainant, the land appurtenant   to the  building   did not constitute property  conveyed  and the occupants of the  ground  floor  portions  are not entitled to  use the same without previous permission of the  Chairman. During the year 1992, the Government of Andhra Pradesh, Housing Department  had issued  regulations vide G.O.Ms.No.48(HB2)  Housing,  whereby the use of  appurtenant land  by the occupiers of the flats  allotted  by the Housing Board were regulated.   The complainant approached the Housing Board, with his application for sale of appurtenant  land to his  flat, admeasuring about  80 sq.yds.   However, there was no  response from the Housing Board. The complainant renewed  his representation on 29.12.2007  through registered post  and on 3.12.2008  opposite party no.2 issued a letter  to the effect that A.P.Housing Board had not taken any decision regarding sale of appurtenant lands  and the matter is referred to the Government and orders are awaited. The complainant has been awaiting favourable orders from the opposite parties, but to no avail. However, the Government of A.P., Housing (HB-2) Department issued G.O.Ms.No.6 dt.29.3.2011  permitting the Housing Board to sell  stray pieces of land  to the adjacent land owners/allottees in the Sate, as per the conditions laid down in the G.O.  Basing on the said G.O., the complainant again submitted his representation to opposite party no.1 to which the opposite party no.2 issued a letter dt.23.6.2011 stating that the said G.O is inapplicable to the allotment of appurtenant land  in S.R.Nagar, Hyderabad.

        The above in action on the part  of the opposite parties, constitute deficiency in service despite there being   clear  and unambiguous  instructions in the G.O.Ms. No.6 dt. 29.3.2011, in regard to allotment of appurtenant land to the owners of the adjoining  flats.   Hence the complaint. 

        Resisting the complaint, the opposite parties filed written version  denying the material allegations made in the complaint  and admitting that  the subject flat in question was allotted to the complainant under Hire Purchase Scheme during the year 1970  and mode of payment of sale consideration is  in 30 years instalments and the complainant had paid the entire sale consideration. These opposite parties contended that the  said flat is  sold  to the complainant on the basis of Hire Purchase System (Low Income Group Housing Scheme)  and an agreement to that effect was  executed by the complainant in favour of the  Vice Chairman of the Housing Commissioner, Andhra Pradesh Housing Board on 22.1.1970.  In pursuance of the said Hire Purchase Agreement, the A.P.Housing Board  has executed a registered  sale deed in respect of the above said flat in document bearing no.3009/1994 dt. 15.10.1994,  in favour of the complainant,  by fulfilling all the formalities and  transferred the subject flat to the complainant. The complainant shall be the  owner of  subject flat and the land appurtenant  to the flat shall remain and continued to be the absolute property of the A.P.Housing Board and the complainant shall have no right, title claim  or interest over the same. The complainant shall have common right over  water, drainage, electricity connection and he shall  have no exclusive right, whatsoever, over them and he shall not be entitled to interfere or meddle with or alter the  alignment or mode of connection detrimental to the usage  and enjoyment of the remaining allottees, likewise,  the staircase and the land on which  the building stand, shall be  the common property  of all the flat owners including the complainant.  No flat owner shall be entitled to make additional constructions on the roof of the building.  G.O.Ms.No.48(HB 2 )Housing  dt. 20.4.1992  shall apply to the flats constructed under multi storied  building scheme  of A.P.Housing Board.    The  said  G.O. is not for sale of appurtenant  land  as claimed by the complainant.  The complainant himself understood the scope of the above said G.O. as such, not entitled for the  relief  as sought for. 

        These  opposite parties further contended that  the G.O.Ms.no.38 dt.30.5.1997  is not applicable to the flat owners. Knowing fully well  that the above said G.O. is not applicable, the complainant has given representations twice for allotment of appurtenant land, on payment of cost, to be fixed by the Board. In response to the same, A.P.Housing Board vide letter  dt.3.1.2008, informed the complainant that the A.P.Housing Board  has not taken any decision regarding the sale of appurtenant  land, since the matter was referred to the Government and the orders are awaited.

        These  opp.parties  further contended that vide G.O.Ms. no.6  dt.29.3.2011 the Government issued  revised orders prescribing the procedure for disposal of the stray pieces of land to the adjacent allottees of house owners.  The said  G.O. is applicable for independent houses only but not for flats.  These opposite parties further contended  that the appurtenant land existing in the premises of Block no.12 is meant  for only to the  extent of flat owners of Block no.12 and as per G.O.Ms.No.48  if any  of the flat owners desires to construct any compound wall or any structure in the premises of the ground floor,  allottee has to take prior permission from the   Housing Board and also  according to Municipal By Laws  and also to take consent  from other flat owners of the same  block. The complainant has filed false complaint  with an ulterior motive to have illegal gain and to grab the appurtenant land, which is vested with the Housing Board only.

         Opp.parties  further contended that there is no deficiency in service on their part as alleged by the complainant and  the complainant deliberately made false  allegations. There is no valid reason for the complainant to approach this Commission. The complaint is therefore liable to  be dismissed with costs. 

        During the course of enquiry, in order to prove his case, the complainant filed his evidence affidavit and got marked  Exs.A1 to A17. On behalf of the opposite parties, the Executive Engineer of opposite party no.1  filed evidence affidavit and Exs.B1  to B6  are marked. 

        We heard the counsel for both the parties.   and perused the entire material placed on record by  both the parties. 

        Now the points that arise for consideration are:

1). Whether  there is any deficiency in service on the part of the opposite parties?

        2). Whether the complainant is entitled to the reliefs sought for ?

Point nos.1 and 2  : It is not in dispute that   flat  bearing no. B-12/F4(LIG) Municipal No.7-1-621/504 situated in the ground floor with area of 522 Sq. ft.  at Sanjeevareddy Nagar colony, Hyderabad   was allotted to the complainant under Hire Purchase Scheme  during the year 1970  and that the complainant has paid the entire sale consideration in pursuance of  this Hire Purchase Agreement dt. 22.1.1970.   A.P.Housing Board  had  executed a registered Sale Deed in respect of  the said flat in favour of the complainant on 15.10.1994  and since then the complainant has been enjoying the said flat with  absolute rights.  

The case of the complainant is that at the time of original allotment  of flat in 1970,  it is clearly mentioned in the allotment order no.347/K3/70-3 Dt.22.1.1970 that the allottee of the ground floor  flat  shall be  entitled to use open land  around the flat for gardening only.  During 1992, the Government of A.P.,Housing  Department  had  issued regulations  vide G.O.Ms. No.48 (HB2)  Housing dt.20.4.92, whereby  the appurtenant land by the occupiers of the flats allotted by the Housing Board were to be  regulated. As per the said G.O. the Housing Board is  empowered to grant permission to the flat owners in the ground floor for construction of compound wall, on receipt of the application, for the purpose. The complainant approached the Housing Board  with his application  for  sale of appurtenant land of his flat admeasuring 80 sq.yards.  In 1997 the Government of A.P, Housing (HB2) Department issued G.O.Ms.no.38 dt.30.5.1997,  wherein permission was accorded by the Government to the Housing Board for sale of stray pieces of land admeasuring 100 sq.yards and above, as also, for sale  of such land less than 100 sq.yards other than  roads/foot paths subject to the conditions  enumerated therein.  Based on the said G.O., the complainant   approached opposite party no.1 again, representing his case for allotment of appurtenant land on payment of costs.  The A.P.Housing Board did not respond to the representations of the complainant.  Subsequently the Government of A.P.,  Housing  (HB2) Dept. issued G.O.Ms.no.6 dt. 29.3.2011 whereby the Housing Board was permitted to sell the stray pieces of land to the adjacent   house   allottees/house owners  in the State, as per the conditions laid down in the G.O.  Basing on the said G.O., the complainant again  submitted his representation  to opposite party no.1  to which the opposite party no.2  issued a letter dt.13.6.2011 stating that the said G.O. is inapplicable to allotment of appurtenant  land in S.R.Nagar, Hyderabad.  The above in-action on the part of the opposite parties constitute deficiency in service.

        On the other hand  the contention of the opposite parties is that the G.Os referred to  above are not applicable  to the flats  and the GOs apply to individual houses, as such, the complainant is not entitled to reliefs sought for in the  complaint. 

        The complainant filed copies of the above referred three G.Os, which are marked  as Ex.A3, A5 and A13( =Ex.B2,B1 and B5) . From a combined  reading of all the three G.Os , it is clear that as per G.O.Ms. No.38  dt.30.5.1997 (ExA5) the permission was accorded by the Government to the   Housing Board for sale of stray pieces of land admeasuring 100 sq.yards and above, as also, for sale of stray pieces of  land less than 100 sq.yards other than roads/footpaths subject to the conditions enumerated therein.  The said G.O.  is not applicable to the flat owners and it  applies only to the independent houses.  Under G.O.Ms.no.6 dt.29.3.2011  vide Ex.A13,  the Government issued revised orders prescribing the procedure for disposal of  stray  pieces of land to the adjacent house allottees/house owners in the  State. The said G.O is applicable to the independent houses only  but not for flats. The same fact was informed to the complainant by the opposite party  vide its letter dt.23.6.2011. 

         As per G.O.Ms.No.48, if any of the flat owner  desires to construct any  compound wall or any structure in the premises of the ground floor, allottee has to take prior permission from the Housing Board and also according to the Municipal By Laws  and also to take  consent from the other flat owners of the same block executing the same on non judicial stamp paper worth Rs.100/-  and submit before the Housing Board. 

        It is therefore clear that the G.Os,  on which the complainant is relying to get the relief sought for in the complaint, are not applicable to him.   The opposite party has categorically denied the contentions of the complainant in the representations that he was given possession  of the open land around flat for being used for gardening purpose and such other domestic purposes. 

        As seen from Ex.A2, Sale Deed executed in favour of the complainant   with regard to the flat allotted to him by the Housing Board,  the complainant shall be owner of the schedule property therein and the land  appurtenant  to flat shall remain and  continued to be   the absolute  property  of the  A.P.Housing Board and the complainant shall have no right, title claim or interest over the same and that the complainant shall have common right over water, drainage, electricity connection and he shall have no exclusive right, what so ever, over them and he shall not be entitled  to interfere or meddle with or alter  the alignment or mode of connection detrimental to the usage  and enjoyment of the remaining flat allottees like wise the stair case  and  the land on which the buildings stand shall be the common property of all  the flat owners including the complainant.   

        For the afore said facts and circumstances, there is no deficiency in service on the part of the opposite parties.  Having regard to the facts and circumstances of the case, the complainant  does not fall within the definition of ‘consumer’ as defined under Section 2(1)(d) of the Consumer Protection Act. The complainant is therefore not entitled to any of the reliefs sought  for in the complaint .

        In the result, the complaint is dismissed, but in the circumstances of the case, there shall be no order as to costs.

                                                                INCHARGE PRESIDENT

                                                                        MEMBER

Pm*                                                                  Dt. 6.2.2013

                                APPENDIX OF EVIDENCE

                                Witnesses examined.

For the complainant: nil                        For the opp.parties: nil

Affidavit evidence of complainant           Evidence Affidavit of

in lieu of Chief Examination is filed.         Opp.parties  is filed

Exhibits marked on behalf of the complainant :

Ex.A1 :   Copy of  Allotment letter dt. 22.1.1970

Ex.A2 :   Copy of Sale Deed  3009/94 dt. 15.10.1994

Ex.A3 :   Copy of   G.O.Ms.No.48(HB2)Housing  dt. 20.4.1992     

 Ex.A4 : Representation of complainant to opp.party no.1 dt.22.4.1994

Ex.A5  : Copy of   G.O.Ms.No.38,    dt. 30.5.1997

Ex.A6  : Representation of complainant to opp.party no.1 dt.9.5.1998

Ex.A7  : Representation of complt. to opp.party no.1 dt.29.12.2007

EX.A8 :   Reply dt. 3.1.2008  given by opp.party no.2 to  complainant.

Ex.A9  :  Representation of complt. to opp.party no.2 dt.21.7.2008

EX.A10 :

Ex.A11 : Letter  dt. 18.8.2008 from opp.party no.2 to the Complainant

Ex.A12 :Lr. dt. 31.10.2008 from Opp.party no.2 to the complainant.

Ex.A13 : Copy of   G.O.Ms.No.6,    dt. 29.3.2011

Ex.A14  : Representation of complt. to opp.parties  dt.15.6.2011

Ex.A15 :  Reply lr. dt.23.6.2011  by opp.party no.2 to the Complt.

Ex.A16 : Legal notice issued by  complt. to opp.parties dt.17.10.2011 

Ex.A17 : lr. dt. 18.11.2011  from the office of Supdt. Of Post Offices to

              the Advocate for the complainant

Exhibits marked on behalf of the opp.parties :

Ex.B1 : Copy of   G.O.Ms.No.38,    dt. 30.5.1997

Ex.B2 :  Copy of   G.O.Ms.No.48(HB2)Housing  dt. 20.4.1992    

Ex.B3  : Lr.Dt.14.7.2008 from opp.party no.2 to complainant .

Ex.B4  : Lr.Dt. 18.8.2008  from opp.party no.2 to complainant .

Ex.B5  : Copy of   G.O.Ms.No.6,    dt. 29.3.2011

Ex.B6   : Lr.Dt. 23.6.2011  from opp.party no.2 to complainant .

                                                                 INCHARGE PRESIDENT

                                                                          MEMBER

Pm*                                                                  Dt. 6.2.2013