Orissa

Cuttak

CC/74/2019

Dr Raghunath Behura - Complainant(s)

Versus

Cuttack Development Authority - Opp.Party(s)

N B Dass

22 Feb 2021

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

 

   C.C.No.74/2019

 

 Dr. Raghunath Behura,

S/O:Late Narayan Chandra Behura,

A/41,Sector-7,C.D.A,

P.O:Abhinav Bidanasi,P.S:Markatnagar,

Cuttack-753014.                                                                         … Complainant.

 

Vrs.

1.      Chairman,

Cuttack Development Authority,

P.O:Arunodaya Market,P.S:Madhupatna,

Dist:Cuttack.

 

2.      Secretary,

Cuttack Development Authority,

P.O:Arunodaya Market,P.S:Madhupatna,

Dist:Cuttack.

 

3.    Chairman,

Odisha State Housing Board,

Sachivalaya Marg,

Bhubaneswar,Dist:Khurda.

 

4.   Secretary,

Odisha State Housing Board,

Sachivalaya Marg,

Bhubaneswar,Dist:Khurda.… Opp. Parties.

 

Present:               Smt. Sarmistha Nath, President (I/C)

                                Sri  L.N.Das Choudhury,Member

                               

 

Date of filing:    12.07.2019

Date of Order:  22.02.2021

 

For the complainant          :    Sri Nayan Bihari Das,,Adv. & Associates.

For the O.P No.1. & 4        :           None.

For O.P No.2                        :    S.Mohanty,Adv. & Associates.

For O.P No.3                        :    Mr. D.C.Dhal,Adv. & associates.

  

Smt. Sarmistha Nath,President (I/C).

The complainant has filed this complaint before this Forum against the O.Ps for redressal of his grievances U/S-12 of the C.P.Act,1986  in terms of the prayer made in the complaint petition alleging deficiency in service provided and unfair trade practice adopted by the O.Ps.

1. The case of the complainant in short is that the complainant applied for a residential plot in Abhinav Bidanasi,Cuttack.  The O.P No.1 & 2 in the year 1991 received application to which an acknowledgement receipt was issued.  The acknowledgement receipt is Annexure-1.

After receipt of application form, the O.P No.1 & 2 decided to allot the plot by way of drawing lottery, accordingly complainant was intimated vide their letter no.4367/CDA dt.10.3.1992 to remain present on the said date.Copy of the letter no.4367/CDA dated 10.3.1992 issued by O.P No.2 is Annexure-2.

Thereafter vide letter no.16845 dt.18.8.1995 the O.P No.2 intimated the complainant that a plot has been selected to be allotted provisionally in Abhinav Bidanasi project Area,Cuttack in his favour.Further the O.P No.2 vide his letter no.17882 dt.13.8.2001 intimated the complainant about the cost of the plot and requested to execute an agreement.Copies of the letter no.16845 dt.18.8.1995 and letter no.17882 dt.13.8.2001 issued by O.P No.2 are Annexure-3 series.

As perletters under Annexure-3 series, the complainant deposited Rs.12,338/- on 13.12.2001 after which a pay in slip was issued on behalf of the O.P No.2 showing allotment of plot No.11-3D/1215 bearing registration No.34-B-1036 in Sector-11,Bidanasi Project Area,Cuttack.Copy of pay in slip dt.13.12.2001 is Annexure-4.

The complainant deposited Rs.99,923/- against the allotted plot to which possession handing over memo was issued vide letter no.669 and 670 dt.16.1.2002 by the O.P No.2 to the complainant.Copy of the letter no.669 and 670 dt.16.1.2002 issued by O.P No.1 and possession handing over memo are Annexure-5 series.The O.P No.2 vide his letter dt.8.10.2004 has also given permission for construction of a double storied residential building on plot No.11-3D-1215 in Sector-11 situated in Abhinav Bidanasi Project Area,Cuttack.Copy of the permission letter dt.8.10.2004 is Annexure-6.

In order to construct a building the complainant availed a loan from State Bank of India,Cuttack City Branch,College Square,Cuttack but due to his illness and other unavoidable circumstances he could not construct the building and was forced to repay the loan amount and NOC(No Objection Certificate) was issued by the concerned bank.Copy of the NOC is annexure-7.

The complainant had submitted an affidavit before O.P No.4 disclosing therein that he is an applicant for an H.I.G plot before O.P No.3 & 4 and had deposited Rs.66,000/- with them.Copy of the application form, affidavit dt.6.2.1999 and money receipt are Annexure-8 series.O.P No.4 allotted a HIG core house vide his memo no.9186 dt.17.5.2000 and delivered the possession of the said land on 18.5.2000 and an agreement dt.16.5.2000 for advance possession of house at Abhinav Bidanasi,Cuttack was also executed.Copies of the allotment letter vide Memo no.9186 dt.17.5.2000 and agreement dt.16.5.2000 are annexure-9 series.

After getting the possession from O.P No.3 & 4, the complainant constructed a building over the said allotted plot in the year 2000 and is staying there peacefully till date.

The complainant was also allotted a plot at Sector-10 in the name of his wife Pravati Behura by O.P No.2 but after allotment of the plot due to financial difficulty the complainant could not construct a house over the said plot which was subsequently transferred to a third party after obtaining due approval from O.Ps 1 & 2, as such no second plot is lying in the name of the complainant or his wife.The O.P No.2 vide his letter no.17400 dt.14.12.17 without any cause and due verification issued a notice to the complainant to show-cause as to why the plots allotted under plotted housing scheme in Sector-1 and 11 within Abhinav Bidanasi Project Area shall not be cancelled,practically when the complainant was not having a plot in Sector-1.Copy of the letter no.17400 dt.14.12.2017 issued by O.P No.2 is annexure-10.

The notice issued under Annexure-10 is totally misconceived and beyond the facts as no plot was allotted in Sector-1 either in the name of the complainant or his wife.The plot allotted by O.P Nos. 3 & 4 has no nexus or connection with the plots belonging to O.Ps 1 & 2 since both the organizations are totally different from each other and there is no bar for allotment of plot by both the organizations.

The complainant after receiving the notice under Annexure-10 filed his show-cause reply5.1.18 denying all the allegations made in the show-cause.Copy of the show-cause reply dt.5.1.18 is annexure-11.

The letter issued under Annxure-10 is faulty and no real fact was given in that letter which would be evident from the reply under Annexure-11 and no action was taken under Annexure-11.

The plot allotted to the complainant by O.Ps 3 & 4 under Annexure-9 series over which the complainant is staying after constructing a building for last 18 years but a deed has not yet been executed by the O.P No.4 in spite of several requests and personal visit for which the complainant is facing difficulties as he is unable to avail the facilities normally attached to a residential building. The O.P No.3 & 4 for reasons best known to them have remained silent over the matter which amounts to deficiency of service thereby putting the complainant into mental tension and agony.

So the complainant prayed for a direction to O.P No.1 & 2 to issue no objection certificate relating to any encumbrance and for a direction to O.P No.3 & 4 to execute the lease deed in favour of the complainant in respect of land allotted under Annexure-9 series relating to house No.A-41 at Bidanasi,Cuttack in favour of the complainant within a stipulated time and for a direction to O.Ps to pay Rs.5,00,000/- towards compensation for mental tension and agony for causing deficiency in service with litigation cost of Rs.50,000/- to the complainant.

2. The O.P No.2 entered appearance and filed the written version stating that the case is neither maintainable in law nor in facts as well as the case is bad for non-joinder and misjoinder of parties.  The state Govt. being a necessary party has not been added as party in this case and the complaint is not coming under the purview of C.P.Act,1986.      G. A. Department passed resolution dt.30.1.2015 wherein instructions has been issued to B.D.A,O.S.H.B,C.D.A and G.A. Department to cancel multiple allotments, on the basis of their false affidavit or misleading information in violation of specific schematic provisions.  So also instructed them to take criminal action against those allottees.  As multiple allotments pointed out by task force has been made, the finance department was instructed to conduct a special audit to all left out cases of multiple allotments.  The State Govt. In G.A.Deptt. issued modalities for implementation of the recommendations of the Task Force vide G.A.Department notification dt.6.5.2015.  Copy of the resolution of G.A Department dated 30.1.2015 and G.A.Department notification dt.6.5.2015 are Annexure-A/1 series.

The O.P No.2 further averred that the complainant and his wife are bound by brochure conditions and both have suppressed material facts and have given false affidavit.Both of them are entitled to allotment of one plot but they managed two plots and one house in C.M.C area and they are liable for criminal prosecution and their allotment is liable to be cancelled, hence show cause notice has been issued vide Annmexure-10 but the complainant has not replied to the show cause notice.

The complainant has withheld the fact that he has already been allotted a plot provisionally by C.D.A vide its letter dt.18.8.1995 while applying a house before O.P No.4 on 6.2.1999 and Pravati Behera, the wife of the complainant with holding the fact that one plot already allotted by C.D.A in the letter dt.18.8.95 in favour of her husband so also withholding the fact that her husband applied for a house on 5.2.1999 before OSHB, applied to CDA in pursuant to fresh advertisement for allotment of ‘D’ category plot on 31.12.1999.C.D.A provisionally allotted a plot in favour of said Pravati Behera on 30.1.2002.Final allotment has been issued by C.D.A in her favour on 30.5.2003 in respect of plot No.10-3D-1218, in Sector-10 of Bidanasi Project Area.Final allotment was delayed due to her default in payment of outstanding dues.Finally C.D.A gave possession of said plot to her on 28.11.2003.Subsequently on 12.1.2001, she made an application to transfer the said plot to a 3^rd party.She has withheld the fact that one plot bearing No.3D/1215 in Sector-11, Biadanasi Project Area was allotted by C.D.A and another house bearing No.A-41k in Sector-7 was allotted by OSHB in favour of her husband, while applying for 3^rd party transfer.As this fact was not within the knowledge of C.D.A, it allowed third party transfer in favour of one Jajati Keshari Samanta Singhar.The copy of application form along with affidavit for allotment of land, application form along with affidavit for 3^rd party transfer and allotment letter of said Pravati
Behura is filed as Annexure-A/2 series.

3. The O.P No. 1 & 3  have received notices but did not appear and they were set exparte.  O.P No.4 though appeared through its counsel but did not file written version and was set exparte.

4.On 11.1.2021, the complainant filed a memo stating therein that he does not press the prayer relating to NOC by O.P Nol1 & 2, so it needs no adjudication as not pressed.Only prayer remains to be decided with regard to prayer for a direction to O.P No.3 & 4 to execute the lease deed in favour of the complainant.

5.We have heard from the counsels for the complainant and O).P No.1, gone through the documents and papers filed by the parties carefully.We have found that the O.P No.3 & 4 (Orissa State Housing Board) vide Aannexure-9 series allotted a house bearing No.HIG A-41 at Bidanasi,Cuttack in favour of complainant, executed an agreement on 16.5.2000 for advance possession of house and the possession of the house was handed over to the complainant.During the course of hearing, learned counsel for the complainant submitted that after getting the possession of the core house, the complainant further constructed a fully furnished house for his residential purpose since 21 years but the lease deed has not been executed by the O.P No.4 in spite of several requests which amounts to deficiency in service thereby putting the complainant into mental tension and agony.He further submitted that since the O.P No.3 & 4 did not prefer to file any written version, it proves beyond reasonable doubt that they have nothing to say on the allegation of the complainant and their silence can be construed as their absolute admission to the complainant’s claim of their deficiency in service.Since the O.P No.3 & 4 did not participate in hearing, we conclude that they have nothing to say in their favour and we are constrained to believe the uncontroverted statement of the complainant.We are of the considered view that the house was allotted by O.P No.3 & 4 in favour of the complainant and as the possession was delivered after payment of sale price, but the lease deed was not executed.So the long delay in execution of lease deed amounts to deficiency of service by O.Ps 3 & 4 as a result, the complainant has suffered from mental agony for which the O.Ps no.3 & 4 are jointly and severally liable for the same.

                                                                                ORDER

The case of the complainant is allowed exparte against the O.P No.3 & 4 and they are directed to execute the lease deed in favour of complainant in respect of plot MIG A-41,Bidanasi,Cuttack and pay compensation of Rs.20,000/-(Rupees twenty thousand) only and litigation cost of Rs.20,000/-(Rupees twenty thousand) onlywithin a period of 45 days from the date of this order.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 22^nd day of February,2021 under the seal and signature of this Commission.

                                                                                                                                                                                        

Smt. Sarmistha Nath

President (I/C)

                                                                                                           

 

Sri L.N.Das Choudhury

Member.