Heard the learned counsel for both the sides.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The factual matrix leading to the case of the complainant is that the complainant applied to OP No.1 & 2 in the year 1991 to allot a plot and on 10.03.1992 a letter was issued by OP No.2 allowing complainant to allot a core house. On 18.08.1995 the complainant was allotted a plot in Abhinav Bidanasi on payment of due consideration and execution of the agreement was made. The complainant waited upto 2001 but he has only got the letter to deposit Rs.12,338/- further and the complainant deposited same. He was allotted a plot bearing No. 11-3D/1215 in Sector-11,Bidanasi Project Area. Again complainant was asked to deposit Rs.99,923/- against the said plot vide the letter dtd.16.01.2002 issued by OP No.2. However, complainant no.2 asked for another plot in Section-11 CDA for allotment in her name in 1999 and got it. But that was transferred by her to third party with permission of CDA.
4. The complainant alleged that he availed loan from SBI Cuttack City Branch,Cuttack to construct the house but due to delay in delivery of possession of plot by CDA he filed another petition before the OP No.3 & 4 to allot HIG plot in his favour and deposited Rs.66,000/- on 06.02.1999. The OP No.4 allotted a HIG Core house on 17.05.2000 and delivered possession on 18.05.2000. After getting permission from OP No.3 & 4, the complainant constructed a building over the said allotted plot but OP No.3 & 4 did not execute any registered sale deed in favour of the complainant. The complainant also asked the OP No.1 & 2 to issue NOC but they also denied to issue NOC.
5. Since, there is no obstruction of issue of NOC, the role of OP No.1 & 2 for sitting over the matter of the request of the complainant as per allegation of the complainant is deficiency in service on his part. At the same time the OP N.3 & 4 being a separate entity have not executed registered sale deed although there was agreement between the parties stating that the documents like registered sale deed would be executed after delivery possession of the plot. So, showing deficiency in service on the part of OP No.3 & 4, the complaint was filed.
6. The OP No.1 & 3 are set-exparte. OP No.4 appeared but did not file written version and as such they are ex-parte.
7. It is also revealed from the record that OP No.2 filed the written version stating that the case is not maintainable because it is bad for non-joinder of necessary party. Further it is stated that the G.A. Deptt. of State of Odisha has issued Resolution dtd.30.01.2015 stating that BDA/CDA/OSHB, GA Deptt. have cancelled multiple allotment if it is made on the basis of false information and misleading information and further directed to take criminal action against them. The OP No.2 further averred that the complainant and his wife are biased by the brochure issued by the OP. Both of them are entitled to allotment of one plot but they managed to get two plots and one house in CMC area and they are liable for criminal prosecution of their allotment which is liable to be cancelled, The complainant has withheld the fact that he has been already allotted a plot provisionally by CDA vide its letter dtd.18.08.1995 while applying a house before OP No.2 on 06.02.1999 in the name of his wife by the time final allotment was made by CDA and the complainant has already acquired a house allotted by OP No.4. When the final allotment was issued by CDA.On 30.05.2003 the complainant was already in possession of the dwelling house on the plot purchased from OP No.4. Since, all formalities have not been complied by complainant, OP No.1 & 2 have not issued NOC and OP No.3 & 4 similarly did not execute registered lease-cum-sale deed due to want of production of NOC from OP No.1 & 2.
8. After hearing both the parties, learned
District Forum has passed the following order:-
Xxxx xxxxx xxxxxxx
“The case of the complainant is allowed exparte against the OP 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) only within a period of 45 days from the date of this order.”
9. Learned counsel for the appellant for OP No.3 & 4 submitted that learned District Forum have committed error in law by allowing the complaint without giving opportunity to Op No.3 & 4 to place their claim. According to him the complainant has suppressed the material fact of allotment of plot in Sector-11 by OP No.1 & 2. Since, there is suppression of material fact and same fact was revealed after allotment of core house by the complainant, they did not proceed further for execution of lease deed. According to him there is allotment of plot by OP No.1 & 2 and also allotment of core house by OP No.3 & 4 to complainants. He submitted that if one person has got one plot duly allotted by CDA, he can not ask for another plot or more allotted by OSHB-Appellant. So, he submitted that the matter has not been properly placed before the learned District Forum and complainant has obtained the ex-parte order. He submitted either to remand the case to learned District Forum for fresh adjudication or dispose the complaint by dismissing same by allowing appeal. Learned counsel for the OP No.1 & 2 also added that there is no order against them passed by the learned District Forum for which they have not filed appeal.
10. Learned counsel for the respondent –complainant submitted that the CDA is completely separate entity and the CDA(OP No.1 & 2) has no any relationship with the OSHB( OP No.3 & 4) He submitted that as per the date chart the complainant had applied for plot in 1995 to the CDA and he was allotted land in 2001. Before allotment, in order to get a house he has applied to OP No.3 & 4 and was allotted a core house. After the allotment of core house by the OP No.3 & 4 he also got it to full fledged house after due permission by OP No.3 & 4 and stayed there for last 18 years. The OP No.1 & 2 gave permission much later. Since, they have already got two plots in CDA, he sold away one plot allotted by OP No.1 & 2, of course with the permission to OP No.1 & 2 as per its norms. He submits that in CDA out of two plots one plot was sold out and there remained one plot. Therefore, there is no any infraction of rule. The OP No.3 & 4 have played mischief with the complainant for not executing the lease-cum-sale agreement of sale and as such the complainant is put harassment and mental agony. He supports the impugned order.
11. Considered the submission of learned counsel for respective parties, perused the impugned order and DFR.
12. It is admitted fact that the complainant has applied vide Ext.1 series which show that the complainant has applied for a plot on 9.5.91 to OP No.2. Annexure-2 shows that on 7.2.1992 he was asked to remain present for lottery. Then Annexure-3 series show that on 8.8.2001 he was asked to deposit money for Rs.3040/- and also he has asked to deposit Rs.12,038/- on 13.08.2001. Accordingly plot was allotted to him by OP No.1 & 2 in 2001. Annexure-5 shows that further cost of Rs.99,923/- was asked to be deposited and he deposited same. Annexure-6 shows that he was allowed to construct double storied building on such plot.
13. Annexure-8 series shows that the complainant has made another application on 5.2.1999 to OP No.3 & 4 for allotment of a core house vide HIG-41 A on payment of Rs.16,000/- which was allotted. Possession was handed over on 8.5.2000. Annexure -10 shows that a letter was issued to the wife of the complainant to show cause on 14.12.2017 why a 2nd house was allotted in favour of the complainant No.1 in Bidanasi Project. Annexure-11 shows that the wife of the complainant replied denying the allotment.
14. On the analysis aforesaid documents of the complainant it is found that the complainant has got two plots allotted by the CDA in 1992 but got only permission to construct the house after depositing the money in 2001. On the otherhand OP No.3 & 4 allotted one core house to the complainant in 1999 and after obtaining permission he has constructed house thereon . There is no document filed by complainant to show any relationship between CDA and OSHB although the projects are in Abhinab Bidanasi. Therefore, it is found that when the plots are allotted in CDA but complainant waited till 2001 to get permission to construct house. it is quite natural for him to apply to OSHB in 1999 to get a core house for immediate construction of house. It must be remembered that a person in need of a house can not wait years together to stay outside at the cost of huge rent payable to the landlord. So, the question of allotment of two plots under the CDA or one core house under OSHB is not crux of matter.
15. The OP No.2 has filed the written version and documents. It appears from his written version that the wife of the complainant has got a plot allotted in D category in CDA in 1999 vide Regn. No.34/D-2586-38 basing on affidavit dated 27.12.1999 filed by he wife of the complainant. The affidavit filed by complainant show that neither she nor her husband owned or possessed any residential house at CDA. But at the same time it appears that the plot was allotted “D” category in CDA and it was sold away in 2011 to 3rd party with permission of the CDA. When the affidavit is filed, there is no query made by OP No.2, whether the complainant no.1 or No.2 has got any other plot. So, the entire burden on the complainant No.2 has not been discharged. However, story of OP No.2 is not to be discussed more as he bears no liability by the order of learned District Forum. On the date of filing of the case complainant no.2 has already transferred the allotted land to with the permission of the CDA.
16. Now only question arises whether the liability of the OP No.3 & 4 still persists as per the order of the learned District Forum. The agreement between the OP No.3 & 4 in one hand and complainant on the other is very crucial. The clause-6 of the agreement is as follows:-
“ That on compliance of all the terms and conditions of this agreement the first party shall at the cost of the second party execute and register a deed of sale in favour of the second party conveying the title confirming possession and all other rights and interests it has in the demised house in favour of the second party and on execution of the sale deed the second party shall become the absolute owner of the house and shall become lessee under the Governor of Orissa and the first party shall not obstruct the possession of peaceful enjoyment of the property by the second party in any manner.”
The above agreement shows that OP No 3 & 4 after cost received and confirming possession has to execute sale deed to confer the ownership of the house upon the complainant. As per the clause-6, the OP No.3 & 4 are bound to execute the sale deed since it has not been executed whatsoever may be the reason, same amounts to deficiency in service on the part of the OP No.3 & 4. It must be remembered that the Court can not rewrite the contract and Court has only duty to interpret the contract between the parties as per the terms executed by them. Both the parties are bound by the terms and conditions of agreement.
17. Moreover, DFR shows that the opportunity was given to OP No.3 & 4 to place their case before Learned District Forum but they did not avail it for the reasons best known to them when on hearing both parties this Commission is satisfied that OP No.3 & 4 have no merit in their contention, it not proper to remand the matter for denovo hearing.
18. In view of aforesaid discussion, we do not find any reason to interfere with the impugned order and as such the impugned order is confirmed and the appeal stands dismissed. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
