Subedar Major Jaswant Singh filed a consumer case on 04 Nov 2022 against Ghaziabad Development Authority in the DF-I Consumer Court. The case no is CC/1130/2019 and the judgment uploaded on 04 Nov 2022.
Chandigarh
DF-I
CC/1130/2019
Subedar Major Jaswant Singh - Complainant(s)
Versus
Ghaziabad Development Authority - Opp.Party(s)
In Person
04 Nov 2022
ORDER
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,
Ghaziabad Development Authority through Vice Chairman, Vikas Path, Ghaziabad (UP).
Sub Registrar, IV, Tehsil Ghaziabad, Tehsil Compound Gandhi Nagar, Ghaziabad (UP).
… Opposite Parties
CORAM :
SHRI PAWANJIT SINGH
PRESIDENT
MRS. SURJEET KAUR
MEMBER
ARGUED BY
:
Complainant in person
:
Ms. Sanamjeet Kaur, Counsel for OP-1
:
OP-2 ex-parte
Per Pawanjit Singh, President
The present consumer complaint, filed by Subedar Major Jaswant Singh, complainant against the opposite parties (hereinafter referred to as the OPs), has been received by way of transfer order dated 22.11.2019 of the Hon’ble National Commission from the District Consumer Disputes Redressal Forum, Ghaziabad. On receiving the same, it was registered afresh. The brief facts of the case are as under :-
It transpires from the allegations as projected in the consumer complaint that the complainant was allotted a plot No.NK 1/356 measuring 250 sq. meters by OP-1 for sale consideration of ₹2,87,500/- in Indirapuram Nitikhand Ghaziabad scheme allotted by OP-1/ Authority. The complainant had paid an amount of ₹2,20,139/- as per scheme, being earnest money but as there was deficiency on the part of OP-1, complainant had promised to pay the balance amount at the time of offering possession of the plot. Instead of offering possession of the aforesaid plot, OP-1 had illegally cancelled the allotment as a result of which the complainant was compelled to file a complaint with the Hon’ble UP State Consumer Disputes Redressal Commission, Lucknow (hereinafter referred to as “Hon’ble State Commission”). Vide order dated 23.1.2012, the Hon’ble State Commission had directed OP-1 to give possession of 250 sq. meters plot in the same area with the assent of the complainant for above said consideration of ₹2,87,500/- on payment of balance amount of ₹67,361/- by the complainant alongwith interest @ 8% per annum. However, the GDA/OP-1 without the assent of the complainant vide letter dated 19.3.2013 (Annexure C-3) offered three plots i.e. plot No.1003, 1010 and 1011 (measuring 251.10 sq. meters) in Indraprashtha Yojna “D” Sector at Loni in place of the original allotment of plot No.NK 1/356. The complainant objected this allotment vide letter dated 29.4.2013, but, OP-1 had not considered the request of the complainant. Later on, complainant approached the Hon’ble National Commission, New Delhi by way of appeal against the order passed by the Hon’ble State Commission and the Hon’ble National Commission vide order dated 9.2.2015 (Annexure C-5) directed OP-1 to deliver the possession of above said three plots i.e. 1003, 1010 and 1011 (251.10 sq. meters) to the complainant instead of the earlier allotted plot No.NK 1/356 at the original cost within two months subject to deposit of balance amount of ₹67,361/- by the complainant and thereafter OP-1 shall execute the conveyance deed within one month from the date of furnishing the stamp duty by the complainant. However, despite of the clear direction by the Hon’ble National Commission in its order dated 9.2.2015, OP-1 had demanded an illegal and arbitrary amount of ₹1,08,078/- on account of balance payment and ₹3,69,500/- on account of stamp duty. Not only this, even the actual possession of the plot was given after the execution of the sale deed dated 6.3.2018. Besides that, OP-1 has also asked the complainant to pay the lease rent @ 10% at the cost of allotted plot No.1003 i.e. to the tune of ₹28,877/-. The complainant sent draft for an amount of ₹1,08,078/- as balance amount of the above said three plots and had also requested OP-1 to correct the amount payable on account of stamp duty for making the conveyance deed. In fact, OP-1 had not enquired/communicated with the revenue authority (OP-2) by sending the requisite documents which were required for execution of the sale deed in favour of the complainant. Thereafter, the complainant approached the office of OP-1 several times and requested to clear the matter of payment of stamp duty and it was only in the month of March 2018 when the dealing clerk of OP-1 told that the total stamp duty payable is ₹79,100/- which was earlier asked to be payable as ₹3,97,500/-. This act of OP-1 has caused undue hardship and put pressure upon the complainant who was compelled to buy stamp paper for ₹58,600/- and had handed over the same to the said dealing clerk. Thus, the total stamp paper for an amount of ₹79,100/- was handed over to the officials of OP-1 for the conveyance of the sale deed. As earlier OP-1 had demanded ₹3,97,500/- in addition to ₹20,500/- which had already been paid by the complainant and the possession of the aforesaid plot was not handed over to the complainant before the execution of the sale deed, the complainant has suffered a lot due to the aforesaid act of the OPs which amounts to deficiency in service especially when there is inordinate delay of about three years for the execution of the sale deed and also that earlier OP-1 had demanded stamp duty of ₹3,97,500/- and further that OP-1 has charged lease rent of ₹28,877/- @ 10% of the consideration amount of plot No.1003. In this manner, prayer has been made that OP-1 be directed to reimburse an amount of ₹58,600/- on account of excessive stamp duty papers received from the complainant alongwith interest @ 12% and to reimburse an amount of ₹28,877/- on account of illegal recovery as lease rent alongwith interest @ 12% and further be directed to pay cost of ₹50,000/- on account of mental agony and further chasing up expenditure of ₹20,000/- and besides that an amount of ₹30,000/- as litigation expenses. The consumer complaint is supported by affidavit of the complainant.
OP-1 resisted the consumer complaint and filed its reply. It is admitted that originally plot No.NK 1/356 was allotted to the complainant in Indirapuram plot scheme with approximate cost of ₹2,87,500/- out of which the complainant had deposited an amount of ₹2,20,139/-. It is further alleged that as the complainant had not deposited the amount as per the payment schedule, allotment of the plot was cancelled vide order dated 22.3.1997. It is further alleged that thereafter the complainant filed a complaint before the Hon’ble State Commission and vide order dated 20.8.2004 it had directed for payment of the deposited amount with interest @ 9% from 9.12.1991 till the date of payment and accordingly the said amount was sent to the complainant through cheque dated 23.7.2005 by the answering OP. However, aggrieved by the judgment of the Hon’ble State Commission, complainant filed first appeal before the Hon’ble National Commission and the Hon’ble National Commission by setting aside the earlier order of the Hon’ble State Commission had remanded back the matter to the Hon’ble State Commission for disposal of the same. Again the Hon’ble State Commission vide order dated 23.1.2012 directed that since the plot in Indirapuram scheme has been saturated, let plot of 250 sq. meters be given to the complainant with his consent in any other scheme after receiving balance amount and lease rent and after getting the sale deed executed, possession be handed to the complainant. Against the said order passed by the Hon’ble State Commission, both the parties had filed appeals before the Hon’ble National Commission and the Hon’ble National Commission directed the answering OP to give plot No.D-1003, 1010 and 1011 (251.10 sq. meter) in Indiraprastha scheme equal in area to that of cancelled plot measuring 250 sq. meter in Indirapuram Scheme and accordingly the complainant had accepted the alternative plot given by the authority and as OP-1 was directed by the Hon’ble National Commission that on giving consent by the complainant, authority shall deliver possession of the plot in question within two months subject to condition that the complainant shall deposit balance amount of ₹67,361/- and only then the complainant after getting deposited the prescribed duty, shall get the sale deed executed in his favour. Since after giving his consent, complainant has received possession of the plot with full satisfaction on 21.3.2018, the consumer complaint of the complainant is not maintainable. So far as the stamp duty paid by the complainant is concerned, as OP-1 has no concern with the same, complainant is not entitled for any relief to that extent. Not only this, the lease rent has been received from the complainant as per rules only after his consent and also as the complainant had deposited the same voluntarily, he is not entitled for the reliefs as prayed for. The complaint of the complainant being false and frivolous be dismissed with costs. The cause of action set up by the complainant is denied. The consumer complaint is sought to be contested.
OP-2 did not turn up during the pendency of the consumer complaint on 28.10.2021 despite of proper service and accordingly it was proceeded against ex-parte.
No rejoinder to the reply of OP-1 was filed by the complainant.
In order to prove their case, contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
We have heard the complainant in person, learned counsel for OP-1 and also gone through the file carefully, including the written arguments. For the reasons to be recorded hereinafter, following points are formulated for discussion and proper adjudication :-
Whether there is deficiency in service or unfair trade practice on the part of OPs?
Whether the complainant is entitled for the claim as prayed for?
Relief.
Point No.(i) & (ii)
Both these points are interconnected, hence are taken together to avoid repetition of facts and evidence.
Admittedly, the complainant was originally allotted plot No.NK 1/356 measuring 250 sq.meters at Indirapuram scheme for consideration of ₹2,87,500/- by OP-1. It is further an admitted case of the parties that out of the aforesaid consideration, an amount of ₹2,20,139/- was deposited by complainant with OP-1. It is further an admitted case of the parties that later on the said allotment was cancelled by the OP-1 and the complainant firstly approached the District Consumer Disputes Redressal Forum, Ghaziabad and later on the complaint was decided by the Hon’ble State Commission. It is further an admitted case of the parties that vide order dated 23.1.2012, the Hon’ble State Commission had directed the OP to provide 250 sq.meter plot or in the alternative a plot in any other scheme to the satisfaction of the complainant on receipt of the balance amount of ₹67,361/- alongwith interest @8% per annum from 10.12.1991 and to execute the sale deed within 15 days and also to pay ₹3.00 lacs as compensation for mental agony and harassment and ₹35,000/- as litigation expenses. It is further an admitted case of the parties that against the said order of the Hon’ble State Commission, OP-1 had filed an appeal before the Hon’ble National Commission. During the pendency of the said appeal, complainant had also filed cross appeal bearing No.382 of 2013 and sought different reliefs in the said appeal. It is further an admitted case of the parties that both the aforesaid appeals filed by the parties were disposed of by the Hon’ble National Commission vide order dated 9.2.2015 (Annexure C-5) in pursuance to the amicable settlement which took place between the parties as OP-1 had offered three smaller plots bearing No.1003, 1010 and 1011 having total area of 251.10 sq.meters in lieu of plot No.NK 1/356, Indirapuram subject to the complainant depositing the balance consideration of ₹67,361/- within two months and also on furnishing the requisite stamp duty by the complainant, the conveyance deed shall be executed in favour of the complainant within one month, as is also evident from the copy of order (Annexure C-5).
The case of the complainant is that there is inordinate malafide delay of about three years caused by OP-1, by asking the complainant to pay ₹3,69,500/- vide letter dated 3.3.2015 on account of stamp duty, despite of the fact that stamp papers worth ₹20,500/- only were legally payable and also asking the complainant to deposit stamp duty of ₹58,600/- and also on account of non execution of sale deed during the aforesaid period and further charging lease rent of ₹28,877/- @ 10% of the consideration amount of plot, the complainant is entitled for the reliefs as prayed for. On the other hand, defence of OP-1 is that as the complainant has deposited the stamp duty which was legally payable under the statute and also that the delay in the non execution of the sale deed was on the part of the complainant, who could not deposit the stamp duty payable on the sale deed, and further that the lease rent was legally payable by the complainant, there is no deficiency in service on the part of OP-1 and the complaint of the complainant be dismissed with costs.
Close scrutiny of the entire evidence on record of the case file, coupled with the rival contentions of the complainant and learned counsel for OP-1, are discussed as under:-
At the very outset, it may be observed that when it is an admitted case of the parties that the earlier controversy between the parties qua allotment of plot Nos.1003, 1010 and 1011 in lieu of earlier allotted plot No.NK 1/356 was finally set at rest vide order dated 9.2.2015 (Annexure C-5) passed by the Hon’ble National Commission and in pursuance to the said order, sale deed was executed in favour of complainant on 16.3.2018 vide sale deed (Annexure C-27) after the submission of deficient stamp papers for the amount of ₹58,600/- by the complainant on 8.3.2018 and possession of the same was also handed over to the complainant on 21.3.2018 by OP-1 and also that the earlier execution filed by the complainant was dismissed by the Hon’ble State Commission vide order dated 22.6.2022, the case is reduced to a narrow compass as it is to be determined if the complainant was compelled by OP-1 to pay excessive stamp duty for the execution of the sale deed in pursuance to the order dated 9.2.2015 of the Hon’ble National Commission and also that OP-1 has illegally charged lease rent to the tune of ₹28,877/- from the complainant, and the complainant is entitled for the claim, as prayed for, as is the case of the complainant, or if there is no deficiency in service on the part of OP-1 and complaint of the complainant, being false and frivolous, is liable to be dismissed.
In the light of the foregoing facts, one thing is clear on record that the entire case is revolving around the order dated 9.2.2015 (Annexure C-5) passed by the Hon’ble National Commission since it is the case of the complainant that OP-1 had compelled him to pay excessive stamp duty for the execution of the sale deed in his favour and OP-1 has also charged lease rent illegally from him, whereas the defence of OP-1 is that whatever amount was payable for the execution of the sale deed, same was paid by the complainant as per law and the lease rent was also paid by the complainant also as per law. The relevant portion of the order dated 9.2.2015 passed by the Hon’ble National Commission is reproduced as under for ready reference:-
“…… After some arguments, learned counsel for the parties have arrived at an amicable settlement. Learned Shri Sarvesh Sharma, Advocate for the Ghaziabad Development Authority on instructions has stated that the Authority in order to put an end to this litigation is ready and willing to allot Plot No.D-1003, Indraprastha Scheme, Ghaziabad which has been carved out by consolidating three smaller plots bearing Nos.1003, 1010 and 1011 having total area 251.10 sq. meter in lieu of plot No.N.K.1/356, Indira Puram, earlier allotted to the complainant and later on cancelled. It is stated by learned counsel for the Authority that aforesaid allotment shall be made on payment of the consideration amount which was to be charged from the complainant in respect of plot No.N.K.1/356, Indira Puram, Ghaziabad. Learned counsel for the Authority states that if the complainant agrees to this offer, the Authority shall handover the possession of said plot to the complainant within two months, subject to the complainant depositing the balance consideration amount of Rs.67,361/- within two months. It is further stated by learned counsel for the Authority that thereafter on the complainant furnishing the requisite stamp duty, the conveyance deed shall be executed in favour of the complainant within one month thereafter. In support of the above statement, learned counsel for the Authority has filed affidavit of Anil Tyagi, concerned Clerk of the Authority, which is taken on record.
The complainant has voluntarily accepted the offer of the Authority and both the parties submit that the cross appeals be disposed of in terms of the aforesaid settlement.
We are satisfied that the parties have arrived at the above settlement amicably without any coercion or any pressure from any corner. Therefore, we accept the above terms of settlement and dispose of the appeals in terms of the settlement with the observation that the Authority shall be bound by the undertaking given on its behalf by Shri Sarvesh Sharma, Advocate, failing which the complainant may apply for implementation of the settlement…….”
Thus, one thing is clear from the order dated 9.2.2015 that the earlier litigation between both the parties, which had arisen by way of two appeals before the Hon’ble National Commission, was set at rest only through amicable settlement as plot Nos.1003, 1010 and 1011, having total area of 251.10 sq. meter in lieu of plot No.NK 1/356 were allotted to the complainant and OP-1 had agreed that aforesaid allotment shall be made on payment of the consideration amount which was to be charged from the complainant in respect of plot No.NK 1/356 and the said offer given by OP-1 was accepted by the complainant voluntarily without any coercion or pressure from any corner. It was also settled between the parties at that time that OP-1/ authority shall hand over possession of the said plot to the complainant within two months subject to the complainant depositing the balance consideration amount of ₹67,361/- within two months and thereafter on the complainant furnishing the requisite stamp duty, the conveyance deed shall be executed in favour of the complainant within one month thereafter. It was also ordered by the Hon’ble National Commission that OP-1 shall be bound by the undertaking given on its behalf by Shri Sarvesh Sharma, Advocate failing which the complainant may apply for implementation of the settlement. Thus, one thing is further clear from the aforesaid order that for the execution of the sale deed, the complainant was required to perform his part as directed in the said order i.e. to furnish the requisite stamp duty for the execution of the conveyance deed and similarly certain things were to be performed by OP-1 i.e. to execute the sale deed on receiving the said stamp duty and the balance consideration amount.
The complainant has come with the plea in the present consumer complaint that he was compelled to deposit the stamp duty for the amount of ₹3,69,500/- vide letter dated 3.3.2015 (Annexure C-6) sent by OP-1 which had caused mental harassment to the complainant and due to the said letter, sale deed could not be executed in his favour for three years even after passing of the order by the Hon’ble National Commission and even after that OP-1 has executed the sale deed by compelling the complainant to deposit the stamp duty for the sum of ₹58,600/- which is also excessive and not payable by the complainant. On the other hand, learned counsel for OP-1 has drawn our attention to another letter dated 12.10.2015 (Annexure C-19) through which complainant was asked by OP-1 to approach the office of Sub Registrar, Tehsil Ghaziabad and on his satisfaction, purchase the stamp duty and deposit the same with OP-1 and since then the complainant has dragged OP-1 by issuing frivolous notices and the delay in the execution of the sale deed, if any, is due to non-performance of the order of the Hon’ble National Commission on the part of the complainant and not due to any fault of OP-1. There is force in the contention of learned counsel for OP-1 as it has come on record that though initially OP-1 had asked the complainant to deposit the stamp duty for the sum of ₹3,69,500/- vide letter dated 3.3.2015, but, immediately after that vide letter dated 12.10.2015 (Annexure C-19), OP-1 had requested the complainant to approach the Sub Registrar, Tehsil Ghaziabad for the purchase of deficient stamp paper after making enquiry from the said office, submit the same with his photograph to OP-1 so that the conveyance deed could be executed in his favour. Thus, right from 12.10.2015 till 8.3.2018, the complainant, instead of submitting the deficient stamp papers for the sum of ₹58,600/-, started dragging OP-1 into unnecessary harassment by issuing several notices and thereafter opted to file the present consumer complaint in the year 2019 despite of the fact that the sale deed (Annexure C-27) was immediately executed by OP-1 on 16.3.2018 after the submission of deficient stamp papers by the complainant on 8.3.2018. Had the complainant submitted the aforesaid stamp papers in the year 2015, when OP-1 had issued letter dated 12.10.2015 (Annexure C-19) to him, the sale deed could have been executed in the same month itself and this act of the complainant shows that sale deed could not be executed in his favour due to non-performance of the direction issued by the Hon’ble National Commission in the order dated 9.2.2015 on his part only and not due to the fault of OP-1.
So far as the case of the complainant that OP-1 has compelled him to pay excessive stamp duty for the execution of the sale deed is concerned, since OP-1 had requested the complainant vide letter (Annexure C-19) to approach the office of Sub Registrar, Tehsil Ghaziabad and only after his satisfaction to purchase the deficient stamp papers, to deposit the same with OP-1 and accordingly complainant had purchased and submitted the same with OP-1, it is unsafe to hold that OP-1 has compelled the complainant to pay excessive stamp duty for the execution of the conveyance deed and the execution of sale deed was delayed due to fault of OP-1.
Moreover, when the order dated 9.2.2015 passed by the Hon’ble National Commission has specifically directed that OP-1/authority shall be bound by the undertaking given on its behalf by its advocate failing which the complainant may apply for implementation of the settlement and the complainant has never approached for implementation of the settlement i.e. if any delay on the part of OP-1 to comply with the directions issued in the said order, the present consumer complaint of the complainant is otherwise not maintainable for the reason that in case the complainant was aggrieved by any act of OP-1, he should have approached to the competent Commission for implementation of the order/settlement and not to file complaint, especially when it has already been discussed that the delay in the execution of the sale deed was only due to the fault of the complainant and not of OP-1.
The complainant has relied upon the judgment of the Hon’ble Apex Court in the case of M/s Residents Welfare Association, Noida Vs. State of U.P. & Ors., 2009 (14) SCC 716 in which it was held as under :-
“A. Transfer of Property Act, Section 54 – Registration Act, 1908 Section 23 Agreement to sell land, but conveyance deed executed after some period – What should be market value of land for purpose of conveyance in such a case – Held :-
(1) When delay is caused by purchaser intentionally the market value should be determined on the date when the deed is executed and not when an agreement to sale the property or lease the property had been registered.
(2) Where however, the delay is caused by seller the market value should be determined on the date when the agreement to lease the property was entered.
(3) Further observed there cannot be a straitjacket formula devised for determining the same.”
As it has already been discussed above that the complainant had only deposited the stamp duty on the amount set forth in the allotment letter and same was not calculated on the market value at the time of execution of the sale deed, the plea of the complainant that OP-1 has compelled him to pay excessive stamp duty to the tune of ₹58,600/- is not tenable.
So far as the case of the complainant that OP-1 has wrongly charged an amount of ₹28,877/- as lease rent, which was never ordered by the Hon’ble National Commission to pay, is concerned, the said plea of the complainant is also not tenable especially when it is an admitted case of the parties that three small consolidated plots i.e. 1003, 1010 and 1011 were allotted to the complainant in lieu of the earlier allotted plot No.NK 1/356 which was duly accepted by the complainant at the time of settlement before the Hon’ble National Commission and the conveyance deed could have only been executed once the encumbrance has been cleared by the purchaser and as the complainant has only paid the requisite lease rent @10% qua plot No.1003 which was legally payable by him before getting the sale deed executed, it is unsafe to hold that the said lease rent was illegally paid to OP-1 by the complainant.
Relief
In view of the foregoing discussion, it is safe to hold that the complainant has failed to prove any deficiency in service or unfair trade practice on the part of OPs and he is not entitled for the claim as set up on in the consumer complaint. Accordingly, the present consumer complaint, being devoid of any merit, is hereby dismissed, leaving the parties to bear their own costs.
Certified copies of this order be sent to the parties free of charge. The file be consigned.
Announced
04/11/2022
hg
Sd/-
[Pawanjit Singh]
President
Sd/-
[Surjeet Kaur]
Member
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