BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.
Complaint No. 331 of 2012.
Date of institution: 02.04.2012
Date of decision: 09.05.2017.
Krishan Kumar Gupta since deceased now represented through his son Neeraj Gupta, Resident of House No. 568, Sector-17, HUDA, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar.
…Complainant.
Versus
- Haryana Urban Development Authority, Sector-17, Jagadhri through its Estate Officer.
- Smt. Payal Singla wife of Shri Deepak Kumar, resident of H. No. 569, Sector 17, HUDA, Jagadhri, Tehsil Jagadhri, District Yamuna Nagar and also resident of V.P.O. Buria, Tehsil Jagadhri, Distt. Yamuna Nagar.
…Respondents.
BEFORE: SH. ASHOK KUMAR GARG, PRESIDENT.
SH. S.C.SHARMA, MEMBER.
SMT. VEENA RANI SHEOKAND, MEMBER.
Present: Sh. Anil Kumar Diddee, Advocate, counsel for complainant.
Sh. V.K.Rajoria, Advocate, counsel for respondent No.1.
Sh. Sultan Singh, Advocate, counsel for respondent No.2.
ORDER (ASHOK KUMAR GARG PRESIDENT)
1. Complainant Krishan Kumar Gupta (now deceased) has filed the present complaint under section 12 of the Consumer Protection 1986 amended up to date. The complainant Sh. Krishan Kumar Gupta died during the pendency of complaint, so his above noted LR Sh. Neeraj Gupta was impleaded vide order dated 18.01.2016.
2, Brief facts of the present complaint as alleged by the complainant, are that complainant is in possession of one plot bearing No. 568 situated at Sector-17, HUDA, Jagadhri. As per allotment condition, between the walls of residential house situated at Sector-17 are joint one. As per terms and conditions, if the owner of one plot constructed his residential house prior to the owner of the other plot situated all-around the plot of another one, then the persons who constructed their residential house, later on are bound to pay the cost of construction of common wall attached to their residential houses. Without obtaining the NOC from the persons who had earlier constructed the wall completion certificate cannot be issued by the HUDA. The person, who raised the construction of his house later on, is bound to pay the cost of common wall as per rules and regulations of HUDA. Accordingly, the complainant constructed his residential house bearing No. 568 Sector-17HUDA, Jagadhri. The OP No.2 raised construction on her residential house and the eastern side wall of her residential house was constructed by the complainant by spending huge amount. The eastern wall was joint between the complainant and Op No.2. The OP No.2 put his lintel on eastern side wall of the residential house of the complainant without paying any amount. The complainant is regularly visiting the OP No.1 not to issue any completion certificate in absence of “No Dues Certificate” from the complainant. Firstly, the OP No.1 promised to the complainant that they will not issue any certificate in absence of “ No Dues Certificate” from the complainant but it was utter surprise of the complainant that they have already issued completion certificate to OP No.2. It seems that both the OPs were in collusion with each other and they have forged and fabricated documents when there is no signature of the complainant. Lastly, prayed for directing the OP No.1 to cancel the completion certificate and also direct the OP No.2 to pay an amount of Rs. 40,000/- as a half cost of construction of the joint wall and also to pay compensation as well as litigation expenses.
3. Upon notice, OPs appeared and filed their written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as complainant has no locus standi to file the present complaint; complainant has not come to this Forum with clean hands. The true facts are that owner of the house No. 569 (OP No.2) had applied for occupation certificate on 12.12.2007 and thereafter completing the formalities, provisional occupation certificate was issued on 30.04.2009.At that time, the complainant had never raised any objections before the OP No.1 regarding dispute of payment of share of common wall. It has been further submitted that as per clause No. XXXIV of Haryana Urban Development Authority (Erection of building) 1979 Registration No. 2, in case of dispute regarding the payment of share of common wall, the cost is determined by the estate officer, but neither the complainant nor Smt. Payal Singla (OP No.2) ever raised any objection before the OP No.1. As such, the OP No.1 was unable to determine the matter in dispute between the parties regarding the payment of share of common wall. If, there is any fault then the complainant is himself responsible and on merit it has been stated that it is totally wrong that any NOC is to be obtained from the person who had earlier constructed the wall prior to issuance of completion certificate by HUDA. Moreover, possession of certificate was issued earlier to the OP No.2 and POC issued to the complainant later on as he had applied later than OP No.2. Rest contents of the complaint were controverted and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint.
4. OP No.2 filed her written statement by taking some preliminary objections such as complainant has not hired any service against consideration from OP No.2, hence this Forum has no jurisdiction; Op No.2 has already constructed the house and occupation certificate has also been issued on 30.04.2009 prior to filing the present complaint; the common wall was constructed jointly and OP No.2 has already paid total cost of construction of intervening wall to the extent of her share and no receipt was issued in good faith. Now the complainant has become dishonest and asking for payment of half cost to which he is not entitled and on merit all the contents of complaint were controverted and reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint.
5. To prove the case, counsel for the complainant tendered into evidence affidavit of Neeraj Gupta complainant as Annexure CW/A and documents such as Photo copy of sale deed as Annexure C-1, Photo copy of death certificate of Krishan Kumar Gupta as Annexure C-2 and closed the evidence on behalf of complainant.
6. On the other hand, counsel for the OP No.1 tendered into evidence photo copy of occupation certificate dated 30.04.2009 of Payal Singla as Annexure R-1/1 and closed the evidence on behalf of OP No.1.
7. OP No.2 failed to adduce any evidence despite availing so many opportunities, hence, the evidence of Op No.2 was closed by court order on dated 01.05.2017.
8. We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.
9. The only grievances of the complainant is that Op No1. HUDA has wrongly and illegally issued the completion certificate to the Op No.2 who is neighbourer of the complainant without getting the NOC from the complainant due to which the complainant has suffered financial loss as the OP No.2 has not paid the half cost of the construction of the joint wall of the residential house which falls towards eastern side of the house of the complainant. As per rules, without obtaining the NOC from the person who had earlier constructed the wall, the completion certificate cannot be issued by HUDA. The person who raised the construction of his residential house later on, is bound to pay the half cost of the wall whereas on the other hand, as per version of the Op No.1 i.e. HUDA, the owner of the House No. 569 i.e. OP No.2 had applied for occupation certificate on 20.12.2007 and after completing the formalities, provisional occupation certificate was issued on 30.04.2009. At that time, the complainant had never raised any objection before the OP No.1 regarding dispute of payment of share of the concerned wall. Further, it has been argued that as per clause XXXIV of the Haryana Urban Development Authority (Erection of building) 1979 Registration No. 2, in case of any dispute regarding the payment of the share of common wall, the cost is determined by the Estate Officer. But neither the complainant nor Smt. Payal Singla OP No.2 raised any objection before the OP No.1. It has been further argued that even the POC was issued earlier to the OP No.2 and POC was issued to the complainant later on as he had applied later than the OP No.2. Lastly, argued that it is a dispute between complainant and OP No.2 and prayed for dismissal of complaint qua OP No.1.
10. On the other hand, learned counsel for the OP No.2 argued at length that the OP No.2 has already constructed the house and occupation certificate has also been issued on 30.04.2009 prior to filing the present complaint. Learned counsel for the OP No.2 further argued that the disputed wall was constructed jointly and OP No.4 has already paid total cost of construction of intervening wall to the extent of her share but no receipt was issued in good faith. Now, the complainant has become dishonest and asking for payment of half cost to which he is not entitled and lastly prayed for dismissal of complaint qua OP No.2.
11. After hearing both the parties and going through the documents placed on file, we are of the considered view that there is no deficiency in service or unfair trade practice on the part of OPs. From the perusal of occupation certificate issued by Estate Officer, HUDA, Jagadhri vide memo No. 2853 Annexure R1/1, it is duly evident that the OP No.1 had already issued the occupation certificate to the OP No.2 on 30.04.2009 whereas the present complaint has been filed on 02.04.2012 i.e. after a period of near about 3 years. Further, we have gone through the contents of the complaint minutely but the complainant has totally failed to disclose that on what date, month and year he constructed his house bearing No. 568 situated at Sector-17, HUDA, Jagadhri and on what date completion certificate/occupation certificate was issued to him. The complainant has placed on file only conveyance deed Annexure C-1 executed on 24.12.1997 and death certificate of Krishan Kumar complainant as Annexure C-2 and except this one nothing has been placed on file to prove the version mentioned in the complaint. The OP No.2 has taken specific plea that the joint wall was constructed jointly and Op No.2 (wrongly typed as Op No.4) has already paid total cost of construction of intervening wall to the extent of her share but no receipt was issued in good faith. Meaning thereby that the matter involved between the parties requires elaborate evidence and to decide such type of dispute civil court is the best platform as the proceedings before the Fora are of summary nature.
12. On the other angle also, the present complaint is hopelessly time barred. As per under section 24(A) of the Consumer Protection Act, a period of filing the complaint before the Consumer Forum has been prescribed as 2 years whereas the present complaint has been filed on 02.04.2012 i.e. after a period of 3 years from the issuance of occupation certificate dated 30.04.2009 (Annexure R1/1) to OP No.2. Hence, the present complaint of the complainant is hopelessly time barred.
13. Resultantly, in the circumstances noted above, we are of the considered view that neither the complaint is maintainable nor has any merit and as such the same is hereby dismissed with no order as to costs. However, the complainant is at liberty to approach the Civil Court/appropriate court, if so desired. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.
Announced in open court.09.05.2017.
(ASHOK KUMAR GARG)
PRESIDENT
DCDRF, YAMUNANAGAR.
(VEENA RANI SHEOKAND) (S.C.SHARMA )
MEMBER MEMBER
