PER JUSTICE R.C. JAIN, PRESIDING MEMBER (ORAL)

          Aggrieved by the order dated 24.11.2011 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (for short ‘the State Commission’), the Housing Board, Haryana has approached this Commission with the present petition, purportedly under Section 21(b) of the Consumer Protection Act, 1986.  The appeal before the State Commission was also filed by the present petitioner against the order dated 10.3.2011 passed by the District Consumer Disputes Redressal Forum, Gurgaon, by which order the complaint filed by the complainant was allowed and the following relief granted:

          “…. Opposite party are directed to get the conveyance deed executed and registered within 30 days at his expenses.  The complainant was also harassed, causing mental agony to him for his own property by the opposite party.  Thus he is also entitled to compensation of Rs. 20,000/- from the opposite party.  The complainant is also entitled to litigation charges of Rs. 3,000/-.  Compliance be made within 30 days failing which the complainant will be entitled to interest @ 12% per annum on the amount of Rs. 12,100/- deposited by him for house and compensation with the opposite party from the date of filing of this complaint i.e. 03.3.2005 till realization.”

2.      Though in appeal, a plea was raised on the behalf of the petitioner that the conveyance deed could not be executed in favour of the complainant as he was found using the allotted tenement for the purpose of running a factory as against the residential purpose for which the tenement was allotted to the complainant.  However, the said plea did not find favour with the State Commission and the State Commission dismissed the appeal and affirmed the order of the District Forum.

3.      We have heard Mr. Salil Paul, learned counsel for the petitioner-Housing Board but had not the advantage of hearing the say of the respondent as the respondent-complainant remained un-represented on record despite due service of notice under Registered A/D post.  Mr. Paul would assail the concurrent findings and orders passed by the fora below primarily on the ground that the fora below have failed to appreciate that Housing Board has made his intention clear to execute the sale deed provided there was no violation of the terms and conditions of allotment of the tenement.  He states that the tenement was allotted to the complainant-respondent for residential purpose only but after taking possession of the same, the complainant started using the same for a non-conforming use i.e. running factory which is violation of the Clause 2(d) of Hire-Purchase Tenancy Agreement.  Reference is invited to the relevant Clause 2(d) of the said agreement, which is to the following effect:

          “(d)      The hirer shall not without the written permission of the owner carry on or permit to be carried on within the said property any trade or business whatsoever or permit the same to be used for any purpose other than that for residential use or do or salfer to be done there in any act or thing whatsoever which in the opinion of the owner may be a nuisance, or disturbance to the owner or the occupiers of other houses in the same building or in the neighbourhood.”

4.      Attention is then invited to a notice dated 15.10.2003  issued by the Estate Manager of the Housing Board thereby intimating the complainant, the willingness of the Housing Board to execute the conveyance deed provided the tenement was being used for the residential purpose only.  Mr. Salil Paul submits that a fresh notice dated 04.9.2012 has also been issued to the respondent on the same lines.

5.      Having considered the matter, we are of the view that the fora below have erred in not appreciating the entire facts and circumstances of the case in particular the plea put forth by the petitioner-Housing Board for not executing the conveyance deed of the allotted tenement.  In our view, going by the terms and conditions of the agreement executed between the parties and that the complainant had been using the allotted tenement for a non-conforming use, the petitioner was within its rights to refuse the execution of the conveyance deed till such time the mis-use is stopped or discontinued.

6.      In view of the above, we allow the revision petition and set aside the findings and orders of the fora below and dismiss the complaint.  However, Mr. Paul states that once the mis-use is stopped, the petitioner would have no objection to execute the conveyance deed.