Haryana

StateCommission

A/570/2014

Parasvnath Devlopers - Complainant(s)

Versus

Nirmala Ahlawat - Opp.Party(s)

A Taalwar

26 Oct 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                               

                                      First Appeal No.570 of 2014

                                      Date of Institution:23.06.2014

                                      Date of Decision: 26.10.2016

 

Parsvnath Developers Ltd., A company incorporated under the Provisions of the Companies Act, 1956, Having its Registered office at Parsvnath Metro Tower, Near Shahdara Metro Station, Shahadara, Delhi-110032 (Through its authorized signatory Mr. R.C. Gupta)

…Appellant

 

                                      Versus

 

1.      Smt. Nirmala Ahlawat W/o Mr. Surender Singh  Ahlawat, H.No.592, Sector-7, Sonepat, Haryana.

2.      Basundhara Properties Pvt. Ltd., (Presently known as Marksmen Facilities Pvt. Ltd.) Having its Registered office at Parsvnath Metro Tower, Near Shahadara Metro Station, Shahadara, Delhi-110032.

3.      The Estate Officer, HUDA, Sonepat, Haryana.

4.      The Chief Town Planner, Government of Haryana, Sector-18, Chandigarh.

5.      The District Town Planner, Sonepat, Haryana.

                                                …Respondents

CORAM:   Mr. R.K. Bishnoi, Judicial Member

                   Mrs. Urvashi Agnihotri, Member

 

 

Present:     Mr. Aftab Singh Khara, Advocate for the appellant.

                   Mr. Anil Ghangas, Advocate counsel for the respondent No.1.

                   None for the respondent No.3.

Mr. Ram Avtar Assistant for respondent Nos.4 and 5.

 

                                       O R D E R

 

R.K. BISHNOI, JUDICIAL MEMBER

 

          It was alleged by the complainant that she purchased plot No.0673 from Gopal Rajgarhia for consideration of Rs.27,00,000/- vide registered sale deed No.11331 dated 16.03.2011        and was continuing in actual physical possession of the same since then. Gopal Rajgarhia purchased this plot from opposite party Nos.1 & 2 (in short ‘OPs’) vide registered sale deed No.10668 dated 22.03.2010. When she applied with OP Nos. 4 & 5 on 04.11.2011 for approval of site plan, it was told vide letter No.BB 944 dated 29.11.2011 that the same was in freezed area. When she purchased plot from Gopal Rajgarhia he obtained No Objection Certificate (in short ‘NOC’) from OP No.1 to transfer plot in her favour. OP No.1 was knowing that the plot was freezed, but, even then allowed transfer and cheated her. So, OP Nos.1 & 2 be directed to allot an alternative plot in Block-A of the same size in Parsvnath city or in sectors-7  or 8 of HUDA, Sonepat besides paying compensation to the tune of Rs.1,00,000/- for mental harassment etc.

2.      OP Nos.1 & 2 filed joint reply and OP Nos. 4 & 5 filed separate reply. It was alleged by OP Nos.1 & 2 that they sold this plot to Gopal Rajgarhia after receiving letter dated 15.03.2010 from DTCP, Haryana to the effect that this area was defrozen. They simply issued NOC about sale by Gopal Rajagrhia to the complainant because he had cleared all the dues. They were not a party to transaction which took place in between complainant and Gopal Rajgarhia. This dispute was not covered by the provisions of Consumer Protection Act, 1986 (In Short “Act”). As per opinion of Hon’ble Supreme  Court expressed in Ganesh Lal Vs. Shyam 2013 STPL (Web), Page 892, S.C, simple sale of plot by third person to another person cannot be considered as consumer dispute qua developer which is as under:-

“……We may, however, note that when it comes  to “housing construction”, the same has been specifically covered under the definition of “service” by an amendment inserted by Act 50 of 1993 with effect from 18^th June, 1993. That being the position, as far as the housing construction by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of land simplicitor is concerned, and if there is any complaint, the same would not be covered under the said Act.”Objections about prima-facie case, accruing cause of action against them were also raised and requested to dismiss the complaint.

3.      OP Nos.4 & 5 alleged that as per layout plan of this area, plot in question fell in freezed area, so there was no question of granting permission to raise construction. They were not a party to any transaction in between complainant and other persons. As per her version dispute was in between her and OP Nos.1 & 2. As per opinion of Hon’ble Supreme Court expressed in Civil Appeal No.550 of 2003 titled as DLF Universal Ltd and Anr. Vs. Director T & C Planning, Haryana & Ors., Civil Appeal No.551 of 2003 and 1611 of 2003 director was not authorized to interfere with the agreement voluntarily agreed into by and between the owner/colonizer and purchaser of plot/flats. So, no cause of action accrued against them. Other averments were denied and requested to dismiss the complaint.

4.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Sonepat (in short ‘District Forum’) allowed the complaint and directed as under:-

“The respondents, keeping in view the letter  dated 21.03.2013 written by District Town Planner (HQ) O/o Director General Town & Country Planning, Haryana, Chandigarh to Parsvnath Developers Ltd., is also hereby to give permission to the complainant for construction of the house on the plot in question and they are also directed to approve the building plan of the complainant for which, Rs.4250/- has already been deposited by the complainant in the head of HUDA. If after 21.3.2013, the Govt. has again freezed the plot No.A-0673 of the complainant, in that event, the respondent No.1 shall allot an alternate plot of the respondent No.1 shall allot an alternate plot of the same area and in the same locality in Parsvnath City, Sonepat. However, if the allotment of any alternative plot is made to the complainant, then also, the respondent No.1 will pay the compensation amounting to Rs.One lac and interest at the rate of 09% per annum on the amount of Rs.27 lacs to the complainant as directed in the preceding para.”

5.      Feeling aggrieved therefrom, O.P.No.1 has preferred this appeal.

6.      Arguments heard. File perused.

7.      Learned counsel for complainant vehemently argued that when sale in her favour was permitted by OP No.1 on the ground that terms and conditions applicable to Gopal Rajgarhia would be applicable in her case also, she is covered by definition of consumer. Initially plot No.670 was allotted to Gopal Rajgarhia and due to freezing zone that allotment was cancelled in the year 2007 and plot No.673 was allotted to him. The plot was changed by OP No.1 knowing fully well that which area was going to be freezed and which was going to be released. The complainant was entitled for allotment of plot No.670 which was allotted initially. If the plot in question was freezed then why O.Ps. issued NOC and received development charges. So, learned District Forum rightly directed OPs to allot an alternative plot if the plot in question is freezed. Findings of learned District Forum are well reasoned, based on law and facts and cannot be disturbed.

8.      This argument is of no avail. As per facts mentioned above it is clear that complainant purchased plot in question from Gopal Rajgarhia on 16.03.2011 and not from OP No.1. It was her bounden duty to enquire whether plot was freezed or not and whether there is any charge thereupon or not. It is well settled proposition of law that the purchaser be aware. OP No.1 granted NOC on the basis of note dated 14.03.2011. This certificate was required because original allottee may not run away without clearing dues, if any. This NOC has not created any right in favour of complainant against OP No.1. More so, from the perusal of letter dated 15.03.2010 it is clear that pocket which was freezed in previous site plan were defreezed. Thereafter, OP sold plot to Gopal Rajgarhia on 22.03.2010. When plot was sold to Gopal Rajgarhia at that time it was not freezed. Thereafter, this area was again freezed after three months which is clear from Ex.C-23. Thereafter, OP No.1 wrote letters Ex.C-15 & Ex.C-16 to defreeze the area because third party rights were already created. This fact is also admitted in report Ex.C-22. It clearly shows that when plot was sold to Gopal Rajgarhia, it was not freezed and OP No.1 did not cheat complainant. This plot is again defreezed  vide Ex.C-23, but, not to create third party rights till further orders. In this way it cannot be presumed that there was any fault on the part of OPs. If complainant was having any grouse about sale by Gopal Rajgarhia then she should have gone to Civil Court against him as per opinion of Hon’ble Supreme Court Court expressed in Ganesh Lal Vs. Shyam’s case (supra). Learned District Forum wrongly came to conclusion that OP No.1 was at fault and should allot an alternative plot, particularly when it was not having any connection with sale in her favour. Resultantly impugned order dated 04.03.2014 is set aside.The present appeal is allowed and complaint is dismissed.

9.      The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.

October, 26^th, 2015                 Urvashi Agnihotri         R.K. Bishnoi

                                                  Member                      Judicial Member

                                                  Addl.Bench                 Addl. Bench.

 

R.K