PER
Charanjit Singh, President;
1 The complainant has filed the present complaint by invoking the provisions of Section 34 and 35 of the Consumer Protection Act against the opposite parties on the allegations that the complainant in the year 2010 was looking for a residential plot in a safe and developing colony in Amritsar for constructing her dream house from her hard- earned savings. In this regard, the complainant came across a property situated at Gandasi Wala (i.e. White Avenue Colony), Amritsar. The opposite party No. 1 through General Power of Attorney holder opposite party No.2 further through Special Power of Attorney holder opposite party No. 3 represented the complainant to be the sole owner in possession of plot No.74-75, measuring 210 sq. yds. bearing Khasra No.33//14-15, situated at Gandasi Wala (i.e. White Avenue Colony), Tehsil & District Amritsar. The said opposite parties claimed that the aforesaid property is free from all encumbrances of any kind and that complainant can build her dream house on the said property without any hindrances. Thus, influenced by the heavy claims of the said opposite parties, the complainant entered into Agreement/ Conveyance Deed dated 25.01.2010 concerning the purchase of aforesaid property in question for total paid to the tune of Rs.3,15,000/-. It had been specifically stated in the said conveyance deed that the purchaser of the aforesaid property will become "owner in possession". Subsequently, the complainant got possession of the aforesaid property from the opposite parties and had applied for regularization of said plot from the Municipal Corporation, Amritsar. Upon the acceptance of application for regularization of plot and payment of requisite regularization fee, the Municipal Corporation, Amritsar issued regularization certificate dated 23.07.2015 for the said plot. Since, the complainant had exhausted all her monetary recourses/ savings in purchasing the said residential plot and regularization of the same, the complainant again started saving for the construction of her house at the said property. Now, the complainant intended to construct her house at the said property and accordingly, approached the opposite party Nos..4 & 5 to issue Fard of Mutation/ Jamabandi of the property in question in favour of the complainant being in possession of the said property by way of Agreement/ Exhibit Conveyance Deed dated 25.01.2010 vide application dated 01.04.2021. However, to the utter shock of the complainant, the opposite party No..4 & 5 vide report dated 9.4.2021 stated that "as per Mutation dated 17-18 in Khasra No.33//14-15 ownership of Prabhjot Kaur d/o Gurdial Singh is missing... The mutation in favour of Veetika Sharma d/o Anoop Sharma on the basis of Agreement dated 25.01.2010 cannot be done as there is no balance land in the name of Prabhjot Kaur in land records". The perusal of the report dated 09.04.2021 clearly shows that the opposite party Nos.1 to 3 had misrepresented the complainant and concealed the true facts regarding ownership of the plot in question situated at White Avenue (colony developed by the said O.Ps.). It is settled principle of law that "no one can transfer a better title than he himself has", however, the opposite party Nos. No.1 to 3 have made a wrong/incorrect statement of facts being the owner in possession of the plot in question. Thus, having offered possession of the said plot without proper title amounts to deficiency in service under the Consumer Protection Act, 2019. The perusal of the preceding paras clearly show that the complete approach of the O.Ps is to cause harassment and grave financial distress to the complainant for its ulterior motives of restrictive trade practice and unfair trade practice for which the O.Ps. No.1 to 3 are liable for deficiency in service. The aforesaid actions of the O.Ps. No.1 to 3 have caused prejudice to the complainant and has also caused grave mental harassment and monetary loss as well and the complainant prayed as follows:-
(a) Direct the opposite parties to execute Mutation/ Jamabandi concerning plot No.74-75, measuring 210 sq. yds. bearing Khasra No.33//14, 15, situated at Gandasi Wala (i.e. White Avenue Colony), Tehsil & District Amritsar in favour of the complainant on the basis of Agreement/ Conveyance Deed dated 25.01.2010;
Or in Alternative: Direct the O.Ps. No.1 to 3 to allot a similarly situated plot to the complainant at Gandasi Wala (i.e. White Avenue Colony), Tehsil & District Amritsar and execute conveyance deed for the same in favour of the complainant;
(b) Direct the O.P.s No.1 to 3 to pay interest @18% p.a. on the total consideration paid qua plot no.74-75 vide Agreement/ Conveyance Deed dated Exhibit 25.01.2010 (i.e. Annexure C-1) from the date of its payment till execution of Mutation/ Jamabandi of the plot in question in favour of the complainant;
(c) Direct the O.Ps. No.1 to 3 to pay Rs.1,00,000/- as compensation for deficiency in service & unfair trade practice causing mental & physical harassment and for causing monetary loss to the complainant;
(d) Direct the O.Ps. No.1 to 3 to pay Rs.25,000/- on account of litigation expenses; and
(e) Any other or consequential relief that this Commission deems fit may be granted to the complainant.
Alongwith the complaint, the complainant has placed ion record affidavit of complainant Ex. C-1, copy of agreement/ conveyance deed Ex. C-2, copy of regularization certificate Ex. C-3, Application dated 1.4.2021 and report dated 9.4.2021 Ex. C-4
2 Notices were issued to the opposite parties, but none has appeared on behalf of opposite parties, consequently, the opposite parties were proceeded against exparte.
3 The combined and harmonious reading of pleadings and documents placed on record is going to prove that the complainant has purchased a property situated at Gandasiwala (White Avenue Colony) Amritsar. The sale deed was executed in favour of complainant on 25.1.2010 by opposite party No. 1 being special power of attorney holder of opposite party No.2 further through special power of attorney holder opposite party No. 3. Copy of sale deed is Ex. C-2. The complainant paid a sum of Rs. 3,15,000/- as such, the complainant has become owner in possession of the above said property. Subsequently, the complainant had applied for regularisation of said plot from Municipal Corporation, Amritsar. In this regard, requisite fee for regularisation of plot was deposited. Later on, M.C. Amritsar issued a regularization certificate dated 23.7.2015 which is Ex. C-3 on record. After that the complainant was willing to construct her house at the said property and as such she approached the opposite parties No. 4 and 5 to issue Fard of mutation/ Jamabandi of the property in question in favour of complainant being in possession of the said property by way of conveyance deed dated 25.1.2010 vide application dated 1.4.2021. However, to the utter shock of the complainant, the opposite party No..4 & 5 vide report dated 9.4.2021 stated that "as per Mutation dated 17-18 in Khasra No.33//14-15 ownership of Prabhjot Kaur d/o Gurdial Singh is missing... The mutation in favour of Veetika Sharma d/o Anoop Sharma on the basis of Agreement dated 25.01.2010 cannot be done as there is no balance land in the name of Prabhjot Kaur in land records". The perusal of the report dated 09.04.2021 clearly shows that the opposite party Nos.1 to 3 had misrepresented the complainant and concealed the true facts regarding ownership of the plot in question. As such, the opposite parties have committed deficiency in service, unfair trade practice and restrictive trade practice, therefore, the complainant is entitled for relief.
4 To prove her version, the complainant has placed on record her duly sworn affidavit Ex. C-1, copy of sale deed Ex. C-2, copy of regularization certificate Ex. C-3, Application dated 1.4.2021 and report dated 9.4.2021 Ex. C-4.
5 The evidence led by the complainant on the file goes unchallenged and unrebutted as Opposite Parties are proceeded against exparte in the present complaint and there is no reason on the file as to why the evidence in the shape of affidavit and other documents produced by the complainant be not believed. Otherwise also, due notice was issued to the Opposite Parties and opposite parties did not appear in the commission in order to contest the complaint which shows that the Opposite Parties have nothing to say upon the allegations leveled against them by the complainant. As such, the complainant is entitled to the relief claimed in the complaint and it stands established on record that the complainant is approaching the opposite parties several times but the opposite parties did not care to resolve the matter, not only committed deficiency in service, but also indulged in an unfair trade practice.
6 On the perusal of documents placed on record it is very much clear that the complainant has purchased the land from the opposite parties No. 1 to 3 and it is also very much clear that opposite parties No. 4 and 5 are the service providers by virtue of stamp amount of sale deed and mutation fee and opposite party No. 4 was duty bound to check the status of the property for whose sale deed was to be executed and further mutation of the property was to be entered by opposite parties No. 4 and 5 within 30 days of execution of sale deed as per mutation fee of Rs. 150/- was received on 25.1.2010 vide receipt No. 86 as Ex. C-4 and as per Ex. C-4 dated 1.4.2021/ 9.4.2021 the mutation could not be done as no land exists in the revenue record in the name of opposite party No. 1. It is failed to understand that if there was no sufficient land then how the opposite party No. 4 has executed the sale deed in favour of the complainant. The opposite parties No. 1 to 3 are duty bound to enter the mutation, as such opposite parties No. 1 to 3 are liable to pay the compensation as they have not entered the mutation in favour of the complainant till date, as such they are also liable to pay the compensation to the complaint for gross deficiency in service as they have failed to get the mutation entered/sanctioned in the name of the complainant against the consideration received by them. The Hon’ble Supreme Court of India in case Lucknow Development authority Vs M.K. Gupta (1994) 1 SCC Page 243 held that these statutory authorities are included under this legislation. The legislative intention is thus clear to protect a consumer against services rendered even by statutory bodies. The text, therefore, is not, if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility. Hon’ble Supreme Court of India has further held that harassment of a common man by public authorities is socially abhorring and legally impermissible. If the Joint Sub Registrar or his deputy, commits mistake in noting down the transfers or encumbrances qua the particular immovable property/ properties, then there is no reason to hold that he would not be liable to compensate for the said deficiency in service. Even if the service provider fails to complete the mutation of the property despite lapse of several months, it amounts to deficiency in service. Same view has been taken by Hon’ble National Commission, New Delhi in Revision Petition No. 1444 of 2004 titled as The Joint Sub Registrar Vs. TMT, Maragatham decided on 5th March, 2007 that if the Joint Sub Registrar issue erroneous/defective encumbrance certificate, then he would be liable for deficiency in service and would be proceeded under the Consumer Protection Act, 1986. Same view has been taken by Hon’ble National Commission, New Delhi in Revision Petition No. 1603 of 2012 titled as Punjab Urban Planning & Development Authority (PUDA) Vs. Smt.Neelam Kumari decided on 12.02.2013. So, from the entire aforesaid rulings/ law laid down by Hon’ble Supreme Court of India as well as Hon’ble National Commission, New Delhi, it is clear that service for getting mutation after depositing of proper fee amounts to service to be provided by the revenue authorities to the applicant/ complainants. As such, this case is duly covered under the Consumer Protection Act, 1986.
7 The complainant has relied upon Civil Appeal No. 4000 of 2019 titled as Samruddhi Co-operative Housing Society Ltd. Vs Mumbai Mahalaxmi Construction Pvt. Ltd. in which it was held that in such type of matters there is continuing cause of action as such, the present complaint is also within limitation. Moreover, the services like mutations are also under the Consumer Protection Act, as such, this commission has jurisdiction to try and decide the present complaint.
8 The complainant has purchased the said plot for construction of her residential house but due to negligence of opposite parties she is failed to get the mutation entered and sanctioned in her favour concerning to plot No. 74 and 75 measuring 210 Sq Yard bearing Khasra Number 33//14 and 15. Due to non sanctioning of mutation in favour of complainant, she has not become absolue owner of the property. Moreover, in the sale deed which is Ex. C-2 executed in favour of complainant, there is specific covenant that in case of defect in the ownership vendor qua the sold property in that event, the seller is liable to pay the entire expenditure/ consideration/ loss to the vendee. Moreover, by spending huge amount for purchasing the said plot, the complainant is not enjoying the said property.
9 For the foregoing reasons, the present complaint is allowed and the opposite parties are directed either to enter and sanction the Mutation/ Jamabandi concerning plot No.74-75, measuring 210 sq. yds. bearing Khasra No.33//14, 15, situated at Gandasi Wala (i.e. White Avenue Colony), Tehsil & District Amritsar in favour of the complainant on the basis of Agreement/ Conveyance Deed dated 25.01.2010
or
the opposite parties opposite parties No.1 to 3 are directed to allot a similarly situated plot to the complainant at Gandasi Wala (i.e. White Avenue Colony), Tehsil & District Amritsar and execute conveyance deed for the same in favour of the complainant within three months. The complainant has been harassed by the opposite parties 1 to 3 for a long time, the complainant is also entitled to Rs. 50,000/- (Rs.fifty Thousand only) as compensation on account of harassment and Rs. 11,000/- (Rs. Eleven Thousand only) as litigation expenses. Opposite Parties are directed to comply with the order, failing which the complainant shall be entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission
26.12.2022
