Haryana

Panchkula

CC/148/2015

ROHIN DHAR. - Complainant(s)

Versus

SHAM SUNDER PROMOTERS. - Opp.Party(s)

S.K SUD.

20 Apr 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                                      

Consumer Complaint No	:	148 of 2015
Date of Institution	:	12.08.2015
Date of Decision	:	20.04.2016

                                                                                          

1.       Dr.Robin Dhar aged about 60 years s/o Sh.Girdhari Lal Dhar.

2.       Dr.Girija Dhar aged about 58 years w/o Dr.Robin Dhar.

Both residents of House No.8, Swastik Vihar, Phase-I, MDC, Sector-5, Panchkula.

                                                                                          ….Complainant

Versus

 

1.       Sham Sunder Promoters, Swastik Vihar, Mansa Devi Complex, Sector-5, Panchkula through its Chairman, Office at SCO No.3, Sector 17-E, Chandigarh.

2.       Sh.Vijay Pal Singh s/o Late Sh.Raghunath, R/o House No.494, Sector-7, Panchkula, General Manager, Sham Sunder Promoters, Swastik Vihar, Mansa Devi Complex, Sector-5, Panchkula.

3.       Swastik Construction through its promoter Sh.Sham Sunder, Swastik Vihar, SCO No.3, Sector 17-E, Chandigarh.

                                                                         ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                  Mr.Dharam Pal, President.

                             Mr.S.P.Attri, Member.

 

For the Parties:     Mr.S.K.Sood and Mr.Nitin Sood, Advocates for the complainants. 

                             Mr.Vijay Pal, GM for the OPs.

 

ORDER

(Dharam Pal, President)

1. The complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that the Ops were owners of the land measuring 16.84 acres comprised in village Bhainsa Tibba, Panchkula developed phase-I, and II, Swastik Vihar a residential cum commercial group housing complex as per the license No.111 of 1984 dated 29.10.1984 given by the Director General, Town and Country Planning, Haryana, Sector-18, Chandigarh vide memo No.606-5 DT/85/2437 dated 16.02.1985 and dated 15.02.1996. The complainants have purchased a house No.8, ground floor, measuring 1250 square feet on a plot measuring about 185 square metres with backyard and a compound wall. The abovesaid land was independent houses with permission to built first and second floor measuring 1150 square feet and 900 square feet respectively in Swastik Vihar, Phase-1, Mansa Devi Complex, Sector-5, Panchkula from the Ops for a sale consideration of Rs.6,60,000/- with the rights to enjoy the property comprised in common areas existing on the common land with other appurtenances. The house was delivered to the complainants by the Ops on 24.06.1993 and the complainants were using the house No.8, Swastik Vihar, Phase-I, Mansa Devi Complex, Sector-5, Panchkula as owners but the same was not registered in their favour. The complainants requested the Ops several times for registry of sale deed but to no avail. It is more than 22 years since the possession was delivered to the complainant. Thereafter, on the assurance of the Ops, On 03.04.2015, the complainants purchased the requisite stamp papers for Rs.82,700/- and also got typed the conveyance deed for getting the conveyance deed executed and registered the house in question in their favour. The complainants have also got appointment from the office of Sub-registrar, Panchkula but the whole day, the Ops did not turn up. Even the Ops have received the whole consideration amount and it is the duty of the Ops to get executes and registers the sale deed/conveyance deed of the house in favour of the complainants. This act of the opposite parties amounts to deficiency in service on its part. Hence, this complaint.
2. The OPs No.1 and 2 appeared before this Forum and filed written statement by taking some preliminary objections & submitted that the complainants did not disclose any deficiency in service or any irresponsible act on the part of Ops No.1 and 2. It is submitted that the complainants did not approach the Hon’ble Forum with clean hands. It is submitted that the complaint is time barred as the complainants were allotted the premises in the year 1993 and they have never approached the Ops No.1 and 2 or any authority thereafter. It is submitted that at the time of allotment, the complainants had executed an agreement/terms and conditions of allotment vide which the complainants undertook that the terms and conditions were acceptable to them and they would abide by the provisions of Haryana Apartment Owners Act & the Rules framed thereunder, therefore, the complainants themselves violated the terms and conditions of the allotment by raising unauthorized additions and alterations in the demised premises. It is submitted that the Op No.1 had issued a show cause notice to the complainants to remove the violations within a period of 15 days vide letter No.SC-10306 dated 15.02.2003 but the complainants were failed to remove the same which were noticed by the Department of Town and Country Planning, Haryana during the course of inspection as the OP No.1 applied for the occupation certificate. It is submitted that The Town and Country Planning, Haryana had issued a letter bearing memo No.ZP-24-SD (B)-2010/13518 dated 11.10.2010 vide which the department has pointed out as many as 8 violations in the project which were stated to be non-compoundable and directed to get the same removed and also imposed penalties on Op No.1. It is submitted that the Ops No.1 and 2 informed all the allottees to remove the violations as per the directions of the department. It is submitted that the Ops No.1 and 2 also issued letter to all the allottees including the complainants vide bearing memo No.SC-13127 dated 25.06.2011 to remove the violations within 21 days from the issuance thereof to enable the Ops No.1 and 2 to get the completion certificate/occupation certificate from the department. It is submitted that the conveyance deed could not be executed in favour of the allottees without necessary NOC and the completion/occupation certificate issued from the office of Director Town and Country Planning, Haryana. It is submitted that the complainants did not comply with the notice which was again noticed by the District Town Planer, Panchkula and a show cause notice under sub-section 2 of section 10 of Haryana Development and Regulation of Urban Areas Act, 1975 was issued by the District Town Planner, Panchkula exercising the powers of Director Town and Country Planning, Haryana to Op No.1 and the complainants vide memo No.DTP/2013/1992 dated 24.09.2013. Thereafter, the complainants and Op No.1 appeared before the issuing authority on 03.10.2013 at 11.00 am and the proceedings are still pending before the authorities. It is submitted that those allottees removed the violations which noticed by the department, the department had granted the occupation certificate regarding those premises vide letter memo No.ZP-24-SD (B)-2011/18683 dated 14.12.2011, thereafter, the Ops No.1 and 2 also issued a general notice to all concerned allottees of those buildings to get their conveyance deed executed vide letter No.SC-13513 dated 02.01.2012. It is submitted that Ops No.1 and 2 also did efforts to get the occupation certificate regarding SCO No.44, House No.9 and 12 of their own from the department vide letter memo No.ZP-24-Vol-II/SD (BS)/2014/20656 dated 01.09.2014. It is denied that the complainants requested several times to the Ops No.1 and 2 to come in the office of Sub Registrar, Panchkula to execute the sale deed. It is submitted that the Ops No.1 and 2 could not execute the conveyance deed without obtaining the NOC/Occupation Certificate from the office of Director, Town and Country Planning, Haryana which would only be issued after the violations are removed. Thus, there is no deficiency in service on the part of OPs No.1 and 2 and prayed for dismissal of the complaint.
3. The counsel for the Op No.3 did not file any written statement and also opted the written statement filed by Ops No.1 and 2.
4. The counsel for the complainant has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-23 and closed the evidence. On the other hand, the counsel for the OPs No.1 to 3 has tendered into evidence by way of affidavit Annexure R-A alongwith documents Annexure R-1 to R-8 and closed the evidence.
5. We have heard the learned counsel for the parties and have also perused the record.
6. In response to the advertisement dated 23.03.1988 floated by the Ops the complainant applied for allotment of flats vide application dated 28.12.1993 (copy not placed on the file). The complainants alongwith application for allotment of flat attached the terms and conditions duly signed by them dated 30.12.1992. The house No.8 in Phase-1, Swastik Vihar, MDC, Sector-5, Panchkula was allotted by the Ops on 02.01.1993 (Annexure C-1) for a consideration of Rs.6,60,000/-. As per Annexure C-3, the areas of built up flats as under:-

“Ground Floor: 1250 sq. ft. covered area with 540 sq. ft. Rear courtyards and mini car parking area.

First Floor:  1150 sq. ft covered area with 250 sq. ft. uncovered Terrace.

Second Floor:  900 sq. ft. covered area with 175 sq. ft. uncovered terrace.”

The possession of above said flat/house was offered to the complainants on 15.06.1993 (Annexure C-5) and actual possession was delivered on 24.06.1993 (Annexure C-16).      As per condition No.8 of the terms and conditions of the allotment, the deed of apartment was to be executed only after the flat buyer has paid in full the consideration and external development charges. The abovesaid clause is reproduced as under:

“The Deed of Apartment for the flat shall be in accordance with the provisions of Haryana Apartment Ownership Act 1983 and the Rules framed thereunder or as may be prescribed by the authorities. The Deed of Apartment will be executed only after the Flat Buyer has paid in full the consideration and External Development charges and all other charges mentioned herein. The stamp duty, registration and other charges for executing the Deed o Apartment will be payable by the Flat Buyer. In the event of the (transfer of the land or a part thereof in favour of the) various Flat Buyers of the proposed Building, their association, Society or and body under any law or otherwise, the transfer charges including stamp duty shall be payable by the Flat Buyer proportionately.”

The case of the Ops is not that the complainants have not paid the sale consideration or other charges and due to that reason the conveyance deed was not got executed in their favour. From the record placed on file, it is clear that the ground floor of the flat was handed over to the complainants duly built up by the Ops. In the offer of possession letter (Annexure C-5) there is no mention about the area which was covered/built up and handed over to the complainants. The Ops issued a show cause notice dated 15.02.2003 (Annexure R-2) to the complainants to the effect that it has come to their notice that you (complainants) have done some violations/encroachment and thus committed breach of allotment, detail of which is as under:-

“Encroachment on back side with angle iron and barbed wire and construction of first floor without written permission and submission of relevant documents and drawings.”

The complainants were called upon to show cause as to why they had committed these violations/encroachments within a period of 15 days failing which the same will be removed by them at the risks and cost of the complainants and in that situations expenses so incurred will be recoverable from the complainants. But the Ops have not placed any documents to show what action has been taken by them to remove the abovesaid encroachments/violations. It is also pointed out that the Ops have not mentioned in the abovesaid show cause notice that how much area was actually covered by the complainants over and above area constructed by the Ops and handed over to the complainants. However, on 25.06.2011, the Ops (Annexure R-4) have intimated the complainants for the first time that the Director Town and Country Planning, Haryana, Chandigarh has observed that in house No.8 the following existing area is non-compoundable and has to be removed by the complainants failing which the occupation/completion certificate cannot be issued in respect of the house/flat and the same will be removed at their cost by the authority and the Ops directed the complainant to remove/demolish the same within 21 days. The existing covered area statement is as under:-

     Existing covered area statement (in square meters)

Within           Non-                            within          Non-                              within    Non-

Zoned            Compoundable       zoned         Compoundable     zoned              Compoundable

118.187         11.59                     118.187                 11.59                      118.187          11.59

 

After two years, on 24.09.2013, the Ops also got issued another show cause notice to the complainant through District Town Planner, Panchkula and raised the following objections:-

“i)      You have erected construction over first and second floor without obtaining any permission from Director, Town and Country Planning, Haryana, Chandigarh.

ii)      You have raised construction in rear side of the residence which is not compoundable and have constructed excess covered area on Ground Floor. The unauthorized construction has not been removed.

iii)     You have constructed non compoundable boundary wall for the purposes of personal courtyard and thus encroached common areas, which have been reduced.”

Surprisingly, when the possession of the flat was delivered to the complainants on 24.06.1993 which was built up by the Ops but it is not understood as to when the complainants have made violations by making constructions on first floor and second floor. The complainants have submitted a detailed reply to the above show cause notice vide letter dated 23.10.2013 (Annexure C-21) but the Ops have not taken any action on the abovesaid letter addressed by the complainants to the District Town Planner, Panchkula. During the pendency of the present complaint, the Ops were directed vide this Forum order dated 14.01.2016 to visit the site and to report this Forum whether the complainants have made any violations or not after issuing a proper notice to the complainants. The Ops issued a notice dated 19.01.2016 to the complainants that the site incharge of the Ops alongwith some engineers would visit the house on 19.01.2016 at about 5.00 pm and requested them to be present and cooperate with the staff visiting for inspection. The inspection was carried out by Priya Sharma Arc. D Architects, Canam Plaza, SCO 45(FF), Sector-11, Panchkula but in the said report,it has not been mentioned that whether the complainants were present or not at the site at the time of inspection. In the report, the covered area has been shown as under:-

Floor     Area as per plan provided by you         Area constructed on site     Excess Covd. Area

G.F.               1250 sqft                                                          1480 sqft                                                230 sqft

F.F.              1150 sqft                                                           1330 sqft                                                180 sqft

S.F.              900 sqft                                                             1200 sqft                                                300 sqft

From the above report, it seems that the architect has not demarcated the area personally and same might have been prepared on asking of the Ops. From the perusal of show cause notices, it reveals that the stand of the Ops each and every time is different and contradictory regarding violations and excess covered area.

7. The Ops allotted the constructed house No.8, ground floor and the entire payment in respect of the said house as claimed/demanded by them was made by the complainants. The complainants have constructed first and second floor. It is strange that more than 22 years have lapsed but the Ops have not got executed the registered sale deed/conveyance deed in respect of the abovesaid house in favour of the complainants. The complainants have purchased stamp papers worth Rs.82,700/- and got the conveyance deed prepared (Annexure C-2).
8. From the above discussion, it is crystal clear that the Ops are deficient in providing service to the complainants as they have failed to registered the conveyance deed in favour of the complainants and therefore, the present complaint is allowed. The Ops are directed:-

i)       To get the conveyance deed registered within a period of 3 months in favour of the complainants.

ii)      To pay a sum of Rs.50,000/- to the complainants as compensation for mental agony and harassment.

iii)     To pay a sum of Rs.10,000/- to the complainants as cost of litigation.

9. This order shall be complied with by the Ops except (i) within one month from the date of receipt of the certified copy. A copy of this order be supplied to both the parties free of costs. File be consigned to records after due compliance.

 

 

 

Announced                     (S.P.Attri)                             (Dharam Pal)

20.04.2016                     Member                                President

 

Note: Each and every page of this order has been duly signed by me.

 

                         

                                                          Dharam Pal                                                                                                President