F.A.No.1618/2008 against  C.C.No.293/2006, DISTRICT FORUM-1,Visakhapatnam.         

Between

1.Sri Madhula  Kasi Rao,

   S/o.late Subrahmanyam, Hindu,

   Hindu, Aged 41 years, Employee,

   R/o.49-14-27, Lalithanagar,

   Visakhapatnam-16.

2. Sri Karanam Varalakshmi Narasimha Sankara

    Vijaya Kumar, S/o.late Venkataswamy,

    Hindu, aged 43 years, male Junior Assistant,

    City Police Commissionerate, Suryabagh,

    Visakhapatnam.                                                 …Appellants/

                                                                             Complainants

               And

1.Sri M.Maheswara Rao, S/o. father’s name not

   Known to the complainants, Hindu, aged 45 years,

   Male, Sub-Inspector of Police, Gopalapatnam

    Police Station, President, Police Officers Association,

    Visakhapatnam City , Visakhapatnam.

2. Sri Ch.Srinivasa Rao, S/o. father’s name not

   Known to the complainants, Hindu, aged 45 years,

   Male, APRC 2648, CAR, Visakhapatnam ,

   Secretary, Police Officers Association,

   Visakhapatnam City , Visakhapatnam.

3. Sri D.Gowri Sankar,  S/o. father’s name not

   Known to the complainants, Hindu, aged 49 years,

   Male, APRC 352, CAR, Visakhapatnam ,

   Treasurer, Police Officers Association,

   Visakhapatnam City , Visakhapatnam.

4. Sri K.Simhachalam, S/o. father’s name not

   Known to the complainants, Hindu, aged 53 years,

   Male, HC  88, Harbour Police  Station , Ex.President,

   Police Officers Association,

   Visakhapatnam City , Visakhapatnam.

5. Sri K.Suri, S/o. father’s name not

   Known to the complainants, Hindu, aged 56 years,

   Male, ARHC  722, Home Guard Organization, Ex.Secretary

   Police Officers Association,

   Visakhapatnam City , Visakhapatnam.

6. Police Officers Association,

    Visakhapatnam City , Visakhapatnam,

    Rep. by its President , Gopalapatnam Police Station,

    Visakhapatnam.                                                       … Respondents/

                                                                                    Opp.parties

Counsel for the Appellants     :  M/s. N(P).Anjana Devi

Counsel for the respondent  :    Mr.A.S.C.Bose offers to file vakalat

                                             for R1,R2 , R3 and R5

                                             R4 and R6 served . None appeared.      

 QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT

                                        AND

                 SMT.M.SHREESHA,  HON’BLE MEMBER

WEDNESDAY, THE TWELFTH DAY OF OCTOBER,

      TWO THOUSAND ELEVEN.

         (Typed to dictation of   Smt.M.Shreesha, Hon’ble Member)
                                                ****

Aggrieved by the order in C.C.No.293/2006  on the file of District Forum-1,Visakhapatnam,  the complainants preferred this appeal. 

        The brief facts as set out in the complaint are that the complainant no.1 purchased  a site measuring 167 sq.yds. in survey no.48  situated at Madhurawada, Pathaparadesipalem  Village, Kapula Uppada  Panchayat, Bheemunipatnam Mandal, Visakhapatnam  Dist. for a sale consideration of Rs.16,700/-   from Aasi Appa Rao  and another  represented by their GPA holder   Sri Uddaraju Venkata Satyanarayana  Raju.   Opp.party no.4  got the same registered with the office of Sub Registrar, Bheemunipatnam, Visakhapatnam  in document no.6926/01 of 2001 dt.  7.12.2001. Complainant no.2 also purchased  a site measuring 167 sq. yards  in the  same survey  number and village as mentioned above for complainant no.1  on 13.12.2001  from Sri Dwarampudi Satyanarayana Reddy and  5 others represented by their General Power of Attorney holders etc . i.e.  respondents 4 and another Sri Uddaraju Venkata Satyanarayana Raju  and he  registered the said site under document no.975/01.    The complainants are in peaceful possession and enjoyment of the said sites   from the date of purchase.  

 On 27.2.2002  opp.party no.4 representing Police Officers’ Association, Visakhapatnam   as its President and other opp.parties received a sum of  Rs.44,000/- each  from the complainants   (stating that Rs.16,700/-  is  towards execution of the Sale Deed and Rs.27,300/- towards Developmental Charges  to the Urban Development Authority, Visakhapatnam) promising that they would execute   a Sale Deed conveying   a site  measuring 167 sq.yds. each to the  complainants in Survey no.48   at Madhurawada, Pathaparadesipalem, Kapulauppada Grama Panchayat, Visakhapatnam  but they did not execute any Sale Deed in their  favour  and  have been postponing the matter.    Opp.parties  1 to 3 who are President, Secretary and Treasurer of  opp.party no.6  and opp.parties 4 and 5   who are managing the affairs of opp.party no.6   are liable  to compensate the complainant for deficiency of service.   Opp.parties 1 and 2 issued a notice on 22.12.2004  stating that the Association passed a resolution on 19.12.2004  to the effect that each of the member shall pay an amount of Rs.15,000/- additionally on or before 31.1.2005  towards developmental charges  and they have not accounted   an amount of Rs.27,300/- received by them from the complainants towards developmental charges.  The complainants submit that  though the opp.parties have  received an amount of Rs.44,000/-  each from them   they have not executed the Sale Deeds as promised by them.   Alleging deficiency in service on the part of the  opp.parties, the complainants approached District Forum to direct the opp.parties  to execute the Sale Deeds in favour of the complainants  in respect of 167 sq.yds. of site each to the complainants in S.No.48 Kapula Uppada  Madhura Patha Paradesipalem  Village, Kapula Uppada Village Panchayat, Bhimunipatnam Mandal, Visakhapatnam and   in the event of  failure to execute the Sale Deeds  to pay a sum of Rs.3 lakhs each to the complainants being the present market value of the sites, to pay interest @ 18% p.a. till realization to pay damages of Rs.50,000/- each to the complainants
        Opposite parties 1 to 3  and 5  filed counter   denying the allegations made by the complainants and contending that   employees of the Police Department formed an Association  for the welfare of the employees.  Fourth opposite party as President of the said Association  collected an amount of Rs.44,000/-   from each member of the Association  for acquiring  land, for developing the agricultural land into house  site, to prepare a layout   and for approving the same from VUDA,   to construct drainages  and  roads,   to get electrification and to register  one such plot in an extent of 167 sq.yards to each member of the Association.  Opp.parties submit that they have also paid the amounts to fourth  opp.party. First opp.party paid Rs.88,000/-  for two plots, second opp.paty  also paid Rs.88,000/- for two  plots  and third opp.party paid Rs.44,000/- for one plot and obtained receipts. But the fourth opp.party deceived the members and misappropriated  the funds to the tune of Rs.37,00,000/- and he was suspended  for the same and criminal cases were filed against him .  subsequent to  the suspension of fourth  opp.party  and receipt of show cause notice from VUDA, the Commissioner of Police interfered    and conducted a meeting and advised to form a  new society  to take care of the welfare of the police personnel and accordingly a new Society was formed with name and style as “Visakha City Police Housing Colony Residential Welfare Association”  registered under Society’s Act  and opp.parties 1 to 3 were elected as President, Secretary and Treasurer for the said Society.  A  general body meeting  was conducted and with the opinion of the majority of the members, a resolution was passed to the effect  that each member who is having 167 sq.yards has to  contribute  Rs.15,000/-  and who is having 200 sq,yards has to contribute Rs.20,000/- for getting the approval of VUDA   and to get conversion of the agricultural land into house sites and to construct  drainages and roads etc.   Accordingly 245 members paid their contributions and these opp.parties put in  their  best efforts and  complied the conditions in  the BLP  and got  approved  the layout by VUDA . The complainants failed to deposit their contributions as per the  resolution .    The opp.parties submit that they are not necessary parties to this case and  prayed for dismissal of the complaint with costs.

        The  District Forum based on the  evidence adduced i.e.  Exs.A1 to A4 and B1 to B9  and pleadings put forward   dismissed the complaint.

        Aggrieved by the said order  the complainants preferred this appeal.   
        The facts not in dispute are that vide Exs.A1 and A2  an amount of Rs.44,000/- each  has been paid by the complainants for plots nos.13 and 72 respectively in survey no.48 for 167 sq.yards in Kapula Uppada Panchayat of Bheemunipatnam Mandal. Exs.A1 and A2 are dt.27.2.02. The 6^th opp.party arrayed herein is the Police Officers Association and opp.parties 1 to 3 are the President, Secretary and Treasurer respectively of this Association.  Opposite parties  4 and 5 are the previous President and Secretary of the Association who are managing the affairs of the Association.  On 22.12.04 opposite parties 1 and 2 issued a notice   stating that opposite party no.6 passed a resolution on 19.12.04 to collect an additional sum of Rs.15,000/- from each of the members on or before 31.1.05 towards developmental charges.  It is the complainant’s case that 4^th opp.party while collecting Rs.44,000/- on 27.2.02 represented that out of this Rs.44,000/- Rs.27,300/- is towards the developmental charges.  It is the  respondents/opp.parties’ contention that when the 4^th opp.party was the President of opposite party no.6 Association he collected Rs.44,000/- per member for each plot of 167 sq.yards. and misappropriated funds to a tune of 37 lakhs and he was suspended from the service. Thereafter a  new Welfare Association was formed and registered and opposite parties 1 to 3 were elected as President, Secretary  and Treasurer respectively. It is the respondents/opp.parties’ case that a resolution has been passed by the Association that each member who intended to purchase 167  sq.yards should pay Rs.15,000/-   towards  developmental charges. It is evident from the record that Ex.B6 dt.18.5.06 specifies that the final lay out was approved by VUDA.   The District Forum has dismissed the complaint on the ground that the complainants ought to have filed a suit for specific performance.  The Apex Court  in Bangalore Development Authority (BDA)  v. Syndicate Bank (bank)  reported in (2007) 6 SCC 711  while considering a dispute between the BDA  and bank relating to delay in the delivery of some of  the houses referred  to the decisions in Lucknow Development Authority (1 Supra) Gaziabad Development Authority vs. Balbir Singh, HUDA vs. Darsh Kumar and Gaziabad Development Authority  vs. Union of India  laid down the following principles:

(a)            to (f) …..

(g).  where full payment is made and possession is delivered, but title deed is not executed without any justifiable cause, the allottee may be awarded compensation for harassment and mental agony in addition to appropriate direction for execution and delivery of   title deed.

        (h) to (j)

It is therefore to be held that such obligation constitutes “service “ and comes within the meaning of Section 2(o)  of the Act. The execution of sale deed being an integral part is also “service”.

From the afore mentioned judgement we are of the considered opinion that  it is clearly laid down that the  Consumer Fora has jurisdiction to adjudicate matters with respect to the facts in the instant case.  While observing so,  we notice  from the record that the first  complainant purchased by virtue of a registered Sale Deed  dt.7.12.2001 from Aasi Appa Rao and others represented by GPA  one Udda Raju Venkatasatyanarayana Raju and the fourth opposite party. Likewise the second complainant purchased from Dwarapudi Satyanarayana Reddy and five others   represented by GPA holder Udda Raju Satyanarayna Raju and fourth opposite party  vide Sale Deed 13.12.01. Thereafter it is not in dispute that vide A1 and A2 , opposite party no.4 received Rs.44,000/- from each of the complainants.  But Sale Deeds were not executed. Opp.parties 4 and 6 did not contest before the District Forum. Opposite party no.3 also admits in his counter that an amount of Rs.44,000/- was collected by the then President opp.party no.4 who misappropriated an amount of Rs.37 lakhs and was subsequently suspended.  We find force in the contention of the appellants/complainants that admittedly when an amount of Rs.44,000/- was paid evidenced under Exs.A1 and A2  towards plot nos.13 and 72 respectively admeasuring 167 sq.yards in Survey no.48  and the Sale Deeds specify that the amounts paid were Rs.16,700/-  by each of the complainants, we see no substantial grounds  for the opp.parties to once again demand an amount of Rs.15,000/- towards developmental charges.  We are of the considered view that if  the amounts were misappropriated by opp.party no.4 it is for the opp.party no.6 Association to recover the amounts from opp.party no.4 and the concerned authorities and the burden of payment of additional amount of Rs.15,000/- cannot be fastened on these complainants. Therefore we set aside the order of the Dist Forum and allow this appeal directing opp.parties 1 to 6 jointly and severally  to register the said plots in the name of the complainants within 4 weeks from the date of receipt of this order together with costs of Rs.5000/-.

In the result this appeal is allowed and order of District Forum is set aside directing opp.parties 1 to 6 jointly and severally  to register the  said plots admeasuring 167 sq.yards in survey no.48 in Kapula Uppada Madhura Patha Paradesipalem Village, Kapula Uppada Village Panchayat, Bhimunipatnam Mandal, Visakapatnam in    the name of the complainants within 4 weeks from the date of receipt of this order and also pay Rs.5000/- towards costs.  

                                                                                PRESIDENT

                                                                                MEMBER

Pm*                                                                           Dt.12.10.2011