BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

Kiran Kwatra through his General Power of attorney Jasmer Singh Saini r/o Flat No.C-65, Kendriya Vihar-II, Sector-25, Panchkula. 

                                                                          ….Complainant

Versus

The Central Government Employee Welfare Housing Organization through its Chief Executive  Officer, 6th Floor, ‘A’ Wing, Janpath Bhawan, Janpath, New Delhi.                                                                                                                                                                                ….Opposite Party

COMPLAINT UNDER SEC. 35 OF THE CONSUMER PROTECTION ACT, 2019.

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

For the Parties:   Sh. Durgesh Aggarwal, Advocate for complainant.  

Sh. Ramesh Chander Sharma, Advocate for OP.

ORDER

(Satpal, President)

1.             The brief facts of the present complaint are that the Central Government Employee Welfare Housing Organization(hereinafter referred as CGEWHO/OP) advertised a Housing scheme in the year 2002 consisting of 240 dwelling units known as Kendriya Vihar-II at GH-8, Sector-25, Panchkula. In pursuance of the advertisement, the complainant applied for a 3 BHK flat in the above said scheme and a flat bearing no.C-65 was allotted to the complainant by the OP vide their allotment letter dated 20.04.2006 with a tentative price of Rs.10,40, 000/- however at the time of completion of project, it was escalated up to Appx. Rs.16,00,000/- due to the faulty calculations of OP. The complainant deposited the entire demanded amount of Rs.16,00,000/- in installments upto year 2006 and was issued the possession cum occupation letter dated 05.01.2007 by the OP. It is stated that the OP CGEWHO put a restriction of 5 years on executing the conveyance deeds with the allottees to stop the further sale purchase of the dwelling units. After the end of this restriction i.e. in the year 2011, till 2017, OP No.1 had executed about 180 conveyance deeds in favour of the allottees out of total 240 allottees. The CGEWHO received two demand notices bearing Memos nos. ZO004/EO012/UE020/DELET/000005462/18353 and ZO004/ EO012/UE020/DELET/000005462/18354 dated 19.12.2012 issued by the HUDA/HSVP demanding Rs.33,39,978/- and 2,22,18,247/- issued by the HUDA/HSVP. The CGEWHO slept over the above said demand notices dated 19.12.2012 issued by HUDA and did not informed the complainant or Management Committee of KV-II Society with regard any of such Enhanced Land Compensation demand  as raised by HUDA till 29.05.2017. It is pertinent to mention that the letter dated 29.05.2017 was only supplied to one of the resident of the Society only on 08.05.2018 with the reply to the RTI application. The OP CGEWHO vide their letter dated 04.07.2018 informed the complainant along with other allottees that an amount of Rs.10,11,76,751/- is due to be paid to HUDA towards enhancement. It was also informed that HUDA has come out with an offer of 40% rebate on the payable amount under One Time Settlement Scheme and under the OTSS Scheme, after rebate of 40% the amount comes to Rs.6,07,06,050/-.The OP CGEWHO also sent the apportioning calculations  for each type of flat with the HUDA. As per the apportioning calculations sent by the CGEWHO, the liability of complainant after availing the OTSS comes out to Rs.2,87,292/-. As per the advice of CGEWHO vide their letter, complainant alongwith other society residents approached the office of HUDA on 05.07.2018 for depositing their respective share to avail the benefit of OTSS and met their finance officer Sh. Vitul Kumar, who informed that they had allotted the plot to CGEWHO and did not recognize the individual allottees of a Group Housing Plot. Therefore, they cannot accept the money except from CGEWHO. The OP  vide their letter dated 12.07.2018  refused to accept the amount of enhancement from the one of the similar situated allottee and retuned his cheque with a further  advise that it should be immediately deposited with the K.V.II Aptt. Co.OP Group Housing Society Ltd. The K.V.II Society also refused to accept the payment and advised that is should be deposited with CGEWHO only. 

                From the above mentioned/communications it is clear that the complainant is ready and willing to deposit his share towards enhancement under protest by reserving his rights to recover it at later stage i.e. after the decision of court cases but the OPs on the one hand are issuing demand notices and on other hand are not accepting the payment from the complainant. In March 2018, the complainant approached Sh.Ishwar Lal, Project Manager, CGEWHO, Mohali (Authorized Representative of OP No.1) for executing the conveyance deeds in favour of the allottees of Panchkula project but he refused to execute the convenance deed due to verbal orders of Mr.M.K.Maiti, Dy. Director, CGEWHO. He requested him to provide the copy of any written order on the basis of which the execution of conveyance deeds had been stopped but he could not provide any written order. He visited the office of CGEWHO again and again but all in vain. Due to the act and conduct of the OP, the complainant has suffered a great mental agony, physical harassment and financial loss; hence, the present complaint.

2.             Upon notice OP appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable; mis-joinder and time barred. The OP stated that it is an autonomous body under the aegis of Ministry of Housing & Urban Affairs, Govt. of India and is established for development of housing schemes at selected places, across India, on no profit – no loss basis as a welfare measure. The CGEWHO Rules of allotment do not permit the sale of flat to avoid speculative bookings. The CGEWHO Rule 35 deals with transfer and it has been clearly provided that beneficiary can dispose of the unit only after the transfer of the legal title in favour of the beneficiary, with prior permission of the Society. However, some allottees sell the properties by way of General Power of Attorney which practice is not legally valid. The complainant is original allottee of Flat No.65 and a letter dated 17.06.2010 was received from the complainant stating therein that she had executed a GPA dated 17.06.2010 in favour of Sh. Jasmer Saini in respect of above said flat and in future all correspondence regarding said flat may be done at GPA address. A letter dated 01.07.2013 was received from Sh. Jasmer Saini to CGEWHO stating therein seeking for permission to execution of Conveyance Deed in the light of GPA. Moreover, later on Sh.Jasmer Saini filed the complaint against CGEWHO to execute the Conveyance Deed in his favour in light of GPA and the same was dismissed but the said relevant fact has not been disclosed by the complainant. It is stated that the allottees are not supposed to sell or alienate the dwelling unit for specified period as per Rules and no transfer is allowed for such period as mentioned in the para no.4 of this complaint. The present complaint has been filed through Sh.Jasmer Saini who is General Power of Attorney of complainant with no details of said GPA. It is probably a case of sale against Rule 35 ibid by way of GPA. The OP has been executing conveyance deeds only in favour of the original allottee or the successors/legal heirs if allottee is not alive as per the law. In this case allottee has never come forward to have the conveyance deed executed and only GPA holder is coming forward whom the OP does not recognize as allottee. OP has already executed the conveyance deeds in favour of the allottees as per the rules of organization on receiving the final payment.  At this stage, after seeing the conduct of the complainant it may be possible that the subject dwelling unit had been purchased out of the benami transaction and in contravention to the rules of the CGEWHO. It is submitted that the OP completed the project, handed over the possession and even executed conveyance deeds in respect of willing allottees.  The project relevant for this case is set up on a plot measuring 19893.4 Sq. Metres, i.e. Plot No.GH.8, Sector-25, Panchkula. OP constructed the group housing project as per the approved plan and the dwelling units have already been handed over to the allottees since 2006. The Occupation certificate was granted by the authority vide their memo no.57/87 dated 14.07.2006. The enhancement initially demanded by HUDA was paid by the OP. However, on 26.12.2012 the office of OP received two letters/memos, both dated 19.12.2012 comprising two separate demands for enhancement of cost allegedly on account of enhancement of compensation for land acquisition awarded by court. Each allottee is aware of this fact and they have not cooperated with OP in dealing with the situation and are evading their liability to pay the enhancement that may be found justified. So far as the demand of HUDA  is concerned, detailed correspondences has taken place  between OP and HUDA authorities for calculating  the correct quantum of enhancement  however  stalemate  has not ended despite best efforts of the OP. The HUDA has not considered the detailed series of communications and without responding to the same show cause notice dated 31.08.2017 has been issued under Section 17(3) of HUDA Act, 1977 directing the OP to show cause within 30 days as to why an order of resumption of the site and/or building and forfeiture of whole or any part of the money, if paid in respect thereof should not be made. Subsequently a representation by way of an appeal was also submitted to the Chief Administrator vide letter no.T-106/4/1 dated 20.09.2017, explaining that total cost had been paid by OP and no dues certificate was also issued by the HUDA. It has also been conveyed by the OP that enhancement being demanded by HUDA was communicated to beneficiaries of the project but allottees have conveyed that demand of enhancement is prima facie misleading and factually wrong. The complainant and other similarly situated allottees are sleeping over the matter and are also aware of demands of HUDA since day one and are not willing to pay the enhancement even after three years of the letter dated 29.05.2017. It is stated that the rebate would have been availed only if all the beneficiaries had paid the amount. A large numbers of beneficiaries have not come forward to avail the benefit of rebate, only few beneficiaries were willing to pay and HUDA refused to accept the partial payment as the default cannot be removed by making partial payment of the total enhancement payable. It is also submitted that the complainant has already been offered the possession and allottees were even invited for execution of conveyance deeds when resumption notices had not been issued by the HUDA. However, complainant has sold the flat in violation of CGEWHO Rules and is being approached by her GPA. Now, once the notice for resumption of plot has been issued on account of default  in payment  of enhancement, further conveyance deeds have been stopped  the for the time being and only after the issue is resolved with HUDA, conveyance deeds would be executed. As the such, the conveyance deed at this stage would not serve any purpose until the overall solution is found to the existing issues. There is no question of any refusal to execute the conveyance deed to the allottees but her GPA holder/actually the purchaser is approaching as explained above. The execution of conveyance deed has been deferred till the time the issue of payment of enhancement is resolved. The complainant is well aware of her own act of selling the unit against the Rules. It is further stated that it has never slept the matter as alleged. It is further stated that it wrote a letter dated 21.01.2013 to HUDA seeking details of court order/ competent authority through which such compensation had been awarded so that further necessary action in this regard could be taken. Since then a large number of correspondence has been made including filing of a Civil Writ Petition no.28954/2017 before the Hon’ble Punjab and Haryana Court against HUDA. Under such circumstances the OP No.1 cannot be held responsible for beneficiaries not availing the benefit of schemes floated by HUDA and hence, there is no deficiency on the part of OP and prayed for dismissal of the present complaint.

3.             The learned counsel for complainant has tendered the affidavit as Annexure C/A along with documents Annexure C-1 to C-13, C-15 & C- 16 in evidence and closed the evidence by making a separate statement. On the other hand, the Authorised representative of OP has tendered the affidavit Annexure R-A alongwith documents Annexure R-1 to R-8 and closed the evidence.

4.             We have heard learned counsels for the parties and gone through the record, minutely and carefully.

5.             During arguments, the learned counsel for the complainant, reiterating the averments made in the complaint contended that the OP, while adopting a discriminatory policy of pick and chose by applying different yardsticks to allottees  of OP, has already executed conveyance deed in favour of more than 180 flats out of total 240 flats. It is contended that possession of the flat has already been delivered to the complainant after receiving full and final payment. It is prayed that the OP may be directed to execute the conveyance deed in favour of the complainant and be further directed to pay the compensation on account of harassment and litigation charges as similar directions have already been issued by the Commission in complaint no.294 of 2018 titled as Ram Kumar Aggarwal Vs. The Central Govt. Employee & Ors. (Annexure C-12) vide order dated 26.08.2019, wherein similar question of laws and facts were involved. Concluding the arguments, it is stated that the said order, having being upheld by the Hon’ble State Commission, Haryana in F.A.No.1112 of 2019(Annexure C-13) vide order dated 16.01.2020, have already been implemented by the Op by way of executing the sale deed along with payment of compensation etc.

6.             On the other hand, the learned counsel for the OP, while reiterating the averments made in its written statement, contended that the issue of payment of enhanced price has not yet finally been settled and thus, the complaint is liable to be dismissed. The learned counsel raised strong objections to the maintainability of the complaint on the ground that the present complaint has been filed through Sh.Jasmer Singh, who is General Power of attorney of the complainant. It is contended that the complainant in violation of Rule 35 has executed the GPA in favour of Sh.Jasmer Singh Saini, which is not permissible under the rules. Concluding the arguments, the learned counsel prayed that the complaint deserves dismissal in the light of law laid down by the Hon’ble Apex Court in the case of Suraj Lamp & Industries Limited Versus State  of Haryana reported in 2012(1) SCC 656.  

7.             After hearing the rival of contentions of the learned counsel for the parties & scrutinizing the entire record available on the file minutely and carefully, it has been found that the sole issue in the present complaint is with regard to the execution of the conveyance deed qua the allotment of flat no.C-65 in favour of the complaint. Admittedly, the complaint no.294 of 2018 titled as Ram Kumar Aggarwal Vs. The Central Government Employee Welfare Housing Organization & Anr. involving similar questions of laws and facts was disposed of by the Commission on 26.08.2019. In the present complaint, similar arguments on similar grounds have been advanced by both the learned counsels for the parties. The learned counsel for OP has raised only one additional issue that the complainant has executed GPA in favour of Sh.Jasmer Singh Saini in violation of Rule 35 of Central Government Employees Welfare Housing Organization(CGEWHO).

8.             Apart from the objection pertaining to the execution of GPA by the complainant, no new issue or objection has been raised by the learned counsel for the OP in the present complaint. All the objections and contentions as raised in complaint no.294 of 2018 have been reiterated.

9.             Before touching the merit of the case, we deem it expedient to discuss the Rule 35 of Central Government Employees Welfare Housing Organization(CGEWHO) pertaining to which, violations on the part of the complainant has been alleged by the OP. For the sake of clarity and convenience said Rule 35 is reproduced as under:-

                The beneficiary will not be permitted to dispose of the dwelling    unit by way of Sale/Transfer/Assignment/Long Lease/By    execution of          Power of attorney, under any circumstances, before transfer of the legal   title of the dwelling unit by the CGEWHO in favour of the beneficiary. Any        such transfer shall result in the     cancellation of allotment of the dwelling    unit, in which case the allottee will pay penalty, as prescribed under the      heading ‘cancellation charges’. After transfer of the legal title of the   dwelling unit in favour of the beneficiary, he/she may dispose of     his/her dwelling unit, with prior permission of the concerned     ‘Kendriya Vihar Apartment Owners Association/Society’ as per its       bye laws’.

10.            From a perusal of the above, it is evident that any transfer by way of sale/transfer/assignment /long-lease by execution of power of attorney by the allottee would result in the cancellation of the allotment of the flat. In the present case, neither the OP has taken any step towards the cancellation of the flat nor has placed on record any such document by which it can be inferred that the flat was sold in favour of the GPA-holder. No details of sale transactions as alleged by the OP has been produced on record. It is well settled legal proposition that mere bald assertions, which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value.

11.            As the OP itself has failed to abide by the provision contained in 35, therefore, it can draw no benefit out of the alleged sale transactions; hence, we find no force and substance in the contentions raised by the learned counsel for the OP pertaining to the execution of GPA by the complainant.

12.            On the other hand, the learned counsel for the complainant, while rebutting and controverting the contentions of the OP pertaining to the execution of GPA,  has categorically stated that the GPA is genuine and bonafide  and the beneficiary i.e. Kiran Kwatra is still alive and no sale transactions was carried out vide said GPA(Annexure C-16). We agree with the contentions of the learned counsel for the complainant and hold that the execution of GPA does not create any bar on the execution of Conveyance Deed by the OP in favour of the complainant and thus, the objection raised by the OP pertaining to the execution of GPA is rejected. The issue of payment of enhanced cost to HUDA has already been dealt with in details in the said complaint no.294 of 2018.

13.            After hearing the learned counsel at length in complaint no.294 of 2018 following directions were issued against the OP as under:-

1. That OP No.1 shall execute the conveyance deed in favour of the complainant as prayed for. It is made clear that OP No.1 shall inform the complainant about the value/amount of the stamp papers to be purchased by the complainant within a period of 15 days from the receipt of the copy of order and thereafter, OP No.1 shall get the conveyance deed executed within a period of one month.
2. To pay an amount of Rs.25,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/-as cost of litigation.

14.            We deem it expedient, for the sake of clarity and convenience, to reproduce the observation made in the said complaint in part no.12 and 13 as under:-

12.     “From the above facts, it is crystal clear that there is no rule/regulations/provisions in bye-laws empowering the OP No.1 to deny the execution of conveyance deed after receiving full and final payment from the allottees. The denial by the OP No.1 to execute the conveyance deed as prayed for by the complainant suffers from serious legal infirmities as we find that 180 conveyance deeds has already been executed by it out of 240 and that there is no legal embargo/impediments over the OP No.1 to execute the conveyance deed in favour of complainant during the pendency of resumption proceedings. We do not agree with the contention of the OP No.1 that execution of conveyance deed during the pendency of resumption proceedings would be meaningless and serve no purpose at this stage. The OP no.1 has no authority to apply different yardsticks to different allottees at its own whims & fancies. Since OP No.1 has executed several conveyance deeds even after the initiation of the resumption proceedings, it cannot be permitted to take the shelter of the plea of pendency of resumption proceedings in the case of the complainant. It is well settled propositions of law that mere bald assertions which are not corroborated and substantiated by any adequate, cogent and credible evidence do not carry any evidentiary value. In the present case, the OP No.1 has miserably failed to justify as to how & why it is denying the execution of conveyance deed in the case of complainant.

13.     Moreover, Huda has not asked OP No.1 to stop the further execution of conveyance deed. Therefore, in our considered opinion, the assertions of OP No.1 that execution of conveyance deed in favour of complainant would serve no purpose and meaningless at this stage till the issue of enhancement cost is not finally settled & resolved, is just a figment of its imagination & the same does not contain even an iota of truth. At this juncture, it would be pertinent to mention here that conveyance deed contains a special recital in it authorizing the OP No.1 to cancel/revoke  the conveyance deed, in case, enhancement cost is not paid by the allottees. Therefore, there is no bar over the OP No.1 to recover the amount of enhancement cost even after the execution of conveyance deed. Needless to mention here that no person can be deprived of his property save/except by the authority of law as provided in Article 300A of the Constitution of India. The aforesaid discussion leads us to irresistible conclusion that there is a lapse and deficiency on the part of OP No.1 while declining to execute the conveyance deed in favour of complainant; hence the complainant is entitled to relief. The complaint is dismissed qua the OP No.2 as no relief has been claimed against it”.

15.            We have no plausible reason to differ with the findings as recorded in the said complaint vide order dated 26.08.2019 and thus, the present complaint is partly allowed with the following directions to the OP:-

1. The OP shall execute the conveyance deed in favour of the complainant as prayed for. It is made clear that OP No.1 shall inform the complainant about the value/ amount of the stamp papers to be purchased by the complainant i.e. the original allottee within a period of 15 days from the receipt of the copy of order and thereafter, OP shall get the conveyance deed executed within a period of one month.

2. The complainant shall submit an affidavit with the OP mentioning that the GPA is genuine and has not been revoked cancelled so far by the complainant.

3. To pay an amount of Rs.25,000/- to the complainant on account of mental agony and harassment.

4. To pay an amount of Rs.5,500/-as cost of litigation.

16.            The OP shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OP failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

Announced:13.06.2022

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

        Member                           Member                          President

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

                                         Satpal                                        

President