PRESENT: SRI P.V. NAGESWARA RAO, M.A., LL.M., PRESIDENT

 

Friday, 2^nd day of January 2009

V. Mahadeva Reddy, S/o Eswar Reddy, aged 48 years,

D.No. 2/268-2, T.B. Road, Proddatur, Kadapa Dist.                   ….. Complainant.

 

Vs.

 

The Proddatur Municipality, Rep. by its

Commissioner, Proddatur Municipality, proddatur,

Kadapa district.                                                                       …….. Respondent.

           

This complaint coming on this day for final hearing on 30-12-2008 in the presence of Sri G. Trivikram Singh, Advocate for complainant and Sri Lalu Saheb,  Advocate for respondent and upon perusing the material papers on record, the Forum made the following:-

 

1.                This is a complaint filed by the complainant under section 12 of C.P. Act seeking direction to the respondent to execute the sale deed and register the HIG plot bearing No. 225 in favour of the complainant and to give possession of the plot, to pay interest @ 18% on Rs. 70,000/- from 18-7-1998 till the date of realization and also @ 18% on Rs. 20,000/- from 10-12-2005 till the date of realistion, to take back Banker Cheque for Rs. 20,000/- bearing No. 11787, dt. 10-12-2005 to pay Rs. 20,000/- for causing physical and mental agony and Rs. 2,000/- towards costs of the complaint.  

 

2.                The brief facts of the complaint is as follows:- The complainant stated that the respondent acquired 85 acres of land from private persons about 26 years back under Integrated Development for Small, Medium Township (IDMST) scheme. The respondent divided the land in to 771 plots as HIG and HIG groups and named it as Netaji Nagar lay out and advertised for sale of plots. The complainant was attracted by this advertisement and decided to purchase one HIG plot at Netaji Nagar, Proddatur. On 20-4-1998 he participated in the auction held by the respondent and he was the highest bidder for plot No. 225 in HIG and the prices for the plot is fixed as Rs. 90,000/- to the extent of Ac. 10.99 cents, on the same day of auction he paid Rs. 22,500/- towards 25% of the auction amount. On 18-7-1998, the complainant paid an amount of Rs. 47,500/- under chalaln No. 1853.  Total he paid Rs. 70,000/- and there is no communication from the respondent. The complainant came to know that Civil litigation is pending between previous land owners and the respondent. The said litigation was ended in the year 2005.

 

3.                Meanwhile, the purchasers of HIG plots formed as society and made a representation to the respondent for getting the plots registered in their favour. But, the respondent did not respond to the representation of the society which formed for the welfare of the purchasers. Whenever the complainant approached the respondent, he used to state that lateron they will intimate the date of registration. Believing the words of the respondent, the complainant kept quite for some time.  While so, the complainant received a letter dt. 6-12-2005 from the respondent in the letter the respondent stated that as the complainant failed to pay balance amount of Rs. 20,000/- and show caused the complainant for forfeiting the amount as he failed to pay the remaining amount. Immediately, the complainant approached the respondent and questioned about the sanctity of letter dt. 6-12-2005. The respondent tried to convince the complainant and instructed to pay the remaining amount and he promised that there will be no problem in registration. As per the instructions of the respondent, the complainant paid remaining balance sale consideration of Rs. 20,000/- through one demand draft bearing No. 11787, dt. 10-12-2005 along with covering letter. By this it is clear that the complainant had paid 75% of the plot amount on or before 18-7-1998 and remaining amount was paid on 10-12-2005.   There was no due from the side of the complainant to the respondent towards the price of plot. The full payment made by the complainant was recorded in the accounts of the respondent. 

 

4.                It is the bounded duty of the respondent to register the plot No. 225 in favour of the complainant as he paid entire amount to him. But, to his surprise he received a letter dt. 9-6-2008 from the respondent. In that the respondent called up on the complainant to pay Rs. 2,62,448/- towards the remaining sale consideration and returned the demand draft given by the complainant on                10-12-2005. It is pertinent to state here that there are no penalization clauses in the terms and conditions. Unilaterally, the respondent has increased the prices of the plots for getting abnormal profit. The complainant has already performed his part of obligation of paying remaining amount. But the respondent has failed to comply his part of obligation of getting registration of plot in favour of the complainant. Till today the respondent has not registered a single plot in favour of any purchasers. It shows his gross negligence on his part. The complainant is not laible to pay such huge amount for registration of the plot No. 225. 

 

5.                The respondent filed its counter denying all the allegations made by the complainant except those which are specifically admitted by the respondent in the counter. The respondent took objection that the Hon’ble Forum is not having any territorial jurisdiction to adjudicate the present complaint as the subject matter of the complaint is not within the purview of the C.P. Act. The respondent being a Municipality is governed by the Municipal Act which is self contained Act and the complaint is liable to be dismissed in limine. The respondent further stated that it is true that the plots in Netaji Nagar, Proddatur to tender cum auction and the complainant participated in the auction on 20-4-1998 and he was the highest bidder for plot No. 225 in HIG category and the complainant deposited 25% of action amount with the respondent. As per the sale conditions and instructions the proddatur Municipal council  approved the said highest bid of the complainant vide C.R. No. 38, dt. 26-5-1998  following which the respondent issued order in R.C. No. 473/87 G1, dt. 26-6-1998 to the complainant directing him to pay Rs. 67,500/- being remaining amount 3/4^th and instructed the complainant to register the plot within 30 days from the date of receipt of the said order.   As per terms and conditions of the aforesaid sale of the said plot and in the said order the respondent categorically informed the complainant that in case of default the highest bid of the complainant would be cancelled and deposited amount paid by the complainant would be forfeited. 

 

6.                The respondent further stated that the complainant paid Rs. 47,500/- on 18-7-1998. Thus the complainant paid Rs. 70,000/- towards balance amount and he failed to pay the full bid amount. He became defaulter and his highest bid stood cancel as per terms and conditions. The respondent denied that there is no any civil litigation between the respondent and 3^rd parties and as such there is no question of the complainant coming to know that due to civil litigations between the previous land owners and this respondent, the registration of Netaji Nagar plots were kept pending and such averments are made by the complainant for the purpose of the complaint and the complainant is put to strict proof of the same.  

 

7.                The respondent stated that at this stage there are 25 plots both under HIG and HIG categories were knocked down in favour of the highest bidders including the complainant in the aforesaid auction and among the said 25 successful bidders five bidders got the plots registered as per the terms and conditions of the said agreement and the rest of them, including the complainant became defaulter. The criteria for register the above said plot in favour of the complainant is not that developing of Netaji Nagar but the payment of balance amount was not paid by the complainant within time and he became a defaulter.  The respondent further denied that the purchasers of HIG and HIG plots have unregistered society and made representations to this respondent for getting plots register in their favour and this respondent did not respond to the representation of the society was denied by the respondent. 

 

8.                The Andhra Pradesh State Government (Housing Municipal Administration and urban development Department) passed G.O. (MS) No. 249 MA, dt. 7-5-1984 and exercising the powers under the said G.O. the respondent endeavored to put its plots abutting Jammalamadugu Road, including the aforesaid plot, to fresh auction. The respondent is entitled under law to resort to such fresh auction and the complainant cannot question the same. On humanitarian ground the respondent put the consideration before Proddatur Municipal council which passed a resolution, considering the case of 9 persons including complainant, to register plots, respectively at present rates fixed by the committee of the respondent in exercise of the powers conferred on it under the said G.O.Ms No. 249. The prices of the aforesaid plot No. 225 is fixed by the said committee in exercise of the powers conferred on it under the said G.O. (M.S) No. 249. The price for the plot No. 225 is fixed as Rs. 3,32,448/- and the complainant has given opportunity to pay the balance amount of Rs. 2,62,448/- to get the plot registered in favour of him. But without availing the opportunity given by the respondent and the complainant preferred the said complaint the respondent reserves its right to withdraw said opportunity given to the complainant.    It is true that the respondent formally issued a show cause notice dt. 6-12-2005, to the complainant as to why the deposit made by the complainant should not be confiscated by the respondent since the complainant had already defaulted and his aforesaid highest bid stood cancelled as per the terms and conditions of the agreement between the complainant and the respondent. It is not true to say that the complainant, having approached the respondent, questioned the sanctity of the said show cause notice, that the respondent tried to convince the complainant and instructed the complainant to pay remaining amount, that the respondent promised that there will be no problem in registration. It is submitted that the complainant on his own violation sent a demand draft, dt. 10-12-2005 for                  Rs. 20,000/- without any justification or bonafides, to the respondent. It is submitted that simply because the complainant sent such demand draft, the same is not binding on the respondent and the respondent is not liable to register the aforesaid plot in favour of the complainant as the previous bid of the complainant has already lapsed as stated supra. Hence, the said demand draft has not been accepted by the respondent. The present complaint is against public policy and is liable to be dismissed. 

 

9.                On behalf of the complainant Ex. A1 to A13 were marked and on behalf of the respondent Ex. B1 to B12 were marked.

10.              On the basis of the above pleadings the following points are settled for determination.  

i.        Whether the complainant is entitled to ask for the registration of the HIG plot bearing No. 225 and to execute the sale deed and give possession of the plot?

ii.       Whether there is any deficiency of service on the part of the respondent?

iii.              To what relief?

 

11.              Point Nos. 1 & 2.  The complainant was attracted by the advertisement given by the respondent through pamphlets that they have acquired 85 acres of land from private persons under Integrated Development for Small, Medium Township (IDMST). The respondent divided the land in to 771 plots as HIG and HIG Groups. The complainant decided to purchase one HIG plot at Netajinagar at layout of Proddatur  and he participated in the auction held by the respondent and he was the highest bidder for plot No. 225 in HIG and the price of Rs. 90,000/- was fixed to the extent of Ac. 10.99 cents. On the same day of auction the complainant paid Rs. 22,500/- towards the 25% of auction amount. Ex. A1 is the Xerox copy of pamphlet issued by the respondent. On 18-01-1998 the complainant paid Rs. 47,500/- to the respondent. Ex. A2 is the Xerox copy of challan costs issued by the respondent for Rs. 6,000/-, Rs. 16,500/-, Rs. 47,500/- and Rs. 100/-.  The complainant paid Rs. 70,000/- i.e. ¾ of the bid amount to the complainant on or before 18-1-1998. The complainant was asking for the registration and the respondent postponed the same by saying some reasons. The respondent also stated that they will intimate the registration date to the complainant in due course.   In the mean time the purchasers of HIG plots formed as society and made representations to the respondents for getting plots registered in their favour.   Ex. A3 is the Xerox copy of representation dt. 4-3-2005 made by the Natajinagar Development society. Even for the representation given by the purchasers of HIG plots the respondent did not respond. Whenever, the complainant approached the respondent he used to say they will intimate the date of registration in due course. On 6-12-2005 the complainant received a letter from the respondent that the complainant failed to pay the balance amount of                  Rs. 20,000/- and show caused the complainant for forfeiting the said amount as he has failed to pay remaining amount. Ex. A4 is the Xerox copy of show cause notice dt. 6-12-2005. Immediately the complainant approached the respondent and questioned the sanctity of letter dt. 6-12-2005. The respondent tried to convenience the complainant and instructed him to pay the remaining amount and promised that there will be no problem in registering the plot. According to the instructions of the respondent the complainant paid remaining balance sale consideration of Rs. 20,000/- through D.D. bearing No. 11787,d t. 10-12-2005 along with covering letter. Ex. A5 is the Xerox copy of covering letter               dt. 10-12-2005. Ex. A6 is the Xerox copy of D.D. for Rs. 20,000/-. Ex. A7 is the courier receipt dt. 12-12-2005. 

 

12.              The complainant counsel argued that it is clear that the complainant had paid Rs. 75% bid amount on or before 18-7-1998 and the remaining amount was paid on 10-12-2005 as per the directions of the respondent and there is no due on the part of the complainant. The full payment was recorded in the respondent account.   Now it is the bounded duty of the respondent to register the plot No. 225 in favour of the complainant as he paid the entire amount. While so the complainant received a letter dt. 9-6-2008 from the respondent wherein it is stated that the complainant has to pay Rs. 2,62,448/- towards remaining sale consideration and return the D.D, which was paid by the complainant                   on 10-12-2005. The counsel for the complainant argued that the it is pertinent to state that there are no penalization clauses in the terms and conditions unilaterally the respondent has increased the prices of the plots for getting abnormal profit as the complainant has already performed his part of obligation and paid the total amount. But the respondent has filed to comply the obligations on his part of keeping plots registration in favour of the complainant. Even till today the respondent has not registered any plot in favour of the purchasers of HIG plots. The complainant alleged gross negligence on the part of the respondent. Ex. A8 is the Xerox copy of Netajinagar Municipal colony 1^st ward price list. Ex. A9 is the Xerox copy of the respondent list of registered plots and unregistered plots. Ex. A10 is the endorsement of respondent dt. 9-6-2008. Ex. A12 is the legal notice issued by the complainant to the respondent. Ex. A13 is the minutes of respondent council. 

 

13.              The complainant issued legal notice to the respondent but the respondent has not replied to the legal notice. The respondent counsel argued that the Hon’ble Forum has no jurisdiction to entertain the present complaint. The respondent being the Municipality Governed by Municipal Act, which is a self contained act and the complaint, is liable to be dismissed on that ground.    The respondent counsel stated that it is true that the plots of Netaji Nagar, proddatur to tender cum auction and the complainant participated in the said auction on  20-4-1998 and he was the highest bidder for plot No. 225 in HIG category and he deposited 25% of the auction amount on the same day.  As per sale consideration the respondent has approved the said highest bid of the complainant in vide C.R. No. 38, dt. 26-5-1998 following which the respondent issued order in R.c. No. 473/87G, dt. 22-6-1998, to the complainant  directing him to pay Rs. 67,500/- being remaining amount and instructed the complainant to register the plot within 30 days from the date of receipt of the said order. The counsel further argued that the according to the terms and conditions of the aforesaid regarding sale of the plot the respondent categorically informed the complainant that in case of defaulted the highest bid of the complainant will be cancelled and deposit amount paid by the complainant would be forfeited. On 18-7-1998 the complainant paid Rs. 47,500/- that means the complainant had paid Rs. 70,000/- towards balance amount and he failed to lay full bid amount and he became defaulter and his highest bid stood cancelled as per the terms and conditions. The respondent counsel argued that the there is no civil litigation pending between the respondent and 3^rd parties, as such there is no question of the complainant coming to know that due to civil litigations between previous land owners and this respondent,  the registration of Netajinagar plots were kept pending are not true. 

 

14.              Ex. B1 is the Xerox copy of application form. Ex. B2 is the Xerox copy of terms and conditions  of the agreement. Ex. B3 is the Xerox copy of order in R.C. No. 473/87, dt. 22-6-1998. Ex. B4 is the Xerox copy of show cause notice dt. 6-12-2008.  Ex. B5 is the Xerox copy of statement of registration of plots in the year 1998. Ex. B6 is the Xerox copy of R.C No. 473/87, dt. 30-7-1998. Ex. B7 is the Xerox copy of transfer of sale agreement.   Ex. B8 is the Xerox copy of another transfer of sale. Ex. B9 is the Xerox copy of extract Govt. of A.P dt. 7-5-1984. Ex. B10 is the Xerox coy of minutes of meeting conducted in respondent corporation.  Ex. B11 is the Xerox copy of minutes of the respondent, dt. 2-2-2007. Ex. B12 is the Xerox copy of extract issued by the Govt. of A.P dt. 20-11-1996. 

 

15.              The respondent counsel further argued that there are 25 plots both HIG and MIG were knocked down in favour of highest bidders, including the complainant in the aforesaid auction and among the said 25 successful bidders five bidders got the plots registered as per the terms and conditions of the said agreements and the rest of them, including the complainant became defaulters. The criteria for registering the aforesaid plot in favour of the complainant is not that of developing Netaji Nagar but the payment of the balance of the auction amount by the complainant within the time and he became defaulter. The respondent denied that the purchasers of HIG and MIG plots have made a representation for getting the plots registered in favour of them is not true. The A.P. state Government (Housing Municipal Administration and Urban Development Department) passed G.O.(M.S) No. 249 M.A dt. 7-5-1984 and exercising the powers under the said G.O. the respondent endeavored to put its plots abutting Jammalamadugu Road including the aforesaid plot, to fresh auction and the complainant cannot questioned the same. On humanitarian grounds the respondent put the consideration before Proddatur Municipal Council which passed resolution considering the case of nine persons including the complainant to register the plots respectively at present rates fixed by the committee of the respondent in exercise of the powers considered on it according to the said G.O.Ms. No. 249.   The prices of the said plots is fixed by the said committee and the prices for plot No. 225 is fixed as Rs. 3,32,448/- and the complainant has paid  Rs. 70,000/- way back in the year 1998 and the remaining amount was fixed as    Rs. 2,62,448/- and the complainant has to pay the remaining amount to get his plot registered in his favour. Without availing the opportunity given by the respondent the complainant preferred the said complaint and the respondent reserves its right to withdraw the said opportunity given to the complainant. The respondent agreed that they have issued a show cause notice to the complainant as to why the deposit made by the complainant should not be considered by the respondent since he has already stood defaulter. According to his convenience the complainant paid Rs. 20,000/- through D.D. and he is not accepted for the same. The complainant is not liable to question the respondent  not for registering the said plot they have received legal notice from the complainant.   But without receiving the reply from the respondent the complainant rushed the Hon’ble Forum so they have not issued any reply to the said notice. 

 

16.              By perusing the documents and arguments by both the counsels it is clear that the complainant paid total amount towards HIG plot No. 225. The amount was received by the respondent way back in the year 1998 and dragged the matter successfully for so many years saying that the Civil Litigation is pending between he respondent and 3^rd parties. After completion of litigation the respondent now stating that the complainant stood defaulter and he has is not paid the total bid amount within stipulated period and there is no deficiency of service on the part of the respondent. On humanitarian grounds they have issued a list of 9 persons including the complainant to register the said plot by paying the balance amount which was fixed by municipal council.  The respondent wants to take shelter under G.O.M.S No. 249, dt. 7-5-1984 which was issued by A.P. State government. Assuming for a movement that according to the respondent version that the complainant failed to pay the balance amount within stipulated time. When the complainant paid balance amount of Rs. 20,000/- why he has agreed for the said amount. The complainant stood defaulter in the year 1998 itself but he has collected the amount from the complainant in the year 2005. We are of the opinion that the respondent dragged the matter stating that the plots has to be developed and registration will be done after the development. 

17.              The objection taken by the respondent is  that the C.P. Act does not have the purview to entertain the said complaint.  But AIR 1994 SC 787 the lordship have clearly stated that the C.P. Act 69 of 1986 Section 21, 16, 11 2 (i) commission jurisdiction complaint about service in relation to immovable property commission’s jurisdiction is not ousted.  C.P. Act 68 of 1986 section 2 (o) service definition words ‘any’ and ‘potential’ meaning of words and phrases words ‘any and ‘potential. C.P. Act 68 of 1968 section 2 (o) stood before an amendment in the year 1993 service “housing construction or building activity covered by definition of services as it stood even before inclusion of expression ‘housing construction’ by 1993 amendment.  Similarly when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. Like wise in the other decision the State Commission, New Delhi their lordship have held that according to C.P. Act 1986 section 2 (i) (c) complaint negligence flat complainant got herself registered for allotment of flat in 1980 complainant ‘s priority No. left out in the draw complaint filed whether complainant entitled for flat at cost prevailing in 1987 “Yes”. Basing on the above judgement we are of the opinion that the respondent cannot collect the balance amount from the complainant by stating that the Municipal Council has approved and on humanitarian grounds they come forward to register the plot in favour of the complainant by collecting difference amount. According to the National Disputes Redressal Commission, New Delhi in appeal 154 of 2003 clearly stated that the C.P. Act is a full of well legislation and is an important check on the arbitrator exercise of powers by the state. In another decision of National Consumer Dispute Redressal Commission, New Delhi in F.a. No. 73/2002 C.P. Act 1986 section 2(i)(g) Housing plot auction purchaser delivery possession of after three years complaint fled seeking relief’s dismissed by the State commission being not maintainable under the Act. Held that it would fall within definition of deficiency of science under act. The enhancement of the costs of the plots is also not maintainable. In another decision National Commission, New Delhi in R.P. No. 798/2005 their lordship held that the respondent has to collect the same rate of the alternative plot from the complainant at which the original plot was allotted to him. After hearing the argument of  the learned counsel for the respondent and perusing the material on records there is no dispute that the allotment letter was issued to the complainant way back in the year 1998 and the complainant had paid the bid amount in the year 2006 itself and the respondent unnecessarily dragged the matter so many years. We found gross negligence and deficiency of service on the part of the respondent for which he is liable to pay compensation to the complainant. 

 

18.              Point No. 3. In the result, the complaint is allowed. Directing the respondent to execute sale deed and register with the expenses of the complainant and deliver the vacant possession of the plot bearing No. 225. The respondent is directed to collect Rs. 20,000/- (Rupees Twenty Thousand only) towards balance amount along with interest @ 9% p.a. from 6-12-2005 till the date of registration of the plot.   Rs. 2,000/- (Rupees Two Thousand Only) is awarded towards mental agony and Rs. 1,000/- (Rupees one thousand only) towards costs of the complaint to the complainant, within 60 days from the date of receipt of this order. 

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open forum, this the 2^nd day of January 2009        

 

 

 

 

 

Witnesses examined.

Ex. A1         X/c of plots details and pamphlet of R1.

Ex. A2         X/c of challans.

Ex. A3         X/c letter from plots allotties along with signatures to be respondent,

dt. 4-3-2005.

Ex. A4         X/c of show cause notice from be respondent to complainant,

Ex. A5         X/c of covering letter from complainant to the respondent,

Ex. A6         X/c of D.D for Rs. 20,000/- dt. 10-12-2005.

Ex. A7         X/c of Professional Courier receipt, dt. 12-12-2005.

Ex. A8         X/c of list of the plot members.

Ex. A9         X/c of list of registered plot members.

Ex. A10       X/c of letter of endorsement, dt. 9-6-2008 issued by respondent to the    

Ex. A11       X/c of  Telegraphe legal notice from complainant’s advocate to

Ex. A12       Telegram receipt No. 44, Sl.No. 120.

Ex. A13       X/c of booklet of proddatur Municipal Proddatur urgent meeting,

dt. 31-5-2008.

 

 

Ex. B1         X/c of application form of V. Mahadeva Reddy the complainant.

Ex. B2         X/c of terms and conditions of the plots of Netajinagar.

Ex. B3         X/c of letter from be  respondent to the complainant, dt.30-5-1998.

Ex. B4         X/c of show cause notice from respondent to the complainant,

dt. 6-12-2005

Ex. B5         X/c of list of registered the plots in favour of the members.

Ex. B6         X/c of letter from the respondent to sub-registerar,

Proddatur, dt. 30-7-1998.

Ex. B7         X/c of transfer of sale schedule – II, form – II.

Ex. B8         X/c of transfer of sale schedule – II, form – II.

Ex. B9         X/c of G.O. (MS) No. 249 M.A, dt. 7-5-1984.

Ex. B10       X/c of attending members at the time of tender.

Ex. B11       X/c of Members  council meeting.

Ex. B12       X/c of G.O (Rt) No. 71 MA, dt. 20-1-1996.

 

1)      Sri G. Trivikram Singh,  Advocate.