Haryana

Karnal

CC/244/2021

Om Parkash - Complainant(s)

Versus

The Estate Officer, HSVP - Opp.Party(s)

Vinay Bansal

07 Mar 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 244 of 2021

                                                        Date of instt.28.04.2021

                                                        Date of Decision:07.03.2022

 

Om Parkash son of Shri Ganga Ram resident of House no.315-A, Khatriyan Mohalla, Karnal age -65 years, UID-284042668640.

 

                                               …….Complainant.

                                              Versus

 

The Estate Officer, HSVP, Sector-12, Karnal.

                                                                      …..Opposite Party.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member

          

 Argued by: Shri Vinay Bansal, counsel for complainant.

Shri Amit Munjal, counsel for opposite party.

 

                    (Jaswant Singh President)

ORDER:   

                

                   The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that complainant is owner in possession of property/Booth no.9, Sector-13, Extension Urban Estate, Karnal by way of registered sale deed no.4002 dated 14.08.2015, which is sole source of income of the complainant for his livelihood and his family as the complainant is handicap and unable to move without the help of other. Complainant has applied for transfer of this property in his name and completed all the formalities as required by the OP. The complainant has waited sufficiently but till date oral requests of the complainant are not being acceded by the OP. Due to non-updation of record with regard to ownership in the name of the complainant is causing hardship to the complainant. It is further averred that OP know well that with regard to this property, the OP was in litigation with the complainant upto Supreme Court of India with regard to resumption of the property in question and due to this litigation upto Supreme Court the officials of the OP are personally inimical towards the complainant and that is why the complainant is being harassed by causing delay in updation of record, despite completion of all the formalities. It is averred that OP has received the requisite fee and the formalities for transfer of the property in the name of complainant have already been completed, but OP has not transferred the property in the name of the complainant by updating its record. The OP has assured the complainant that after dealing with the objections etc.  if any the record will be updated in the name of the complainant but despite repeated requests the officials of the OP have not updated the rerecord. Then, complainant sent a legal notice dated 05.04.2021 through his counsel to OP with regard to update the record of ownership of the booth in question in the name of complainant but it also did not yield any result. Hence complainant filed the present complaint seeking direction to the OP to update the record of ownership with regard to booth no.9, Sector-13, Extension Karnal in the name of the complainant and to issue the re-allotment letter in his name and also to pay Rs.4,00,000/- as compensation for mental agony and harassment alongwith litigation expenses of Rs.55000/-.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; jurisdiction; mis-joinder and non-joinder of parties; locus standi and concealment of true and material facts. On merits, it is pleaded that booth no.9, Sector-13 extension, Urban Estate, Karnal was allotted to Shri Ram Gopal, Naresh Kumar and Kishori Lal, vide office memo no.12866 dated 15.08.1985. The possession of the site was offered/given vide memo no.15688 dated 13.09.1985. Thereafter, booth was resumed the ground of non-payment which resulted into litigation before different Foras. Ultimately, the matter was decided by Hon’ble Supreme Court. On payment of entire sale consideration, the conveyance deed bearing Vasika no.4001/1 dated 14.08.2015 was executed and registered in favour of the aforesaid allottee-Ram Gopal etc. through GPA. Thereafter, Om Parkash Gupta had applied for transferring the booth in question vide his application dated 1.10.2015 in his name being purchaser of said property by dint of sale deed no.4002/1 dated 14.08.2015 registered with the office of Sub Registrar, Karnal. Hence, it is clear that the complainant got the sale deed executed without permission of the OP.  On receiving the application of complainant for transfer of said booth, the OP in view of policies/instructions meant for transfer dated 03.06.2013, got issued publications in two leading newspaper i.e. one in Hindi and the other in English dated 19.02.2016 thereby seeking objections from General public that Om Parkash has applied for transfer of ownership of booth and in case any person is having any objection against the transfer of ownership, then he/she may submit written objections with supporting documents, in the office within 30 days and if no objection is received, then it will be presumed that there is no objection regarding the said transfer and property will be transferred accordingly. In the publication published in English newspaper, name of allottee-Kishori Lal has been wrongly mentioned as Krishan Lal and on coming to know said mistake, again a publication in this regard was made in English newspaper dated 24.02.2016.  After publication seeking objections from general public, on 24.02.2016, Smt. Krishna Devi wife of late Kishori Lal, Ramesh Kumar Vinod Kumar sons of Kishori Lal, and Divya daughter of Kishori Lal, resident of House no.1229, Sector-13, Krnal submitted an application for not transferring the said booth and submitted that Shri Kishori Lal who was allottee of booth had expired on 24.12.2007 and that Om Parkash son of Ganga Ram applied for transfer of said booth which is totally wrong since their father Kishori Lal had never given any power of attorney in favour of Om Parkash or anybody else. Thereafter, Smt. Krishna Devi wife of late Shri Kishori Lal, through registered post which was received in the office of OP on 08.03.2016 submitted the objections qua said transfer and submitted that booth was allotted in the names of Kishori Lal, Naresh Kumar and Ram Gopal by HUDA, vide memo dated 05.08.1985. Shri Kishori Lal had expired on 24.12.2007 and during his lifetime, he never gave any power of attorney/Vasiyat or agreement etc. in writing to Shri Om Parkash or anybody else. Thus, in view of objections raised by the legal heirs of Kishori Lal, the booth in question could not be transferred. The objectors i.e. legal heirs of deceased Kishori Lal raised serious objections qua the validity of the sale deed in favour of the complainant  and the validity of said document cannot decided by the Consumer Commission, which is subject matter of Civil dispute, therefore, present complaint is legally not maintainable.

3.             It is further pleaded that Consumer Commission has no jurisdiction to entertain and try any complaint resulting from transfer of title in immoveable property. It is further pleaded that this Commission has no jurisdiction to decide the matter as it is a civil dispute between complainant, GPA and legal heirs of deceased co-allottee and same requires leading of detailed evidence and proper trial, which can be done only before the civil court. It is further pleaded that the legal heirs of Kishori Lal/who have raised objections qua said transfer, are necessary and proper party and in their absence the issue cannot be decided properly. Further, GPA and original allottees are also necessary party. It is further pleaded that complainant does not fall under the definition of Consumer since the complainant had purchased booth from open market and he does not fall under the definition of consumer. It is further pleaded that the complainant is not the owner of the booth as per record. The sale deed had been executed without permission of the OP through GPA whereas one of executants of alleged GPA had already died. The whereabouts of other co-allottees is not aware.  It is further pleaded that Smt. Mukesh Gupta was acting on the basis of GPA bearing no.740/4 dated 15.11.1994 and at the time when the sale deed was executed while acting as their General Attorney, Shri Kishori Lal one of the Executants of said Power of Attorney was already expired and on account of death of Executant Kishori LaL, GPA stands automatically cancelled, and execution and registration of subsequent sale deed by said Attorney holder cannot be said a valid document. The question of legality of said document cannot be decided by this Commission. It is further pleaded that complainant has applied for transfer of this property in his name but said transfer was applied after he had already got the sale deed executed. However, the legal heirs of Kishori Lal had raised objections qua said transfer. It is further pleaded that the request for transfer cannot be considered until and unless the legal heirs of deceased Kishori Lal withdraw their objections and the complainant has already been informed in this regard. It is further pleaded that until and unless the objections raised by the legal heirs of Kishori Lal is removed or decided by any competent court of jurisdiction, the booth cannot be transferred in the name of the complainant. There is no service involved as transfer of immoveable properties does not come under the definition of service within the meaning of Consumer Protection Act, 2019. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Complainant tendered into evidence his affidavit Ex.CW1/A,  agreement to sell dated 15.11.1994 Ex.C1, GPA dated 15.11.1994 Ex.C2, affidavit dated 15.11.1994 Ex.C3, Will dated 15.11.1994 Ex.C4, copy of plaint Ex.C5, Vakalatnama Ex.C6, statement dated 10.03.2003 Ex.C7, order dated 10.03.2003 Ex.C8, compromise agreement dated 10.03.2003 Ex.C9, Hon’ble High Court order dated 06.01.2009 Ex.C10, Hon’ble Supreme Court order dated 13.12.2010 Ex.C11 to Ex.C12, letter dated 21.06.2011 Ex.C13, payment receipts Ex.C14 to Ex.C22, conveyance deed Ex.C23, sale deed Ex.C24 and Ex.C25, legal notice Ex.C26, postal receipt Ex.C27, acknowledgement Ex.C28 and closed the evidence on 17.11.2021 by suffering separate statement.

6.             On the other hand, OP tendered into evidence affidavit of Mayank Bhardwaj Ex.OP1/A, transfer policy Ex.OP1, newspaper cutting/public publication Ex.OP2 to Ex.OP4, application of Krishna Devi Ex.OP5, death certificate of Kishori Lal Ex.OP6, application of Krishna Devi Ex.OP7, letter dated 05.08.1985 Ex.OP8, GPA dated 15.11.1994 Ex.OP9, conveyance deed Ex.O10, sale deed Ex.OP11, indemnity bond Ex.OP12 and closed the evidence on 17.01.2022 by suffering separate statement.

7.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for the complainant argued that the complainant is owner in possession of property/booth No.9, Sector-13, Extension, Urban Estate, Karnal, vide sale deed No.4002 dated 14.08.2015. Complainant applied for transfer of this property in his name and completed all the formalities but despite that the OP has not transferred the property in the name of complainant by updating its record. The OP was well within knowledge that this property was in litigation and the complainant went upto Hon’ble Supreme Court, hence, the officials of OP are personally inimical towards the complainant. Faced with this, the complainant also issued a legal notice dated 05.04.2021, with the hope that perhaps the officials of the OP would have not been correctly intimating the Estate Officer, HSVP about the facts of the case and that it why the matter would have been pending but despite the notice, the OP did not bother to the request of the complainant. The act of OP while not updating the record, is deficiency in service and covered under monopoly restricted unfair trade practice. Hence, prayed for allowing the complaint. Learned counsel for complainant has relied upon the authority in case titled as Haryana Urban Development Authority Versus Jagdev Singh and others, DOD 6.02.2018 (National Commission) and HUDA and another Versus Ram Singh DOD 06.02.2018,(NC); Jeet Kumar Vs. Girdhari Lal 2003 (3) Civil Court Cases 239 (P&H); Ramesh Mohan and another Versus Raj Krishan Vol.XXXVI 1984 J PLR 211; Shri Ramesh Chand Versus Suresh Chand and another RFA 358/2000, (Delhi High Court); Bidhan Chand Biswas (since deceased) through legal heirs Versus Shri Prakash Chand Bansal and others, RSA no.131/2014, DOD 29.05.2014, (Delhi High Court);  Ishwar Dutt Versus Smt.Saroj Rani Vol. CLXVI (2012-2) 611; Vimal Chand Ghevarchand Jain and others Versus Ramakant Eknath Jajoo 2009 (3) CCC 220 (SC); Parkash Kaur Versus Surjit Kaur and others 2010 (4) CCC 565 (P&H);  State of Punjab Versus Gurmeet Singh 2003 (2) CCC 115 (P&H); Krishna Kumar Saxena and another Versus State of UP and others 2018 (3) CCC 67 (Allahabad) (DB)

9.             Per contra, learned counsel for OP argued that booth No.9, Sector-13, Karnal, was allotted to S/Shri Ram Gopal, Naresh Kumar and Kishori Lal, vide office memo No.12866 dated 15.08.1985, in an open auction but due to non-payment, the booth was resumed resulted into litigation and the matter was decided by Hon’ble Supreme Court. On payment of entire sale consideration, the conveyance deed bearing vasika No.4001/1 dated 14.08.2015, was executed and registered in favour of aforesaid allottees- Ram Gopal, etc. On 01.10.2015, complainant applied for transferring the booth in question vide application dated 01.10.2015, in his name being purchaser of said property vide sale deed No.4002/1 dated 14.08.2015, thereafter, OP got issued publications in two leading newspapers for seeking objections from General Public. On 24.02.2016, Smt. Krishna Devi, Ramesh Kumar, Vinod sons of Kishori Lal and Divya daughter of Kishori Lal, residents of H.No.1229, Sector-13, Karnal, submitted objections that Kishori Lal, who was one of the allottee of booth had expired on 24.12.2007 and that Om Parkash applied for transfer of said booth is totally wrong as Kishori Lal had never given any power of attorney or any writing with regard to transfer of said property. On 08.03.2016, Smt. Krishna Devi wife of late Shri Kishori Lal, submitted objection through registered post that Shri Kishori Lal, during his life time never executed any document in favour of Om Parkash or anybody else with regard to the said property, hence, the said property may not be transferred in the name of complainant. He further argued that this Commission has no jurisdiction to try and entertain the present complaint. He further argued that sale deed had been executed without permission of respondents through GPA whereas one of the executants of alleged GPA had already died. Hence, prayed for dismissal of complaint.

10.           Admittedly, the complainant is in physical possession of the property in question since 10.03.2003 i.e. from the life time of Kishori Lal. It is also admitted that the complainant has faced the litigation upto Hon’ble Supreme Court.

11.           The first plea taken by the OP is that this Commission has no jurisdiction to try and entertain the present complaint. As per averments of complainant, the complainant has paid requisite fee and completed all the formalities for transfer of property in question in his name. Since, the complainant has paid the requisite fee, hence, the complainant comes under the definition of consumer as per Consumer Protection Act, 2019. Hence, this plea taken by the OP has no force.  In this regard, we relied upon the authority Jagdev Singh’s case (supra) in which Hon’ble National Commission held that non-issuance of allotment letter is deficiency in service on the part of the HUDA and District Forum has powers to direct the HUDA authorities to issue allotment letter. Similar view taken by the Hon’ble National Commission in case titled as HUDA and another Vs. Fakhir Singh and HUDA and another Vs. Ram Singh, decided on 06.02.2018.  

12.           OP has denied to issue the re-allotment letter in the name of complainant on the basis of objections filed by the LRs of Kishori Lal.

13.           The complainant had applied for transfer the booth in question on the basis of sale deed Ex.C24 dated 14.08.2015.  On receipt of said sale deed, OP got issued publication in two leading newspaper thereby seeking the objection from general public that Om Parkash had applied for ownership of the booth no.9, Sector-13, Extension Urban Estate, Karnal. On 24.02.2016 Smt. Krishana Devi wife of late Kishori Lal, Ramesh Kumar, Vinod Kumar sons of Kishori Lal and Divya daughter of Kishori Lal submitted an application for not transferring the said booth saying that Kishori Lal never given any power of attorney in favour of Om Parkash or anybody else. On the basis of said objections, OP has refused to transfer the booth in question in the name of the complainant.

14.           It is evident from the agreement to sell Ex.C1 dated 15.11.1994, that Kishori Lal, Naresh Kumar and Ram Gopal sons of Shri Tara Chand, on receipt the full and final payment paid by them,  agreed to sell booth/shop No.9, Sector-13, Urban Estate, Karnal, with Smt. Mukesh Gupta wife of Shri Om Parkash Gupta, son of Ganga Ram, resident of H.No.633, Jundla Gate, Karnal. The remaining payment was to be paid by the purchaser to the OP and complainant had paid the whole remaining payment to the OP which is proved from the receipts Ex.14 to Ex.C22.  

15.           It is also evident from the document Ex.C2 i.e. General Power of Attorney that Kishori Lal, Naresh Kumar and Ram Gopal had executed registered General Power of Attorney in favour of Mukesh Gupta wife of Om Parkash with regard to the booth in question. Affidavit Ex.C3 also executed by Shri Kishori Lal, Naresh Kumar and Ram Gopal to the effect that they have sell the booth in question to Smt. Mukesh Gupta and on the basis of said General Power of Attorney, said Mukesh Gupta had got executed the sale deed Ex.C24 dated 14.08.2015 in favour of complainant. Complainant also placed on record, Will Ex.C4 which also shows that the executants from their Will have gave the said property in favour of Smt. Mukesh Gupta. It is also evident on the record from Ex.C5 that  Kishori Lal had filed a civil suit against Mukesh Gupta, Om Parkash and Pankaj and said suit was dismissed as withdrawn being compromised, this fact has been proved from the statement Ex.C7 dated 10.03.2003 of Kishori Lal and order Ex.C8 dated 10.03.2003 passed by Shri K.P. Singh Civil Judge, Junior Division, Karnal and compromise/agreement Ex.C9 dated 10.03.2003. It has been specifically mentioned in Ex.C9 that they (Ram Gopal etc.) will not file any other litigation against the defendants.

16            In Jeet Kumari’s case (supra) wherein it has been held by Hon’ble Punjab & Haryana High Court that sale of property on basis of power of attorney, agreement to sell, affidavit and Will, on receipt of entire sale consideration amount power of attorney executed in favour of vendee and he put into possession of the premises, the contract of sale is not a mere agreement to sell but more than that because practically the transaction was complete in all respect. Further, in Ramesh Mohan’s case (supra) wherein it has been held that vendor received the sale price in pursuance of agreement to sell, possession thereof has been delivered, the agreement was not mere agreement to sell, but more than that because practically the transaction was complete in all respects. Further, in Ramesh Chand’ case (supra) wherein it has been held that validity to a power of attorney given for consideration even after death of the executants is to ensure that entitlement under such power of attorney remains because the same is not a regular or a routine power of attorney but the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executants of the power of attorney. Further, in Bidhan Chand Biswas’ case (supra) wherein it has been held that a power of attorney executed for consideration would remain valid even after the death of the executants because the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executants. Further, in Ishwar Dutt’ case (supra) wherein it has been held that actual possession of the suit property was also delivered to the plaintiff at the time of agreement, defendant executed registered special power of attorney in favour of plaintiff’s husband authorizing him to execute and get registered sale deed of the suit property in favour of the plaintiff, defendant cancelled the special power of attorney in favour of plaintiff husband, suit decreed. Further, in Vimal Chand’s case (supra) wherein it has been held that registered sale deed carries a presumption that the transaction was a genuine one. In Parkash Kaur’s case (supra) wherein it has been held that a stranger to the sale deed cannot challenge the sale on the ground that it is without consideration or a paper transaction. Similar view taken by Hon’ble Hon’ble Punjab and Haryana High Court in Gurmeet Singh’s case (supra). In Krishna Kumar’s case (supra) wherein it has been held that proposed beneficiaries under Will have no locus standi to question the validity or legality of sale deed executed by testator during his life time, it is only the executants/testator who can question the legality and validity of sale deed before competent court.

17.           It is admitted facts, till date objector (LRs of Kishori Lal) has not challenge the sale deed Ex.C24 before the Civil Court. If the objector has any grievances with regard to said sale deed they should challenge the sale deed before the Civil Court but they did not do so.  It has been proved on the record that complainant is in the physical possession since 2003 and Kishori Lal and others had received the full and final payment with regard to the booth in question. The LRs of Naresh Kumar and Ram Gopal have not filed any objections qua the sale deed Ex.C24. It appears that LRs (objector) of Kishori Lal filed the objections only in order to harass and grab the money from the complainant. Otherwise, the OP also not decided the objections raised by the objector and stops the process of issuance of re-allotment letter in favour of the complainant only on the ground of mere objections without any enquiry. Furthermore, said Kishori Lal, had not only executed a general power of attorney, also executed a Will Ex.C4 in favour of the complainant in regard to the booth in question and also received a full and final payment from the complainant.

18.           Hence, keeping in view that the ratio of law laid down in abovesaid judgments and facts and circumstances of the present case, we are of the considered view that complainant is entitled for re-allotment letter of booth no.9, Sector-13, Extension Urban Estate, Karnal  

19.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to update the record in the name of complainant and to issue the re-allotment letter in favour of complainant within 45 days from the receipt of copy of this order.  The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:07.03.2022

                                                                       

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

              (Vineet Kaushik) 

                  Member