RESERVED

State Consumer Dispute Redressal Commission, Uttar Pradesh

ComplaintCase No.  246  of 2017

1. Vipin Kumar Verma S/o Shri Jai Prakash Verma
2. AnkurVermaS/o Shri Vipin Kumar Verma

(Both residents of Flat No 602, Satyam Tower, Honey Golf Green Apartment, Near Moti Prayag Colony, Garh Road, Meerut).                                                   …….Complainants

                                                Versus

1. Uttar Pradesh Housing And Development Board
2.  

through its Housing Commissioner.

2. Uttar Pradesh Housing And Development Board

(AwasEvamVikasParishad) ,

Office Complex Sector-9, Shastri Nagar, Meerut.                   ……Opposite Parties.

Present:-

1. Hon’ble  Justice Akhtar Hussain Khan, President
2. Hon’ble Shri Mahesh Chand, Member.

Sri Sarvesh Kumar Sharma, Advocate for the Complainant.

Sri ManojMohan,Advocate for the  Opposite Parties.

Date: 11-9-2018

Judgment

(Delivered by Hon’ble Member, Sri Mahesh Chand)

This Complaint under section 17 of the Consumer Protection Act, 1986 has been filed by Shri Vipin Kumar Verma S/o Shri Jai Prakash Verma and Shri Ankur Verma    S/o Shri Vipin Kumar Verma both residents of  Flat No 602, Satyam Tower, Honey Golf Green Apartment, Near  Moti  Prayag Colony,Garh Road, Meerut against Uttar Pradesh Housing And Development Board, (Awas EvamVikas Parishad), 104, Mahatma Gandhi Road, Lucknow through its Housing Commissioner & Another as mentioned  herein above. 

            In brief the facts of the complainant’s case are : The opposite parties launched a residential scheme namely, Mangal Pandey Nagar, Scheme No 1 in Meerut on dated

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10.12.2007. The  complainant No.2 applied for allotment of residential plot in the said scheme on 31.12.2007 and deposited a sum of Rs 34,000/-  towards registration fee. The Opposite Parties allotted a plot No. 346/6, sector 3  measuring area of 194.50 sq. mts. vide allotment letter no. 2529 dated 5.4.2008.  Its total cost of Rs17,08,720/- was deposited by the complainants with the opposite parties who in turn executed a sale deed in favour of the complainant no. 2 on dated 28.4.2008. A certificate of possession of  the said plot was also issued on dated 1.5.2008 by the executive engineer, construction division-8 of the opposite parties. The complainant No 1 is the father of the complainant No.2. The complainant No. 1 is working in a bank. The Complainant No 2 transferred the said plot in favour of the Complainant No 1 for a consideration of Rs 19,23,000/- and executed its sale deed on dated 6.5.2008. On the joint requests of the complainants,  mutation of the said plot in favour of the complainant no 1 in the records of the opposite parties, was done vide letter dated 31.5.2008. The building construction plan was sanctioned by the opposite parties vide letter dated 19.6.2008. When the complainants went to the site to raise the construction work of the building, the construction was stopped by the local persons who claimed that the dispute regarding ownership  over the land in question is pending in the court between them and the Housing board i.e. the opposite parties. The complainants got shocked to know about the said dispute regarding the ownership of the said land between the opposite parties and the other local persons. The complainants approached the opposite parties several times to get the delivery of  the physical possession of the said plot and if it was not possible, in that case for allotment of the alternate plot in the same scheme or any other scheme in Meerut best suited to the complainants. But the complainants did not listen to the request of the complainants. Being aggrieved with the deficiency in service on the part of the opposite parties the complainants have filed this complaint seeking the following reliefs :-

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1. Direct the opposite parties to provide the physical possession of the dispute free plot No 346/3, situated in Sector-3 Mangal Pandey Nagar, Meerut or to allot an alternative plot best suited to the complainants in the same scheme or any of the equivalent schemes on the original terms and conditions, which is best suited to the requirement and need of the complainants for their residential purposes.
2. Direct the opposite parties to pay interest at the rate of 19% per annum on the amount of Rs 17,08,720/-  with effect from the year 2008 till the date of possession of the dispute free plot no. 346/3 situated in sector -3,Mangal Pandey Nagar, Meerut or an alternative plot.
3. Direct the opposite parties to pay loss of rent to the complainant of Rs 10,000/- per month with effect from the year  till the date of possession of the plot.
4. Direct the opposite parties to bear the cost of the execution of the registration of the sale deed for the plot in an eventuality alternative plot is allotted to the complainants.
5. Direct the opposite parties to remove and discontinue the Unfair Trade Practice.
6. Direct the opposite parties to pay Punitive Damages to the complainant which this Hon’ble Commission may deem it just and proper in the facts and circumstances of this case.
7.  Allow the complaint and direct the opposite parties to pay a sum of Rs 50,000/- towards cost of the case.
8. Any other order which this Hon’ble State Commission may deem fit and  

proper in the circumstances of the case may also be passed.

              The notices were issued to the opposite parties. The opposite parties put in their appearance through their learned counsel Mr Manoj Mohan and filed their written statement whereby the averments of the complaint were replied. The opposite parties admitted the allotment of the plot no 346/6/3 on dated 5.4.2008 in favour of complainant no.2 Mr. AnkurVerma. It was admitted that a sum of Rs 17,42,720/- was deposited by the

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complainant no. 2.  The execution of the sale deed dated  28.4.2008 in favour of complainant no. 2 was also admitted. It was also stated in the written statement that the possession of the said plot was handed over on dated 1.5.2008 to the complainant No 2 Mr. Ankur Verma to his complete satisfaction. It has also been stated that the said plot  was transferred by the complainant No.2 to the complainant no. 1 vide sale deed dated 6.5.2008. The mutation of the said flat in favour of Complainant No.1 has also been admitted in the written statement.  The opposite parties have stated in their written statement that since the Complainant No. 1 has not paid any amount to the opposite parties, hence he is not their consumer and the complaint is not maintainable and deserves to be dismissed. Since the execution of the sale deed has been done in favour of complainant no.2 and possession of the same has been delivered on dated 1.5.2008, thus there is no deficiency in service on the part of the opposite parties. It has also been stated in the written statement that when the complainant started construction work on the site, a local person Mr Maharaj Singh s/o Narain Singh objected to it, against which the complainant no.1 filed a writ petition No 32546/2011 Vipin Kumar Verma vs State of U.P. and others  before Allahabad High Court and it was dismissed vide order dated 4.7.2011 with the observation that the petitioner can present his case by moving an application in the second appeal no 946/2010 or file a separate suit in the civil court. The opposite parties have stated in their written statement that from the perusal of order dated 4.7.2011 of Hon’ble High Court it is evident that this complaint of the  complainants is not maintainable before the State Consumer Commission and deserves to be dismissed. The opposite parties in their written statement  have also  stated  that the complaint is highly time barred under section 24-A of Consumer Protection Act 1986. The Complainants have deliberately over valued the complaint case for Rs 59,58,740/- while they have deposited a sum of Rs 17,42,720/- only. Thus the case does not fall under the pecuniary jurisdiction of the State Consumer Commission. The opposite parties have

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prayed to dismiss the complaint case keeping in view of the averments made in the written statement.

        The Complainants  have filed the following documents as their evidences and affidavit in support their of.  

1. The registration  booklet along with the advertisement of launching the scheme.
2. Copy of the allotment letter  no  2529 dated 5.4.2008
3. Copy of letter no 3564 addressed to the sub-registrar, Meerut for registry of sale deed.
4. Copy of sale deed dated 28.4.2008 executed by the opposite parties in favour of the complainant no 2.
5. Copy of sale deed dated 6.5.2008 executed by the complainant no 2 in favour of the complainant no 1.
6. Copy of letter no 1185 dated 1.5.2008 regarding delivery of possession of the said plot.
7. Copy of the order No 4398 dated 31.5.2008 regarding mutation of the plot in favour of the complainant no. 1.
8. Copy of the letter No. 108 dated 19.6.2008 regarding sanction of the building plan for construction of the house over said plot.
9. Copies of the letters/representations sent to the various authorities of the opposite parties and Divisional Commissioner Meerut regarding delivery of actual physical possession of the said plot.
10. Affidavit of complainant No.1 dated 17.09.2017.

     The opposite parties also submitted their evidence through an affidavit of their property officer at Meerut, dated 30-05-2018.

          The case was put up before this bench for hearing. The learned counsel Mr Sarvesh Kumar Sharma appeared for the complainants. The learned counsel Mr  Manoj Mohan

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appeared for the opposite parties. We heard their arguments and perused the documents available on file.

         It is an admitted fact that the plot in question was allotted by the opposite parties to the complainant No.2. It is also admitted that the complainant had paid the total consideration the allotted plot and the opposite parties in turn executed the sale deed of the said plot in favour of the complainant no.2. It is also admitted fact that the complainant no.2, subsequently, transferred the said plot to the complainant no. 1 by executing a sale deed in favour of the complainant no. 1. This also an admitted fact that the opposite parties mutated the said plot in favour of the complainant in their records. This is also an admitted fact that the opposite parties sanctioned the building plan of the said plot for construction of the house over it. It is also an admitted fact that the opposite parties mentioned in the sale deed dated 28.4.2008 that the allotted plot is free from all encumbrances. But the problem started when the complainants went to the site with building material to raise construction over the allotted plot and the construction work was stopped on the site by a local person Mr Maharaj Singh s/o Narain Singh who said that there was a dispute of ownership of the said land between him and the Housing Board and the case was pending in the civil court. There is no doubt that the paper possession of the said plot was given to the complainant  no.2 but the actual physical possession was not with complainants. The complainants moved from pillar to post for physical possession of the said allotted plot but all in vain. The Hon’ble High court in its order dated 4.7.2011 in the writ petition No 32546/2011 Vipin Kumar Verma vs State of U.P. and others  observed that :

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“ It appears to this court that the dispute is with regards to the possession of the land between the petitioners and the private respondents. The private respondents filed a suit from which an appeal was preferred before the concerned District Court from which the Second AppealNo. 946 of 2010 ( Uttar Pradesh AvasEvamVikasParishad vs Sirajuddin and others) has been preferred before this court in which an order of status quo has been passed by the learned Single Judge at an interim stage. The Second Appeal is pending. The plot area is very big i.e. about 5000 sq. yards as appears from the order of the learned Single Judge passed in the Second Appeal.

Therefore, it is very difficult for this Court to decide that which portion of the entire area is forming the part of the land of the petitioner and which is not covered by the Suit. Hence two courses are open for the petitioner. He can either file an independent Suit to establish his right or can take a proper plea by filing an appropriate application in the pending Appeal for his intervention by making an appropriate submission with regard to protection of his interest either at interim stage or finally. We can not consider the issue as proposed by the petitioner.

Hence we do not find any reason to interfere. The writ petition is accordingly dismissed. No order is passed as to costs.

Passing of this order will in no way affect the right of the petitioner to proceed in accordance with law.”

           From the perusal of the above order of the Hon’ble High Court it is apparently clear that the Hon’ble High Court has not blocked the ways of the petitioner/complainant to protect his rights but advised him to proceed in accordance with law. It is also apparent from the above order that the allotted plot is a part of a big piece of land measuring about 5000 sq. yards and it is not identifiable from the rest of the land. The opposite parties were also party to the above petition. It proves that the said  plot  was sold to the

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complainants by saying that it was free from all encumbrances but it was neither identifiable nor free from the disputes of ownership.  Its acquisition is also not clear. The civil suit is pending in civil court and the opposite parties are parties to the suit.  This fact was not disclosed to the complainants/allottees. This amounts to Unfair Trade Practice on the part of the opposite parties. They can’t be absolved of their responsibility by saying that they had given the possession of the plot in question vide letter no 1185 dated 1.5.2005. It was a simple paper formality of possession or we can say possession on paper but the actual physical possession on the ground was never given as it could not actually materialize. The complainants are  not in a position to construct the house over the said plot as the civil suit is pending in the courts between the private parties and the Housing Board. Second Appeal arising out of the civil suit is also pending before the Hon’ble High Court whereby the order of  Status Quo has also been passed. The opposite parties can’t wash off their hands by saying that they have executed the sale deed in favour of the complainant no.2 and given possession to him and the complainant no 2  has subsequently sold it the complainant no. 1. And the complainant no. 1 is not their consumer. This plea of the opposite parties is not sustainable as the plot in question was disputed since very beginning and the same was not in their actual physical possession. They concealed this fact from the initial allottee/ the complainant no 2. The land in question was not free from encumbrances from the very beginning. The complainant no1 and complainant no.2 are father and son. They want to construct a house for their family. The complainant no 2 transferred this plot to complainant no 1 so that he can avail the loan for construction of the house on it as he is bank emplayes. The opposite party no 1 is the statutory body. The general public trust upon the announcements of such public

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bodies. They launched a housing scheme.  The complainants trusted upon them and paid the entire consideration of the allotted plot.  The  opposite parties executed the sale deed of the plot by stating in the sale deed that the said property is free from all encumbrances but concealed the fact of the dispute. The complainants did not get the actual physical possession over it. This is a deficiency on the part of the opposite parties. The cause of action is continuous hence the complaint is not barred by section 24-A of the Consumer Protection Act.

              With above discussions we are of the view that opposite parties committed deficiency in service and indulged in unfair trade practice. The complaint deserves to be partially allowed. Since the land in question is seized of in the litigation at various stages and order of status quo is in force hence at present the delivery of  its possession is not possible. The complainants are running for getting possession of the plot from pillar to post for last 10 years hence it is more expedient in the interest of justice that the opposite parties allot an alternative  plot in the same scheme or any other scheme at Meerut of approximately the same measurements and under the same terms and conditions and for the same consideration to any one of the complainants as per their choice. Registration fee of new sale deed shall be borne and paid by the opposite parties. The complainants  shall also be entitled for interest @ 9% per annum on the total deposited amount from 1.5.2008 to the date of actual physical possession of the alternative plot.

             The complaint is partially allowed. The opposite parties are directed  to allot an alternative plot in the same scheme or any other scheme at Meerut of approximately the same measurements and under the same terms and conditions and for the same consideration to the any one of the complainants as per their choice. Registration fee of new sale deed shall be borne and paid by the opposite parties. Simultaneously the old sale deeds shall be cancelled by the respective parties. The complainants shall be entitled for

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interest @ 9% per annum on the total deposited amount of Rs 17,08,720/- from 1.5.2008 to the date of actual physical possession of the alternative plot. The compliance of this order shall be made in 45 days from the date of this order. If the opposite parties fail to comply this order with in the stipulated period, in that case the opposite parties shall  payinterest @ 18% per annum instead of 9% per annum on the said deposited amount to the complainants. The complainants  will also be entitled for litigation cost of Rs 20,000/- . No order as to other costs.

                 Let the copies of this judgement and order be provided to all concerned as per rules.

(Justice Akhtar Husain Khan)                                                          (Mahesh Chand)

                President                                                                                   Member

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