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Ansal Properties & Infrastructure Ltd. v/s Preeti Singhal

    Revision Petition No. 1945 of 2019
    Decided On, 10 January 2020
    At, National Consumer Disputes Redressal Commission NCDRC
    By, MEMBER
    For the Petitioner: ------- For the Respondent: -------

Judgment Text

R.K. Agrawal, J., President

1. By this Revision Petition, Ansal Properties & Infrastructure Ltd., the sole Opposite Party in the Complaint, calls in question the correctness and legality of the order dated 12.03.2019, passed by the Rajasthan State Consumer Disputes Redressal Commission, Bench No.1, Jaipur (hereinafter referred to as the State Commission) in Appeal No. 793/2018, whereby the Appeal, preferred by the Complainant/Respondent herein, has been allowed and the Petitioner herein has been directed not to recover the maintenance charges from the Complainant till the infrastructure, facilities and amenities, as shown in the brochure, are developed in the township and requisite completion and occupancy certificate is provided to the Complainant. Further, sums of Rs.1,00,000/- and Rs.25,000/- were awarded as compensation for mental agony and litigation costs, to be paid to the Complainant within one month, failing which the said sums were directed to carry interest @ 9%.

2. The Appeal had been filed by the Complainant against the order dated 12.09.2018, passed by the District Forum Consumer Disputes Redressal Forum, Ajmer (hereinafter referred to as the District Forum) in Consumer Complaint No. 424/2017. By the said order, the District Forum had dismissed the Complaint, preferred by the Complainant.

3. The facts in brief, as culled out from the Complaint, are that the Complainant had purchased two plots, i.e. Plot Nos. B-0068 and B-0154, in “Sushant City”, to be developed by the Petitioner herein on Ajmer – Kishangarh Road, Ajmer. Two sale-deeds were executed between the Complainant, the Petitioner as the Developer and one M/s Bajrang Realtors Pvt. Ltd., being the owner of the entire plot. The Complainant was assured that necessary documents relating to the project/scheme would be sent. The sale deeds, which had been executed by the authorized signatories of the Petitioner and the Owner, were duly registered with the Sub-Registrar. Even after a lapse of seven years, the facilities/amenities, referred to in the different advertisement articles/brochure, were not provided by the Petitioner in the “Sushant City”, inasmuch as there was no arrangement/provision for security, drinking water, park, shopping mall, retain chain stores, multi-cuisine restaurants, playground, health club, fitness centre, school etc. Further, the maintenance agency, authorized by the Petitioner herein, was not maintaining the project/scheme and trying to recover maintenance charges unilaterally fixed, with interest. Vide letter dated 14.06.2016, followed by email, the Complainant requested the Petitioner herein to provide a copy of the agreement executed between the parties on 25.04.2006, permission letters received from the District Collector as also local body but all in vain.

4. The Complainant filed the aforesaid Complaint before the District Forum, praying for the reliefs mentioned in the Complaint.

5. Upon notice, the Petitioner/Opposite Party contested the Complaint by filing its Written Version. While admitting about execution of registry on 03.06.2010 in respect of two plots purchased by the Complainant in “Sushant City”, it was contended on behalf of the Petitioner/Opposite Party that it was only after inspection of all documents and her satisfaction that the Complainant had purchased the plots in question. About 140 families are residing in the township developed by the Petitioner and all facilities, including park, restaurant/food court, health club, fitness centre, multiplex theater etc., are available to them. In respect of water supply, pipelines have been laid and water is regularly supplied by the pump-house. As far as maintenance charges are concerned, in view of Clause-13 of the agreement, the Complainant is obliged to pay the same. As no details of the documents sought for were given by the Complainant in the notice sent by the Advocate and no email was received from her in this behalf, the said documents were not provided. The township is completely developed by the Petitioner and it is for the Complainant to prove that the Petitioner is trying to recover unilaterally fixed maintenance charges. There is no deficiency either on its part or the agency nominated by it. Further, the Complaint is liable to be dismissed being barred by limitation. The Complainant had invested the money in order to have monetary gain. Though the possession of the plots in question was handed over to the Complainants on 03.06.2010 upon execution of the sale deeds but till date construction has not been carried out by her on the plots and, therefore, there was no question of any facilities/amenities being provided to her.

6. On the basis of material available before it, the District Forum dismissed the Complaint, inter-alia, observing that it was barred by limitation.

7. Aggrieved with the order passed by the District Forum, the Complainant filed the Appeal before the State Commission, which allowed the Appeal as also the Complaint in the manner indicated above. Hence, the present Revision Petition by the Petitioner/Opposite Party.

8. We have heard the learned Counsel for the parties and perused the order passed by the State Commission.

9. Learned Counsel for the Petitioner stated that the State Commission erred in law in awarding compensation of Rs.1,00,000/- and litigation costs of Rs.25,000/- in the absence of any prayer therefor; the Complainant was not a ‘consumer’ as she had purchased the plots for investment purposes; though the sale deeds were executed in the year 2010 and the Complainant had also taken possession of the plots in question but she had not completed the construction work and in order to escape the liability to pay the maintenance charges towards upkeep of the common areas and facilities, as per Clause-13 of the agreement, false claims regarding deficiency in service on the part of the Petitioner has been made; the Complaint was not maintainable for want of non-joinder of necessary party as the sale deeds were executed by the Petitioner in the capacity of the Developer and M/s Bajrang Realtors Pvt. Ltd. as the owner of the land; had the Petitioner not provided the promised facilities and infrastructure, about 140 families would not have been living; the issue whether the facilities and infrastructure are available or not cannot be decided without the physical verification of the site and the Complainant had not asked for appointment of the Local Commissioner to do the needful; the documents asked for by the Complainant were internal documents entered into with third party and the same could not have been claimed as a matter of rights by the Complainant.

10. On the other hand, the Complainant, Respondent herein, appearing in person, stated that the State Commission was justified in allowing the Appeal and the Complaint on the basis of the material available before it.

11. As far as availability of facilities/amenities is concerned, though the Complainant had alleged in her Complaint that the same were not developed and made available in the township, the Petitioner by bringing on record documentary evidence in this behalf could prove that the same were available but it had not produced in such document and, accordingly, the contention of the Petitioner that about 140 families are residing in the township and they had no problem is of no significance. The persons living there might not have any problem with the availability or non-availability of the facilities/amenities but that does not mean that the Complainant would also not have any problem with the same. From a perusal of the impugned order, we find that even the potable water was not available in the township. It is well settled by a catena of decision of the Hon’ble Supreme Court that a legal possession cannot be handed over in the absence of requisite completion/occupancy certificates and necessary sanctions from the Authorities concerned. In view of the same, even if the Complainant had taken possession of the plots in question way back in the year 2010 and the sale deeds were also executed then, it cannot be said that the said possession was a valid possession and, therefore, the Complainant was not required to carry out construction work and pay any maintenance charges for the facilities/amenities, in terms of Clause-13 of the Agreement executed between the parties. Accordingly, till the time the said facilities are provided, the plea of the Petitioner that the Complaint was time barred does not hold water. The order passed by the District Forum shows that the Complainant had sought four documents, including the necessary approvals obtained from the District Collector and the Local Body in respect of the township. As stated by the Petitioner, even if some documents were internal documents, executed between it and a third party, we fail to understand what prevented the Petitioner to furnish the approvals/sanctions obtained for the township to the Complainant. Further, the plea of the Petitioner that the Complainant had purchased the plots for investment purposes is not supported with any documentary evidence and, therefore, it cannot be said that the Complainant is not a ‘consumer’ under Section 2(1)(d) of the Consumer Protection Act, 1986. The contention of the Petitioner that the Complaint was not maintainable for want of non-joinder of owner of the land is also of no consequence, as the Complainant had not prayed any relief qua the owner of the land.

12. In order to know whether the facilities offered in the Brochure have been made available and the township is fully developed or not, vide our order dated 09.09.2019, we had appointed Mr. Vizzy Agarwal as Advocate Commissioner to inspect and submit a report, alongwith photographs of the relevant parts of the township. He has submitted his report dated 02.11.2019, a perusal of which shown that the Township lacks even the basic amenities/facilities, such as reasonable level of securi

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ty, potable water, parks, cleanliness, shops, medical facility, recreational facility, educational facility etc. In view of the said report, it is evident that the facilities/amenities, as promised by the Petitioner and referred to in the advertisement articles, have not been provided in the township and, therefore, the State Commission, for the reasons recorded in the order passed by it, is perfectly justified in allowing the Appeal/Complaint, by directing the Petitioner not to recover any maintenance charges from the Complainant till the said facilities/amenities as also requisite completion and occupancy certificates are provided. As far as the award of compensation of Rs.1,00,000/- and litigation costs of Rs.25,000/- is concerned, in our considered view, even if the same is not prayed for in the Complaint, the Consumer Fora is within its right to pass any order as it deem fits and, in view, of the aforesaid discussion it cannot be said that there was any illegality or irregularity in passing the said award. 13. In view of the above, the Revision Petition fails and is dismissed accordingly.