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Judgment
Subhash Chandra, Presiding Member
This revision petition under section 21 (b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Disputes Redressal Commission, Maharashtra, Circuit Bench at Nagpur (in short, ‘State Commission’) in First Appeal No. A/02/768 dated 19.12.2012 arising out of order dated 22.03.2002 of the District Consumer Disputes Redressal Forum, Nagpur (in short, ‘District Forum’) in Complaint No. 360 of 1995.
This order will also dispose of revision petitions 2093, 2094 and 2095 of 2013 which arise from the same order of the State Commission. For the sake of convenience, the facts are taken from RP No. 2092 of 2013.
Briefly stated, the facts of the case, as stated by the petitioner, are that one Wasudeo Harode and 6 others, are owners of plot nos. 16 to 38 at Kh. No 34/2 P.h. No. 11, Mouza Mankapur, Tahsil & District Nagpur. By way of an agreement dated 29.07.1989 they had agreed to hand over the land to petitioner no. 1 (Build India) to develop and construct an apartment scheme. Petitioner no. 2 was given a Power of Attorney on 25.07.1989 by all the land owners. The agreement authorized Petitioner no. 1 to execute agreements to sell flats and shops from the said apartment scheme. Petitioner no. 1 had agreed to sell a flat to the predecessor in interest of the respondents on 14.08.1991 as per which respondents were put in possession in 1994. A consumer complaint (No. 360 of 1995) was filed by the predecessor of the respondents on 07.08.1995 seeking removal of defects and deficiencies in service and to execute and register a sale deed in their favour. Land owners also filed a Special Civil Suit No 801/1993 before the Second Joint Civil Judge, Senior Division, Nagpur (in short, ‘Civil Court’) praying for a decree of declaration that the Agreement dated 28.07.1989 and the Power of Attorney dated 25.07.1989 stood rescinded and the present petitioners had no right or authority under these agreements. The present petitioners also filed a suit RCS No. 1397/ 1993 which was registered as Special Civil Suit No. 848/1999 seeking a declaration that the acts of purported cancellation of the Agreement and Power of Attorney were illegal. These suits were decided by a common judgment dated 27.03.2000 and the suit by the landowners came to be partly decreed while that of the petitioners was dismissed on 27.03.2000. Accordingly the Power of Attorney stood revoked and the petitioners were restrained in perpetuity from transferring, alienating, creating any charge or interest of any third person or carrying out any construction on the suit property except building No. 1. The petitioners thereafter preferred First Appeal no.167 of 2000 before the High Court of Bombay which stayed the order of the Civil Court on 26.07.2000. This matter is reported to be still pending. According to the petitioners, the District Forum dismissed the complaint filed before it in view of this position of law. It is stated that during the pendency of Appeal No. 768 of 2002 before the State Commission, some respondents/ interveners filed Civil Appeal No. 6856/2008 before the High Court which was dismissed on 28.07.2009 on the ground that the suit for specific performance by the petitioners had already been dismissed. It is contended by the petitioners that the State Commission has misconstrued the order dated 27.03.2000 of the Civil Court and the High Court dated 24.07.2009 to conclude that “it cannot be accepted that the Power of Attorney is invalidated” and to partly allowthe appeal. The revision petition has prayed that the impugned order of the State Commission in FA No. A/02/768 dated 19.12.2012 and the order of the District Forum in CC 360 of 2000 be ‘stayed’.
The District Forum’s order, after notice to both parties and opportunity to lead evidence and argue their case, had allowed the complaint filed by the respondents and held that:
The land dispute being pending before the High Court, the Forum feels that any order passed by it may affect the decision of this Forum or may be conflicting. Hence in these circumstances when the complainant’s application for intervention demanding their right has already been rejected by the Civil Court, this Forum cannot pass any order in that matter. In this connection the Forum feels that it will be proper for the complainants to approach the Civil Court joining the non-applicants and the landowner as parties and get the dispute decided.
The points raised by the complainants so also the reliefs prayed by them, for the reasons mentioned above make it clear that the Forum cannot accept the same. Hence the Forum passes the following order;
Complainants complaints No. 360/95, 361/95 362/95 and 363/95 are dismissed. The complainants if feel proper are free to get their dispute regarding Civil Suit adjudicated by appropriate Court.
Parties to bear their respective costs.
The respondents had approached the State Commission in First Appeal No. A/02/768 which was decided on 19.12.2012 wherein it has held that
Now, the only question arises is, whether the Power Of Attorney executed by the original landowners in favour of Opponent No. 1 giving land for development and construction and accordingly the building is already constructed, is excluded from rescinding of contract or not. On perusal of the judgment of Civil Court, it cannot be accepted that the Power Of Attorney is invalidated. When, undisputedly, the Opponent No. 1 received the entire amount of consideration of the flats from the complainants, they cannot avoid to execute the sale deeds in favour of the complainants though the agreement between the landowners and the opponents is rescinded. As per the judgement of civil court, since the land pertaining to the building in which the complainants are having flats is excluded in our view, there is no impediment for the Opponents in executing the sale deeds of the flats in favour of the complainants. Therefore, we have no hesitation to accept the arguments advanced by Shri Masood Sharif, learned counsel for the Appellants/complainants.
For the foregoing reasons, the appellants/complainants succeed and all the four appeals deserve to be partly allowed directing the Opponents/Respondents to execute the Registered Sale-deeds of the flats in favour of the complainants. Hence the following order:
All the four appeals are partly allowed
All the opponents/respondents are directed to execute the Registered Sale-deeds of the flats in favour of the complainants within four months from today
Having regard to the peculiar facts of the case, we direct the parties to bear their own cost.
[ Emphasis added ]
Despite being issued notice, the respondents remained unrepresented and were placed ex parte on 29th July 2015 (in RP Nos. 2092 and 2095 of 2013) and on 21st February 2023 (in RP Nos. 2093 and 2094 of 2013) respectively. I have heard the learned counsel for the revision petitioner and carefully considered the material on record.
The learned counsel for the petitioners/ builder argued that although initially there was a dispute regarding the rectification of the deficiencies in the construction of the flat and the cost involved, these issues were settled by the parties and the lower fora had not given any finding on this issue. The only issue according to the learned counsel was that pertaining to the registration of the sale deed. It was argued that the State Commission has ordered the petitioners to transfer title in certain immovable properties to the respondents by a decree of a civil court. It is submitted that the respondents have been handed over possession of the flats and the only dispute that remains pertains to the execution of the Sale Deed.
From the record it is manifest that the order of the Civil Court, Nagpur dated 27.03.2000 in Spl CC 801 of 1993 revoked the Agreement dated 29.07.1989 between the land owners and petitioner no. 1 and the Power of Attorney dated 25.07.1989 in favour of petitioner no. 2 and the petitioners were restrained in perpetuity from transferring, alienating, creating any charge or interest of any third person or carrying out any construction on the suit property except building No. 1. However, this order was stayed in FA no. 167 of 2000 filed by the original land owners. The High Court dismissed Civil Appeal No. 6856/2008 filed by some respondents in Appeal No. 768 of 2002 before the State Commission vide its order dated 28.07.2009. It is argued by the petitioner that it is legally prevented from executing any sale deed on account of the order of the Civil Court in Special Civil Suit No 801/1993 and Special Civil Suit No. 848/1999 which was disposed of by a common order dated 27.03.2000. The impugned order of the State Commission is based on an appreciation of the order of the Civil Court, Nagpur that the order excludes the land pertaining to where building no.1 stands. It has therefore concluded that there is no impediment for the petitioners herein to execute the registration of the sale deed in respect of flats in building no. 1 which is specifically excluded by the order of the Civil Court.
It would be useful to consider the order of the Court of Civil Judge, Senior Division, Nagpur, in Special Civil Suit no. 801 of 1993. This order of the Civil Court dated 27.03.2000 reads as under:
“The Special Civil Suit no. 801 of 1993 is decreed in part.
It is hereby declared that the agreement dated 11.10.198, 29.07,1989 and 25.04.1993, i.e., exhibit 150, 150 and 159 and any other agreement dated 25.04.1992 stand rescinded. All the power of attorney under suit are hereby stand revoked and the defendants have no right or authority subsisting under these agreement or power of attorney.
The defendants/ purchasers directed to deliver the vacant and peaceful possession of the suit property except the plot on which the building no.1 is situated i.e., on 15500 sq ft land in favour of the plaintiffs/ sellers. Their future possession over the above property except the plot in which the building no.1 is standing is illegal and unauthorised.
The defendants/ purchasers do pay sum of Rs.6,82,000/- to the plaintiffs/ sellers towards the price and damages of the plot on which the building no.1 is situated. Said amount shall carry interest @ Rs.18% per annum from the date of suit till its complete realisation.
The defendants/ purchasers are hereby perpetually restrained from any way transferring, alienating creating any charge or interest of any their person over the suit property or carrying on any construction on the suit property except the building no.1.
Rest of the claim under S C S no. 801/ 93 stands dismissed.
The Special Civil Suit no. 848/99 filed by the defendant’s purchasers hereby stands dismissed.
The defendants/ purchasers do pay the costs of both the suit to the plaintiffs/ sellers and shall bear their own costs.
The unsold flats out of building no.1 shall carry lien of decretal amount till its complete realisation.
An enquiry into mesne profits u/o 12 R 20 C P C shall be held from the date of the till actual delivery of vacant possession of the suit property, except the plot on which the building no.1 is standing.
A decree be drawn up accordingly”.
From the above, it is evident that defendants/ purchasers were directed to deliver the vacant and peaceful possession of the suit property to the plaintiffs/ land owners except the plot on which the building no.1 is situated. Pertinently, the Agreement dated 29.07.1989 and the Power of Attorney dated 25.07.1989 included lands other than the land on which the building was constructed as part of the Agreement between the parties. The Civil Court’s order dated 27.07.1989 imposing restrictions on the petitioners in perpetuity from transferring, alienating, creating any charge or interest of any third person or carrying out any construction on the suit property except building No. 1 excludes the land on which the building in question stands. However, this order was challenged in FA no. 167 of 2000 before the High Court of Judicature at Bombay, Nagpur Bench, Nagpur. The order in Special Civil Suit no. 801 of 1993 was stayed vide order dated 27.03.2000. Civil Appeal no. 6856 of 2000 filed by intervenors, who were not party to the original suit, seeking directions that developers execute Sale Deeds, was dismissed. CA no. 2385 of 2000 is reported to be pending before the High Court in FA no. 167 of 2000.
A consumer complaint under the Act can be considered if deficiency in service or unfair trade practice is established. In the present case, the petitioner has not been able to establish either of these. The issue is its inability to execute sale deeds in favour of the allottees of the flats constructed. From the facts of the case, it is manifest that there are outstanding legal issues with regard to the petitioner’s right to the land over which building no.1 has been constructed. The issue of title is for the appropriate Civil Court to adjudicate upon and is beyond the purview of this Commission or any other consumer fora. The District Forum had correctly held that the land issue needed to be resolved by the Civil Court. The impugned order of the State Commission, however, relied upon the order of the Special Civil Suit no. 801/93 of Second Joint Civil Judge, Senior Division, Nagpur which excluded the plot of 15500 sq ft on which building no.1 was situated and directed handing over of vacant and peaceful possession. This order was, however, stayed in FA no. 167 of 2000 filed against order in Special Civil Suit no. 801 of 1993. Civil Appeal no. 6856 of 2008 contesting was also dismissed. Therefore, it is manifest that the State Commission acted in error in arriving at its finding in the impugned order. The order of the State Commission does not bring out the manner in which there has been any deficiency in service or any unfair trade practice. It is apparent that no sale deed can be executed by the petitioner in view of the order staying the operation of order in Spl CC no. 801 of 1993 which was ordered in FA no. 167 of 2000 before the Hon’ble High Court, Mumbai. The order of the State Commission dated 19.12.2012 is therefore, liable to be set aside and the revision petition to fail.
For the reasons stated above, the revision petition is dismissed with no order as to costs. RP nos. 2093, 2094 and 2095 of 2013 are also disposed of in the above terms.