D.D. Upankar vs Nelco Co-Operative Housing Society Ltd. & 2 Ors

This revision petition has been filed against the order dated 19.09.2014 of the Maharashtra State Consumer Disputes Redressal Commission (in short, the State Commission) in Appeal No. A/07/854 of the respondent against the order dated 07.08.2007 of District Forum Nagpur vide which appeal of the respondent / opposite party (hereinafter referred as OP) was allowed.

The brief facts of the case are that a Co-operative Housing Society was formulated by the respondent no.1 / Opposite Party no. 1 and the main object of the Society was to acquire land and allot the plots to its members. Admittedly, the complainant / petitioner became one of the member of the Society in the year 1981. The object of the Society was to allot the plots to its members and it was approved by the Town Planning Department. Nagpur Improvement Trust in the year 1992 acquired the land of the Society and thus the acquired land became the holding of Nagpur Improvement Trust. After a protracted legal battle, Nagpur Improvement Trust agreed to release certain plots in favour of the society but the scheme of built up houses was quashed by Nagpur Improvement Trust. The society was initially having a scheme of 273 plots in Parsodi scheme. It was quashed by Nagpur Improvement Trust and only 210 plots were allotted to the Society for development purposes. In another scheme of the society earlier there were 82 plots but subsequently it was reduced to 40 plots. The size of the plots was 1500 sq. ft. On the application of the complainant / petitioner by way of an affidavit, he was allotted a plot @ Rs.15/- per sq. ft. i.e. Rs.22,500/- in 1992 and a demand letter dated 13.04.1992 was issued to the complainant / petitioner asking him to deposit sum of Rs.22,500/- by 25.10.1992. The complainant / petitioner however deposited the complete amount only by 27.03.1993 against the receipts. When the plot was not allotted to the complainant, the complainant issued a legal notice and thereafter filed the complaint, wherein he had made a request for execution of sale deed or in the alternative refund of money alongwith compensation.

In the written version, the plea taken by the respondent was that there was no agreement to give the plot to the petitioner / complainant. Their plea was that it was the complainant who had made a request for allotment of plot and agreed to pay the amount in four instalments. They also took the plea that since the complainant had failed to comply with clause 7 F of the by-laws of the society, since he did not file the requisite affidavit with declarations, the plot could not be allotted to the complainant. The plea that the payment of Rs.22,500/- was not done within the stipulated period i.e. by 25.10.1992 was also taken.

The parties led their evidences before the District Forum. The District Forum on the basis of evidences, held as under:

"In the instant case, the non-applicants have admitted that the complainant is a member of their society. The main relief sought by the complainant in the instant case is that the non-applicants should be directed to execute sale deed in respect of plot in Mouza Naik Layout.

The complainant has filed receipts issued by the non-applicants society showing that the society had taken Rs. 1723/- from the complainant on 21.08.1981, on 28.10.1992 an amount of Rs. 7,000/- for plot development, on 11.02.1993 an amount of Rs. 10,000/- for plot development on 27.03.1993 an amount of Rs. 4,000/- for plot development. It is evident from the same that the complainant deposited Rs. 22,723/- with the non-applicants had issued receipts to him from time to time.

The non-applicants have mainly submitted in their Written Statement that since the Nagpur Improvement Trust took the possession of the plots in the layout of the non-applicant society, they filed suit against the Nagpur Improvement Trust. The Nagpur Improvement Trust handed over some of the plots some of the plots of the society. Complainant had given an affidavit stating that his requirement was of plot of 1500 sq. ft. But, the non-applicants failed to produce any evidence to show that the Nagpur Improvement Trust had taken over the plots of the society and that the complainants had submitted an affidavit regarding payment of amount in four equal installments. Therefore, we do not agree with the aforesaid submission of the non-applicants.

As opposed to this, the non-applicants have submitted that on 31.05.1983 they had sent a letter to the complainants to deposited Rs.1500/-. But, the complainants did not deposit the said amount, we have perused the documents submitted by the non-applicants and we find that the non-applicants have failed to submit evidence to show demand letter sent to the complainant. The non-applicants have failed to file any acknowledgement regarding receipts of the letter by the complainant. Therefore, the non-applicants have failed to prove that they had sent demand of Rs. 1500/- to the complainant.

The non-applicants have also submitted that they had sent letters on 25.10.1992, to the members for depositing Rs. 15/- per sq. ft. towards plot development charges and that the complainant din not deposit the said amount within time. But, on perusal of the receipts filed by the complainant it is found that the complainant has deposited Rs. 7000/- on 28.10.1992, Rs. 10.000/- in 11.02.1993 and Rs. 4,000/- on 27.03.1993, which is admitted by the non-applicants in their Written Statement.

It is proved by the above that the society has accepted amount towards plot development after 25.10.1992 also. Therefore, it is evident that the plot development charges could be deposited by the members after 25.10.1992 also. In the instant case, there is no basis for the non-applicants to have demanded Rs. 22500/- from the complainant towards plot development because the non-applicants did not state the area of plot to be allotted to the complainant and they did not state as to in what basis they demanded Rs. 22500/- from the complainant.

It is submission of the non-applicants that plots have been allotted to those members who satisfied the terms and conditions of the society But here we would like to mention that the complainant had deposited the amounts stated above due to which the non applicants have failed to prove violation of terms and conditions by the complainant due to which the plot could not be allotted to him. Having perused the written statement of the non applicants, we find that they have nowhere stated as to which of the terms and conditions of the rules of the society that were violated by the complainant.

The non applicants have filed the rules of the society but the advocate for the non applicants failed to show as to which rule was violated of the complainant. The non applicants have generally stated in their written statement that the complainant has violated terms and conditions. It is proved by the same that the non applicants did not allot plot to the complainant although he had deposited the amount demanded by them. Therefore, we are of the opinion that the non applicants should allot plot to the complainant in Naik Layout.

The complainant had demanded sum of Rs.9,50,000/- from the non applicant society if it fails to allot plots in Naik Layout. But the complainant has failed to produce evidence to support such a demand. Therefore, we are unable to agree with the said demand of the complainant. But it is true that if non applicants do not allot plot in Naik Layout to the complainant then we are of the opinion that the complainant must be paid amount as per Government Rate regarding Naik Layout from the date of filing of the complaint i.e. 24.09.2004.

It is significant that the non applicant society have not stated anywhere as to the square feet area of the plots allotted to its members. In the written statement, it has been stated that the Nagpur Improvement Trust has not handed over plots of 1500 sq. ft. to the society. Therefore, the non applicant society must allot plot to the complainant of the same size which it has allotted to its members.

The complainant has demanded amount of Rs.10,000/- towards the physical, mental and financial hardships suffered by him. It is true that the complainant has suffered physical, mental and financial hardships due to non allotment of plot by the non applicants despite the fact that he had deposited the charges for the plot. We are of the opinion that the complainant should be failed Rs.5000/- towards the physical, mental and financial hardships suffered by him.

The non applicants have submitted photocopy of order dated 27.06.2003 passed by my predecessor in complaint no. 92 of 2002 Dr. Idrishbhai Murtuza Vs. Nelco Co-op Housing Society as also copy of order dated 15.12.2006 passed in complaint no. 101/2006 Shri Mayaram Jhanjhar Vs. Nelco Coop Housing Society and copy of order dated 31.12.2005 passed in complaint no. 263 of 2002 Diwakar Raje Vs. Nelco Coop Housing Society.

All the aforesaid judgments have been passed by my predecessor. Having perused the same, it is found that the facts of those cases are different from the present case. During oral arguments, the advocate for the non applicants invited our attention towards the said judgments. But since the facts are different, the said judgments are not relevant for the present case. During the oral arguments the non applicants also submitted photocopies of order dated 20.03.2007 passed in complaint no.390 of 2006 Shri Sheshrao Gade Vs. Nelco Coop Housing Society and order dated 20.03.2007 in complaint no. 391 / 2006 Smt. Pratibha Gade Vs. Nelco Coop Housing Society. The said complaints were dismissed by this Forum. Therefore, it is the contention of the non applicants that the present complaint should also be dismissed, claiming that the facts are similar. But, we have perused both the said orders and we find that the facts of the present case are different from the complaints filed by Sheshrao Gade and his wife Pratibha Gade. In the said case the non applicants had shown that Sheshrao Gade had a flat owned by him within the limits of Nagpur Municipal Corporation and therefore, under Rule F-7 if the member or any person from his family has a house in their name then plot cannot be allotted by the society. This issue was proved by the non applicants in the said complaint. Therefore, those two complaints were dismissed by this Forum.

Having perused the documents, complaint, Written Statement and having considered all the aspects we have reached the aforesaid conclusions and the following order is being passed.

FINAL ORDER

The complaint is partly allowed.

The non applicants society is directed to allot and execute a sale deed in favour of the complainant in respect of plot in Mouze Naik Layout Nagpur of the same value and area as the plots allotted to all members of the society.If any amount remains to be paid by the complainant, the non applicant society will be entitled to the same.

The complainant shall bear the expenses of the executing the sale deed.

OR

If the non applicants are unable to allot the plot to the complainant as directed above, then they must return the amount of Rs.22,723/- received by them from the complainant for the plot in Naik layout alongwith interest at the rate of 12% till the amount is paid. Additionally the non applicants must pay the value of the area of the plot of Naik Layout as per Government Rate alongwith interest of 9% from the date of filing of the complaint till actual payment.

The non applicants are directed to pay the sum of Rs.5,000/- to the complainant for having caused physical, mental and financial hardships.

The non applicants are directed to pay sum of Rs.3000/- to the complainant towards costs.

The non applicants shall comply with this order within 30 days from receipt of copy of this order.

The order of the District Forum was impugned by the respondent before the State Commission and the State Commission modified the order of the District Forum and has held as under:

"7. Admittedly, the appellant no.1 is duly registered cooperative housing society and it is governed by the Rules. The copies of those rules which are filed on record, are not disputed As per clause 7 (f) of the said rules, the plot can be sold by the appellant no.1 to its members only when it is satisfied that the member does not own or possess any land or house in territorial jurisdiction of NMC and the said member is not again made member of another society and another society has not allotted any plot to him in the territorial jurisdiction of NIT. The respondent herein has not come with a specific case that he has submitted any such affidavit giving the aforesaid particulars to the appellant no.1- Society. Moreover, he has not come with a specific case as to whether the aforesaid conditions given under clause 7 (f) of the aforesaid rule does not come in his way of getting allotted the plot. Therefore, we are of the view that as mandatory condition of the aforesaid rules is not complied with by the respondent herein by supplying aforesaid information on affidavit, the Forum committed error in giving direction to the appellant to allot the plot to the respondent and execute the sale deed in his favour. Moreover, we also find that no agreement was entered in between the appellant and the respondent in respect of the allotment of any plot to the respondent. Further more, the receipts of the payment made to the appellant by respondent do not specify that plot of Naik Lay-out is allotted to him or is agreed to be allotted to him. Therefore, we hold that the Forum below error in giving direction to the appellants to allot a plot of Naik-lay out to the respondent and to execute the sale deed of the same in his favour.

It is not disputed that the respondent deposited total amount ofRs.22,723/- in instalments with the appellant no.1 Society. One of the receipts of Rs.1723/- shows that the said amount was taken by appellant no.1 on various heads and not towards part of price of the plot. The amounts of Rs.7000/-, Rs.10,000/- and Rs.4000/- paid are relating to the development of the plot only. Therefore, it is crystal clear that the said amounts were not paid towards full price of the plot of Naik Lay-out plan.

Even if it accepted that the said amount of Rs.22,723/- is paid towards full price of the plot, still the plot was not allotted to him and no agreement to sell was reached in between both the parties. Last payment of Rs.4,000/- was made on 27.03.1993 and the notice was issued by the respondent to the appellant on 01.04.2003 to allot him and hand over its possession. The respondent has not explained why he awaited for making last payment from 27.03.1993 till 01.04.2003 for claiming the allotment of the plot. He only stated in the complaint that he had orally requested to the appellants to allot the plot to him but the same cannot be accepted. The respondent filed the complaint belatedly i.e. 18.03.2004.

Thus, we are of the considered view that direction given by the Forum under the impugned order to allot the plot of Naik Lay-out to execute the sale deed of the same in favour of the respondent by accepting the balance consideration or in alternative refund prevailing price of the said plot as per Government rate as on the date of complaint cannot be sustained in law. However, we find that the respondent is entitled to refund of an amount of Rs.22,723/- with interest @ 12%p.a. w.e.f. 27.03.1993 till its realization by the respondent as awarded by the Forum under impugned order. Moreover, we also find that since the said amount was not refunded immediately by the appellants, they are liable to pay further compensation to the respondent. Under the facts and circumstances of the present case, we find that the appropriate and reasonable compensation would be of Rs.25,000/- with interest @9% p.a. from the date of complaint i.e. from 24.09.2004 till realization of the said amount by the respondent. We also hold that the compensation of Rs.5000/- awarded towards mental and physical harassment and cost of Rs.3000/- awarded by the Forum is just and proper. Accordingly, we proceed to pass the following order:

ORDER

The appeal is partly allowed.

Part of the impugned order as about the direction given to the appellant to allot the plot from Naik Lay-out and to execute the sale deed of the same in favour of the respondent herein by accepting balance consideration from his or in alternative to pay him prevailing price at the government rate as on the date of complaint stands set aside.

The rest of the impugned order about refund of consideration of Rs.22,723/- with interest @ 12% p.a. from 27.03.1993 till its realization to the respondent and also about the payment of compensation of Rs.5,000/- towards mental and physical harassment and cost of Rs.3000/- to him is maintained.In addition to the same it is directed that the appellant shall pay further compensation of Rs.25,000/- to the respondent with interest @ 9% p.a. from the date of complaint i.e. 24.09.2004 till its realization of the said amount by the respondent.

(iv) No order as to cost in this appeal.

The complainant has challenged the impugned order of the State Commission. The plea taken is that the complainant had always wanted the plot and that order of refund of his deposited money, therefore, is not in the interest of justice. It is further argued and submitted that as per clause 7 F of the by-laws of the respondent, the burden was upon the society to ask for the information relating to the facts mentioned therein and it was not the duty of the complainant / petitioner to offer such information without asking and, therefore, findings of the State Commission to the effect that the burden was placed upon the complainant / petitioner to submit that report is based on surmises and conjectures. It is further argued and contended that it is undisputed fact that complainant was a member of the Society whose main object was to allot the plots to its members and the fact that they had demanded and received the money for that purpose constitutes a contract and, therefore, findings of the State Commission to the effect that there was no agreement between the parties is again based on the surmises and conjectures and against settled proposition of law.

It is argued on behalf of the respondents that there was no written contract between the parties and that there was delay on the part of the petitioner / complainant in depositing the demanded money of Rs.22,500/-. Complainant had deposited it late, al-though complainant was required to deposit by 25.10.1992. It is further argued that respondent had issued a letter dated 13.04.1989 in terms of clause 7 F of the by-laws asking the petitioner to submit the information as to whether he owned any house or gala in his name or in the name of his family within the limits of Nagpur Municipal Corporation but despite that the petitioner / complainant had not furnished the said information.

We have heard the arguments and given our thoughtful consideration to the arguments of learned counsels for the parties. Admittedly, a society is nothing but a group of members who undertakes collectively to develop the land together and build the plots. To do that, they elect their President and Secretaries to run the society. In the present case, admittedly, the petitioner is a member of the Society. On 21.08.1981, he paid a sum of Rs.1723/- under various heads. Subsequently on the demand of the society, he also paid the balance amount. Thus, he had paid the entire money of Rs.22,500/- as demanded vide demand letter dated 13.04.1992. It is also an admitted fact that due to protracted litigation between society / respondent with Nagpur Improvement Trust, the plots could not be developed till 1993 and, thereafter, the development process of the plots had started. The argument that there was no contract between the respondent and the petitioner is of no consequence. The very fact that petitioner was a member of the Society, whose object was to allot the plots to its members, is sufficient and there was no need of any separate agreement. The fact that the Society also demanded and received money for that purpose further confirms it. After receiving the money for developing the plot on behalf of its members, the Society's plea that there was no agreement to give plot to petitioner, amounts to unfair trade practices. It has been held by this Commission in the case of True Zone Buildwell Pvt. Ltd. Vs. Bhoop Singh III (2014) CPJ 584 (NC) this Commission has held as under:

"20. No sense can be made out of the meaning ( Present and Future). This act of the petitioner in accepting a sum of Rs.2,00,000 from the respondent in the year 2006 without disclosing the area, location and number of the plot etc. amounts to a 'Deceptive Practice' which falls within the meaning of 'Unfair Trade Practice' as defined under Act. Further, above conduct of the petitioner per se amounts to an act of misrepresentation and alluring the innocent public to part with their hard earned money without giving them any detail as to for what purpose petitioner had taken the hard earned money of the respondent."

Another argument of counsel for the respondent is that there is non-compliance of Clause 7 F of the by-laws. He has drawn our attention to Clause 7 F of the by-laws, which is reproduced as under:

"Before allotment of plot, the society shall ask the following information from the members:

As per explanation to clause 7 of the by-laws if the member or any person from the family of the member is a member of any other housing society then the name of such person and name of the society.

If such member or person of the family of the member as specified in explanation to clause 6 of the by-laws has been allotted plot or gala then convincing reason for allotment of plot or gala or house by this Society.

Whether house, building or land owned by member or person of the family of the member as specified in explanation to clause 6 of the by-laws, falls within the jurisdiction of the society and if convincing reason for allotment of house, land or gala by this Society."

A bare reading of this clause makes it incumbent upon the Society to ask for information from the members and the members are not required to volunteer such information. In order to prove the fact that society did ask the petitioner to furnish the information in terms of clause 7 F, the counsel for the respondent has relied on the letter dated 13.04.1989 of the Society. Learned counsel for the respondent has submitted that this letter was served and received by the complainant. Learned counsel for the respondent has failed to bring to our notice any document which shall prove that notice was duly served / received by the petitioner. During the course of arguments, learned counsel for the respondent contends that he needs to go through the record of the Fora below and flag the relevant documents to prove this fact. From the order of the District Forum and State Commission, it is clear that there is no reference to any document which was produced before them to prove the proof of service of the letter dated 13.04.1889. Even otherwise, from the ordersheet dated 18.04.2017 of the National Commission in the present revision petition, it is apparent that such opportunity was given to the respondents but the learned counsel for the respondents had submitted before us that he will not inspect and flag the relevant pages of the District Forum's file. It is clear that there is no document on record to prove the service of notice dated 13.04.1989 upon the complainant. In terms of categorical and clear wordings of the clause 7 F of the by-laws of the society, the burden was upon the society to ask for the information mentioned therein, which the society has failed to discharge. The findings of State Commission is, therefore, based on wrong interpretation of clause 7 F and contrary to documents proved on record.

A member of a Society, whose object was to develop land with the money of its members, has to allot it to its member and it cannot after developing the land with the money of the member can sell it to an outsider.

In view of the above discussion, the impugned order is set aside and order of District Forum is confirmed. Revision Petition stands disposed of in these terms.