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Judgment
IA/15351/2018 (For Impleadment of parties)
This application has been filed for impleading Chetan Kumar as opposite party in the revision petition. In the application it has been stated that Mrs. Surjit Kumar had become of 79 years old. In order to secure the property in dispute she executed transfer deed dated 09.10.2014 in respect of property in dispute in favour of Chetan Kumar, her son. In view of Order XXII Rule 10 CPC Chetan Kumar is liable to be impleaded as opposite party in the revision petition as such the application is allowed. Name of Chetan Kumar be added as respondent No.2 in the memo of party in the revision petition.
Heard Mr. Ashok Chhabra, Advocate for the petitioner and Mr. Ashish Aggarwal, Advocate for the respondents.
This revision has been filed against the order of State Consumer Disputes Redressal Commission, Haryana at Panchkula, dated 07.01.2015, passed in First Appeal No. 807 of 2014 (arising out of the order of District Consumer Disputes Redressal Forum, Gurgaon, dated 10.06.2014, passed in Consumer Complaint No.70 of 2013), whereby the District Forum has allowed the complaint and directed the petitioner to construct a metalled road on both sides of the plot of the complainant free from any encroachment and remove nearby encroachment of her plot in dispute within 60 days, in case of default, the complainant will be entitled to interest @9% p.a. from the date of each deposit with them till necessary development of the area and Rs.25,000/- as compensation for mental agony and physical harassment and Rs.5,000/- as cost of litigation and State Commission dismissed the appeal.
Mrs. Surjit Kumar (respondent no.1) filed consumer complaint No.70 of 2013 for directing the petitioner to remove all the illegal structures and to complete construction of road in front of the house as per plan which has been approved by Director, Town and Country Planning Haryana and to pay Rs.5 lakhs to the complainant on account of mental agony and harassment and Rs.50,000/- for legal expenses or any other relief which may deem fit and proper in the circumstances of the case. The facts as alleged in the complaint and emerged from the document filed along with the complaint are that the petitioner was engaged in the business of development of residential and commercial plot. The petitioner launched a project for development of residential plot in the name of Ardee City, Tehsil and District Gurgaon in the year 1997. The complainant and her husband late Trilok Kumar booked a residential plot in the aforesaid scheme. After booking, they were allotted plot No.92 (admeasuring about 252 sq.mtrs.) in Ardee City. According to the payment scheme, the complainant and her husband paid Rs.16,07,400/-towards the sale consideration of the plot and other charges relating to external and internal development of the plot. However, the development was delayed at the stage of the petitioner and they could execute the deed of conveyance in favour of the complainant and Mr. Trilok Kumar on 07.09.2005 in respect of plot No.92, which is situated on road C-07 in the residential colony known as Ardee City situated at village Wazirabad, District Gurgaon, Haryana. In the boundaries of the plot as mentioned in the sale deed; northern side 12 mtr. wide road and in western side 12 mtr. wide i.e. road no.C-07 situated. It has been stated that Mr. Trilok Kumar died on 13.09.2007 leaving behind him Chetan Kumar his son and Mrs. Surjit Kumar (respondent No.1) his wife as his only heir and legal representative. By way of family settlement Chetan Kumar surrendered his share in the plot in dispute to his mother Mrs. Surjit Kumar and the family settlement was recognised by the order of Lok Adalat Gurgaon dated 11.11.2011. It has been alleged that due to connivance of the petitioner (the developer), encroachment and construction have been raised over road in front of the plot of the complainant. The complainant brought encroachment to the notice of the developer time to time, but the developer instead of adopting any mode for removing the encroachment had made one or other pretext to the complaint. Then a legal notice was given to the developer on 03.05.2012 for removing the encroachment from the road and when nothing was done then the complaint was filed on 04.2.2013/01.03.2013.
The petitioner contested the complaint and filed its written reply. In written reply it has been stated that the complainant has no locus standi to file the complaint. The complainant alleges that encroachment over the road has been made which requires oral evidence and cross examination, which is not possible in the summary proceedings before the District Forum. As such the complainant be relegated to move the complaint either before Country Town & Planning Department (Enforcement), Municipal Corporation of Gurgaon or to file civil suit. The developer has already constructed a road in accordance with the development plan and after such long time the dispute regarding encroachment on the road is being raised. The complaint is barred by the principle of estoppels acquiesces and laches. At the time of execution of the sale deed, there is no objection relating to encroachment over the road. The sale deed was executed on 07.09.2005. The purchaser is liable to raise construction within three years of the sale deed. If the purchaser had failed to raise construction within three years, the developer is entitled to resume the plot and return the sale consideration, if any, encroachment is made after execution of the sale deed then Country Town & Planning Department is authorised to remove the encroachment.
After hearing the parties District Forum by order and judgment dated 10.06.2014 held that under Section 3(3)(a)(iii) of the Haryana Development and Regulation of Urban Areas Act, 1975, the developer is liable to maintain and upkeep of the road, open space, public park, public health services within the area of colony developed by him. Since there is allegation of encroachment on the public road as mentioned in development plan as such the developer is liable to remove such encroachment. On these findings, the complaint was allowed and the petitioner was directed to construct the metal road on both sides of the plot of the complainant free from any encroachment and remove nearby encroachment of her plot in dispute within 60 days. In case of default, the complainant will be entitled to interest @9% p.a. from the date of each deposit till the necessary development of the area and Rs.25,000/- was awarded as compensation for mental agony and physical harassment and Rs.5000/- as cost of litigation.
The petitioner challenged the aforesaid order in Appeal No.807 of 2014 before the State Consumer Disputes Redressal Commission, Haryana, Panchkula, which was dismissed by the State Commission after hearing the parties by order dated 07.01.2015. Hence, this revision has been filed.
The counsel for the petitioner submits the sale deed was executed on 07.09.2005 while the present complaint was filed on 04.02.2013. He submits that the complaint was long barred by limitation and ought to have been dismissed on account of delay itself as held by Hon'ble Supreme Court in State Bank of India Vs. B.S. Agriculture Industries (2009) 5 SCC 121 and Haryana Urban Development Authority and Ors. Vs. Tej Refrigeration Industries Limited (2013) 14 SC 758 and Muneesh Devi Vs. Uttar Pradesh Power Corporation Limited and others (2013) 10 SCC 478 and this Commission in V.P.Kochagasty Vs. P.Kumarankutty II (2017) CPJ 524 (NC). The District Forum by the impugned order has directed for removal of the encroachment and construction of metal road on both sides of the plot of the complainant. Such a power is not conferred upon District Forum under Section 14 of Consumer Protection Act, 1986 . During the pendency of the revision the plot in dispute has been transferred by the respondent in favour of Chetan Kumar through transfer deed dated 09.10.2014 as such the petitioner is not a consumer rather plot in dispute was purchased by her for commercial purposes and the complaint was not maintainable.
We have considered the arguments of the counsel for the parties and examined the record. So far as the allegation that the petitioner has transferred the property in dispute in favour of Chetan Kumar, through transfer deed dated 09.10.2014 is concerned Chetan Kumar is the son of the respondent. It is alleged that the respondent has become very old. In order to settle the property during her life time the transfer deed dated 09.10.2014 was executed. It is not for driving any benefit as such the allegation that the opposite party is not a consumer is not liable to be accepted. It may be mentioned that in the sale deed dated 07.09.2005 the word 'purchaser' includes his heirs and legal representative, therefore, at this stage after about several years of execution of sale deed, the right of the respondent to transfer the plot in dispute in favour of his son cannot be challenged.
So far as allegation that the complaint was filed on 04.02.2013 while the sale deed was executed on 07.09.2005 and the complaint was long barred by limitation is concerned, District Forum as well as State Commission have relied upon Section 3(3)(a)(iii) of the Haryana Development and Regulation of Urban Areas Act, 1975 and found that it was duty of the developer to maintain the internal development works and upkeep all the roads, open space, public parks and public health services throughout. If the encroachment has been made on the road either before execution of the sale deed or after execution of the sale deed then it is a continuous cause of action and the developer is liable to remove this encroachment from the spot. There was allegation in the complaint that the encroachment was made in connivance of the developer. The inaction of the developer shows that the fact relating to his connivance appears to be true. In the matter relating to continuous cause of action, the cause of action arises on every day till the encroachment is actually removed from the spot. The case law relied by the petitioner are not applicable in the present case.
11 . So far as the power of District Forum as given under Section 14 is concerned, District Forum is fully authorised to direct the service provider to remove the deficiency in service under Section 14 (1)(e) of the Act. The encroachment on the road as allocated in the sanctioned lay out plan and not removing the encroachment by the developer is deficiency in service on his part. The District Forum is fully competent to pass the impugned order. It is well within the jurisdiction to pass order which has been passed in the present case.
ORDER
The revision has no merit and it is dismissed.