Rajubhai Tank, Director Of Odhav Hari Developers Pvt. Ltd. vs Bindraben Bharatkumar Mavani

THIS common order shall decide the above mentioned 17 revision petitions, which entail the same question of law and facts. This revision petition was contested by Shri Shaktisinh Dilip Sinh Jadeja, who has produced the written statement of himself and two other consumers, namely, Krishnaben Dinesh Sendhani (minor) and Ramilaben Jagdishbhai Jethi.

ALL the respondents have been served but they did not appear. We have taken the facts from revision petition No. 2391 of 2013 -Rajubhai Tank and Ors vs. Bindraben Bharatkumar Mavani. Shri RajuBhai Tank, opposite party No. 1, Director of Odhav Hari Developers Pvt. Limited, Liladharbhai Dama, Director of Odhav Hari Developers Pvt. Ltd., opposite party No. 2 and Rajesh B. Mehta, opposite party No. 3 purchased land in the name of land developers. They used to purchase the agricultural land and convert the said land into non -agricultural for residential purpose. An advertisement was published to sell the plots measuring 125 sq. mtrs in 36 installments, per installment in the sum of Rs.800/ -. They purchased the land in survey No. 103 -104 -105 Bhuj.

ALL the complainants became members of the land developers and paid 36 installments as per the scheme. Vide letter dated 17.6.2009, the present complainant Bindraben Bharatkumar Mavani was allotted plot No. 116 mentioned in the non -agricultural plan and it was stated that an activity/procedure to convert the land into non -agricultural is going on.

THE grouse of the complainants is that upon the elapse of the long period, sale deeds were not executed. The opposite party launched a scheme in the year 2004 and in the year 2009, the complainants had paid the entire consideration in installments to the opponents. It was alleged that opponents were enjoying their money. Notices were issued but they did not evoke any response. Consequently, the complainants filed separate complaints before the District Forum against the opposite parties seeking relief that their sale deed should be executed at the cost of the complainants and also sought relief to get compensation of Rs. 1 lakh towards mental, physical harassment and Rs.1,00,000/ - towards the loss, Rs.5,000/ - towards expenditure. The opposite party contested this case. The District Forum in this case passed the following order: ''''Complaint of the complainant is hereby allowed. The opposite party is directed to execute registered sale deed for the plot being No. 116 as per conditions mentioned in the letter dated 17.06.2009 addressed to the complainant and produced vide mark 3/1 in favour of the complainant within three months and further directing the opponent to give compensation of Rs.3000/ - towards mental, physical harassment and Rs.2,000/ - towards expenditure of present complaint.''''

Order is pronounced in the open court.''''

AGGRIEVED by that order, the petitioners filed appeals before the State Commission. The State Commission dismissed the appeal.

BEFORE coming to the submissions of the petitioners, it would be worthwhile to discuss their defence succinctly. The Opposite Parties No. 2 and 3 were joined as party respondents as per third person capacity and as such the complaint is not maintainable. The case is barred by limitation. The application was moved by the petitioners for granting permission to use the land for non -agricultural purposes. The Collector had directed to make payments towards premium @ 200/ - on 22.09.2008. The order was challenged before the Gujarat High Court which declared that the agreement entered into between the consumers and the Ops was not valid. There is no deficiency on the part of the Ops. Now we turn to the submissions made by the counsel for the petitioners. First of all, he invited our attention towards the High Court ''s order wherein it was observed: - ''''If without permission under Section 43, the land could not have been sold, the agreement if any reached by the petitioners with any other person for transfer of land, such agreement is invalid, having executed in violation of Section 43 of the Act and hence to be ignored.''''

Further, it was mentioned: ''''44. Further, if the petitioners will not transfer the land as of today or in future to another person at the costs as was prevailing 5 to 10 years back and for the purpose of stamp duty, they will pay stamp duty as was prevailing at the time of sale, they cannot claim determination of valuation as was prevailing at the time of sale. For the said reason, the petitioners cannot take any advantage of the judgments referred by them which are not applicable in the facts and circumstances of the case in hand. We, therefore, hold that the crucial date for determination of the premium is the date on which the Collector grants such permission i.e. prospective date and not retrospective date. For the same very reason, we hold that the resolution dated 4.7.2008 is prospective and cover all the pending cases, including the cases where assessment was made by State or District Level Committee or any other authority, if the matter is pending for permission by the Collector.

So far as the individual cases are concerned, we are not dealing with or discussing the individual claim as their applications for permission are pending with the Collector and will be guided by the finding as given by us and mentioned hereinabove. We find no merit in any of the writ petitions and the Letters Patent Appeals and, therefore, we dismiss all the writ petitions, Letters Patent Appeal and the Civil Applications. However, there shall be no orders as to costs.

COUNSEL for the petitioners also submitted that out of 1500 Consumers, 1200 Consumers have already been refunded the amount. Few people could not pay the amount. Only the complainants are left who do not agree to take the refund back.

OUR attention was invited towards the order passed by this Court. At the instance of the petitioners, the said order dated 6.12.2003 is reproduced here as under: - ''''In these cases, all the respondents have been served. Adjournment applications have been moved by Shri Shaktisinh D. Jadeja, Shri Dinesh Sendhani and Shri Ramilaben J. Jethi, respondents. They need to engage advocate to conduct the cases. They state that they reside in Kutch, Gujarat, which is far away and prays for a long date so that they can engage lawyer.

In the interest of justice, the case is adjourned to 31.3.2014 for reply and arguments.

We have perused the High Court judgment. Without prejudice, stay is granted subject to deposit of Rs.20,000/ - in each case. The petitioner will deposit the entire amount with 9% interest with this Commission within six weeks, failing which the stay shall stand vacated.

The fate of that amount will be decided at the time of passing of the final order. The registry is directed to keep that money in FDR.

Notice on the application for condonation of delay be also issued to the respondents returnable on 31.3.2014.

The respondents have asked for long date. They have not cared to give their phone number or the fax number. This is also mentioned that this is consumer court. It appears that they are trying to delay the case unnecessarily. No further adjournment shall be granted. Registry is directed to send the information about the next date of hearing through speed post to all the respondents.''''

Learned counsel for the petitioners submits that this was the prima facie view of this Commission and they are ready to pay the entire amount with interest @ 9%.

DURING the course of arguments, we asked the respondent - Sh. Shaktisinh Jadeja whether they would like to have refund of money with interest. He insisted that they want plots only. He further pointed out that from 2004 to 2014 the rates of plots have gone up by leaps and bounds. He contended that the plot of Rs. 25,000/ - is not available even for Rs. 2,00,000/ - He contended that they are ruined due to this transaction.

IT must be borne in mind that both the Fora have given the concurrent findings. The judgment filed by the Hon ''ble High Court rather supports the complainants. In such like cases, consumers must have to repent to bark up at wrong tree i.e. promoters/builders. For the following reasons, we find that the Revision Petitions filed by the petitioners are sans merits and therefore, we dismiss the same. To top it all, the petitioners had given the advertisement to launch to sell the plots on installments. It is difficult to fathom why did they give the advertisement without getting the same as non -agricultural land for giving the plots there. The petitioners took the complainants/consumers for a ride. Unless or until they were sure that the complainants would get these plots free and clear, they should not have given the advertisement. First of all, they gave the advertisement without the requisite sanction from the Collector. They obtained almost all the instalments from the customers/consumers. They succeeded to lead the consumers up the garden path.

BY no stretch of imagination, it can be said that a situation has arisen, which makes the situation out of control. It is crystal clear if the premium is paid, land would become non -agricultural and there would not be any other opinion with regard to this aspect. The petitioners should have anticipated at the time of acquiring this land in the year 2004 or prior to that, what would be the condition/prevailing situation. They should have made it clear in the allotment letter that this premium to the collector would have to be paid by the consumers. The said condition was not shown to us. After keeping the money of the people for 10 years, the Ops want to return the same, with interest @ 9%. They have not shown the willingness that they want to pay the difference in the rates prevailing in the year 2004 and 2014. The consumers cannot purchase a plot like this, after the expiry of 10 years for a sum of Rs.2,00,000/ - each. This is a chink in their armour. Their action is below the belt. They are unfairly trying to treat their consumers. The OPs have succeeded to feather its own nest i.e to make profits for themselves at the expenses of others. The OPs should have taken the plunge after getting free and clear title to land in dispute. It is also noteworthy that if the premium to be paid to the Collector is reduced, will they return the money to the consumers? In case the money is paid back to the consumers, the petitioners would sell it at a very high rate. This is an unfair trade practice.

PETITIONERS have also raised the question of limitation. The said objection was rejected out -rightly by following the judgment of ''''Juliet V. Kwardross Vs. Malatikumar and ors.'''', reported in 2005 (2) CPR (NC). This is well settled that the cause of action is continuous and unless and until the possession and sale deed are not executed. This Commission in the case ''''Bhagyalaxmi Construction versus Monoranjan Basal & Ors. in Revision Petition No. 668 of 2013 decided on 31st May 2013 observed: - ''''5. Coming to the issue of limitation, raised before the fora below on behalf of RP/OP. The State Commission has agreed with the finding of the District Forum that it was a case of continuing cause of action. The question of the complaint being barred by limitation did not arise. From a perusal of the records and from the arguments of the counsel for the revision petitioner, I find that it is a case where existence of an agreement between the parties for the purchase of a flat is not denied. Receipt of consideration for the same is also not denied. I therefore, find myself in agreement with the fora below that the cause of action had continued to exist because neither the possession was delivered nor the conveyance was executed in favour of the complainant.''''

The Supreme Court dismissed the SLP vide order passed in Petition(s) for Special Leave to Appeal (Civil) No(s). 28910/2013 decided on 11.11.2013.

THE bizarre conduct of the OPs is difficult to fathom. Notice was served to them but they did not care a fig. Ten years have elapsed but it cannot be said that consumers will get plots during their life time. People are exasperated by senseless delay. The OPs have played fast and loose with the consumers.

CONSEQUENTLY , we dismiss the Revision Petitions with the direction to get the agricultural land into non -agricultural land, meant for making the plots within 90 days from the receipt of this order. Secondly, the petitioners are also directed to execute the sale deeds within 180 days from the receipt of this order. Thirdly, if the needful is not done, the petitioners will be liable to pay penalty in the sum of Rs. 10,000/ - per complainant/consumer for each month till the needful is done. Again, the Revision Petitions are frivolous and vexatious, therefore the same are dismissed with costs of Rs. 10,000/ - be paid by the OPs to each of the complainants Under Section 26 of the C.P. Act within 90 days otherwise it will carry interest at the rate of 9% per annum till realisation. It is also transpired that due to inadvertence, we could not order to pay the litigation charges to the respondents. Only Mr. Shaktisinh Jadeja (In person) has come to contest this case for two occasions on behalf of himself and two more complainants. Each of them has filed the written reply. Consequently, Mr. Shaktisinh Jadeja would get Rs. 15,000/ - as litigation charges and other two consumers named above will get Rs. 10,000/ - each as litigation charges, which will be paid within 90 days from the receipt of this order otherwise, it will carry interest @ 9% till realisation.