Syed Manzoor Hussain vs Y. Kalyan

Ram Surat Ram Maurya, Presiding Member

Heard Ms. A. Subhashini, Advocate, for the petitioner and Mr. A.V.S. Raju, Advocate, for the respondent.

Above revision has been filed against the order of Telangana State Consumer Disputes Redressal Commission, Hyderabad, dated 05.05.2022, passed in First Appeal No.782 of 2019 (arising from the order of District Consumer Disputes Redressal Forum, Hyderabad, dated 16.10.2019 passed in CC/444/2017), whereby District Forum allowed the complaint and directed the petitioner to complete construction of the Flat Nos.102, 201, 302 and 401 and handover possession of it to the complainant within 3 months and pay Rs.10000/- per month from November, 2013, till handing over possession and Rs.50000/- as litigation costs to the complainant and State Commission while maintaining above order, directed the complainant to return Rs.800000/- to the petitioner.

The office has reported delay of 167 days in filing of the revision. The petitioner has filed IA/1097/2023, for condoning the delay in filing of the revision. In delay condonation application, the petitioner has stated that he challenged the impugned order, in Writ Petition (Civil) No.25979 of 2022, on 16.06.2022 before High Court, on legal advice. Later on other counsel advised to file revision before National Commission. Then this revision was filed on 24.01.2023. Subject to objection of the respondent, delay in filing the revision is condoned and the revision was heard for admission.

Mr. Y. Kalyan (the respondent) filed CC/444/2017 for directing the petitioner to (i) complete the construction of Flat Nos.102, 201, 302 401, 502 and 601 and handover possession of it to him within 3 months; (ii) pay Rs.10000/- per month as delay compensation, from due date of possession till handing over possession; (iii) pay Rs.500000/- as compensation for mental agony and harassment; (iv) pay Rs.50000/- as litigation costs; and (v) any other relief, which is deemed fit and proper in the fact of the case. The complainant stated that he was owner of House Door No.9-4-86/81/5 and 9-4-86/81/5-A, situated in part of Survey No.141, 142, 143, (area 280 sq. yards) Shaikpet Village, Salarjung Colony, Hyderabad, consisting ground floor and first floor. Mr. Syed Manzoor Hussain (the opposite party) was engaged in the business of development and construction of multi-storey building. The complainant entered into an agreement with the opposite party for demolition of his old house and construction of new building and an Agreement of Development-cum-General Power of Attorney was executed between the parties on 02.03.2013. As per agreement, the complainant had to handover vacant possession of his old construction and the opposite party had to demolish it, obtain necessary permission/sanction and construct new building on it at his own expense, which had to be shared by the parties in 50:50 ratio of the constructed and common area. Possession had to be handed over new building with a period of 18 months with grace period of 6 months from the date of handing over of the old building. Schedule-A specified share of the complainant, in which he was given 3 car parking space, Flat Nos.102, 201, 302, 401 and 502. It has been further provided that if any extra construction is raised then the complainant had to pay 50% of the cost of extra construction @Rs.1000/- per sq.ft. and which will be shared between the parties in equal ratio. After due date of possession, the opposite party agreed to give Rs.10000/- per month till the date of delivery of possession. The opposite party had to give Rs.200000/- as no-refundable security and Rs.400000/- as refundable security to the complainant. The complainant handed over possession of the old structure to the opposite party in April, 2013, gave the documents of title and signed the papers as required for obtaining necessary permission/sanction. The opposite party started demolition of old structure and construction of the new building. The opposite party approached the complainant in the year 2015 and informed that due to paucity of fund, he was not able to complete the construction. He asked the complainant to sign the sale deed of semi-finished Flat No.101, so that he could raise some fund. On the asking of the opposite party the complainant signed Sale Deed dated 28.10.2015 (Document No.469/2015), of which, the opposite party received sale consideration. Due date of possession expired in March, 2015 but even on the date of filing of the complaint 25% of total work remained for completion. The opposite party was not giving delay compensation as agreed in the agreement. The complainant gave legal notice to the opposite party on 16.08.2017, for giving possession of the flats falling in his share. In spite of service of the notice the opposite party did not respond. Then the complaint was filed.

The petitioner filed its written reply and contested the complaint. The petitioner did not dispute material facts. The petitioner stated that the complainant had handed over possession of old premises after six months of execution of the agreement and not in April, 2013. The opposite party then started construction but the neighbour of the complainant, who was a doctor by profession started obstruction and used to disturbed mason work on one ground or the other. Finally the opposite party accepted proposal of the doctor to purchase two flat in new building on half of the market rate. The complainant introduced his neighbour Mr. Qaum, who had 200 sq. yard land adjoining to the land of the complainant for development and construction, which was agreed by the opposite party. During construction, Government introduced “BPS Scheme”. The opposite party applied for regularization of the construction under “BPS Scheme”. The opposite party paid Rs.200000/- initially to the complainant. The complainant took Rs.1500000/- from the doctor. The opposite party paid Rs.1000000/- on 16.02.2015, Rs.500000/- on 03.12.2015 and Rs.1000000/- on 03.04.2016 to the complainant. Market value of the plot was Rs.7700000/-. The opposite party was ready to give balance amount of Rs.3200000/- towards cost of the plot and Rs.2800000/- towards cost of the extra construction of 2800 sq.ft (5th, 6th floor and penthouse). The complainant has sold 4 flats to different persons and received consideration from them. The complainant is not signing the sale deed in respect of the flats falling in the share of the opposite party and demanding huge amount for it. Due to not signing the sale deeds of the flats of the share of the opposite party, he was facing with paucity of the fund. Agreement of Development-cum-General Power of Attorney dated 02.03.2013 is irrevocable and as the complainant had derived benefits under it and he had no right to revoke it. The complainant initially delayed delivery of vacant possession and subsequently the neighbour started creating hindrance due to which the construction was delayed. The complaint has been filed concealing material facts and liable to be dismissed.

District Forum, by judgment dated 16.10.2019, found that Flat Nos.102, 201, 302 401 and 502 were falling in the share of the complainant under Agreement of Development-cum-General Power of Attorney dated 02.03.2013. The contention of the opposite party that he had paid Rs.200000/- initially, Rs.1000000/- on 16.02.2015, Rs.500000/- on 03.12.2015 and Rs.1000000/- on 03.04.2016 towards consideration of his four flats and the complainant had taken Rs.1500000/- from the doctor of the flat falling in his share, was incorrect. The opposite party paid Rs.2500000/- to the complainant in respect of his share, in the flat constructed on fifth floor, while the complainant had entered into an agreement for sale with Dr. Shaik Afzuluddin Hussain, in respect of the flat, falling in his share and took Rs.1500000/- from him. The complainant handed over possession of his old structure in April, 2013 but the opposite party failed to complete construction and handover possession within two years as such the complainant was entitled for Rs.10000/- per month as compensation from April, 2015. On these findings the complaint was allowed with cost of Rs.50000/- and the petitioner was directed to complete construction and handover possession of Flat Nos.102, 201, 302 and 401 to the respondent within three months and pay compensation @Rs.10000/- per month from April, 2015 till the date of handing over possession. The petitioner filed First Appeal No.782 of 2019, from the order of District Forum. State Commission, by its judgment dated 05.05.2022, affirmed the findings of District Forum and dismissed the appeal except for Rs.8 lakhs. Hence the petitioner has filed this revision.

I have considered the arguments of the counsel for the parties and examined the record. Concurrent findings of Fora below that Flat Nos.102, 201, 302 401 and 502 were falling in the share of the complainant under Agreement of Development-cum-General Power of Attorney dated 02.03.2013; the opposite party paid Rs.2500000/- to the complainant in respect of his share, in the flat constructed on fifth floor and the complainant had entered into an agreement for sale with Dr. Shaik Afzuluddin Hussain, in respect of the flat, falling in his share and took Rs.1500000/- from him and the complainant handed over possession of his old structure in April, 2013 but the opposite party failed to complete construction and handover possession within two years, do not suffer from any illegality. This Commission in exercising of revisional jurisdiction cannot interfere with it.

The petitioner has taken a new plea in the revision that Endowment Department, State of Telangana has filed a suit before Endowment Tribunal for removing encroachment from endowed property of Sri Kovela Ranganayaka Swamy Temple, Tirupalligadda, Salarjung Colony, Nanal Nagar, Asif Nagar mandal, Hyderabad, which included Door No.9-4-86/81/5 and 9-4-86/81/5-A, on which, present construction has been raised by the petitioner under Agreement of Development-cum-General Power of Attorney dated 02.03.2013. Therefore, no relief could have been granted in the complaint. A perusal of record shows that O.A. No.82 of 2022 was filed by Assistant Commissioner, Endowment Department, State of Telangana before Endowment Tribunal, Hyderabad on 23.12.2021. No interim order has been passed in this suit. Admittedly, the petitioner has raised construction under Agreement of Development-cum-General Power of Attorney dated 02.03.2013 as such Fora below have not committed any illegality in enforcing this agreement between the parties.

ORDER

In view of the aforesaid discussion, the revision is dismissed.