UDAYA SAHKARI GRIH NIRMAN SANSTHA MARYADIT vs ANUSUIYA JOGI

-SINCE both these appeals preferred under Section 15 of the Consumer Protection Act, 1986 are directed against the same order dated 27. 2. 2007 by the District Consumer Disputes Redressal Forum, Raipur (hereinafter called the ''district Forum'' for short) in Complaint No. 42/2006, they are being disposed of by this common order. Appeal No. 161/2007 has been preferred by O. P.- Udaya Grih Nirman Sahkari Samiti Maryadit (hereinafter called the ''society'' for short), while Appeal No. 170/2007 has been preferred by the complainant - Smt. Anusuiya Jogi. Since, the said two appeals are cross-appeals, the parties shall be referred to, in this order, as the O. P. and complainant, for the sake of convenience.

INDISPUTABLY, the O. P.- Society has undertaken development of land and had allotted plots to its members. It is also not in dispute that Plot No. B-19/10, Sector 3 of the said society was initially allotted to its member Rakesh Bais. The complainant-Smt. Anusuiya Jogi with the object to purchase of the said plot from the member of Society Rakesh Bais applied to the O. P.-Society for issuance of No Objection Certificate (''noc'' for short ). NOC dated 1. 2. 2005 was issued by the O. P.-society as prayed by the complainant-Anusuiya Jogi. It is further not in dispute that the said Rakesh Bais executed a Sale Deed dated 2. 2. 2005 in favour of complainant-Anusuiya Jogi, regarding the said plot No. B-19/10, Sector 3 of the O. P. /society. The complainant averred that she had to incur total expenditure of Rs. 2,82,514 in the purchase and execution of some works in the said plot. It was also averred by the complainant that the present market value of the plot is Rs. 6,00,000. The complainant''s grievance was that there was encroachment by some persons, on the said plot. In the above context it was averred that a truck was parked in the said plot, purchased by the complainant. It was further averred that though the complainant requested the O. P.- society for taking action for removing the encroachment as above, but the complainant''s request was not heeded to, by the O. P.-society. It was further averred that a board of some Sandeep Dhariwal was also affixed on the plot, purchased by the complainant. The complainant further averred that she submitted a map for permission for construction on the said plot. However, the map was also not approved by Municipal Corporation and permission was not granted to the complainant.

It was averred that the complainant had purchased the plot after the O. P. /society had issued NOC; hence it was the obligation of the O. P. Society to have removed the encroachment. It hower, failed to do so, as a result of which the complainant is not in a position to proceed with the construction on the said plot. Complaining of inconvenience, loss, mental harassment and torture to her; the complainant prayed in the complaint that the O. P.-society be directed to remove the encroachment on the said plot; and in the alternative, the O. P.- society be directed to allot another similar plot to the complainant and that it should be otherwise directed to pay compensation of Rs. 6,00,000, the present market value of the plot, to the complainant.

THE complaint was resisted by the O. P.-society. It was averred that as the complainant had purchased a plot from society''s member Rakesh Bais; hence the said Rakesh Bais was a necessary party to the complainant. However, he has not been impleaded in the complaint. Hence, the complaint was not competent. It was further averred that NOC was issued by the O. P. Society to the complainant, which signified that the O. P. society had no objection if the complainant purchases the plot. It was averred that it was not obligatory for the O. P.-society to remove any alleged encroachment. It was also averred that the complainant got possession of the plot purchased by her, as would be clear from the recital in the Sale Deed executed by the seller member Rakesh Bais in favour of the complainant-Anusuiya Jogi. It was also averred that the O. P.-society was never made aware and had no knowledge, that the said plot was sold by Rakesh Bais to any other person. It was, therefore, averred that there was no unfair trade practice, nor any deficiency in service, by the O. P.-society. The District Forum in the impugned order held that the O. P.- society has committed unfair trade practice by not demarketing the plot as was prayed by the complainant. It was also observed by the District Forum, that the O. P.- society was guilty of unfair trade practice, inasmuch as, it issued NOC without making any inquiry about the right and title of Rakesh Bais to sell the plot. The District Forum, therefore, directed that the O. P.-society should allot another similar plot to the complainant-Anusuiya Jogi; and in case such a plot is not available, then an amount of Rs. 6,00,000 be paid to the complainant. Compensation of Rs. 10,000 towards mental harassment and financial loss to the complainant was also awarded, besides Rs. 1,000 as cost of the complaint.

LEARNED Counsel for the parties were heard and perused the record. In view of the above controversy the question that arises for consideration is: as to whether the Society committed unfair trade practice or deficiency in service in not discharging its duties or obligation, as alleged by the complainant? The perusal of the complaint would show that as averments of the complainant regarding deficiency in service and unfair trade practice of the O. P.- society mainly were that though the Society issued NOC, yet it did not take action to demarcate and to remove encroachment, as complained to the O. P.- society by the complainant. In the context of encroachment, it was averred in the complaint, that there was a truck parked in the plot purchased by her and that there was a board of one Sandeep Dhariwal, affixed on the plot. It was further averred that on account of sale of plot by Rakesh Bais in favour of some other person, the complainant was unable to get permission from Municipal Corporation for construction on the plot.

AS noticed earlier, indisputably, the complainant purchased plot No. B-19/10, Sector 3 from the original member of the Society Rakesh Bais. Registered Sale Deed dated 2. 2. 2005 executed by Rakesh Bais in favour of the complainant-Anusuiya Jogi filed on the record of the complaint also evidences the above facts. It is also not in dispute that the application of the complainant - Anusuiya Jogi, NOC dated 1. 2. 2005 was issued by the O. P.-society. It was recited in the said NOC that as the member Rakesh Bais wishes to sell the plot to Smt. Anusuiya Jogi and as the said seller (Rakesh Bias) had deposited the Property Tax as well as development charges he is free to sell the plot to the complainant and that the society will have no objection in the transaction of sale, as above.

THEREFORE, from the said NOC, it would appear that the O. P.-society only signified that it had no objection if the said plot is sold by the member Rakesh Bais to complainant - Anusuiya Jogi. It does not appear from the said NOC that the O. P.- society had undertaken to discharge any duty or obligation, by issuing such NOC. It would, therefore, be clear that after the sale-deed executed by Rakesh Bais, in her favour, the complainant stepped into the shoes of seller Rakesh Bais qua O. P.-society. In other words her rights, and the liabilities and duties of the O. P.-society would be the same as were enjoyed by Rakesh Bais and undertaken by the O. P.-society in regard to the member, Rakesh Bais. In the above context, the learned Counsel for the complainant-Anusuiya Jogi referred to Clauses 6 and 12 of the Sale Deed dated 31. 7. 1984 executed by the O. P.- society in favour of the said member Rakesh Bais and submitted that the complainant was entitled to removal of alleged encroachments on her plot, in view of the said clauses in the sale deed.

So far as Clause 6 of the said Sale Deed is concerned, it only stipulates that the member of the society while making construction on the plot allotted to him, will not encroach upon land of another member or any other land; and if it is found that the member has trespassed or encroached upon land, of some other person; the member would be liable to remove the encroachment within 15 days. The above clause clearly goes to show that the society did not undertake any obligation on its part to remove encroachment, but the said clause enjoined the member of the society not to encroach on another member''s land and also to remove encroachment, in case, it is so required by the O. P.-society. Therefore, under the said Clause 6, the complainant- Anusuiya Jogi cannot raise any grievance because it does not vest her with any right, as against the O. P.-society.

LEARNED Counsel for the complainant also referred to Clause 12 of the said Sale Deed dated 31. 7. 1984, by which it was stipulated that in the area developed by the society, entry of heavy vehicle and cattle was prohibited. It was also stipulated therein that the society will be entitled to remove any dairy or garage, in case, it is found that any member has established a dairy or garage, in the Society''s land. Firstly, the said Clause 12 in the Sale Deed also does not confer any right on the complainant. In fact, the said clause envisages a duty to be performed by the member not to bring cattle or to establish a garage or to bring heavy vehicle in the campus of the Society. Secondly, there is no allegation or material by the complainant to show that there was any construction of garage or starting of dairy. In fact, as noticed earlier, the only allegation of the complainant was that a truck was parked in the plot purchased by her from Rakesh Bais and that there was a board of one Sandeep Dhariwal put up on the said plot. Therefore, it is clear that Clause 12 also did not warrant an inference that complainant was entitled to or had any right of removal of the alleged encroachment by the O. P.-society. There is also no material to hold that the O. P.-society was aware of any transaction of sale of plot by Rakesh Bais in favour of some other person. The complainant has failed to place any material, in the above regard.

IT may also be noted in the above context, that as per the sale Deed dated 2. 2. 2005 executed by Rakesh Bais in favour of the complainant-Anusuiya Jogi, the possession of the plot purcahsed by the complainant from Rakesh Bais, was delivered to her. Further the averments in para 4 of the complaint are that the complainant had spent certain amount towards development of the plot purchased by her for the purpose of construction; which also goes to show that she secured possession of the plot purchased from Rakesh Bais. The circumstances, as above indicate that the dispute appears to be between encroacher and the complainant-Anusuiya Jogi. It has not been established that society was in any way involved or responsible for the encroachment or was in manner obliged or required to take steps for removal of any such encroachment by strangers. Therefore, the complainant could not allege exercise of unfair trade practice or deficiency in service by the O. P.-society. It may be noted that description of the alleged encroachment as well as the encroacher has not been mentioned in the complaint. They should also have been impleaded as party in the complaint. Therefore, the finding of the District Forum that the O. P.-society committed deficiency in service or exercised unfair trade practice are certainly erroneous and cannot be upheld. It may further be noticed that so far as the demarcation of the plot is concerned, the description and the boundaries of the said plot have been clearly deciphered in the Sale Deed executed in favour of Rakesh Bais and also in favour of the complainant. In fact, as noticed earlier the complainant herself has alleged that she was undertaken some work in the plot purchased by her in order to make it suitable for construction as would be clear from the averments of para 4 of the complaint. Therefore, it appears that she had obtained possession of the plot purchased by her, and thus there was no need to re-demarcate.

CONSEQUENTLY, the complaint could not succeed. The impugned order cannot be sustained, and is set aside. Accordingly, Appeal No. 161/07 by O. P.-society is allowed. The complaint stands dismissed. Consequently, Appeal No. 170/2007 by the complainant-Anusuiya Jogi also stands dismissed. The complainant, however, shall be free to avail of such other legal remedy, as may be available to her. Ordered accordingly.