GAJANAN PURUSHOTTAM PILPILE vs M/S. R.K. BUILDERS & DEVELOPERS THROUGH SHRI.PURSHOTTAM KRUSHNARRAO GIRHE

The present revision petition has been filed against the judgment dated 22.08.2014 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai, Circuit Bench at Nagpur (''the State Commission) in First Appeal no. 388 of 2008.

The facts of the case as per the petitioner/ complainant are that the complainant Gajanan Purushottam Pilpile and the respondent/ opposite party - M/s R K Builders and Developers, Nagpur executed an agreement of sale on 11.10.1991 in respect of a plot hearing no. 115, situated at Mouza Isasani, Kh no. 108, 109, 114, Tah. Hingana District Nagpur, ad-measuring 2250 sq ft for a total consideration of Rs.14,600/-. The said consideration was to be paid in 30 monthly equal instalments of Rs.250/-. The petitioner regularly paid the instalment and paid the total amount of Rs.10,600/- till 21.12.1994. The respondent issued an affidavit on 01.01.1998 and deposing therein that it had received the full consideration amount towards the said plot and therefore, he was handing over the possession of the said plot to the petitioner on that day. The said affidavit also mentioned that the petitioner was authorized to construct on the said plot. It was further contended by the petitioner that the respondent has failed to execute the sale deed in his favour in-spite of receiving the full consideration hence, he issued a legal notice on 03.01.2008 calling upon the respondent to execute the sale-deed. The respondent failed to comply with the said notice. Therefore, alleging deficiency in service, the petitioner filed a consumer complaint seeking directions for execution of the sale deed and Rs.50,000/- as compensation for mental and physical harassment and cost of proceedings.

The respondent/ opposite party resisted the complaint by filing its written version and denied all the adverse allegations of the petitioner and sought for dismissal of the complaint as time barred, by raising preliminary objection. The respondent though admitted the agreement dated 11.10.1991 entered into between both the parties, specifically submitted that the sale deed could not be executed in respect of the plot purchased by the petitioner as the land of the said plot had been acquired by the Government. Therefore, they had not rendered any deficiency in service and the complaint deserves to be dismissed being devoid of merits.

The District Consumer Disputes Redressal Forum, Nagpur (''the District Forum'') vide its order dated 29.03.2008 while partly allowing the complaint observed as under: "5. After considering the facts of the case, documents submitted by the parties and submission made by the learned counsel for complainant and for opponent following issues are before us for determination. (i) Whether there is a ''deficiency in service'' on the part of the opponent?

(ii) If yes, then what will be order? As per final order.

It is undisputed that the complainant has purchased plot no. 115 in P H no. 46, Kh No. 108, 109 and 114 of Mouza Isasani, Nagpur from opponent. The complainant has filed instant complaint for execution of sale deed in its favour with respect to the said plot. It is also an admitted fact that the possession of the said plot is with the complainant. It is seen from the record that the area comprising the alleged plot has been acquired by the LAO (Land Acquisition Officer) for Pench Project and the LAO had awarded compensation (Doc no. 62) but since the land was in the name of original owner, the complainant had not received any compensation. The matter is under reference of Civil Court. Since, the alleged land comprising the said plot is acquired by the Government, the opponent is no more empowered to execute the sale deed with respect to the said plot. Therefore, we are unable to accept demand of complainant to execute sale deed of the said plot.

In partnership firm partners are jointly and severally liable. We cannot accept the plea of opponent that the complaint be dismissed on the ground of non-joinder of parties. The opponent is M/s R K Builders and Developers and therefore, the receipts of money received by M/s R K Builders only will be taken into consideration. Therefore, the opponent shall refund the amount of Rs.10,000/- by the complainant to the opponent along with interest. Hence, the following order: 1. The complaint is partly allowed. The opponent shall pay Rs.10,600/- to the complainant along with interest @ 10% per annum from the date of 21.12.1995 till its realisation.

The opponent shall pay an amount of Rs.2,000/- to the complainant towards cost of the proceedings. The opponent shall comply this order within 30 days from the date of receipt of this order."

Dis-satisfied by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission vide its order dated 22.08.2014 while dismissing the appeal observed as under:

"9. We perused the copy of the notice dated 11.01.2004 issued by the Land Acquisition Officer to the OP in respect of the award being passed in pursuance of land acquisition and also reference made to the District Judge in respect of disbursement of the award as there are objections filed by the plot owners. The appellant has sought for directions to get the award under the land acquisition proceedings as he is one of the plot owner. However, such directions fall beyond the ambit of the Consumer Protection Act, as the reference pending before the District Judge, Nagpur is totally independent proceeding and the appellant can file his objection before the competent authority/ court to seek redressal.

The appellant got possession of the plot as per undisputed agreement dated 11.10.1991, in which there is a condition that sale deed of that plot would be executed as and when sale-deed is permitted. The said plot has been acquired by the Government before execution of sale deed. There is no fault of respondent in non-execution of sale deed since plot is acquired by the Government after its possession was given to appellant. The appellant can approach to proper authority to seek compensation for acquisition of the said plot.

The Forum, in our opinion, has rightly granted the refund of the amount paid towards consideration of the plot with interest. For the foregoing reasons, we find no glaring irregularity or infirmity in the impugned order and hence, no interference is warranted. The complaint deserves to be dismissed being devoid of merits.

In the result, we proceed to pass the following order:

(i) The appeal is dismissed.

(ii) Parties to bear their own cost".

Hence the present revision petition.

I have heard the learned counsel for the parties. Learned counsel for the petitioner Mrs S K Paunikar has contended that since the said plots have been acquired by the Land Acquisition Officer, Pench Project and the LOA has awarded compensation therefore, the compensation should be given to the petitioner and not to the respondent. She has also stated that the respondent had committed unfair trade practice in not keeping the petitioner aware of the land acquisition proceedings. Hence, the petitioner deserves to be compensated by at least Rs.50,000/-.

Learned counsel for the respondent/ opposite party has stated that they have fulfilled the obligations and on receipt of the full amount, have given the physical possession of the plot to the petitioner on 01.01.1998. They also had every intention to register the sale deed once the Registrar office started executing the sale deeds for their Mouza and the same was informed to the petitioner on their affidavit dated 01.01.1998. This fact was accepted by the petitioner. Accepting this condition, the petitioner had taken the physical possession of the said plot without any protest. He further, informed that the land in fact was belonged to Shri Nilkanth Tukaram Bonde and Shri Gopal Tikaram Bonde. He was only the developes and had GPA to sell the plots. He further stated that the compensation was paid to the owners and not to the developer.

It is an admitted fact that the sale agreement was entered into on 11.10.1991 and the plot in question was also physically handed over by the respondent on 01.01.1998 with the condition that whenever the Registrar started executing the sale deed of said mouza, the vendor would execute the sale deed of the plot but the possession was being delivered on 01.01.1998. Old Khasara no. 95, new Khasra no. 46 of Mouza Isasani thereafter was acquired by the Special land Acquisition Officer, Pench Project Nagpur vide LA case no. 3/2001-02 from the original land owners Shri Nilkanth Tukaram Bonde and Shri Gopal Tikaram Bonde and the dispute with respect to the payment of awarded compensation of entire Survey no. 46, old no. 95 is pending in the civil Court between the Bonde brothers and other purchasers similarly placed to the petitioner. The land acquisition officer has already paid the compensation of Rs.12,76,175/- for acquiring the said four acres of land to the owner. Compensation was not paid to the respondent.

In view of the above, the State Commission has correctly dismissed the complaint and stated that the directions sought by the petitioner to get the award under the land acquisition proceedings as one of the plot owner falls beyond the ambit of the Consumer Protection Act as the reference is already pending before the District Judge, Nagpur is totally independent proceeding and the petitioner can file his objection before the competent authority/ court to seek redressal.

In view of the discussion above, it is clear that the respondent having handed over the possession of the said plot as per the agreement dated 11.10.1991 on 01.01.1998 cannot be said to be guilty of deficiency in service of not executing the sale deed after the land was acquired by the Government before the sale deed could be executed.

In view of the discussion above, I find no jurisdictional error or material irregularity in the impugned order which may call for interference in exercise of powers under section 21 (b) of the Consumer Protection Act, 1986. Revision petition is, therefore, dismissed with no order as to costs.