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M/s. Shree Constructions, vs. Shree Residency CHS Ltd. & Ors dated 2013-01-16

 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 REVISION PETITION NO.  4924 OF  2012
 (Against the order dated 10.09.2012 in Revision Petition No. RP/11/40   
of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
M/s. Shree Constructions,
Through its Partner-
Mr. Umesh Raosaheb Pawar Patil
Address at : 102, Ganga Prasad,
Ghantali, Sainath Chowk,
Ram Ganesh Gadkari Road
Naupada, Thane (W)-400 602                                   ... Petitioner
Versus
1. Shree Residency CHS Ltd.
    Near Shankar Temple
    Old Mumbai-Pune Road
    Mumbra-400 612
 
2. Shri Namdev K. Patil,
    An adult, R/at Flat No. A/01,
 
3. Shri Harishchandra K. Patil,
    An adult, R/at Flat No. A/02,
 
4. Shri Narayan K. Patil,
   An adult, R/at Flat No. A/201,
 
5. Shri Dattatray K. Patil
    An adult, R/at Flat No. A/201
 
Nos. 2 to 5 are residents of Shree
Residency CHS Ltd.,
Near Shankar Temple, Mumbra-400 612
Dist. Thane.                                                        ... Respondents
 
BEFORE:
  HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
  HON’BLE MR. VINAY KUMAR, MEMBER
 
       
For the Petitioner :  Mr. Nagaraj Hoskeri, Advocate
 
Pronounced on :  16th January, 2013
 
ORDER
 
JUSTICE J. M. MALIK, PRESIDING MEMBER
1.      The present revision petition has been filed by the builder M/s Shree Constructions-opposite party No. 1.  The facts of its case are these.  The agreement for development of land was executed between the partners, i.e. petitioner-opposite party No. 1- builder and the original land owners, namely, Shri Namdev K. Patil, Shri Harishchandra K. Patil, Shri Narayan K. Patil and Dattatray K. Patil, opposite parties 2 to 5, for land measuring 2098 sq. yds. equivalent to 1754 sq. mts on 18.4.1986.  The conveyance deed was executed between the opposite party No. 1 and opposite parties 2 to 5 in respect of above said land on 13.2.1996.  The opposite party No. 1 started construction activities on the said land and sold the land to the respective purchasers by agreement to sell during 2001-2002.  On 14.2.2006, the society of the flat purchasers was formed and registered by the petitioner in the name of Shree Residency CHS Limited. 
2.      The complainant had filed a complaint before the District Consumer Forum, Thane against the petitioner and land owners for conveyance of the property.  On. 7.3.2009, the District Forum, Thane had passed the order and directed the petitioner-opposite party No. 1 and the original land owners-opposite parties 2 to 5 jointly and severally to execute the conveyance deed in favour of the society and also awarded cost and compensation.  There is no confliction on the point that the said judgment has attained finality.  The above judgment was not challenged by any of the parties.
3.      Thereafter, the complainant filed another application for execution of the above said order.  The petitioner had complied with the monetary part of the order and shown the document to the forum for its having power to convey the land measuring 2098 sq. yards i.e. equivalent to 1754 sq. meters.  The District Forum directed the opposite parties 1 to 5 to convey the land measuring 1754 sq. mts. in favour of the complainant-society.  The State Commission, Mumbai has set aside the order passed by the District Forum dated 24.11.2010.
4.      We have heard learned counsel for the petitioner-opposite party No. 1.  He argued that by virtue of development agreement, the petitioner is empowered to convey the property to the extent of 2098 sq. yd. i.e. 1754. Sq. mts.  The society has no authority or power or right or title and interest to convey the property measuring 2200 sq. yards as alleged by the society.  It is also pointed out that the order passed by the Hon’ble District Forum on 7.3.2009 nowhere mentions regarding the area of the land to be conveyed to the society.  The District Forum vide its order dated 24.11.2010 has clarified the exact area to be conveyed to the society.
5.      This is noteworthy that the opposite party No. 1/petitioner did not appear before the State Commission.  The complainant and respondents No. 2 to 5 were present.  On their joint request, the case was remanded.  The State Commission also observed that Section 25 clause III is not applicable to this case.  He opined that Section 27 of the Consumer Protection Act, 1986 is applicable in this case.  It was ordered that the trial court has not followed the procedure.  The learned State Commission observed:-
“We find that since the forum did not follow the procedure prescribed, the direction given to execute the conveyance is per se illegal and, therefore, in light of the submission made by both the parties, it would be proper and just to set aside the impugned order dated 24.11.2010 and remand back the matter to consider the aspects referred earlier.  Hence, we hold accordingly and pass the following order:-
                                                ORDER
                             Revision petition is allowed.
                             Impugned order dated 24.11.2010 is set aside.
Execution application bearing no. 12/2010 is remitted back to the forum in light of the observation made in the body of the order.
Both the parties shall appear before the forum on 03.10.2012.
                             No order as to costs.”
 
6.      The learned State Commission did not state that the opposite parties were directed to execute the area to the extent of 1735 sq. mts.  or 2200 sq. mts. of land.  This question was not decided by the State Commission.  It appears only apprehension on the part of the petitioner because order dated 24.11.2010 has been set aside.  The apprehension appears to be false.  This question certainly requires evidence and investigation.  The State Commission has not decided this very point.  This question is yet to be decided keeping in view all the facts and circumstances of the case.  If the original order dated 7.3.2009 does not mention the area, it has to be found out from the relevant documents viz. Agreement, area allotted to the flat owners etc.  The learned forum under the circumstances correctly remanded the case before the District Commission.  During the remand proceedings, the District Forum is directed to decide the question raised by the State Commission and the area for which conveyance deed is to be executed.  Both the parties have right to produce their evidence.  The question is kept open and will be decided by the District Forum after hearing both the parties.
          The revision petition has no force and the same is therefore dismissed.
………………Sd/-…..………..
     (J. M. MALIK, J)
   PRESIDING MEMBER
 
……………Sd/-….……………
                                                        (VINAY KUMAR)
                                                                            MEMBER
 
Naresh/reserved        
 
 

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