GULMARG WELFARE SOCIETY Vs. SUDESH DHAIYAOPP

JUDGEMENT

(1.) In this Original Petition M/s. Gulmarg Welfare Society, a registered body of the plot buyers, is the petitioner and Mrs. Sudesh Dhaiya, Proprietor of M/s. Capital Builders (Regd.), is the respondent. The petitioner Society has a strength of 144 members and was formed for providing residential and other connected facilities to their members mostly belonging to the Kashmiri Pandit Community who had migrated to Delhi and other parts of the country due to the recent turmoil in the valley of Kashmir. Their main complaint is that they were persuaded and induced by the respondent to enter into agreements for purchase of land in a colony called 'Amit Enclave' located on the proposed Delhi-Bagpat highway. For this purpose, the respondent had assured them that she had acquired this land through sale deeds and that the said land will be available for residential purposes for which sanctions would be obtained from the authorities concerned in Uttar Pradesh. The petitioner agreed to purchase 23,450 sq. yards of land at the rate of Rs. 195/- per sq. yard and paid Rs. 11,43,188/- as advance at the time of execution of agreements. The land was to be parcelled into various sizes of plots numbering 144 ranging from 100 sq. yards to 250 sq. yards. Later, another sum of Rs. 10,27,715/- was paid by the petitioner Society to the respondent, by way of monthly instalments, in terms of the agreements executed between them. Thus, a total sum of Rs. 21,70,903/- has been paid so far to the respondent through cheques and drafts from 15.9.88 onwards. The agreement for sale of land was made on the 20th June, 1988. This agreement also stipulated that the vendor, viz., the respondent, shall develop this land by providing roads, etc., and making provision for electricity and storm water drains, for which the petitioner Society shall pay the development charges at the rate of Rs. 40/- per sq. yard, in addition to the price of the land. The vendor was also required to give a good marketable title to the said property to the reasonable satisfaction of the vendee or his solicitor as an absolute estate free from encumbrance, charges, attachments, and other claims and demands, whatever, after the payment of the application money and before the commencement of instalments. Clause 10 of the agreement required the vendor to procure the necessary certificates and permission for transfer of the said land in favour of the vendee or his nominee from Ghaziabad Development Authority or any other concerned authority. The names of the members of the petitioner Society are indicated in an annexure to the agreement, which had been executed by Shri P.L. Kaul, Secretary, M/s. Gulmarg Welfare Society, the petitioner, and Smt. Sudesh Dhaiya on behalf of the Capital Builders, Delhi, the respondent. A few agreements have been executed by Shri B.K. Dahr, Vice-President of the Society, and Smt. Sudesh Dhaiya. The allegation of the petitioner Society is that till the date of filing the complaint the respondent has not delivered the possession of the land and executed the sale deeds in their favour, nor any progress had been made in respect of any item of the development work. Further, there is no indication of any likelihood of the land use being changed from agriculture to residential in respect of this land. The agreements were first executed in the year 1988 and even after six years, seeing no progress as regards land use change and development works, for residential purpose, the petitioner Society on 12.1.94 filed this petition seeking the following reliefs :

(2.) The respondent has contested the allegations of the petitioner saying that she has shown to the petitioner various sale deeds executed in her favour by the owners of the land, though the Khasra numbers in respect of which the agreements had been initially executed may vary. She also stated that a considerable amount has already been spent by her on the development of this land and a water tank has been constructed thereon. The development work could not be continued by her because the petitioner Society did not pay the balance amount of instalments in time. She had repeatedly stated in her statement that she was still willing to handover these plots to the petitioner Society provided they make the full payment of the agreed amount and also increase in the cost, alongwith the development charges at the rate of Rs. 40/- per sq. yard. She has denied that she ever assured or agreed to or represented to the Society that she would get the land use changed to 'residential' from the concerned authorities, although she has been making efforts in this direction.

(3.) We have heard the learned Counsel for the petitioner Society as well as the respondent. It is admitted that a payment of Rs. 21,70,903/- has been made by the petitioner Society to the respondent for the land agreed to be sold by the latter. However, the plots have not yet been demarcated nor developed to the extent that a residential colony could come up thereon, though a period of more than 8 years has elapsed since the first agreement was made. The contention of the respondent that she never agreed to get the necessary permission for the change in the land use from agriculture to residential, is to be examined carefully by taking into account the attending circumstances of this case. Firstly, it is inconceivable that the members of the petitioner Society would enter into an agreement for buying the land which they cannot use for making their houses as most of them are migratees from Jammu & Kashmir and are in need of houses. Moreover, the advertisement issued by the respondent 'Capital Builders' annexed as Annexure-2 with the complaint, clearly mentions as 'Amit Enclave Colony, where the plots are situated in a township under National Capital Region on Delhi border 150 ft. wide road from Delhi to Bagpat'. Moreover, this advertisement mentions only two types of plots, namely, residential plots and commercial plots. It is, therefore, apparent, that even though no specific clause was included in the agreement executed between the petitioner and the respondent, it was understood that these plots are being purchased for residential purpose and not for agricultural purpose. Having admitted in paragraph 14 of their written statement that they have received an amount of Rs. 21,70,903/- as earnest money/part-payment, towards the plots, it is not fair on the part of the respondent to say now that the development work could not proceed and the plots could not be handed over in time, because of want of funds. The petitioner Society became suspicious of the bonafides of the respondent, after 1990, because it had come to their notice that the respondent was involved in similar deals, which have been subject to controversy in the Press, and had even been subject to disputes before the Monopolies and Restrictive Trade Practices Commission. In fact, in an order dated 22nd February, 1994, the M.R.T.P. Commission, observed that the Capital Promoters, which is the respondent before us, was not in a position to render service as promised by it in the impugned advertisement and, therefore, is guilty of unfair trade practice, prejudicial to the public interest and the interests of the consumers in general. We are, however, not concerned with that case. In the present case we find that the respondent has failed in rendering the service to the petitioners even after receiving 50% payment for the price of plots and after a period of 8 years. We are, therefore, of the view that the case of the petitioners is covered by the provisions of the Consumer Protection Act, 1986 as regards deficiency in service by the respondent.