SHEEL CHAND JAIN Vs. NAGAR NIGAM

JUDGEMENT

(1.) This is a complainant's appeal against the order dated 26.8.1995 passed in Complaint Case No.8 of 1994 by District Consumer Disputes Redressal Forum, Bhopal (for short the 'district Forum' ).

(2.) The complainant since deceased deposited an amount of Rs.36,000/- on 24.1.1989 and Rs.1,07,000/- on 23.2.1989 for allotment of a Plot No.270/a/2 of size 40 x 60 ft. situated at Shakti Nagar, Bhopal of which lease deed was executed by the Municipal Corporation, Bhopal in favour of the complainant on 7.8.1991. The symbolic possession of the plot was also given. The factual possession was not handed over to the complainant as the civil litigation was pending in relation to the land of which the plots were auctioned in the Court of XIIth Civil Judge, Class-II, Bhopal in between H. E. L. Employees Co-operative Housing Society Limited V/s. State of M. P. and Municipal Corporation Bhopal. In the said suit on 28.11.1994 a decree for permanent injunction was passed against the defendants restraining them not to auction and transfer the area of the land situated at Khasra PO 12, P.16 and PO 17 area 68 acres situated at Shakti Nagar, Bhopal. The plot so transferred by the opposite party in favour of the complainant falls within that area. Therefore, the complainant neither could get the possession nor any permission to construct. Failing in his efforts to get possession and permission to construct, he filed a complaint on 8.1.1994 under Sec.12 of the Act.3 The District Forum dismissed the complaint holding that as the litigation is pending between the Municipal Corporation and H. E. L. Employees Co-operative Housing Society Ltd. in the Civil Court and against the said judgment and decree, an appeal was filed in that the complainant may not be a party but no effective order can be passed till the decision of the said lis. In the circumstances, it cannot be said that there was any deficiency in service.4. Mr. B. V. Bhargava, learned Counsel for the appellant submitted that the opposite party knowing fully well that litigation is pending auctioned the plot, received amount, executed the lease deed and handed over possession. The complainant since deceased for settling down at Bhopal sold his properties at Sironj and purchased the plot but he could not get possession as title was in dispute and civil litigation was pending. The complainant died during pendency of appeal. The opposite party be directed to give alternate plot and also the compensation.5. Learned Counsel for respondent supported the order of District Forum.6. In a recent decision in Revision No.34/ 95 decided on 6.1.1999, Dr. Nehru Bhojawani V/s. Municipal Corporation, Bhopal, in similar facts and circumstances in relation to Plot No.270-A/ 2 area 40' x 60' situated at Shakti Nagar, Bhopal has held that the respondent an authority is a State under Article 12 of the Constitution of India, therefore, not to have auctioned the plot which was subject matter of the litigation. Till, opposite party succeeds in the litigation, it cannot be said in the facts and circumstances that the valid title has been transferred. Therefore, act of opposite party of transfer of the plot of a disputed title would amount to unfair trade practice under Sec.2 (1) (r) of the Act and also would be deficiency in service under Sec.2 (1) (g) of the Act and directed refund of the consideration with its interest at the rate of 12% p. a. from the date of its deposit and also ordered for payment of amount of tamp duty and registration charges of lease deed with interest at the rate of 12% p. a.7. In the present case the appellant makes a prayer for allotment of alternative plot of the clear title. Therefore, we direct the respondent to allot the alternative plot of the same area. In case alternative plot is not available respondent shall refund the total amount of Rs.1,43,000/- with interest at the rate of 12% p. a. from the date of respective deposits. The respondent shall also refund the amount of stamp duty and registration charges incurred in execution of lease deed with interest at the rate of 12% p. a. The legal representatives of the deceased of appellant shall surrender the lease rights and its document and shall also furnish an undertaking on receipt of the amount as ordered by us that they shall not make any claim of any sort for taking alternative site nor shall enforce any right flowing from the lease deed which was executed by the opposite party in favour of the complainant since deceased.8. In the result, the order of the District Forum is set aside, the appeal is allowed as indicated hereinabove with costs throughout which are quantified at Rs.2,000/-. The respondent shall comply with the order within two months from the receipt of the copy of this order. A copy of the order be sent to District Forum alongwith record of the case.