Chandigarh

DF-I

CC/660/2019

Jotinder Pal Singh Bindra - Complainant(s)

Versus

M/s Gee City Builders Pvt. Ltd. - Opp.Party(s)

Varun Katyal

02 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/660/2019
Date of Institution	:	02/07/2019
Date of Decision	:	02/01/2023

 

1. Jotiner Pal Singh Bindra son of Sh. Amrik Singh Bindra
2. Amit Kaur wife of Sh. J.P.S. Bindra.

Both residents of House No.3066, Sector 20-D, Chandigarh.

… Complainants

V E R S U S

1. M/s Gee City Builders Pvt. Ltd., #1464, Sector 43-B, Chandigarh through its Managing Director.
2. Tehsildar, Tehsil Office, Baddi (HP)-173205.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Varun Katyal, Counsel for complainants
	:	Sh. Harish Bansal, Counsel for OP-1
	:	OP-2 ex-parte

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Sh.Jotinder Pal Singh Bindra and Smt. Amit Kaur, complainants against the opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that OP-1 company published advertisement in the newspapers for sale of flats in Rishi Apartments, Baddi and after going through the same, complainants approached the office of OP-1 to enquire about the status of the property.  At that time, OP-1 had shown a very rosy picture alluring the complainants to purchase a flat in the said apartment. Believing version of officials of OP-1, complainants agreed to purchase flat No.S3-302, Block S3, Rishi Apartments, Baddi, District Solan, Himachal Pradesh (hereinafter referred to as “subject flat”) for which complainants had paid booking amount of ₹20,000/- to OP-1 vide receipt (Annexure C-1).  At that time, buyer- seller agreement (Annexure C-2) was executed between the parties on 16/17.9.2012 and total sale consideration of subject flat was fixed at ₹13,00,000/-. Vide letter dated 10.10.2012 (Annexure C-3), OP-1 had agreed to execute the conveyance deed within a period of six months from the date of entire payment.  The complainants had made part payment of ₹80,000/- vide receipt dated 13.9.2012 (Annexure C-4) through cheque and also paid further amount of ₹30,000/- vide receipt dated 13.12.2012 (Annexure C-5).  Thereafter, OP-1 was asking complainants to pay balance amount, and they had paid the last installment of ₹11,70,000/- through RTGS vide receipt dated 22.12.2012 (Annexure C-6).  In this manner, full and final payment was made by the complainants to the OPs on 22.12.2012. On 31.12.2012, OP-1 had issued possession letter (Annexure C-7) to the complainants. As per the terms & conditions of the seller buyer agreement, OP-1 was to execute sale deed in favour of the complainants, but, it never came forward to execute the same. Thereafter complainants approached OP-1 to execute the sale deed, but, every time the matter was lingered on by it with the promise that the same will be executed within six months.  As OP-1 failed to perform part of its contract and not coming forward to execute the sale deed, the complainants, being consumers, have every right to get relief by compelling OP-1 to execute the sale deed and pay compensation. OP-1 was requested several times to admit the claim, but, with no result. Hence, the present consumer complaint.
2. OP-1 resisted the consumer complaint and filed its written reply, inter alia, taking preliminary objections of maintainability, limitation and also that there is no deficiency in service on its part.  It is alleged that the consumer complaint of the complainants is barred by limitation as the possession of the flat was taken by the complainants on 31.12.2012 and the present consumer complaint has been filed by them in the year 2019.  It is further alleged that even vide clause 15 of the buyers agreement dated 17.9.2012, it was for the complainants/purchasers to get the sale deed executed in their favour after seeking permission from the State Govt. under Section 118 of the HP Tenancy and Land Reforms Act, 1972 or any other law for the time being in force. The answering OP had facilitated the complainants by giving them requisite forms for obtaining permission from the Himachal Govt. as a goodwill gesture, but, the complainants themselves have not persuaded the matter for getting the permission from the HP Govt. and without permission from HP Govt., no sale deed could have been executed in favour of the complainants.  On merits admitted that the OP had agreed to sell the flat in question to the complainants for total sale consideration of ₹13,00,000/- and the entire payment has already been paid by the complainants by 22.12.2012.  It is, however, alleged that as the complainants have not taken permission from the HP Govt., which was required as per clause 15 of the agreement dated 17.9.2012, no sale deed could have been executed in favour of the complainants.  Even the complainants have not persuaded their case for seeking permission from the HP Govt. for which the requisite forms had already been provided by the OP.  The consumer complaint of the complainants is not maintainable. The cause of action set up by the complainants is denied.  The consumer complaint is sought to be contested.
3. OP-2 was properly served and when OP-2 did not turn up before this Commission, despite proper service, it was proceeded against ex-parte on 20.5.2022.
4. Complainant chose not to file rejoinder to rebut the stand of OP-1.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainants are non-agriculturists of Himachal Pradesh and on 17.8.2012 they had agreed to purchase the subject flat at Baddi (HP) from OP-1/builder for a total sale consideration of ₹13,00,000/- by paying an amount of ₹20,000/- and they had already paid the entire sale consideration to OP-1 by 22.12.2012 and the sale agreement of the subject flat was also executed on 16/17.9.2012 between the parties, as is also evident from Annexure C-2 and the possession of the same has already been delivered to the complainants, but, the sale deed is yet to be executed, the case is reduced to a narrow compass as it is to be determined if the complainants, being consumers, can compel the OPs to execute the sale deed qua the subject flat without seeking permission from the State Govt. of Himachal Pradesh (hereinafter referred to as “State Govt.”) and there is deficiency in service on the part of the OPs and the complainants are entitled for the reliefs prayed for, as is the case of the complainants, or if the sale deed could not be executed in favour of the complainants for want of permission by the State Govt. and there is no deficiency in service on the part of OPs and the consumer complaint of the complainants is liable to be dismissed, as is the defence of the OP. 
   2. The learned counsel for the complainants contended with vehemence that as OP-1 had agreed to execute the sale deed within 30 days from the date of intimation in writing given by the seller/OP-1 to the purchasers/ complainants to get the sale deed registered and as it is further proved on record that the complainants had been approaching OP-1 by making oral as well as written requests, as is also evident from Ex.OP-2, complainants have successfully proved that there is deficiency in service on the part of the OPs and the complainants are entitled for the reliefs as prayed for.
   3. On the other hand, learned counsel for OP-1 contended with vehemence that as it is an admitted case of the parties that the complainants are non agriculturists of Himachal Pradesh and sale agreement (Annexure C-2) vide clause 15 provides that it was for the purchasers/complainants to get permission from the Government for getting the sale deed executed, which the complainants have failed to get till date, the consumer complaint of the complainants, being false and frivolous, be dismissed with costs.
   4. In backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the agreement (Annexure C-2) and Section 118 of The Himachal Pradesh Tenancy and Land Reforms Act, 1972 (hereinafter referred to as “1972 Act”) and the relevant portion of Annexure C-2 and Section 118 of the 1972 Act are required to be considered carefully. 
   5. Clause 15 of the sale agreement (Annexure C-2) specifically provides that if at any stage permission to purchase is required under any Govt. for the execution of the sale deed, it shall be the responsibility of the allottee to get the same and clause 15 is reproduced below for more convenience :-

          “15.   That the Purchaser shall pay, the Stamp Duty, Registration Charges and all other incidental and legal expenses for execution and registration of Sale/Conveyance Deed in favour of the Purchaser, in respect of the said Apartment which shall be executed and got registered after receipt of full price, other dues and the said charge and expenses from the Purchaser. The Sale/Conveyance Deed shall contain terms & conditions contained herein and such additional terms & conditions as are considered by the Seller.  The Purchaser shall not object to any such terms.  The Purchaser undertakes to execute the sale Deed within thirty (30 days) from the date of seller intimating in writing to the purchaser to get the sale deed registered. If at any stage the permission to purchase is required under any govt., Prevailing Laws to execute the Sale Deed/ Conveyance Deed, the company shall not be responsible to get such permission and the same shall be obtained by the allottee.”

 

6. Similarly the relevant portion of Section 118 of the 1972 Act which provides that no land can be transferred by way of sale, gift, will etc. in favour of a person who is not an agriculturist is reproduced as under :-

“[118. Transfer of land to non-agriculturists barred.[(1) Notwithstanding anything to the contrary contained in any law, contract, agreement, custom or usage for the time being in force, but save as otherwise provided in this chapter, no transfer of land(including sales in execution of a decree of a civil court or for recovery of arrears of land revenue) by way of sale, gift, will, exchange, lease, mortgage with possession, creation of a tenancy or in any other manner shall be valid in favour of a person who is not an agriculturist.]

[Explanation. For the purpose of this sub-section, the expression “transfer of land” shall not include-

(i) transfer by way of inheritance ;

(ii) transfer by way of gift made or will executed, in favour of any or all legal heirs of the donor or the testator, as the case may be;

(iii) transfer by way of lease of land or building in a municipal area;

but shall not include-

(a) a benami transaction in which land is transferred to an agriculturist for a consideration paid or provided by a nonagriculturist ; and

(b) an authorisation made by the owner by way of special or general power of attorney or by an agreement with the intention to put a non-agriculturist in possession of the land and allow him to deal with the land in the like manner as if he is a real owner of that land.]

(2) Nothing in sub-section (1) shall be deemed to prohibit the transfer of land by any person in favour of—

xxx                       xxx                       xxx

Provided that such person does not own any vacant land or a dwelling house in a municipal area in the state.]

xxx                       xxx                       xxx

(h) a non-agriculturist with the permission of the State Government for the purposes that may be prescribed:

(3)  No Registrar or the Sub-Registrar appointed under the Indian Registration Act, 1908 shall register any document pertaining to a transfer of land, which is in contravention to sub-section (1):

xxx                       xxx                       xxx

[3A Where—

(a) the Registrar or the Sub-Registrar, appointed under the Indian Registration Act, 1908 (16 of 1908), before whom any document pertaining to transfer of land is presented for registration, comes to know or has reason to believe that the transfer of land is in contravention of sub-section (1);or

(b) a Revenue Officer either on an application made to him or on receipt of any information from any source, comes to know or has reason to believe that any land has been transferred or is being transferred in contravention of the provisions of sub-section (1);

such Sub-Registrar, the Registrar or the Revenue Officer, as the case may be, shall make reference to the Collector of the District, in which land or any part thereof is situate, and the Collector, on receipt of such reference, or where the Revenue Officer happens to be the Collector of the District himself, he either on an application made to him or on receipt of any information from any source, comes to know or has reason to believe that any land has been transferred or is being transferred in contravention of the provisions of subsection (1), shall after affording to the persons who are parties to the transfer, a reasonable opportunity of being heard and holding an enquiry, determine whether the transfer of land is or is not in contravention of sub-section (1) and he shall, within [six months] from the date of receipt of reference made to him or such longer period as the Divisional Commissioner may allow for reasons to be recorded in writing, record his decision thereon and intimate the findings to the Registrar, Sub-Registrar or the Revenue Officer concerned.

xxx                       xxx                       xxx

(3-D) Where the Collector of the District under sub-section (3A), in case an appeal is not made within the prescribed period, or the Divisional Commissioner in appeal under sub-section(3B), or the Financial Commissioner in [revision] under sub-section (3C), decides that the transfer of land is in contravention of the provisions of sub-section (1), such transfer shall be void abinitio and the land involved in such transfer together with structures, buildings or other attachments, if any, shall in the prescribed manner, vest in the State Government free from all encumbrances; and

(4) It shall be lawful for the State Government to make use of the land which is vested or may be vested in it under sub-section (2) or subsection [(3D)] for such purposes as it may deem fit to do so.

[Explanation-I for the purpose of this section, the expression “land” shall include-

(i) land recorded as “Gair-mumkin”, “Gair-mumkin Makan” or any other Gair-mumkin land, by whatever name called in the revenue records; and

(ii) land which is a site of a building in a town or a village and is occupied or let out not for agricultural purposes or purposes subservient to agriculture 5 [but shall not include a built-up area in the municipal area;]

[Explanation-II- For the purpose of this section the expression “municipal area” means the territorial area of a Nagar Panchayat, Cantonment Board, Municipal Council or a Municipal Corporation constituted under any law for the time being in force.]”

7. Thus, one thing is clear from the terms of the sale agreement, more specifically clause 15 of the agreement coupled with Section 118 of the 1972 Act, that the complainants, being non agriculturists of Himachal Pradesh were required to seek permission from the State Govt. for purchase of the subject flat before getting the sale deed executed.  It was also the duty of the complainants to intimate OP-1 after seeking permission from the State Govt. so that the sale deed could have been executed in their favour. Admittedly, the complainants have not sought the said permission from the State Govt. till date. As it is the mandate of Section 118 of the 1972 Act that no land can be transferred by way of sale, gift, will, exchange, lease, mortgage with possession or in execution of a decree of a civil court or for recovery of arrears of land revenue and the expression “land” also includes “Gair-mumkin”, “Gair-mumkin Makan”  or any other “Gair-mumkin land” or site of a building in a town or village and is occupied or let out not for agricultural purposes and further provides that no Registrar or Sub Registrar, appointed under the Indian Registration Act, 1908 shall register any document pertaining to transfer of land which is in contravention to sub section (1) or in case it is found by the Registrar or Sub Registrar at the time of presentation of document for registration that the transfer of land is in contravention of sub section (1), he will report the same to the Collector of the District and in case it is found that any such transfer is made in contravention to sub section (1), the property shall be ordered to be vested with the State Govt., makes it further clear that neither OP-1 nor OP-2 could have executed the sale deed in favour of the complainants as such transfer would be void unless the permission is sought by the complainant from the State Govt. 
8. Moreover, in clarificaiton regarding transfer of land/builtup structures from HIMUDA to non-agriculturist, sought from the State Govt. of Himachal Pradesh, the State Govt. has clarified vide letter issued in the month of January 2015 that in case the plot/flat structure is to be purchased by another non-agriculturist, the provisions of Section 118 will come into force and he will have to seek prior permission of the Govt. under Section 118 of the Act, ibid, because HIMUDA is no more in picture.
9. In view of the foregoing discussion, as the complainants themselves have failed to prove on record that they have sought permission from the State Govt. for transfer of the subject flat in their favour by the OPs, it cannot be held that there is any deficiency in service on the part of OPs and it is unsafe to hold that the complainants are entitled for the reliefs prayed in the consumer complaint.

4. In the light of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
5. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 02/01/2023 hg			[Pawanjit Singh] President
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member