Judgment:
S.P. Saberwal, Member:
1 .This appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as âthe Act), is directed against the order dated 24.5.1996 passed by District Forum II (South Forum) in Complaint Case No. 2866/94 titled Group Captain M.M. Saigal v. Director General, Air Force Naval Housing Board, whereby the learned District Forum directed the appellant to call upon the allottee of Flat No. G-159, Sector-25 Commodore V.K. Kapoor (Retd.) to restore the flat to its original position within a specific time and in the event of his failure to take appropriate legal action against him, after cancelling his allotment so as to restore the flat to its original condition. It was further directed that appellant should also pay Rs. 2,500/- to the respondent within 2 months.
2. Aggrieved by the aforesaid order, appellant has preferred the instant appeal.
3. Facts relevant for the purpose of disposal of this appeal in short are that the appellant Air Force Naval Housing Board Society is registered under the Societies Registration Act, 1860. Board is an autonomous body and it does not rely on any grant from the Government. Board has been providing dwelling units to serving/retired Air Force Naval personnel as well as to their widows throughout the country under Self-Financing Housing Scheme on no profit no loss basis. Respondent Group Captain M.M. Saigal, (retired) is a resident/allottee of Flat No. 163, Phase-II, Sector-25, Noida. His flat is located on second floor and the first floor Flat No. G-159 of the same complex is occupied by Commodore V.K. Kapoor, (retired). Respondent filed a complaint before the District Forum averring therein that in the month of August, 1992, Commodore V.K. Kapoor carried out major structural changes in his Flat No G-159, Ground Floor resulting in endangering the safety of his house. Respondent brought the matter to the notice of Jal Vayu Vihar Sehkari. Awas Samiti Ltd. Sector-21, Noida Society, who in turn wrote a letter to Commodore V.K. Kapoor with a copy to appellant. Appellant also wrote a letter to Commodore Kapoor and also sent a legal notice vide letter dated 2.9.1992 stating that Commodore Kapoor in total disregard of the terms and conditions of the agreement signed by him with the appellant Board, had broken the internal wall of his flat to increase the area of rooms and enclosed the open balconies with brick walls. It was also brought to his notice that according to architect, any alteration of walls, roofs, slabs etc. in any floor level of the flat in Noida Phase-II and III was extremely dangerous to the safety and stability of the structure as the construction was not âwall upon wallâ. The design (architectural and structural) was otherwise very varying at different floors and no modifications could be permitted. That act of Commodore Kapoor was not only a violation of rules and regulations but was also in utter disregard to safety of the building, its other inmates. Through legal notice Commodore Kapoor was called upon to voluntarily pull down the unauthorised illegal construction failing which appellant Board would be constrained to take suitable action against him. Board also reserved the right to cancel the allotment of his dwelling unit and to re-enter the same.
The case was taken up with the Noida Administration by the appellant Board. In the joint meeting held in the office of the Chairman on 22.3.1993, the Chairman ruled at para 5 of the minutes that the lease deed with Board had placed the responsibility of ensuring compliance of the terms of lease by the sub-lessee on the lessee. That lessee has been empowered to cancel the allotment of any flat in case of violation of the conditions of lease. It is also stated that representative of the Board stated that Board was ready to invoke this extreme step of cancellation of allotment, if Noida assisted the Board in their action. It is also stated that the Chairman assured that Noida would help the Board in their efforts for removal of unauthorised construction/use etc.
It was alleged by the respondent that despite clear violation of the terms and conditions of the agreement appellant Board had failed to cancel the allotment of Commodore Kapoor. It was prayed before the District Forum that directions be issued directing the appellant Board to restore the Flat No. G-159, Ground Floor occupied by Commodore V.K. Kapoor to its original shape and safety.
4. Appellant in its reply before the District Forum took preliminary objections to the effect that New Okhla Industrial Development Authority was a proper party and as the said party had not been impleaded, the complaint was liable to be dismissed. It was also pleaded that since property was located beyond the territorial jurisdiction of the Forum, the complaint be dismissed. It was also pleaded that complainant had filed a similar complaint before the Director General of Investigation and Registration, MRTP Commission which was registered as C-434/93/DGIR/LS. That appellant had filed a reply to the said complaint before MRTP Commission and was contesting the same. It was, therefore, pleaded that the complaint filed by respondent being subjudice before the MRTP Commission, respondent was prohibited to pursue his complaint in the District Forum. It was also pleaded that complainant was not a âconsumer and that dispute raised in the present case was not a âconsumer dispute. That the said land was leased out to appellant Board by Noida vide lease deed dated 26.9.1987. That 2743 dwelling units and 953 units have since been completed. That appellant Board and all allottees in its schemes are bound to obey and follow terms and conditions of the lease deed as well as the building bye-laws of Noida Administration. That all the completed phases in Sectors 21 and 25 are being maintained and administered by allottees Registered Cooperative Society known as Jal Vayu Vihar Sehkari Awas Samiti Ltd. That information regarding additions/alterations made by Commodore Kapoor was intimated to the appellant by Society vide their letter dated 26.8.1992. On receipt of this information, appellant had issued a legal notice to Commodore Kapoor on 2.9.1992 with a copy to Chairman, Noida and Chairman of the Society. On the same date, a letter had been addressed to Commodore Kapoor advising him to restore the flat to its original shape. Commodore Kapoor did not pay any heed to appellant letter and ignored all letters on the subject addressed to him by the Society. Specifically Board vide its letter dated 3.12.1992 requested Noida Authority for joint inspection of the flat along with Boards consultant architect. However Noida Authority did not respond to appellants request and consequently inspection of the flat had to be carried out by Dy. Director (General) along with consultant architect of the appellant on 1.5.1993. From the inspection, it emerged that the building continued to remain structurally safe. However, the construction/alterations were unauthorised and were in violation of Noida Building Bye laws and also the provisions of the signed agreement between the allottee and the Board in terms of the main lease deed of the land. That this violation on the part of Commodore Kapoor is not an isolated case but there are more than 500 allottees who had indulged in some sort of violation in the form of encroachment. That Board has neither magisterial and police powers nor it has a required infrastructure to deal with the large number of cases of violation and it has to rely totally on the Noida Authority who is the prime lessor and a statutory body. That Director General of the appellant had several meetings with the Chairman, Noida and Noida Authorities had assured that action against such allottees in Sectors 21-25 Noida would be taken. However nothing concrete had been done by the Noida Authority so far. It was pleaded that Board had taken all appropriate steps but Noida Administration had not taken appropriate steps against the allottee as a principal lessor. It was, therefore, prayed that the complaint be dismissed.
5. After hearing the parties, the learned District Forum vide impugned order dated 24.5.1996 directed the appellant to call upon the allottee of Flat No. G-159, Sector-25 (Commodore V.K. Kapoor) to restore the flat to its original position within a specific time and in the event of his failure, to take appropriate action against him by cancelling his allotment so as to restore the flat to its original condition.
6. We have heard arguments advanced by Mr. R.P. Ranjan, learned Counsel for the appellant and respondent Group Captain M.M. Saigal. We have perused material placed on record and have given our careful thought to the matter in controversy.
7. It was pleased before the learned District Forum that as the Board was situated outside the jurisdiction of the District Forum, therefore, the FORA had no territorial jurisdiction to entertain the above complaint. It is not in dispute that office of the appellant was located within the local jurisdiction of District Forum-II (South Forum), at the relevant time. Thus in view of provisions contained in Section 11(C) of the Act District Forum-II had the territorial jurisdiction to entertain the complaint and therefore, this issue was rightly decided in favour of the respondent.
8. Contention of the learned Counsel for the appellant was that complainant had filed a complaint on the same facts before the MRTP Commission which was registered as Case No. 434/93/DGIR/LS wherein appellant had also filed a detailed reply and as such, the present complaint was liable to be dismissed. It is pertinent to point out that Director General had requested New Okhla Development Authority vide letter dated 30.1.1995 to take appropriate action under law against AFNB so that grievances of the complainant could be redressed. Respondent had pointed out during the course of arguments that this was the only letter written by the Director General of Inspection and Registration (MRTP Commission) and thereafter no proceedings were pending before MRTP. Learned Counsel for the appellant could not point out anything to show that proceedings were pending before the MRTP after issue of this letter dated 30.1.1995. In view of above, we are satisfied that no proceedings were pending before the MRTP Commission after issue of their final letter dated 30.1.1995 requesting New Okhla Development Authority to take appropriate action under law against AFNB so that grievance of the complainant could be redressed. In view of the fact that there was no final determination of the issue by MRTP and the matter was closed by just writing a letter dated 30.1.1995, we are of the view that District Forum was fully competent to proceed with the proceedings of the complaint case. Findings of the District Forum on this point are, therefore, upheld.
9. The appellant Board is a society which constructs dwelling units and after construction hand over possession of the same to its allottees. Construction is subject to bye-laws and regulations of Noida. Grievances of the respondent are about contravention of bye-laws/ regulations of Noida. Noida, a principal lessor, is having statutory powers under the law. Appellant Board has no infrastructure like police personnel and administrative power for demolishing the illegal constructions. Case of the respondent before the District Forum was that Commodore V.K. Kapoor had violated the bye-laws by raising unauthorised construction in his Flat No. G-159. In the circumstances of the case, Noida, being the principal lessor, was a proper and necessary party in the case and accordingly we hold that since Noida was not impleaded by respondent as the party in the complaint filed by him before the District Forum, findings of District Forum on this point cannot be upheld. We find and hold that the District Forum committed an error by holding that Noida was not necessary party.
Further respondent did not impleaded Commodore V.K. Kapoor as the party in his complaint filed before the District Forum. The prayer of respondent in his complaint filed before the District Forum was that allotment of said Commodore Kapoor be cancelled for raising unauthorised construction in his Ground Floor Flat No. G-159. Respondents prayer before the District Forum for passing an order of cancellation of lease of Commodore Kapoor directly affected rights of Commodore Kapoor who was not even a party in the proceedings before the District Forum. It is settled principle of law that no one should be condemned unheard. Accordingly, we find that denial of an opportunity to Commodore Kapoor to put forward his case, amounts to clear violation of the principles of natural justice. In view of above, we find no hesitation in holding that Commodore Kapoor was a proper and necessary party in a complaint filed by respondent against the appellant Board before the District Forum and by not adding Commodore Kapoor as a party, complaint filed by him suffered from non-joinder of necessary parties. For this reasons also, the findings of the District Forum on this point are not tenable and are set aside. Consequently, the complaint filed by respondent was liable to be dismissed on this short ground alone.
10. Respondent had invited our attention to order dated 3.10.1997 passed by Honble Delhi High Court in Civil Writ No. 3445/96 titled Commodore V.K. Kapoor v. Consumer Dispute Redressal Forum-II and Ors., and has contended that the Honble High Court had upheld the order of the District Forum.
We have gone through the order of the Honble High Court. On perusal of the same, we find that petitioner Commodore V.K. Kapoor gave a statement before the Honble High Court undertaking to restore the Flat No. G-159, Sector- 25, Noida allotted to him in its original position as it was at the time of its allotment to him by the Air Force Naval Housing Board. On the aforesaid statement of petitioner Commodore V.K. Kapoor, the Honble High Court disposed of the writ petition vide order dated 3.10.1997. It is no doubt true that Commodore Kapoor who was aggrieved by the order of the District Forum went upto the High Court through civil writ but no order on merits was passed by Honble High Court as petitioner Commodore Kapoor gave an undertaking to restore the flat to its original position within a period of two months from the date of order, i.e. 3.10.1997. As the order of the Honble High Court was not on merits but was passed on aforesaid undertaking of Commodore Kapoor, the contention of respondent that the Honble High Court affirmed the order of District Forum, is not acceptable to us in the given facts. District Forum passed an order under Section 14 of the Act which order is appealable under Section 15 of the Act before this Commission.
11. Clause 11 of the lease deed dated 26.9.1987 executed between new Okhla Industrial Development Authority (Noida) reads as under :
âThat the lessee will not make, or permit to make, any alteration in or additions to the said buildings or other erections for the time being on the demised premises erect, or permit to be erected any new building on the demised premises without the previous permission in writing of the lessor and except in accordance with the terms of such permission and the plan, if any, approved by the lessor or any officer authorised by the lessor in that behalf and in case of any deviation from such terms or plan, will immediately upon receipt of notice from the lessor or such officer or Authority requiring him so to do, correct such deviation within the space of one calendar month after the receipt of such deviation to be corrected at the expenses of the lessee which expenses the lessee hereby agrees to reimburse by paying to the lessor such amount as the lessor (whose decision shall be final) shall fix in that behalf.â
Appellant had obtained written undertaking from every resident allottee that rules and regulations of Noida Administration and terms and conditions of lease deed would be complied with by the residents.
Noida sent a Circular dated 22.5.1995 to Secretary, JVSAS, Sector-21, Jal Vayu Vihar, Noida. Clause 5 of the said Circular reads as under :
âThe Chairman expressed the view that the lease deeds with AFNHB and AWHO had placed the responsibility of ensuring compliance of the terms of lease by the sub- lessee, on the lessee. The lessee has been empowered to cancel the allotment of any flat in case of violation of the conditions of lease. Gp. Capt. Bhadra stated that AFNHB was ready to invoke this extreme step of cancellation of allotment if Noida also involves itself in the post-cancellation action. The Chairman assured that Noida will assist the AFNHB, AWHO, JVSAS and AVSAS in their efforts for removal of unauthorised construction/use etc.â
It was argued on behalf of appellant that functions of the appellant was to construct dwelling units and with the construction of flats and delivery of possession to its allottees, their functions had come to an end. It was also pointed that the moment appellant handed over the allotted units to its allottees, day-to-days work and further administration, was to be is looked after by the allottee society and functions of the appellant came to an end.
It is pertinent to point out that raising of unauthorised construction in the flats by Commodore V.K. Kapoor was a subsequent event to delivery of possession by appellant to its allottees including Commodore Kapoor. It is held in case titled Brigadiar K.G. Kathuria v. AWHO, reported as 1986-96 Consumer 2052, that no profit and no loss basis is not the relevant factor for consideration whether the activities of AWHO constitute service within the meaning of Section 2(1)(o) of the Act. It was held that AWHO was engaged in rendering service on consideration and, therefore, complainant was a consumer. In this ruling, reliance was placed by National Commission upon a ruling of the Honble Supreme Court in case titled Lucknow Development Authority v. M.K. Gupta, reported as III (1993) CPJ 7 (SC)=1986-95 Consumer. 278 (NS).
12. In the instant case appellant was amenable to the jurisdiction of FORAS created under the Act only if there were allegations of any act or omission relating to housing activities such as delay in the delivery of possession of the flat allotted to respondent or non-completion of the flat within the stipulated period or defective or faulty construction. Since there are no such allegations in the complaint filed by respondent under Section 12 of the Act before the District Forum, respondent could not be held to be a âconsumer within the meaning of Section 2(1)(d) of the Act.
13. The allegations in the complaint filed by respondent before the District Forum were that Commodore V.K. Kapoor had raised certain additions and alterations in his Ground Floor Flat No. G-159, Sector-25, Noida and his flat being situated on the second floor, the additional structural changes in Flat No. G-159 resulted in endangering safety of his flat. It was, therefore, prayed that Flat No. G-159 be restored to its original position and otherwise the allotment of Flat No. G-159 allotted to Commodore Kapoor be .cancelled.
Clause 11 of the lease deed provides that in case of deviation from such terms or plan, upon receipt of notice from lessor (Noida), lessee (appellant) was to correct such deviation within one month at the expenses of the lessee (appellant) which expenses were to be reimbursed to the lessor (Noida). It would, thus appear that appellant was to correct the deviation and expenses in this regard for removing the unauthorised construction were to be incurred by appellant. On perusal of Clause 11, we find that in case there was a breach of Clause 11 of the lease deed, in that eventuality lessor, i.e. Noida could take action against lessee, i.e. appellant. In our view, breach of this clause did not give any right to respondent to seek relief before the District Forum under the Consumer Protection Act, 1986.
It is pertinent to state that admittedly respondent had not availed of services of appellant on consideration for bringing Flat G-159 allotted to Commodore Kapoor in its original position by demolishing the unauthorised structure and, therefore, respondent could not be held to be a âCONSUMERâ within the meaning of Section 2(1)(d) of the Act.
14. The question requiring consideration, before this Commission, is as to whether in the given facts the present dispute is a âconsumer disputeâ and whether appellant in the given facts, was rendering any âserviceâ within the meaning of Section 2(1)(o) of the Act.
15. In our opinion, in the given facts, neither the appellant was rendering any service within the meaning of Section 2(1)(o) of the Act nor the dispute sought to be raised in the present proceeding is a âconsumer disputeâ within the meaning of the Act and as such, the present complaint filed by respondent before the District Forum was not maintainable under the Consumer Protection Act, 1986.
16. In view of aforesaid discussion, we find no hesitation in holding that learned District Forum erred in holding that respondent was a âconsumer within the meaning of Section 2(1 )(d) of the Act and that the dispute raised by the respondent in the complaint filed by him was a âconsumer dispute. For the aforesaid reasons appeal filed by appellant is accepted and order dated 24.5.1996 passed by District Forum-II (South Forum) in Complaint Case No. 2866/94 titled Group Captain MM. Saigal v. Director General, Air Force Naval Housing Board, is set aside. We may make it specifically clear that acceptance of appeal filed by appellant does not create any bar for the respondent from claiming relief in any other FORA relating to grievances of the respondent made in his complaint before the District Forum, if so advised. In the facts and circumstances of the case, parties are left to bear their own costs.
Appeal allowed.