NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI Original Petition No. 224 of 1997 Hindustan Fertilizer Corporation Ltd. Madhuban, 55, Nehru Place New Delhi Complainant Versus Ghaziabad Development Authority Vikas Bhawan, Vikas Path, Ghaziabad, Uttar Pradesh-201 001 Opposite Party BEFORE: HONBLE MR. JUSTICE M.B. SHAH, PRESIDENT Mrs. RAJYALAKSHMI RAO, MEMBER For the Complainant : Mr. G. Joshi, Advocate For the Opposite Party : Ms. Reena Singh, Advocate with Ms. Neelam Singh, Advocate. Dated the 16th July, 2007 : O R D E R M.B.Shah , J. President. On the basis of the scheme prepared and published by the Ghaziabad Development Authority (GDA) for Commercial and Group Housing Scheme, 1988, Complainant, Hindustan Fertilizer Corporation Ltd. (A Government of India Undertaking) applied for allotment of the land of 1,000 sq. meters for construction of its office premises. The land was allotted to the Complainant in Kaushambhi area. The Complainant paid a sum of Rs.40 lakhs on 31.3.1989 as well as lease rent equivalent to 10% of the cost of the plot. Possession of the said land was handed over to the Complainant on 18.2.1992. Without executing the lease deed, in an unjustified manner, the Opposite Party demanded non-construction levy and that too, as stated below. Hence, this Complainant is filed praying that : (a). direct the Opposite Party to allow execution and registration of lease deed in respect of office complex of the Complainant at Kaushambhi scheme without any levy charges; also direct the Opposite Party to allow the Complainant 3 years levy free time for completion of construction of office complex from the date of execution and registration of lease deed. (b). alternatively, direct the Opposite Party, GDA, to refund the sum of Rs.40 lakhs along with 10% of the cost of the plot as lease rent amount already deposited by the Complainant with interest at the rate of 24% p.a. from the date of deposit till the date of refund. It is submitted that the Complainant wrote number of letters from 20.3.1992 to 5.7.1994 for supply of necessary information with regard to the execution of Lease Deed. The officer of the Complainant had also met the Joint Secretary of the GDA on 18.3.1994 for this purpose. However, there was no response from GDA. Finally, GDA vide its letter dated 28.7.1994 supplied the required information and also informed that period of construction has expired on 30.3.1992 and, therefore, directed the complainant to deposit Rs.12,56,774.40p. as non-construction levy charges for non-construction for the period from 1.4.1992 to 30.8.1994 prior to the registration of the lease. Thereafter, the GDA vide its letter dated 29.11.1994 intimated the Complainant that the time for construction has already expired on 31.3.1992 and hence, levy charges for non-construction of office complex for the period from 1.4.1992 to 30.12.1994 which comes to Rs.14,96,160/-. Immediately, the complainant wrote a letter dated 25.1.1995 contending that imposition of levy charges was illegal and requested the GDA to make necessary arrangements for execution and registration of the Lease Deed. But, there was no response. Again, between 22.6.1995 and 12.6.1996, reminders were sent by the complainant with regard to unjustified imposition of levy charges. Finally, realizing its mistake, GDA vide its letter dated 23.7.1996 intimated the complainant allowing 3 years time from the date of possession, which, according to them, expired on 13.2.1995, and, therefore directed the complainant to deposit a sum of Rs.7,18,158/- as non-construction levy charges for the period from 14.2.1995 to 13.8.1996. In response to this letter, the Complainant, vide its letter dated 8.8.1996 requested the GDA to give levy free reasonable time for constructing the building, and the period of 3 years may be extended from 23.7.1996 so that the Complainant would take necessary action for construction of building after getting the lease deed executed. Thereafter, the Complainant sent reminders dated 24.9.1996, 26.12.1996 and 4.2.1997. But, there was no response by the GDA. Then, the GDA by its letter dated 5.3.1997 informed the complainant about the imposition of levy charges of Rs.10,37,337/- from 13.2.1995 to 31.3.1997 for getting the Lease Deed executed. Hence, the complainant has filed this complaint on 1.10.1997 with the aforesaid prayers. In this complaint, it has also been contended that even though the possession of the plot was delivered to the complainant in February 1992, without waiting for completion of 3 years, GDA has imposed levy of non-construction charges from 1.
4.1992 to 30.8.1994.
Reply/Contention of the Opposite Party:
Counsel
for the GDA submitted that
the GDA allotted the plot
in question to the complainant on 25.5.1989.
The GDA by its letter dated 22.10.91 (Annexure-A to the written version)
requested the Complainant to get the lease deed executed and registered.
Further it was contended that as per
clause 10.70 of the brochure the complainant/allottee
was required to get the lease deed executed and registered within 6 months from
the date of allotment and that clause 10.50 of the brochure stipulated that the
lessee will have to complete the construction within three years of the
delivery of the possession of the plot and the conditions so specified shall be
the essence of the contract. It was also
contended that the GDA was ready and willing and has duly informed the
complainant to get the lease deed registered.
The
Board of GDA vide its decision dated 3.9.1990 (annexure B) imposed a levy of
12% to 18% p.a. for non construction of the buildings on commercial plots. The Complainant took possession of the
commercial plots in question only on 18.2.1992 and had not got the lease deed
executed nor took steps in regard to construction of building.
The complainants deposited
with the GDA Rs.72 Lacs towards part payment of two
areas i.e. Rs.39, 88,736/- for 1000 sq. meters land in Kaushambhi and
Rs.32,11,264/ for 2000 sq. meters plot at Vaishali. The GDA has contended that full cost of the
plots was not deposited by the complainant.
As the complainant has not started construction on the plot at
Kaushambhi, non-construction levy charges further accrued on it.
It
is also contended that the Complainant has not paid the full price; that the
GDA was ready and willing to hand over the possession from 1989 itself; the
Complainant prior to 5.7.1994 never asked for necessary information in regard
to registration of lease deed, and when they asked for the information, the GDA
duly replied vide its letter dated 28.7.1994; and, that any person can know the
necessary information in regard to registration of lease deed by making an
enquiry in the office of the Sub-Registrar, and, it is impossible even to
assume that the big corporation like the Complainant having expertise
personnel, might not have the idea for registration, requisite amount of stamp
paper, and about the requisite number of passport size photographs.
It is further
contended that the Complainant is intentionally inter-mixing registration of
lease deed and imposition of levy. If the lease deed had been registered within
the stipulated time,
then the Complainant was not required to pay any levy for
non-construction. It is also contended that the GDA has not received letter
dated 12.12.1994, 25.1.1995, 26.5.1995, 20.7.1995, 16.10.1995, and 30.1.1996.
Findings:
From the facts narrated above, it is
clear that possession of the flat was handed over to the Complainant only on
20.3.1992. For the reasons best known to the GDA without waiting for completion
of 3 years from 20.3.1992, it imposed levy of non-construction charges from
1.4.1992 to 30.8.1994. This action of the GDA, on the face of it, is illegal
and erroneous.
Thereafter,
on the representation of the Complainant, levy charges were modified by letter
dated 23.7.1996, that non-construction levy charges would be from 1.4.1992 to
14.2.1995.
It
is to be stated that during this period the Complainant, which is a
Corporation, owned by the Union of India, wrote number of letters to the GDA
requesting for execution of the lease deed. That was not done for months
together. Hence, it was difficult for the Complainant to undertake any
construction over the land. Thirdly, the GDA has not produced any rules and regulations
for imposition of levy for non-construction of the building on commercial
plots, except stating that the Board of GDA vide its decision dated 3.9.1990
has decided to impose non-construction levy between 12% to 18% p.a. in case of
commercial plots. But, it has not been made clear from where the Board has got
the authority and the basis or criteria for fixing the non-construction levy
charges.
It
is to be stated that levy of non-construction charges from 1.4.1992 to 14.4.1995 is without application
of mind because before construction on the plot, the Complainant was required
to have lease deed registered in its favour. For the purpose, the Complainant
has written various letters to the GDA, but there was no reply on behalf of the
GDA. From the following letters, which are produced on record, it appears that
the Complainant (a Government of India Undertaking) has written various letters
requesting the officers of the GDA to supply the necessary information as well
as to execute the lease deed. There was no response. If this is the behaviour of the officers of the GDA with the Government of
India Undertaking, we have to presume what would be the fate of an ordinary
man.
At this stage,
we would refer to the letters written by the Complainant to the GDA requesting
for not to levy non-construction charges as well as for execution of the lease
deed.
Letters written by the Complainant to the GDA from 20.3.1992 to
14.2.1995 requesting for not to levy non-construction charges as well as
execution of the lease deed:
.1. The
Complainant vide letter dated 20.3.1992 requested the Opposite Party to let it
know the procedure in detail as to how to execute the lease deed, payment of
registration fee, stamp duty and time
limit, etc. It reads as under:
.(a). Dear Sir,
Your may kindly be aware that HFCL has
taken over the possession of plot No.1 and 2 at Kaushambi
measuring 997.44 mtrs. Under GDA
for construction of our office building.
Now, we intend to execute lease deed for
the said plots and subsequently, construct office building on the said plots.
To enable us to proceed further in the
matter, we would request you to kindly let us know the detailed procedure of
executing lease deed, registration fee, stamp duty and time limit etc.
An early action in this regard is
solicited.
.(b). Thereafter, vide letter dated 28.5.1992, the Complainant
wrote a letter to the GDA to the same effect, as requested vide its
letter dated 20.3.1992, reproduced above.
.(c). Again, vide letter dated 20.8.1992, requested the GDA to
provide the necessary information on top priority basis for execution of sale
deed, etc.
Subsequently
repeated letters on 26.11.1992; 11.6.1993; 13.7.1993; 27.10.1993; 30.11.1993;
23.12.1993 are written to the same effect.
.(d). Thereafter, letter dated 5.7.1994 was also addressed to
the GDA for the same purpose. In this letter, it is also stated as under:
In this regard
our representative had met your Jt. Secretary, Shri Shambu Nath and discussed the
matter on 18.3.1994 in which he has assured that the imposition of levy
is being considered and necessary information will be given soon. We tried
many times to talk to your Jt. Secretary, Shri Nath over the phone on a number of times in this regard
but he could not be available and we talked to Shri Tyagi
and Shri Suresh in Commercial Department and we were told that the details
regarding Lease Deed will be sent soon. But it is regretted that no
information has been sent to us.
You are hence
requested to arrange to send the aforesaid details so that lease deed could be
executed immediately.
.2. Thereafter,
vide letter dated 28.7.1994, the GDA has informed the Complainant that the
lease deed would be executed if the Complainant deposits a sum of
Rs.12,56,774.40 towards non-construction levy for the period 1.4.1992
to 30.8.1994. In the same letter, it is made clear that further action could be
possible only after depositing the levied amount.
Thereafter, vide letter dated
29.11.1994, the GDA informed the Complainant to the following effect:
With reference to
your letter dated 5.10.994 we have to inform that it is not possible to
consider your request. According to allotment letter the period of construction
of building of the aforesaid plot has expired on 31.3.1992. So, you are
requested to deposit a sum of Rs.14,96,160/- in this
office as levy for the period from 1.4.1992 to 31.12.1994.
In response to the above stated letter
of the GDA, the Complainant, vide its letter dated 25.1.1995, informed the GDA,
inter alia, as under:
. according to para 10.50 of the brochure the period of construction of
building starts from the date of the possession of the plot. Since
we received the possession of the plot on 18.2.1992 only, so the period of the
construction of the building will end on 17.2.1995 only.
In
this regard we will also like to inform that there is no
primary essential facilities available for the construction of building
in the Kaushambhi Commercial Complex. So we could not construct the building
and one or two builders who started the construction have left them unfinished
in the absence of these facilities. So we have to say that we will not be
responsible for the constructions of the building till the period the aforesaid
facilities are not made available.
We
once again, therefore, request you to arrange the execution of lease deed of
the plot at the earliest, so that we may take further necessary action for the
construction of the building.
In the letter dated 12.12.1994, the
Complainant stated as under:
Further to our
letter No. JFC/CO/SECTT/GDA/93/114 dated 5.10.1994
(copy enclosed for ready reference) which is self explanatory, and the
discussions our representative had with you in your office on 5.10.1994,
24.10.1994 and 9.11.1994 this is to mention that we have not received any
intimation from your end.
You are
therefore, requested to kindly make necessary arrangements so that the lease
deed is executed and registration is done in the office of the concerned
Registrar at the earliest.
A
line in confirmation will be appreciated.
Thereafter, the Complainant vide its
communications dated 12.2.1996, 26.4.1996, 12.6.1996, requested the GDA to make
necessary rectification in their decision for imposing levy and a reasonable
levy free period might be informed to them for taking further action for
construction of the building and getting the lease deed executed in respect of
the above plots.
Apparently,
there is merit in the contention of the Complainant that it was not at fault for not getting
the lease deed executed and registered, as fault for the same was on the part
of the GDA, as the GDA had declined for execution and registration of lease
deed unless the demand of the levy raised by it for the period 1.4.1992 to
13.2.1995 is paid. (Ref. Letter dated 28.7.1994).
From
the facts narrated above, it is clear that the Complainant which is a
Government of India Undertaking cannot start construction without having lease
deed registered. All throughout it waited for details for registration of lease
deed, but there was no response by the officers of the GDA. It is difficult to
believe that the GDA had not received the letters quoted above. Hence, the
stand taken by the GDA that it had not received the letters cannot be accepted.
In these set of circumstances, in our view, on the basis of the facts of this
case, this would be a fit case for directing the GDA not to levy
non-construction charges from 1.4.1992 till the date of the execution of the
lease deed and also for the period during which the complaint remained pending
before this Commission.
Further,
it is to be stated that, in the alternative, the Complainant has prayed
that the GDA be directed to refund the amount deposited by it with interest at
the rate of 24% p.a. from the date of its deposit till its return.
Direction(s):
In
the result, for the reasons stated above, it is directed that the GDA shall not
levy non-construction charges from 1.4.1992 till the date of execution of lease
deed and also for the period during which the complaint remained pending before
this Commission, i.e. from 1.10.1997 till the date of the decision.
Further, option
is given to the GDA to take back the possession after refunding the entire
amount deposited by the Complainant with interest at the rate of 12% (the Complainant has claimed interest at the
rate of 24%) from the date of the deposit till the date of payment. This option shall be exercised within four
weeks from the date of the receipt of the order. Otherwise, the option will not remain in
force.
Lastly, it is to
be clarified that if any extra amount is allegedly paid by the GDA on the basis
of the decision given in Original Petition No.170/1994 by this
Commission, then the same shall be
adjusted. However, before adjusting the
amount, a Certificate of the Chartered Accountant to this effect shall be given
by the GDA to the Complainant for its verification.
The complaint is
allowed accordingly. There shall be no order as to costs.
Sd/-
……………………………J
(M.B. SHAH)
PRESIDENT
Sd/-
…………………………..
(RAJYALAKSHMI RAO)
MEMBER