Oral Order : ( R. Lakshminarasimha Rao, Member)
1. The opposite parties no.1 and 2 in both the C.Cs are the appellants. Both appeals arise from the same set of facts and similar circumstances and the question of law in the appeals being the same, both appeals are disposed of by common order. F.A.No. 63 of 2012 is taken as lead case.
2. The Appellants No. 1 and 2 are owners and possessors of open plots bearing nos. 92 and 93 admeasuring 974 sq. yards comprised in survey no. 191 and situate at JJ Nagar colony Alwal, Malkajgiri Mandal, Ranga Reddy District. The appellant no. 2 entered into development agreement with the appellants for construction of residential cum commercial complex over the land to be shared at the rate of 44% : 60% of the built up area. The second respondent entered into an agreement of sale with the first respondent to sell Flat No. 104 in the first floor with built up area of 1305 sq. feet for consideration of Rs.13,64,750/-.
3. The first respondent paid a sum of Rs.10,64,750/- to the second respondent towards part of sale consideration. The second respondent had not proceeded with the construction of the building. The respondent no. 1 got issued notice dated 20.09.2007 to the appellants and the respondent no. 2 to perform their part of contract for which the second respondent issued reply on 15.10.2007 requesting the 1st respondent to take back the amount and the appellants issued reply dated 14.10.2007 that there was no privity of contract between the 1st respondent and them.
4. The first respondent filed complaint seeking for direction to the appellants to execute sale deed. The District Forum , Ranga Reddy allowed the complaint directing the second respondent to refund the amount to the first complainant. The District Forum dismissed the complaint against the appellants. The first respondent preferred appeal FA 69/2011 and this Commission allowed the appeal on 19.12.2011 directing the second respondent and the appellants to complete construction of the Flat and execute sale deed in favour of the respondent no.1. The Revision filed by the appellants in RP no. 3903/2011 was dismissed by the National Commission on 15.01.2013 and the Honble Supreme court confirmed the order of the Honble National Commission in SLP (Civil ) No. 17330 of 2013 on 10.05.2013.
5. The complainant has filed appeal EA No. 35/2013 for execution of the order. The second respondent has filed application, IA No.367/2013 seeking direction to the appellants to hand over the vacant possession of the property so that he can complete construction of the building. The appellants resisted the petition by filing counter and contended that they themselves completed the construction of the building and let out the premises to M/s. Narayana Educational Institution. The District Forum allowed the petition on 7.4.2014 directing the appellants to hand over possession of the property to the respondent no.2.
6. The District Forum allowed the petition and directed the appellants to hand over possession of the Flat to the second respondent The District Forum observed that certain developments had taken place to the property during pendency of the proceedings prior to the filing of the P.P. and there were contentions put forth by the appellants that they leased out the property to an educational institute and that the respondent no. 2 is not in possession of the property.
7. Feeling aggrieved by the order of the District Forum, the land owners filed the appeal contending that the order of the District Forum is contrary to law and the District Forum exceeded its jurisdiction in passing the order. The appellants contended that the District Forum being an execution court cannot pass any direction in interlocutory application which amounts to passing of final order in the EP.
8. The appellants further contended that the opposite party no. 1 receded from the contract before filing of the CC No. 53/2008 and the appellants constructed the existing building as per the changed approved plan and as such schedule of property is not in existence. They have contended that the order of the District Forum is in-executable and non implementable as the building was constructed basing on a different plan and it was let out to an educational institution for ten years through registered lease deed dated 22.7.2010.
9. The appellants have contended that the District Forum has not considered their contention that there was collusion between the respondents 1 and 2 and that the petition schedule property is not in existence and there is no contract of sale between the appellants and the complainant as the opposite party no. 1 cancelled the development agreement before filing the complaint and the opposite party no. 1 or the complainant have not paid sale consideration to the appellants to part with their property.
10. The appellants have further contended that the present structure in the premises is commercial building constructed by them after cancellation of development agreement on obtaining permission from the authorities concerned and if the order is implemented, the structure has to; be demolished which may cause lost them than the opposite party no. 1 and that the District Forum has not given opportunity to them to adduce documentary evidence.
11. The learned counsel for the appellants/opposite parties 2 and 3 and the learned counsel for the respondent No. 1/complainant filed written arguments.
12. The point for consideration is, whether the order of the District Forum is vitiated by mis-appreciation of facts or law ?
13. The appellants who are the land owners entered into Development Agreement on 04.03.2004 with the respondent no.2 where-under the respondent no.2 asked to construct commercial cum residential complex over the land admeasuring 974 sq. yards at Alwal, Malkajgiri Mandal, pertaining to the appellants and the respondent no. 2 was to bear the expenses for construction of the building which was to be completed within 18 months from the date of release of building construction permission from Alwal Municipality.
14. The learned counsel for the appellants has contended that the respondent no. 2 could not proceed with the construction of the building due to some civil cases pending before the Court of Senior Civil Judge, Ranga Reddy as a result of which the opposite party no. 1 terminated the contract by getting issued notice dated 09.09.2008 and that the notice was submitted before the Hon ble Supreme Court in SLP No.17591 of 2013 this Commission in FA No. 1340 of 2008.
15. The learned counsel for the appellant has contended that the order of the District Forum cannot be executed as the appellants are not in possession of the property and construction of the building was completed long ago and the building was let out to Narayana Educational Society. He has further submitted that the order of the District Forum passed in proceedings U/s. 27 of C P Act is void. He has relied ;lupon the following decisions:
(1) Morgan Stanely Mutual Fund VS Kartick Das (SC ), 1994 SCC (4)225,
(2) State of Andhra Pradesh Vs. S. Raghurama Reddy, 1993 (1) ALT 387
(3) Khushboo Enterprises Vs. Forest Ranga officer and another 1993 Crl. J1100, Kerala High Court.
(4) Sunder Das Vs. Ram Prakash, AIR 1997 SC 1201.
(5) Urban Development Trust, Jodhpur Vs. Gokul Narain and another, AIR 1996 SC 1819(1)
(6) Jai Narain Ram Lundia Vs. Kedar Nth Khetan and others, AIR 1956 SC 359
(7) V. Kamala and others Vs A. P. State Consumer Disputes Redressal Commission, Hyderabad and others, 2010 (3) ALD 548 ( DB)
(8) Subash Gupta and others Vs. Narasimha Reddy, High Court of A.P. reported in 2010 93) ALD 560.
(9) Mega city Builders, Hyderabad Vs. S. I. Sawhney and another, High Court of A. P. reported in 2013 (5) ALD 84 (DB)
(10) N. Malla Reddy, Prohibition and Excise Superintendent, Medchal, Ranga Reddy, High Court of A.P. 2013(5) ALD 96.
(11) Kiran and another Vs. Shrinivas Agrotech India Limited and another , III 92013)CPJ 54 (NC)
(12) Swapan Kumar Ghosh Vs. Anjali Ghosh and others, reported in III (2013) CPJ 56 (NC).
16. The learned counsel for the Respondent no 1/complainant has supported the order of the District Forum and he has relied upon the following decisions:
(1) Mohad. Akram Ansari Vs. Chief Election Officer and others, (2008) 2 SCC 95
(2) Income Tax officer, Cannanore Vs. M.K. Mohamad Kunhi, AIR 1969 SC 430 (1).
(3) Union of India and another Vs. Paras Laminates (p) Ltd AIR 1991 SC 696.
(4) M/s. J. K. Synthetics ltd Vs. Collector of Central Excise, AIR 1996 SC 3527.
(5) Chairman, Gujarat Maritime Board Vs. Haji Daud Hai Harun Abu and others, 91996) 11 SCC 23.
(6) Sakiri Vasu Vs. Sate of U.P. and others Air 2008 SC 907.
(7) Sunita Devi Vs. State of Bihar and another, AIR 2005 SC 498
(8) Jaimca Gas Company Vs. KU. Pravin Bhagat I (1995) CPJ 58.
(9) Ghaziabad Development authority Vs. Smt. Mohini singh, II (1999) CPJ 332
(10) C.S. Tomar and Kalyani Sharp India Limited and another, II 9199) CPJ 605.
(11) State of Karnataka and Vishwabarathi House Building Society Co-op. Society and others, AIR 2003 SC 1043 (1).
17. The appeal is filed against the order of the District Forum passed in an interlocutory application. The learned counsel for the first respondent has contended that against the order passed in I.A. in execution proceedings, an appeal does not lie and it is only a revision that can be filed challenging such an order. The learned counsel for the appellants has submitted that revision is not the remedy against the order passed in I.A. in execution proceedings. The learned counsel for the respondent no.1 has questioned the validity of the appeal whereas the learned counsel for the appellants has challenged the relief sought for in the application field under Section 27 of the Consumer Protection Act.
18. Sections 25 and 27 of the Consumer Protection Act provide for execution of the order of District Forum. There cannot be any dispute as to both provisions of law are different in nature. However, we do not intend to go into the nature and technicalities of the proceedings in the instant appeal as the Execution Proceedings are still pending before the District Forum and any finding recorded in this regard will have its effect on the Execution Proceedings. As such the decisions relied upon on the aspect by both sides are of no relevance.
19. The scope of the appeal is confined to examine the reasonableness or otherwise, of the order passed in interlocutory proceedings. The District Forum observed that the order of this Commission has three dimensions which are interdependent on each other and as such it is the second respondent who has to complete construction of the Flat whereon the second part of the order has to be complied by the appellants in regard to execution of the sale deed and thereafter the first respondent has to pay balance sale consideration to the appellants.
20. The second respondent has filed petition seeking for direction to the appellants to deliver possession of the property to him on the premise that he is not in possession of the property. The first respondent filed complaint on 11.03.2008 and it was disposed on 15.09.2008 and prior to disposal of the complaint, certain developments had taken place such as the appellants opted for cancellation of Development Agreement, proceeded to construct the building deviating from the original plan and the nature of utility of the building and the plan therefor was changed from residential to commercial etc., The documents filed during pendency of the appeal establish all such facts.
21. This Commission during pendency of the appeal, F.A.No.1340of 2008 has appointed B. Gangadhar on commission to note down the physical features of the building and the commissioner with the help of one Engineer noted down the stage of construction of the building showing its completion. The first respondent in the grounds of the appeal referred to completion of the building as under:
œ The Forum below erroneously concluded without any evidentiary basis that the construction of the building had been suspended by the 1st respondent since the last 2 (two) years, and the Appellant is filing a separate application seeking appointment of an Advocate- Commissioner for proving the apparently false statement made in the impugned Judgment whereas, factually the entire Building is ready for occupation An S.11 respects barring mnor civil works and 90% of the work is completed.
22. The appellants or the respondent no.1 had not brought to the notice of the National Commission about completion of construction of the building. Admittedly, the second respondent left the construction of the building about two years prior to the date of filing of the complaint. The appellants ought to have brought to the notice of the District Forum or the National Commission the construction of the building and change of plan etc.,The respondents had also not brought the matter to the notice of the National Commission. The fact remains that the building was constructed by the date of the order passed by the District Forum.
23. The plan of the building has been changed and its nature as well, it was converted from, residential to commercial. The respondents have not denied the statement of the appellants that an educational institute under the name and style,Narayana ---- has been running in the building which was let out by the appellants to it. Thus, whatever the nature of utility of the building, its construction has been completed long ago. The District Forum has no opportunity to consider these facts as the appellants had not filed the plan, lease deed etc., during pendency of the interlocutory application.
24. It would lead to anomalous circumstances to direct the appellants to deliver building despite the fact that the building had been already constructed in accordance with modified plan. The order directing a party to do an act which is an impossible task would render the order nugatory and invalid. In the backdrop of the situation, we do not see any circumstances showing sustainability of the order of the District Forum. The appeal, as such deserves to be allowed. We make it clear that we have left open to the parties to raise their plea on facts and law in the Proceedings pending before the District Forum.
25. In the result, the appeals in FA No. 63 of 2014 and 64 of 2014 are allowed. The orders or the District Forum are set aside. Consequently, the respective petitions in IA 366/2013 in EA 35/2013 in CC 53/2008 and IA 367 in EA 36/2013 in CC 54/2008 are dismissed. There shall be no separate order as to costs.