State Consumer Disputes Redressal Commission
Bathinda Development Authority vs Kuljeet Kaur on 15 November, 2017
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.424 of 2017 Date of Institution: 07.06.2017 Order Reserved on : 14.11.2017 Date of Decision : 15.11.2017 1. Bathinda Development Authority, Bhagu Road, Bathinda through it Estate Officer. 2. Punjab Urban Development Authority, Bathinda through its Chief Administrative Officer. 3. Punjab Urban Development Authority, Ferozepur, through its Estate Officer. Appellants/Opposite parties no.2, 3 and 4 Versus 1. Kuljeet Kaur aged 55 years wife of Shamsher Singh, daughter of Baljinder Singh, resident of VPO Kohar Singh Wala, Tehsil and District Ferozepur, Mobile no. 98889-36531 Respondent no.1/Complainant 2. Local Self Government, State of Punjab, Chandigarh through its Secretary. Respondents no.2/Opposite party no.1 First Appeal against order dated 02.02.2017 passed by the District Consumer Disputes Redressal Forum, Ferozepur Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Smt.Surinder Pal Kaur, Member Present:-
For appellants : Sh.Balwinder Singh, Advocate For respondent no.1 : Sh. Raman Goklaney, Advocate For respondent no.2 : Ex-parte J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by the appellants is to order dated 02.02.2017 of District Consumer Disputes Rederssal Forum Ferozepur, directing the appellants to refund the amount received by them, as price of the plot along with interest @ 12% p.a from the date of deposit till its actual payment to respondent no.1 of this appeal with composite amount of Rs.5000/-as compensation for harassment and litigation expenses. Respondent no.1 of this appeal is complainant in the complaint and respondent no.2 of this appeal is opposite party no.1 in the complaint and the appellants of this appeal are opposite parties no.2 to 4 in the complaint before District Forum and they be referred as such, hereinafter for the sake of convenience.
2. The complainant has filed complaint U/s 12 of Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that opposite party no.2 /Bathinda Development Authority through its Estate Officer invited applications for allotment of residential plots at SDE Residential Colony Mudki Road Faridkot. Baljinder Singh father of the complainant applied for allotment of plot, vide application with 10% of earnest money with OP no.2 and he expired on 26.05.2011. He executed registered WILL dated 01.12.2009 in favour of the complainant qua plot no.7 measuring 200 sq. yard situated at SDE residential colony Mudki Road, Faridkot, which is in dispute in this case. The complainant is, thus, consumer of OPs, being LR of late Baljinder Singh allottee. The complainant applied for transfer of the above said plot in her favour on the basis of above WILL dated 01.12.2009 executed by original allottee Baljinder Singh her father, to OP no.2 , vide application form no. 411 after completing all the formalities. The total sale price of the plot was Rs.8,50,000/ -and father of the complainant deposited Rs.2,12,250/- being 25% of the total amount including earnest money of 10% with OPs. Rest of the amount was to be paid by her father in installments with interest @ 12% per annum to OP no.2. Above father of the complainant, thus, deposited an amount of Rs.10,22,125/- with OP no.4 , vide memo no. 123 dated 22.01.2007 and above payments were made through various cheques. As per allotment letter, it was intimated that plot would be developed and possession would be delivered along with all the facilities in the developed area to the allottee. The complainant visited the spot and found no development work on the plot thereat and no facility was in existence either on the spot. The complainant requested OPs either to refund the deposited amount of Rs.10,22,125/- with agreed rate of interest @ 12% p.a or to deliver the possession of the plot to her, being legal representative of her father Baljinder Singh. OPs neither refunded the deposited amount of Rs.10,22,125/- with agreed rate of interest 12% p.a nor delivered the possession of the allotted plot to her. OPs wrongly and illegally issued letter no. 1826 dated 05.08.2015 to her for depositing further amount of Rs.1,39,612/-, which is totally unwarranted. The complainant has prayed that OPs be directed to refund the amount of Rs.10,22,125/- deposited by complainant's side with interest @ 12% p.a from the date of deposit till its realization or to execute and register the sale deed/transfer deed of plot no. 7 and to treat letter no. 1826 dated 05.08.2015 as null and void. The complainant further prayed for compensation of Rs.2 lac for unfair trade practice and deficiency in service of OPs and for mental harassment and Rs.22,000/-as costs of litigation.
3. OP no.1 was set exparte before District Forum, vide order dated 15.11.2016.
4. Opposite parties no. 2 to 4 appeared and filed written reply raising preliminary objections that there is no cognizable matter for adjudication in this case and complaint is, thus, not maintainable. The Forum at Ferozepur has no territorial jurisdiction to try the complaint, as the cause of action accrued at Village Mudki in District Faridkot. It was denied that complainant is consumer of OPs. The complaint is alleged to be barred by time. It was further contended in preliminary objections that PUDA Ferozepur is not involved in the dispute and has been deliberately impleaded as a party by complainant unnecessarily. On merits, OPs no.2 to 4 pleaded that one Baljinder Singh applied for allotment of plot as alleged. The complainant represented herself being his LR as daughter of above Baljinder Singh and filed copy of registered WILL in her favour. This fact was vehemently denied by OPs no.2 to 4 that there was no development or facility existing on the spot. It was denied that complainant ever requested OPs as pleaded in the complaint. The complainant gave application dated 06.07.2015, in response to which letter no. 1826 dated 05.08.2015 was issued by Estate Officer PUDA Bathinda to complainant intimating that amount of Rs.1,39,612/- was due against the plot no.7 and complainant being legal representative of Baljinder Singh is liable to pay this amount being non-construction charges of this plot for the period 2010 to 2015. The complainant never deposited the non-construction charges even after that period also and calculations thereof is still to be made up to date, when construction is to be raised over the plot in question. Clause 4 of the conditions is clear that possession of the plot shall be handed over to allottee within 90 days of issue of allotment letter provided 25% of the saleable price has been paid, if possession is not taken by the allottee within stipulated period, it shall be deemed to have been handed over on expiry of said period. As per above instructions issued by OPs, possession of the plot is already deemed to be with the complainant's side. The entitlement of the complainant for refund of the amount was contested. It has been further averred that complainant is bound to pay the non-construction fee to OPs. OPs no.2 to 4 prayed for dismissal of the complaint.
5. The complainant tendered in evidence her affidavit Ex.C-15 along with copies of documents Ex.C-1 to Ex.C-14. As against it; OPs No.2 to 4 tendered in evidence affidavit of Gurjant Singh Estate Officer PUDA Bathinda Ex.OP 2to4/1 and closed evidence. On conclusion of evidence and arguments, the District Forum Ferozepur accepted the complaint of the complainant by virtue of order dated 02.02.2017, as referred to above. Dissatisfied with the order of the District Forum Ferozepur, opposite parties no.2 to 4 now appellants, carried this appeal against the same.
6. We have heard learned counsel for the parties at considerable length and have also examined the record of the case. The submission of counsel for the appellants is that District Forum Ferozepur has no territorial jurisdiction to try and decide the complaint and as such it has decided the case without any jurisdiction. The order of the District Forum has been assailed by counsel for the appellants on this score before us. On the other hand, counsel for respondent no.1/complainant argued that since partly payments of some of the installments were made at Ferozepur by complainant's side out of the allotment money and hence cause of action partly accrued at Ferozepur and hence the District Forum Ferozepur has requisite jurisdiction to try the complaint. OPs now appellants raised specific objection that District Forum has no territorial jurisdiction to try the complaint, because subject matter in dispute in this case is situated at village Mudki in District Faridkot only. The OPs now appellants in the written version questioned the territorial jurisdiction of District Forum Ferozepur. Undoubtedly, the plot no. 7 SDE Faridkot is situated at Mudki in District Faridkot. It is located within the territorial jurisdiction of District Forum Faridkot only. The complainant wanted to prove jurisdiction of District Forum Ferozepur on the ground that partly some of the installments were paid at Ferozepur and hence cause of action in part accrued thereat. We have perused the documents on the record. Ex.C-3 is application form regarding transfer of the property on the basis of registered/unregistered WILL. Estate Officer Bathinda wrote letter to complainant, vide Ex.C-4. The complainant Sukhdesh Kaur stated that the office of OP no.4 is situated at Ferozepur and amounts in question were also deposited by her at Ferozepur and hence the District Forum Ferozepur has jurisdiction to try the complaint. Section 11 of the Consumer Protection Act, 1986 , deals with the jurisdiction of District Forums, which is reproduced as under:-
1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed (does not exceed rupees twenty lakhs).
2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction :-
a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or personally works for gain, or
b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or (carry on business or have a branch office) or personally works for gain, provided that in such either the permission of the District Forum is given, or the opposite parties who do not reside, or (carry on business or have a branch office) or personally work for gain, as the case may be , acquiesce in such institution ; or
c) the cause of action , wholly or in part, arises.
It is, thus, evident from perusal of Section 11 of the Consumer Protection Act, 1986 that complaint shall be instituted in the District Forum, where any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or personally works for gain or cause of action wholly or in part, arises. Some of the installments were deposited by father of the complainant at Ferozepur in the office of OP no.4 and they were duly credited in the account of OPs no. 1 and 2 and hence cause of action partly arose at Ferozepur with the payments of some of the installments paid by the complainant's side to OPs. The cause of action, thus, in part arose at Ferozepur, where the installments were received by the office of OPs through OP no.4 and duly credited to OP no.2, as such in view of Section 11 Clause 2 (C) of Consumer Protection Act the District Forum rightly arrived at conclusion holding that District Forum Ferozepur has jurisdiction to try the complaint, as cause of action partly arose within its jurisdiction.
7. Now, we proceed to decide this point, as to whether the complainant is entitled to seek refund of the amount deposited by her father with OPs or in the alternative for a direction to OPs to execute and register sale deed of the plot no. 7 in favour of the complainant by treating letter no.1826 dated 05.08.2015 as null and void. The complainant seeks refund of the deposited amount in this case being legal representative of Baljinder Singh, her father on the basis of the WILL Ex.C-2. We cannot look into the validity of the WILL like a Civil Court and it is prima facie taken to be correct unless it is proved to the contrary before competent forum by any of the affected parties thereby. The complainant is, thus, legal representative of Baljinder Singh and original allottee at the first blush for the purpose of disposal of this appeal. Baljinder SIngh applied for allotment of the plot with OPs no.1 and 2 and he has since expired on 26.05.2011, vide his death certificate Ex.C-1. He moved an application with OP no.2, vide Ex.C-2 on the record. He had been depositing the installments with OPs, vide Ex.C-5 to Ex.C-7 on the record. Plot no. 7 was allotted to him, vide Ex.C-8, which is allotment letter on the record. The submission of counsel for the complainant before us in this appeal is that OPs have not raised any development in the project nor provided any basic amenities and facilities therein and hence complainant is entitled to seek refund of the deposited amount or in the alternative direction to OPs to execute and register the conveyance deed in her favour being LR of original allottee by treating the demand raised by them of Rs.1,39.612/-as non-existent and void being non-construction charges charges by virtue of letter Ex.C-4 dated 05.08.2015. The complainant has stated in her affidavit that OPs have not raised any development nor provided any basic amenities or facilities in the project where the plot in dispute is located. On the other hand, it has been argued by counsel for OPs that development has been carried out and basic amenities have been provided in the area, where plot is located. The initial onus is on the complainant to prove that development has not been provided by OPs on the project in dispute. We find that there is mere affidavit of the complainant on the record to prove this fact, which has been equally rebutted by affidavit of Gurjant Singh Estate Officer Bathinda PUDA, vide Ex.OP2 to 4/1 on the file. Estate Officer categorically denied non-development of the area and non-providing of basic facilities thereat by OPs. The evidence furnished by the complainant on oath in affidavit has been equally rebutted by Estate Officer PUDA on oath. We have to look for some evidence ab extra on the record to give the finding, as to whether the development work has not been done by OPs and basic amenities have not been provided therein. There is no independent evidence on the record other than mere affidavit of complainant, which has been equally rebutted by the affidavit of Estate Officer PUDA. Consequently, we record this finding that complainant failed to prove it on record that OPs have not carried out any development in the area and nor provided any facilities therein, wherein the plot is situated.
8. So for as the validity of letter raising non-construction charges of Rs.1,39,612/- is concerned, we have come to this conclusion that complainant failed to establish it on the record that OPs have not raised development in the project and have not provided basic amenities therein. Consequently, OPs are justified in raising the non-construction charges from the complainant because as per Clause 4 of allotment letter Ex.C-8, possession of the plot shall be handed over to alltotee within 90 days of issue of allotment letter, provided 25% of the salable price has been paid, if possession is not taken by the allottee within stipulated period, it shall be deemed to have been handed over on expiry of said period. The possession is, thus, deemed to have been delivered to complainant as per Clause 4(1) of allotment letter Ex.C-8. The submission of complainant, challenging raising non-construction charges, is without found any merit.
9. Consequently, order of the District Forum for refund of the deposited amount is set aside and appeal is accepted and a direction is issued to OPs now appellants to execute and register the conveyance deed of the plot no.7 in favour of complainant within a period of two months from the date of receipt of certified copy of this order on deposit of amount of Rs.1,39,612/- for non-construction charges by the complainant with OPs. The complainant is bound to pay non-construction charges to OPs and other dues, if any found admissible within one month period from the date of certified copy of this order.
10. The appellants had deposited the amount of Rs.25,000/-with this Commission at the time of filing of the appeal. This amount with interest, which accrued thereon, if any, be remitted by the registry to the appellants by way of a crossed cheque / demand draft after the expiry of 45 days.
11. Arguments in this appeal were heard on 14.11.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER November, 15 2017 (ravi)