State Consumer Disputes Redressal Commission
Puneet Gupta vs Punjab Urban Planning And Development ... on 7 March, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No. 973 of 2005
Date of institution : 27.7.2005
Date of Decision : 7.3.2011
Puneet Gupta son of Sh. Rabinder Parshad Gupta, resident of 305-WE, Alim
Mohalla, Jalandhar City.
....Appellant.
Versus
Punjab Urban Planning and Development Authority through the Estate officer,
Opposite Tehsil Complex, Jalandhar City.
...Respondent.
First Appeal against the order dated 24.5.2005 of
the District Consumer Disputes Redressal Forum,
Jalandhar.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellant : Sh. Puneet Gupta, in person
For the respondent : Sh. Balwinder Singh, Advocate
INDERJIT KAUSHIK, PRESIDING MEMBER:
Appellant/complainant-Puneet Gupta(hereinafter called 'the appellant') has filed this appeal against the impugned order dated 24.5.2005 passed by the District Consumer Disputes Redressal Forum, Jalandhar(hereinafter called, 'the District Forum').
2. Facts in brief are that the appellant filed the complaint under the Consumer Protection Act, 1986(hereinafter called 'the Act') pleading that the respondent invited applications for allotment of residential plots in Urban Estate, Kapurthala. The appellant purchased the brochure on the payment of Rs. 100/- and submitted application dated 11.1.2000 to the respondent on 12.1.2000. The appellant also submitted an affidavit and a cash order worth Rs. 27,750/- to the respondent. The important terms and conditions of the brochure were as under:-
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(a) Page-1 Note (iii) - (last two lines) which read -
"Interest will be chargeable only after plots are made available for possession."
(b) Page 5 - Mode of Payment - Clause 2 which reads -
"Interest will be chargeable only after plots are made available for possession."
(c) Page 5 - Possession which reads -
"Possession of the plots will be delivered by the end of year 2000 when the development works are likely to be completed and no interest on instalments shall be charged till the possession is handed over to the allotteees. In case PUDA fails to deliver the possession of the plots within two years of the date on which 25% of the price is complete, it will liable to pay interest @ 12% per annum on the amount deposited from the day, the two years are completed."
3. The respondent held draw on 14.3.2000 at Jalandhar and a plot measuring 300 Sq. Yds. Was drawn in favour of the appellant and appellant was allotted plot No. 155 measuring 300 Sq. Yds. in Urban Estate, Kapurthala and an allotment letter dated 18.1.2001 containing various terms and conditions contradictory/violative to those contained in brochure, which the appellant pointed out was issued. Appellant remitted a further sum of Rs. 1,11,000/- through banker's cheque and thus, making payment of the 25% price i.e. Rs. 1,38,750/- of the plot in question against proper receipt. The appellant sent reminders but no reply was received nor the physical possession of the plot in question was delivered by the respondent to the appellant.
4. Respondent vide letter dated 23.10.2001 received on 7.11.2001, directed the appellant to meet Sh. Harjit Singh, J.E. at the site on any Wednesday from 10.00 a.m. to 2.00 p.m. to take physical possession of the plot in question but the appellant could not visit the site on 7.11.2001 itself because the letter dated 23.10.2001 was received by First Appeal No. 973 of 2005 3 him late in the evening and no time was left. The appellant immediately informed the respondent about this fact vide his application dated 7.11.2001 and also visited the site on next Wednesdays i.e. 14.11.2001, 21.11.2001 and 28.11.2001 but said Harjit Singh, J.E. was not found available at the site nor physical possession of the plot in question was handed over to the appellant by the respondent. The appellant brought this fact also to the notice of the respondent vide application dated 28.11.2001.
5. The appellant visited the office of respondent thrice thereafter and met the concerned officials but the appellant was told that only symbolic possession of the plot in question was to be given and the physical possession will be delivered after submission of the building plan by the appellant to the respondent for approval. The appellant sent reminders on 26.12.2001, 22.1.2002, 18.2.2002, 9.4.2002 and on 15.4.2002 to the respondent but no reply was received.
6. Respondent vide letter dated 3.4.2002 delivered on 9.4.2002 through post conveyed that certificate of possession has been prepared by the PUDA on 9.1.2002 and directed the appellant to collect the same from the office of the respondent on any working day and the appellant replied the same as the contents of the said letter dated 3.4.2002 were wrong and manipulated. Respondent has made mention of letters dated 24.3.2002, 28.5.2002 and 21.1.2002 whereas these letters were never written by the appellant on those dates. The appellant deputed his father Sh. Rabinder Parshad Gupta to take the possession of the plot in question, who visited the office of the respondent on 9.4.2002 but the respondent failed to deliver the physical possession of the plot in question and handed over only the certificate. A notice was served upon the respondent dated 5.6.2002 and the reply was also received vide which it was conveyed that as per report of the Field Staff the possession of the plot has been delivered to the appellant and physical possession/demarcation plan will only be issued after approval of the building plan.
First Appeal No. 973 of 2005 4
7. The possession / demarcation of the plot in question has not been given to the appellant but he was asked to submit the building plan for approval of the respondent. The appellant received letter dated 25.6.2002 and the suitable reply was given vide application dated 4.7.2002. The respondent has promised to deliver the possession by the end of the year 2000 and on this assurance the appellant applied and accepted the allotment of plot in question. The appellant deposited Rs. 1,38,750/- and incurred heavy expenses for purchasing the brochure and visiting the PUDA office time and again and on correspondence etc..
8. Even the basic facility for development such as electricity, water, sewerage, road, link roads, parkas etc. have not been provided at the site by the respondent as promised and there is deficiency in service on the part of the respondent and the appellant was physically and mentally harassed and prayed that the respondent may be directed to amend/revise the allotment letter dated 18.1.2001 and deliver physical possession with site plan having complete demarcation of the plot in question to the appellant, accept payment of balance price/installments of the plot in question without interest/penal interest etc. and the interest on installments may be charged w.e.f. the date of delivery of physical possession of the plot and to pay/adjust a sum of Rs. 1 lac as damages and interest @ 15% per annum on the amount already deposited till the date of delivery of physical possession.
9. In the reply filed on behalf of the respondent, preliminary objections were taken as that the complaint is not maintainable as there is no deficiency in service and as per the terms and condition No. 26 of the allotment letter, in case of any dispute the matter shall be referred to Chief Administrator, PUDA and his decision will be final but without availing that opportunity the appellant has come to the District Forum. The appellant has not come to the District Forum with clean hands. The terms and conditions of the allotment were accepted by the appellant and the First Appeal No. 973 of 2005 5 respondent is performing its statutory duties and the District Forum has no jurisdiction. The appellant has gone through the terms and conditions of the brochure and he duly signed the same undertaking to abide by the same and there is no jurisdiction. On merits, inviting of applications and submitting of the application alongwith the affidavit and cash order for allotment of the plot was admitted. It was admitted that the appellant was issued an allotment letter dated 18.1.2001, which contained various terms and conditions contradictory/violative of those contained in the brochure. The letter written by the appellant are irrelevant, uncalled for and there was no necessity to reply of the letters. The true facts are that the appellant was delivered the possession on 9.1.2002, which was duly accepted by the appellant. It was also admitted that the appellant was asked to meet the Field Staff vide letter dated 30.10.2001 but the appellant intentionally did not reach the spot to take the physical possession. It was admitted that the actual physical possession / demarcation of the plot can only be given by the respondent to the appellant, after submission of the building plan for approval and the appellant never submitted the building plan till date for approval and the actual demarcation of the plot could not be given to the appellant. The respondent is ready to give the demarcation to the appellant as and when he gets the building plan approved from the respondent. The appellant has himself violated the terms and conditions of the allotment letter. Writing of letters dated 3.4.2002 was admitted. Other allegations were denied and it was prayed that the complaint may be dismissed.
10. Learned District Forum after considering the evidence and material placed on file by the parties and after hearing the learned counsel for the parties, allowed the complaint to the limited extent and directed the appellant to submit the building plan within one month from the receipt of the copy of the order and the respondent was directed to give physical possession and demarcation of the plot within one month from the receipt of such building plan by the appellant. The appellant was also directed to First Appeal No. 973 of 2005 6 make payment of the balance remaining price by due installments. The appellant would be entitled to further damages only from the date of submission of the building plan after that sanction within a period of one month and the appellant would be entitled for Rs. 10,000/- per year only till the actual possession is delivered.
11. Aggrieved by the impugned order dated 24.5.2005, the appellant has filed this appeal.
12. We have heard the appellant, who is present in person and learned counsel for the respondent and have gone through the file and documents placed on record with the assistance of the appellant and learned counsel for the respondent and also gone through the written arguments filed by the learned counsel for the respondent.
13. Admittedly, the appellant applied for a residential plot and Plot No. 155, measuring 300 Sq. Yd. in Urban Estate, Kapurthala was allotted to the appellant vide letter dated 18.1.2011 and as per Condition No. 11 of the allotment letter, the appellant was required to take over the possession of the plot from the respondent within 60 days from the date of issue of the allotment letter but the appellant could not take the possession on the day fixed and approached the respondent lateron a number of times to deliver the possession, which has not been delivered.
14. The very strange argument was advanced by the learned counsel for the respondent pointing out that Condition No. 11 of the letter of allotment says (lays down) that the possession can be delivered only after getting the plan of the proposed building approved from the Estate Officer. It was argued that thousands of the allottees have complied with Conditions No. 11 & 12 of the allotment letter but it is only the appellant, who is not complying with and the symbolic possession was also delivered but the possession of the plot in question can only be delivered after the sanctioning of the proposed site plan. It was contended orally as well as in the written arguments that the District Forum has rightly passed the order First Appeal No. 973 of 2005 7 and there is no illegality and infirmity in the same and the appeal may be dismissed.
15. Pleas of the respondent are unique and we are constrained to observe as to how the officials of the respondent harass not only the thousands of allottees but their may be lakhs of them. The officials of the respondent, who manage the vast Estate of PUDA and are earning profits, do not understand the meaning of the terms and conditions of their own allotment letters. It looks absurd that before taking the actual possession an allottee has to get the site plan sanctioned from the respondent or else, he cannot be delivered the possession. It was stated by the counsel for the respondent that till today this practice is being followed and the same is in accordance with the terms No. 11 & 12 of the allotment letter.
16. To understand and interpret the said terms and conditions, the same are reproduced as under:-
"Term No. 11
You shall be required to take possession of the plot from Estate Officer, PUDA, Jalandhar within 60 days of the date of issue of allotment letter. The site shall be offered on "as is where is" basis and the allottee shall not be entitled to claim any rebate or refund on any ground whatsoever. The authority will not be responsible for leveling the uneven site."
17. As per the above condition, the allottee has to take possession within 60 days from the date of issue of allotment letter. Further it provides that the site shall be offered on as is where is basis and no rebate shall be claimed and the respondent is not responsible for leveling the uneven site.
18. Thus, it is not understandable as to from where the officials of the respondent have brought in, the condition of the sanction of the site plan before delivering of the possession. It seems to be only the imagination of their thoughts and to harass an allottee and to make him run here and there despite making huge payments.
First Appeal No. 973 of 2005 8
19. Term and Condition No. 12 reads as follows:-
"Term No. 12
You shall have to complete the building within 3 years from the date of issue of this letter, after getting the plans of the proposed building, approved from the Estate Officer. In case of non-construction of the plot, on your own request, you may be allowed extension in time for construction of the building on the payment of extension fees as determined by PUDA from time to time. In case, no request is received within 30 days on the expiry of prescribed period, the Estate Officer shall initiate proceedings for resumption of plot as per the provisions of Punjab Urban Planning and Development Authority Act, 1995 & rules framed there under."
20. A bare reading of this Condition shows that an allottee has to complete the building within three years from the date of issue of the allotment letter and the building has to be constructed after getting the plan of the proposed building approved from the Estate Officer. In case of non- construction the respondent may allow extension of time for construction of the building as determined by the respondent. In case no request received within 30 days on the expiry of the prescribed period, the Estate Officer shall initiate proceedings for resumption of plot as per rule.
21. The District Forum has not correctly interpreted the Terms and Conditions No. 11 & 12 above and there is no provision to get the building plans sanctioned of the proposed building before the delivery of the possession, therefore, the order of the District Forum is not sustainable in the eyes of law and is based on wrong interpretation of the provisions of Terms No. 11 & 12 of the allotment letter above and is, therefore, set- aside. Accordingly, the appeal is accepted and the impugned order under appeal dated 24.5.2055 is set-aside.
22. The respondent is directed to deliver the possession of the plot in question to the appellant within one month from the receipt of this First Appeal No. 973 of 2005 9 order on payment of the balance price of the plot in question, if any, without adding any interest or penalty. The respondent is also burdened with Rs. 10,000/- as special costs and Rs. 20,000/- as compensation for un-necessary harassing the appellant and Rs. 5,000/- as litigation expenses. Copy of the order be sent to Administrator, PUDA, Kapurthala for initiating action against the employees, who demanded building plan for approval before delivering possession.
23. The arguments in this appeal were heard on 24.2.2011 and the orders were reserved. Now the order be communicated to the parties.
24. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Inderjit Kaushik)
Presiding Member
March 7, 2011. (Piare Lal Garg)
as Member