State Consumer Disputes Redressal Commission
Punjab Urban Development Authority vs Kamlesh Rani on 30 May, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1607 of 2009.
Date of Institution: 11.11.2009.
Date of Decision: 30.05.2013.
Punjab Urban Development Authority (PUDA), PUDA Complex, Opp. Tehsil
Complex, Jalandhar, through its Estate Officer.
.....Appellant.
Versus
Kamlesh Rani wife of Sh. Janak Raj, Resident of Booth No.92-C, Ladowali
Road, Jalandhar.
...Respondent.
First Appeal against the order dated
01.10.2009 of the District Consumer
Disputes Redressal Forum,
Kapurthala, Camp at Jalandhar.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. Balwinder Singh, Advocate, counsel for the appellant.
Sh. Kiran Kumar, Advocate, counsel for the respondent.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Punjab Urban Development Authority (PUDA), appellant/ opposite party (In short "the appellant") has filed this appeal against the order dated 01.10.2009 passed by the learned District Consumer Disputes Redressal Forum, Kapurthala, Camp at Jalandhar (in short "the District Forum").
2. Facts in brief are that Smt. Kamlesh Rani, respondent/ complainant (hereinafter called "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against First Appeal No.1609 of 2009 2 the appellant, asserting she is owner of Booth No.92-C, situated at Ladhowali Road, Jalandhar and the appellant earlier sold the said booth to Smt. Jyoti daughter of Sh. Assa Ram Rawal in open auction for a sum of Rs.61.5 lacs and allotment letter No.3103 dated 27.04.2004, favouring Smt. Jyoti, was issued. Vide letter dated 18.10.2004, the appellant issued 'No Due Certificate' in respect of the said booth in favour of Smt. Jyoti and in the said certificate, it was specifically mentioned that full sale price of the said booth has been received by the appellant. The conveyance deed/sale deed was executed on 30.12.2004 by the appellant in favour of Smt. Jyoti and was duly registered with the Sub-Registrar, Jalandhar on the same day.
3. Smt. Jyoti entered into an agreement to sell with the respondent of the said plot and sought the permission prior to that for transfer of the said booth vide letter dated 07.01.2005 and the appellant allowed Smt. Jyoti to sell the plot to the respondent. Permission to transfer is issued by PUDA only when all the dues regarding the property stand paid by the allottee/owner. The respondent got the sale deed executed from Smt. Jyoti in her favour which was registered on 10.01.2005 and on the basis of that, the appellant issued the re-allotment letter in favour of the respondent vide letter dated 25.11.2005. The respondent applied for sanctioning of map for the construction of the premises in the said booth and deposited the requisite fee on 28.08.2006 and again on the instructions of the appellant, deposited another sum of Rs.1,050/- for the approval of the site plan of the said booth on 07.09.2006. The appellant with malafide intention did not sanction the site plan and the respondent visited the office of the appellant a number of times and also submitted a request letter for sanctioning of the same on 14.09.2006, but no reply was given. Thereafter, reminders on 24.12.2007 and 31.03.2008 were issued, but of no use. The respondent could not start the construction in spite of spending huge amount, on account of the delay on the part of the appellant. This act of the appellant has caused a lot of mental tension, physical harassment and financial loss. First Appeal No.1609 of 2009 3
4. The appellant now vide letter dated 09.04.2008 intimated the respondent that the area of the plot is 46.41 sq.yds. and is increased to the extent of 23.38 sq.yds. and the respondent is liable to pay Rs.6,24,347/- within 15 days along with non-construction charges amounting to Rs.41,696/- upto 2008 and thereafter, the procedure for sanctioning of the site plan will be started. The demand made by the appellant vide letter dated 09.04.2008 is illegal, unjustified and against the principle of natural justice and amounts to unfair trade practice. The respondent submitted the site plan for approval on 28.08.2006 and deposited the requisite fee but now after about two years, the said demand has been raised which is totally illegal.
5. It was prayed that the appellant may be directed to quash the demand of Rs.6,24,374/ and Rs.41,696/- raised by the appellant vide notice dated 22.04.2008 and to pay Rs.2.00 lacs as compensation for harassment and Rs.20,000/- as litigation expenses. The appellant be also directed to sanction the site plan submitted by the respondent.
6. In the written version filed on behalf of the appellant, preliminary objections were taken that the complaint is liable to be dismissed as there is no deficiency in service on its part. The District Forum has no jurisdiction as per clause-8 of the allotment letter. The respondent is estopped by her act and conduct from filing the complaint.
7. On merits, it was admitted that the booth in question was sold earlier to Smt. Jyoti in open auction for a sum of Rs.6.15 lacs and allotment letter dated 27.04.2004 was issued in her favour. It was also admitted that vide letter dated 18.10.2004, the 'No Due Certificate' was issued in respect of the said booth in favour of Smt. Jyoti. It was further submitted that the plot in question being a corner plot, the respondent is liable to pay for the excess area more than 23.03 sq.yds. which was actually allotted to the respondent or her predecessor. The respondent is liable to pay for the excess area. Execution of the sale deed and grant of permission to transfer First Appeal No.1609 of 2009 4 the said booth in favour of the respondent was also admitted. It was also admitted that the respondent got the sale deed executed from Smt. Jyoti in her favour and the same was registered with the office of Sub-Registrar, Jalandhar on 10.01.2005 and on the basis of the above said sale deed, the appellant issued the re-allotment letter in favour of the respondent on 25.11.2005. It was also admitted that the respondent applied for the sanction of the site plan and deposited Rs.3,521/- on 28.08.2006 vide receipt no.49 and further deposited Rs.1,050/- for the approval of the site plan for raising construction over the said booth on 07.09.2006 vide receipt no.21. It was further submitted that at the time of sanctioning of the building plan, the area of the plot, being a corner plot, was measured and it was found that the measurement of the plot was 46.48 sq.yds. which was excess by 23.38 sq.yds. and the respondent is liable to pay for the same, being the corner plot along with non-construction charges for the previous period. It was further submitted that the allotment of booth in question was made on 09.12.2000 and the allotment letter was issued on 27.04.2004 and the respondent was required to raise the construction upto 26.04.2007, but the respondent submitted the building plan after the passage of more than two and a half years. Similar other pleas as taken in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed.
8. Parties led evidence in support of their respective versions by way of affidavits and documents.
9. Learned District Forum, after hearing the counsel for the parties and perusing the record, observed that if the respondent pays Rs.6,24,347/- to the appellant, even then the respondent will not be allowed to raise any construction over this 23.38 sq.yds. of the area. Booth No.92-C is a corner booth and if the land measuring 23.38 sq.yds. is available there, this is the property of the appellant and this area in the corner has not been auctioned to any person, but now the PUDA wants to sell it, but no First Appeal No.1609 of 2009 5 construction can be raised beyond the area of the corner plot. The owner of this area is the appellant and the appellant is at liberty to utilize it in any manner for a common purpose and the respondent cannot be compelled to pay the additional amount of Rs.6,4,347/- as the price of 23.38 sq.yds. However, the appellant is entitled to charge the non-construction charges amounting to Rs.41,696/-. The demand of Rs.6,24,347/- was quashed and the appellant was directed to sanction the site plan after charging the construction charges.
10. Aggrieved by the impugned order dated 01.10.2009, the appellant has come up in appeal.
11. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant as well as have perused the written arguments filed on behalf of the respondent.
12. Learned counsel for the appellant argued that at the time of initial allotment, the area was 23.03 sq.yds. of the booth in question, but when the site plan was to be sanctioned, the area was again measured and being the corner plot, the total area came to 46.48 sq.yds. and the respondent is liable to pay for the excess area measuring 23.38 sq.yds. It was contended that the other booth holders in the corner have also paid the amount. It was further contended that as per the terms and conditions of the allotment, the construction can be raised only over the area initially allotted, but the excess area has to be left as a corridor and no construction can be raised over the said passage which is meant for general public, but the respondent can use it for keeping articles or in other manner. The demand of Rs.6,24,347/- raised by the appellant for this area is genuine and the respondent is liable to pay the same. It was further contended that the allotment was issued in the year 2004, whereas the respondent never applied for sanction of the site plan and there is no delay on the part of the appellant. The open space left was not auctioned as it was left as a corridor, First Appeal No.1609 of 2009 6 to be used by the public, and due to the inadvertent mistake, the entire area was not disclosed at the time of the auction and the order passed by the District Forum is not sustainable. The appeal may be accepted and the impugned order under appeal may be set aside.
13. In the written arguments filed on behalf of the respondent, pleadings were repeated. It was further submitted that the appellant invited bids for a specified area of 23.03 sq.yds. and the original buyer Smt. Jyoti purchased the same and thereafter, the same area was transferred to the respondent by the appellant and 'No Due Certificate' was issued. Thereafter, no demand was raised. The respondent was also allowed to purchase the said booth and on the basis of the sale deed, the transfer was allowed in favour of the respondent. The appellant cannot force the respondent to purchase the additional area of 23.38 sq.yds. over which the respondent cannot raise construction. It does not form part of the original advertisement. No such policy has been brought on record which provides that the respondent has to pay for the additional area. The respondent cannot be made to pay for the area which she cannot use. The act and conduct of the appellant amounts to unfair trade practice. The order passed by the District Forum is well reasoned and there is no ground to interfere with the same and the appeal may be dismissed.
14. We have considered the respective submissions of the parties and have minutely scrutinized the entire record.
15. Admitted facts are that the original allottee was Smt. Jyoti, who purchased the booth in question in open auction and allotment letter Ex.C-1 was issued in her favour. Perusal of Ex.C-1 shows that Smt. Jyoti was allotted Booth No.92-C, measuring 23.03 sq.yds. in Urban Estate, Ladhowali Road, Jalandhar, on free hold basis. The price of the plot was Rs.6.15 lacs. The allotment letter Ex.C-1 is dated 27.04.2004 and as per condition No.5 of this letter, the construction was to be completed within a First Appeal No.1609 of 2009 7 period of three years from the date of issue of allotment letter. Sub clause- xiii of Clause-7 of allotment letter Ex.C-1 reads as under:-
"The covered passage within verandah and on the side of commercial site, wherever provided shall not be encroached upon or use for any other purposes whatsoever and shall be maintained properly".
16. At the time of allotment, no such condition was mentioned that the corner booth will have excess area, for which the allottee has to pay. The allotment of 23.03 sq.yds. has been made to the original allottee in whose steps the respondent has entered. The entire payment of the booth stand paid and 'No Due Certificate' Ex.C-2 was issued in favour of the original allottee Smt. Jyoti. The respondent purchased the said booth from the original allottee and approval to sell the said booth was given to Smt. Jyoti vide Ex.C-4 on the condition that the purchaser shall remain bound by the terms and conditions of the original allotment letter and Punjab Urban Estate (Development and Regulation) Act, 1964 and the rules made thereunder and Punjab Urban Planning and Development Act, 1995. The said booth was transferred by the appellant after the issuance of letter dated 25.11.2005 Ex.C-6. The respondent deposited Rs.3,521/- on 28.08.2006 for approval of the site plan vide receipt Ex.C-7 and Rs.1,050/- on 07.09.2006 vide receipt Ex.C-8. Letters Ex.C-9 to Ex.C11 were written by the respondent for approval of the site plan. The appellant vide letter Ex.C-12 dated 22.04.2008 raised the demand of Rs.6,24,347/- for the excess area measuring 23.38 sq.yds. and Rs.41,696/- for non-construction charges. To rebut the entire evidence including the documents from Ex.C-13 to Ex.C-22, the appellant has filed affidavit of its E.O. Ex.O-1 which is nothing, but the copy of the written statement.
17. The appellant in the allotment letter Ex.C-1 under clause-7, sub clause-xiii clearly mentioned that the covered passage within the First Appeal No.1609 of 2009 8 verandah and on the side of the commercial site shall not be encroached upon or used for any other purposes whatsoever and shall be maintained properly. In this letter, it was nowhere mentioned that for the corridor, the allottee has to pay. Moreover, it is wholly unjustified and illogical demand because the area which an allottee/transferee cannot use or raise construction, for that he/she can not be forced to pay to the appellant. Admittedly, it is a passage for general public and terms and conditions of the allotment letter provide that the same cannot be encroached upon nor any articles belonging to the allottee of the corner plot can be displayed in this area, then how such a demand can be raised and the owner of the corner plot can not be compelled to pay for the area which is not to be utilized for any purpose by the allottee and it is for the general public. If the corridor is for the general public and the general public is to pass through it, then how the appellant is justified in charging the money for the same? The demand raised by the appellant is absolutely illegal and unjustified, illogical and does not stand to the reason in any manner. The order passed by the District Forum is legal and valid and there is no ground to interfere with the same.
18. Sequel to the above discussion, the appeal is dismissed and impugned order under appeal dated 01.10.2009 passed by the District Forum is affirmed and upheld. No order as to costs.
19. The arguments in this appeal were heard on 29.05.2013 and the order was reserved. Now the order be communicated to the parties.
20. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member May 30, 2013.
(Gurmeet S)