State Consumer Disputes Redressal Commission
P.S. Sawhney vs Chief Executive ... on 14 June, 2013
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. Revision Petition No.72/2012 Date of Decision: 14.06.2013 P.S. Sawhney, 130, Sector 45-A, Chandigarh-160 047. .......... Petitioner Versus Chief Executive Officer-cum-Secretary, Himachal Pradesh Urban Development Authority, Nigam Vihar, Shimla-171 002. .......... Respondent Coram Honble Mr. Justice (Retd.) Surjit Singh, President Honble Mr. Chander Shekhar Sharma, Member Honble Mrs. Prem Chauhan, Member Whether approved for reporting?[1] For the Petitioner: In person For the Respondent: Mr. Subhash Verma, Advocate vice Mr. Manish Sirkek, Advocate O R D E R:
Justice (Retd.) Surjit Singh, President (Oral) Present revision petition is directed against the order dated 24.09.2012, of learned District Consumer Disputes Redressal Forum, Shimla, whereby revision petitioners execution petition for enforcement of order dated 30th May, 2003 passed in his complaint, under Section 12 of the Consumer Protection Act, 1986, against the respondent, has been dismissed. Following prayer was made in the execution petition:-
(i) Direct the Judgment Debtor to allot plot No.16 in the Solan Phase I at the market price of `300/- per m2;
(ii) To grant exemplary damages for deliberately misleading the Fora, i.e. Honble District Forum & State Commission with ulterior motive, stating that no plot was available;
(iii) Grant the cost of this forced litigation, duly quantified, as every hearing before this Honble State Commission, did cost this complainant about Rs. One Thousand; and
(iv) Grant any other relief to which this complainant may be found entitled to in law.
2. Factual matrix of the matter, relevant for disposal of the revision petition, may be noticed. Three plots in Solan Housing Board Colony, Phase-II, were sought to be allotted by the respondent, for which an advertisement appeared in newspapers.
Revision petitioner in response to the said advertisement, applied for one of the plots. The plot which the revision petitioner sought to purchase was of 210 square metres area and its price was `1,70,000/-.
Both the area and cost of plot were tentative. Three other persons also applied, pursuant to the aforesaid advertisement. Plots were sought to be allotted to the applicants by draw of lots, to which the revision petitioner objected, on the ground that as per Rules of respondent, allotment was required to be made on first come first serve basis and he having applied ahead of other three applicants, was entitled to be allotted one of the three plots, without his participating in the proposed process of draw of lots.
It appears that the revision petitioners plea was declined and plots were allotted by draw of lots. Revision petitioner was not allotted any plot, nor was his name considered in the process of draw of lots.
3. Revision petitioner felt aggrieved by the action of respondent and filed a complaint, under Section 12 of the Consumer Protection Act, 1986. That complaint was allowed by the learned District Forum, vide order dated 30.05.2003.
Learned District Forum observed that even if the respondents were not inclined to accept the revision petitioners contention that he was entitled to be allotted one plot, on the basis of first come first serve, his name ought to have been considered alongwith the names of other three applicants, when making allotments by draw of lots and by not including his name in the draw of lots process, respondent had committed an act of deficiency in service. A direction was issued to the respondent to offer first available plot to the revision petitioner at the market value. This order was unsuccessfully challenged by the respondent before this Commission by filing an appeal, as also before the Honble National Consumer Disputes Redressal Commission by filing a revision petition. Revision petition was dismissed, at the stage of admission, on 23.03.2006.
4. After dismissal of appeal by this Commission, revision petitioner through letter dated 15.05.2004 was offered two plots, bearing Nos.16-B and 16-C, whose area was measuring 174.71 square metres and 116.30 square metres, respectively, and the price quoted was `3,63,000/- for 16-B number plot and `2,42,000/- for 16-C number plot. The letter stated that in case the revision petitioner opted for one of the aforesaid two plots, he shall have to pay money equivalent to 2% of the quoted price by way of choice money. He was apprised that reply will be awaited for 15 days and in case there was no response, offer shall stand withdrawn.
5. It may be noticed that the aforesaid letter dated 15.05.2004 was sent to the revision petitioner, after this Commission dismissed the respondents appeal, vide its order dated 18.12.2003. Revision petitioner did not respond to the aforesaid letter of offer, within 15 days time, as stipulated in the letter. He, however, addressed one letter dated 11th September, 2004 and submitted a draft of `1,65,000/- alongwith that letter, pointing out that money demanded was much higher than the quoted price. That draft was returned by the respondent.
6. No correspondence was exchanged between the parties, thereafter. Revision petition filed before the Honble National Consumer Disputes Redressal Commission, by the respondent-Board, was finally disposed of, vide order dated 23rd March, 2006 and thereafter the revision petitioner filed execution petition before the learned District Forum, seeking enforcement of execution of order dated 30.05.2003, making the aforesaid prayers therein.
7. Respondent on being served with the notice put in appearance before the learned District Forum and filed objection petition, in which it was stated that the plot having already been offered to the revision petitioner and he having failed to respond to the offer within stipulated period, the order passed by the learned District Forum had become unexecutable. It was also stated that the plot, which was offered to the revision petitioner through letter dated 15.05.2004 had been allotted to Residents Welfare Association, when he did not respond to the offer within stipulated time.
8. It appears from a reading of the impugned order that the revision petitioner insisted that he was entitled to allotment of a plot at the market value to be assessed, in accordance with the principles enunciated by the Honble Supreme Court in various judgments in the context of land references under Land Acquisition Act. Learned District Forum did not accept the contention and held that the term market value used in the order dated 30.05.2003 meant the prevailing market price. Learned District Forum though, vide operative part of the impugned order dismissed the execution petition, yet it observed in para-7 of the order that in case plot No.16 (A, B & C) was still lying vacant, the same shall be offered to the applicant at the prevailing market value and in case no plot was vacant, then a plot at Basal or Kandaghat, may be allotted to him within 3 months, by observing necessary codal formalities.
9. Revision petitioner feels aggrieved by the aforesaid order, passed by the learned District Forum and has, therefore, filed the present revision petition.
10. We have gone through the record, written submissions made by the parties and have also heard them.
11. Revision petitioner, who is present in person and happens to be a practising Advocate has himself filed written submissions and argued his case. He says that as per information obtained by him under the Right to Information Act, vide letter dated 14.01.2013, Annexure P-1, decision has been taken by the respondent-Board to allot to him plot No.16-B in the Colony, in question, and this decision stands conveyed by the respondent-Board to the Executive Engineer concerned, vide letter dated 07.10.2008, a copy of which has been supplied to him alongwith the aforesaid letter dated 14.01.2013. He submits that this plot should be allotted to him at the market value and the market value be worked out, in accordance with the principles laid down by the Honble Supreme Court in various judgments, while interpreting the term in the context of Land Acquisition Act.
12. We are unable to accept this submission for various reasons, some of them are as simple as two and two make four.
13. Admittedly, the respondent in the year, 1994, advertised to allot a plot of 210 square metres for `1,70,000/- and the revision petitioner, in response to the aforesaid advertisement, was ready and willing to buy the plot at the advertised price, which was tentative, meaning thereby that it could have been even higher. That means the market value of the plot, measuring 210 square metres `1,70,000/- (tentative) in the year, 1994. Complaint of the revision petitioner was decided in the year, 2003 and in compliance with the order of the learned District Forum, two plots were offered to him on 15.05.2004, for a sum of `6,05,000/-.
The total area of the plots was 291.01 square metres. Within this period of 10 years (from the date when the revision petitioner applied for allotment of plot to the date he was offered the plots, pursuant to the order of learned District Forum) prices of landed property sky rocketed. This is a fact, which can be taken judicial notice of.
It is only during the last 2-3 years that there is recession in real estate.
14. The learned District Forum ordered that first available plot be offered to the revision petitioner at the market value, which implies the prevailing market value. Had it been the intention of the learned District Forum, while passing the order sought to be executed that the plot was to be allotted at the price at which it was initially advertised to be allotted, it would have stated so in the impugned order. Also, there seems to be a reason for the learned District Forum, ordering the offer of first available plot at the market value (implying prevailing market price at the time of offer). Reason is that the revision petitioner himself refused to participate in the draw of lots, which fact was noticed by the learned District Forum in para-5 of its order.
15. There is no material on record, showing that the price, at which the combined area of plots No.16-B and 16-C was offered to the revision petitioner was higher than the prevailing market value (prices). It is submitted by the revision petitioner that both the plots, measuring 291.01 square metres area were offered by the respondent to the Residents Welfare Association for a sum of `63,000/- and the fact suggests that this was the market value of the plot. The offer to the aforesaid Association was made in March, 2004.
16. It is true that both the plots were offered for `63,000/- in March, 2004 to the said Association, but that would not entitle the revision petitioner to get both the plots or either of two plots at the rate at which the same was sought to be allotted to the said Association, reason being that the aforesaid offer was made to the Association, because it is an Association of the residents of the colony or say the allottees of the plots in the colony and the objective of the Association is for their common welfare of the residents of society. As already noticed, hereinabove, revision petitioner himself offered to buy plot, measuring 210 square metres area for `1,70,000/- in the year, 1994. He cannot be, therefore, heard to say that he should be allotted a plot of much larger area than he applied for, for a paltry sum of `63,000/-.
17. In view of what we have noticed, hereinabove, we dispose of this revision petition with the order that plot No.16-B which, as per letter dated 07.10.2008 has been decided to be allotted to the revision petitioner, the area of which is 174.71 square metres as per offer made to him, vide letter dated 15.05.2004, shall be allotted to him, on his paying a sum of `3,63,000/-, the price which was quoted in the aforesaid letter dated 15.05.2004 plus interest at the rate of 12% per annum, in case the revision petitioner deposits the aforesaid amount of `3,63,000/- with interest, within a period of 3 months from today.
18. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Chander Shekhar Sharma) Member (Prem Chauhan) Member June 14, 2013 *dinesh* [1] Whether Reporters of the local papers may be allowed to see the order?