National Consumer Disputes Redressal
Bimla Vati vs Improvement Trust on 30 December, 2021
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 1114 OF 2019 (Against the Order dated 11/04/2019 in Complaint No. 285/2019 of the State Commission Punjab) 1. BIMLA VATI W/O. SH. DEWAN CHAND. R/O. BACK SIDE SDKMV, NEAR GUPTA MANDIR, PAMPURA PHUL-151103. BATHINDA. ...........Appellant(s) Versus 1. IMPROVEMENT TRUST THROUGH ITS ESTATE OFFICER. HOSHIARPUR. PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE DR. S.M. KANTIKAR,MEMBER For the Appellant : For the Appellant : Mr. Harish Goyal, Advocate For the Respondent : For the Respondent : Mr. Neeraj Sharma, Advocate Dated : 30 Dec 2021 ORDER
1. Bimla Vati has filed the present First Appeal against the Order dated 11.04.2019 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (hereinafter referred to as the State Commission), whereby the Complaint filed by Bimla Vati (hereinafter referred to as the Complainant) was dismissed in limine finding no deficiency in service on the part of the Opposite Party Improvement Trust, (hereinafter referred to as the OP Trust) having no pecuniary jurisdiction to entertain, try and decide the Complaint and the Complaint being barred by time, with costs of ₹5,000/- to be deposited with the Consumer Legal Aid Account..
2. Brief facts of the case as narrated in the Complaint are that the Complainant, a retired Government Teacher, was allotted a Plot No. 444, admeasuring 239.11 sq. yards in Scheme No. 2, Rajiv Gandhi Avenue, Hoshiarpur floated by Opposite Party Improvement Trust, Hoshiarpur (hereinafter referred to as the "Opposite Party Improvement Trust") under Punjab Government Pensioners' quota for a total sale consideration of ₹11,04,689/- + 4% cess vide allotment letter dated 22.09.2010. The Scheme was extension of already existing scheme, which was framed way back from June, 1996 to 2001. The Complainant made total payment of ₹13,03,736/- as per demand of the Opposite Party Improvement Trust. As per Clause 7 of the Allotment letter the development work was to be completed within 2½ years and possession of the plot can be taken after execution of the sale agreement with the Opposite Party Improvement Trust. As per Clause 11 of the allotment letter construction on the Plot was to be completed within 3 years from the date of allotment. Even though as per Clause 7 of the allotment letter Opposite Party Improvement Trust was bound to complete the development work within 2½ years yet they failed to complete the development work till the date of filing of the Complaint. It is averred that offer of possession without completing the development work, is not a valid offer of possession. In other words, Complainant cannot raise construction without having a valid possession in absence of completion of development work. Despite the fact that the Opposite Party Improvement Trust failed to complete the development work, they started charging non-construction charges after three years from the date of allotment letter. The Complainant protested against the imposing of non-construction charges vide letters dated 25.09.2015 and 22.11.2015, but in vain. It is averred that in reply to the information sought under RTI Act, the Opposite Party Improvement Trust vide letter dated 16.08.2016 informed that some development work was pending in the Scheme, which shows that even by that time the Development work was not completed and Opposite Party Improvement Trust was not entitled to demand non-construction charges. Despite that Opposite Party Improvement Trust continued imposing penalty for non-construction. Vide letter dated 13.07.2016 the Opposite Party Improvement Trust asked the Complainant to avail 50% discount on non-construction fee and pay ₹68,640/- otherwise warned of action against her. Complainant deposited a sum of ₹72,452/- on 19.09.2016 with a hope that the Opposite Party Improvement Trust would complete the development work. It is averred that still the development work was not completed. Despite that vide letter dated 24.12.2018 Opposite Party Improvement Trust demanded a sum of ₹1,69,883/- towards non-construction fee, along with interest, which included the earlier discounted non-construction fee as well. It was also averred that though the development work had not been completed by the Opposite Party Improvement Trust however it was harping upon the fact that they had already delivered the possession, on the date of allotment, which meant that Opposite Party Improvement Trust had rather offered the possession of the land and not the Plot. In reply to the information sought under the RTI Act regarding development work, the Opposite Party Improvement Trust vide letter dated 01.04.2019 informed that no development work is pending and whatever they have to do, they had already done. They also informed that the development work was completed within 2003 to 2007. The Complainant averred that the present scheme was floated in the year 2010 with a condition that they will provide the development in 2½ years from the date of allotment and vide earlier reply dated 16.08.2016 Opposite Party Improvement Trust has admitted that some development work is pending, which proves that they provided wrong information and the development work is still pending. In the absence of completion of development work, Complainant could not raise construction on the Plot and still Opposite Party Improvement Trust was charging non-construction charges, which is a clear deficiency in service on the part of the Opposite Party Improvement Trust. Alleging deficiency in service on the part of the Opposite Party Improvement Trust, Complainant filed a Consumer Complaint before the State Commission with the following prayer:-
i. "to complete the development works and hand over possession of the plot in question to the Complainant after the completion of development work as per the terms and conditions of the allotment letter;
ii. to pay interest @ 18% per annum with effect from the dates of payments of the amounts by the Complainant to Opposite Party till the date of delivery of possession of the plot to the Complainant after the completion of the development works;
iii. to refund an amount of ₹72,452/- received on 19.9.2016 as non-construction fee along with interest @ 18% from the date of payment till realization. Further OP may kindly be directed to not to demand anything on account of non-construction fee. Further OP may kindly be directed to grant 3 years' time to raise construction from the date of delivery of possession, after completion of the development work;
iv. to pay ₹5,00,000/-, as compensation, on account of mental tension, depression, agony, botheration, harassment and humiliation suffered by the old ailing senior citizen; and v. to pay a sum of ₹44,000/-, as litigation expenses to the Complainant as litigation expenses."
3. After hearing the learned Counsel for the Complainant and on perusal of the material available on record, on the issue of Pecuniary Jurisdiction, the State Commission observed as under:-
"8. Admittedly in the present case the total cost of the plot in question allotted to the Complainant, vide allotment letter dated 22.9.2010, Ex.C-2, is ₹11,04,689/- and the Complainant has paid a sum of ₹13,03,736/- upto 2.5.2013. The offer of possession by the opposite party to the Complainant has also been admitted by the Complainant in her Complaint. However, the Complainant alleged that no development works were completed at the site and, as such, the offer of possession without first completing the development works is not a valid offer of possession. The Complainant claimed possession of the plot after completion of all the development works. The Complainant also claimed interest @ 18% per annum on the deposited amount along with other reliefs, reproduced above. Besides this, the Complainant has claimed the compensation of ₹5,00,000/-, which is highly exaggerated.
9. It seems to us that the compensation claimed by the Complainant in the above circumstances prima facie, is imaginary, fanciful and unrealistic. The loss suffered by the Complainant cannot be arbitrary, imaginary or for a remote cause. Since the Complainant has failed to disclose the basis for arriving at such highly exaggerated figures towards mental tension, depression, agony, botheration, harassment and humiliation etc., her claim cannot be accepted. It is settled that the Complainant has the right to value her claim in the Complaint but it is equally true that by doing so, Complainant should not value the claim which is grossly overvalued. In these circumstances, it appears that the Complainant has claimed the reliefs in the present Complaint by exaggerating the amounts so as to bring this Complaint within the pecuniary jurisdiction of this Commission. Otherwise the value of the plot is only ₹11,04,689/- and the Complainant herself admits in her Complaint that the possession of the same was offered by the opposite party but she did not take the possession as the development works were not completed at the site.
10. In view of above, we are of the view that this Complaint before this Commission is nothing but an attempt to abuse the jurisdiction of this Commission, in any case, a Consumer Forum will not be able to grant compensation to Complainant exceeding ₹20 lakh. We are therefore, of the considered opinion that the Complainant ought to have made a just and reasonable claim for compensation which could be entertained by competent Consumer Forum i.e. the District Forum. It is, therefore, held that this Commission does not have pecuniary jurisdiction to entertain, try and decide this Complaint."
4. On the issue of limitation, the State Commission observed as under:-
"This Complaint is also barred by limitation. Admittedly the allotment of the plot in question was made in favour of the Complainant, vide allotment letter dated 22.9.2010. As per Condition No.9 of the General Conditions, Ex.C-7, the possession of the fully developed plot was to be delivered within a period of three years from the date of issue of allotment letter. The allotment letter was issued on 22.9.2010, Ex.C-2, and as such, the possession was to be delivered upto 22.9.2013. Moreover, the Complainant made the payments of the instalments to the opposite party upto 21.3.2013 as per the version in the Complaint or upto 2.5.2013, vide receipt Ex.C6. At the most under Section 24-A of the C.P. Act the Complaint could have been filed within a period of two years from the date of accrual of cause of action i.e. upto 22.9.2015. However, the same was filed on 9.4.2019 i.e. after more than three and a half years, which is barred by limitation."
5. On the issue of charging of non-construction charges by the Opposite Party Improvement Trust, the State Commission observed as under:-
"Hon'ble National Commission in I(2015) CPJ 412 (NC) "PUDA v. TRIPTA RANI PURI" after relying upon (1) PUDA (now GLADA) v. Narinder Singh Nanda, Civil Appeal Nos.8314-8315 of 2010, decided on 20.2.2014 and (2) HUDA v. Sunita, IV (2014) CPJ 8 (SC) of the Hon'ble Supreme Court has held that the demand of composite fee and extension fee by HUDA was an act by HUDA in discharge of its statutory obligations under HUDA Act and Regulations framed thereunder and that raising such a demand cannot be said to be an act of deficiency in the services rendered to the Complainant. The decision of the Hon'ble Supreme Court in Sunita's case (supra), to the extent it is relevant for our purpose reads as under:-
"3. After perusing the order of the National Commission and hearing learned counsel for the parties we find that the National Commission has held that the statutory obligations of HUDA and plot-holder under the provisions of the HUDA Act and the Regulations are not acts or omissions constituting "deficiency in service" within the meaning of the Consumer Protection Act.
4. On the above finding, the National Commission had no jurisdiction to go into the correctness of the demand of "composition fee" and "extension fee" made by HUDA from the respondent Complainant.
5. On the National Commission's own reasoning and the interpretation of provisions of law with which we agree, this appeal deserves to be allowed. In our opinion, the National Commission having held that it has no jurisdiction to go into the correctness of the demands made by HUDA ought to have set aside the orders of the District Forum and the State Commission setting aside the demand of "composition fee" and "extension fee". We, therefore, allow this appeal upholding the order of the National Commission. We set aside the order of the District Forum and the State Commission to the extent of quashing the demand of "composition fee" of ₹ 53,808/- and extension fee" of ₹ 6,300/-
6. We, however, make it clear that the respondent Complainant may resort to any other appropriate remedy for questioning the aforesaid demands if they are not in accordance with law. The appeal, thus, stands allowed in the manner and to the extent indicated above."
Hon'ble National Commission further held that since the aforesaid decision was also applied in the cases against PUDA, it is quite obvious that such demand by PUDA had also been held to be a statutory obligation of PUDA. Consequently, raising such a demand cannot be said to be an act of deficiency in the services rendered to the Complainant.
13. Moreover, as per the Punjab Town Improvement (Utilization of Land and Allotment of Plots) (Amendment) Rules, 2016, there is no provision for waiving of non-construction fee/charges as claimed by the Complainant."
6. On merits, the State Commission observed as under:-
"The allotment of the plot in question was made to the Complainant, vide allotment letter dated 22.9.2010, Ex.C-2, for a total sale consideration of ₹11,04,689/-, as per the details given in clause no.15 thereof. The Complainant has paid the entire amount of ₹13,03,736/-, vide receipts Ex.C3 to Ex.C6. However, the Complainant has not fulfilled the other conditions of the allotment dated 22.9.2010. The most important condition is condition No.5, wherein following has been mentioned:-
"5. You shall come present in the office within 30 days along with 3 passport size photos and 3 witnesses for execution of the agreement of sale."
A perusal of above reproduced condition reveals that the agreement to sell in respect of the allotted plot was to be executed within 30 days from the date of allotment i.e. 22.9.2010. No such agreement to sell has been placed on record by the Complainant and in the absence of the same it cannot be presumed that the same has been executed between the parties. It is, thus, clear that the Complainant herself has failed to comply with condition no.5 of the allotment letter dated 22.9.2010, Ex.C-2. Clearly, there has been lapse on the part of the Complainant in completing the formalities as per the allotment letter. It cannot be presumed that without any Agreement to Sell the Complainant can still claim that there is deficiency in service and adoption of unfair trade practice on the part of the opposite party. When there is no agreement to sell executed between the parties, the issue of development and other issues cannot be raised by the Complainant because the only right accrues in favour of the Complainant when she complies with the terms and conditions of the allotment letter, Ex.C-2."
7. As already mentioned hereinabove, the State Commission dismissed the Complaint in limine vide Order dated 11.04.2019 finding no deficiency in service on the part of the Opposite Party Improvement Trust, having no pecuniary jurisdiction to entertain, try and decide the Complaint and the Complaint being barred by time, with costs of ₹5,000/- to be deposited with the Consumer Legal Aid Account.
8. Feeling aggrieved by the Order dated 11.04.2019 passed by the State Commission, the Appellant/Complainant has filed the present Appeal before us.
9. Mr. Harish Goyal, learned Counsel appearing on behalf of the Appellant/Complainant submitted that the State Commission erred in dismissing the Complaint on pecuniary jurisdiction. He submitted that according to the following calculation sheet, the Complaint was maintainable:-
Value of Plot ₹11,04,689/-
+Interest @18% for delayed period For 6 years ₹11,93,064/-
+Refund sought of excess amount ₹72,452/- +Interest on ₹72452 @18% from 19.09/2016 till date ₹32,603/- +Compensation sought ₹5,00,000/- +Litigation Expenses ₹44,000/- TOTAL ₹29,46,808/-
10. He submitted that even if assuming compensation of ₹5 lakh being excessive, is ignored, then the amount for the purpose of Jurisdiction comes to ₹24,46,808/- which is more than ₹20 lakh. He relied upon Judgment passed by this Commission in 'Ambrish Kumar Shukla & Ors vs. Ferrous Infrastructure Ltd.' in support of his contention.
11. He further submitted that State Commission also erred in holding the Complaint barred by limitation. The Appellant / Complainant was in touch with the OP Trust and the OP Trust informed every time that the development work is in progress. The OP Trust vide letter dated 01.04.2019 for the first time informed that no work is pending. Therefore, there was continuing cause of action till 01.04.2019. Immediately on 09.04.2019, the Complainant filed the present Complaint. Therefore, the present complaint was within the period of limitation.
12. He also submitted that when the State Commission has dismissed the complaint for want of pecuniary jurisdiction, then the learned State Commission could not have given findings on merits. As regards the Buyer's Agreement, it was submitted that the Buyer's Agreement was duly executed on 26.10.2010 but OP Trust vide letter dated 17.04.2012 informed that the Buyer's Agreement was ready and could be collected any time.
13. He also submitted that OP Trust is not entitled to charge non-construction fee as it failed to carry out the development work on the spot. Without completion of development work, the OP Trust cannot impose non-construction fee unless and until valid possession of the plot is given to the Complainant. Therefore, OP Trust is not entitled for non-construction fee before completion of development work. The State Commission cited the Judgments, which are not applicable to the present case because the said Judgments are relating to calculation of non-construction charges, whereas in the present case the issue is that the OP Trust cannot impose non-construction fee unless and until valid possession of the plot is not given to the complainant. He further submitted that even today the development work is not completed and he filed the latest photographs of the site with the Complaint but the State Commission ignored all the facts and dismissed the complaint. He prayed that the Order passed by the State Commission be set aside and the Complaint be allowed in terms of the prayer clause of the Complaint.
14. Per contra, Mr. Neeraj Sharma, learned Counsel appearing on behalf of the Respondent supported the Order passed by the State Commission as according to him the State Commission has passed a well-reasoned order which is based on a correct and rightful appreciation of evidence and material available on record and does not call for any interference.
15. We have heard Mr. Harish Goyal, learned Counsel for the Appellant, Mr. Neeraj Sharma, learned Counsel for the Respondent and given a thoughtful consideration to the various pleas raised by them.
16. As far as the issue of Pecuniary Jurisdiction is concerned, in terms of Section 17 of the Consumer Protection Act, 1986 the State Commission possesses the requisite pecuniary jurisdiction where the value of the goods or services and compensation, if any, claimed exceeds rupees twenty lakhs but does not exceed rupees one crore. In the present case, the sale consideration is ₹11,04,689/- and even if a part of the compensation claimed by the complainant, i.e., interest @18% for the delayed period for six years, i.e., ₹11,93,064/-, is added to the said sale consideration, the aggregate would be much above ₹20 Lakh. Therefore, the Complaint was within the pecuniary jurisdiction of the State Commission. The State Commission erred in holding that the State Commission did not have pecuniary jurisdiction to entertain, try and decide the Complaint. The findings recorded by the State Commission are set aside.
17. So far as the issue of limitation is concerned, from the perusal of material available on record, it is found that the Complainant was in touch with the OP Trust. In reply to the information sought under RTI Act, the Opposite Party Improvement Trust vide letter dated 16.08.2016 informed that some development work was pending in the Scheme. Vide letter dated 13.07.2016 the Opposite Party Improvement Trust asked the Complainant to avail 50% discount on non-construction fee and pay ₹68,640/-. The Complainant deposited a sum of ₹72,452/- on 19.09.2016 with a hope that the Opposite Party Improvement Trust would complete the development work. Vide letter dated 24.12.2018 Opposite Party Improvement Trust again demanded a sum of ₹1,69,883/- towards non-construction fee, along with interest, which included the earlier discounted non-construction fee as well, which the Complainant did not deposit. The OP Trust neither gave the physical possession of the Plot nor refunded the deposited amount till date. From the above facts, it is evident that there was continuous cause of action till date. Therefore, the Complaint filed before the State Commission on 09.04.2019 was well within limitation and the State Commission erred in holding the Complaint as barred by limitation. The findings recorded by the State Commission are set aside.
18. It is not in dispute that the Complainant was allotted Plot on 22.09.2010. As per terms of the Allotment letter, the OP Trust was liable to complete the development work at the site within 2½ years from the date of allotment. The Complainant sought information regarding completion of development work from the OP Trust. In reply to the Complainant's letters dated 07.12.2015, 30.12.2015, 11.01.2016, 01.02.2016 and 11.02.2016, the OP Trust vide letter dated 17.02.2016 informed that development work is in progress and would be completed by 31.03.2016 and 31.03.2017. But in reply to the information sought under Right to Information Act, 2005 by the Complainant vide letter dated 11.03.2019, the OP Trust vide letter dated 01.04.2019 for the very first time informed that 'No other development activity is pending in this Scheme. All the basic amenities are already provided as per rules.' From the perusal of material on record and the pictures of the site produced by the Complainant, it is evident that the development work was in progress uptill 01.04.2019.
19. Without completion of development work, i.e., approachable road, potable water and other basic amenities which make a plot a habitable one, offering possession of a residential plot is just a paper-possession and cannot be said to be a valid possession. Without handing over valid possession, the OP Trust cannot charge 'no-construction fee'. In the instant case, the development work/activities were completed by the OP Trust only in the year 2019, therefore, they are not entitled to charge any 'no-construction fee' from the Complainant, rather there is deficiency in service on the part of the OP Trust for delay of about 6 years in completing the Development Work/Activity on the site, for which they are liable to compensate the Complainant.
20. The State Commission relying upon the Judgment passed by this Commission "PUDA v. Tripta Rani Puri" I(2015) CPJ 412 (NC), dismissed the Complaint by holding that raising such a demand cannot be said to be an act of deficiency in the services rendered to the Complainant. The facts of case "PUDA v. Tripta Rani Puri" (supra) are different from the facts of the present case. In the present case the development work has not been completed by the OP Trust, and without offering valid possession OP Trust cannot impose non-construction fee.
21. For the afore-noted reasons, the impugned Order dated 11.04.2019 passed by the State Commission is set aside. The Appeal is partly allowed in following terms:-
(i) The OP Improvement Trust is directed to hand over the physical possession of the Plot in question, to the Complainant, within 6 weeks from today;
(ii) The Complainant is directed to raise construction on the Plot within two years from the date of receiving the Physical possession of the Plot. The OP Improvement Trust shall not charge 'no-construction fee' upto the above-said period from the Complainant.
(iii) The OP Improvement Trust is directed to refund the amount of ₹72,452/- received from the Complainant on 19.09.2016 towards non-construction fee and the 'non-construction fee' raised by the OP Trust vide letter dated 24.12.2018 is ordered to be quashed.
(iv) The OP Improvement Trust is also directed to pay to the Complainant a sum of ₹2 lakh towards lumpsum compensation for delay in completing the development work, delay in handing over the physical possession of the plot and mental agony etc., within 6 weeks from today.
(v) Keeping in view the facts and circumstances of the case, there shall be no order as to costs.
......................J R.K. AGRAWAL PRESIDENT ...................... DR. S.M. KANTIKAR MEMBER