State Consumer Disputes Redressal Commission
Punjab Urban Development Authority vs Satinder Singh Dhillon on 28 November, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1152 of 2006.
Date of Institution: 07.09.2006.
Date of Decision: 28.11.2011.
1. Punjab Urban Development Authority, Bhagu Road, Bathinda through
its Additional Chief Administrator.
2. The Estate Officer, Punjab Urban Development Authority, Bhagu
Road, Bathinda.
.....Appellants.
Versus
Satinder Singh Dhillon S/o Sh. Gurbachan Singh, R/o Ward No.6, near
Nirankari Bhawan, Link Road, Mansa.
...Respondent.
First Appeal against the order dated
09.05.2006 of the District Consumer
Disputes Redressal Forum, Bathinda.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellants : Sh. Balwinder Singh, Advocate.
For the respondent : Sh. L.R. Sharma, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
Punjab Urban Development Authority and another, appellants (In short "the appellants") have filed this appeal against the order dated 09.05.2006 passed by the learned District Consumer Disputes Redressal Forum, Bathinda (in short "the District Forum").
2. Facts in brief are that Sh. Satinder Singh Dhillon, respondent/complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellants, making averments that the respondent is allotee of a residential plot bearing no.35, situated at Urban Estate, Phase-III, Part-2, Bathinda and the same was allotted vide allotment letter no.2252 First Appeal No.1152 of 2006 2 dated 24.04.2001 and the total amount payable was Rs.7,62,500/- @ Rs.1525/- per sq.yd. After payment of 25% of the price, the respondent was to pay the balance amount in six installments with first installment commencing on 24.04.2002 and the last installment was to be paid upto 24.10.2004. The respondent paid the last installment on 02.11.2004 vide demand draft no.6807 dated 01.11.2004 drawn on State Bank of Patiala, for Rs.1,05,048/-.
3. The respondent had bonafide made the payment of installments and vide letter dated 29.07.2005, requested to issue 'No Due Certificate' regarding the plot in question, but the appellants kept on evading on one pretext or the other and the respondent received the letter dated 21.02.2006 vide which, Rs.15,271/- were demanded towards interest and Rs.75,000/- towards extension fee for the non-construction on the plot in question.
4. The amount of Rs.15,271/- towards interest and Rs.75,000/- towards extension fee demanded by the appellants is illegal, null and void, as the respondent has already paid the entire interest due along with the installments and in the last installment, Rs.2588/- were paid towards interest and now, nothing is due and the appellants are estopped by their act and conduct to demand the same.
5. The appellants failed to give possession of the plot in question to the respondent till date despite the requests made. The plot has never been demarcated, nor any possession delivered to the respondent by the appellants and now, the appellants have no right to demand any amount towards extension fee, unless the site is provided to the respondent. The extension fee can be charged as per Rule-13 of the Punjab Regional Town Planning & Development (General) Rules, 1995 framed by the State Govt. under the Punjab Regional Town Planning & Development Act, 1995 and the appellant cannot make any demand against these provisions and the same has been settled in case of "Tehal Singh & Ors. Vs State Punjab", Civil Writ First Appeal No.1152 of 2006 3 Petition No.13648 and the appeal preferred by PUDA against the said order was dismissed by the Hon'ble Supreme Court.
6. The notification dated 08.10.2001 issued by the Punjab Govt. published in the gazette dated 26.10.2001, authorizing to notify and alter the structure of payment of extension fee prescribed in Rule 13(3) retrospectively, was challenged in Writ Petition No.18986 of 2001 in case "Sant Kaur Jabbi & Ors. Vs State of Punjab", and vide order dated 31.10.2002, the Hon'ble High Court allowed the petition and the said rule and notification were held to be void and PUDA was directed to charge the extension fee as per the unamended Rule-13 and the Special Leave Petiton against the said order was dismissed in limine on 14.07.2003. This Commission has also dismissed the appeal of PUDA in case "PUDA Vs Balbir Singh", vide order dated 06.01.2005. The appellants are deficient in rendering service, and prayed that the complaint may be accepted with costs and the following reliefs may be granted:-
i) Demand of Rs.15,271/- towards interest and Rs.75,000/- towards extension fee demanded vide letter dated 21.02.2006 be set aside and 'No Due Certificate', in respect of plot in question be issued to the respondent,
ii) possession of the said plot be given to respondent, and
iii) compensation to the tune of Rs.9500/- on account of mental tension and harassment be awarded and any other relief which is deemed fit may also be granted.
7. In the reply filed on behalf of the appellants, preliminary objections were taken that the complaint is not maintainable and the respondent has not approached the Forum with clean hands and has suppressed the material facts and is not entitled to the relief and he is also not a consumer. There is no deficiency in service or unfair trade practice on the part of the appellants and there is no cause of action.
8. The actual facts are that the respondent applied for a plot which was allotted to him and the payment regarding the same was supposed to be made in installments. The respondent has made the payment of the installments, but he has always been in the habit of making the payment later First Appeal No.1152 of 2006 4 than the due date and he was liable to pay penal interest on the late payment. As per the calculations made by the appellants, the total cost of the plot was Rs.7,93,000/- and the total penal interest for the entire period and the late payment of installments calculated comes to Rs.36,935/- and the total amount recoverable was Rs.10,22,936/- and out of this amount, the respondent has made the payment of Rs.10,07,665/- and a sum of Rs.15,271/- was still to be recovered from the respondent towards the balance penal interest. The respondent was allotted the plot in the year 2001 and he was required to make the construction on the plot within three years from the date of allotment and in case, he failed to raise the construction, he was required to pay the extension fee for non-construction. After leaving the period of three years from 2002 to 2004, the respondent is liable to make payment of extension fee of Rs.75,000/- to the appellants and the said amount is recoverable as per the rules.
9. On merits, the allotment of the plot in question as well as the total cost of the plot as Rs.7,62,500/- was admitted. It was further admitted that after payment of the 25% of the sale price, the respondent was to pay the balance amount in six installments and the sixth installment was to be paid upto 24.10.2004. It was further pleaded that the respondent was required to make the payment of installments on due date and in case of default, he was liable to pay the penal interest and on failure to construct within three years of allotment, the respondent was also liable to pay the extension fee to the appellants as per the rules. The respondent made the payment of the installments, but not on due date. The demand made is legal and there is nothing illegal. The possession of the plot was delivered to the respondent, long back. Even otherwise, the possession is supposed to be taken within 60 days from the date of allotment and after that, the same is presumed to have been taken. There is no deficiency in service on the part of the appellants. 'No Due Certificate' cannot be issued to the respondent, until and unless he First Appeal No.1152 of 2006 5 makes the payment. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
10. Parties led evidence in support of their respective contentions by way of affidavits and documents.
11. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum after detailed discussion, observed that it is not proved that the plot was demarcated by the appellants and the possession was delivered. Had the possession been delivered to him earlier, what could be the necessity for him to make the prayer before the District Forum, directing the appellants to deliver the possession of the plot to him? Relying upon a number of authorities of the Hon'ble Supreme Court, Hon'ble National Commission, it was observed that when the possession of the plot has not been delivered, the question of demand of interest on delayed payment of installments by the respondent does not arise. Since the plot has not been demarcated and the possession has not been delivered, the question of completion of building by the respondent within three years does not arise and the respondent is not liable to pay any non-construction charges, and allowed the complaint with costs of Rs.1,000/- and directed the appellants to:-
i) deliver physical possession of the plot no.35 to the respondent after due demarcation,
ii) issue 'No Due Certificate' to him,
iii) pay Rs.5000/- to him as compensation u/s 14(1)(d) of the Act.
iv) Compliance within 30 days from the date of receipt of copy of the order, failing which the amount of compensation would carry interest @ 9% p.a. till realization.
12. Aggrieved by the impugned order dated 09.05.2006, the appellants have come up in appeal.
13. 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 parties.
First Appeal No.1152 of 2006 6
14. Learned counsel for the appellants contended that the allotment of the plot in question was made to the respondent in the year 2002 and as per condition-10 of the terms and conditions of the agreement, he was supposed to take possession within 60 days on 'as is where is basis', and thereafter, it is presumed that the possession has been taken and if the construction is not completed within three years, the extension fee is chargeable. The installments were paid, but the payment of the installments was made late and for that, the penal interest has to be charged and after calculation, the balance due to be recovered from the respondent comes to Rs.15,271/- out of penal interest and Rs.75,000/- as extension fee and the appellants are well within their right to charge the same and the District Forum has committed error and the appeal may be accepted.
15. On the other hand, it was argued on behalf of the respondent that the allotment of the plot in question was made on 24.04.2001 and in all, the respondent was liable to pay Rs.7,62,500/- which he has paid a long back and the last installment of Rs.1,05,048/- was paid on 02.11.2004 and the interest on the delayed payment was also paid along with the installments and after 02.11.2004, no amount was due. The respondent made several requests to demarcate the plot and to deliver the possession, but the same was never done and without the demarcation of the plot or the possession, there was no possibility for the respondent to raise construction. It has been vehemently argued that even the demarcation has not been given till date and the possession has also not been delivered and the appellants have utilized the huge amount paid by the respondent, for the last 10 years and even after 11 years of allotment, the appellants are not able to tell where the plot is and no demarcation has been given and the District Forum has very rightly passed the order. It has been further contended that the possession cannot be taken in the air and once the possession is delivered, there are certain documents to be executed between the parties, but there is no such document to prove that the possession was delivered. By merely mentioning First Appeal No.1152 of 2006 7 the terms and conditions, the possession cannot be presumed till the plot in question is actually demarcated and possession is delivered. It has been contended that the appellants are not entitled to recover any penal interest or the extension fee. Rather, the respondent is entitled to recover interest on the huge amount already paid by him to the appellants. There is no illegality in the order of the District Forum and the appeal may be dismissed.
16. We have considered the respective submissions made by the learned counsel for the parties and have minutely scanned the entire material and other documents placed on file.
17. It is really shocking to note as to how the appellants are dealing with their own customers, who pay lacs of rupees out of their hard earned money. In the present case, the respondent was allotted plot bearing no.35, situated at Urban Estate, Phase-III, Part-2, Bathinda, vide allotment letter no.2252 dated 22.04.2001 and the total amount payable was Rs.7,62,500/- and he paid the entire amount along with penal interest on delayed payment of installments and the last installment was paid on 22.11.2004 vide demand draft no.6807 dated 01.11.2004, as admitted by the appellants. When the respondent asked for the 'No Due Certificate', some more amount including the extension fee, as mentioned above, was demanded on the plea that the respondent has not taken the possession as per the terms and conditions of the allotment letter Ex.R3 and as per Clause-10, the respondent was required to take the possession within 60 days of the issuance of allotment letter on 'as is where is basis'. It is strange that relying upon this clause, the possession was automatically deemed to be proved, without demarcating the plot or without delivering the possession thereof. The plea of the respondent is that till date, the said plot has not been demarcated, nor the possession has been given. There is no document on record to prove that the demarcation of the said plot was carried out and the possession was delivered. In the reply filed on behalf of the appellants, in reply to para-6 of the complaint, it was pleaded that the possession of the plot had been given to the respondent/complainant First Appeal No.1152 of 2006 8 long back. The reply is dated 30.03.2006 and when the possession was delivered, no date is mentioned. There is no certificate of possession brought on record by the appellants to prove that on such and such date, the possession was handed over to the respondent of the plot in question. By merely assuming and presuming under condition-10 of the allotment letter, actual possession of the plot cannot be proved.
18. As stated above, the respondent has paid the entire amount way back on 02.11.2004 and a sum of Rs.7,62,500/- stands paid by that date, from the date of allotment i.e. 24.04.2001 and even after, after payment of the entire cost of the plot on 02.11.2004, the respondent is still on the road, without knowing as to where his plot is and still the appellants are silent to come forward and to say that they are ready to deliver the possession after demarcation of the plot.
19. The appellant is a statutory body and is supposed to act according to its rules and the officials of the appellants are required to perform their duties under the Act and the rules without any ill-will or malafide towards any person, but seeing the circumstances of the present case, we are constrained to say that the common man even after paying the entire cost of a plot, is deprived of the fruits which he could enjoy and that is because of the red-tapism prevalent in the department of the appellants.
20. The District Forum has rightly allowed the complaint and there is no ground to interfere with the same and the order passed by the District Forum is well reasoned and justifiable order. We will like to add that it is the good luck for the appellants that the respondent has not filed any appeal for asking the payment of interest on the amount deposited by him and utilized by the appellants for more than seven years, but they are required to be burdened with special costs.
21. Accordingly, the appeal is dismissed and the impugned order dated 09.05.2006 under appeal passed by the District Forum is affirmed and upheld. The appellants are burdened with special costs of Rs.20,000/- First Appeal No.1152 of 2006 9 (Rupees Twenty Thousand) which shall be paid by them to the respondent/ complainant within two months of the receipt of the copy of the order.
22. Copy of the order be sent to the Secretary, Punjab Urban Planning & Development Authority, Punjab, with a direction to look into the matter and to send the copy of the 'action taken report' against the official/officials, who were at fault while dealing with the case of the respondent, to this Commission within three months from the receipt of copy of the order.
23. The appellants had deposited an amount of Rs.3000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent/ complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
24. Remaining amount, as per the order of the District Forum, shall be paid by the appellants to the respondent/complainant within two months from the receipt of copy of order.
25. The arguments in this appeal were heard on 16.11.2011 and the order was reserved. Now the order be communicated to the parties.
26. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member November 28, 2011.
(Gurmeet S)