State Consumer Disputes Redressal Commission
Improvement Trust Sangrur vs Ashok Kumar Son Of Tulsa Ram on 8 November, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SCO NO.3009-10, SECTOR 22-D, CHANDIGARH
First Appeal No.761 of 2005
Date of Institution : 20.5.2005
Date of Decision : 08.11.2010
Improvement Trust Sangrur through its Executive Officer.
.........Appellant
Versus
Ashok Kumar son of Tulsa Ram R/o Opposite Distt. Library, Indira Colony,
Sangrur.
.........Respondent
Appeal against the order dated 28.3.2005
of District Consumer Forum, Sangrur
BEFORE
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
PRESENT For the appellant : None For the respondent : Sh.Tribhuwan Singla, Advocate JUSTICE S.N.AGGARWAL, PRESIDENT Ashok Kumar, respondent was allotted Plot No.46 measuring 250 sq.yards in 23.66 Acre Captain Karam Singh Nagar Scheme, Sangrur by the appellants vide Allotment Letter dated 26.9.2001 for a total amount of Rs.3,75,000/-. The respondent had deposited 25% of the plot price as earnest money vide Receipt dated 4.9.2001. He had paid the remaining amount by way of instalments as specified in the Allotment Letter.
2. It was further pleaded that the possession of the plot was to be delivered to the respondent after the deposit of 25% of the amount while the basic amenities like water, sewerage, roads, electricity, park etc. were to be provided immediately.
3. It was further pleaded that the appellants failed to deliver the possession of the plot. They also failed to provide necessary basic amenities 2 Appeal 761/2005 like water works etc. The respondent had visited the office of the appellants and requested them to provide basic amenities but to no effect. The appellants had also failed to provide separate electric transformer for the supply of electricity. The roads were broken. Heaps of earth and dug were lying there. Even at present some roads are under construction and were incomplete. The respondent had written many letters to the appellants. Legal Notice was also served on them but in vain. It caused great financial loss to the respondent besides mental agony and physical harassment. Other allottees were also not given the possession and they had also filed complaints against the appellants at different point of time in the District Forum. Some of those complaints were accepted and the appellants were directed to deliver the possession to the allottees on the spot and to provide basic amenities.
4. It was further pleaded that the rates of construction material have gone high since the date of allotment but the basic amenities have not been provided and the possession has not been delivered. Hence the complaint for refund of the interest amount of Rs.50,650/- with interest @ 18% p.a. Interest on Rs.3,75,000/- @ 18% p.a. was also claimed. Rs.50,000/- were claimed as compensation for increase in the cost of construction material besides Rs.50,000/- were also prayed for mental agony/harassment. Direction was also sought against the appellants for not charging non construction fee. Interest and costs were also prayed.
5. The appellants filed the written reply. It was admitted that the respondent was allotted Plot No.46 measuring 250 sq.yards in the 23.66 Acre Captain Karam Singh Nagar Scheme, Sangrur but it was denied if the respondent had deposited the amount of instalments in time. Therefore, interest on delayed payment of instalments was still recoverable by the 3 Appeal 761/2005 appellants from the respondent. It was denied if the respondent had written any letter to the appellants for delivery of possession.
6. It was denied if basic amenities like water supply, sewerage, roads, were not provided. Rather all these basic amenities have been provided under the said scheme and these were functional.
7. It was pleaded that the other allottees namely Neelam Rani (Plot No.61), Sushil Kumar (Plot No.62), Gurpiar Kuar (Plot No.63), Tarsem Lal Bawa (Plot No.79), Sharu Ram (Plot No.144) and others have all constructed their houses and they were enjoying the basic amenities provided in that scheme.
8. It was denied if the appellants had failed to deliver the possession of the plot to the respondent. Rather the appellants had written letter to the respondent to take the possession. The site plan was filed by the respondent with the appellants on 12.8.2004. The same was pending consideration as the respondent has failed to clear his dues. The appellants had requested the respondent to deposit all the outstanding dues vide letter dated 16.8.2004 and 14.9.2004 but the respondent had failed to do so.
9. It was further pleaded that the respondent was under legal obligation to complete construction within 3 years from the date of issuance of allotment letter after getting the site plan approved from the appellants. The respondent has failed to complete the construction on the plot. He is liable to pay non-construction fee as well as other charges. It was denied if there was any deficiency in service on the part of appellants. Dismissal of the complaint was prayed.
10. The respondent proved documents Ex.C-1 to C-19. The respondent also filed the affidavit of A.N.Gaba, Ex.C-20 and his own affidavit Ex.C-21. The respondent also proved photographs which include 4 Appeal 761/2005 Ex.C-22 to Ex.C-28 and the bill of photographs Ex.C-29. He also proved documents Ex.C-36 to C-42.
11. On the other hand the appellants proved documents Ex.R-1 to R-25.
12. The learned District Forum accepted the complaint vide impugned order dated 28.3.2005 with cost of Rs.1,000/-. The appellants were directed to refund the interest amount and to pay compensation in the form of interest @ 10% p.a. on the principal amount deposited by the respondent; not to charge any penalty/non-construction fee from the respondent for the period of three years from 18.11.2002.
13. Hence the appeal.
14. The submission of the learned counsel for the respondent was that there was no merit in the present appeal and the same be dismissed.
15. Record has been perused. Submissions have been considered.
16. The admitted facts are that the respondent was allotted Plot No.46 measuring 250 sq.yards in 23.66 Acre Captain Karam Singh Nagar Scheme, Sangrur vide Allotment Letter dated 26.9.2001 (Ex.C-11).
17. The appellant has proved the receipts of payments made by him to the appellants as Ex.C-1 to C-10.
18. So far as the delivery of possession is concerned, there was no specification in the allotment letter or in the terms and conditions dated 26.9.2001 (Ex.C-13) as to when the possession of the plot was to be delivered by the appellants to the respondent. There is also no mention about the specific date by which the basic amenities were to be provided in the area. The Legal Notice dated 27.8.2004 was sent by the respondent to the appellants (Ex.C-19) for delivery of possession and for providing the basic amenities in the area.
5Appeal 761/2005
19. The respondent had written letter dated 22.8.2002 (Ex.C-36) to the appellants while sending the bank draft for Rs.16,875/- that the basic amenities have not been provided in the area but non delivery of possession was not mentioned in it. However the respondent had written letter dated 30.6.2004 (Ex.C-39) to the appellants with the request that basic amenities be provided in the area and that possession of the plot be also given to him. He also wrote another letter dated 2.8.2004 (Ex.C-40) for demarcating the area of the plot. He had written another letter dated 16.8.2004 for basic amenities and for demarcation of the plot.
20. On the other hand, the appellants had proved letter dated 25.3.2002 (Ex.R-5) to the respondent for getting the possession of the Plot No.46 either personally or through some representative within 15 days. The appellants wrote another letter dated 10.11.2003 (Ex.R-6) to the respondent calling upon him to get the site plan approved and to complete other formalities and to start construction on the plot before 25.9.2004. It means, therefore, that the appellants had been writing letters to the respondent for taking the possession of the plot but he had failed to do so.
21. The appellants have also placed on the file the copy of the letter dated 11.2.2005 (Ex.R-13) by which the appellants had requested the Executive Officer, Municipal Council, Sangrur to release the water connection to Tarsem Lal for releasing the sewerage connection to said Tarsem Lal vide letter dated 21.2.2005 (Ex.R-14).
22. The appellants have also produced on the file a copy of the letter dated 16.8.2004 (Ex.R-15) by which they had informed Ashok Kumar that he had not deposited the first/second/third/fourth/fifth instalment of the principal component and of the interest component in time and he was asked to deposit the penal interest on the late deposit of these instalments. 6 Appeal 761/2005
23. The appellants had also written letter dated 14.9.2004 (Ex.R-16) and he was informed to get the site plan approved relating to plot no.46.
24. The appellants have also produced on the file the final bill (Ex.R-20) to show that the work of street light was complete in that area. Similarly the light in that area was provided with the commencement date of 6.3.2001 and the completion date as 31.5.2001 (Ex.R-25). The park was also completed in that area (Ex.R-23) so also the road work was complete in 2002 (Ex.R-24 and R-25).
25. In view of the discussion held above, it is clearly proved that there was no specific date by which the possession of the plot was to be delivered to the addressee/transferee nor there was any specific date laid down by which the basic amenities such as water, sewerage were to be provided. It was held by the Hon'ble Supreme Court in the judgment reported as "Municipal Corporation, Chandigarh v. Shanti Kunj Investment (P) Ltd., (2006) 4 SCC 109" as under : -
"On a plain reading of the definition "amenities"
read with Rule 11(2) and Rule 12, it cannot be construed to mean that the allottees could take upon themselves not to pay the lease amount and take recourse to say that since all the facilities were not provided, therefore, they are not under any obligation to pay the instalment, interest and penalty, if any, as provided under the Act and the Rules..... It has never been the condition precedent. It is true that in order to fully enjoy the allotment, proper linkage is necessary. But to say that this is a condition precedent, that is not the correct approach in the matter.......It is true the 7 Appeal 761/2005 word, "enjoy" appearing in the definition of the word "premium" in Rule 3(2) of the Rules, means the price paid or promised for the transfer of a right to enjoy immovable property under the Rules. It was very seriously contended before us that the word, enjoy immovable property necessarily means that the Administration should provide all the basic amenities as appearing under Section 2(b) of the Act for enjoying that allotment. The expression "premium" appearing in the present context does not mean that the allottees/lessees cannot enjoy the immovable property without those amenities being provided. The word "enjoy" here in the present context means that the allottees have a right to use the immovable property which has been leased out to them on payment of premium i.e. the price... It is the common experience that for full development of an area it takes years. It is not possible in every case that the whole area is developed first and allotment is served on a platter. Allotment of the plot was made on an as-is-where-is basis and the Administration promised that the basic amentieis will be provided in due course of time. It cannot be made a condition precedent. This has never been a condition of the auction or of the lease. As per the terms of allotment upon payment of the 25 per cent, possession will be handed over and rest 8 Appeal 761/2005 of the 75 per cent of the leased amount to be paid in a staggered manner i.e. in three annual equated instalments along with interest at the rate of 10 per cent. If someone wants to deposit the whole of the 75 per cent of the amount he can do so. In that case, he will not be required to pay any interest. But if a party wants to make payment within a period of three years then he is under the obligation to pay 10 per cent interest on the amount of instalment. This is the obligation on the part of the allottee as per the condition of lease and he cannot get out of it by saying that the basic amenities have not been provided for enjoying the allotted land, therefore, he is not liable to pay the interest.
We asked the learned counsel for the parties to tell us which is the obligation of the lessor in the lease deed which says that they will not charge interest on the instalments before providing the amenities. There is neither any condition in the lease nor any obligation under the auction. If the parties have given their bids an with their eyes wide open, they have to blame themselves. It cannot be enforced by any mandamus as there is no obligation contained in the lease deed or in the auction-notice."
26. The Hon'ble Supreme Court re-iterated this view of law in the judgment reported as "U.T. Chandigarh Administration vs. Amarjeet Singh 9 Appeal 761/2005 & ors., 2009 (3) CPR 97 (SC)" that if the allottee fails to make the payment of any instalment by the scheduled time, then the allotment authorities would be entitled to charge penal interest as well, as laid down in the rules/letter of allotment.
27. The settled law is that the allottee has no right to refuse to take possession of the plot on the ground that the development of the area has not taken place or that the basic amenities have not been provided. The provision of basic amenities is not a condition precedent to take possession by the allottee This Commission has followed this view in the judgment dated 31.03.2009 passed in FA No.766 of 2003 (Punjab Urban Planning and Development Authority vs. Kanwaljit Singh and others).
28. Therefore, neither the respondent was entitled to hold back the payment of instalments or interest component nor he was entitled to interest on the amount already deposited by him nor he can seek the refund of the interest component of the instalment.
29. So far as the cost of construction is concerned, if the plot has been allowed at old rate, no compensation for delay in possession is to be granted. Reference can be made to the judgment of the Hon'ble Supreme Court reported as "Haryana Urban Development Authority v. Raje Ram"
2009 CTJ 503 (Supreme Court) (CP) in which it was held by the Hon'ble Supreme Court as under : -
"6. The decision of National Commission in Darsh Kumar, followed in the impugned orders, did not find favour of this Court in HUDA v. Darsh Kumar, 2005 CTJ 134 (SC) (CP) = 2005 (9) SCC 449. This Court observed that where possession is given at the old rate, the party has got the benefit of escalation in price of land, and 10 Appeal 761/2005 therefore, there cannot and should not be award of interest on the amounts paid by the allottee on the ground of delay in allotment."
30. Keeping in view the discussion held above, the appeal is accepted and the impugned order is set aside.
31. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 20.5.2005. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the Registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum.
32. The arguments in this case were heard on 25.10.2010 and the orders were reserved. Now the orders be communicated to the parties.
33. The appeal could not be decided within statutory period due to heavy pendency of court cases.
( JUSTICE S.N.AGGARWAL ) PRESIDENT ( MRS.AMARPREET SHARMA ) MEMBER November 08 , 2010 vr/-
11Appeal 761/2005