National Consumer Disputes Redressal
Parminderjeet Singh vs Improvement Trust, Bathinda on 26 April, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 806 OF 2016 (Against the Order dated 20/11/2015 in Appeal No. 62/2013 of the State Commission Punjab) 1. PARMINDERJEET SINGH S/O HARBANT SINGH, S/O JAGIR SINGH, R/O VILLAGE SUKHNA ABLU, DISTRICT-MUKATSAR SAHIB PUNJAB ...........Petitioner(s) Versus 1. IMPROVEMENT TRUST, BATHINDA BATHINDA, THROUGH ITS CHAIRMAN/ADMINISTRATOR/EXECUTIVE OFFICER, BATHINDA PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr Malkeet Singh, Advocate For the Respondent :
Dated : 26 Apr 2016 ORDER REKHA GUPTA
The present revision petition has been filed against the judgment dated 20.11.2015 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh ('the State Commission') in First Appeal no. 62 of 2013.
2. The facts of the case as per the petitioner/ complainant are that the respondent had floated a scheme 49.5 acre at Bibi Wala Road and advertised it in the newspapers claiming that the colony would be developed with parks, wide roads, footpaths and drinking water and so on. The petitioner applied to purchase a plot of 239 square yards @ Rs.10,000/- per square yard from the respondent for a total price of Rs.23,90,000/-. The petitioner got plot no. 12 vide intimation letter no. 2230 on 23.10.2007 from the respondent. This plot was given by the respondent to the petitioner on payment of instalments and the petitioner deposited 25% of the amount of Rs.5,97,500/- and Rs.95,600/- as 4% cess with the respondent on 03.08.2007. The respondent promised the plot holders that development like street, roads, sewerage, water pipes etc., would be carried out quickly within one month or two months, but to no effect. The petitioner was unable to construct on the plot, as there were no roads reaching the plot and as such no vehicle could go up to the plot as there were deep trenching, sand dunes and there was no possibility of development whatsoever even after five year thereon. Many letters were written by the petitioner in this regard to the respondent but to no effect. The petitioner wrote letter on 03.09.2010 to the respondent under Right to Information Act for getting information regarding development, but the respondent intentionally detained this letter it was further averred that the petitioner was not bound to make the instalments without getting the amenities of life, as committed by the respondent. The respondent had not provided the basic amenities in the above said plot and threatened the petitioner by sending letters to resume the plot. The respondent issued letter no. 564 dated 16.03.2012 to the petitioner regarding resumption of the plot allotted to him. The alleged letters mentioned in the letter no. 564 were in fact never issued to the petitioner. The petitioner has thus, prayed that the respondent be directed to withdraw the letter no. 564 of resumption of plot and to provide basic amenities like roads, streets, water pipes, etc., and to pay 20% interest on Rs.7.00 lakh from 03.08.2007 till date which has been deposited with the respondent as 25% amount of total cost of the plot and to pay Rs.5.00 lakh as compensation for mental harassment to the petitioner and to pay Rs.5.00 lakh as difference of cost of construction on account of delay in the alleged development.
3. On notice, the respondent contested the complaint of the petitioner. Respondent has stated that the complaint is not maintainable in the present forum. Any deficiency in service on the part of the respondent was denied. The petitioner was alleged to be not the consumer of the respondent. The petitioner was alleged to be estopped by his own act and conduct from filing the complaint on merits. It was admitted that the development scheme known as 49.5 acre regarding land located near Bibi Wala Road framed by the Improvement Trust, Bathinda and advertisement for the sale of different residential/ commercial plots were given to the newspapers. Open auction of residential and commercial property was held on 03.08.2007 in the office of the respondent after giving due publicity. The petitioner took part in auction by giving his bids along with other bidders. The bid of the petitioner being the highest @ Rs.10,000/- per square yard with regard to 239 square yards of land forming part of 49.5 acre scheme was accepted and total cost of the plot was worked out to Rs.23,90,000/-. The petitioner deposited Rs.5,97,600/- being ¼ of the total amount of Rs.23,90,000/- and petitioner was required to deposit the remaining ¾ of the amount in six monthly instalments along with 12% interest, as mentioned in the letter dated 23.10.2007. The respondent denied that it had promised the plot holders for development of streets, roads, sewerage, water pipe etc., within a month or two months. The sewerage, water and street light facilities have already been provided. The respondent further stated that letter no. 672 dated 30.03.2010, letter no. 1804 dated 11.08.2010, letter no. 2231 dated 24.09.2010 and letter no. 2075 dated 29.08.2011 were sent by the respondent to the petitioner for depositing of the outstanding amount. These letters were asserted to be genuine and authentic. The petitioner deposited Rs.7.00 lakh only, out of which Rs.5,04,600/- being ¼ of the bid amount was deposited on 03.08.2007 and thereafter no other instalments has been deposited by the petitioner with the respondent. The petitioner has not paid the instalments as per the schedule and hence, the plot of the petitioner was resumed for non-payment of instalments. The respondent controverted the other averments of the petitioner made in the complaint and prayed for dismissal of the complaint.
4. The District Consumer Disputes Redressal Commission, Bathinda ('the District Forum') vide its order dated 31.10.2012, held as under:
"...............As perusal of Ex. R 5 to R 10 shows that there were no sand dunes or trenches. Moreover, the house no. 10 is duly constructed in that scheme besides this the plot nos. 39, 40 and other plots are also shown to be constructed in these photographs. The SCH no. 6 is also shown constructed vide Ex R 9. Thus this averment is also not believable..................
....................The complainant has breached the agreement as he has himself committed to pay the 25% of the amount on the allotment of the plot and ¾ (75%) amount in five instalments. Moreover no assurance was given by the opposite party to provide him all the facilities within one or two months as nothing has been mentioned regarding this in the agreement..............
.......................The evidence placed on file shows that all the facilities have already been provided to the residents of that area by the opposite party. Hence, the complainant is defaulter in paying the instalments to the opposite party on the dues dates mentioned in the allotment letter...............
Before resuming the plot of the complainant the opposite party has written various letters to him as he has failed to make the payment of the instalments on due dates. In the letter no. 672 dated 30.03.2010, letter no. 18904 dated 11.08.2010, letter no. 2231 dated 24.09.2010 and letter no. 2075 date 29.08.2011 were sent by the opposite party requiring the complainant to deposit the outstanding amount and it has also mentioned that filing which the plot shall be resumed and he was also asked to come present for personal hearing on the dates mentioned on those letters. But the complainant has neither replied those letters nor deposited the balance payment nor came for personal hearing, therefore, the demarcation of the plot at the spot could not be given to him and it has been specifically mentioned in the clause no. 6 of the allotment letter dated 23.10.2007 that in case of default in making the payment, the allottee shall be liable to pay the penal rate of interest, apart from simple rate of interest and he duly accepted all the term and conditions that have been incorporated in the allotments letter by appending his signatures in token of his having accepted those terms and conditions. The opposite party issued letter no.564 dated 16.03.2012 to the complainant with regard to the resumption of the plot bearing no. 12. Before issuance of this letter the complainant was intimated through the letters sent to him on different dates as mentioned above.
The complainant is defaulted in making the payment to the opposite party as agreed by him. In all the letters that has been placed by the complainant issued by the opposite party, the payment schedule has duly been shown. The remaining amount was required to deposit in 5 instalments but despite these letters the complainant has failed to deposit the same with the opposite party.
Thus from the facts, circumstances and evidence placed on file, it has been proved that there is no deficiency in service on the part of the opposite party. Hence, this complaint fails and is hereby dismissed without any order as to cost".
5. Aggrieved by the order of the District Forum, the petitioner/ complainant filed an appeal before the State Commission. The State Commission while dismissing the appeal observed as under:
"From evaluation of above referred evidence on the record and hearing the respective submissions of counsel for the parties, we find that the complainant was bound to pay instalments to the OP, as per the agreement of sale. The allotment letter no. 2230 dated 23.10.2007 and detail of schedule of payments has been recorded in it. Reference may further be made to in this regard. The agreement of sale dated 31.10.2007 between the parties is on the record and as per clause 1, the mode of payment of the agreement, if the purchaser fails to make payment of money due from him to the Trust on due date as intimated, he shall be liable to pay penal interest of one percent per annum in the first month, two percent per annum, in the second month, three percent per annum in third month, four percent in the fourth month, five percent per annum in the fifth month and six percent per annum in the sixth amount on due amount in addition to the normal interest of 12 percent per annum. If the default continues for a period exceeding six months, the plot would be liable to be resumed. We find that complainant paid ¼ amounts of the total price of the plot and subsequent instalments have not been paid by the complainant. The counsel for the complainant could not point any evidence on the record to our no tice or any admission made by the OP that these amounts were ever paid. Even as per agreement of sale, the penal interest could be made upto the period of six months only and thereafter the plot is liable to be resumed after expiry of period of six months. Even, as per this Clause of the Agreement of Sale, the penal interest could be levied upto 6 months period only on default of the purchaser. We find in this case that complainant has not paid any instalments thereafter and continued defaulting for the period of six months. The OP is, thus, justified in resuming the plot on account of default in making the payment of instalments by the complainant to OP. After all the development of the scheme has to be carried on the basis of receipt of instalments amounts by OP from the various purchasers and otherwise it was not possible at all. Even as per allotment letter, the plot is liable to be resumed, if the default continued in making the payment of instalments by the purchasers for more than six months. The plot of the complainant has, thus, rightly been resumed by the OP. The counsel for the complainant, now appellant referred the typed copy of one judgment of Punjab and Haryana High Court titled as 'S C Gupta and another vs State of Haryana and Others' in CWP no. 989 of 2012 decided on 29.04.2013. This authority is on different facts. We find that there is violation of Clause 6 of the allotment letter as well as clause 1 of the agreement of Sale on the part of complainant, which rightly justified the OP to resume the plot. The order of District Forum cannot be said to be faulty in any manner in this appeal by this Commission. The order of the District Forum under challenge in this appeal is thus, affirmed.
As a result of our above discussion, we find no merit in the appeal and the same is hereby dismissed.
Arguments in this appeal were heard on 18.11.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases".
6. Hence, the present revision petition.
7. We have heard the learned counsel for the petitioner and have gone through the record. Learned counsel for the petitioner/ complainant has contended that the orders of the lower fora should be set aside as they have ignored the actual facts on record. The petitioner did not deposit the full cost of the plot because the basic amenities were not provided within two to three months as promised by the respondent as also the agreement was not signed by the respondents. As the contract had not come into existence the petitioner was not bound to perform his part to make payment due.
8. We have carefully gone through the record. As per the allotment letter, plot no. 12 was purchased by the petitioner in an open auction held on 03.08.20007 for Rs.23,90,000/-. Thereafter he deposited a sum of Rs.5,97,500/- towards ¼ of the sale price, Rs.95,600/- towards 4% cess and the balance ¾ of the amount were to be deposited in the Trust fund in five half yearly instalments with interest @ 12%. Conditions no. 6, 7 and 8 of the allotment letter reads as under:
"6. In case you fail to deposit above mentioned instalments in time then you will be liable to pay, in addition to 12% simple interest. Penal interest that will be charged @ 1% in case of a delay of one month, 2% in case of delay of 2 months, 3% in case of delay of 3 months. 4% in case of delay of 4 months, 5% in case of delay of 5 months, 6% in case of delay of 6 months. In case of delay for more than 6 months your plot no. 12 situated in the 49.5 acres. Scheme shall be resumed and the amount deposited in this respect shall be forfeited.
7. Within 60 days from the date of resumption of plot no. 12, you can prefer an appeal before the concerned Government for restoration of plot no. 12. On restoration of plot no. 12, apart from 12% simple interest, penal interest @ 6% and 20% as penal restoration fee shall be charged.
8. Construction on the plot no. 12 shall be completed within 3 years as per Building bylaws, from the date of issuance of allotment letter after getting the site plan sanctioned from the Trust, carrying out demarcation. In case of failure to do so, non-construction charges have to be paid according to Government instructions/ Rules. In case the allottee does not raise construction even after getting 2 years extended period, the Trust shall have the right to resume the plot."
9. It is an admitted fact that the petitioner failed to pay the balance amount. He was issued various letters to pay the sum and was also given opportunity of personal hearing twice, but he still failed to deposit the balance amount and defaulted in the payment of instalments due. Hence, plot no. 12 was resumed vide order dated 12.03.2011 which was communicated to him vide letter dated 16.03.2012. The letter further states that if he wished to get the plot restored then he should prefer an appeal before the Secretary to the Department of Local Government, Punjab, Chandigarh within 30 days from the issuance of the letter. In case plot no. 12 is not restored within two months then the allotment shall stand cancelled.
10. We also find from the information provided vide letter no. 1281 dated 01.06.2011 in response to petitioner's RTI query it is obvious that the work relating to providing water supply, sewerage and street lights had been completed near plot no. 12. Copy of the agreement for sale was also made available. The District Forum after going through all the records/ documents of the case correctly came to the conclusion that there were no sand dunes or trenches which could have been prevented him from constructing the house. In fact, house no. 10 has been duly constructed which stood beside this plot. The petitioner himself had defaulted in payment. As per the evidence filed by the respondent, all the facilities had already been provided to the residents of the area. It was also clear from the evidence made available to the District Forum by the respondents that before resuming the plot, the respondent had written various letters to the petitioners to make the balance amount as also had given him two opportunities for personal hearing which he chose not to avail off. Both the District Forum and the State Commission concluded that the petitioner has defaulted in making the payment of the agreement and that the respondent had committed no deficiency of service and were justified in resuming the plot.
11. The Hon'ble Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 has observed:
"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."
12. In view of the above, we find no merit in the revision petition warranting our interference in exercise of powers under Section 21 (b) of the Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition as also the complaint are dismissed.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER