State Consumer Disputes Redressal Commission
Dilbagh Singh vs Improvement Trust Malerkotla on 15 January, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
1. First Appeal No.1405 of 2014
Date of institution : 16.10.2014
Date of decision : 15.01.2015
Dilbagh Singh son of Virsa Singh, resident of Village and Post Office
Mandian, Malerkotla, District Sangrur through Special Power of
Attorney Rachhpal Singh son of Virsa Singh, resident of Village and
Post Office Mandian, Malerkotla, District Sangrur.
.......Appellant/Complainant
Versus
Improvement Trust, Malerkotla through its Executive Engineer.
........Respondent/Opposite Party
2. First Appeal No.1406 of 2014
Date of institution : 16.10.2014
Date of decision : 15.01.2015
Mohd. Yasin son of Jaan Mohd., resident of Sirhandi Gate, Navi
Abadi, Malerkotla, District Sangrur.
.......Appellant/Complainant
Versus
Improvement Trust, Malerkotla through its Executive Engineer.
........Respondent/Opposite Party
3. First Appeal No.1407 of 2014
Date of institution : 16.10.2014
Date of decision : 15.01.2015
1. Abdul Gaffar son of Mohd. Saddiq,
2. Arshad Iqbal son of Mohd. Sharif,
Both residents of Village Rohera, Malerkotla, District Sangrur.
.......Appellants/Complainants
First Appeal No.1405 of 2014. 2
Versus
Improvement Trust, Malerkotla through its Executive Engineer.
........Respondent/Opposite Party
First Appeals against the order dated
8.9.2014 of the District Consumer
Disputes Redressal Forum, Sangrur.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellant : Shri A.K. Garg, Advocate.
JUSTICE GURDEV SINGH, PRESIDENT :
The above noted appeals are being decided by this common order, as the facts are similar and common question of law arises therein. The first appeal (FA No.1405 of 2014) has been filed by Dilbagh Singh, complainant, against the order dated 8.9.2014 passed by the District Consumer Disputes Redressal Forum, Sangrur (in short, "District Forum"), vide which the complaint filed by him under Section 12 of the Consumer Protection Act, 1986, (in short, "the Act") for directing the opposite party (Improvement Trust) to (i) construct the bathrooms, boundary wall, parking, roofs, to provide lights in parking, verandahs, to provide the basic amenities (water supply, sewerage etc.), to provide Peon/Chowkidar and to complete the construction; (ii) not to charge interest against the terms and conditions of the Scheme known as Sirhandi Gate Vikas Scheme and to construct the stairs to go to the shop at first floor from the shop at ground floor; (iii) to refund Rs.1,49,000/-, along with interest from 16.4.2013 onwards; (iv) to pay Rs.3,00,000/-, as compensation on account of physical harassment and mental agony; First Appeal No.1405 of 2014. 3 and (v) to pay Rs.22,000/-, as litigation expenses, was dismissed. The second appeal (FA No.1406 of 2014) has been filed by Mohd. Yasin, complainant, against the order passed by the District Forum on the same date dismissing the complaint of this complainant in which he sought the similar directions. The third appeal (FA No.1407 of 2014) has been filed by Abdul Gaffar and Arshad Iqbal, complainants, against the order passed by the District Forum on the same date, vide which their complaint under Section 12 of the Act for the issuance of similar directions was dismissed.
2. For the purpose of deciding these appeals, the facts are being taken from FA No.1405 of 2014 (Dilbagh Singh vs. Improvement Trust, Malerkotla). The complainant alleged, in his complaint, that the opposite party floated a Scheme known as Sirhandi Gate Vikas Scheme (in short, "the Scheme") and for the sale of double storey shops bearing Nos.7 to 10, 14 to 17 and 33 to 35, the pamphlets were issued and for the allotment of those shops, the open auction was held on 30.5.2012 at 11.00 A.M. The reserved price of double storeyed shop was Rs.34,80,000/- and the earnest money was Rs.3,48,000/-. He deposited that earnest money and participated in the auction, in which he purchased Shop No.14 for total consideration of Rs.34,84,000/- and as per the terms and conditions of the open auction, deposited Rs.8,71,000/- plus 4% cess i.e. Rs.1,39,360/-; as 25% of the total amount, on 31.5.2012. The balance amount was to be deposited in five six-monthly equal instalments. On 15.10.2012 the opposite party issued Memo No.1078 in which it was clearly mentioned that this shop was under First Appeal No.1405 of 2014. 4
construction and after the completion of the construction thereof, the possession would be handed over to him, for which the letter shall be issued and interest would be charged on the principal amount after the issuance of the letter of possession. The Schedule for the payment of instalments was also issued to him and as per that Schedule, the first instalment was to be paid on 14.4.2013. The possession of the shop was offered to him, vide letter No.1188 dated
3.12.2012 and he was asked to take the possession on or before 15.12.2012 and failing that the interest was set to be charged from 16.12.2012. The opposite party failed to complete the construction of the site and also failed to construct the bathrooms, boundary wall, parking and roofs. There is space between the roof of the shop at the ground floor and floor of the shop on the first floor, but it failed to construct the stairs to go to the shop at the first floor from the shop at the ground floor. He paid the instalment of Rs.5,30,000/- and Rs.1,49,000/-, vide receipts dated 3.4.2013 and 16.4.2013, respectively, under protest. The second instalment was payable on 14.10.2013 but the opposite party failed to complete the construction of the site and the construction of boundary wall etc. till the filing of the complaint. On 14.10.2013 he made a request to the opposite party not to charge the interest on account of the non-completion of the said construction but it refused to do so and threatened that in case of non-payment of the instalment and the interest, as per the Schedule, the allotment of the shop in his favour would be cancelled and the amount so deposited by him would be forfeited. The opposite party did not provide any lighting facility in the parking, First Appeal No.1405 of 2014. 5 verandahs and failed to provide Peon/Chowkidar and in the absence thereof, it is very difficult for him to start his business or to give the shop on rent for earning his livelihood. He made a number of verbal requests to the opposite party to raise the said construction and to provide the basic amenities but it failed to do so.
3. The complaint was contested by the opposite party by filing written reply before the District Forum. In the written reply it admitted that the Scheme, as mentioned in the complaint, was executed by it and that the open auction was held for the allotment of the shops, in which shop No.14 was purchased by the complainant for Rs.34,84,000/-. It also admitted the payment of earnest money and 25% of the price of the shop by the complainant and the issuance of the memos mentioned in the complaint. While denying the other allegations made in the complaint, it pleaded that as per condition No.7 of the allotment letter, it is the owner of the roof of the property so purchased by the complainant and after raising the construction over the roof and completing the construction, the letter was issued to the complainant to get the possession and failing that to pay the interest on the remaining instalments. He was also informed, vide letter dated 27.2.2013, to execute the sale agreement with it within one month of the date of the issue of allotment letter but he failed to execute the same. The bathrooms have already been constructed at the spot. However, the taps etc. were not fixed, as the same could be stolen by some unknown persons. It is ready to fix those taps etc. in case the purchasers open their respective shops. The site was commercial one and, as such, the boundary First Appeal No.1405 of 2014. 6 wall was not to be constructed and there was no such commitment. The parking is complete and has been provided with lights. The complainant is bound to pay the remaining instalments and in case of non-payment thereof, the allotment of the shop in his favour would be cancelled. There was no commitment by it to provide Peon/Chowkidar and false allegations have been levelled against it. It also pleaded that the complainant has no cause of action to file this complaint and the same is not maintainable in the present form. He is not a 'consumer' as per the Act and has not come to the District Forum with clean hands and is guilty of suppressing the true and material facts. He is estopped by his own act and conduct from filing this complaint. Complicated questions of law and facts are involved, which cannot be decided in summary manner and, as such, the District Forum has no jurisdiction to entertain and decide this complaint. Such like disputes can only be decided by the Civil Courts. It prayed for the dismissal of the complaint with special costs of Rs.5,000/-.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf dismissed the complaint, vide aforesaid order.
5. We have heard learned counsel for the appellant/complainant and have carefully gone through the records of the District Forum, which were called for at the time of admission stage of the appeal.
6. It has been submitted by the learned counsel for the complainant that the District Forum did not appreciate the averments First Appeal No.1405 of 2014. 7 made in the complaint and the evidence produced in support of those averments before recording findings in favour of the opposite party. The opposite party was to provide the facilities, such as, the construction of the boundary wall, bathrooms and providing of proper parking space. It was also required to provide a Peon/Chowkidar but failed to do so. The other basic amenities such as water supply and sewerage etc. have not been provided. This amounts to deficiency in service and for the same the complainant was not only entitled to the compensation but was also entitled to the direction to be issued against the opposite party to raise the construction of boundary wall etc. The District Forum committed an illegality by recording the findings that the bathrooms have already been constructed and there is proper provision for lighting etc. He further submitted that till the said amenities were provided the opposite party was not entitled to the interest on the amount of balance instalments and the complainant cannot be compelled to pay the interest on those instalments. In support of his argument, he placed reliance on the judgment of the Hon'ble Supreme Court reported in AIR 2014 Supreme Court 1766 (Haryana State Agricultural Marketing Board v. Bishamber Dayal Goyal and others).
7. In support of the allegations made in the complaint, the complainant proved on record his affidavit Ex.C-2. To further support those allegations, he proved the photographs Ex.C-15 to Ex.C-20 and also proved on record the affidavit of Pardeep Kumar, Photographer, Ex.C-24, who had taken those photographs. He also proved on record other documents but the same are not relevant so First Appeal No.1405 of 2014. 8 far as the submissions raised by the learned counsel for the complainant before us are concerned.
8. On the other hand, the opposite party proved on record the affidavit of Balbir Singh, J.E. as Ex.OP-1 in support of the averments made in the written reply. It also proved on record the photographs Ex.OP2 to Ex.OP9 in support of the averments that the construction is complete at the spot and that the bathrooms have also been constructed and all the fittings have been fitted therein.
9. The amenities, which according to the complainant, were to be provided by the opposite party are not mentioned in the allotment letter dated 15.10.2012 proved on the record as Ex.C-2. The pamphlet issued for the auction of the shops was proved as Ex.C-1 and at the time of the arguments, learned counsel for the complainant referred to condition Nos.8 and 9 thereof. As per condition No.8, it were the shops under construction, which were being auctioned and the possession thereof was to be given to the auction purchasers after the completion of that construction. As per condition No.9, the Schedule of payment was to be issued, along with the allotment letter and till the delivery of possession of the shop the interest was not to be received from the auction purchaser. It was also incorporated that in case of non-payment of instalments by the due date the interest would be charged. The condition regarding the payment of interest is also incorporated in the allotment letter Ex.C-2.
10. Even if there was no provision for providing basic amenities in that pamphlet or allotment letter, even then those were to be First Appeal No.1405 of 2014. 9 provided by the opposite party for the proper use of the shop. In Bishambar Dayal Goyal's case (supra) the position was similar. The plots were sold in open auction and in the complaint filed by one of the auction purchasers, he claimed the non-providing of basic amenities, such as sewerage, electricity, roads etc. amounted to deficiency in service. It was held by the Hon'ble Apex Court that as the allotments were made when the plots were in the development stage on the condition that those would be used only after completion and trading of grains, so that auction was different from a free public auction or an auction on "as is where is basis" and in such a scenario the opposite party, as service provider, was obliged to facilitate the utilization and enjoyment of the plot, as intended by the allottees. It becomes very much clear from this judgment that even if there was no such condition in the pamphlet of auction or in the allotment letter, still the basic amenities such as electricity, water supply, sewerage facilities, roads etc. were to be provided by the opposite party.
11. The complainant did not allege in his complaint that the basic amenities such as water supply, sewerage, electricity, roads etc. have not been provided by the opposite party but while making prayer for issuance of direction, he also prayed for issuance of direction to provide the amenities (water supply and sewerage). In the absence of any allegation in the complaint itself, he could not have made such a prayer. There was no occasion for the District Forum to adjudicate that question, as no evidence in support of that direction was produced by the complainant.
First Appeal No.1405 of 2014. 10
12. The main stress of the complainant in the complaint is on the other amenities such as construction of boundary wall, staircase and providing of parking place and proper lighting etc. There was no such condition for the construction of the boundary wall. It is not the case of the complainant that common stairs have not been provided, as it is very much apparent from the photographs that there cannot be provision for independent staircase to each and every shop. From the evidence produced by the opposite party, consisting of the affidavit of the J.E. and the photographs, it stands proved that bathroom have already been constructed and the sanitary fittings have already been fitted therein. Correct findings to that effect were recorded by the District Forum and there is no ground for upsetting those findings.
13. Once it was held that the construction of the shop was complete at the spot, the complainant was bound to take the possession thereof, when the same was offered to him. He himself has alleged in the complaint that the letter dated 3.12.2012 was received by him and vide that letter, he was asked to take the possession of the shop by 15.12.2012. That letter was proved on the record by the opposite party as Ex.OP10. It is clearly mentioned in that letter that the interest shall be charged on the instalment payable by the complainant as the possession has already been offered. In these circumstances, it does not lie in the mouth of the complainant to allege that he is not liable to pay such interest. First Appeal No.1405 of 2014. 11
14. From our above discussion, we conclude that there is no merit in this appeal to be heard on merits and the same is dismissed in limine.
15. In view of the findings recorded in the above said appeal, the other two appeals are also dismissed in limine.
(JUSTICE GURDEV SINGH)
PRESIDENT
(MRS. SURINDER PAL KAUR)
January 15, 2015 MEMBER
Bansal