State Consumer Disputes Redressal Commission
Chief Administrative, Punjab Urban ... vs Hari Dev Singh S/O Sh. Dawarka Dass, on 29 September, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 628 of 2006
Date of institution : 1.5.2006
Date of Decision : 29.9.2011
1. Chief Administrative, Punjab Urban Planning & Development Authority,
S.C.O. No. 63-64, Sector 17, Chandigarh
2. Additional Chief Administrative, Punjab Urban Planning &
Development Authority, Urban Estate Office, Opp. Tehsil Complex,
Jalandhar.
3. Estate Officer, Punjab Urban Planning & Development Authority,
Urban Estate Office, Opp. Tehsil Complex, Jalandhar
....Appellants.
Versus
Hari Dev Singh S/o Sh. Dawarka Dass, R/o House No. 31, Green Avenue,
Jalandhar-3
...Respondent.
First Appeal against the order dated 8.3.2006 of
the District Consumer Disputes Redressal Forum,
Jalandhar.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellants : Sh. Vikas Chatrath, Advocate
For the respondent : Sh. Surinder Sharma, Advocate for
Sh. Vikas Sharma, Advocate
PIARE LAL GARG, MEMBER:
This is an appeal filed by the appellants-PUDA (hereinafter called 'the appellants') against the order dated 8.3.2006 of the District Consumer Disputes Redressal Forum, Jalandhar (hereinafter called the 'District Forum') by which the complaint of the respondent/complainant (hereinafter called 'the respondent') was allowed by the District Forum.
2. Brief facts of the case are that the respondent had purchased MIG flat No. 626 from the appellants on 15.6.1998 after making full payment. The respondent had leveled allegations against the appellant that all the flats located in the vicinity were in a very bad condition as well First Appeal No. 628 of 2006 2 as flat No. 626 and he pointed out the defects to the Estate Officer, PUDA, who vide letter directed the SDO to remove these defects but nothing was done. Thereafter, the respondent met the S.D.O. alongwith letter dated 13.10.1998 and asked about the letter written by the Estate Officer, who replied to him that there was a shortage of funds as such, they were unable to remove the defects. The respondent informed about the same to the Estate Officer, who had not replied. Thereafter again he had written a letter dated 3.5.1999 to the Estate Officer, which was forwarded by him to the concerned Engineer of the PUDA and the respondent also explained the problem at the spot. On the basis of letter dated 1.7.1999, Divisional Engineer had written letters to their subordinates for removal of the defects but nothing was done. Again he had written a letter dated 24.12.1999 to the PUDA and stated that he was being physically, mentally and financially harassed by your office and requested to remove the defects immediately. He had written number of letters to the PUDA authorities but all in vain.
3. Estate Officer, PUDA had written letters to the Divisional Engineer (Civil) and other authorities in which he had told to their subordinates that it is disgusting/surprising that the applicant(respondent) had written letters for the last two years for rectifying the defects in his flat but the position was as it is. It was also pleaded that news was published in the newspaper for non-removable of the defects. The respondent was called in the office of Addl. Estate Officer on 25.5.2002 where he had applied for re-allotment of another plot No. 725 instead of 626 but they had refused to accept the offer of the respondent vide letter dated 23.10.2002. It was pleaded that the defects pointed out by him were not removed till date as such, the complaint was filed on the ground that the appellants were deficient in service and prayed that the amount paid for the purchase First Appeal No. 628 of 2006 3 of flat may be refunded to the respondent with 18% interest and compensation of Rs. 2,00,000/- was also prayed.
4. The appellants replied by taking preliminary objections that the complaint was time barred, the respondent had purchased the flat in an auction on the basis/condition of "as is where is" basis and the respondent was fully aware of the condition of the flat. The respondent wants to take the possession of flat No. 725 instead of flat No. 626, as such, he himself did not take the possession of the flat. It was averred that the respondent was informed vide letter dated 2.1.2001 that the defects were removed and the flat was ready for possession but the respondent failed to take the possession. It was denied that the respondent was entitled for refund of the amount or entitled for any compensation. All other allegations were denied and dismissal of the complaint was prayed.
5. Learned District Forum after hearing the learned counsel for the parties and going through the record, allowed the complaint with costs of Rs. 3,000/- and directed the appellants to refund the original price of the flat with 12% interest from the date of deposit till refund.
6. Hence, the appeal.
7. We have gone through the pleadings of the parties, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
8. The appellants have filed the present appeal on the grounds that the District Forum has failed to appreciate that the respondent was not the consumer of the PUDA, as per hire purchase agreement executed between the parties on 26.6.1998, it was clearly mentioned that the building was taken on "as is where is basis", and in these circumstances the complaint was not maintainable as the respondent had purchased the flat with his free mind without any coercion or fraud. The District Forum has First Appeal No. 628 of 2006 4 no territorial jurisdiction to try and decide the complaint, as such, the order of the District Forum is liable to be set-aside.
9. There is no dispute between the parties that MIC flat No. 626 was allotted to the respondent vide letter No. 137 dated 30.4.1998 on completion of the formalities by the respondent vide letter dated 1318-22 dated 26.6.1998 possession slip was issued in the name of the respondent. The respondent had not taken the possession of the same on the ground that there were defects in the construction. The Estate Officer vide letter dated 20.5.1998 directed the Technical Wing of the appellants for the removal of the defects but all in vain. Again the Estate Officer had written a letter Ex. C-3 dated 21.8.1998 to the Divisional Engineer, PUDA and the Sub Divisional Engineer, PUDA by which the above authorities were directed to remove the defects as pointed by the respondent but nothing was done by the Divisional Engineer as well as Sub Divisional Engineer, PUDA. After that so many letters were written by the respondent to the appellants for the removal of the defects in the flat allotted to him but the appellants failed to remove the same. Ultimately, the respondent had written letter to the appellants for the change of flat No. 626-GF to 725 but the request of the respondent was declined by the appellants vide letter Ex. C-26 dated 23.10.2002.
10. We have also perused the letter Ex. R-3 dated 2.1.2002 vide which the appellants had informed the respondent that the defects in the flat No. 626 had already been removed as per the report of the Technical Wing of the appellants but the respondent was not satisfied and as such, filed the complaint before the District Forum for the refund of the price of the flat with interest as well as for compensation.
11. There is no dispute that the respondent had himself applied for the allotment of Flat/House No. 626-GF vide his application dated First Appeal No. 628 of 2006 5 30.4.1998 and the request of the respondent was accepted by the appellants and Flat No. 626-GF was allotted to the respondent on "as is where is basis".
12. It is not denied by the respondent that he had not made the application for the purchase of MIG Flat No. 626 to the appellants and he must had inspected the same before applying for the allotment of the same to the appellants. If there were defects in the flat, than why he had applied for the purchase of the same. It is also not denied by the respondent that the flats were sold by the appellants to the allottees on "as is where is basis".
13. We have perused the letters issued by the appellants. After perusal of the letters of the appellants, it is clear that upto the year 2002 the correspondence between the appellants and respondent continued and vide letter No. 9957(Ex. R-5) dated 11.11.2002, the appellants declined the request of the respondent regarding the change of flat and intimated to the respondent regarding the same. The complaint was filed by the respondent on 25.11.2003 and the last communication was received by the respondent from the appellants in the year 2002, as such, the complaint was filed within two years. The objection raised by the appellants that the complaint was time barred is not correct and we are of the view that the complaint is within limitation.
14. We have also perused the letter Ex. R-3 dated 2.1.2002 by which the appellants had informed the respondents that the Technical Wing of the appellants had removed the defects from the flat in dispute. From this letter it reveals that there were some defects in Flat No. 626-GF, which was allotted by the appellants to the respondent. But on the other hand, the version of the respondent is that the defects were not removed First Appeal No. 628 of 2006 6 by the appellants from the flat in dispute. We are of the view that it is the duty of the appellants to remove the defects.
15. The respondent is not entitled for the refund of the price of the MIG Flat No. 626, which was purchased by him as per his own sweet will from the appellants and as per letter dated 2.1.2002 the defects were rectified by the appellants.
16. In view of the above discussion, the appeal is partly accepted. The order under appeal regarding the refund of the price of the flat as well as interest and compensation awarded is set-aside. But the appellants are directed to remove the defects of the flat, if any, within one month from the receipt of the copy of the order and hand over the possession of the same to the respondent without any delay after the removal of the defects. No order as to costs.
17. The arguments in this appeal were heard on 27.9.2011 and the order was reserved. Now the order be communicated to the parties.
18. The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. 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.
19. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Inderjit Kaushik)
Presiding Member
September 29, 2011. (Piare Lal Garg)
as Member