State Consumer Disputes Redressal Commission
Nirbhai Singh Gill S/O Sh. Pohla Singh ... vs Punjab Urban Development Authority on 29 January, 2010
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SCO NO.3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.1370 of 2006
Date of Institution: 02.11.2006.
Date of Decision: 29.01.2010.
Nirbhai Singh Gill S/o Sh. Pohla Singh Gill, R/o Kothi No.35, Phase-II, Urban
Estate, Model Town, Bathinda.
.....Appellant.
Versus
Punjab Urban Development Authority, Bathinda, through its Estate
Officer/Administrator (Urban Estate), Punjab Urban Development Authority,
Bhagu Road, Bathinda.
.....Respondent.
First Appeal against the order dated
28.07.2006 of the District Consumer
Disputes Redressal Forum, Bathinda.
Before:-
Lt. Col. Darshan Singh (Retd.), Presiding Member.
Sh. Piare Lal Garg, Member.
Present:-
For the appellant : Sh. Sanjiv Ghai, Advocate with
Smt. Manjit Kaur, Representative
For the respondent : Sh. Balwinder Singh, Advocate.
PIARE LAL GARG, MEMBER:-
This order will dispose of two appeals i.e. First Appeal No.1169 of 2006 (Punjab Urban Development Authority, Bathinda Vs Nirbhai Singh Gill) and First Appeal No.1370 of 2006 (Nirbhai Singh Gill Vs Punjab Urban Development Authority, Bathinda) as the same are preferred against the same impugned order dated 28.07.2006 passed by the learned District Consumer Disputes Redressal Forum, Bathinda(in short, "the District Forum"). The facts are taken from 'First Appeal No.1370 of 2006' and the parties would be referred by their status in this appeal.
First Appeal No. 1370 of 2006 2
2. Brief facts of the case are that in the year 1971, the appellant had applied with the respondent for allotment of a plot measuring 1 Kanal vide his application which was registered at No.DC-7 dated 15.10.1971. The appellant had deposited a sum of Rs.1250/- i.e. 10% of the total cost of the plot as earnest money @ Rs.25/- per sq.yd. In the year 1981, the respondent sent a letter vide memo No.4197 dated 06.03.1981 informing that the price of the plot in Phase-II had been fixed @ Rs.66/- per sq.yd. The appellant was asked to deposit the balance amount within 30 day to make up the deficiency in 10% of the amount of total cost of the plot. The appellant had deposited that amount with the respondent vide bank draft No.TT 385211 dated 12.05.1981. Despite this, the plot was not allotted to the appellant. It was pleaded that the respondent vide letter No.2373 dated 16.9.1993 informed the appellant that the price of plots in Phase-II was raised from Rs.66/- per sq. yds. to Rs.950/- per sq.yd. It was further mentioned in that letter that in order to be considered for the draw of lots, the appellant would have to deposit an additional amount as earnest money to make up the deficiency in 10% of the total price of the plot. The appellant was further informed that in case the option was not exercised by 30.09.1993, the amount deposited earlier by him would be refunded and his application would be filed. Accordingly, the appellant deposited an amount of Rs.44,200/- with the respondent on 28.09.1993. Affidavit regarding income of the appellant, as demanded by the respondent vide their letter No.22006 was also furnished to the respondent. In the month of July, 1998, the respondent had enhanced the rate of plots and fixed the price as Rs.2100/- per sq.yd. The appellant was asked to deposit the balance amount to make up the deficiency in 10% of the total price of the plot as earnest money. Therefore, the appellant deposited Rs.57,500/- vide draft No. 983187 dated 03.08.1998 for making total earnest money as Rs.1,05,000/-. The plot No.35 measuring 500 sq.yds. @ Rs.2100/- per sq.yd. in Phase-II, Urban Estate, Bathinda, vide memo No.116 dated 11.01.1999 was allotted to First Appeal No. 1370 of 2006 3 the appellant by the respondent. It was alleged by the appellant that the respondent had allotted plots to some of the allottees in Phase-II, Urban Estate, Bathinda in January, 1994 @ Rs.950/- per sq.yd. Feeling himself discriminated at the hands of the respondent, the appellant had moved an application to the respondent on 26.03.1999 but no reply was given by the respondent. However, vide memo no.116 dated 11.01.1999, the respondent had intimated the appellant that the allotment was strictly under the provisions of the Punjab Urban Planning and Development Authority Act, 1995 (hereinafter to be referred as "Act, 1995") and the rules/polices framed thereunder from time to time. Possession of the plot was handed over to the appellant on 31.10.2002. The respondent vide letter dated 30.07.2003 informed the appellant that the construction of his house on the plot allotted, was not complete as per inspection held by their officials on 31.12.2002. Whereas according to the appellant, nobody had inspected his house on that day. In fact, one set of house on the plot including room, kitchen, bathroom, garage and porch was constructed there and water supply was also existing. As required by the respondent vide their letter No.3770 dated 06.09.2004, the appellant had also produced the electricity bill from 15.11.2002 to 27.01.2003 in respect of his house. The respondent vide letter dated 30.07.2003 demanded non-construction fee for the year 2002 to the tune of Rs.26,500/-. The appellant had to pay the same under the threat of cancellation of allotment. Thereafter, the appellant moved an application seeking waiving of the non-construction fee/penalty for that year. However, the respondent had declined this request of the appellant vide its letter dated 05.10.2004. As per terms and conditions of the allotment letter, three years time was given for construction on the ground floor. As per allotment letter Rs.3/-, Rs.4/- and Rs.5/- per sq.yd. were to be charged as non-construction fee for the first, second and third year, respectively. However, the respondent had illegally charged Rs.26,500/-. Request of the appellant for refund of the amount was First Appeal No. 1370 of 2006 4 also not acceded to. At the time of moving application for allotment, the respondent had promised to provide all the amenities such as green belt area, good roads, street lights, shopping complex and parks but they failed to provide the same. The appellant moved an application with the respondent to issue Occupation Certificate to him but they refused to issue the same on the ground that unless the appellant pay the non-construction fee for the year 2003, the same can not be issued. According to the appellant, the demand of non-construction fee raised by the respondent for the years 2003 and 2004 was arbitrary, illegal and against the provisions of the Act and natural justice. The appellant was entitled to get the Occupation Certificate without depositing any non-construction fee because he had completed the construction of his house well before 31.12.2002 and had submitted the requisite documents to the appellant. The appellant was paying the electricity, water and telephone bills. It was further pleaded that due to deficiency in service on the part of the respondent, the appellant had suffered mentally as well as physically and prayed that the respondent be directed to refund the difference in rate of price of the plot charged from the appellant and other allottees, Rs.26,500/- charged on account of non-construction fee, issue Occupation Certificate to the appellant and to pay Rs.50,000/- as compensation on account of mental tension and Rs.10,000/- as litigation charges to the appellant.
3. The respondent replied by taking preliminary objections that the appellant was not a 'consumer', the District Forum had no jurisdiction under the PUDA Act of 1995, no statutory notice was served before filing the complaint, it was prerogative of the respondent/department to amend/revise/rescind the policies from time to time, deposit made by the appellant does not debar the respondent to revise the policy, prevailing rates at the time of allotment were charged from the allottee, plot was allotted on 11.01.1999, possession was delivered on 31.10.2002, site plan was passed on 17.12.2002, only after demarcation of the plot was given by the Junior First Appeal No. 1370 of 2006 5 Engineer, boundary wall was to be constructed, house could not be completed within 14 days in the covered area of 2599.5 sq.ft. on the ground floor as such, the complaint was false. On merits, it was admitted that the appellant had applied for allotment of the plot. The rate was enhanced from Rs.25/- per sq. to Rs.66/- per sq.yd., then Rs.66/- per sq.yd. to Rs.950/- per sq.yd. and again from Rs.950/- per sq.yds. to Rs.2100/- per sq.yd. It was admitted that plot no.35 measuring 500 sq. yds. was allotted to the appellant in Phase-II, Urban Estate, Batinda. The allotment was under the provisions of the PUDA Act of 1995 and rules and polices framed thereunder. It was pleaded that the non-construction charges were raised in accordance with rules and were not exhorbitant. The appellant was bound to pay the non- construction charges for the year 2003 and 2004. Remaining allegations of the complaint were denied being wrong and incorrect. It was further pleaded that there was no unfair trade practice on the part of the respondent and it was prayed that the complaint may please be dismissed with costs.
4. Learned District Forum after hearing the learned counsel for the parties and going through the record, partly allowed the complaint and directed the respondent as under:-
(i) Issue letter/notice to the respondent within 15 days after the receipt of copy of this order regarding the amount of non-construction fee due towards him for the year 2003 and for the period from 01.01.2004 to 15.07.2004 after calculating the same as per rule 13.3 of the Rules,1995.
(ii) Issue Occupation Certificate to the respondent within 15 days after the amount calculated as mentioned above, is deposited by him.
5. Hence, the appeal.
6. We have gone through the pleadings of the parties, perused the record of the District Forum and heard the arguments of the learned counsel for the parties.
First Appeal No. 1370 of 2006 6
7. Learned counsel for the appellant Sh. Gurjit Singh, Advocate made a statement on 26.7.2006 that the complainant does not seek the relief of refund of the amount of difference in the rate of price of the plot charged from him and from other allottees, as such, the relief of the appellant for the refund of the amount of difference in rate of rice of the plot charged from him and from other allottees is dismissed as given up by the appellant.
8. There is no dispute between the parties that Plot No. 35 of 500 Sq. Yds. In Phase II, Urban Estate, Bhatinda was allotted to the appellant by the respondent vide letter Ex. C-27 @ Rs. 2100/- per sq. yd.. There is also no dispute between the parties that the possession of the same was handed over by the Junior Engineer of the respondent to the appellant on 31.10.2002 vide possession letter Ex. C-31.
9. A demand of Rs. 26,500/- as non-construction fee for the year 2002 was raised by the respondent from the appellant and the same was deposited by the appellant with the respondent vide Ex. R-9 dated 24.10.2002 and receipt No. 71 dated 12.11.2002(Ex. C-51) was issued by the respondent to the appellant to this effect. The appellant moved an application Ex. C-47 for the refund of Rs. 26,500/- to the respondent, which was declined by the respondent vide letter Ex. C-43 dated 5.10.2004.
10. The amount of Rs. 26,500/- was deposited by the appellant on 24.10.2002 without any protest and the complaint for the refund of the same was filed by the appellant on 30.3.2006 beyond the limitation of 2 years. No application for the condonation of delay was filed by the appellant at the time of filing the complaint, as such, we are of the view that the complaint of the appellant was not within the limitation for the refund of Rs. 26,500/- which was deposited by the appellant on 24.10.2002.
11. We find no infirmity in the order of the District Forum for declining the prayer of the appellant for the refund of Rs. 26,500/- and we affirm the same.
First Appeal No. 1370 of 2006 7
12. Now the dispute is between the parties:-
(i) Whether the appellant has completed the construction of his house upto 31.12.2002 or not?
(ii) Whether the respondent is entitled to recover the non-
construction fee from the appellant from 1.1.2003 till 15.7.2004 or not?
13. There is no dispute between the parties that the appellant submitted the site plan of the building to the respondent which was sanctioned on 17.12.2002. The appellant applied for the issuance of 'Occupation Certificate' to the respondent on 27.12.2002 and also submitted the Completion Certificate(Ex. R-4) dated 27.12.2002 issued by Bhupinder Pal Singh, Architect.
14. The version of the respondent is that on receipt of application for the issuance of 'Occupation Certificate', on 31.12.2002 Laxman Singh Kang, Junior Engineer had inspected the spot and he found that the construction was incomplete and the work was still going on. Vide letter Ex. C-37 dated 30.7.2003, the appellant was informed by the respondent that the house of the appellant was inspected by the Estate Officer personally on 31.12.2003 and it was found that the construction of the building was not complete. Rule No. 10 of the Punjab Urban Planning & Development Authority (Building) Rules, 1995(in short, 'the Rules') relates to the issuance of 'Occupation Certificate' to the allottees by the respondent. Rule No. 10 of the abovesaid rule is reproduced as under:-
"10. Occupation Certificate. [Section 180(2)(i)] - (1) Every applicant on completion of the building works according to the building plan shall give notice of completion in form 'B' and furnish and completion certificate in Form 'C' through his architect to the Competent Authority for issuing the occupation certificate. First Appeal No. 1370 of 2006 8 (2) The Competent Authority shall, within thirty days from the date of receipt of the application shall either issue the occupation certification or reject the application giving reasons for such rejection in Form 'D':
Provided that the applicant shall remove or destroy any temporary building which might have been erected and the debris from the site and adjoining roads or vacant site before the occupation certificate issued: Provided further that partial occupation certificate may be granted for partially constructed building within one habitable room, one water closet and one bath room."
15. As per sub-clause (2) of Rule 10 ibid, it was mandatory for the Competent Authority to either issue the 'Occupation Certificate' or reject the application of the applicant within 30 days from the date of receipt of the application for the issuance of 'Occupation Certificate'.
16. It is admitted version of the respondent that the appellant applied for the issuance of 'Occupation Certificate' on 27.12.2002 and letter Ex. C-37 was issued to the appellant by the respondent on 30.7.2003 vide which he was informed that the construction of his building was not complete at the time of inspection by the Estate Officer.
17. The appellant also produced the various noting of the office of the respondent, which are placed at pages No. 29 to 32 of the appeal which were obtained by the appellant from the office of the respondent under Right to Information Act. The noting of the office of the respondent dated 22.4.2005 and 5.5.2005 establishes that the appellant had completed the construction upto 31.12.2002, which is also proved from the noting of the Estate Officer dated 5.5.2005. The English translated version of the noting of the Estate Officer is reproduced as under:-
First Appeal No. 1370 of 2006 9
" In reference to the aforesaid it is intimated that construction of the aforesaid plot had taken place on 31.12.02. The bill of electricity which was presented at NP-10 its reading is of 15.11.02 to 27.01.03 and account number is ZC 45/059-B. From the aforesaid it is clear that construction had been completed upto 31.12.02. Therefore, occupation certificate is liable to be dismissed.
Sd/- 05.05.05.
Sd/- Supdt./05.05.05 As Proposed.
Sd/- (Pirthi Singh)/05.05.05"
18. So it is very much clear that the construction of the building of the appellant was complete upto 31.12.2002 but the respondent has not issued the 'Occupation Certificate' to the appellant and violated Sub-Rule (2) of Rule 10 of 1995 rules ibid.
19. There is no version of the respondent nor produced any evidence that the appellant has not applied for the issuance of the 'Occupation Certification' as per the rules.
20. In support of his version that the construction was completed before 31.12.2002, the appellant has tendered into evidence copies of electricity, sewerage and water consumption bills. It is established from these documents without any doubt that the appellant had completed the construction of the building before 31.12.2002.
21. So as per above discussion, we are of the opinion that the appellant is not liable to pay non-construction fee to the respondent for the period subsequent to 31.12.2002.
22. In view of the above discussion, the appeal of the appellant- Nirbhai Singh is partly accepted and the order dated 28.7.2006 of the District Forum is modified to the above extent.
First Appeal No. 1370 of 2006 10First Appeal No. 1169 of 2006
23. In view of the findings recorded in First Appeal No. 1370 of 2006, we find no merit in the appeal of the PUDA and the same is dismissed with no order as to costs.
24. The arguments in these appeals were heard on 25.1.2010 and the orders were reserved. Now the orders be communicated to the parties.
25. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
26. Copy of this order be placed on First Appeal No.1169 of 2006 (Punjab Urban Development Authority, Bathinda Vs Nirbhai Singh Gill).
(Lt. Col. Darshan Singh [Retd.])
Presiding Member
January 29 , 2010. (Piare Lal Garg)
as Member
First Appeal No. 1370 of 2006 11