State Consumer Disputes Redressal Commission
Bathinda Development Authority vs Sukhdesh Kaur on 15 November, 2017
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.423 of 2017 Date of Institution: 07.06.2017 Order Reserved on : 14.11.2017 Date of Decision : 15.11.2017 1. Bathinda Development Authority, Bhagu Road, Bathinda through its Estate Officer. 2. Punjab Urban Development Authority, Bathinda through its Chief Administrative Officer. 3. Punjab Urban Development Authority, Ferozepur, through its Estate Officer. Appellants/Opposite parties no.2, 3 and 4 Versus 1. Sukhdesh Kaur aged 56 years daughter of Baljinder Singh, now resident of # 51, Model Town, Ferozepur City, Tehsil and District Ferozepur, Mobile no. 98889-36531 Respondent no.1/Complainant 2. Local Self Government, State of Punjab, Chandigarh through its Secretary. Respondent no.2/Opposite party no.1 First Appeal against order dated 02.02.2017 passed by the District Consumer Disputes Redressal Forum, Ferozepur Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Smt.Surinder Pal Kaur, Member Present:-
For appellants : Sh.Balwinder Singh, Advocate For respondent no.1 : Sh. Raman Goklaney, Advocate For respondent no.2 : Ex-parte J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by the appellants is to order dated 02.02.2017 of District Consumer Disputes Redressal Forum Ferozepur, directing the appellants to refund the amount received by them, as price of the plot along with interest @ 12% p.a from the date of deposit till its actual payment to respondent no.1 of this appeal with composite amount of Rs.5000/- as compensation for harassment and litigation expenses. Respondent no.1 of this appeal is complainant in the complaint and respondent no.2 of this appeal is opposite party no.1 in the complaint and the appellants of this appeal are opposite parties no.2 to 4 in the complaint before District Forum Ferozepur and they be referred as such, hereinafter for the sake of convenience, as arrayed in the complaint.
2. The complainant has filed complaint U/s 12 of Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that opposite party no.2 /Bathinda Development Authority through its Estate Officer invited applications for allotment of residential plots at SDE Residential Colony Mudki Road Faridkot. Baljinder Singh father of the complainant applied for allotment of plot, vide application with 10% of earnest money with OP no.2 and he expired on 26.05.2011. He executed a registered WILL dated 01.12.2009 in favour of the complainant qua plot no.6-C measuring 200 sq. yard situated at SDE residential colony Mudki Road, Faridkot, which is in dispute in this case. The complainant is, thus, consumer of OPs being LR of late Baljinder Singh allottee. The complainant applied for transfer of the above said plot in her favour on the basis of above WILL dated 01.12.2009 executed by original allottee Baljinder Singh her father, to OP no.2 , vide application form no. 410 after completing all the formalities. The total sale price of the plot was Rs.9,33,000/-and father of the complainant deposited Rs.2,33,250/- being 25% of the total amount including earnest money of 10% with OPs. Rest of the amount was to be paid by her father in installments with interest @ 12% per annum to OP no.2. Above father of the complainant, thus, deposited an amount of Rs.11,21,935/- with OP no.4 , vide memo no. 121 dated 22.01.2007 and above payment was made through various cheques. As per allotment letter, it was intimated that plot would be developed and possession would be delivered along with all the facilities in the developer area to the allottee. The complainant visited the spot and found no development work on the plot thereat and no facility was in existence either on the spot. The complainant requested OPs either to refund the deposited amount of Rs.11,21,935/- with agreed rate of interest @ 12% p.a or to deliver the possession of the plot to her being legal representative of her father Baljinder Singh. OPs neither refunded the deposited amount of Rs.11,21,935/- with agreed rate of interest 12% p.a nor delivered the possession of the allotted plot to her. OPs wrongly and illegally issued letter no. 4806 dated 07.08.2015 to her for depositing further amount of Rs.1,49,061/-, which is totally unwarranted. The complainant has prayed that OPs be directed to refund the amount of Rs.11,21,935/- deposited by complainant's side with interest @ 12% p.a from the date of deposit till its realization or to register the sale deed/transfer deed of plot no. 6-C in her favour by ignoring letter no. 4806 dated 07.08.2015 as null and void. The complainant further prayed for compensation of Rs.2 lac for unfair trade practice and deficiency in service of OPs and for mental harassment and Rs.22,000/-as costs of litigation.
3. OP no.1 was set expaerte before District Forum, vide order dated 15.11.2016.
4. Opposite parties no. 2 to 4 appeared and filed written reply raising preliminary objections that there is no dispute for adjudication in this case and complaint is, thus, not maintainable. The Forum at Ferozepur has no territorial jurisdiction to try the complaint, as the cause of action accrued at Village Mudki in District Faridkot. It was denied that complainant is consumer of OPs. The complaint is alleged to be barred by time. It was further contended in preliminary objections that PUDA Ferozepur is not involved in the dispute and has been deliberately impleaded as a party unnecessarily. On merits, OPs no.2 to 4 pleaded that one Baljinder Singh applied for allotment of plot, as alleged. The complainant represented herself being daughter of above Baljinder Singh and filed copy of registered WILL in her favour. This fact was vehemently denied by OPs no.2 to 4 that there was no development or basic facilities on the spot. It was denied that complainant ever requested OPs, as pleaded in the complaint by her. The complainant gave application dated 06.07.2015, in response to which letter no. 4806 dated 07.08.2015 was issued by Estate Officer PUDA Bathinda to complainant intimating that amount of Rs.149061/- was due against the plot no.6 and complainant being legal representative of Baljinder Singh is liable to pay this amount, being non-construction charges for the allotted plot for the period 2010 to 2015. The complainant never deposited the non-construction charges even after that period also and calculations thereafter is still to be made up to date, when construction is to be made over the plot in question. Clause 4 of the conditions are clear that possession of the plot shall be handed over to allottee within 90 days of issue of allotment letter provided 25% of the saleable price has been paid. If possession is not taken by the allottee within stipulated period, it shall be deemed to have been handed over on expiry of said period. As per above instructions issued by OPs, possession of the plot is already with the complainant's side. The entitlement of the complainant for refund of the amount was totally contested by OPs. It has been further averred that complainant is bound to pay the non-construction fee to OPs. OPs no.2 to 4 and thus, prayed for dismissal of the complaint.
5. The complainant tendered in evidence her affidavit Ex.C-5 along with copies of documents Ex.C-1 to Ex.C-19. As against it; OPs No.2 to 4 tendered in evidence affidavit of Gurjant Singh Estate Officer PUDA Bathinda Ex.OP 2to4/1 and closed evidence. On conclusion of evidence and arguments, the District Forum Ferozepur accepted the complaint of the complainant by virtue of order dated 02.02.2017. Dissatisfied with the order of the District Forum Ferozepur, opposite parties no.2 to 4 now appellants, carried this appeal against the same.
6. We have heard learned counsel for the parties at considerable length and have also examined the record of the case. The submission of counsel for the appellants is that District Forum Ferozepur has no territorial jurisdiction to try and decide the complaint and as such it has decided the case without any territorial jurisdiction. The order of the District Forum has been assailed by counsel for the appellants on this score before us. On the other hand, counsel for respondent no.1/complainant argued that since partly payment of some of the installments was made at Ferozepur and hence cause of action partly accrued at Ferozepur and hence the District Forum Ferozepur has jurisdiction to try the complaint. OPs now appellants raised specific objection in their written version before District Forum that it has no territorial jurisdiction to try the complaint, because subject matter in dispute is situated at village Mudki in District Faridkot only. The OPs now appellants in the written version questioned the territorial jurisdiction of District Forum Ferozepur. Undoubtedly, the plot no. 6-C SDE Faridkot is situated at Mudki in District Faridkot. It is located within the territorial jurisdiction of District Forum Faridkot only. The complainant wanted to show jurisdiction of District Forum Ferozepur on the ground that partly some installments were paid at Ferozepur and hence cause of action in part accrued thereat. We have perused the documents on the record. Ex.C-3 is application form regarding transfer of the property on the basis of registered/unregistered WILL. Estate Officer Bathinda wrote letter to complainant, vide Ex.C-4. The complainant Sukhdesh Kaur stated that the office of OP no.4 is situated at Ferozepur and amounts in question were also deposited by her at Ferozepur and hence the District Forum Ferozepur has jurisdiction to try the complaint. Section 11 of the Consumer Protection Act, 1986 , deals with the jurisdiction of District Forums, which is reproduced as under:-
1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed (does not exceed rupees twenty lakhs).
2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction :-
a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or personally works for gain, or
b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or (carry on business or have a branch office) or personally works for gain, provided that in such either the permission of the District Forum is given, or the opposite parties who do not reside, or (carry on business or have a branch office) or personally work for gain, as the case may be , acquiesce in such institution ; or
c) the cause of action , wholly or in part, arises.
It is, thus, evident from perusal of Section 11 of the Consumer Protection Act, 1986 that complaint shall be instituted in the District Forum, where any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily reside or personally works for gain or cause of action wholly or in part, arises. Some of the installments were deposited by father of the complainant being original allottee of the plot at Ferozepur in the office of OP no.4 and they were duly credited in the account of OPs no. 1 and 2 and hence cause of action partly arose at Ferozepur with the payments of some of the installments paid by the complainant's side to OPs. The cause of action, thus, in part arose at Ferozepur, where the installments were received by the office of OPs through OP no.4 and as such in view of Section 11 Clause 2 (C) of Consumer Protection Act, the District Forum rightly arrived at conclusion holding that District Forum Ferozepur has jurisdiction to try the complaint, as cause of action partly arose within its jurisdiciton.
7. Now, we proceed to decide this point, as to whether the complainant is entitled to seek refund of the amount deposited by her father with OPs or in the alternative for a direction to OPs to execute and register sale deed of the plot no. 6-C in favour of the complainant by treating letter no.4806 dated 07.08.2015 as null and void. The complainant seeks refund of the amount being legal representative of Baljinder Singh her father on the basis of the WILL Ex.C-2. We cannot look into the validity of the WILL like a Civil Court and it is prima facie taken to be correct unless it is proved to the contrary before competent forum by any of the affected parties thereby. The complainant is, thus, legal representative of Baljinder Singh and original allottee at the first blush for the purpose of disposal of this appeal. Baljinder SIngh applied for allotment of the plot with OPs no.1 and 2 and he has since been expired on 26.05.2011, vide death certificate Ex.C-1. He moved an application with OP no.2, vide Ex.C-2 on the record. He had been depositing the installments with OPs, vide Ex.C-6 to Ex.C-13 on the record. Plot no. 6-C was allotted to him, vide Ex.C-14, which is allotment letter on the record. The submission of counsel for the complainant before us in this appeal is that OPs have not raised any development in the project nor provided any basic amenities and facilities therein and hence complainant is entitled to seek refund of the deposited amount or in the alternative direction to OPs to register the conveyance deed in her favour being LR of original allottee by setting aside the demand raised by them of Rs.1,49,061/- for non-construction charges by virtue of letter Ex.C-4 dated 07.08.2015. The complainant has stated in her affidavit that OPs have not raised any development nor provided any basic amenities or facilities in the project where plot in dispute is located. On the other hand, it has been argued by counsel for OPs that development has been carried out and basic amenities have been provided in the area, where plot is located. The onus is on the complainant to prove that development has not been provided by OPs on the project in dispute. We find that there is mere affidavit of the complainant on the record to prove this fact, which has been equally rebutted by affidavit of Gurjant Singh Estate Officer Bathinda PUDA, vide Ex.OP2 to 4/1 on the file. Estate Officer categorically denied non-development of the area and non-providing of basic facilities thereat. The evidence furnished by the complainant on oath in affidavit has been equally rebutted by Estate Officer PUDA on oath. We have to look for some other independent evidence on the record to give the finding, as to whether the development work has not been done by OPs and basic amenities have not been provided therein. There is no independent evidence on the record other than affidavit of complainant, which has been rebutted by the affidavit of Estate Officer PUDA. Consequently, we record this finding that complainant failed to prove it on record that OPs have not carried out any development in the area and nor provided any facilities therein.
8. The next submission of counsel for the complainant is that Sessions Judge, Faridkot wrote letter to OPs for not raising construction touching the boundary wall of Session Court at Faridkot. The counsel for the complainant relied upon letter addressed to Registrar General Punjab and Haryana High Court Chandigarh, vide Ex.C-15 dated 04.12.2012 in this regard followed by another letter Ex.C-16 dated 21.05.2013 and another letter Ex.C-17 dated 19.07.2013. Letter of Executive Engineer to Administrator PUDA Bathinda Ex.C-18 and plan Ex.C-19. We find that plot no. 6-C is near Sessions House Faridkot, as shown in Ex.C-19 on the record. The counsel for OPs now appellant cited judgment of Punjab and Haryana High Court in Tek Chand Arora versus Punjab and Haryana High Court Chandigarh in Civil Writ Petition no. 12630 of 2014 decided on 03.12.2014. The Hon'ble High Court observed in order in writ petition that construction of new Sessions House is yet to begin as it is still at the part of planning stage. The area purchased by the petitioner is 200 sq. yard, whereas the area of the Sessions House is seven acres. This construction cannot be planned in such area. It is open to the respondent to plan construction in such an area so as to protect Sessions House from any pursuable threat. Letter dated 04.12.2012 written by Sessions Judge Faridkot Ex.C-15 was quashed for not raising the construction. We find that plot no. 6-C which is adjacent to Sessions House as shown in the plan Ex.C-19 and as such some distance has to be left between the residence of the private houses and Sessions House for the purpose of protecting the Sessions House against the possible security threat.
9. It is a complex matter in our opinion, as to whether Sessions House, which would comprise of seven acres of land, could be conveniently shifted to some other place or not. We cannot ignore this fact it is not possible to find seven acres of land in the nearby vicinity of District for Sessions House construction. Consequently, we think that it would be safer to order the refund of the deposited amount with interest @ 12% p.a by OPs to complainant to protect her interest. The order of the District Forum on this count keeping in view the observations recorded in Civil Writ Petition No. 12630 of 2014 decided on 03.12.2014 is affirmed, as it would be far more convenient to refund the amount to complainant than shifting the huge Sessions House comprised of big chunk of land to some other far away area. The interest of litigants and Judicial Officers has to be duly taken into account by us by disposing of this appeal. No other point was urged or pressed before us during the arguments of this appeal by counsel for the parties.
10. As a result of our above discussion, we dismiss the appeal of the appellants by affirming the order of the District Forum Ferozepur dated 02.02.2017 under challenge in this case.
11. The appellant had deposited the amount of Rs.25,000/-with this Commission at the time of filing of the appeal. This amount with interest, which accrued thereon, if any, be remitted by the registry to respondent no.1/complainant of this appeal by way of a crossed cheque / demand draft after the expiry of 45 days. Remaining amount as per order of the District Forum, if any due, shall be paid shall be paid by the appellants/OPs to the complainant with 45 days from receipt of copy of this order.
12. Arguments in this appeal were heard on 14.11.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER November, 15 2017 (ravi)