State Consumer Disputes Redressal Commission
The Faridkot Improvement Trust vs Nirmal Kaur on 7 January, 2020
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.253 of 2019
Date of Institution : 02.05.2019
Date of Decision : 07.01.2020
1. The Faridkot Improvement Trust, Faridkot, through its Chairman.
2. The Faridkot Improvement Trust, Faridkot, through its Executive
Officer.
....Appellants/opposite parties
Versus
1. Nirmal Kaur w/o Khazan Singh r/o Gali No.8, Bhan Singh
Colony Faridkot, Tehsil and Distt. Faridkot.
.....Respondent/complainant
2. The Principal Secretary to Govt. of Punjab, Department of Local
Bodies, Punjab at Chandigarh.
3. The Director Local Bodies, Punjab, Chandigarh.
4. The Collector Faridkot Distt., Faridkot.
....Respondents/opposite parties No.1 to 3
First Appeal against the order dated
12.03.2019 of the District Consumer
Disputes Redressal Forum, Faridkot.
Quorum:-
Mr. Rajinder Kumar Goyal, Presiding Member
Present:-
For the appellants : Sh.R.K.S.Brar, Advocate
For respondent No.1 : None
For respondents No.2 to 4: Ex-parte
First Appeal No 253 of 2019 2
RAJINDER KUMAR GOYAL, PRESIDING MEMBER
ORDER
The instant appeal has been filed by the appellants/opposite parties No. 4 & 5 against the order dated 12.03.2019 passed by District Consumer Disputes Redressal Forum, Faridkot (in short, 'District Forum'), whereby the complaint filed by the complainant was allowed and the opposite parties were directed to refund the amount of Rs.12,61,430/- received by them from the complainant as price of the plot along with interest at the rate of 12% per annum from the date of its deposit till final realization. The opposite parties are also burdened to pay Rs.5,000/- as litigation expenses.
It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
2. Brief facts, as averred in the complaint are that opposite parties No.4 & 5 invited applications from public for allotment of residential plots through draw of lots under the Development Scheme Baba Jiwan Singh Nagar (hereinafter to be referred to as 'the Scheme') situated at Ferozepur Road, Pakhi Road, Faridkot from 10.07.2013 to 09.08.2013 of various sizes.The complainant applied for the allotment of plot measuring 300 sq. yards within stipulated and time and deposited Rs.2,47,500/- along with all other necessary documents. Draw of lots was held on 26.11.2013 as per the scheme and complainant was allotted Plot No.140, measuring 300 sq. yards. As per the terms and conditions of allotment letter the total consideration of the plot was Rs.24,75,500/-, the First Appeal No 253 of 2019 3 complainant paid Rs.4,92,680/- on 12.03.2015 and Rs.5,21,250/- on 15.05.2014. In this manner, a sum of Rs.12,61,430/- was paid by the complainant. As per the terms and conditions of the Allotment Letter/Agreement, the complainant was entitled to get the physical vacant possession of Plot No.140, measuring 300 sq. yards along with all the facilities/developments done by the Trust. However, the development works have not been done and physical possession has not been delivered to the complainant even after lapse of three years. Due to this the complainant was harassed in the hands of the opposite parties. The Faridkot Improvement Trust, is sending unlawful and illegal letters to the complainant, just to create false defence evidence against the complainant. The Faridkot Improvement Trust is neither entitled to cancel the allotment of the plot of the complainant nor entitled to forfeit the amount of the complainant. On 25.04.2017, a legal notice was served upon the opposite parties with the request to get the actual and physical possession of the plot No.140, measuring 300 sq. yards within a period of two months, from the receipt of the legal notice or to return the amount deposited i.e. Rs.12,61,430/- along with interest at the rate of 12% per annum. The complainant time and again requested to hand over the physical possession with all amenities. Alleging deficiency in service and unfair trade practice on the part of opposite parties the complainant filed the complaint before the District Forum and sought the following reliefs:- First Appeal No 253 of 2019 4
i) to handover the physical possession of the plot No.140, measuring 300 sq. yards in Baba Jiwan Singh Nagar, Pakhi Road, Faridkot as per the terms and conditions of the allotment of the said plot; OR
ii) to return the amount of Rs.12,61,430/- to the complainant along with interest at the rate of 12% per annum from the date of deposit till realization; and
iii) to pay Rs.2,00,000/- as damages/compensation to the complainant on account of harm, harassment, mental tension;
iv) to pay Rs.1,00,000/- to the complainant as trade malpractices; and
v) to pay Rs.1,00,000/- to the complainant due to deficiency of service on the part of the opposite parties;
vi) to pay Rs.20,000/- as litigation expenses.
3. Upon notice, opposite parties appeared and filed their reply stating therein that the complaint is not maintainable in the present form as per clause 15 of the agreement for sale entered into, the appropriate remedy is with the complainant to seek reference to the Arbitrator i.e. before the Secretary, Local Govt. of Punjab or before the Civil Court. The complainant has not approached the authorities for seeking possession of the plot. The complainant was required to submit a proposed site plan before starting the construction at the site, in question, with the Trust as specified in Schedule II along with agreement to sell. There is no provision of First Appeal No 253 of 2019 5 refund of the amount deposited by the complainant, hence the complaint is liable to be dismissed. It is admitted that opposite parties No.4 & 5 floated a Scheme for the development of plot at Baba Jiwan Singh Nagar at Ferozepur Road, Faridkot. The opposite parties have never violated the terms and conditions of the agreement of sell. The complainant failed to deposit the remaining price of the plot, within the stipulated period, the Improvement Trust has legal right to resume the plot of the complainant. The development work is under progress i.e. the work of construction of roads and boundary wall has already been completed. The work for laying water supply and sewerage lines is under consideration of Sewerage Board. There is no deficiency in service or unfair trade practice on the part of the opposite parties.
Rest all the averments as averred by the complainant in her complaint were denied. Finally, it was prayed to dismiss the complaint with costs.
4. The parties produced the evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel appearing on their behalf, allowed the complaint, vide impugned order. Hence, this appeal filed by the appellants/opposite parties No. 4 & 5 challenging the impugned order.
5. Notice of the appeal was issued to the respondents. Respondent No.1 / complainant appeared through her counsel, whereas respondents No.2 to 4 have not appeared despite service, First Appeal No 253 of 2019 6 therefore, they have been proceeded against ex-parte vide order dated 29.10.2019.
6. I have heard the learned counsel for the appellants as none has appeared on behalf of respondents. I have also carefully gone through the record of the case.
7. Learned counsel for the appellant/opposite parties vehemently argued order passed by the District Forum is illegal and arbitrary. The allegations leveled by the complainant are not supported with any evidence. The complainant/ respondent No.1 has failed to submit the building plan for approval and thus violated the terms of allotment. The allegation leveled of high voltage line above some of the plots are under process as concerned electricity department was sent letter for removal of the same from the place, in question. All the basic facilities like electricity, drainage system, pucca roads, water and sewerage facilities have been provided much prior to the proposals of possession made by the appellants. As per terms of the agreement, the matter was to be referred to the Secretary, Local Bodies who was to be finally decide the dispute. There is no provision of refund in the Punjab Improvement Rules, 1983. There is no deficiency in service or unfair trade practice on the part of the opposite parties. Finally it is prayed to allow the appeal by setting aside the order passed by the District Forum in a haste manner without appreciating all the evidence available on the record.
First Appeal No 253 of 2019 7
8. I have given our thoughtful consideration to the contentions raised by the learned counsel for the appellants/opposite parties No.4 & 5.
9. Brief facts of the case are that the complainant was allotted plot No.140 measuring 300 square yards in the said Scheme of the opposite parties, vide memo No.183 dated 02.04.2014, Ex.C-11. As per the terms and conditions of the Agreement for Sale executed between the complainant and the opposite parties, the complainant paid Rs.12,61,430/- against the total sale consideration of Rs.24,75,500/- vide Ex.C-10, Ex.C-12 & Ex.C-13. The opposite parties failed to prove on record that there was any delay on the part of the complainant in making payment of these instalments. Besides this, the opposite parties also failed to prove on record that the delay in construction at the plot is due to the fault of the complainant. Rather no evidence has been led by the opposite parties that at the site water supply lines and sewerage lines have been laid down and the metalled roads are already there. Even the high voltage electric lines passing over the plot in question have not been removed so far. In these circumstances, it was not just possible to raise any construction at the site. Rather the reply, which was filed on 26.11.2017 after filing of the complaint, was filed by the Court Clerk of the Improvement Trust and not by its Executive Officer. In the reply and affidavit in support thereof it is admitted regarding framing of the Scheme but it has been mentioned only that for construction of the sewerage/laying First Appeal No 253 of 2019 8 down of sewerage pipes at the said Scheme considerable amount has been paid to the Sewerage Board and for removing the high voltage electric lines a letter has been written to the Punjab State Power Corporation Limited. It has not been mentioned in the reply in so many words that sewerage pipe lines have been laid down and the high voltage electricity lines passing over the plot in question have been removed. Even the own averments of the opposite parties clearly prove that there are no facilities of sewerage, electricity and water supply and drainage at the site in question. In these circumstances it was not just possible for raising any construction at the plot in question. What to say of laying down of the metalled road in the said area, even in the appeal no such document has been annexed to prove that the amenities/facilities narrated above, have been provided at the site. Only documents have been annexed are with regard to the proposals for providing such facilities and the tenders have been issued. These are only in papers and no measurement books (MBs) have been produced on record by the opposite parties to prove that there is any progress at the site and the facilities, as stated above, have been provided.
10. In view of our discussion held above, I do not find any illegality or perversity in the impugned order passed by the District Forum. There is no merit in the present appeal and the same is hereby dismissed.
11. The appellants/opposite parties Nos.4 and 5 had deposited a sum of Rs.25,000/- at the time of filing of the appeal. This First Appeal No 253 of 2019 9 amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum forthwith. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER January 07, 2020 parmod