State Consumer Disputes Redressal Commission
Estate Officer, Puda, vs Tripta Rani Puri on 13 February, 2014
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1801 of 2011
Date of institution: 8.12.2011
Date of Decision: 13.2.2014
Estate Officer, PUDA, SCO No. 41, Opposite District Administration
Complex, Ladowali Road, Jalandhar.
.....Appellant/Opposite Party
Versus
Tripta Rani Puri w/o Sh. K.K. Puri Parisons Village Near J.J. Club, Mall
Road, Kapurthala.
.....Respondent/Complainant
Argued By:-
For the appellant : Sh. Balwinder Singh, Advocate
For the respondent : Sh. K.S. Dhillon, Advocate
2nd Appeal
First Appeal No. 35 of 2012
Date of institution: 10.1.2012
Tripta Rani Puri w/o Sh. K.K. Puri Parisons Village Near J.J. Club, Mall
Road, Kapurthala.
.....Appellant/Complainant
Versus
Estate Officer, PUDA, SCO No. 41, Opposite District Administration
Complex, Ladowali Road, Jalandhar.
.....Respondent/Opposite Party
Argued By:-
For the appellant : Sh. K.S. Dhillon, Advocate
For the respondent : Sh. Balwinder Singh, Advocate
First Appeal against the order dated 21.9.2011
passed by the District Consumer Disputes
Redressal Forum, Kapurthala.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
FIRST APPEAL NO. 1801 OF 2011 2
ORDER
Gurcharan Singh Saran, Presiding Judicial Member This order will dispose of both the above captioned appeals. Both the appeals have been filed against the impugned order dated 21.9.2011 passed by the District Consumer Disputes Redressal Forum, Kapurthala(hereinafter called "the District Forum") in consumer complaint No. 138 dated 5.10.2010 vide which the complaint filed by the complainant was partly accepted with the direction to the opposite party to pay a sum of Rs. 1,40,025/- to the complainant wrongly levied on account of non-construction charges.
2. The complaint was filed by the complainant-Smt. Tripta Rani Puri on the allegations that a plot No. 1409 measuring 400 sq. yards was allotted by the OP to the complainant vide allotment letter No. EO/PUDA/JAN/200/6783 dated 29.12.2000. OP was required to complete the development work of Urban Estate as per their representation in the brochure Ex. C-1 before delivering the possession whereas the development work was completed by 14.12.2009 when the sewerage work was completed. Even otherwise the work of laying roads, storm water drains, water supply lines, water reservoir tanks etc. within the period mentioned in the brochure. The complainant had made the full payment of the plot in lumpsum to the OP whereas OP had admitted the extra ordinary delay in completing the work and accordingly, they exempted the interest charged to various allottees, who opted to make payment in instalments. Accordingly, the Op was required to pay interest @ 12% per annum on the lumpsum payment made by the complainant to the Op from FIRST APPEAL NO. 1801 OF 2011 3 the date of payment till 14.12.2009. Due to the abovesaid reason, the complainant could not complete his construction within the time given in the allotment letter, therefore, the non-construction charges of Rs. 1,40,025/-, which were charged upto 31.12.2009 have been wrongly demanded and when a representation was made by the complainant to the OP to refund the amount, they declined it. Hence, the complaint with the direction to the OP to refund Rs. 1,40,025/- wrongly claimed as non-construction charges, pay interest @ 12% per annum on the payment of lumpsum amount of the price of the plot made by the complainant till 14.1.2009, pay Rs. 50,000/- as harassment for wrongly charging the non-construction charges, Rs. 15,000/- for damages for not adhering to the representation, Rs. 5,000/- towards cost of litigation and Rs. 2,000/- on account of mental tension.
3. The complaint was contested by the Ops, who filed written statement taking preliminary objection that the complaint is not maintainable; the Hon'ble Forum has no jurisdiction to try and decide the complaint as per the conditions laid down in the allotment letter; the complaint is bad for non-joinder of Chief Administrator, PUDA; the complainant herself is a wrong doer; the extension fee has been correctly charged on account of non-construction; the plea regarding sewerage pipe is totally wrong as the sewerage connection has already been sanctioned vide letter dated 21.12.2009. In order to put hurdle to her own lapses she applied late for sewerage connection in the year 2009 to put the blame to the OP; on account of some delay in development work, the complainant and other transferees were FIRST APPEAL NO. 1801 OF 2011 4 given three more years as moratorium period; the complainant did not raise construction in the year 2005 to 2008 and that the complainant did not construct the building, therefore, non-construction charges were levied. On merits, the same facts have been reiterated.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence her affidavit Ex. C-A, copy of prospectus Ex. C-1, allotment letter Ex. C-2, letter dt. 30.5.05 Ex. C-2/A, receipts Ex. C-3/A to C-3/F, letter dt. 17.6.10 Ex. C-4, letter dt. 18.8.09 Ex. C-5, notice Ex. C-6. On the other hand, the opposite party had tendered into evidence affidavit of Ganesh Kumar Sharma, EO Ex. RW-1/A, allotment letter Ex. R-1, application Ex. R-2, letter Ex. R-3, application Ex. R-4, letter dt. 19.5.08 Ex. R-5, letter of complainant Ex. R-6, intimation of construction upto DPC Ex. R-7, letter dt. 25.2.09 Ex. R- 8, affidavit of complainant Ex. R-9, completion certificate Ex. R-10, letter dt. 9.2.10 Ex. R-11, sewerage connection application Ex. R-12, letter dt. 31.5.05 Ex. R-13 and other documents Ex. R-14 to R-41.
6. After going through the allegations in the complaint, written statement filed by the OP, evidence and documents brought on the record, the learned District Forum vide impugned order partly accepted the complaint as stated above.
7. Aggrieved with the order passed by the learned District Forum, the OP as well as the complainant has filed the above captioned appeals.
FIRST APPEAL NO. 1801 OF 2011 FIRST APPEAL NO. 1801 OF 2011 5
8. In this appeal, the counsel for the appellant/OP has contended that the order passed by the learned District Forum is arbitrary, illegal and against the facts on the record as the learned District Forum has failed to appreciate the pleadings of the parties. As per Condition No. 25 of the allotment letter, it has been specifically stipulated that in case of any dispute or difference, the same shall be referred to the Chief Administrator, PUDA, whose decision will be final. But the remedy under Section 3 of the Act is an additional remedy, therefore, even if some mechanism of dispute resolution has been mentioned in the allotment letter but that does not debar the jurisdiction of the Consumer Fora to entertain the complaint, therefore, this objection of the counsel for the appellant is not tenable.
9. It has been further contended that as per the Term No. 11 of the allotment letter, construction was to be completed within three years from the date of issue of allotment letter. The allotment letter was issued on 29.12.2000 and according to this letter, the construction was to be completed by 29.12.2003. Further according to written statement filed by the Ops in the preliminary objection No. 16 that the complainant and other transferees has already been provided with extra benefit thereby giving three years more as moratorium period for the purpose of construction of the plot be taken w.e.f. 12.6.2002. In that way, the construction was to be completed by 12.6.2005. The counsel for the appellant has further drawn the attention of this Commission towards letter Ex. R-2 dated 27.4.2005 vide which the request for taking demarcation was given by the respondent/complainant and demarcation was given. Accordingly, it FIRST APPEAL NO. 1801 OF 2011 6 has been contended by the counsel for the appellant that once the possession has been delivered, demarcation was given then there was no reason not to raise the construction whereas the counsel for the respondent has referred to the letter Ex. R-4 dated 8.12.2008 given to the Estate Officer, PUDA, Jalandhar with a request to give demarcation and that the demarcation was given at site on 19.12.2008. Accordingly, it has been contended by the counsel for the respondent that the demarcation vide letter Ex. R-2 was given symbolic/paper demarcation whereas the actual demarcation was given on 19.12.2008 and three years are to be taken from that date. However, we do not subscribe to the plea taken by the counsel for the respondent that on 27.4.2005 it was only a paper/ symbolic demarcation. Clearly it has been mentioned that demarcation of Plot No. 1409 at Kapurthala has been given on 27.4.2005 size 40' x 97'. Therefore, it cannot be said that the demarcation dated 27.4.2005 was given only on papers. In case he again applied for the demarcation and the concerned J.E. without going through the previous record has again given the demarcation; it does not absolve liability of the respondent/complainant to complete his construction within a period of three years from the date of possession.
10. Even if for the sake of arguments, it is admitted that on 27.4.2005 only symbolic possession was given and in case we go to the allotment letter Ex. C-2 in Clause No. 10, it has been specifically mentioned that possession is to be taken within 60 days from the date of issue of the allotment letter. In response to the information sought by the respondent through R.T.I. it was mentioned that water FIRST APPEAL NO. 1801 OF 2011 7 supply was given in September, 2002, water tank was completed by March, 2002, when according to allotment letter Ex. C-2 he was to take the possession within 60 days from the date of allotment and if for any reason there was delay in development works and he had applied for demarcation of the property on 27.4.2005 and by that time he has come to know about the basic development work in the concerned Urban Estate. In case according to him it was only paper demarcation then what had withheld the complainant not to apply for actual demarcation immediately thereafter and why she remained silent for the period of more than three years and eight months. In case he has moved a fresh application for demarcation, although it was actually taken by her in the year 2005, she could get the actual demarcation. Now, she cannot absolve herself for non-payment of non-construction charges on the excuse of not giving actual demarcation.
11. As earlier stated the OP had already exempted not to charge extension charges upto 12.6.2005; now from which date the OP will be entitled to claim the non-construction charges.
12. The counsel for the respondent has relied upon the judgment of the Hon'ble National Commission "Captain A.C. Mohan versus HUDA & Anr.", 2008 (3) CLT 295 that in case physical demarcation of the plot on the ground was not given it was simply not possible for the petitioner to even attempt to commence construction within two years from the date of paper possession on 8.11.2011 whereas the physical possession of the plot was handed over on 11.10.2006 and non-construction fee which charged three years after FIRST APPEAL NO. 1801 OF 2011 8 the date of possession. Similar view was taken by this Commission in the judgment "PUDA Vs. Monika Verma" F.A. No. 144 of 2005 decided on 10.10.2005. In that case, the possession was given on 12.6.2002 and three years were to be taken from 12.6.2002 and same view was taken by this Commission in F.A. No. 647 of 2007 "PUDA Vs. Pawan Malhotra", decided on 30.4.2012, therefore, the appellant/OP will be entitled to non-construction charges 3 years from 12.6.2005 onwards and three years will be completed by 12.6.2008. Whereas the building was completed by the complainant/respondent on 20.7.2009 and partial completion certificate was given by the PUDA vide their letter dated 18.8.2009, therefore, at the most the appellant/OP will be entitled to charge non-construction charges for the period 12.6.2008 to 20.7.2009. The findings of the learned District Forum that actual possession was given on 19.12.2008 are not correct findings in view of the demarcation taken by the complainant vide letter Ex. R-2 dated 27.4.2005. Therefore, the order so passed by the learned District Forum requires modification.
13. It was also contended that the sewerage connection was completed by 14.12.2009 as per the information given by the appellant/OP vide their letter Ex. C-4 that on 14.12.2009 sewerage connection was connected with the main sewerage otherwise in para No. 2, it has been mentioned that sewerage work was completed by 15.6.2002, therefore, it cannot be said that sewerage facility was given only on 14.12.2009 as this date is only with connection with the main sewerage. In case the complainant would have applied for sewerage connection, before that a sewerage facility was not there FIRST APPEAL NO. 1801 OF 2011 9 then it was the responsibility of the Ops to make arrangement and in case they would not have made any arrangement then he could claim for deficiency in services, therefore, in case the sewerage line was connected with the main sewerage in the year 2009, he cannot say that sewerage was not completed when sewerage lines were laid in the year, 2002.
14. Sequel to the above discussion, the appeal filed by the appellant is partly accepted. It is held that OP/appellant will be entitled to charge non-construction charges from the respondent/complainant for the period 12.6.2008 to 20.7.2009 according to the rules and regulations applicable at that time and the remaining excess amount will be refunded by them as it has been wrongly charged by them.
First Appeal No. 35 of 2012
15. In that appeal, the appellant/complainant has contended that although refund has been ordered in favour of the complainant but no interest has been awarded. In case any amount has been wrongly charged by them, they utilized the same, therefore, they are also liable to pay interest because in case there is any delayed payment or payment is made in instalments, the OP/respondent charges the interest, therefore, the excess amount charged by the respondent/OP will be refunded alongwith interest @ 9% p.a. from the date of realization till the date of payment to the appellant/complainant.
16. Another plea taken by the appellant is that 5% rebate was not given on the additional area of 31.10 sq. yard. In the agreement, FIRST APPEAL NO. 1801 OF 2011 10 there was a clause of 5% rebate. In case the entire amount is deposited in lumpsum within the specified period, which was deposited by the complainant/appellant, accordingly, she was given rebate to the extent of 5% but with regard to allotment of additional area, there was no such agreement between the parties to give rebate of 5%. In case the amount is deposited in lumpsum, parties are bound by the agreement and nothing can be paid to the appellant over and above the agreement. It has been further contended that on account of delay in development work, interest was exempted for the period of two years, who had opted to pay the amount in instalments, therefore, interest for the period of two years be given to the appellant/complainant in case he had deposited the amount in lumpsum. However, this facility was given to the applicants, who had deposited the amount in installments, therefore, this facility was not provided to him. Therefore, she cannot claim interest for a period of two years from the Ops as this facility was not given to the allottee, who deposited the amount in lumpsum.
17. The counsel for the appellant has also claimed interest @ 12% on the amount of deposit for 8 years on account of late development. As already discussed in First Appeal No. 1801 of 2011, the development work was completed in the year 2002. The appellant/complainant had applied for demarcation on 27.4.2005 but he completed the construction within the year 2009 and by that time every facility was provided. In case she herself was not starting the construction, she cannot put the blame to the opposite party for delay, if any, on their part, therefore, he will not be entitled to any FIRST APPEAL NO. 1801 OF 2011 11 interest on account of delay, if any, on the part of the Ops for development works. However, for deficiency in services on the part of the Ops/respondent, she will be entitled to compensation of Rs. 5,000/- for wrongly charging the excess amount towards the non- construction charges and Rs. 5,000/- as litigation expenses. Accordingly, this appeal is partly accepted and disposed off in the above terms.
18. In view of the above discussion, both the appeals are partly accepted and the order of the District Forum is modified to the above extent.
19. The arguments in these appeals were heard on 7.2.2014 and the order was reserved. Now the order be communicated to the parties as per rules.
20. The appellant in F.A. No. 1801 of 2011 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 respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
21. Remaining amount shall be paid by the appellant to the respondent within 30 days from the receipt of the copy of the order.
22. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
February 13, 2014. (Harcharan Singh Guram)
as Member
FIRST APPEAL NO. 1801 OF 2011 12