State Consumer Disputes Redressal Commission
Harpal Singh vs Punjab Urban Planning & Development ... on 1 October, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
1. First Appeal No.1554 of 2009
Date of institution : 04.11.2009
Date of decision : 01.10.2013
Harpal Singh S/o Shri Avtar Singh, 1128, Urban Estate,Phase-1,
Jalandhar.
.......Appellant- Complainant
Versus
1. Punjab Urban Planning & Development Authority through its
Chief Administrator, PUDA Bhawan, Sector 62, SAS Nagar,
Mohali.
2. Estate Officer, Punjab Urban Planning & Development
Authority, SCO 41, Ladowali Road, Jalandhar.
......Respondents- Opposite Parties
2. First Appeal No.1609 of 2009
Date of institution : 11.11.2009
Date of decision : .10.2013
1. Punjab Urban Planning & Development Authority through its
Chief Administrator, PUDA Bhawan, Sector 62, SAS Nagar,
Mohali now Chief Administrator, Jalandhar Development
Authority, SCO-41, Laddo Wali Road, Jalandhar.
2. Estate Officer, Punjab Urban Planning & Development
Authority, SCO 41, Ladowali Road, Jalandhar.
......Appellants- Opposite Parties
Versus
Harpal Singh S/o Shri Avtar Singh, 1128, Urban Estate,Phase-1,
Jalandhar.
.......Appellant- Complainant
First Appeal No.1554 of 2009. 2
First Appeals against the order dated
29.9.2009 of the District Consumer
Disputes Redressal Forum, Kapurthala.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellant : Shri A.S. Gill, Advocate.
For the respondents : Shri Balwinder Singh, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The above referred appeals have been preferred against the order dated 29.9.2009 passed by District Consumer Disputes Redressal Forum, Kapurthala Camp at Jalandhar (in short, "District Forum"), vide which the complaint filed by Harpal Singh, complainant, under Section 12 of the Consumer Protection Act, 1986, was partly allowed and the opposite parties were directed to issue the completion certificate/occupation certificate of the property in dispute bearing SCO No.120 situated in Urban Estate Phase-II, Jalandhar and to refund the sum of Rs.26,989/- charged in excess as extension fee along with interest at the rate of 8% per annum from the date of deposit of that amount i.e. 8.7.2008 till the realization thereof and to pay Rs.3,000/- as costs of litigation. The First Appeal (FA No.1554 of 2009) has been preferred by the complainant for modification of that order so as to allow all the prayers made in the complaint and to enhance the rate of interest from 8% to 24%. The second appeal (FA No.1609 of 2009) has been filed by the opposite parties for setting aside that order.
3. The facts, in brief, are that the complainant in view of the advertisement issued by the opposite parties got allotted the First Appeal No.1554 of 2009. 3 property in dispute in open auction for Rs.20,05,000/-, vide memo dated 2.5.2003. After completing the construction on the spot, he applied for the completion certificate and the occupation certificate.
Letter dated 13.3.2007 was issued to him by opposite party No.2 intimating that as per the report of the Divisional Engineer, the plinth level was 3'-6'', which was not in accordance with the rules. He was directed to deposit Rs.1,07,009/- as non-construction fee and Rs.29,040/- as Compounding Fee, vide letter dated 23.4.2008 issued by opposite party No.2. While challenging those letters, it was averred by the complainant in his complaint that the construction was raised after completing all the formalities. On 17.3.2006 he had made a written request to opposite party no.2 for giving the plinth level for the corridor and the ground floor and that application was received in the office of that opposite party on the same day, vide receipt No.919. A person from the office came to the spot and gave the plinth level and thereafter he proceeded with the further construction. On each and every step of the construction, he had been making written requests to opposite party No.2 to inspect his site and to point the defects/shortcomings in the construction, if any. Concerned persons from the office of the opposite parties visited the spot on several occasions and never pointed out any such defect. After he received the letter dated 23.4.2008, he made written protest to the demand contained therein on 30.4.2008 and deposited the compound fee of Rs.29,040/-. The opposite parties illegally forced the complainant to deposit Rs.1,07,009/- as extension fee, which was deposited on 8.7.2008, vide receipt No.33/1030 of First Appeal No.1554 of 2009. 4 that date. The recovery of the said two amounts from him is illegal, arbitrary and against the rules and regulations of the opposite parties. All the above said facts showed deficiency in service, negligence and unfair trade practice on the part of the opposite parties. The same caused mental tension, harassment, inconvenience and financial loss to him for which he is entitled to recover Rs.2,50,000/- from the opposite parties.
4. The written reply was filed by the opposite parties in which they averred that the complainant had not obtained the plinth level certificate after completing the plinth level as required by the rules. In fact he raised plinth level against the rules upto 3'-6.5". He was rightly asked to deposit the amounts mentioned in the complaint and no such force was used by them for the recovery thereof. No cause of action has accrued to the complainant to file the complaint and the same is not maintainable as there was no deficiency in service on their part. They prayed for the dismissal thereof with special costs; being false, frivolous and vexatious.
5. Both the sides produced their evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf partly allowed the complaint, vide aforesaid order.
6. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
7. It was submitted by the learned counsel for the opposite parties that at the time of sanctioning of the building plan submitted by the complainant, letter dated 10.2.2006 was issued to him and the First Appeal No.1554 of 2009. 5 directions and instructions contained therein were to be followed by the complainant while raising the construction. He failed to follow those instructions and unauthorisedly raised the plinth level and it was in view of the unauthorized construction that the compounding fee was charged from him. As per the letter of allotment, the complainant was required to complete the construction within three years of the date of allotment but he completed construction in the fifth year and, as such, was liable to pay the non-construction charges/extension fee and the same was correctly recovered from him. The District Forum committed an illegality while refunding a part of that amount and that order is liable to be set aside.
8. On the other hand, it was submitted by the learned counsel for the complainant that from the evidence produced on the record by the complainant, it stands proved that he completed that construction on 22.4.2006 i.e. in the third year of the letter of allotment and, therefore, he was not liable to pay any such non-construction charges/extension fee. If the Completion Certificate has not been issued by the opposite parties in spite of the letter having been written about the completion of the building, the complainant is not to suffer for the same. Moreover, the non-construction charges/extension fee could have been calculated only at the rate of 2.5% and not at the rate of 4% and the District Forum committed an illegality while calculating the same at the rate of 4%. The District Forum also committed an illegality while not allowing the other prayers made in the complaint. The complainant produced his evidence before the District Forum that he complied with all the First Appeal No.1554 of 2009. 6 directions and instructions issued by the opposite parties and he during the course of construction had been writing to the opposite parties for inspection of the site. The plinth level was in accordance with those instructions and, therefore, the opposite parties were not within their rights to charge the compounding fee. The non- construction charges/extension fee and the compounding fee were paid by the complainant under protest and he is entitled to recover the same from the opposite parties. Besides that he is entitled to the compensation as claimed in the complaint and which was disallowed by the District Forum; as on account of the acts of commission and omission on the part of the opposite parties, which amount to deficiency in service, he suffered harassment, inconvenience and financial loss.
9. The first question to be determined is, whether any directions/instructions had been issued to the complainant at the time of the sanctioning of the building plan submitted by him, which were to be followed by him at the time of raising the construction? The opposite parties proved on record the affidavit of Harbir Singh, Estate Officer Ex.O-1 in which he stated that the complainant had not obtained the plinth level certificate after the completion of the plinth level as required under the rules and a sum of Rs.29,040/- was demanded from him as compounding fee for enhancement/raising of the plinth level. No document was proved before the District Forum for proving those directions/instructions. However, at the time of arguments learned counsel for the opposite parties produced one letter dated 10.2.2006, which is addressed to the complainant. This First Appeal No.1554 of 2009. 7 letter contains the directions and instructions, which were to be followed by the complainant while raising the construction in the property in dispute. As per clause 10 thereof, the complainant was required to obtain a certificate after DPC to the effect that the construction was being raised in accordance with the sanctioned building plan. From the evidence produced by the complainant himself, it stands proved that he had the knowledge of this direction/instruction. He proved on record letter Ex.C-3, which was addressed to the opposite parties, in which he mentioned that the basement wall/construction of SCO had come to plinth level. He made a request for deputing some representative to check that plinth level. The letter regarding the plinth level of the first floor was proved by him on the record as Ex.C-4 and is dated 7.4.2006. He proved both these letters in his affidavit Ex.C-11 but has not deposed therein that the plinth level was strictly in accordance with the sanctioned building plan. On the other hand, it stands proved from the above said affidavit Ex.O-1 of Harbir Singh, Estate Officer that the plinth level was raised by the complainant upto 3'-6.5", which was more than the required level. The complainant was not only to write a letter upto plinth level but to obtain the certificate also from the opposite parties. No such certificate was obtained by him. In these circumstances the opposite parties were well within their rights to charge the compounding fee for the unauthorized raising of the plinth level. The complainant is not entitled to the refund of that compounding fee.
First Appeal No.1554 of 2009. 8
10. It is the admitted case of the parties that the opposite parties charged non-construction charges/extension fee of Rs.1,07,009/- upto the year 2008. Letter Ex.C-6/1 dated 23.4.2008 was written to the complainant for recovery of that amount. That letter was replied by the complainant, vide letter Ex.C-7 dated 30.4.2008. He mentioned therein that he had completed the construction by 22.4.2006 and, as such, the late construction fee for the year 2007 and 2008 should not be charged from him. In order to determine whether he was liable to pay any such non-construction charges/extension fee, it is to be determined as to when he completed the construction. As per clause 8 of the allotment letter, proved on the record as Ex.C-1, the complainant was to complete the building within three years from the date of issue of that letter after getting the plans of the proposed building approved from the Estate Officer and in case of non-construction the time could have been extended on his request on payment of fees as determined by PUDA from time to time. Learned counsel for the complainant has drawn our attention towards the affidavit of the complainant Ex.C-11 wherein he deposed that after completing all formalities he raised the construction on the property in dispute and on 22.12.2006 applied for the completion certificate to the opposite parties. The same fact was mentioned by the complainant in the letter Ex.C-7 but he did not prove on the record the said letter dated 22.12.2006, vide which he applied for the issuance of the completion certificate. However, from the letter Ex.C-6 dated 13.3.2007 issued by the opposite parties to the complainant, it stands proved that he had applied for the First Appeal No.1554 of 2009. 9 issuance of completion certificate as it is mentioned therein that the same could not be issued in his favour as he had unauthorisedly raised the plinth level while making the construction. The complainant himself admitted the defects in the construction in his letter dated 18.1.2007 Ex.C-5, vide which he had requested the opposite parties to get the building inspected again as he had removed all the defects. Therefore, the only conclusion, which can be drawn is that the building was completed by the complainant only in the year 2007 i.e. in the fourth year of the issuance of the letter of allotment. Therefore, the finding recorded by the District Forum that it was completed in the fifth year is liable to be reversed.
11. Now, the question arises as to at which rate the non- construction charges/extension fee could have been charged by the opposite parties? It was not disputed at the time of arguments that the circulars are being issued by the opposite parties regarding that rate. However, in view of the judgment of Hon'ble Punjab and Haryana High Court dated 8.1.2009 rendered in "Harpreet Singh v. State of Punjab" (CWP No.19587 of 2006) the same can be charged only at the rate mentioned in Rule 13 of the Punjab Regional Town Planning and Development (General) Rules, 1995. As per that rule, in case of commercial plots the rate of fee for the fourth year of the period of extension is 2.5% of the sale price. Therefore, the opposite parties could not have charged the non- construction charges/extension fee at the rate exceeding 2.5% of the total sale price. That rate was wrongly held by the District Forum to be 4%. Calculated at 2.5% the amount of this fee comes to First Appeal No.1554 of 2009. 10 Rs.50,125/-. Therefore, a sum of Rs.56,884/- (Rs.1,07,009/- minus Rs.50,125/-) was charged in excess from the complainant, which the opposite parties are to refund.
12. As already held above, the compounding fee was charged by the opposite parties for the unauthorized construction and no order for the refund of that amount can be made. Keeping in view the circumstances of the present case, we are fully convinced that the District Forum correctly disallowed the compensation to the complainant as it awarded interest on the amount, which was to be refunded to the complainant. There was excess amount received by the opposite parties but the same was on account of calculation of the non-construction charges/extension fee at a higher rate under the bona fide belief that the same was to be charged at that rate. It cannot be said to be such deficiency in service, which caused any physical or mental injury to the complainant so as to award him compensation.
13. The complainant has prayed in the appeal for enhancement of the interest from 8% to 24%. There is no question of allowing interest at that rate. As per the latest judgments of the Hon'ble Supreme Court, 9% is the suitable interest and the opposite parties are liable to refund the above said amount along with interest at the rate of 9% per annum for the period mentioned in the order of the District Forum.
14. In view of our above discussion, the appeal filed by the opposite parties (FA No.1609 of 2009) is dismissed whereas the appeal filed by the complainant (FA No.1554 of 2009) is allowed and First Appeal No.1554 of 2009. 11 the above said modifications are made in the order of the District Forum.
15. The sums of Rs.1500/- and Rs.14,934/- deposited at the time of filing of the appeal (FA No.1609 of 2009) along with interest which has accrued thereon, if any, shall 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 District Forum and the appellants/opposite parties.
16. The arguments in these cases were heard on 26.9.2013 and the orders were reserved. Now, the orders be communicated to the parties.
17. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (MRS. SURINDER PAL KAUR) October 01, 2013 MEMBER Bansal