State Consumer Disputes Redressal Commission
Puda vs Sham Lal Gamber & Ors. on 13 July, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1030 of 2013
Date of institution: 27.9.2013
Date of Decision: 13.7.2015
Punjab Urban Planning and Development Authority (now BDA), PUDA
Complex, Bhagu Road, Bathinda through its Estate Officer.
Appellant/OP No.1
Versus
1. Sham Lal Gumber, aged 62 years, son of Des Raj Gumber, resident
of House No. 1286, Street No. 2, Jain Nagri, Abohar, Tehsil Abohar.
2. Sashi Kumar Chhabra, aged 63 years, son of Kundan Lal, resident
of House No. 1372, Street No. 8, Abohar, Tehsil Abohar.
3. Saranjit Kaur, aged 50 years, wife of Pritam Singh, resident of 5
Green Avenue, College Road, Abohar.
4. Jasbir Singh, aged 48 years, son of Jugraj Singh, resident of 5,
Green Avenue, College Road, Abohar.
5. Neelam Rani, aged 46 years, wife of Ashwani Dhamija, resident of
Street No. 1, Sidhu Nagri, Abohar.
6. Jagjit Singh, aged 53 years, son of Jagtar Singh, resident of 2,
Green Avenue, College Road, Abohar.
7. Siri Ram, aged 32 years, son of Banwari Lal, resident of Village &
P.O. Sayadwala, Tehsil Abohar.
Respondents No. 1 to 7/Complainants
8. Branch Manager, Punjab Gramin Bank, Kandhwala Amarkot, Tehsil
Abohar, District Fazilka.
9. Branch Manager, Punjab Gramin Bank, Dharampura, Tehsil Abohar,
District Fazilka.
Respondents No.8&9/Op Nos. 2 & 3
First Appeal against the order dated 21.6.2013
passed by the District Consumer Disputes
Redressal Forum, Ferozepur.
First Appeal No. 1030 of 2013 2
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Present:-
For the appellant : Sh. Balwinder Singh, Advocate
For respondent Nos.1-7 : Sh. Vivek Baghla, Advocate
For respondent Nos. 8&9: Sh. H.S. Bhatia, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/OP No.1 (hereinafter referred as "OP No.1") has filed the present appeal against the order dated 21.6.2013 passed by the District Consumer Disputes Redressal Forum, Ferozepur (hereinafter referred as the District Forum) in consumer complaint No.62 dated 5.2.2013 vide which the complaint filed by respondents No. 1 to 7/complainants(hereinafter referred as the complainants) was accepted with a direction to Op No. 1 to pay a sum of Rs. 7160/- to each of the complainants alongwith interest @ 9% p.a. from the date of payment of this amount to Op Nos. 2 & 3. They were further directed to pay compensation of Rs. 2,000/- and litigation expenses of Rs. 2,000/-.
2. A consumer complaint was filed by the complainant after having permission from the District Forum to file the joint complaint under the Consumer Protection Act, 1986 (in short 'the Act') against the OPs. In the complaint it was averred that OP No. 1 had invited application for allotment of 185 free hold residential plots of different categories i.e. 450, 420, 400, 321, 300, 226(square yards) at PUDA First Appeal No. 1030 of 2013 3 Enclave, Fazilka Road, Abohar. It was further stated in advertisement that the application be moved through respondents No. 2 & 3. The scheme was opened on 21.3.2011 and closed on 20.4.2011. Accordingly, complainants No. 1 to 6 applied for plots of the size having 226 sq. yards vide separate application for obtaining a loan of Rs. 1,40,600/- each and paid Rs. 7160/- to respondent No. 2 in the form of interest. These plots were to be sold by way of draw system but no draw was held, which amounted to deficiency in services and unfair trade practice on the part of OP No. 1. Accordingly, the complaint was filed with a direction to the Ops to refund a sum of Rs. 7160/- to each of the complainant alongwith interest @ 2% per month till realization, pay a sum of Rs. 5,000/- to each of the complainant as compensation and Rs. 11,000/- as litigation expenses.
3. The complaint was contested by the OPs. OP No. 1 in its written statement took the preliminary objections that the complainants were not the consumers of the OPs because no plot was allotted to them, there was no provision of filing the joint complaint; complainant does not disclose any cause of action and that it was false, frivolous and vexatious, liable to be dismissed with costs. On merits, it was admitted that the applications were called for by OP No. 1 for various categories of plots in PUDA Enclave, Abohar within the dates referred in the complaint. It was also admitted that the complainants had filed their affidavit of allotment of plots measuring 226 sq. yards, however, it is worth to mention that land owners had filed two Civil Writ Petitions bearing Nos. 23044 of 2010 titled as "Gopal Kumar and others versus Punjab Urban First Appeal No. 1030 of 2013 4 Development Authority and others" and No. 14732 of 2011 "Dudhnath and others versus Punjab Urban Development Authority and others", therefore, the plots of the size of 226 sq. yards could not be carved out. Moreover, stay order was granted by the Hon'ble High Court in the said writ petitions. Accordingly, it was submitted that the complaint was without merit and it be dismissed.
4. OP Nos. 2 & 3 in their joint reply took the preliminary objections that the complaint of the complainant was false, frivolous and vexatious to their knowledge, therefore, liable to be dismissed; complaint was not maintainable in the present form; complainant had not come to the Forum with clean hands and had suppressed material facts from the Court; complaint was bad for mis-joinder of the OPs as a party to the complaint; as per averments in the complaint, the plots were to be carved out by respondent No. 1 and no deficiency on the part of OP Nos. 2 & 3; intricate questions of law and facts were involved, which cannot be decided in the summary proceedings under the Act, therefore, the same was required to be relegated to the Civil Court and that the complaint was time barred. On merits, it was submitted that these OPs never induced the complainants to apply for the plots. However, payment of Rs. 7160/- was made by the complainants for advancing the loan. It was denied that each complainant had to pay this amount unnecessarily. The complaint was without merit and it be dismissed.
5. The parties were allowed by the learned District Forum to lead their evidence.
First Appeal No. 1030 of 2013 5
6. In support of his allegations, the complainant had tendered into evidence affidavit of Sham Lal Gumber Ex. C-1, copy of pamphlet Ex. C-2, bank certificates Exs. C-3 to 9, sites details Exs. C-10 & 11. On the other hand, OP No. 1 had tendered into evidence affidavit of Harjit Singh, EO Ex. OP-1/1, orders of High Court Exs. Op-1/2 to 5, OP Nos. 2 & 3 had tendered affidavit of Om Parkash Sachdeva Ex. OP-2/3-1.
7. After going through the allegations in the complaint, written replies filed by the OPs, evidence and documents brought on the record, the complaint of the complainants was allowed as referred above.
8. Feeling aggrieved with the order passed by the learned District Forum, the appellant/OP No. 1 has filed the present appeal.
9. We have heard the learned counsel for the parties and written arguments filed by respondents No. 1 to 7/complainants.
10. It has been argued by the counsel for the appellant/OP No. 1 that the District Forum did not have the jurisdiction to entertain the compliant. As per the pleadings of the parties, it is an admitted fact that the appellant/OP No. 1 had called for applications for allotment of plots of 450, 420, 400, 321, 300, 226(square yards) at PUDA Enclave, Fazilka Road, Abohar. The plots were to be allotted as per the draw. Complainants Nos. 1 to 7 applied for the category of 226 Sq. Yards but its draw was not held. In case any amount was taken by the Ops on the pretext to held the draw for allotment of plots but lateron that draw was not held for whatever may be the reason then it constitutes the relationship of consumer and service provider. First Appeal No. 1030 of 2013 6 Therefore, consumer complaint was maintainable. During the course of arguments, the counsel for the appellant was not able to justify how the complainants do not come within the definition of the consumer.
11. The next point taken by the counsel for the appellant that the land owners had filed two writ petitions i.e. Civil Writ Petitions bearing Nos. 23044 of 2010 titled as "Gopal Kumar and others versus Punjab Urban Development Authority and others" and No. 14732 of 2011 "Dudhnath and others versus Punjab Urban Development Authority and others", and the stay order was passed. A copy of the order passed by Hon'ble Justice Ajay Tiwari dated 22.12.2010 has been placed on the record in which the order was passed that in the mean time demolition of the properties of the petitioner shall remain stayed. But details of the writ petition have not been placed on the record to which property or Khasra Nos. in the said writ petition was filed. It is not clear whether the plots of 226 sq. yards were to be carved out on that land because the advertisement was for plots of measurement of 450, 420, 400, 321, 300, 226 Sq. Yards except the plot of 226 categories other plots were carved out and were allotted. Even if we accept this version given by the counsel for the appellant that there were stay order passed by the Hon'ble Punjab & Haryana High Court with regard to the land, upon which the plots of 226 sq. yards were to be carved out, it was the duty of OP No. 1 to have its title clear and that the possession of the property is with them before launching the scheme. Passing of the stay order clearly indicates that the possession of a part of the property where First Appeal No. 1030 of 2013 7 the plots of 226 sq. yards were to be carved out was not with OP No. 1, therefore, it was unfair trade practice on the part of OP No. 1 to launch the scheme without having exclusive possession of the property where the plots were to be carved out. Then in case for any reason, OP No. 1 could not have carved out the plots either on account of stay order passed by the Hon'ble High Court or for any other reason then the complainants should not suffer for that. They had taken the loan from the bank to deposit the earnest money with Op No. 1, to process their application for the allotment of plots of 226 sq. yards category, but no draw was held and the amount was refunded as it is, therefore, complainants have been penalized to the extent of Rs. 7160/- each, which they paid to the banks to borrow that amount to be deposited with Op No. 1 when their claim with regard to consideration of allotment of plots of 226 sq. yards category was not considered. Certainly, they are required to make the deficiency good to the complainants. In case we analyze the impugned order passed by the District Forum, we are of the opinion that the order so passed by the learned District Forum is a correct order and we affirm the same.
12. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
13. The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to respondents No. 1 to 7/complainants in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days, from the First Appeal No. 1030 of 2013 8 despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
14. Remaining amount, if any due, shall be paid by the appellant to respondents No. 1 to 5/ complainants within 30 days from the receipt of the copy of the order.
15. The arguments in this appeal were heard on 7.7.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
July 13, 2015. (Jasbir Singh Gill)
as Member