State Consumer Disputes Redressal Commission
1. Municipal Corporation, Amritsar vs 1. Rakesh Kumar on 12 November, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No. 1288 of 2001
Date of institution : 5.12.2001
Date of decision : 12.11.2008
1. Municipal Corporation, Amritsar through its Commissioner, Town Hall,
Amritsar.
2. Estate Officer, Municipal Corporation, Amritsar.
.......Appellants
Versus
1. Rakesh Kumar s/o Sh. Madan Lal Prop. of M/s Kumar Enterprise, 25,
Shaheed Bhagat Singh Extension Market, near Central Bus Stand,
Amritsar.
2. M/s Bansidhar Ram Nath Kapur & Sons, Guru Bazar, Amritsar through
its partner/proprietor Kuldip Kapur s/o Shri Ram Nath Kapur, 26, Shaheed
Bhagat Singh Extension Market, near Central Bus Stand, Amritsar.
3. Vipan Kumar s/o Shri Sohan Lal, 27, Shaheed Bhagat Singh Extension
Market, Near Central Bus Stand, Amritsar.
4. Satish Grover s/o Shri Ram Parkash Grover, 28, Shaheed Bhagat Singh
Extension Market, near Central Bus Stand, Amritsar.
......Respondents
First Appeal against the order dated 18.10.2001 of
the District Consumer Disputes Redressal Forum,
Amritsar.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Jasbir Kapoor, Member.
Lt. Col. Darshan Singh (Retd.), Member.
Present :-
For the appellants : Sh. Saurav Khurana, Advocate for
Sh. P.K. Mody, Advocate.
For the respondents : Sh. V.K. Sandhir, Advocate.
JUSTICE S.N. AGGARWAL, PRESIDENT:
This judgment shall decide two appeals, namely, First Appeal No.1288 of 2001 (Municipal Corporation, Amritsar and anr. v. Rakesh Kumar and others) and First Appeal No.1303 of 2001 (Rakesh Kumar and others v. Municipal Corporation, Amritsar and anr.) as both these appeals are directed against the First Appeal No.1288 of 2001. 2 same impugned order dated 18.10.2001 passed by the learned District Consumer Disputes Redressal Forum, Amritsar (in short "District Forum"). The facts are taken from First Appeal No.1288 of 2001 and the parties would be referred by their status in this appeal.
2. The appellants issued a notice for public auction of commercial plots which was to take place on 20.2.1998 at 11.00 A.M. in their office. The plots were situated in Shaheed Bhagat Singh Extension Market, Near Central Bus Stand, Amritsar. The reserve price for each plot was Rs.13,000/- per square yard and every bidder was required to deposit the security amount of Rs.25,000/-.
3. It was pleaded by the respondents that as per the site plan the plots were to be carved out after providing the footpath, parking, fountains, green parks, water works and also metalled road. The appellants had also assured that the basic amenities shall be provided to the successful bidders in order to attract the bidders.
4. It was further pleaded that Rakesh Kumar respondent No.1 had made bid for plot No.25 at the rate of Rs.21,100/- per sq. yard for an area measuring 45.37 square yards. It was allotted to him vide allotment letter dated 23.2.1998. In pursuance of the said allotment letter, respondent No.1 deposited an amount of Rs.25,000/- in cash on 20.2.1998. Another cheque for an amount of Rs.2,15,000/- dated 20.2.1998 was also deposited with the appellants on the same date and the said cheque was duly got encashed by the appellants. Respondent No.1 has also made the payment of Rs.50,000/- to the appellants on 26.6.2000 and hence he had paid the total amount of Rs.2,90,000/-.
5. It was further pleaded that Moti Lal purchased plot No.26. Moti Lal had sold the same to Kuldip Kapur partner/proprietor of M/s Bansidhar Ram Nath Kapur & Sons respondent No.2. Respondent No.2 also made the payment of Rs.4,55,800/- to the appellants as admitted by them in their letter dated 29.6.2000.
First Appeal No.1288 of 2001. 3
6. Vipin Kumar respondent No.3 was allotted shop No.27 at the rate of Rs.20,000/- per square yard and he had made the payment of Rs.2,75,000/- to the appellants. He had also made the payment of Rs.25,000/- on 20.2.1998 and had handed over the cheque for Rs.12 lacs on 20.2.1998 to the appellants. He had also made cash payment of Rs.50,000/- on 30.6.2000.
7. It was further pleaded that Satish Grover respondent No.4 was allotted shop No.28 at the rate of Rs.20,000/- per square yard and he had made the payment of Rs.2,75,000.
8. It was further pleaded that the respondents were allotted open area and at that time, there was no construction. Each of the respondents spent a huge amount in raising the construction of their shops with the hope that the appellants would develop the entire shopping complex as proposed and the respondents would be in a position to earn their livelihood. The respondents were induced to bid at a much higher rate than the reserved price as the appellants had promised excellent basic amenities in that shopping complex area.
9. It was further pleaded that even after raising the construction, the respondents were not in a position to commence their business in these shops due to lack of amenities. What to talk of fountains, parking, greenery which was assured by the appellants at the time of auction, the area gives a constant foul smell due to heaps of human excreta lying on the open spaces in front of the shops of the respondents. The said area is being used by the people to answer the call of nature and it is difficult for the respondents to sit in their shops. There is no facility of electricity or sanitation in front of their shops. It presented deserted look. No customer is attracted in those shops. Basic amenities have not been provided. Therefore, the appellants are not entitled to the remaining amount from the respondents unless and until basic amenities are provided to them which were promised at the time of auction. The appellants have no right to recover any interest etc. The matter was taken up with the appellants but there was no response. Hence the respondents filed the complaint in the learned District First Appeal No.1288 of 2001. 4 Consumer Disputes Redressal Forum, Amritsar (in short "District Forum") seeking directions against the appellants to charge only the reserved price and not to charge the interest or penal interest or compound interest from the respondents. Compensation, interest and costs were also prayed.
10. The appellants filed the written reply. It was admitted that the commercial plots were to be allotted at public auction which was scheduled to be held on 20.2.1998 at 11.00 A.M. and the shopping complex was named as Shaheed Bhagat Singh Extension Market, near Central Bus Stand, Amritsar. It was also admitted that the reserved price was Rs.13,000/- per square yard and every bidder was required to deposit the security amount of Rs.25,000/-. It was pleaded that the basic amenities were already provided in that area where the shops were allotted to the respondents. It was further pleaded that if any civic amenities remain to be provided, it would be provided when the area is developed. It was denied if there was any agreement at the time of auction to provide basic amenities in that area, although it is the statutory duty of the appellants to provide civic amenities to all the residents of the area of the appellants Municipal Corporation.
11. It was admitted that Rakesh Kumar respondent No.1 had given the bid for plot No.25 at the rate of Rs.21,000/- per sq. yard. As per the terms and conditions of the auction, he was to pay the full amount to the tune of Rs.9,57,307/- in installments but he has not paid the full amount and he is running into arrears of Rs.6,67,307/-. For the recovery of this amount notice dated 15.2.2000 was already issued to him and in order to avoid his liability he has filed the present complaint.
12. It was further pleaded that Shop No.26 has come to be transferred to respondent No.2. Respondent No.2 has also failed to make full payment and was running into arrears of Rs.4,51,600/- for the recovery of which notice dated 20.6.2000 has been issued to respondent No.2.
First Appeal No.1288 of 2001. 5
13. It was further pleaded that respondent No.3 was allotted shop no.27. He has also failed to make the full payment and is running into arrears of Rs.6,32,400/- for which notice dated 15.2.2000 has already been issued to him.
14. It was also pleaded that Shop No.28 was allotted to Satish Grover respondent No.4 who has also failed to make full payment and is in arrears of Rs.5,32,400/- for which notice dated 15.2.2000 has already been issued to respondent No.4.
15. It was further pleaded that a standard site plan was issued to all the successful bidders for raising the construction of their respective sites. The footpath and the metalled road have been provided in that area where the suit properties are situated. The respondents are avoiding to make the payment payable by them to the appellants and to take the shelter they have filed the present false and frivolous complaint against the appellants. It was denied if there was any agreement to provide electricity connections to the respondents. Only the Punjab State Electricity Board was the sanctioning authority who can sanction the electric connection to the respondents. However, the private staff has been deployed in the area for sanitary purposes. The civic amenities which are necessary for running the shops in the suit area have already been provided by the appellants. However, the respondents have failed to perform their part of the agreement by holding back the payments payable by them to the appellants. Hence dismissal of the complaint was prayed.
16. Vipan Kumar respondent has appeared as CW1. He proved his affidavit Ex.C1 and also tendered himself for cross-examination. He also proved documents Ex.C2 to Ex.C28. On the other hand, the appellants proved the affidavit of Pardeep Attri, SDO, Estate Officer, Municipal Corporation, Amritsar as Ex.R1 and he also tendered himself for cross-examination. The appellants also proved allotment letter Ex.R2.
17. After considering the pleadings of the parties and the affidavits/documents placed on file by them, the learned District Forum accepted the complaint partly First Appeal No.1288 of 2001. 6 with costs of Rs.500/- vide impugned order dated 18.10.2001 and directed the appellants not to charge penal interest on the unpaid installments from the respondents.
18. Hence First Appeal No.1288 of 2001 has been filed by the appellants to challenge the legality and validity of the impugned judgment dated 18.10.2001 and it was prayed that the said judgment be set aside.
19. On the other hand, the respondents have filed First Appeal No.1303 of 2001 seeking modification of the impugned judgment dated 18.10.2001 and it was submitted that the relief prayed for in the complaint be granted to the respondents.
20. Record has been perused. Submissions have been considered.
21. The version of the respondents was that a rosy picture was presented by the appellants at the time of auction by the prospective bidders. It was represented to them that the plots would be sold in auction only after providing the footpath, parking, fountain, green park, water works and the metalled roads. It was also promised to them that basic amenities would be provided immediately. It was also pleaded that what to talk of fountains, parking, greenery which were promised by the appellants to the prospective bidders, the area of shopping complex gives constant foul smell due to heaps of human excreta. It was also pleaded that the open space lying in front of the shops of the respondents was being utilized by the public to answer the call of nature and, therefore, no customer is attracted to that area. Hence it was prayed that the appeal filed by the respondents be accepted.
22. On the other hand, the appellants have taken the plea that no such promise was made to the prospective bidders, although it was the basic duty of the appellants to provide the civic amenities to all the residents of the area. It was also pleaded that footpath and roads have already been provided in the area where the plots had been purchased by the respondents.
First Appeal No.1288 of 2001. 7
23. The notice of public auction has been proved by the respondents as Ex.C9. The location of these plots clearly mentioned in the notice is near Central Bus Stand and the name to that area was given as Shaheed Bhagat Singh Extension Market. It is nowhere provided in this public notice if any fountain, parking or green park was to be provided by the appellants. Therefore, the plea taken by the respondents to that effect appears to be a concocted story. So far as the second version of the respondents is concerned that the area was lying open and was being used by the public to answer the call of nature or that the heaps of human excreta was lying there, it was open to them to bid or not to bid at the time of bidding for the plots. The area was specified where the plots were to be carved out. If that area was so bad, it was for the respondents not to have bidded for the plots.
24. It was specifically mentioned in the public notice that the successful bidder was to deposit 25% of the total price and the remaining amount was payable without interest within seven days and if the amount was to be paid in six monthly installments then the interest was chargeable at the rate of 12% per annum. If the amount is not paid in time then the penal interest was chargeable from the allottees at the rate of 18% per annum. Therefore, terms and conditions of allotment were made clear to the respondents vide auction notice Ex.C9 proved by the respondents themselves.
25. Even the allotment letter to Rakesh Kumar respondent dated 11.3.1998 has been proved as Ex.C5, according to which, again respondent No.1 was required to make the payment without interest within a week or to make the payment in six monthly installments with interest at the rate of 12% per annum. It was also specified that if any amount was not paid in time, then penal interest was chargeable from the allottee. The respondents had offered the bids and had purchased the plots after understanding these terms and conditions of the allotment by way of public auction. Therefore, the respondents have no right to plead to the contrary and seek relief on imaginary grounds. First Appeal No.1288 of 2001. 8
26. Vipan Kumar respondent while appearing as CW1 has stated in the cross- examination that he is not running his business in Shop No.27. He identified the photograph of his shop Ex.C20 and admitted that there is a footpath in front of his shop. He also admitted that the goods have been stored in the shop. Photographs Ex.C12 and Ex.C13 rather show that constructions are coming up in that area. It is not a deserted area as pleaded by the respondent. Rather a hub of shopping complex is coming up. In photograph Ex.C14 scooter was being driven on the road in front of these shops. These photographs clearly show that the footpath is there and road is also constructed in front of the shops of the respondents.
27. However, some garbage etc. appears to be lying in front of these shops which is discernible from the photographs Ex.C12 to Ex.C14 but that alone does not authorize the respondents to hold back the payment of installments, interest and penal interest as was specified in the public notice as also in the allotment letter.
28. The law has been settled by the Hon'ble Supreme Court in the judgment reported as "Municipal Corporation Chandigarh & Ors. etc. v. M/s Shantikunj Investment Pvt. Ltd. etc." 2006 AIR SCW 1169. Similar question had come up for consideration before the Hon'ble Supreme Court that where basic amenities have not been provided can the allottees/purchasers hold back the amounts payable under the letter of allotment/letter of sale. It was held by the Hon'ble Supreme Court as under:-
"23. We have bestowed our best of the attention to the provisions of the Act and the Rules. On a plain reading of the definition "amenities" read with Rule 11(2) and Rule 12, it cannot be construed to mean that the allottees could take upon themselves not to pay the lease amount and take recourse to say that since all the facilities were not provided, therefore, they are not First Appeal No.1288 of 2001. 9 under any obligation to pay the instalment, interest and penalty, if any, as provided under the Act and the Rules. It is not possible to accept a sweeping proposition that if all the facilities or amenities are not provided, then the allottees/lessees can take upon themselves not to pay the lease amount, interest and penalty would be going too gar. It has never been the condition precedent. It is true that in order to fully enjoy the allotment, proper linkage is necessary. But to say that this is a condition precedent, that is not the correct approach in the matter."
29. This judgment was followed by this Commission in the judgment dated 29.9.2008 passed in First Appeal No.685 of 2003 "Sunil Talwar and anr. vs. Municipal Corporation, Amritsar".
30. The respondents were liable to make the payment in lacs and in order to avoid the payment of these amounts they filed the complaint by taking the shelter of non-availability of civic amenities. The appellants are a public body and the amount is to be utilized by them to provide the same very basic amenities which are now being prayed for by the respondents. On the one hand, the respondents are holding back the money payable to the appellants and on the other hand, they are asking the appellants to provide them the basic amenities. If the appellants do not have the funds with them how would they provide the basic amenities to the residents living in the municipal area of the appellants.
31. Moreover, the respondents have raised the construction over the plots. They are using the shops to their benefits but they are holding back the money payable by them to the appellants for these very shops constructed on the plots which have been purchased by them from the appellants.
32. Learned District Forum was not justified in waiving the penal interest when there was a specific condition to that effect in the allotment letter that on First Appeal No.1288 of 2001. 10 the failure of the appellants to pay the amount on schedule the allottees shall be liable to pay penal interest.
33. In view of the discussion held above, the appeal filed by the appellants is accepted and the impugned judgment dated 18.10.2001 is set aside. The appellants are held entitled to recover the money from the respondents as per the terms and conditions of the letter of allotment. However, the appellants shall clean the area in front of the shops of the respondents from all garbage within two months failing which they would be liable to be hauled up in contempt proceedings which might be initiated by the respondents in the executing court. First Appeal No.1303 of 2001:
34. Since the impugned order dated 18.10.2001 has been set aside in First Appeal No.1288 of 2001 above, this appeal is dismissed with costs of Rs.10,000/-.
35. The arguments were heard in both these appeals on 30.10.2008 and the orders were reserved. Now, the order be communicated to the parties.
36. The appeals could not be decided within the statutory period because of heavy pendency and non-availability of the requisite Benches and infrastructure in the State Commission. The State Government has now sanctioned one additional Bench for the State Commission but it has not become functional for which the process is going on.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(MRS. JASBIR KAPOOR)
MEMBER
November 12, 2008 (LT. COL. DARSHAN SINGH [RETD.])
Bansal MEMBER
First Appeal No.1288 of 2001. 11