State Consumer Disputes Redressal Commission
Kanwar Rajinder Singh vs Improvement Trust Amritsar on 26 May, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.32 of 2016
Date of Institution : 11.01.2016
Order Reserved on: 25.05.2017
Date of Decision : 26.05.2017
Kanwar Rajinder Singh S/o Sh. Ghansham Singh, R/o Kanwar
Public School, Katra Moti Ram, I/s Hathi Gate, Amritsar.
.....Appellant/complainant
Versus
Amritsar Improvement Trust, Amritsar through its Chairman/EO,
Ranjit Avenue, Amritsar.
.....Respondent/opposite party
First Appeal against order dated
09.12.2015 passed by the District
Consumer Disputes Redressal Forum,
Amritsar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. K.P. Singh, Advocate For the respondent : None ............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Order dated 09.12.2015 of District Consumer Disputes Redressal Forum Amritsar (in short the 'District Forum) has been challenged in this appeal by the appellant, dismissing the complaint of the appellant. The appellant of this appeal is the complainant before the District Forum and respondent of this appeal is opposite party therein and they be referred as such hereinafter for the sake of convenience, as arrayed in the complaint.First Appeal No.32 of 2016 2
2. The complainant has filed the complaint under Section 12 of Consumer Protection Act, 1986 (in short the 'Act') against OP on the averments that plot no.13-B in Mall Mandi Scheme, Guru Teg Bahadur Nagar, Amritsar was allotted to his father Ghansham Singh on10.06.2005. It was transferred to complainant on 22.08.2006 and total price of the plot Rs.6,03,000/- was paid to OP. OP assured the delivery of possession alongwith necessary amenities like as water supply, motorable road and sewerage within three years from the date of allotment to complainant, but the same has not been provided despite approaching OP even after lapse of three years scheduled period. The earlier complaint filed by him against OP was allowed by the District Forum, vide order dated 07.03.2011 and OP was directed to provide basic amenities within six months from the date of order. The amenities have not been provided by the OP, forcing the complainant to file the execution petition under Section 27 of the Act, wherein fine of Rs.7000/- was imposed upon OP for not complying with order dated 07.03.2011. The basic amenities have not yet been provided by OP in the above scheme, where the plot of the complainant is situated. Another execution application was filed by complainant against OP wherein one Kewal Kumar JE of Amritsar Improvement Trust made statement on oath that necessary amenities have not been provided and would be provided within coming four months. Possession alongwith basic amenities, as assured by OP, has not been provided to him from the date of allotment of plot i.e. on 10.06.2005. OP has been utilizing his hard earned money with interest thereupon without providing any service First Appeal No.32 of 2016 3 to him. OP only gave demarcation as well as possession to the complainant, as per order of the District Forum. Without providing basic amenities, it is no possession in the eye of law. The complainant filed complaint praying that OP be directed to pay interest @18% on total deposited amount of plot by him from the date of deposit till providing the necessary amenities to him and to pay litigation cost of Rs.20,000/- and further prayed for imposing of punitive cost upon OP for deficient service.
3. Upon notice, OP appeared and filed written reply by raising preliminary objections that complaint is not maintainable. The complainant had filed the complaint previously on the same cause of action, which was finally decided by the District Forum, vide order dated 07.03.2011. Even execution petitions have been filed by him for complying with order dated 07.03.2011 of the District Forum Amritsar. The complaint filed subsequently on the same cause of action is alleged to be not maintainable, but only sheer abuse of process of law. The complaint is alleged to be without cause of action. On merits, OP asserted that 90% basic amenities have already been provided to complainant in the above scheme. The possession of the property has already been given to the complainant. Non construction charges have been waived, as per order of the Forum. The complaint has been filed only to harass and vex the OP. OP prayed for dismissal of the complaint.
4. The complainant tendered in evidence affidavit alongwith documents Ex.C-1 to C-9 and closed the evidence. As against it, OP tendered in evidence affidavit alongwith documents Ex.OP-1 to First Appeal No.32 of 2016 4 Ex.OP-16 and closed the evidence. On conclusion of evidence and argument, the District Forum dismissed the complaint of the complainant by virtue of order dated 09.12.2015. Aggrieved by above order, the complainant now appellant has preferred this appeal against the same.
5. We have heard the learned counsel for the appellant as none appeared for the respondent in this appeal before us during the arguments of the appeal. Order dated 09.12.2015 in dismissing the complaint of the complainant now appellant has been impugned in this appeal by the appellant. Evidence on the record is required to be adverted to by us for adjudication of this appeal. Complainant now appellant claimed interest @18% per annum on the deposited amount from the date of its deposit till providing the necessary and basic amenities to the complainant by OP, beside cost of litigation of Rs.20,000/- and punitive costs as well. On the other hand, version of the OP now respondent in this appeal is that 90% of basic amenities have already been provided to the allottees of Mall Mandi Scheme, where the plot of the complainant is located. The non construction charges sought to be imposed upon the complainant for not raising the construction is scheduled time have been waived off by the OP. Affidavit of complainant is Ex.C-1 on the record, which has been minutely examined by us. Agreement of sale between the parties is Ex.C-2 on the record. Ex.C-3 is letter issued by OP to complainant with regard to transfer of the plot in his name. The complainant filed complaint with regard to the same subject matter against OP, which was previously decided by the District Forum Amritsar, vide Ex.C-4 First Appeal No.32 of 2016 5 in complaint no.945/10 instituted on 25.08.2010 decided on 07.03.2011. The complaint of the complainant with regard to the same subject matter was previously accepted with the direction to OP to provide the basic amenities i.e. water supply, motorable road and sewerage in the above scheme, in which plot of complainant is situated, within six months from 07.03.2011. The District Forum Amritsar has already finally disposed the dispute between the parties by virtue of order Ex.C-4 on 07.03.2011 in above case. Execution application no.129/11 was instituted on 09.09.2011 and decided on 29.08.2012 Ex.C-5 which was disposed of by the District Forum Amritsar by directing OP Improvement Trust to pay fine of Rs.7000/- under Section 27 of the C.P. Act for not making compliance of the order of the District Forum dated 07.03.2011 Ex.C-4 on the record. The complainant also wrote to Chairman of OP, vide Ex.C-6. The brochure containing terms and conditions of allotment is Ex.C-8 on the record. Ex.C-9 is the order passed by the District Forum Amritsar dated 02.01.2014 in execution application no.6-13 instituted on 08.01.2013. The District Forum imposed fine of Rs.10,000/- on the Chairman of Amritsar Improvement Trust under Section 27 of Act, out of which, the amount of Rs.7500/- was ordered to be paid to decree holder, now appellant, and Rs.2500/- to be deposited in legal aid fund payable by the Chairman of OP. To counter this evidence of complainant, OP tendered in evidence affidavit of Sandeep Rishi, Chairman of Amritsar Improvement Ex.OP-1. This witness deposed that the previous complaint filed by the complainant on the same subject matter has already been finally decided by the District Forum First Appeal No.32 of 2016 6 Amritsar on 07.03.2011. The complainant moved execution application on different occasions for compliance of order dated 07.03.2011. This witness stated that 90% basic amenities have already been provided to the allottees of Mall Mandi Scheme, where the plot of the complainant is situated. He further maintained that possession of the property has already been given to the complainant, whereas non construction charges were left to the discretion of the competent Court. He further stated that complainant filed fresh complaint on the same cause of action on which his earlier complaint was finally decided. Ex.OP-2 is the amount released for the purpose of providing amenities in the above scheme. Ex.OP-3 is the letter to District Magistrate by OP for providing police help. Ex.OP-4 is the copy of cheque of Rs.10,000/- in the name of complainant given by OP. Ex.OP-5 is letter addressed to Executive Officer Amritsar for electricity provision and sewerage pipe line provision. Ex.OP-6 to Ex.OP-13 are the letters from OP to different departments for providing the basic amenities in the above scheme. Ex.OP-14 is the copy of complaint no.596/09 filed by the complainant, which was decided on 01.12.2009. Ex.OP-15 is the copy of complaint no.945/10 filed by the complainant, decided on 07.03.2011 by the District Forum, wherein the OP was directed to provide the basic amenities i.e. water supply, moterable road, sewerage in the scheme within six months and further to pay Rs.10,000/- as compensation.
6. From hearing the arguments of Sh. K.P. Singh counsel for the appellant at length and perusal of the record, we are of this First Appeal No.32 of 2016 7 view that complainant has earlier filed the complaint with regard to this subject matter before the District Forum Amritsar, vide complaint no. 945/10, which finally decided on 07.03.2011. The District Forum Amritsar decided the complaint of the complainant by giving direction to OP to provide basic amenities within six months from the date of order. The complainant now appellant has filed present complaint again claiming interest @18% per annum on the total deposited amount till the date of completing the basic amenities by OP. In the previous complaint filed by the complainant against OP on the same subject matter, the District Forum Amritsar gave direction, vide order Ex.OP-15, to OP to provide basic amenities within six months period from that date to him. The District Forum awarded compensation of Rs.10,000/- to be payable to the complainant in that complaint. No appeal has been filed by the complainant against order dated 07.03.2011 of District Forum. Order passed by the District Forum Ex.OP-15 has become final and conclusive between the parties. Once the compensation of Rs.10,000/- has already been awarded to the complainant against OP and hence fresh complaint for interest @18% per annum on the deposited amount till providing the basic amenities is not competent. The same cause of action, wherein complaint no.945/10 finally decided on 07.03.2011, was consisted of. The law does not permit the splitting of cause of action so as to permit the fresh round up of litigation again and again between the parties. Since, the order of the District Forum dated 07.03.2011 contained in Ex.OP-15 already became final, therefore, we can not review the same, when no such appeal was preferred against the First Appeal No.32 of 2016 8 same order. Even otherwise, general principle of resjudicata would apply in this case. The present complaint is barred by the general principle of resjudicata. Consequently, the appellant cannot derive any benefit from law laid down in "Delhi Development Authority Vs. R.K. Meena"2009(2)CPJ-191 on this point.
7. As a corollary of our above discussion, we are in agreement with the findings of the District Forum that the possession of plot was given to the complainant in the year 2010 and his site plan was also approved in the year 2010 and the complainant was compensated by awarding him compensation in the previous complaint with regard to the same subject matter in this case. Now, the matter pertains within realm of executing court after final adjudication of previous complaint. The order passed by the District Forum dated 09.12.2015 is, thus, affirmed in this appeal by us.
8. As a sequitur of our above discussion, we find no merit in the appeal and the same is hereby dismissed.
9. Arguments in this appeal were heard on 25.05.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER May 26, 2017 MM