National Consumer Disputes Redressal
Improvement Trust, Sangrur vs Poonam on 11 September, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3119 OF 2007 (From the Order dated 22.05.2007 in Appeal No. 585 of 2006 of State Consumer Disputes Redressal Commission, Chandigarh, Punjab) IMPROVEMENT TRUST, SANGRUR THROUGH ITS EXICUTIVE OFFICER PETITIONER VERSUS POONAM W/O BHAGWANDASS RESPONDENT WITH REVISION PETITION NO. 3354 OF 2007 (From the Order dated 22.05.2007 in Appeal No. 585 of 2006 of State Consumer Disputes Redressal Commission, Chandigarh, Punjab) POONAM W/O BHAGWANDAS PETITIONER VERSUS IMPROVEMENT TRUST, SANGRUR THROUGH ITS EXICUTIVE OFFICER AND ANOTHER RESPONDENTS BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MR. B.K. TAIMNI, MEMBER FOR IMPROVEMENT TRUST, SANGRUR: MR. S.C. GUPTA, ADVOCATE. FOR POONAM W/O BHAGWANDASS: MR. VIVEK SHARMA, ADVOCATE. PRONOUNCED ON : 11.09.2009 O R D E R
ASHOK BHAN J., PRESIDENT This Order shall dispose of Revision Petition No. 3119 of 2007 filed by the Improvement Trust, Sangrur which was the Opposite Party before the District Consumer Disputes Redressal Forum, Sangrur, Punjab (hereinafter referred to as the District Forum for short) and Revision Petition No. 3254 of 2007 filed by Smt. Poonam who was the complainant before the District Forum. These are cross Revision Petitions filed against the same common Order passed by the State Consumer Disputes Redressal Commission, Chandigarh, Punjab (hereinafter referred to as the State Commission for short) in F.A. No. 585 of 2006 decided on 22.05.2006 and are disposed of by a common Order.
Briefly stated, the facts of the case are:-
Improvement Trust, Sangrur had advertised for sale/allotment of plots in 12 acres Duggi Area Scheme outside Sunami Gate, Sangrus in the year 1997 and the complainant had applied for one plot of 200 sq. yards and deposited Rs.4,000/- as earnest money. After the completion of the allotment process, the complainant was allotted one plot of 200 sq. yards vide letter No. 2346 dated 15.05.2001 and, along with it, letter No. 2347 was also issued to her for taking delivery of possession. Complainant deposited 1/4th of the balance sale consideration on 19.04.2001 and, thereafter, deposited the remaining balance on 13.06.2001 availing 5% rebate.
As per the Terms and Conditions of Allotment, complainant was mandatorily required to complete the building on the plot allotted to her within 3 years from the date of issue of allotment letter, after getting the plan of the proposed building approved from the Improvement Trust or otherwise she was liable to pay non-construction fee.
Complainant did not start the construction nor even applied for approval of the building plan. Thus, the Improvement Trust issued a letter/notice dated 07.10.2003 for charging non-construction fee. Complainant instead of complying with the notice dated 07.10.2003, filed a Complaint before the District Forum, inter alia, alleging non-providing of basic amenities because of which she could not start construction on the plot.
Improvement Trust, Sangrur, on being noticed, filed its Written Statement and took a preliminary objection that the Complaint was belated and, therefore, time barred. That the plot was allotted to the complainant on 15.05.2001 and, immediately thereafter, letter of possession was issued. The Complaint was filed on 12.08.2005 which was beyond period of 2 years statutorily provided under Section 24(a) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act for short). Regarding the deficiency in service, it was stated that the basic amenities had been provided for. The construction was to be completed within 3 years from the date of letter of allotment and the Improvement Trust was within its right to issue letter/notice dated 07.10.2003. The site was sold to the respondent on as is where is basis. It was stated that between 2001 to 2003, large number of persons had constructed their houses and had starting residing in them.
District Forum, after taking into consideration the facts stated in the pleadings and the evidence lead by the parties, allowed the Complaint holding that there was deficiency on the part of the Improvement Trust in not providing the basic facilities and the complainant was justified in not completing the construction within 3 years of the letter of allotment. The Complaint was disposed of with the following directions:-
(a) Deliver/offer possession of the plot with the promised basic amenities of metalled roads, water supply and sewarage system at the earliest;
(b) Withdraw the demand on account of non-construction fee raised vide letter dated 7.10.2003 Ex C-8;
(c) Count the time limit for construction of the house from the date of delivery/offer of possession of the plot alongwith the remaining amenities of water supply, sewarage system and metal-led roads;
(d) Pay to the complainant compensation on the amount of the price of plot deposited by her @ 9% per annum from the date of deposit till delivery/offer of possession of the plot with the remaining basic amenities as aforesaid, on account of pecuniary loss, mental agony and physical harassment;
(e) Pay a further sum of Rs.1000/- to the complainant.
Improvement Trust, Sangrur, being aggrieved by the Order passed by the District Forum, filed an Appeal before the State Commission. State Commission, by the impugned Order, dismissed the Appeal and gave following directions:-
(i) The notice issued to the complainant for non-construction fee would stand quashed. However, non-construction fee would be liable in accordance with the rules and regulations only w.e.f 1st October, 2006 (after giving three years period from September 2003 when basic amenities whatsoever, was provided as per the Improvement Trust itself).
(ii) The Improvement Trust will pay compensation of Rs.70,000/- to the complainant.
(iii) Litigation costs of Rs.1,000/- awarded by the District Forum are upheld.
Counsel for the Improvement Trust, Sangrur contends that the Order passed by the Foras below, apart from being wrong, is contrary to the Judgment/Order passed by this Commission in two other cases, i.e., The Improvement Trust, Sangrur and Another v. Surinder Kaur and Another, etc. in Revision Petition Nos. 1339, 1671, 1672 and 1673 of 2006 wherein this Commission relying upon the following observations of Honble the Supreme Court of India in paragraphs 28 and 38 of its Judgment in Municipal Corporation Chandigarh and Others v. M/s. Shantikunj Investments (P) Limited reported in (2006) 4 SCC 109,: -
28. It is true that once allotment of the land has been made in favour of the allottee, he can take possession of the property and use the same in accordance with the Rules. That does not mean that all the facilities should be provided first for so called enjoyment of the property this was not the condition of auction. Party knew the location & condition prevailing thereon. The interpretation given by the Division Bench of the High Court of Punjab & Haryana and contended before us cannot be accepted as a settled proposition of law. In the present case, as per the Act and the Rules it is never a condition precedent of the auction or as per the lease that all the facilities like, road, water-supply, street lighting, drainage, sewerage, public building, horticulture, landscaping shall be a condition precedent.
Nowhere in the conditions of lease or in the auction it is provided that this will be done first though it had been contended by the Administration that the basic amenities have already been provided. Be that as it may, in the present context it cannot be construed that it is a condition precedent.
38. though it was not a condition precedent but there is obligation on the part of the Administration to provide necessary facilities for full enjoyment of the same by the allottees. We therefore, remit the matter to the High Court for a very limited purpose to see that in cases where facilities like kutcha road, drainage, drinking water, sewerage, street lighting have not been provided, then in that case, the High Court may grant the allottees some proportionate relief. Therefore, we direct that all these cases be remitted to the High Court and the High Court may consider that in case where Kutcha road, drainage, sewerage, drinking water facilities have been provided, no relief shall be granted but in case, any of the facilities had not been provided, then the High Court may examine the same and consider grant of proportionate relief in the matter of payment of penalty under Rule 12(3) and delay in payment of equated installment or ground rent or part thereof under Rule ( 12(3A) only.
held as under:-
Hence, it would be difficult to arrive at the conclusion that the complainants are entitled to have compensation for the alleged loss due to delay of one year in providing the facilities such as drinking water, drainage, sewerage, roads, etc. It is to be reiterated that the sites were allotted as it is where it is basis. As per the rule, the said facilities were to be provided in the near future. But in any case, it was not a condition precedent. Therefore, it is apparent that the award of compensation of Rs.50,000/- to the complainants cannot be justified. Hence, that part of the order requires to be set-aside.
The Order of this Commission in Revision Petition No. 1339 of 2006 in Surinder Kaurs case (supra) pertains to the same Scheme in which the possession letter had been similarly issued to the allottees. In the said case, this Commission set aside the directions issued by the State Commission to pay the compensation of Rs.50,000/-.
During the pendency of these Revision Petitions, we have directed the Improvement Trust, Sangrur on 04.10.2007to file an Affidavit dated 30.01.2008 wherein information regarding supply of basis amenities such as water supply, sewarage, street lights and roads, etc. have been given on the basis of and as provided by the official records. As per the affidavit, the date of complete of the said basic civil amenities are as follows:-
S.No. Basic Civil Amenities Date of Completion a.
Water Supply and Sewerage 18-11-2002 b.
Street Light 31-05-2001 c.
Roads 21-10-2002 Similarly, Affidavit has been filed in Revision Petition No. 1339 of 2006 in Surinder Kaurs case (supra). In the said case, the compensation of Rs.50,000/- to the complainants was set aside. Based on such Affidavit, this Commission held as under: -
However, considering that there was delay of one year in providing the facilities as mentioned above, it would be just and proper to direct the petitioner Improvement Trust to grant three years period from November, 2002 to November, 2005 for construction of the premises and not to levy any non-construction penalty for the said period.
In the result, the Revision Petitions are partly allowed. The order passed by the Stage (sic) Commission directing the petitioner to pay the compensation of Rs.50,000/- is set aside. The petitioner improvement trust is directed to grant three year period from November, 2002 to November, 2005 for construction of the premises and not to levy any non-construction penalty for the period, and, if levied, shall be refunded.
We respectfully follow the aforesaid Judgment.
For the reasons stated above, the Revision Petitions are partly allowed, Orders passed by the Foras below directing the Improvement Trust, Sangrur to pay Rs.70,000/- as compensation is set aside. The Improvement Trust, Sangrur is directed to not to levy any non-construction penalty for the period from November, 2002 to November, 2005. After November, 2005, the complainant would be liable to pay non-construction fee till the construction on the plot in question is completed.
The Revision Petitions are disposed of in the above terms leaving the parties to bear their own costs.
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(ASHOK BHAN J.) PRESIDENT .
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(B.K. TAIMNI) MEMBER