State Consumer Disputes Redressal Commission
Smt. Ranjit Kaur Wd/O Shri Hardhian ... vs Punjab Urban Planning & Development ... on 13 May, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.1465 of 2006
Date of institution :27.11.2006
Date of decision :13.5.2011
Smt. Ranjit Kaur wd/o Shri Hardhian Singh Sood, R/o 83, Basant Vihar, Urban
Estate, Phase-II, Jalandhar.
.......Appellant
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
First Appeal against the order dated 4.10.2006 of
the District Consumer Disputes Redressal Forum,
Jalandhar.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mr. B.S. Sekhon, Member.
Present :-
For the appellant : Shri S.S. Chauhan, Advocate. For the respondents : Shri G.S. Arshi, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
The appellant had purchased one residential plot bearing No.83 measuring 2700 sq. yards from the respondents for an amount of Rs.1,31,000/- in the area of Urban Estate Phase-II, Jalandhar. The payment was to be made in installments with interest at the rate of 7% per annum. The appellant had purchased it in an open auction in the year 1982 vide allotment letter dated 6.12.1982.
2. It was further pleaded that the appellant failed to deposit the installments due to her financial hardships on which she received the notice from the respondents dated 28.2.1991 asking her to appear before the respondents. The First Appeal No.1465 of 2006. 2 appellant arranged the money and deposited the banker's cheque dated 22.7.1997 for an amount of Rs.1,06,846.84P with the respondents against receipt dated 22.7.1997. This cheque was retained by the respondents. In the month of April 2002 the respondents asked the appellant to get the banker's cheque revalidated. The appellant complied with it and deposited the same with the respondents against receipt dated 3.5.2002.
3. It was further pleaded that the appellant through her attorney applied for execution and registration of the sale deed in the month of May 2002. However the respondents raised the demand of Rs.1,54,210/- vide letter dated 12.11.2002 as extension fee upto 31.12.2002 and another amount of Rs.2,62,893/- as penal interest. The appellant appeared before the Chief Administrator/Addl. Chief Administrator of the respondents. The demand was set aside vide letter dated 6.10.2003 and the case was remanded to respondent No.2 for fresh decision. Respondent No.2 again raised the demand of Rs.2,63,042/-. It was illegal and against the statutory provisions of the Punjab Urban Estates (Development & Regulation) Act, 1964 and against the provisions of the terms and conditions of the sale deed of this plot. This illegal demand of the respondents caused mental tension, harassment, inconvenience and financial loss to the appellant. She filed the complaint in the District Consumer Disputes Redressal Forum, Jalandhar (in short "District Forum") challenging the demand of Rs.2,63,042/- from her. She also prayed for compensation to the tune of Rs.4,90,000/- and also sought direction against the respondents to execute the sale deed in her favour.
4. The respondents filed the written reply. It was admitted that the appellant had purchased plot No.83 measuring 2700 sq. yards for an amount of Rs.1,31,000/- in the area of Urban Estate Phase-II, Jalandhar in an open auction. She had deposited 25% of the amount at the time of auction and the remaining amount was payable in installments with interest at the rate of 7% per annum vide allotment letter dated 6.12.1982.
First Appeal No.1465 of 2006. 3
5. It was further pleaded that the appellant was to make the entire payment of the installments upto 28.8.1984. However the appellant failed to make the payment till 2002 in spite of repeated reminders issued by the respondents to the appellant on 19.11.1987, 20.7.1988, 26.8.1988, 16.8.1990, 29.11.1990 and 13.12.1990. The appellant had also filed a civil suit against the respondents in the year 1991 to get the recovery stayed and delayed the payment till 2002.
6. It was pleaded that the appellant was behaving strangely when in response to letter dated 28.2.1991 she allegedly made the payment by banker's cheque dated 22.7.1997 i.e. more than after 6 years she had received the demand letter. The banker's cheque for an amount of Rs.1,06,846.84P had to be kept pending as the appellant had obtained the stay order from the civil court in civil suit No.181 of 2001 (Ranjit Kaur Sood v. State of Punjab and another) instituted on 2.4.1991. The said civil suit was dismissed by the court of Smt. Mandeep Pannu, Additional Civil Judge, Senior Division, Jalandhar on 1.3.2002. Thereafter the respondents had asked the appellant to get the banker's cheque revalidated. The appellant was playing hot and cold in the same breath. On the one hand, she had issued the banker's cheque but on the other hand, she had obtained the stay order against the recovery of the amount.
7. It was denied if the demand raised by the respondents vide letter dated 12.11.2002 was illegal. The demand of extension fee of Rs.1,54,210/- was made as the appellant had not informed the respondents if she had raised construction of the building on the plot in question. She had never obtained the completion/construction certificate from the competent authority. The demand of extension fee was cancelled immediately after the appellant had brought to the notice of the respondents that construction was already made. However the appellant was still liable to pay the penal interest demanded vide letter dated 12.11.2002.
8. It was further pleaded that the demand of Rs.2,63,042/- was not illegal nor it had caused mental tension or harassment to the appellant nor this demand was First Appeal No.1465 of 2006. 4 illegal. It was denied if there was any deficiency in service on the part of the respondents. Dismissal of the complaint was prayed.
9. The appellants proved documents Ex.C-1 to Ex.C-9. She also filed her affidavit as Ex.C-10.
10. On the other hand, the respondents filed the affidavit of B.S. Bajwa, Estate Officer, PUDA, Jalandhar as Ex.O-1. They also proved documents Ex.O-2 to Ex.O-11.
11. Learned District Forum accepted the complaint vide impugned order dated 4.10.2006 by observing that the demand of Rs.2,63,042/- was very liberal whereas the respondents could even cancel the allotment when the appellant had failed to make payment from 6.12.1982 to 20.7.1997. However the respondents were directed to execute and get registered the sale deed in favour of the appellant after the appellant deposits the amount of Rs.2,63,042/-.
12. Hence the appeal.
13. The submission of the learned counsel for the appellant was that there was no statutory provision in the Act or in the letter of allotment dated 1.10.1982 by which the respondents could charge penal interest from the appellant. Hence it was prayed that the appeal be accepted and the impugned judgment dated 4.10.2006 be modified and charging of penal interest be set aside.
14. On the other hand, the submission of the learned counsel for the respondents was that there was no merit in the present appeal and the same be dismissed.
15. Record has been perused. Submissions have been considered.
16. Clause 8 of the allotment letter dated 1.10.1982 (Ex.C-1) reads as under:-
"8. In the event of non-payment of any installment of sale price by the 10th of the month following the month in which it falls due or such extended period as may be allowed by the Estate Officer not exceeding three months in all from the date on which the First Appeal No.1465 of 2006. 5 installment was originally due, the Estate Officer, may proceed under section 10 of the said Act and resume the site or building or both as the case may be and forfeit the whole or any part of the money paid in respect thereof, which in no case shall exceed ten per cent of the total amount of consideration money, interest and other dues payable in respect of the sale of the site."
17. Clause 10 of the allotment letter dated 1.10.1982 (Ex.C-1) reads as under:-
"10. Until the entire consideration money together with interest or any other amount, if any, due to the State Govt. on account of the sale of above said site, is paid, the site shall continue to belong to the State Government."
18. Clause 14 of the allotment letter dated 1.10.1982 (Ex.C-1) reads as under:-
"14. In the event of breach or non-compliance of any of the conditions of sale of the site, the Estate Officer may proceed under section 10 of the said Act and resume the site or building or both, as the case may be and forfeit the whole or any part of the money paid in respect of the site which in no case shall exceed ten per cent of the total amount of consideration money, interest and other dues payable in respect of the sale of the site.
19. Since the appellant is an auction purchaser, therefore, she is not a consumer qua the respondents under the Consumer Protection Act, 1986. It was observed by the Hon'ble Supreme Court in the judgment reported as "U.T. Chandigarh Administration and anr. vs. Amarjeet Singh & Ors." 2009 (3) CPR 97 (SC) as under:-
First Appeal No.1465 of 2006. 6
"14. Where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser/lessee participates in the auction after having an opportunity of examining the site, the bid in the auction is made keeping in view the existing situation, position and condition of the site. If all amenities are available, he would offer a higher amount. If there are no amenities, or if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction. Once with open eyes, a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment, or the ground rent, on the ground that the site suffers from certain disadvantages or on the ground that amenities are not provided. With reference to a public auction of existing sites (as contrasted from sites to be 'formed'), the purchaser/lessee is not a consumer, the owner is not a 'trader' or 'service provider' and the grievance does not relate to any matter in regard which a complaint can be filed. Therefore, any grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute and the fora under the Act will not have jurisdiction to entertain or decide any complaint by the auction purchaser/lessee against the owner holding the auction of sites."
20. Otherwise also the public auction had taken place in which the appellant was one of the highest bidder for plot No.83 measuring 2700 sq. yards and the plot was allotted to her on 6.12.1982 (Ex.A-1). The payment was to be made by the First Appeal No.1465 of 2006. 7 appellant as per the schedule laid down in the allotment letter dated 6.12.1982 issued by the respondents to the appellant Ex.A-2. The entire payment was payable upto 28.8.1984. Admittedly the first payment was made by the appellant vide banker's cheque dated 22.7.1997. Thereafter she had obtained the stay order and the payment was made by her on 3.5.2002. It means, therefore, that the appellant had failed to make the payment starting from 28.2.1983 till 3.5.2002 i.e. for about 18 years.
21. The respondents were entitled to resume the plot and to forfeit the amount deposited by the respondents but it was the generous approach of the respondents that they had only demanded the penal interest.
22. The penal interest is a smaller penalty than the resumption of the plot and forfeiture of the amount. Therefore it was obviously covered by that clause.
23. It is also very surprising that the appellant had raised the construction without getting the building plans approved from the respondents and she had started utilizing the plot without making the payment of the plot.
24. So far as the judgment reported as "H.U.D.A. v. RAJ SINGH RANA"
III(2008) CPJ 71 (SC) relied upon by the learned counsel for the appellant is concerned, there was no such clause corresponding to clause 8, 10 or 14 in the allotment letter dated 1.10.1982. Moreover in Raj Singh Rana's case (supra) the question before the Hon'ble Supreme Court was the rate of interest on the additional/enhanced price of the plot for which there was no provision in the allotment letter. It was rather specifically held that the rate of interest provided in the agreement shall prevail. Therefore this judgment is not applicable to the facts of this case.
25. The failure of the appellant in making the payment of the plot price by way of installments starting from 28.2.1983 till 3.5.2002 for 18 years is a total misconduct on her part which does not call for any mercy on the appellant. The case of the appellant entirely fell within the scope of clause 8 and clause 14 of the allotment letter dated 1.10.1982 (Ex.C-1) and therefore, the plot was liable to First Appeal No.1465 of 2006. 8 resume. The appellant should thank her stars that the plot was not resumed and the respondents are only demanding the penal interest for her failure to make the payment for 18 long years.
26. Therefore the terms and conditions and the statutory provisions of the Punjab Urban Estates (Development and Regulation) Act, 1964 and the rules framed thereunder are applicable to this allotment.
27. Since the appellant being an auction purchaser is not the consumer of the respondents and since the respondents are neither the traders or service providers, therefore, the complaint in the Consumer Forum was not maintainable. But since the respondents have not filed any appeal, therefore, that finding cannot be set aside.
28. In view of the discussion held above, there is no merit in the present appeal and the same is dismissed with costs of Rs.20,000/-.
29. The arguments in this case were heard on 4.5.2011 and the order was reserved. Now, the order be communicated to the parties.
30. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
May 13 , 2011 (BALDEV SINGH SEKHON)
Bansal MEMBER