State Consumer Disputes Redressal Commission
Rup Chand Bhardwaj vs Estate Office, Gamada on 23 August, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SCO NO.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.845 of 2010.
Date of Institution: 13.05.2010.
Date of Decision: 23.08.2011.
Rup Chand Bhardwaj R/o H.No.715-A, MIG Super, Phase-XI, Sector-65, SAS
Nagar, Mohali.
.....Appellant.
Versus
1. Estate Office, GAMADA, PUDA Bhawan, Sector-62, SAS Nagar,
Mohali.
2. Chief Administrator, GAMADA, PUDA Bhawan, Sector-62, SAS Nagar,
Mohali.
.....Respondents.
First Appeal against the order dated
15.04.2010 of the District Consumer
Disputes Redressal Forum, SAS Nagar,
Mohali.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellant : Sh. Rup Chand Bhardwaj, in person. For the respondents : Sh. Balwinder Singh, Advocate. INDERJIT KAUSHIK, PRESIDING MEMBER:-
This order will dispose of two appeals i.e. First Appeal No.845 of 2010 (Rup Chand Bhardwaj Vs Estate Office, GAMADA & Anr.) and First Appeal No. 891 of 2010 (GMADA Vs. Rup Chand Bhardwaj), as both the appeals are directed against the same impugned order dated 15.04.2010 passed by the District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (in short "District Forum"). The facts are taken from 'First Appeal No. 845 of 2010' and the parties would be referred by their status in this appeal.
2. Facts in brief are that Sh. Rup Chand Bhardwaj, appellant/complainant (hereinafter called as "the appellant") filed a complaint u/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the First Appeal No.845 of 2010 2 respondents. In was pleaded in the complaint that the appellant was allotted Booth Site No.19 in Sector-71 vide allotment letter no.1124 dated 16.01.2003 as per the terms and conditions. The appellant was asked to pay the site price of Rs.10,45,564/- out of which, Rs.2,61,391/- were demanded in advance and the balance of Rs.7,84,133/- was to be deposited in six installments along with interest @ 15% which was reduced to 12% vide letter dated 25.11.2004. Schedule of the payment is as follows:-
Installment Due Date Amount of Interest Total payment Installment (In (In Rs.) payable(In Rs.) Rs.) 1st 14.07.2003 1,30,696 58,813 1,89,509 2nd 14.01.2004 1,30,696 49,011 1,79,707 3rd 14.07.2004 1,30,696 39,209 1,69,905 4th 14.01.2005 1,30,695 29,406 1,60,101 5th 14.07.2005 1,30,695 19,604 1,50,299 6th 14.01.2006 1,30,695 9,802 1,40,497 TOTAL 7,84,173 2,05,845 9,90,018 The appellant paid the demanded amount along with interest as per the details given below:-
1 Advance Paid 2,61,391/-
2 Balance Paid 7,81,173/-
3 Interest paid @ 12% as per letter dated 1,78,401/- 25.11.2004 on Rs.7,81,173/-
TOTAL 12,23,965/-
The appellant was entitled to take over the possession from the date of allotment i.e. 16.01.2003 as per condition no.10 of the allotment latter.
3. The respondents asked the appellant to visit their office on any working day to get the possession of the site, but the appellant was not entertained by the respondent. The appellant received memo no.7071 dated 07.04.2006, directing him to pay Rs.20,052/- as non-construction charges for First Appeal No.845 of 2010 3 the year 2006 and thereafter, the 'no objection certificate' was to be issued. Again, the appellant received a memo no.25313 dated 21.07.2009 to pay Rs.93,241/- as non-construction charges upto 2009.
4. Inspite of receiving the full demanded amount and repeated written and personal requests to the office, the respondent did not handover the possession of the said site to the appellant till date and pressed for depositing the non-construction charges.
5. The appellant lastly sent a notice dated 27.08.2009, requesting the respondent to withdraw the notices dated 07.04.2006 and 21.07.2009 and handover the possession, but no satisfactory response was received. Without delivery of possession, the appellant cannot construct the building and the demand of Rs.93,241/- was made without delivering the possession of the site and that amounts to deficiency in service on the part of the respondent. The appellant suffered huge monetary/financial loss as compared to the material cost during the year 2003 and the cost of material today and the loss comes to more than Rs.6.00 lacs. It was prayed that the respondents be directed to handover the possession and to withdraw the non-construction fee notice dated 21.07.2009 for Rs.93,241 and to pay Rs.20,000/- as compensation and Rs.6.00 lacs as cost of material of the construction.
6. In the reply filed on behalf of the respondents, preliminary objections were taken that the complaint as framed is not maintainable and is barred by time. The complaint is without cause of action and there is no deficiency in service on the part of the respondent. The appellant is trying to take benefit of his own failure in not taking the delivery of possession of the plot. The respondent was always ready to give the possession of the plot and there is no deficiency in service and the complaint is liable to be dismissed.
7. On merits, allotment of the site in question, payment made and the schedule of payment were admitted. It was also admitted that the respondent received the letters dated 19.07.2005, 24.05.2006, 13.07.2006, 25.08.2006, 21.11.2007, 07.01.2008, 06.08.2008, 20.03.2009, 04.05.2009, First Appeal No.845 of 2010 4 20.07.2009 and 27.08.2009. The appellant has not taken the delivery of possession, although he was asked to take the possession of the booth on any working, by coming present in the office, but he did not come present. The appellant was asked vide letter dated 14.12.2006 to get the proposed building plan of the booth approved and thereafter he would be given the demarcation, but the appellant failed to get the plan approved. In fact, the appellant was not interested in the plot and as such, he was not deliberately taking the possession of the plot. The appellant was just writing letters to create evidence and the fact that the appellant was not interested in the plot, is clear as he even requested the respondent to exchange his plot with booth no.11, but the appellant was intimated vide letter dated 24.12.2007 that he had already been asked to get the plans of the booth approved and thereafter, could get demarcation of the site and there is no policy of the respondent for the exchange of the plot. The respondent also intimated vide letter dated 07.01.2008 that the size of the booth is 8.3" x 25.6" = 23.37 sq.yds. and the plot is feasible and is lying vacant at the site and he can take the possession of the same. Various letters were written, asking the appellant to get the building plan approved and take the demarcation and raise the construction, but the appellant insisted for exchange of the plot. Again, he was asked to take possession of the booth at 10.00 a.m. on 15.06.2009, 13.08.2009 but he failed to take the possession and to raise the construction and he was asked to deposit the extension fee. The extension fee is legally chargeable for his failure to raise construction of the booth within the prescribed period by deliberately not taking the possession. The receipt of the legal notice is admitted. Rest all the allegations were denied being wrong and incorrect and it was prayed that the complaint may be dismissed.
8. Rejoinder was filed in which, averments of the complaint were reiterated and that of the written reply were denied.
9. Parties adduced evidence in support of their respective versions by way of affidavits and documents.
First Appeal No.845 of 2010 5
10. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that possession of the site was not delivered to the appellant upto 20.11.2007 and later on, condition for approval of building plan and demarcation was imposed. The imposition of this condition was an act of deficiency in service and till 10.12.2008, no non-construction charges can be demanded and the respondent is deficient in service, and allowed the complaint quashing the demand of Rs.93,241/- made vide notice dated 21.07.2009 Ex.C39. It was further directed to handover the possession of the booth in question without claiming any non-construction charges till 03.05.2010. Liability of the non-payment of non-construction charges starts w.e.f. 03.05.2010, if the possession is delivered on this date. Rs.10,000/- were awarded as compensation and Rs.3000/- as litigation costs.
11. Aggrieved by the impugned order dated 15.04.2010, the appellant-Rup Chand Bhardwaj has come up in the present appeal, with a prayer to grant period for completion of construction as per condition no.10 of the allotment letter dated 16.01.2003, suitable compensation for loss of business/rent if the construction would have been done in the year 2003 and suitable compensation for increasing prices and for the conveyance charges, correspondence.
12. On the other hand, the respondent-GMADA has filed cross appeal i.e. First Appeal No.891 of 2010 (GMADA Vs Rup Chand Bhardwaj.), with a prayer to set aside the impugned order.
13. We have gone through the pleadings of the parties, perused the record of the District Forum and heard the arguments advanced by Sh. Rup Chand Bhardwaj, appellant in person as well as by the learned counsel for the respondents.
14. The appellant argued in person that although the order of the District Forum is in his favour, yet the relief qua increase in material cost has not been awarded. The compensation awarded is also less and the appellant First Appeal No.845 of 2010 6 has suffered the loss due to non-delivery of the possession and for that reason, the construction could not be raised in time and the appeal may be accepted and period be granted for completion of construction as per condition no.10 of the allotment letter dated 16.01.2003 along with suitable compensation for loss of business/rent if the construction would have been done in the year 2003 and suitable compensation for increasing prices and for the conveyance charges, correspondence be also awarded.
15. On the other hand, it was contended on behalf of the respondents that the appellant was allotted booth no.19 and he was asked to take the possession of booth no.19, but the appellant was not interested in taking the possession of booth no.19 and he kept on corresponding with the respondents and thereafter, he wanted to have booth no.11 in exchange of booth no.19, but the same could not be given as there was no policy for the exchange of the plot and the correspondence was made for years together, just to serve the purpose for exchanging the booth with booth no.11 and ultimately on 19.07.2010, the possession was taken. The respondents are entitled to recover the non-construction charges and the demand has been rightly made. It was the appellant, who caused the delay in taking the possession, and for that, the respondent cannot be fastened with any liability and the order passed by the District Forum is against the facts and evidence on record and the appeal may be dismissed and the impugned order may be set aside.
16. We have considered the submissions made by the appellant as well as by the learned counsel for the respondents and have thoroughly examined the entire material placed on the file.
17. Admittedly, booth no.19 in Sector-71, Mohali was allotted to the appellant on 16.01.20003 and he paid the installments along with interest etc. The appellant kept on writing letters and the respondents also replied some of those letters and from this unending correspondence between the parties, it emerges that vide letter Ex.C3 dated 09.07.2003, the appellant requested for First Appeal No.845 of 2010 7 date and time for taking over the possession of the said booth and in response to the 4th reminder of the appellant dated 19.07.2005, the respondents vide letter Ex.R1 dated 25.10.2005 wrote back to the appellant to take possession of the booth on any working day after coming present in the office. He wrote another letter dated 24.05.2007 Ex.C7 wherein, he mentioned that the demand of Rs.20,052/- as construction charges be withdrawn and he be given 'no due certificate' and the date and time to take the possession be intimated. As per the noting on the letter Ex.C30 produced by the appellant, he visited the PUDA office, Mohali on 28.12.2005 for taking possession, but the case file and the dealing officer was not available. Vide letter Ex.C31 dated 27.06.2006, the respondents had raised a demand of Rs.20,052/- for depositing the construction fee. The appellant again wrote letters Ex.C8 and Ex.C9 dated 13.07.2006, Ex.C10 dated 25.08.2006, Ex.C11 dated 08.09.2006, Ex.C12 dated 29.09.2006 and Ex.C13 dated 16.11.2006 and the respondents vide letter Ex.C32/Ex.R2 dated 14.12.2006, asked the appellant to get the Proposed Plan approved and then only the demarcation can be given.
18. During this tug of war between the parties, the appellant wrote letter Ex.C14 dated 21.11.2007, repeating his request for possession of the booth and he also came out with a new demand that instead of booth no.19, he be given booth no.11 and vide letter Ex.R3, it was replied by the respondents that there is no policy of changing the site. The correspondence between the parties continued and the appellant wrote letters Ex.C15 to Ex.C27, but he could not get the possession and the respondents vide letter Ex.R4 dated 28.02.2008, asked the appellant to get the site plan of the building approved and then take the demarcation. Thereafter, letters Ex.R5 dated 27.08.2008, Ex.R6 dated 10.12.2008, Ex.R7 dated 15.04.2009 were written and the appellant was asked to come present to the office and take the possession on any working day. Again letter Ex.R8 dated 10.06.2009 was written by the respondents to take possession on 15.06.2009 at 10.00 a.m. First Appeal No.845 of 2010 8 and vide letter Ex.R9 dated 13.08.2009, it was mentioned that the appellant has not come present to take the possession and vide letter Ex.R10/C37, again the construction fee till the year 2009 was demanded.
19. The respondents vide letter Ex.R4/C33 dated 28.02.2008 mentioned the condition no.10 of the allotment letter for taking possession after getting the building plan approved. Clause-10 of the allotment letter Ex.C1 is reproduced below:-
"You are authorized to take the possession of the site".
20. In clause-10, there is no condition to get the zonal plan approved or building plan approved before delivering the possession. The respondents quoted the condition no.10 of the allotment letter, although there was no such condition, but in condition no.14 of the allotment letter Ex.C1, there is mention of getting the proposed building plan approved by the competent authority as per the policy framed by the Punjab Urban Planning and Development Authority from time to time. Without the demarcation and giving possession, it is not understood as to how the building plan was to be got approved. For preparing a site plan, demarcation of a plot is sine-quo-non and without knowing the boundaries and the area, how could site plan be prepared and approved, is not understood.
21. The respondents have received the entire payment of booth no.19 including the interest and thereafter, they kept on dilly-dallying the handing over of the possession and the approach of the respondents seems to be totally casual towards its own allottees and the red-tapism is apparent on the face of it. There was no hitch for the respondents to handover the possession to the appellant and after handing over the possession, the construction could be raised. How could a person raise construction without getting the possession and demarcation of the allotted place and how the non-construction can be demanded till the possession is not given? The acts of the respondents amount to deficiency in service on their part. The appellant was allotted the booth in question on 16.01.2003 and till the decision of the First Appeal No.845 of 2010 9 complaint, the possession was not handed over and it has been mentioned during the course of arguments as well as in the written arguments that the possession was handed over on 19.07.2010, when the contempt application was moved.
22. The District Forum has rightly quashed the demand of non- construction charges to the tune of Rs.93,241/- and has also mentioned the date from which the non-construction charges can be demanded if the possession is delivered on that date i.e. 03.05.2010 but as stated above, even on 03.05.2010, the possession was not handed over and it was handed over on 19.07.2010. The appellant requires sometime for raising the construction and the period generally given for this purpose is three years from the date of allotment/possession. Therefore, the respondents can charge the non-construction charges after the expiry of three years from 19.07.2010. No other relief as demanded by the appellant in the appeal can be granted.
23. Accordingly, the appeal (F.A. No.845 of 2010) filed by the appellant-Rup Chand Bhardwaj is disposed of with the above modification in the order of the District Forum, the remaining part of the order is upheld and affirmed. The respondents can charge the non-construction charges after the expiry of three years from 19.07.2010. No order as to costs. First Appeal No.891 of 2010:-
24. In view of the reasons and discussion held in F.A. No.845 of 2010, that appeal i.e. F.A. No.891 of 2010 (GMADA Vs. Rup Chand Bhardwaj) is dismissed and the impugned order dated 15.04.2010 under appeal passed by the District Forum is modified to the extent that the respondents can charge the non-construction charges after the expiry of three years from 19.07.2010. No order as to costs.
25. The respondents-GMADA in F.A. No.891 of 2010 had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the said appeal on 21.05.2010. Out of this amount, a sum of Rs.13,000/-(Rs.10,000/- compensation and Rs.3000/- litigation costs) be remitted by the registry to Sh. First Appeal No.845 of 2010 10 Rup Chand Bhardwaj, appellant/complainant (Respondent in F.A. No.891 of 2010) by way of a crossed cheque/demand draft after the expiry of 45 days, and the remaining amount with interest accrued thereon, if any, be remitted by the registry to the respondent no.1-GMADA (appellant in F.A. No.891 of 2010) by way of a crossed cheque/demand draft after the expiry of 45 days.
26. Arguments in both the appeals were heard on 10.08.2011 and the order was reserved. Now the order be communicated to the parties.
27. The appeals could no be decided within the stipulated timeframe due to heavy pendency of Court cases.
28. Copy of this order be placed in First Appeal No.891 of 2010(GMADA Vs. Rup Chand Bhardwaj).
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member August 23, 2011.
(Gurmeet S)