State Consumer Disputes Redressal Commission
Punjab Urban Development Authority vs Sanjiv Kumar Son Of Shri Surinder Kumar on 23 December, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.422 of 1999
Date of institution : 26.4.1999
Date of decision : 23.12.2009
1. Punjab Urban Development Authority, Mohali through Estate Officer,
PUDA.
2. Estate Officer, Punjab Urban Development Authority, Mohali, District
Ropar.
.......Appellants
Versus
Sanjiv Kumar son of Shri Surinder Kumar, r/o House No.632, Phase-I, Mohali,
District Ropar.
......Respondent
First Appeal against the order dated 17.3.1999 of
the District Consumer Disputes Redressal Forum,
Ropar.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Shri Piare Lal Garg, Member.
Present :-
For the appellants : Shri Balwinder Singh, Advocate. For the respondent : Ex parte.
JUSTICE S.N. AGGARWAL, PRESIDENT:
Atma Ram Bharti had applied to the appellants for allotment of a residential plot measuring 250 sq. yards in SAS Nagar, Mohali and had deposited the earnest money. This application was registered against registration No.3144.
2. On the request of Atma Ram Bharti applicant, the registration number was transferred in favour of Sanjiv Kumar respondent on 6.7.1994 by the appellants. The respondent had also deposited a sum of Rs.30,000/-. The respondent had succeeded in the draw of lots held on 1.8.1995 and plot No.3590, Sector 69, SAS Nagar, Mohali was allotted to him. Allotment letter dated 18.3.1997 was issued to the respondent with the tentative price of the plot at the rate of Rs.1800/- per sq. yard.
First Appeal No.422 of 1999. 2
3. It was further pleaded that the issuance of the allotment letter was delayed by the appellants of their own negligence. The respondent was liable to pay at the rate of Rs.1,400/- per sq. yard which was applicable on the date when the draw of lots was held on 1.8.1995. He was not liable to pay at the rate of Rs.1800/- per sq. yard which was applicable at the time of issuance of allotment letter on 18.3.1997.
4. Alleging deficiency in service on the part of the appellants, the respondent filed the complaint against them in the learned District Consumer Disputes Redressal Forum, Ropar (in short "District Forum") for charging him at the rate of Rs.1,400/- per sq. yard. Compensation, interest and costs were also prayed.
5. The appellants filed the written statement and contested the case.
6. The parties produced affidavits/documents in support of their respective contentions.
7. Learned District Forum considered the matter and accepted the complaint with costs of Rs.5,000/- vide impugned order dated 17.3.1999 and the appellants were directed to issue a fresh allotment letter with the price of the plot at the rate of Rs.1,400/- per sq. yard and to refund the excess amount with interest at the rate of 18% per annum.
8. Hence the appeal.
9. The submission of the learned counsel for the appellants was that the respondent was liable to pay cost of the plot at the rate of Rs.1,800/- per sq. yard which was applicable on the date of allotment issued on 18.3.1997 and not at the rate of Rs.1,400/- per sq. yard. Hence it was prayed that the appeal be accepted and the impugned judgment dated 17.3.1999 be set aside.
10. Record has been perused. Submissions have been considered.
11. The version of the appellants was that on 7.6.1994 Atma Ram Bharti who was the original applicant was asked to give his option for consideration of his name in the draw of lots if the plot was to be sold to him at the rate of Rs.1,200/- per sq. yard. Without responding to this applicant Atma Ram Bharti submitted an application on 30.6.1994 for transfer of his registration number in the name of First Appeal No.422 of 1999. 3 Sanjiv Kumar respondent. Registration No.3144 was transferred in the name of the respondent vide letter dated 6.7.1994.
12. It was further pleaded that thereafter a committee was constituted by the appellants on 20.7.1994 to verify the facts/genuineness of the applications received from the old applicants of the plots filed by them for the transfer of their registration numbers. This step was taken by the appellants for the reason that numerous complaints were received about the fraudulent transfers being made by the bogus persons claiming to be the applicants. The said committee had sent three registered notices to all the applicants to appear before the Committee between 25.9.1995 to 29.9.1995 and to clarify about the application filed for the transfer of the plots. Public notices were also issued for appearance before the committee on 25.10.1995. Another public notice was published in the Tribune dated 5.1.1996 requiring the appearance of original applicants before the committee on 8.1.1996. Such public notice was again published in the Tribune dated 5.5.1996 for appearance on 15/17.5.1996 and another notice dated 23.6.1996 for appearance on 25/26.6.1996. The committee again directed appearance on 14.8.1996. Ultimately in its meeting held on 23.7.1997 the committee authorized the Estate Officer to take decisions on his own on further fresh applications.
13. It was further pleaded that original applicant Atma Ram Bharti was asked to appear vide letter dated 12.1.1996 in person with voter list or ration card to ascertain the genuineness of the transfer application. Atma Ram Bharti failed to respond. Another letter dated 19.6.1996 was sent to him to respond within 30 days with the requisite documents but there was no response. Again Atma Ram Bharti was directed to appear vide letter dated 15.11.1996 but to no effect.
14. Atma Ram Bharti vide letter dated 12.12.1996 expressed his inability to appear in person. However he had submitted the certified copy of his ration card and attested passport size photograph with a request to issue the allotment letter in favour of Sanjiv Kumar respondent. On the receipt of this letter, the allotment letter dated 18.3.1997 was issued in favour of Sanjiv Kumar respondent and he First Appeal No.422 of 1999. 4 was allotted a residential plot measuring 250 sq. yards at the prevalent rate of Rs.1,800/- per sq. yard.
15. On these facts, therefore, it was submitted that there was no delay on the part of the appellants in the issuance of the allotment letter. Rather the delay, if any, was on the part of the original applicant Atma Ram Bharti.
16. It was further submitted that the respondent had already deposited Rs.82,500/- on 8.4.1997 to make up the balance of 25% of the total tentative price and had also given undertaking dated 8.4.1997 to make the payment of balance installments. This was so done by the respondent without any objection and voluntarily. Therefore he is estopped to challenge the price claimed in the allotment letter.
17. In this context, reference may be made to the judgment of the Hon'ble Supreme Court reported as "State of Punjab and anr. vs. Mewa Singh" AIR 2006 SUPREME COURT 3491 in which it was held by the Hon'ble Supreme Court that where a party had agreed by filing an affidavit to the prevalent rate then the courts are not justified to give a direction to the contrary.
18. It was also held by the Hon'ble Supreme Court in another judgment reported as "BAREILLY DEVELOPMENT AUTHORITY Vs. VRINDA GUJARATI AND OTHERS" (2004) 4 Supreme Court Cases 606 that the authority is entitled to collect the enhanced price in terms of the contract. Allottees after undertaking to pay the enhanced amount and after taking possession of the flats on that ground cannot be allowed to raise frivolous contentions to avoid payment to the Authority.
19. In the present case also the respondent has no right to go back from the terms of the allotment letter dated 18.3.1997 which he had accepted by making the payment.
20. Moreover the controversy involved in this appeal is clearly covered by the judgment of Hon'ble National Commission dated 20.8.2004 passed in First Appeal No.62 of 1999 "PUDA vs. Jaspreet Singh". This judgment of the Hon'ble First Appeal No.422 of 1999. 5 National Commission was followed by this Commission in Consumer Complaint No.73 of 1999 "Manohar Lal Kuthiala and others vs. Punjab Urban Planning & Development Authority and anr." decided on 28.11.2008 and it was held as under:-
"20. Moreover, the complainants themselves had stated in the complaint that their case was covered by the judgment rendered by the State Commission in Jaspreet Singh's case (supra). The said judgment was reversed by the Hon'ble National Commission vide judgment dated 20.8.2004 passed in First Appeal No.62 of 1999 (Punjab Urban Planning & Development Authority v. Jaspreet Singh). The specific question Nos. 2 and 3 before the Hon'ble National Commission Bench were as under:-
"2) What is the date of crystallization of right of an allottee, i.e. date of draw of lots or date of allotment?
3) Whether an allottee who had accepted the allotment and made payment could file a complaint under Consumer Protection Act (hereinafter referred to as the Act) for the purpose of seeking refund of the amount paid in excess over other allottees having allotment on the basis of the same draw of lots?"
21. After holding detailed discussion, the Hon'ble National Commission was pleased to answer question No.2 as under:-
" In the light of the aforesaid discussion, it is now settled law that the process of draw of First Appeal No.422 of 1999. 6 lots is the process for the purpose of identification of the eligible allottees. It is a process of selection. The draw of lots does not cloth successful persons with a legal right to allotment at the price prevailing on the date of allotment and the right of offer arises only on the communication of letter of allotment. The price prevailing on date of communication is applicable unless otherwise provided in the scheme. In so far as discrimination in such a selection concerned, it has already been mentioned that according to the judgment in PB Parmar, those who opt to take plots in a particular income-wise, area-wise, scheme in which all plots came to be put in draw of lots may apparently form a class and any discriminatory treatment may be frowned upon.
But at the same time the authority could not be expected to ignore the time gap between the two dates, the expenditure required to be incurred by the authority during the abovesaid time gap between the dates of draw of lots and of letter of allotment, the escalation in the market rate of land, the change in policy. They are all relevant factors and could not be ignored and therefore it becomes apparent that the view taken by the learned State Commission could not be justified in view of the aforesaid discussion. In the light of the aforesaid discussion, the date of First Appeal No.422 of 1999. 7 crystallization of right of an allottee would not be the date of draw of lots but date of issuance of letter of allotment."
22. The facts of Jaspreet Singh's case supra were more nearer to the facts of the present case. In Jaspreet Singh's case the original applicant was Rajesh Kumar while Jaspreet Singh was a holder of power of attorney from him. The draw of lots was held on 1.8.1995. The matter was verified and the letter of allotment was issued to Jaspreet Singh on 12.5.1997. By that date, the rate of land was fixed at Rs.3600/- per sq. yard and it was held by the Hon'ble National Commission that Jaspreet Singh was liable to pay the price of the plots at the rate of Rs.3600/- per sq. yard and not at the rate of Rs.1400/- per sq. yard which was prevailing on the date when the draw of lots was held."
21. It was also held by this Commission in the aforesaid judgment as under:-
"23. No doubt in the judgment reported as "PUNJAB URBAN PLANNING & DEVELOPMENT AUTHORITY & ANR. v.
DAVINDER SINGH VIRDI & ANR." I(2007) CPJ 353 (NC), the Hon'ble National Commission had held that the allottees were liable to pay the price of the plot at the rate prevailing on the date when the draw of lots was held but the appeal was filed against this order in the Hon'ble Supreme Court (Civil Appeal No.5259 of 2008) by the respondents. This appeal was accepted by the Hon'ble Supreme Court vide order dated 9.9.2008 and the judgment of the Hon'ble National First Appeal No.422 of 1999. 8 Commission was set aside. Therefore, the complainants are not in a position to avail any benefit from the judgment rendered by the Hon'ble National Commission in Davinder Singh Virdi's case supra.
24. Another matter which was discussed by the Hon'ble National Commission in Jaspreet Singh's case supra was whether the allottee can wriggle out of the contract after accepting the allotment and after making the payment. It was held by the Hon'ble National Commission in the aforesaid judgment as under:-
" An allottee who had accepted the allotment and made payment after entering into the contract, could not successfully file a complaint under the Consumer Protection Act for the purpose of seeking refund of the amount paid in excess over other allottees having been allotted plots etc. earlier in time though the names of the complainant as well as other allottees came to be selected in the same draw of lots. In the aforesaid circumstances, it is not possible to sustain the view taken by the learned State Commission."
22. In view of the discussion held above, we reach the conclusion that the appellants were justified in charging the price of the plot at the rate of Rs.1,800/- per sq. yard which was prevalent on the date of allotment dated 18.3.1997.
23. Accordingly this appeal is accepted and the impugned judgment dated 17.3.1999 is set aside.
First Appeal No.422 of 1999. 9
24. The arguments were heard in this case on 21.12.2009 and the order was reserved. Now, the order be communicated to the parties.
25. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
December 23 , 2009 (PIARE LAL GARG)
Bansal MEMBER