State Consumer Disputes Redressal Commission
Punjab Urban Development & Planning ... vs Sukhdev Singh Sandhu Son Of Sh.Harbans ... on 3 May, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH. First Appeal No.535 of 2004 Date of institution: 20.05.2004 Date of decision : 03.05.2010 Punjab Urban Development & Planning Authority (PUDA) through its Estate Officer, Amritsar. ..Appellants Versus Sukhdev Singh Sandhu son of Sh.Harbans Singh c/o Bank of Baroda, Town Hall, Amritsar. ..Respondent First Appeal against the order dated 31.03.2004 passed by the District Consumer Disputes Redressal Forum, Amritsar. Before:- Honble Mr.Justice S.N.Aggarwal, President Mrs.Amarpreet Sharma, Member
Present:-
For the appellants : Sh.R.K.Sharma, Advocate For the respondent : Sh.Vaneet Sharma, Advocate with Sh.Deepak Aggarwal, Advocate JUSTICE S.N.AGGARWAL, PRESIDENT This order will dispose of two appeals i.e. First Appeal No.535 of 2004 (Punjab Urban Development and Planning Authority v. Sukhdev Singh Sandhu) and First Appeal No.445 of 2004 (Sukhdev Singh Sandhu v. The Chief Administrator, Punjab Urban Development Authority and another) as both these appeals are directed against the same impugned order dated 31.03.2004 passed by the learned District Consumer Disputes Redressal Forum, Amritsar (in short the District Forum). The facts are taken from First Appeal No.535 of 2004 and the parties would be referred by their status in this appeal.
2. A public auction was held by the appellants on 23.7.2001 for residential plots at Sehaj Enclave, Majitha Road, Amritsar. The respondent participated in it. He was the highest bidder for plot No.72-C measuring 168.83 square yards. The respondent deposited 25% of the plot price immediately and he was issued allotment letter dated 7.9.2001.
3. It was further pleaded that as per the terms and conditions of the allotment letter dated 7.9.2001, the balance amount of 75% of the plot price was payable in 3 equal instalments with interest @ 15% p.a. The respondent deposited the plot price on the scheduled time. He had taken the loan amount of Rs.10 lakhs from the Bank of Baroda for making the aforesaid payment to the appellants. The appellants had also issued no due certificate to the respondent vide letter dated 30.10.2001.
4. It was further pleaded that after getting no due certificate, the respondent got approved the building plan. He also applied for temporary electric connection. He had deposited Rs.6330/- for the sanction of the building plan. Rs.1000/- were given to the Architect. Rs.1000/- were given to the Advocate for Search Report. Rs.6250/- were given alongwith application for temporary electric connection. Rs.5000/- were paid in advance to the Contractor for construction material.
5. It was further pleaded that in spite of full and final payment to the appellants, the possession of the plot was not given to the respondent. He had made several visits and also made representations to the appellants but the matter was put off on one pretext or the other. It was told to the respondent that there was sewerage line in the plot. It was over flowing and the appellants were taking steps to remove the defects and the possession would be handed over. He was also told that the plot was under dispute between the appellants on the one hand and Ram Lal, Eye and ENT Hospital on the other hand. The possession would be handed over after settlement of their dispute. The respondent was deprived of the possession for a long time.
6. It was further pleaded that even after making full payment of the plot, the respondent was not able to raise construction for want of possession. He was living in a rented house. The entire payment of Rs.14,81,304/- was made to the appellants but the possession of the plot was not given.
7. It was further pleaded that on 12.8.2002, the respondent wrote a letter to the appellants for refunding the full amount alongwith interest with effect from 23.07.2001. The refund of the other expenditure incurred by the respondent was also prayed but they failed to so. Alleging deficiency in service on the part of the appellants, the respondent filed a complaint against them in the learned District Forum, Amritsar for refund of Rs.14,81,304/- with interest and refund of other expenditure incurred by him. He also prayed for compensation amount of Rs.2 lakhs and costs were also prayed.
8. The appellants filed the written reply. It was not denied that the appellants had held a public auction on 23.7.2001 in which the respondent was the highest bidder for plot No.72-C in Sehaj Enclave, Majitha Road, Amritsar measuring 168.83 square yards. It was also admitted that the respondent had deposited 25% of the plot price and this plot was allotted to him vide allotment letter dated 7.9.2001. The balance amount of 75% of the plot price was payable with interest. The respondent had made the aforesaid payment and no due certificate was issued to him on 30.10.2001. It was also not denied that the respondent had made various payments on account of sanctioning of building plan, preparation of building, search report, temporary electric connection etc.
9. It was further pleaded that the plot was sold to the respondent on as is where is basis. Therefore, the respondent was estopped by his own act and conduct from filing the complaint. There was no malafide intention on the part of the appellants. They have not committed unfair trade practice nor they have committed deficiency in service.
10. It was further pleaded by the appellants that they were not responsible for levelling uneven site or for removing the structure as the plot was sold on as is where is basis. The jurisdiction of the District Form was also denied.
11. It was further pleaded that when the appellants learnt that there was a sewerage line in this plot. They immediately took up the matter with the Executive Engineer, Public Health to shift the sewerage line from the allotted plot. The requisite amount of Rs.94,300/- was deposited by the appellants in the office of the Executive Engineer, Public Health for shifting the sewerage line. The sewerage line could only be shifted by the Public Health Department. The Executive Engineer after doing the needful informed the appellants that they had shifted the sewerage line from the allotted plot. Therefore, there was no deficiency in service on the part of the appellants. It was denied if the respondent was entitled to any compensation or refund of the amount. Dismissal of the complaint was prayed.
12. Sukhdev Singh Sandhu respondent filed his affidavit Ex.C1. He also proved documents Ex.C2 to Ex.C14. On the other hand, the appellants filed the affidavit of Estate Officer as Ex.R1. The appellants also proved documents Ex.R2 to Ex.R6. The appellants also filed the additional affidavit of Ranjit Singh, Senior Assistant as Ex.R2/1 and further proved documents Ex.R2/2 to R2/5.
13. After considering the pleadings of the parties and the affidavits/documents produced on the file by them, the learned District Forum accepted the complaint with costs of Rs.1000/- vide impugned order dated 31.3.2004 and directed the appellants to deliver actual physical possession of the plot by metes and bounds at the spot and also directed to pay interest @ 9% p.a. on the plot price.
14. Hence, this appeal (First Appeal No.535 of 2004) has been filed by the appellants with the prayer that the appeal be accepted and the impugned judgment dated 31.3.2004 be set aside.
15. On the other hand, the respondent also filed the appeal (First Appeal No.445 of 2004) with the prayer that the appeal be accepted and the impugned judgment dated 31.3.2004 be modified and the respondent be awarded interest at the rate of 24% p.a. He should also be awarded the compensation amount of Rs.2 lakhs alongwith costs of the appeal. Reliance was placed on the judgment of the Honble Haryana State Consumer Disputes Redressal Commission reported as Haryana Urban Development Authority and another v. Dr.(Mrs.) Vandana Lor, 1997(1) CLT 626 wherein the interest awarded @ 18% p.a. was upheld.
16. Record has been perused. Submissions have been considered.
17. The admitted facts are that the appellants had published the advertisement for the sale of residential and commercial plots (Ex.C2). The auction was held on 23.7.2001. The respondent had offered the bid for plot No.72-C measuring 168.83 square yards in Sehaj Enclave, Majitha Road, Amritsar. He was the highest bidder. He had deposited 25% of the plot price immediately and this plot was allotted to him vide allotment letter dated 7.9.2001 (Ex.C3).
18. It is further pleaded that the balance payment of 75% was payable in 3 instalments which were narrated in the allotment letter dated 7.9.2001 (Ex.C3). The first instalment of Rs.4,53,649.50 was payableon 23.1.2001. The second instalment of Rs.4,25,875.00 was payable on 23.07.2002 and the third instalment of Rs.3,98,100.50 was payable on 23.1.2003.
19. Since the respondent was the auction holder, therefore, he was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act as has been held by the Honble Supreme Court in the judgment reported as U.T. Chandigarh Administration & anr. v. Amarjeet Singh & Ors., 2009 (3) CPR 97 (SC). It was held by the Honble Supreme Court as under : -
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. Since the respondent was not a consumer, therefore, the complaint was not maintainable. Therefore, the judgment relied upon by the learned counsel for the learned counsel for the respondent was not applicable to the facts of this case and the complaint filed by the respondent deserved to be dismissed.
21. Otherwise also, as per Condition No.12 of the allotment letter dated 7.9.2001 Ex.C3, the respondent was to get the possession of the site within a period of 30 days from the date of issue of the allotment letter. The respondent has not produced any evidence if he had taken any steps for getting possession of the plot or if he had taken up the matter either with the appellants or with the Public Health Department for removal of sewerage line from the plot in dispute.
22. On the other hand, the appellants had written letter dated 12.8.2002 Ex.R2 to the Divisional Engineer for removal of the sewerage line from Plot No.72-C. In response, the Divisional Engineer wrote letter dated 14.8.2002 to the Chief Administrator, PUDA for obtaining the sanction. The appellants also deposited a sum of Rs.94,300/- for removal of the sewerage line and the sewerage line was shifted as per letter dated 3.7.2003 Ex.R6. Therefore, the plot was ready for possession.
23. Reference can be made to the judgment of the Honble Supreme Court reported as Haryana Urban Development Authority v. Raje Ram 2009 CTJ 503 (Supreme Court) (CP) in which it was held by the Honble Supreme Court that where the possession of a plot is given at the old rate and the party got the benefit of escalation in price of land, there could not be any award of interest on the amount paid by the allottee on the plea that there was delay in delivering the possession. It was held as under : -
6. The decision of National Commission in Darsh Kumar, followed in the impugned orders, did not find favour of this Court in HUDA v. Darsh Kumar, 2005 CTJ 134 (SC) (CP) = 2005 (9) SCC 449. This Court observed that where possession is given at the old rate, the party has got the benefit of escalation in price of land, and therefore, there cannot and should not be award of interest on the amounts paid by the allottee on the ground of delay in allotment.
24. In view of the discussions held above, since the respondent is not a consumer qua the appellants, therefore, the consumer complaint was not maintainable.
25. This appeal is accordingly accepted and the impugned judgment dated 31.3.2004 is set aside.
26. The respondent must have taken possession of the plot by now. Otherwise, he would be at liberty to take possession in accordance with law and this judgment shall not stand in his way in getting the possession. He will also be at liberty to resort to any other civil proceedings available to him under the law.
27. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 20.05.2007. This amount of Rs.25,000/- with interest accrued thereon, if any, be refunded by the registry to the appellants by way of a crossed cheque/demand draft after the expiry of 45 days.
First Appeal No.445 of 200428. In view of the reasons recorded in First Appeal No.535 of 2004, this appeal is dismissed.
29. The arguments in both appeals were heard on 21.04.2010 and the order was reserved. Now the order be communicated to the parties.
30. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL) PRESIDENT (MRS.AMARPREET SHARMA) MEMBER May 03, 2010.
Paritosh