State Consumer Disputes Redressal Commission
Punjab Urban Development Authority vs Tara Singh Jhand S/O Shri Bhagwan on 31 March, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.15 of 2010
Date of institution : 6.1.2010
Date of decision : 31.3.2011
Punjab Urban Development Authority through its Estate Officer, SCO No.41,
Ladowali Road, Opposite Tehsil Complex, Jalandhar City.
.......Appellants
Versus
Tara Singh Jhand S/o Shri Bhagwan Singh, District Courts, Kapurthala,
permanent resident of VPO Dudwindi via Shiekhupur, District Kapurthala.
......Respondent
First Appeal against the order dated 30.10.2009 of
the District Consumer Disputes Redressal Forum,
Kapurthala.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Mr. B.S. Sekhon, Member.
Present :-
For the appellants : Shri G.S. Arshi, Advocate.
For the respondent : Shri G.S. Sandhawalia, Advocate.
JUSTICE S.N. AGGARWAL, PRESIDENT:
This order will dispose of two appeals bearing First Appeal No.13 of 2010 (Tara Singh Jhand vs. Punjab Urban Development Authority) and First Appeal No.15 of 2010 (Punjab Urban Development Authority vs. Tara Singh Jhand) as both the appeals are directed against the same impugned order dated 30.10.2009 passed by the District Consumer Disputes Redressal Forum, Kapurthala (in short "the District Forum"). The facts are taken from First Appeal No.15 of 2010 and the parties would be referred by their status in this appeal.
2. The appellants had launched a scheme on 27.12.1999 for setting up residential Urban Estate, Kapurthala. The residential plots for 150 sq. yards, 300 sq. yards and 400 sq. yards were available. Applications were invited. Tara First Appeal No.15 of 2010. 2 Singh Jhand respondent (in short "the respondent") had also submitted the application dated 12.1.2000 along with the earnest money of Rs.37,000/- for a residential plot measuring 400 sq. yards. Draw of lots was held. The respondent was successful in the draw of lots. He was sent the allocation letter dated 6.10.2000 informing the respondent that he was allocated plot No.1338. He was asked to submit an affidavit in the prescribed proforma duly attested by an Executive Magistrate on non-judicial stamp paper of Rs.15/-. The respondent complied with it. The allotment letter dated 29.12.2000 was issued in favour of the respondent for the aforesaid plot. The respondent was required to deposit the amount of Rs.1,48,000/- so as to complete 25% of the plot price. The respondent had deposited this amount of Rs.1,48,000/- with the appellants vide receipt dated 5.2.2001.
3. The schedule of payments was given in para 6 of the allotment letter dated 29.12.2000 according to which the total price of the plot was Rs.7,40,000/- calculated at the rate of Rs.1,800/- per sq. yard. The balance amount of Rs.5,55,000/- was payable with interest in six installments, the schedule of which was given in para 6 of the allotment letter dated 29.12.2000. However the allottees and for that matter the respondent was also at liberty to deposit the amount of Rs.5,55,000/- in lump sum within a period of 60 days from the date of issuance of the allotment letter by which the respondent could save himself from making the payment of interest amount.
4. In the present case, the respondent did not make the payment of any installment starting from 29.12.2001 and ending upto 29.6.2004 (except completing 25% of the plot price on 5.2.2001 including the earnest money).
5. The respondent wrote letter dated 28.2.2001 to the appellants with the request that the possession of the plot be delivered to him. Then the respondent wrote letter dated 15.3.2002 to the same effect. He also pleaded in the letter that the basic amenities were not made available at the spot which were to be provided by the appellants as per the terms and conditions of the brochure. It First Appeal No.15 of 2010. 3 was also stated that the development work was to be completed within a period of two years and actual possession was to be delivered at the spot failing which the appellants were liable to pay interest at the rate of 15% per annum from the date of receipt of 25% of the plot price.
6. However the appellants wrote letter dated 26.4.2003 to the respondent informing him that three installments which were payable on 29.12.2001, 29.6.2002 and 29.12.2002 were still outstanding against him. The respondent was asked to deposit these installments within 15 days failing which steps would be taken in accordance with the Punjab Regional and Town Planning and Development Act, 1995 (in short "the Act") for cancellation of the plot. The respondent again wrote letter dated 15.3.2003 re-asserting the facts stated by him in the earlier letters and asked the appellants to complete the development work and to deliver the possession of the plot to him. The appellants again wrote letter dated 19.9.2003 to the respondent informing him that four installments were outstanding against him. The respondent was asked to deposit this amount within 15 days failing which steps would be taken in accordance with law for cancellation of the plot. The respondent again vide letter dated 17.10.2003 re- asserted his position but did not pay any amount to the appellants.
7. The appellants cancelled the plot vide order dated 21.10.2003 and a copy of this order was sent to the respondent. Thereafter the respondent vide letter dated 29.10.2003 informed the appellants to re-consider his plea which was made by him vide letters dated 28.2.2001, 15.3.2002, 12.5.2003, 17.10.2003. The respondent was also informed vide letter dated 14.11.2003 that if he was aggrieved against this order, he could file an appeal in the office of Additional Chief Administrator, PUDA, Jalandhar. Ultimately the respondent served the legal notice dated 24.12.2003 on the appellants which was duly replied by the appellants vide letter dated 30.6.2004.
8. The respondent had also filed an appeal against the order dated 21.10.2003. It was dismissed by the appellate authority. The respondent again First Appeal No.15 of 2010. 4 sent letters dated 30.11.2004, 14.10.2005, 15.3.2006 demanding the proof of the completion of development work at the spot. Again the respondent sent letter dated 21.12.2006 to the appellants requesting them to revoke the cancellation letter and claiming interest on the deposited amount as also possession of the plot. Then the respondent remitted the remaining amount of Rs.5,11,000/- by two bank drafts to the appellants vide registered letter dated 30.12.2008. However the appellants did not revoke the cancellation order. Hence the complaint for revocation of the cancellation order, compensation, interest and costs.
9. The appellants filed the written reply. Preliminary objections were taken that the complaint was not maintainable, it was barred by limitation, it was an abuse of process of law, the respondent has concealed material facts and that the respondent has no locus standi to file the present complaint after the cancellation of the plot allotted to him.
10. On merits, the contents of the brochure were not denied but it was pleaded that the binding contract between the appellants and the respondent was the allotment letter by which plot No.1338 measuring 400 sq. yards in Urban Estate, Kapurthala was allotted to the respondent vide allotment letter dated 29.12.2000. The terms and conditions of the allotment letter are binding on the respondent as well. Moreover in acceptance of the terms and conditions of the allotment letter, the respondent had deposited the amount of Rs.1,48,000/- so as to complete one- fourth of the total plot price. The respondent has misconstrued and misinterpreted the contents of the brochure. As per the contents of the brochure the possession of the plots was to be delivered to the attottees at the end of the year 2000 when the development works were likely to be completed but the completion of development works was not a condition precedent for delivery of possession. In the allotment letter dated 29.12.2000 also it was specifically stated that the possession could be obtained within a period of 60 days from the issuance of the allotment letter and the site was offered in the allotment letter dated 29.12.2000 First Appeal No.15 of 2010. 5 on 'as is where is' basis. It was, therefore, denied if there was a breach of any condition of the brochure by the appellants.
11. It was not denied that the zoning plan was passed by the competent authority on 12.6.2002 but that had nothing to do with the delivery of possession of the plot. Moreover the respondent had failed to make the payment of any installment as per the terms and conditions of the allotment letter dated 29.12.2000. The appellants had issued the show cause notice dated 26.4.2003 to the respondent that 3 installments were outstanding against him and to deposit the same but even then the payment of installments was not made by the respondent. The contentions raised by the respondent in his representation dated 13.5.2003 were false and frivolous and the respondent had made these allegations to cover up his own lapse in not making the payment of installments.
12. It was further pleaded that the development works were completed. The other allottees of the residential plots in Urban Estate, Kapurthala had taken possession and had even raised construction over their respective plots. The possession of the plot was delivered to the respondent but the respondent had taken a totally false stand that the development work at the spot was incomplete. The demand of completion documents by the respondent was totally without basis and the respondent was a defaulter in making the payment of installments. Another letter was also sent demanding 4 outstanding installments.
13. It was further pleaded that on the failure of the respondent in making the payment of the installments in terms of the allotment letter, the allotment was cancelled in accordance with law. The appeal filed by the respondent was dismissed by the appellate authority. The respondent had not taken any steps thereafter to challenge the cancellation order for a period of three years and, therefore, the cancellation order had become final.
14. It was further pleaded that the subsequent amounts deposited by the respondent to the tune of Rs.5,11,000/- was a voluntary deposit. It was specifically mentioned in the receipt that the deposit of this amount was subject First Appeal No.15 of 2010. 6 to acceptance. It was denied if there was any deficiency in service on the part of the appellants. Dismissal of the complaint was prayed.
15. The respondent filed the rejoinder. He also filed his own affidavit as Ex.CA and also produced documents Ex.C-1 to Ex.C-40.
16. On the other hand, the appellants filed the affidavit of Harbir Singh, Estate Officer as Ex.OA. The appellants also proved documents Ex.O-1 to Ex.O-25.
17. Learned District Forum accepted the complaint partly vide impugned judgment dated 30.10.2009 by which the cancellation of allotment of plot No.1338 in favour of the respondent was held to be illegal and was set aside. The respondent was also directed to make full and final payment of the plot in accordance with the allotment letter in the first instance within one month from the date of receipt of a copy of this order. The appellants were also directed to handover the vacant possession of plot No.1338 thereafter to the respondent within a period of two months from the date of receipt of full and final payment of this plot.
18. Hence the appellants filed this appeal (First Appeal No.15 of 2010) with the prayer that the appeal be accepted and the impugned judgment dated 30.10.2009 be set aside.
19. On the other hand, the respondent also filed the appeal (First Appeal No.13 of 2010) with the prayer that the appeal be accepted and the impugned judgment dated 30.10.2009 be modified and the appellants be directed not to charge the interest/penal interest and penalty from the respondent.
20. Record has been perused. Submissions have been considered.
21. Although the Consumer Protection Act, 1986 is a consumer friendly Act but when the persons with a legal background misuse the process of law, it stuns the conscious of the court. So are the facts of the present case narrated above for the reasons given below.
22. The admitted facts are that the appellants had issued the brochure (Ex.C1) for allotting freehold residential plots measuring 150 sq. yards, 300 sq. yards and First Appeal No.15 of 2010. 7 400 sq. yards in Urban Estate, Kapurthala. The respondent had deposited the amount of Rs.37,000/- as earnest money along with his application dated 12.1.2000 for which receipt Ex.C-2 was issued by the appellants. The draw of lots was held. The respondent was successful and he was allocated plot No.1338. The allocation letter was issued by the appellants dated 6.10.2000 to the respondent (Ex.C-4) by which the respondent was asked to file an affidavit duly attested by the Executive Magistrate on a non-judicial stamp paper of Rs.15/-. It was complied with by the respondent and the affidavit dated 20.10.2000 (Ex.O-3) was submitted by the respondent.
23. The appellants had issued the allotment letter dated 29.12.2000 to the respondent for the residential plot measuring 400 sq. yards bearing plot No.1338 (Ex.C-5) by which the respondent was required to deposit a sum of Rs.1,48,000/- within 60 days from the issuance of the allotment letter so as to complete 25% of the plot price. This amount was deposited by the respondent with the appellants vide his letter dated 2.2.2001 (Ex.O-8) for which receipt dated 5.2.2001 (Ex.C-3) was issued by the appellants for an amount of Rs.1,48,000/-.
24. So far as the delivery of possession of the plot is concerned, it was stated in the brochure (Ex.C1) as under:-
"POSSESSION Possession of the plots will be delivered by the end of year 2000 when the development works are likely to be completed and no interest on instalments shall be charged till the possession is handed over to the allottees. In case PUDA fails to deliver the possession of the plots within two years of the date on which 25% of the price is completed, it will liable to pay interest @ 12% per annum on the amount deposited from the day, the two years are completed." First Appeal No.15 of 2010. 8
25. In the allotment letter dated 29.12.2000 (Ex.C-5) it was stated in clause 10 that the allottee could take possession of the plot from the Estate Officer, PUDA, Jalandhar within 60 days from the issuance of the allotment letter. Clause no.10 of the allotment letter dated 29.12.2000 (Ex.C-5) reads as under:-
"10. You shall be required to take possession of the plot from Estate Officer, PUDA, Jalandhar within 60 days of the date of issue of allotment letter. The site shall be offered on "as is where is" basis and allottee shall not be entitled to claim any rebate or refund on any ground whatsoever. The authority will not be responsible for leveling the uneven site."
26. The submission of the learned counsel for the respondent was that as per the brochure the development works were likely to be completed and only thereafter the possession was to be delivered but so far as the allotment letter is concerned, the allottees were required to take possession within the period of 60 days without referring to the completion of development works. Therefore the conditions relating to possession specified in the brochure Ex.C-1 were materially altered in the allotment letter dated 29.12.2000 (Ex.C-5). The appellants could not do so. Therefore the conditions specified in the brochure would prevail.
27. This submission has been considered.
28. So far as the recital relating to the delivery of possession in the brochure is concerned, it was not stated that the development works would be completed and thereafter the possession would be handed over to the allottees. The submission of the learned counsel for the respondent is totally misconceived and the respondent is wrongly misinterpreting a specific provision in the brochure Ex.C1. The completion of development work or in other words providing of basic amenities in the area is one thing and delivery of possession is the other thing. First Appeal No.15 of 2010. 9 The delivery of possession was not subject to the providing of basic amenities in that area.
29. Therefore the submission of the learned counsel for the respondent that the terms and conditions laid down in the brochure Ex.C-1 relating to the delivery of possession were materially altered in the allotment letter dated 29.12.2000 (Ex.C-5) is unfounded.
30. Otherwise also if the respondent thought that there was a material alteration in the terms and conditions of the brochure Ex.C-1 in the allotment letter dated 29.12.2000 (Ex.C-5) then the respondent was at liberty to refuse to accept the allotment of the plot. Para 4 of the allotment letter dated 29.12.2000 (Ex.C-5) reads as under:-
"4. In case you refuse to accept the allotment and your refusal is received after the draw of lots and within 30 days of issue of allotment letter.
In that case 10% of the earnest money deposited shall be forfeited. In case refusal is received after 30 days & within 60 days of issue of allotment letter, 15% of the earnest money deposited shall be forfeited. In case refusal/acceptance is not received within 60 days of the issue of the allotment letter or refusal is received after making 25% payment, the action shall be taken under the provision of Section 45(3) of Punjab Regional Town Planning and Development Act."
31. Since the respondent remitted the amount of Rs.1,48,000/- to the appellants within the stipulated period in compliance with the terms and conditions of the allotment letter dated 29.12.2000 (Ex.C-5), it means, therefore, that the respondent had accepted the terms and conditions of the allotment letter First Appeal No.15 of 2010. 10 aforesaid. The respondent cannot accept some terms and conditions of the allotment letter and refute the others. He has no right to pick and choose the terms and conditions which suit his convenience and repudiate the other which make him liable to take possession or to make the payment of installments. He cannot enjoy the plot measuring 400 sq. yards and at the same time fail to make the payment which he is trying to do now.
32. We find merit in the submission of the learned counsel for the appellants that the respondent had entered into an agreement with the appellants when the offer was made by the appellants vide allotment letter dated 29.12.2000 (Ex.C-5) and acceptance of those terms and conditions by the respondent by remitting the amount of Rs.1,48,000/- vide forwarding letter dated 2.2.2001 (Ex.O-8). The respondent has nowhere stated in the forwarding letter dated 2.2.2001 (Ex.O-8) that the terms and conditions in the allotment letter were either contrary to the terms and conditions laid down in the brochure or if these were not acceptable to him.
33. The respondent had sent the letter dated 24.2.2001 (Ex.C-6) which was received in the office of the appellants on 28.2.2001. The contents of this letter are not legible. However thereafter the respondent had sent another letter dated 15.3.2002 (Ex.C-7) and the postal receipt is proved as Ex.C-8. In this letter, the respondent had taken the plea that the appellants have not provided basic amenities in the area. Road was not completed. Tubewell for water supply was not installed. The pipes for supplying the water were not laid down. Through this letter, the respondent had requested the appellants to complete the development work and to offer him the actual possession at the spot failing which the respondent demanded interest at the rate of 15% per annum on the already deposited amount.
34. By that date, the installment payable upto 29.12.2001 for an amount of Rs.1,75,750/- (including the interest component) had become due. Instead of depositing this amount or even the principal component the respondent had First Appeal No.15 of 2010. 11 demanded interest at the rate of 15% per annum on the amount already deposited by him.
35. Learned counsel for the respondent made reference to the judgment dated 10.10.2005 passed by this Commission in First Appeal No.144 of 2005 "Punjab Urban Planning & Development Authority vs. Monika Verma" in support of his submission that the basic amenities were not provided in that area and possession could not have been delivered without providing the basic amenities.
36. It was observed by this Commission in Monika Verma's case (supra) (page 4) as under:-
" The question arose as to whether the complainants could start the construction and complete the same without basic amenities having been provided by PUDA and further question arose as to whether PUDA was entitled to charge any interest on the instalments prior to the providing of the basic amenities? Another ancillary question also arose that if the zoning plan by the PUDA itself had not been approved and made known to the allottees, can a plan be submitted by an allottee for sanctioning the construction of a building and whether the construction can at all be started? With these grievances, the complainants approached the District Forum. Vide impugned order of different dates, the following reliefs were given by the District Forum:-
1) The basic amenities were completed by PUDAon 12.6.2002 and also the zoning of the area was approved by a plan on that date.
Consequently, the District Forum held that qua those persons who were allotted plots and even First Appeal No.15 of 2010. 12 might have been delivered possession, their period for construction of 3 years would start from 12.6.2002.
2) It was further held that PUDA was not entitled to charge any interest on the instalments which were due prior to 12.6.2002 and that the amount of interest which might have been charge on instalments should also be refunded with 18% interest from the date of deposit till 12.6.2002.
3) It was further held by the District Forum that all the complainants will be entitled to compensation of Rs.20,000/- on account of escalation of prices. This amount was also ordered to be paid with 18% interest (there is one exception in the case of Shivani Sharma who was allowed Rs.5,000/- as compensation).
4) While granting relief, the District Forum had also observed in the relief clause as follows:- "not to charge any type of penal interest either on instalments or for not raising construction and reframe the payment of instalments after sanctioning of zoning plan after 12.6.2002."
37. This Commission made reference to the letter dated 5.10.2004 and another letter dated 31.5.2005 issued by the appellants for the benefit of the allottees of residential plots in Urban Estate, Kapurthala. Through letter dated 5.10.2004 the appellants themselves had extended relief to the allottees to the effect that the period of three years for raising construction as specified in clause 11 of the allotment letter dated 29.12.2000 (Ex.C-5) was now to start not from the issuance First Appeal No.15 of 2010. 13 of the allotment letter but from 12.6.2002 when the zoning plan of this area was approved and development works were completed. In the second letter dated
31.5.2005 the appellants also extended the relief to the allottees to the extent that the interest payable on the installments which had fallen due prior to June 2002 would not be charged from the allottees of the residential plots in Urban Estate, Kapurthala.
38. Accordingly this Commission vide order dated 10.10.2005 passed in Monika Verma's case (supra) upheld the first relief given by the District Forum that since the basic amenities were completed by the appellants as on 12.6.2002 and since the zoning plan of the area was approved on that date, therefore, the period of construction of three years shall start from 12.6.2002. It was also held that the appellants had themselves undertaken not to charge interest on any installment which had fallen due prior to 12.6.2002. Therefore if the interest was charged by the appellants from any of the allottees on the installments payable before 12.6.2002, that interest component would be refunded to the allottees. Learned District Forum had directed the appellants to refund the interest component with interest at the rate of 18% per annum from the date of deposit till 12.6.2002. This Commission had reduced the rate of interest from 18% per annum to 10% per annum in Monika Verma's case (supra).
39. The third relief granted by the District Forum (reproduced above) was upheld to the extent that Rs.20,000/- compensation but the interest component was set aside. The said amount was ordered to be refunded within a period of two months and if it was not paid by the stipulated date then interest @ 10% per annum was held payable by the appellants. So far as the fourth relief (reproduced above) is concerned, this Commission had set aside that relief and held that if the installments which had become payable after 30.6.2002 and were not paid in time then on those installments further interest/penal interest was payable by the allottees as per the rules and regulations. First Appeal No.15 of 2010. 14
40. The appellants had filed revision petition against the order dated 10.10.2005 passed by this Commission in Monika Verma's case (supra). The revision petition filed by the appellants was dismissed by the Hon'ble National Commission and the judgment is reported as "PUNJAB URBAN PLANNING & DEVELOPMENT AUTHORITY v. ROHIT KUMAR AGGARWAL, ETC., ETC." II(2008) CPJ 68 (NC).
41. In this context, reference may also be made to another judgment of the Hon'ble National Commission reported as "PUNJAB URBAN PLANNING AND DEVELOPMENT AUTHORITY (PUDA) v. GURVINDER KAUR"
IV(2010) CPJ 270 (NC) relied upon by the learned counsel for the respondent. The facts of this case were that the appellants had allotted a residential plot in Urban Estate, Kapurthala to one Baldev Singh Bains who had sold the same to Gurvinder Kaur. Gurvinder Kaur had also applied for the refund of the interest component of the installments deposited prior to 12.6.2002 with the appellants by Baldev Singh Bains original allottee along with interest. She also claimed damages. The complaint was dismissed by the District Forum, Kapurthala. Gurvinder Kaur had filed an appeal in the State Commission. The State Commission had accepted the appeal and had directed the appellants to refund the interest component of the installments deposited by Baldev Singh Bains prior to 12.6.2002 with the appellants. The appellants were also directed to pay interest on the interest component. The appellants had filed an appeal. Hon'ble National Commission upheld the right of Gurvinder Kaur transferee to get back the interest component deposited by original allottee Baldev Singh Bains but the Hon'ble National Commission set aside the interest awarded by the State Commission on the interest component on the installments deposited by the original allottee before 12.6.2002.
42. The situation which emerges from the aforesaid judgments is that basic amenities were completed in this area by the appellants upto 12.6.2002 and the zoning plan was also approved on 12.6.2002. The allottees were not to pay First Appeal No.15 of 2010. 15 interest component along with the installments which were payable prior to 12.6.2002 but so far as the interest component of the installments payable after 12.6.2002, the allottees/transferees were bound to pay it. It also emerges from the judgments discussed above that if any allottee failed to pay any installment in time after12.6.2002 then the appellants were entitled to recover the installments with interest/penal interest and with penalty, if any.
43. In the present case, the respondent failed to make the payment of any installment either prior to 12.6.2002 (without interest component) or after 12.6.2002 as specified in the allotment letter. He had only completed 25% of the plot price by depositing an amount of Rs.1,48,000/- vide letter dated 2.2.2001 (Ex.O-8).
44. Since the respondent failed to make the payment of even those installments which were payable after 12.6.2002, the appellants had issued notice dated 26.4.2003 (Ex.C-10) to the respondent informing him that three installments were outstanding against him which were payable on 29.12.2001 (Rs.1,75,750/-) (the interest component on the instalment payable prior to 12.6.2002 was waived by the appellants later on vide letter dated 31.5.2005), 29.6.2002 (Rs.1,27,187/-) and on 29.12.2002 (Rs.1,20,250/-). The respondent was also asked to deposit these three outstanding installments within 15 days failing which steps would be taken to cancel the plot in accordance with the provisions of the Act.
45. Instead of complying with the letter dated 26.4.2003 by depositing the installments outstanding against him, the respondent made representation dated 12.5.2003 (Ex.C-11) alleging that basic amenities were not provided and the possession of the plot was not delivered which was to be delivered by the appellants after the completion of the development work.
46. The grounds taken by the respondent were entirely misconceived. So far as the basic amenities are concerned, it was pleaded by the appellants somewhere in the middle of para 6 of the written statement on merits referring to the First Appeal No.15 of 2010. 16 representation of the respondent dated 13.5.2003 (in fact dated 12.5.2003) (Ex.C11) that as per their office record, the development works had been completed much before and there could be no failure of the appellants in delivering possession of the plot in question to the respondent. The respondent filed rejoinder. He failed to specifically controvert the allegations that the development work was not completed in Urban Estate, Kapurthala before filing his representation on 13.5.2003. That amounts to an admission on the part of the respondent that the basic amenities were provided by the appellants in that area much before the filing of representation dated 12.5.2003 (Ex.C-11) by him.
47. Moreover it was held by this Commission in the judgment in Monika Verma's case (supra) relied upon by the learned counsel for the respondent himself that the basic amenities were completed in Urban Estate, Kapurthala on 12.6.2002 and the zoning plan was also approved by that date. The said judgment was upheld by the Hon'ble National Commission in Rohit Kumar Aggarwal's case (supra). The same view was reiterated by the Hon'ble National Commission in Gurvinder Kaur's case (supra) wherein it has been held in opening line of para 4 as under:-
"4. On 31.3.2005 Petitioner communicated a policy decision that interest on instalments which had fallen due till June 2002 will not be charged from the 717 allottees as development works had not been completed till that date. It, therefore, took a decision to refund the interest paid by the allottees prior to June, 2002."
48. Therefore the plea taken by the respondent in his representation dated 12.5.2003 (Ex.C-11) that basic amenities in that area were not completed was totally untenable.
49. So far as the possession is concerned, it was specifically laid down in clause 10 of the allotment letter dated 29.12.2000 (Ex.C-5) that the allottee could First Appeal No.15 of 2010. 17 take possession within 60 days of the issuance of the allotment letter. It means, therefore, that the respondent could take possession upto 28.2.2001. The respondent has not pleaded anywhere if he had gone at the spot or in the office of the appellants from 28.2.2001 onwards for getting the possession of the plot by way of demarcation and it was not given to him.
50. Even otherwise the appellants have proved a copy of the letter dated 28.5.2003 (Ex.O-10) which was sent by the appellants to the respondent. It was stated in this letter as under:-
" As per condition No.10 of the allotment letter, you were required to take possession within 60 days from the date of issue of allotment letter, but you did nothing in this regard. However on your request made vide letter dated 15.3.2002, paper possession was given to you on 2.8.2002.
All the development works have been completed by the concerned wings. You are therefore requested that due instalments of plot be deposited as per schedule given in the allotment letter."
51. Neither the respondent has denied if the paper possession was not given to him on 2.8.2002 nor he has denied if letter dated 28.5.2003 (Ex.O-10) was not received by him. He has not pleaded or proved if he had gone at the spot or in the office of the appellants for getting the possession of plot No.1338 by demarcation and the appellants had refused to deliver the possession to him.
52. Moreover the appellants have pleaded in para 6 on merits of the written statement while referring to the representation dated 13.5.2003 filed by the respondent that all through this period the other allottees of the residential plots in Urban Estate, Kapurthala had been taking possession and had even raised construction over their respective plots. The respondent filed the rejoinder but nowhere these facts were specifically controverted by him. If the other allottees First Appeal No.15 of 2010. 18 could get possession of their respective plots in Urban Estate Kapurthala and if they could raise construction over their respective plots, the plea of the respondent that the actual possession was not delivered to him is totally false.
53. If the actual physical possession of the plot was not delivered to the respondent, it was entirely because of his own fault as he failed to go at the spot for getting actual physical possession of the plot by demarcation and he also failed to go to the office of the appellants for getting the actual physical possession of the plot. The actual physical possession of the plot could not have been delivered by the appellants to the respondent by going to his house. It appears that by ulterior motive the respondent continued writing letters to the appellants harping on the completion of development work and thereafter delivery of possession of the plot to him and continued demanding the interest on the amount deposited by him with the appellants against this plot.
54. Moreover as per para 22(iv) of the judgment of the Hon'ble Supreme Court reported as "U.T. Chandigarh Administration and Anr. v. Amarjeet Singh & Ors." 2009(3) CPR 97 (SC), even if the offer of possession was made that amount to delivery of possession. In the present case the appellants have specifically stated not only in clause 10 of the allotment letter dated 21.12.2000 (Ex.C-5) that the respondent could take possession within 60 days of the issuance of the allotment letter but also the letter dated 28.5.2003 was also sent to the respondent informing him that since he has failed to take possession, therefore the paper possession was delivered to him on 2.8.2002.
55. The learned counsel for the respondent made reference to the heading 'possession' in the brochure (Ex.C-1) issued by the appellants by which the applications were invited that, "Possession of the plots would be delivered by the end of year 2000 when the development works are likely to be completed." This paragraph does not mean that taking of possession could be postponed by the respondent on the plea that the development work was not completed. The delivery of possession and completion of development work First Appeal No.15 of 2010. 19 were independent of each other and the development work was not a condition precedent for delivery of possession.
56. In any case, the detailed discussion of this issue is not necessary for the reason that the basic amenities in this area were provided as on 12.6.2002 which fact was admittedly noticed in Monika Verma's case (supra) and Gurvinder Kuar's case (supra). Since the respondent had failed to take actual physical possession either in accordance with clause 10 of the allotment letter dated 29.12.2000 (Ex.C5) or after 12.6.2002, the paper possession was given to him on 2.8.2002 for which intimation was given to the respondent by the appellants vide letter dated 28.5.2003 (Ex.O-10).
57. After the appellants had written letter dated 26.4.2003 (Ex.C-10) to the respondent and after the reply dated 12.5.2003 (Ex.C-11) was sent by the respondent to the appellants, the appellants had again sent letter dated 19.9.2003 (Ex.C-12) to the respondent informing him that four installments were outstanding against him which were payable on 29.12.2001, 29.6.2002, 29.12.2002 and 29.6.2003. He was also told to make the payment of these installments within 15 days failing which steps would be taken for cancellation of the plot in accordance with the conditions of allotment letter/in accordance with the provisions of the Act. Instead of complying with this letter, the respondent again sent reply dated 17.10.2003 (Ex.C-13) to the appellants taking the same plea that the possession of the plot be given to him after certifying the completion of all development works. He also sought permission to deposit the due installments without interest and making adjustment of the interest amount accrued on the already deposited amount. In other words, the respondent was devising his own terms and conditions without caring the least for the terms and conditions of the allotment letter dated 29.12.2000 (Ex.C-5). It appears from the stand of the respondent that he was totally adamant on his plea that he would pay the installments subject to and after the fulfillment of certain conditions. It only amounted to say that he would not pay the installments.
First Appeal No.15 of 2010. 20
58. In this context, reference may be made to condition No.23 of the allotment letter dated 29.12.2000 (Ex.C-5). It reads as under:-
"23. In case of breach of any condition of allotment or of regulation or non-payment of any amount due together with the penalty, the plot or building thereon, as the case may be, shall liable to be resumed and in that case an amount not exceeding 10% of the total amount of consideration money, interest and other fees payable in respect of plot shall be forfeited."
59. Accordingly the appellants passed the order dated 21.10.2003 (Ex.C-18) by which plot No.1338 measuring 400 sq. yards allotted to the respondent in Urban Estate, Kapurthala was cancelled. This order was received by the respondent on 28.10.2003 on which the respondent vide letter dated 29.10.2003 (Ex.C-19) requested the appellants to re-consider the cancellation order dated 21.10.2003. The appellants vide their letter dated 14.11.2003 (Ex.C-17) informed the respondent that the plot allotted to him was already cancelled vide order dated 21.10.2003 and if the respondent was aggrieved, he could file an appeal against that order. The respondent sent the legal notice dated 24.12.2003 (Ex.C-23) which was duly replied by the appellants vide letter dated 30.6.2004 (Ex.C-26).
60. The documents placed on the file by the appellants also reveal that the respondent had filed an appeal against the order dated 21.10.2003 to the appellate authority and that appeal was dismissed by the appellate authority vide order dated 15.12.2004 (Ex.O-21). The competent authority of the appellants had also accorded sanction for the refund of Rs.81,784/- after forfeiture of some amount vide order dated 4.5.2005 (Ex.O-22). This cheque was sent to the respondent vide letter dated 13.6.2005 (Ex.O-23) and a photocopy of the cheque dated 9.6.2005 for an amount of Rs.81,784/- in favour of the respondent has been First Appeal No.15 of 2010. 21 proved as Ex.O-24. This registered letter was received back from the respondent with the report of refusal (Ex.O-25).
61. The submission of the learned counsel for the respondent was that in the cancellation order dated 21.10.2003 it was stated by the appellants that the respondent had not sent any information to them. It was also submitted that the address of the respondent was incomplete in the letter dated 13.6.2005 (Ex.O-23) and it was denied if the respondent had intentionally refused to accept this registered letter (Ex.O-25). It was also submitted that the cancellation order has not been passed in accordance with Section 45 of the Act.
62. These submissions have been considered.
63. So far as the recital in the cancellation order dated 21.10.2003 is concerned, the replies sent by the respondent were totally baseless. In these representations dated 12.5.2003 (Ex.C-11) and the representation dated 17.10.2003 (Ex.C-14) the respondent was asserting and re-asserting that the basic amenities were not completed and the possession was not delivered to him. He was seeking permission to deposit the due installments payable even after 12.6.2002 without interest. If the respondent had any bona fide intention to deposit any installment at least he should have deposited the principal component of the installments and then he could dispute the payment of interest component of the installments. He believed only in writing letters and putting the blame on the appellants instead of acknowledging his own liability of making the payment of installments for owing and possessing a plot. The respondent intended to possess a plot by merely depositing 25% of the plot price and postponing the payment of six installments on one plea or the other and by taking the same plea time and again. When he was getting notices from the appellants and when he had failed to comply with the terms and conditions of the allotment letter dated 29.12.2000 (Ex.C-5) and when he had failed to pay the installments even after receiving notices from the appellants what reply was to be considered by the appellants before cancellation. That was the last resort with the appellants when First Appeal No.15 of 2010. 22 they found that the respondent was not buzzing an inch from the plea he had taken right from the date of acceptance of the allotment letter after 2.2.2001. Therefore if some sensible plea had been taken by the respondent, the appellants could have stated that he had presented his own point of view but if the respondent was asserting baseless and meaningless things, it did not deserve any consideration. The non-compliance of the notices and non-payment of installments were in itself sufficient grounds for cancellation.
64. So far as the plea taken by the learned counsel for the respondent that the address of the respondent was incomplete in the letter dated 13.6.2005 (Ex.O-23) by which the cheque for an amount of Rs.81,784/- (Ex.O-24) was sent to him, it is clearly proved that the address was complete. This plea has no basis at all. The address of the respondent is mentioned as 'Tara Singh Jhand son of Sh. Bhagwan Singh, Village & Post Office Dudwindi, Kapurthala'. It is the same address mentioned by the respondent himself in his letter dated 15.3.2006 Ex.C- 30 or in his representation dated 21.12.2006 (Ex.C-31). He is not denying that his father's name is Bhagwan Singh or that he was not resident of Village Dudwindi which fall in district Kapurthala. If Tehsil Sultanpur Lodhi is not mentioned it does not make the address of the respondent incomplete. The respondent has nowhere pleaded if there was any other village Dudwindi in District Kapurthala. Therefore the address was complete in the letter dated 13.6.2005 (Ex.O-23) sent by the appellants to the respondent.
65. Moreover the report of refusal was made by the postal authorities in the ordinary course of their business. They were neither the employees of the appellants nor the postal authorities were interested in the appellants nor the postal employees were inimical to the respondent nor they had any mala fide intention in making a false report of refusal. Therefore the presumption is that the report of refusal was made by the postal employee correctly as the respondent had refused to accept the registered letter.
First Appeal No.15 of 2010. 23
66. So far as the provision of Section 45(3) of the Act is concerned, it reads as under:-
"45. Resumption and forfeiture for breach of transfer.-
(1)......
(2)......
(3) If the transferee fails to pay the amount due together with the penalty in accordance with the order made under sub-section (2) or commits a breach of any other condition of transfer, the Estate Officer may, by notice in writing call upon the transferee to show cause within a period of thirty days, why an order of resumption of the land or building or both, as the case may be, and forfeiture of the whole or any part of the money, if any, paid in respect thereof which in no case shall exceed ten per cent of the total amount of the consideration money, interest and other dues payable in respect of the transfer of the land or building or both should not be made."
67. The appellants had sent notice to the respondent on 26.4.2003 (Ex.C-10) informing the respondent that three installments had fallen due against him which were not paid. He should deposit the money within 15 days failing which the steps would be taken to cancel the plot as per the terms and conditions of the allotment letter/provisions of the Act. The respondent failed to do so on which the appellants had written another letter dated 19.9.2003 (Ex.C-12) but still the respondent failed to deposit any amount and also failed to give any reasonable cause for not depositing the money. He continued taking the false pleas that the basic amenities were not provided and the possession was not delivered to him. These letters dated 26.4.2003 (Ex.C-10) and dated 19.9.2003 (Ex.C12) were sufficient notices to the respondent within the meaning of Section 45(3) of the Act.
68 We, therefore, do not find any non-compliance of the provisions of Section 45(3) of the Act. Therefore the cancellation of the plot was rightly made First Appeal No.15 of 2010. 24 by the appellants when the respondent was adamant in not making the payment of installments.
69. The submission of the learned counsel for the respondent was that the respondent had deposited the amount of Rs.5,11,000/- with the appellants vide two separate bank drafts (one dated 20.12.2008 for an amount of Rs.1,45,000/- and the other dated 29.12.2008 for an amount of Rs.3,66,000/-) with his letter dated 30.12.2008 (Ex.C-35). This amount was accepted by the appellants. Therefore the cancellation, if any, stands set aside.
70. This submission has been considered.
71. It has no merits. The appellants had taken the plea that these drafts were deposited by the respondent on his own and voluntarily. These were subject to acceptance. It was also pleaded that these drafts were lying in the office of the appellants and that the respondent was at liberty to take these drafts back.
72. So far the submission of these bank drafts by the respondent to the appellants is concerned, it was totally of no consequence. When the appellants had been writing letters to the respondent to deposit the amount, the respondent considered the appellants as his slaves and did not care for these notices. He did not care even for the terms and conditions of the allotment letter dated 29.12.2000 (Ex.C-5) except to the extent that he has become the owner of plot No.1338 measuring 400 sq. yards. He considered the terms and conditions of the allotment letter as "hell to do with it" and now when the plot was cancelled about four years back the respondent was sending the bank drafts for Rs.5,11,000/- in August 2008. The sending of these drafts were a voluntarily act of the respondent without vesting any right in the respondent.
73. In this context, reference may be made to the latest judgment of the Hon'ble Supreme Court reported as "GREATER MOHALI AREA DEVELOPMENT AUTHORITY & ANR. v. MANJU JAIN & ORS." I(2011) CPJ 4 (SC). The facts of this case were almost identical to the facts of the present case. It was held by the Hon'ble Supreme Court as under:- First Appeal No.15 of 2010. 25
"26. In Teri Oat Estates (P) Ltd. V. U.T. Chandigarh & Ors., I(2004) SLT 563=(2004)2SCC130, this Court held that cancellation of an allotment should be a last resort.
The allotment should not be cancelled unless the intention or motive on the part of the allottee in not making due payment is evident. The drastic power of resumption and forfeiture should be exercised in exceptional cases but that does not mean that the statutory rights conferring the right on the authority should never be resorted to. In exceptional circumstances, where the allottee does not make any payment in terms of allotment, the order of cancellation should be passed. Sympathy or sentiment by itself cannot be a ground for passing an order in favour of allottees by the Courts nor can an order be passed in contravention of the statutory provisions."
74. The case of the respondent was exceptional. He failed to abide by the terms of the allotment letter. He failed to deposit any of the 6 installments on the dates stipulated in the allotment letter dated 29.12.2000. He failed to comply with the letters sent by the appellants to him asking him to deposit the amount of installments. He failed to care for the show cause notice given to him and informing him that steps for cancellation of the plot and forfeiture of the money would be taken. Therefore the consequence was obvious. It is legal and valid and based on sound footing.
75. In view of the discussion held above, this appeal is accepted with costs of Rs.10,000/- and the impugned judgment dated 30.10.2009 is set aside. First Appeal No.15 of 2010. 26
76. The appellants are directed to issue a fresh cheque for an amount of Rs.81,784/- in favour of the respondent and send the same to the respondent within a period of two months after the receipt of a copy of this letter. The appellants are further directed to send back the two bank drafts for an amount of Rs.5,11,000/- submitted by the respondent in the office of the appellants. FIRST APPEAL NO.13 OF 2010:
77. In view of the reasons recorded above, there is no merit in the present appeal and the same is dismissed with costs of Rs.10,000/-.
78. The arguments in these cases were heard on 17.3.2011 and the orders were reserved. Now, the orders be communicated to the parties.
79. 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
March 31 , 2011 (BALDEV SINGH SEKHON)
Bansal MEMBER