Rekha Gupta, J.
Revision Petition No.2099 of 2008 (PUDA Vs. Gulshan Rai), Revision Petition No.2100 of 2008 (PUDA Vs. Inderjit Bansal), Revision Petition No.2101 of 2008 (PUDA Vs. Sahib Chand and Anr.) and Revision Petition No.2102 of 2008 (PUDA Vs. Rajiv Makkar and Anr.) have been filed under section 21 (b) of the Consumer Protection Act, 1986 (short, Act) against the orders dated 7.3.2008 passed by State Consumer Disputes Redressal Commission, UT, Chandigarh (short, œState Commission?) in Appeal No.179/2005/(Pb)/RBT/103/2008 ; Appeal No.187/2005/(Pb)/RBT/844/2007 ; Appeal No.188/ 2005/(Pb)/RBT/846/2008 and Appeal No.189/2005/(Pb)/RBT/845/2008. The Revision Petitions involve common points of law, though the orders are passed separately in each case. Hence, we propose to pass a common order. The facts of the case have been taken from RP No.2099 of 2008, i.e., the case of Gulshan Rai.
Brief facts of the complaint are that in the year 2001, the petitioner/ opposite party (PUDA) had launched a scheme for setting up residential and commercial plots at Old Police Academy, Phillaur through its advertisements in the newspaper for auction on 7.2.2001 at Phillaur, District Jalandhar. In response to the said advertisement the respondent/complainant had purchased residential plot No.11, near Veterinary Hospital, Phillaur 400 sq.yds. at the Old Police Academy, Phillaur in an open auction held on 7.2.2001 for Rs.15,00,000/- from the petitioner.
At the time of the auction, the respondent was informed that the petitioner will develop the said scheme by laying out sewerage, water supply, street lights, parks and roads at the site. On this assurance, the respondent deposited an amount of Rs.1,50,000/- being 10% of the sale price vide receipt No.68, Book No.1334 issued by the PUDA on 7.2.2001 and the remaining amount of Rs.2,25,000/-,15% of the total amount was deposited vide draft No.839634 dated 5.3.2001 issued by the State Bank of India, Phillaur in favour of the petitioner. The balance amount of Rs.11,25,000/-, 75% of the price of the plot is to be paid in three equated half yearly installments along with interest of @ 15% per annum on reducing basis is paid in lump-sum and without interest if the remaining sale price is paid within 60 days from the date of auction and in that event a rebate of 5% will be given on the balance amount of 75%.
According to para 12 of the allotment letter memo No.2001/EO/PUDA-JAL/3790 dated 15.6.2001, the possession of the site was to be given within 30 days from the issue of allotment letter by the PUDA, whereas the petitioner failed to deliver the possession to the respondent in terms and conditions of allotment letter. The respondent had deposited the balance amount of Rs.10,68,750/- vide receipt No.53, book No.873 dated 2.8.2001 to the petitioner and it was mentioned in the receipt that it was in full and final payment. The respondent had written a letter to the Estate Officer, PUDA on 13.7.2001 that the respondent had deposited 25% of the price of the plot as per terms and conditions of the allotment order, but the petitioner had failed to perform its terms of contract as mentioned in para 12 of the allotment order dated 15.6.2001 and the possession of the plot was not delivered.
As per terms and conditions of allotment order, the possession of the plot was to be delivered, within a period of 30 days on the issue of allotment order and the development works were also to have been completed by the petitioner (PUDA) before the delivery of possession of the plot and no interest on installments were to be charged till all facilities are provided to the plot holder. According to para 16 of the allotment order dated 15.6.2001, the building shall be completed within 3 years from the date of issue of letter after getting proposed building plan approved from the petitioner. In case of non-construction of the plot, on the request of the allottee, the extension in time may be allowed by the petitioner for construction of the building on deposit of extension fee to be determined by the petitioner.
The respondent had requested the petitioner vide letter dated 2.8.2001 that the possession of the Plot No.11 was to be delivered to the respondent within 30 days from the date of issue of the allotment order dated 15.6.2001.
The respondent had waited for a period of 5 months, but no such letter was received by him nor possession of the plot was delivered. The respondent then had written a letter dated 13.7.2001 to the petitioner for handing over the physical possession of the plot with necessary amenities as committed by the petitioner. The said letter was acknowledged by the petitioner vide receipt No.1207 dated 13.7.2001. Despite this letter, no action was taken on the request of the respondent. Then again on 1.8.2001, the respondent visited the office of the petitioner and personally requested them to hand over the physical possession of the plot. A letter was also given on the same date, which was acknowledged vide receipt No.1354 dated 1.8.2001 by the petitioner. The possession of the plot was delivered on paper on 1.8.2001, not at the site of the plot, but in the office of PUDA at Jalandhar. Actually, no physical possession, by taking measurement or actual demarcation of the plot, was delivered at the spot to the respondent. This could not possibly be done as the Zoning Plan had not sanctioned by the Competent Authority.
It is important to mention here that auction of the Plot took place on 7.2.2001 and the allotment order was issued on 15.6.2001. In the said allotment letter, the details of installments payable by the respondent with interest are given as under :-
| Installment | Due Date | Amount of Installment | Interest | Total amount payable |
| 1. | 7.8.2001 | 3,75,000/- | 84,375/- | 4,59,375/- |
| 2. | 7.2.2002 | 3,75,000/- | 56,250/- | 4,31,250/- |
| 3. | 7.8.2002 | 3,75,000/- | 28,125/- | 4,03,125/- |
| 11,25,000/- | 1,68,750/- | 12,93,750/- |
The petitioner had issued another letter No. ED-PUDA-JAL/S-5/2000/10185 dated 20.11.2002 asking for the deposit of Rs.1,23,342/- without giving its details for the issue of œNo Demand Certificate? as requested by the respondent.
The respondent had issued a legal notice dated 13.1.2003 through his lawyer indicating that the petitioner had not provided the facilities/amenities as undertaken by him within the stipulated period and had withheld the payment illegally without providing the necessary amenities/ development works etc. but the petitioner had not given any satisfactory reply to this notice. In the said reply of the notice the petitioner vide Memo No. ED-PUDA-JAL/S-5/2000/1464 dated 27.2.2003 had written to respondents lawyer to direct his client (respondent) to submit the building plan as early as possible, so that physical/demarcation of the plot could be given. This clearly proves that physical possession of the plot had not been delivered till the reply of the notice dated 27.2.2003. Respondent further stated that the building plan of Plot No.11 has already been submitted on 16.12.2002 to the petitioner.
The respondent had represented the matter to the Chief Administrator, PUDA, SCO No.64, Sector-17, Chandigarh on 6.3.2003 indicating clearly that basic amenities/facilities had not been provided by the PUDA so far. Besides this, the Zoning Plan of the area in question had not been approved by the Competent Authorities, in the absence of which no physical possession of the plot could be delivered nor the site plan of the plot can be sanctioned by the petitioner. The house cannot be built within the stipulated period of 3 years according to the condition mentioned in the allotment order. Therefore, the claim of interest with further compounded interest is illegal, unjust, unfair and against the principle of natural justice. The copy of the said letter was handed over to the petitioner on 6.3.2003, which was acknowledged vide receipt No.1036 dated 6.3.2003. However, no reply was received by the respondent from the petitioner.
In order to avoid harassment and mental torture, the respondent had deposited an amount of Rs.80,000/- 26.8.2003 vide Receipt No.082, Book No.41 dated 26.8.2003 to the petitioner under protest with the hope that the petitioner shall refund the excess amount after necessary calculations. Without considering the conditions of allotment order and the assurance given by the petitioner to provide the basic amenities/development works, the petitioner had issued another letter ED-PUDA-JAL/S-5/2000/9975 dated 9.10.2003 enhancing the demand of Rs.1,14,668/-, which is totally illegal, unjustified and the same is not borne out from the record of the petitioner.
The respondent had applied for the sanction of the plan of Plot No.11 on 16.12.2002 after depositing the requisite fee with the petitioner. The site plans of Plot No.11 along with other plans were returned by District Town Planner, Jalandhar replying vide Letter No.146-DTP-J-4B-1(J) dated 21.1.2003 that the Zoning Plan of the site of Police Academy, Phillaur had not been approved by the Chief Town Planner, Punjab, Chandigarh and the Chief Administrator, PUDA, Chandigarh. In the absence of the approval of the Zoning Plan of the said site, the plan of Plot No.11 and other plots could not be approved and therefore, the site plan submitted by the respondent were returned in original to the Estate Officer, PUDA, Jalandhar. This fact also proves that physical possession of the plot cannot be delivered nor the facilities/amenities were provided. Since, the respondent had deposited the entire remaining price of the plot amounting to Rs.10,68,750/- other than the money deposited at the time of auction of the Plot and remaining 15% within 30 days with the petitioner, so the respondent is entitled to interest on this amount due to non-development works. The respondent is entitled to an interest @ 18% p.a. on the balance amount of Rs.10,68,750/- deposited on 2.8.2001 with the petitioner. He is also entitled to the refund of Rs.80,000/- with interest, which was got deposited under pressure on 26.8.2003.
The Zoning Plan is the back bone of the scheme and indicates the width of the roads, width of open space to be left by the allottee in front, rear portion of the plot, height of the building, location of the main gate, width of green belt etc. Thus, there are so many factors for the finalization of the scheme depending upon the Zoning Plan. The Zoning Plan for this site was not approved by the Competent Authority till March 2003 in the absence of which, physical possession of the Plot could not be given to the respondent. Actual possession by demarcation is necessary to know where the allottee is expected to raise the construction. The site Plan cannot be sanctioned by the petitioner till the Zoning Plan is approved. The petitioner has delivered the physical possession of the Plot No.11 in the month of May, 2003.
Petitioner “ PUDA, in their reply to the complaint have raised some preliminary objections and giving the following facts ;
œThat even as per the Section 8 of the Arbitration and Conciliation Act, 1996, this forum has no jurisdiction to entertain, try and decide the present complaint being the dispute based on Arbitral Agreement.
That as per terms and conditions laid down in Annexure “ I which is the œinvitation to Offer? in case of the dispute relating to the terms and conditions or legal dispute relating to the Allotment Letter, the decisions of the Chief Administrator would be final and the parties would be bound by the same. The complainant had participated in the auction by accepting such condition. The respondent had not approached the Chief Administrator, PUDA in respect of his dispute, as such the present complaint is barred under the law because the efficacious remedy known to the complainant was available under the law.
That the present complaint is hopelessly barred by limitation because as per the Annexure V attached with the complaint, the complainant on 1.8.2001 had confirmed for having received the possession of the said plot. The present complaint has been filed now on 27.11.2003 i.e., after the gap of 2 years. Even the Annexure VIII is also the proof of the fact that the complainant had acknowledged on 1.8.2001 that he had taken the possession. As such, the complaint it to be dismissed out-rightly.
That the complainant has tried to mislead this forum by claiming the interest on the ground that the possession has not been delivered, whereas the Annexure VII belies the stand of the complainant, wherein he has acknowledged on 1.8.2001 for having taken the possession simpliciter fact stated in the Annexure VIII that possession was taken under protest does not extend the period of limitation because once the possession was taken whether willingly or under protest, the limitation for filing the complaint will not stop running.
That the complainant is not entitled to the rebate of 5% because as per Annexure “ V of the complaint, the complainant could have claimed the rebate, had he deposited the amount within 60 days from the date of auction. Admittedly, the auction took place on 7.2.2001 and the such benefit of the rebate cold be taken uptil 6.4.2001 but the complainant has stated to have deposited Rs.10,68,750/- on 2.8.2001 vide two drafts of Rs.5,00,000/- and Rs.5,68,750/-. The plea taken by the complainant that the benefit of 5% was to be given not from the date of auction but from the date of the delivery of possession is not available to the complainant because the complainant is admittedly a consenting party to the terms and conditions mentioned in the Annexure V. even the plea guidelines of the Punjab Govt. to charge penal interest and penalty to be chargeable from the date of delivery of the possession to the purchaser is also not available to the complainant, as the guidelines so stated are in contradiction to the Annexure “ V. The guidelines, if any, cannot be enforced. They are to be made applicable where the terms and conditions are silent. Here, the terms and conditions in Annexure “ V clearly specified that the interest is to be calculated from the date of auction.
That the amount of the interest of Rs.84,375/- as mentioned in the Annexure IX is legal and valid. The complainant was bound to pay the interest so demanded.
That since the complainant did not pay the interest of Rs.84,375/- as mentioned in the Annexure-IV, the subsequent interest continued and as such the demand vide Annexure-XII for Rs.1,15.72/- and the demand vide Annexure-XV for Rs.1,23,542/- is legal and valid.
On Merits
That in reply to this para No.6 of the complaint, it is submitted that it is not disputed that the complainant had deposited Rs.10,68,750/- but such amount was not full and final because the complainant was also bound to pay the interest. The writing of the letter dated 13.7.2001 is not disputed but it is wrong to say that the possession of the plot was not delivered or that the PUDA failed to perform its terms and conditions of the contract as mentioned in the para No.12 of the Allotment Order dated 15.6.2001. The contents of the above said para of the reply may be read as the part of this para.
That in reply to this para No.10 of the complaint, it is submitted that the writing of the letter dated 2.8.2001 is not disputed, however the possession was deemed given as per the Allotment Letter within 60 days. The date on the letter of possession is not to taken as the date of possession.
That the contents of para No.15 of the complaint are wrong and hence denied. The complainant was bound to pay the interest of Rs.84,375/- because the benefit of the lower interest or 5% rebate interest could be availed only if the lump sum payment of balance principal amount had been made within the period of 60 days from the date of auction, i.e., 7.2.2001. Had the payment been made uptill 7.4.2001, then the matter would have been different. The answering respondent has rightly and legally claimed the interest of Rs.84,375/-.
That the contents of this para of the complaint are denied for the want of knowledge. The Chief Administrator has not been arrayed as a party in the present complaint and the contents of this para of the complaint are related to the Chief Administrator, PUDA. However, the copy of the letter so mentioned in this para was received by this office.?
The District Consumer Disputes Redressal Forum, Jalandhar (short, œDistrict Forum?) vide order dated 12.10.2004, after hearing counsel for the parties and going through the record came to the following conclusion ;
œAfter hearing the rival contentions of the counsel for the parties, we agree with the contention raised by the counsel for the complainant that remedy and rights under Consumer Protection Act are additional remedies and even Arbitration clause could not prevent to the jurisdiction of the Consumer Forum. Therefore, this objection of the counsel for the respondent is without any basis and is rejected as such.
Counsel for the respondent has also argued that according to clause of the allotment letter, the complainant was bound to refer the dispute to Chief Administrator, PUDA whose decision was final between the parties and he alleged that complaint under the Consumer Court was not maintainable. This objection of the respondent is without any force as complainant has referred the matter to Chief Administrator, PUDA according to para No.20 of the complaint but no reply has been sent by the Chief Administrator, PUDA even the copy of the letter was handed over to the respondent on 6.3.2003 and this fact is admitted by the respondent on 6.3.2003 and this fact is admitted by the respondent in his reply in para No.20. Therefore, if the Chief Administrator has not decided the matter of 8 months then respondent cannot take the objection that the complainant has not availed the opportunity provided under the Act for making request to Chief Administrator, PUDA. Therefore, this objection of the respondent also failed and the same is rejected.
After considering the rival contention of the counsel for the parties, it is clear that claimant had made last payment on 26.8.2003 of Rs.80,000/- and the respondents are raising further demand of Rs.1,31,000/- as late as on 23.9.2003 according to para No.20 of written statement. Therefore, it is proved that the complainant has a continued cause of action because respondents are demanding extra amount as late as on 23.9.2002 according to para No.20 of the written statement and complainant is still claiming that no amenities have been provided so far even after filing written statement. Therefore, the complaint is well within time.
Counsel for the complainant argued that in this case necessary facilities and amenities have not been provided so far by the respondent for which the complainant is demanding back the excess amount charged from him and he is also claiming interest on it as the amount has been used by the respondent. He also argued that respondent has not approved the Zoning Plan which was back bone of the scheme and was necessary for location of the plots and other necessary building location like Green Belt, Main Gate and road and said Zoning Plan was not approved by the respondent as late as March, 2003 and in the absence of which physical possession could not be given. He argued that allegation in para No.20 of the complaint was not denied.
The stand of the respondent in para No.27 of the written statement is ridiculous. On the one hand, they have taken the plea that complainant was bound to make construction within 3 years from the issuance of the allotment letter and or the same time they have mentioned that the construction can only be made after getting building plan approved from the Competent Authority. In this case, the respondent had written letter Ex-C-20 dated 21.1.2003 in which they have mentioned the Zoning Plan has not been sent for sanctioning to Chief Town Planner, Chandigarh and unless and until such sanction is received of Zoning Plan, the maps given by the parties cannot be approved and they have sent back the maps to the party. Therefore, letter Ex.C-20 clearly shows that they were guilty of negligence and deficiency as they have not approved the Zoning Plan upto 21.1.2003 while they have received the full and final payment from the parties as late as 2.8.2001 and the respondent was not able to give paper possession what to talk of physical possession as they have returned the maps 21.1.2003 vide letter Ex.C-20. Therefore, respondent could not demand the extra amount or interest even upto 21.1.2003. They have not mentioned in the reply that the Zoning plan has been sanctioned with the site plan of the parties for making construction. Therefore, respondent has failed to show that they were able to deliver the possession even after filing the present written statement.
Therefore, in the present circumstances, it clear that the demand of the respondent who claimed interest upto 21.1.2003 was unjustified even the respondent was not ready to deliver the possession.
In this case the complainant had made the full and final payment by 2.8.2001 after the letter of allotment. Therefore, respondent cannot contend that such payment should have been made within 60 days from the date of auction only when they are not doing any duty of their part even after filing the written reply in the year 2003. Therefore, the full and final payment made by the complainant on 2.8.2001 had exonerated the complainant from making further payment of interest.
As such complainant is entitled for compensation for not developing area upto even filing of the written statement and he suffered loss due to escalation of the prices and he has right to refund back of Rs.80,000/- and also compensation of Rs.20,000/- per year from the date of final payment i.e., 2.8.2001 upto the period when actual possession is to be delivered to the complainant and amenities are to be provided by the opposite party. Opposite party is also directed to give the possession and provide amenities as soon as possible. Complainant is also awarded Rs.2,000/- as costs of litigation. Compliance of the order be made within one month from the receipt of the copy of this order. Copies of the order be sent to the parties fee of costs under the rules. File be consigned to the record room.?
Aggrieved by order of the District Forum, petitioner as well as respondent filed appeals before the State Commission. After hearing counsels for the parties and having carefully gone through the record, State Commission gave the following order ;
œIt is an admitted fact that residential plot No. 11, near Veterinary Hospital, Phillaur at old police Academy, Phillaur was purchased by Sh. Gulshan Rai, Complainant in open auction on 7.2.2001 for Rs.15,00,000/-. He had deposited Rs.1,50,000/- being 10% of the sale price vide receipt No.61 dated 7.2.2001 and the balance amount of Rs.2,25,000/- on 5.3.2001 so, as to make 25% vide demand draft dated 5.3.2001 issued by State Bank of India, Phillaur in favour of PUDA. Ex.C.-1 is the pamphlet issued by PUDA for the auction which was to be held on 7.2.2001. According to it, possession was to be delivered to the successful purchasers on depositing of 25% of the amount and they would be authorized to make construction after getting site plan sanctioned. Ex. C.- 2 is the receipt dated 7.2.2001 vide which Rs.1.50.000/- were deposited. Ex. C.3 is the receipt dated 5.3.2001 vide which an amount of Rs. 2,25,000/- was deposited, so, as to make 25% Ex. C.- 4 is the allotment letter dated 19.6.2001 according to which an amount of Rs.3,75,000/- i.e. 25% was deposited earlier and the balance amount of Rs.11,25,000/- i.e. 75% was to be deposited within 60 days from the date of auction, so, as to claim rebate of 5%. According to clause-16 of the allotment letter, construction on the plot was to be made within three years from the date of issuance of allotment letter, after getting iste plan of the building sanctioned.
Ex.C.-5 is receipt dated 2.8.2001 vide which Rs.10,68,750/- were deposited and this amount was accepted as full and final. i.e it was got deposited after giving rebate of 5%. It is true that according to allotment letter, balance amount after deducting 5% as rebate was to be deposited within 60 days from the date of auction. In that way the amount was deposited late but since it was accepted as full and final payment vide ex. C. “5, so, PUDA cannot go against the said receipt. It means that PUDA after waiving condition NO.5 accepted the payment as full and final payment. There was a reason for it because allotment was issued on 19.6.2001 i.e. more than after 4 months of auction. Since, complainant came to know late of the terms of allotment letter, so, 5% rebate was allowed on deposits within 60 days from issue of allotment letter. Therefore, we hold that the full amount had been paid.
A perusal of the letter Ex.C.“7 dated 1.8.2001 issued by complainant shows that he had written to Estate Officer, PUDA, Jalandhar that the development had not taken place as necessary amenities like water supply, electricity, storm water and park had not been provided. There is also another letter Ex. C.-8 on file. On the other hand vide letter dated 20.11.2002 Ex. C.-12 PUDA had demanded Rs.1,23,542/- as balance amount. Vide receipt Ex. C.- 15 dated 26.8.2003 complainant had deposited Rs.80,000/- regarding balance amount.
PUDA has not led any evidence that it had provided electricity, roads, sewerage, water supply etc. On the other hand, it had stated that the water supply and sewerage were to be provided by the Municipal Corporation. Primarily is was duty of PUDA to make arrangement to provide amenities at the earliest. It is not mentioned in the written reply as to when the amount was deposited with Municipal Corporation to provide these facilities. It is stated in the written reply that the possession was delivered to the complainant on 1.8.2001 and otherwise also under the auction letter the complainant was bound to take possession within 30 days. Taking of possession within 30 days from the date of issue of allotment letter or on 1.8.2001 was meaningless because no amenities were provided and further complainant could not make an application for getting site plan sanctioned because so far zoning plan had not been approved.
There is letter Ex. C.-18 dated 21.1.2003 bearing memo No. 146 which shows that zoning plan had not been approved with respect to sanctioning of the site plan of Plots No. 10,11,12, and 13 of old police Academy, Phillaur. Since, zoning plan had not been approved by the Chief Town Planner and also by the Chief Administrator, PUDA, so, site plan could not be sanctioned. Thus, recovery of Rs.84,375/- as interest could not be held valid because no interest could be recovered as the site plan was not sanctioned as zoning plan was not got approved and further amenities had not been provided. Therefore, demand of PUDA for interest vide letter dated 21.1.2003 was not justified. Since, amenities had not been provided and the zoning plan had not been approved, so, District Consumer Forum had rightly ordered refund of Rs.80.000/- which was deposited in excess. It had further awarded compensation of Rs.20,000/- per year from the date of final payment upto the period when actual possession was to be delivered and amenities were to be provided and zoning plan was sanctioned.
No basis has been laid for awarding compensation of Rs.20,000/- per year. We think it will be appropriate if compensation by way to interest on the amount deposited by complainant is awarded till the amenities are provided and site plan is sanctioned. We further think it appropriate if interest @ 18% p.a. is awarded. It will also care of escalation in cost of construction as well as mental agony etc. Thus, instead of compensation of Rs.20,000/- per year, we award interest @18% p.a. from the date of respective deposits till amenities are provided and site plan is sanctioned. The Honble Supreme Court in Ghaziabad Development Authority Vs Balbir Singh (2004) 5 Supreme Court Cases 65 has awarded interest @ 15% to p.a. by way of compensation for escalation in cost of construction etc.
Counsel for respondent also contended that the matter should have been referred to the arbitrator and further to the Chief Administrator as per terms and conditions. However, contention of the learned counsel is not tenable because under Section-3 of the Consumer Protection Act, the provisions of the C.P.Act are in addition to and not in derogation of the provisions of any other law for the time being in force and inspite of provisions of arbitration, complaint can be filed under the C.P.Act. Thus, with some modification as above, both appeals are dismissed.
Copies of this order be communicated to the parties, free of charge.?
Hence, the revision petition.
The instant revision petition seeks to raise the following questions of law germane to the jurisdiction of consumer Fora under the Act ;
I.Whether the statutory mandate of Section 24-A of the Consumer Protection Act, 1986 in the present case can be legitimately ignored contrary to the ratio of the Honble Supreme Courts judgment in Kerala Agro Machinery Corpn. Ltd. Vs. Bijoy Kumar Roy (2002) 3 SCC 165 and in Harayana Urban Development Authority Vs. B.K.Sood (2006) 1 SCC, 164 ?
II.Whether an allottee of valuable residential plot, is not legally bound to avail the benefit of the said residential plot only in consonance with the agreed terms of allotment made on œas is where is? basis following an open auction to which, as held by the Honble Supreme Court in Ahmedabad Municipal Corporation Vs. Haji Abdul 1971 Supp. (1) SCR 63, the principle of caveat emptor is applicable ?
III.Whether a defaulting allottee of a public housing authority can legally be permitted by the consumer fora to lay the consequences of his own action/inaction at the door of the public housing authority contrary to the ratio of the Honble Supreme Courts judgment, inter alia, in Prashant Kumar Shahi Vs. Ghaziabad Development Authority (2000) 4 SCC 120 ; Ghaziabad Development Authority VS. Balbir Singh (2005) 9 SCC 573 and Bangalore Development Authority Vs. Syndicate Bank (2007) 6 SCC 711 ?
IV.Whether the consumer for a below were justified in erroneously assuming deficiency of service on the part of the petitioner authority in the present case contrary to the ratio of the Honble Supreme Courts judgment in Ravneet Singh Bagga (2000) 1 SCC 66, wherein Lordships were pleased to hold, inter alia, as under :
œThe deficiency of service cannot be alleged without attributing fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be performed by person in pursuance of a contract or otherwise in relation to any service.?
V.It is not beyond the jurisdiction of the consumer fora to assume deficiency of service on the part of the opposite party inspite of the complainants failure to carry out the onus to prove any such deficiency ?
We have heard learned counsels for the parties and carefully gone through the records.
Counsel for petitioner stated that the respondent had been allotted the said plot through public auction and hence, could not be a œconsumer? under the C.P.Act. In support, she has relied upon the judgment œUT Chandigarh Administration and Another Vs. Amarjeet Singh and Others (2009) 4 SCC 660? and do specific attention to para 14 to 21. We are of the view that the said citation does not apply to the facts of the present case.
Counsel for petitioner further stated that the District Forum and State Commission are guilty of œtwisting the facts of the case?. We, however, find after going through the records that it is the counsel for the petitioner who has tried to mislead the Bench. Counsel for petitioner repeatedly drew the attention of the Bench to the Extracts from auction notice published in newspaper and more specifically para 2, which is reproduced as follows :-
œSuccessful bidder will deposit 10% of the amount after the end of bid in the form of Bank Draft at the same day of Auction and 15% of the amount will be deposited in 30 days from the date of auction. For property mentioned at S.No.1 “ the balance 75% amount shall be deposited within 90 days. For property mentioned at S. No.2 and 3 balance 75% amount (in the shape of reducing balance) may be deposited at the rate of 15% per annum in the shape of 3 equal half yearly installments. If the bidder deposits the 75% amount lump sum within 60 days from the date of Auction 5% rebate will be granted.?
We drew her attention to the allotment letter dated 15.6.2001 which had been received by the respondent on 19.6.2001. The said allotment letter had been issued four months after the date of auction which was held on 7.2.2001 and hence, we are of the view that the 60 days limit could not justifiably be counted from the date of auction as the allotment letter itself has been issued after four months of the auction. Counsel for the petitioner then drew our attention to para 27-D of the respondents complaint wherein he has stated that he has received physical possession of Plot No.11 in the month of May, 2003 and para 13 which reads as follows :-
œ13. That despite this letter, no action was taken on the request of the respondent, then again on 1.8.2001, the respondent visited the office of the petitioner and requested personally to hand over the physical possession of the plot. A letter was also given on the same date, which was acknowledged vide receipt No.1354 dated 1.8.2001 by the petitioner. The possession of the plot was delivered on papers on 1.8.2001 and at the site of the plot, but in the office of PUDA at Jalandhar. Actually, no physical possession by taking measurement or actual demarcation of the plot was delivered at the spot to the respondent. This could possibly be not done at the Zoning Plan was not sanctioned by the Competent Authority?.
This para confirms the facts given in para 27-D of the complaint that physical possession was not given on 1.8.2001.
Counsel for respondent drew our attention to Office Order dated 24.6.2008 of Chief Administrator, PUDA, Mohali to the petitioner, which is reproduced below :-
œThis matter was considered in item no.54.07 of 54th meeting of finance and accounts committee of PUDA held on 10.6.2008 and after consideration it was decided that the prior to 1.2.2005 the plot/house/commercial sites sold through auction in which the delay made in issuing allotment letter the allottee/applicants who have challenged the condition of rebate in court, in those cases who have made payment of 75% in lump sum were given 5% rebate for payment within 60 days not from the date of auction but from the date of allotment letter.?
Hence, it is apparent from the above-mentioned order that in case of plot/house/commercial sites sold through auction prior to 1.2.2005 through auction in which there delay was in issuing allotment letters and the allottee/ applicants had challenged the condition of rebate in court, and in those cases where payment of 75% had been made in lumpsum they were to be given 5% rebate for payment within 60 days not from the date of auction but from the date of their allotment letters. Thus, the Office Order fully covered the case of the respondent and this fact had also been mentioned in his affidavit dated 11.5.2009.
Counsel for petitioner then admitted that she had not been aware of the said policy order and if it exists and if the respondent is entitled to be covered under the same, she would admit his entitlement for the rebate of 5%. It is indeed unbelievable that the counsel for the petitioner was not aware of such an important policy order and nor had she been suitably briefed by the petitioner. The said policy order should have been produced by the petitioner as it is their document and not been left for the respondent to obtain and place on record. The petitioner and their counsel were seeking to deny the legitimate claim of the respondent, i.e., the 5% rebate, by repeatedly agitating the matter before different fora and further hurting his interest by claiming penal interest.
PUDA had vide receipt No.53 dated 28.8.2001 received Rs.10,68,750/- from the respondent on account of full and final payment and hence PUDAs coercive and aggressive actions against the respondent in repeatedly demanding further money on account of interest is unacceptable, particularly as PUDA is a Public body set up to work for the welfare and benefit of the people.
In their written statement, PUDA has recorded that as per terms and conditions of Annex.-I, invitation of Offer, the respondent had not approached the Chief Administrator, PUDA in respect of its dispute and as such, the respondents complaint is barred under the law because the efficacious remedy known to the complainant was available under the law. Even, on this count PUDA has sought to deliberately mislead as the respondent had written to the Chief Administrator on 6.3.2003 and copy of that letter had been sent to PUDA. In their written statement in para 20, it has been admitted that copy of letter had been received by PUDA.
Counsel for the petitioner repeatedly stated that possession had been given to the respondent on 1.8.2001. The said possession was given on paper in the office of PUDA. On the same date, respondent had written to Estate Officer, PUDA asking for possession of the said plot so he could raise construction. Counsel for respondent drew our attention to letter no.EC-PUDA-JAL/S-5/2000/4841 dated 12.6.2002.
This would belie the averments of counsel for the petitioner that not only had the physical possession of the said plot been given on 1.8.2001 but his plans have been approved and yet the respondent had failed to construct. Hence, he could not claim any relief.
The case of the other respondents in Revision Petition No.2100 of 2008 (PUDA Vs. Inderjit Bansal), Revision Petition No.2101 of 2008 (PUDA Vs. Sahib Chand and Anr.) and Revision Petition No.2102 of 2008 (PUDA Vs. Rajiv Makkar and Anr.) are similar in facts. The particulars are given below :-
In RP No. 2100 of 2008 (Appeal no. 187 of 2005/ (PB)/ RBT/844/ 2007) “ PUDA vs. Inderjit Bansal, in which Shri Bansal had purchased a residential plot no. 4 of 400 sq. yds. from PUDA for Rs.15,20,000/-. The facts of this case are also almost identical to the case pertaining to PUDA vs. Gulshan Rai and the District Forum had passed the following order on 21.12.2004:
œComplainant is entitled for compensation not developing area upto even filing of the written statement and he suffered loss due to escalation of the price and he has right to refund back of Rs.1,20,000/- and also compensation of Rs.20,000/- per year from the date of final payment i.e, on 02.08.2001 upto the period when actual possession is to be delivered to the complainant and amenities are to be provided by the opposite party. Opposite party is also directed to give the possession and provide amenities as soon as possible. Complainant is also awarded Rs.2000/- as cost of litigation?.
The State Commission in appeal no. 187 of 2005 upheld the order of the District Forum , but instead of compensation of Rs.20,000/- per year awarded by the District Forum, awarded interest @ 18% per annum from the date of respective deposits till amenities are provided and site plan is sanctioned.
In RP no. 2101 of 2008 (Appeal no. 188 of 2005/(PB)/RBT/846 of 2008) “ PUDA vs. Sahib Chand and Anr., in which Shri Sahib Chand had purchased a residential plot no. 9 of 350 sq. yds. from PUDA for Rs.15,20,000/. The facts of this case are also almost identical to the case pertaining to PUDA vs Gulshan Rai and the District Forum had passed the following order on 21.12.2004:
œComplainant is entitled for compensation not developing area upto even filing of the written statement and he suffered loss due to escalation of the price and he has right to refund back of Rs.80,000/- and also compensation of Rs.20,000/- per year from the date of final payment i.e, on 02.08.2001 upto the period when actual possession is to be delivered to the complainant and amenities are to be provided by the opposite party. Opposite party is also directed to give the possession and provide amenities as soon as possible. Complainant is also awarded Rs.2000/- as cost of litigation?.
The State Commission in Appeal no. 188 of 2005 upheld the order of the District Forum , but instead of compensation of Rs.20,000/- per year awarded by the District Forum, awarded interest @ 18% per annum from the date of respective deposits till amenities are provided and site plan is sanctioned. In RP no. 2102 of 2008 (Appeal no. 189 of 2005/(PB)/RBT/845 of 2008) “ PUDA vs. Rajiv Makkar and Anr., in which Shri Rajiv Makkar had purchased a residential plot no. 10 of 400 sq. yds. from PUDA for Rs.15,00,000/-. The facts of this case are also almost identical to the case pertaining to PUDA vs. Gulshan Rai and the District Forum had passed the following order on 21.12.2004:
œComplainant is entitled for compensation not developing area upto even filing of the written statement and he suffered loss due to escalation of the price and he has right to refund back of Rs.80,000/- and also compensation of Rs.20,000/- per year from the date of final payment i.e., on 02.08.2001 upto the period when actual possession is to be delivered to the complainant and amenities are to be provided by the opposite party. Opposite party is also directed to give the possession and provide amenities as soon as possible. Complainant is also awarded Rs.2000/- as cost of litigation?.
The State Commission in Appeal no. 189 of 2005 upheld the order of the District Forum, but instead of compensation of Rs.20,000/- per year awarded by the District Forum, awarded interest @ 18% per annum from the date of respective deposits till amenities are provided and site plan is sanctioned.
In view of the above facts, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, two Fora below have given detailed and reasoned orders which do not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petitions are hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only) in each case.
Petitioner is directed to deposit the cost of Rs.10,000/- in each case, by way of demand draft in the name of œConsumer Legal Aid Account? of this Commission, within eight weeks. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
List on 26.7.2013 for compliance.