Baldev Singh Vs. the Administrator, New Mandi Township - Court Judgment

K.C. Gupta, President:

1. This appeal has been directed by the complainant against order dated 27.7.2006 passed by Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as District Consumer Forum), vide which his complaint was dismissed being meritless, without any order as to costs.

2. Briefly stated the facts are that appellant (complainant) had purchased shop-cum-flat bearing No. 2 on 7.6.1995 for Rs. 2,82,000 in an open auction and deposited Rs. 70,500 being 25% of the sale consideration on 8.6.1995. He had purchased the said plot for constructing the shop for earning his livelihood and not for any commercial purpose and allotment letter dated 25.2.1997 Annexure C-1 was issued to him. An endorsement was also made to Naib Tehsildar, Colonization, Ferozepur with the direction to handover possession of the plot to the allottee and to report back to the respondent after handing over the possession. The appellant was required to pay the balance amount of Rs. 2,11,500 within 30 days from the date of issuance of allotment letter or in six half yearly instalments along with interest @ 12% p.a. Accordingly the appellant approached respondent several times for delivery of possession but the possession was not delivered and he was told that the possession would be delivered after development of the area. However, he was required to construct a shop within a period of two years from the date of allotment in order to avoid penal action against him and as such construction of the shop was delayed due to fault of respondent in not handing over the possession.

3. It was further averred that respondent issued letter dated 4.9.1998 Annexure C-2 asking him to deposit three instalments, failing which the penalty was to be imposed. Further vide letter Annexure C-3 dated 26.12.2002 the Naib Tehsildar, Colonization, Ferozepur directed the appellant to take over possession of the plot in question on 7.1.2003 but when he approached the concerned Naib Tehsildar, Colonization, Ferozepur, he did not handover the possession and ultimately the possession was handed over to him on 16.12.2003 and thus the possession was handed over to him after a period of about 8 years from the date of allotment but the possession handed over to him was without any development as the construction of road, providing of street lights, Pucca sheds, toilets and other basic amenities were not provided.

4. Alleging deficiency in service, the complaint was filed and prayed that the respondent be directed to provide basic amenities in the complex, to pay interest @ 12% p.a. on the amount deposited by him and further to pay Rs. 2 lacs on account of escalation of cost of construction and also Rs. one lac as damages on account of loss of business and harassment suffered by him at the hands of respondent.

5. Respondent contested the complaint and stated that the plot in question was a commercial one and as such appellant (complainant) did not come under the definition of consumer under the Consumer Protection Act. It next stated that the appellant had failed to point out any deficiency in service as the possession had been delivered. It further stated that it was barred by limitation. On merits, it denied the allegations and stated that the appellant had failed to raise construction even till that date despite the fact that possession had been delivered and the development work was complete.

6. Parties adduced their evidence by way of affidavits.

7. After hearing Counsel for the parties, District Consumer Forum vide order dated 27.7.2006 dismissed the complaint being merit less.

8. Aggrieved by the said order, complainant has filed the present appeal.

9. We have heard Counsel for appellant Mr. P.C. Singal, Mr. Joginder Singh, Legal Assistant on behalf of respondent and carefully gone through the file.

10. The copy of the allotment letter Annexure C-1 shows that SCF bearing No. 2, measuring 20 X 80 was allotted to the appellant (complainant) Baldev Singh vide letter dated 25.2.97 for Rs. 2,82,000/- and he had already deposited Rs. 70,500. The balance of 75% amount i.e. Rs. 2,11,500 was to be paid by him within 30 days without any interest or in six half yearly instalments along with interest @ 12% p.a. and the first instalment was to start after expiry of six months from the date of allotment letter. If any instalment was not paid in time, then penalty of 10% as interest was to be imposed. It is also mentioned in Clause No. 12 that the purchaser would make construction within two years from the date of allotment order. Annexure C-2 is the letter issued by respondent stating that the first instalment of Rs. 47,940 had become due on 25.8.1997, 2nd instalment of Rs. 45,825 had become due on 25.2.1998 and third instalment of Rs. 43,710/- had become due on 25..8.1998 and as such an amount of Rs. 1,37,475 had become due which should be paid within 30 days. Annexures C-3 and C-4 are letters addressed by the Naib Tehsildar (Colonization), Ferozepur to the appellant to take possession of SCF No. 2 situated in Mandi Talwandi Bhai. In the said letter Annexure C-4 dated 10.12.2003, the appellant was asked to take possession on 16.12.2003. Accordingly the appellant reached the spot and took possession. Thus, the possession had been delivered after a period of about 8 years because the SCF No. 2 was allotted on 7.6.1995 and the allotment letter was issued on 25.2.1997. In any case, there is delay of more than six years from the date of allotment letter. It is settled law that normally the possession should have been delivered to the allottee within two years from the date of allotment letter after making development.

11. Now further question to be seen is whether the area where SCF No. 2 is situated stands developed or not We had called Secretary, Market Committee, Talwandi Bhai Sadhu Singh son of Sh. Amar Singh and his statement was recorded on oath. He stated that letter Annexure R-1 dated 22.9.2000 was issued by him. In cross-examination he admitted that site plan Annexure R-2, (although, it was not to the scale) was correct. He clarified that lights and roads had not been provided at the spot as far as SCFs are concerned. He further clarified that there was no sewerage arrangement in whole of the Mandi including SCFs. He next stated that proper arrangement of sewerage water, electricity had been made for the farmers who brought their grains in the market committee but no arrangement of sewerage, electricity and roads had been made in the SCFs. Thus, his statement gives lie to the affidavit filed by H.S. Nanda, Director Colonization Department that all development work except installation of sewerage had been completed at the Mandi site of Talwandi Bhai. The testimony of Secretary, Market Committee positively shows that lights had not been provided, roads not constructed and sewerage not laid down on the spot as far as SCFs are concerned but proper arrangement of sewerage, water and electricity had been made for the farmers who brought their grains to the Market Committee i.e. these facilities had been provided only to Phar –Pucca platform where grains are stacked by the farmers for sale.

12. It has been held by Honble Supreme Court in Municipal Corporation Chandigarh and Ors. Etc. v.Shantikunj Investment Pvt. Ltd. Etc.,II (2006) SLT 592=AIR 2006 SC 1270, that providing of amenities is statutory obligation but it is not a condition precedent. Although, it was not condition precedent, yet there was obligation on the part of Administration to provide necessary facilities for full enjoyment of the same by the allottees. In the present case, it is not mentioned in the allotment letter that providing of facility is a condition precedent for making payment of amount of instalments, etc. Even the possession was delivered after about 7 years from the date of issuance of allotment letter dated 25.2.1997 as the possession had been taken by him on 16.12.2003. Now more than 10 years have elapsed but basic amenities like road, electricity and sewerage had not been provided so far. On the other hand, the Director of respondent had made false statement that the facilities had been provided.

13. Counsel for respondent contended that since appellant had purchased the SCF for commercial activities, so, he was not consumer. This contention of learned Counsel is not tenable because the complainant had categorically stated in the complaint that he had purchased the SCF for his personal residence and livelihood, therefore, it does not come under the definition of commercial activities.

14. Counsel for respondent also contended that the plot in question was purchased in an open auction and as such the complainant is not a consumer. For this purpose, he has placed reliance upon an authority Shiela Constructions Pvt. Ltd. and Anr. v.Nainital Lake Development Authority and Ors.,III (1996) CPJ 11 (NC)=1996 (2) CPC 584, where it was observed that where plot was purchased by complainant in an open auction, he was not consumer as he was only bidder and it was not hiring of service for consideration. We may state here that much water has flown after passing of the said judgment. Now it has been held in a number of authorities by the Honble National Commission that where the plot has been purchased in an open auction or has been allotted in draw of lots or otherwise, if there is any deficiency in service about the allotment, then allottee will be a consumer.

15. Counsel for respondent further contended that SCF was allotted vide allotment letter dated 25.2.1997 vide Annexure C-1 and the present complaint was filed on 14.9.2005 and as such it was time barred. In our opinion, contention of learned Counsel is not tenable. It is true that allotment letter Annexure C-1 was issued on 25.2.1997 but actual possession was handed over on 16.12.2003 and letter to this effect to take delivery Annexure C-4 was issued on 10.12.2003. Considering period of two years from the date of handing over of possession, the complaint is within time under Section 24A of Consumer Protection Act. Otherwise also, non-providing of basic amenities provide continue cause of action and as such we hold that complaint is not time barred.

16. In view of above discussion, the order of District Consumer Forum dated 27.7.2006 is set aside and the appeal is accepted with costs of Rs. 10,000. Respondent is directed to pay 12% interest on the amount of Rs. 70,500/- after two years of the date of deposit of the amount on 8.6.1997 till the delivery of possession on 16.12.2003. The respondent is further directed to provide basic amenities within six months and not to charge any interest or penalty on the balance amount. However, appellant is directed to pay balance amount within six months without any interest or penalty . If the amount is not paid within six months, respondent would be free to charge interest and penal interest and could take steps for resumption of the plot also. Consequently the complaint is also accepted.

17. Copies of this order be communicated to the parties, free of charge.