DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 210 of 16-05-2013

Decided on 29-11-2013

Paramjit Kaur, aged about 42 years, wife of Sh. Nirmal Singh, ASI, R/o House No. 1042, Model Town, Phase-III, Bathinda.

…...Complainant

Versus

1. Bathinda Development Authority, BDA Complex, Bhagu Road, Bathinda, through its Chief Administrator

2. Estate Officer, Bathinda Development Authority, Bathinda.

    

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

QUORUM

Smt. Vikramjit Kaur Soni, President

Sh. Amarjeet Paul, Member

Smt.Sukhwinder Kaur, Member

For the Complainant : Sh. Sunder Gupta, counsel for the complainant.

For the opposite parties : Sh. Rajdeep Goyal, counsel for the opposite parties.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The instant complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as an 'Act'). Briefly stated the case of the complainant is that the opposite parties gave an advertisement in the news paper regarding auction of shops, SCF and residential plots in Phase-II, Model Town, Bathinda on 16-7-2008 and accordingly, the complainant made a bid for residential plots No. 234 and 235 in Phase-II, Model Town, Bathinda. The complainant being highest bidder was allotted plots No. 234 & 235. The complainant deposited Rs. 5.00 lacs vide receipt No. 73 book No. 29 dated 16-7-2008 for plot No. 234 and Rs. 5,15,000/- vide receipt No. 74 book No. 29 dated 16-7-2008 being 10% of the total amount of the plot. The complainant deposited Rs. 7,47,000/- vide draft No. 841265 drawn on State Bank of Patiala on 21-10-2009 vide receipt No. 001 Book No. 135 for plot No. 234 and Rs. 7,73,000/- vide draft No. 841264 drawn on State Bank of Patiala on 21-10-2008 vide receipt No. 100 book No. 29 for plot No. 235 and in this way, the complainant deposited 25% of the total price of the plots amount. The complainant alleged that thereafter her mother-in-law fell seriously ill and was admitted in various hospitals. The complainant incurred huge amount on her treatment due to which her financial position deteriorated and accordingly the complainant applied for cancellation of plots and refund of the aforesaid amount on 26-3-2009 to the opposite party No. 2 as she was unable to deposit the further amount. The complainant further alleged that the opposite party No. 2 received her application on the same day but did not take any action. The complainant approached the opposite parties time and again for refund of the said amount as she was in dire need of money for the treatment of her mother-in-law. The Estate Officer vide order dated 13-9-2011 ordered for refund of amount deposited by the complainant regarding the aforesaid plot after deducting/forfeiting 10% of the total amount of the consideration and interest thereupon. Feeling aggrieved against the said order, the complainant filed appeal before Addl. Chief Administrator, BDA vide his order dated 14-09-2011 and the Addl. Chief Administrator vide his order dated 17-10-2011 reduced the forfeiture amount from 10% to 5%. The complainant further alleged that the opposite parties retained her lawful amount and misused the same for considerable period and refunded the same vide cheque No. 074896 dated 12-3-2012 amounting to Rs. 9,03,655/- regarding plot No. 234 and cheque No. 074897 dated 12-3-2012 amounting to Rs. 9,41,441/- regarding plot No. 235 after deducting 5% of the total consideration amount. Thereafter the complainant sought information from the opposite parties under RTI Act vide application dated 17-4-2012 regarding order/noting passed on application of plots No. 234 and 235 and time period consumed in refunding the amount in case of surrender of plot and cases in which 2% amount has been deducted. The opposite parties supplied the required information and then the complainant came to know that the opposite parties have ordered the refund of the amount of the complainant regarding the aforesaid plots after deducting/forfeiting 2% of the total consideration amount vide order dated 19-6-2009, but they refunded the amount to her after forfeiting 5% of the total consideration amount as per order dated 17-10-2011 vide cheque dated 12-3-2012. The complainant sought information under RTI Act and she came to know that only 2% of total consideration has been forfeited regarding plot No. 290, Phase II, Model Town, Bathinda, but the opposite parties did not supply the information regarding the plots against which only 2% amount of the total consideration has been deducted. The complainant further alleged that she applied for cancellation and refund of the amount deposited on 26-3-2009 against aforesaid plots, the opposite parties refunded the part payment of 12-3-2012 after deducting 5% of the total consideration whereas they were bound to release the amount within 15 days. Moreover, since the opposite parties have already taken decision vide order dated 19-6-2009 to refund the amount after deducting/forfeiting 2% of the total consideration amount, but the opposite parties have failed to adhere to their own order and have illegally used the lawful amount of the complainant. Hence, the complainant has filed the present complaint seeking directions to the opposite parties to refund the amount of Rs. 14,32,762/- i.e. Rs. 6,61,537/- more for plot No. 234 and Rs. 7,71,225/- for plot No. 235, alongwith interest w.e.f. 12.3.2012 till realization besides compensation and cost.

2. The opposite parties filed their joint written statement and took legal objection that this Forum has no jurisdiction to entertain and try this complaint as complainant has not availed the efficacious remedy available with her i.e. to file revision petition under Section 45 of Punjab Regional & Town Planning & Development Act, 1995 before State Government against the order of Addl. Chief Administrator, BDA, Bathinda passed on 17-10-2011. On merits, the opposite parties have admitted that the complainant applied for the cancellation of the allotment of aforesaid plots No. 234 and 235, Phase-II, Model Town, Bathinda and they after considering the request of the complainant, accepted the same vide order dated 13-9-2011. The opposite parties have pleaded that it is a matter of record regarding passing of order dated 13-9-2011 by the Estate Officer, PUDA, Bathinda and order of refund of the earnest money to the complainant after deducting 10%. The opposite parties have admitted that the complainant filed an appeal against the said order dated 13-9-2011 before the Ld. Addl. Chief Administrator, BDA, Bathinda and the order dated 17-10-2011 was passed by the Ld. Addl. Chief Administrator, Bathinda, reducing the amount of deduction from 10% to 5%. The opposite parties have pleaded that the said order dated 17-10-2011 was passed by the Ld. Addl. Chief Administrator, Bathinda by using his quasi judicial powers which are discretionary powers although the deduction in such like cases is provided upto 10% and the complainant never filed any revision against the said order dated 17-10-2011 which has already become final. The opposite parties have admitted that cheque No. 074896 dated 12-3-2012 regarding plot No. 234 and cheque No. 074897 dated 12-3-2012 regarding plot No. 235 were issued to the complainant as full and final settlement of her total claim. The opposite parties have pleaded that there is no delay on their part in issuing the cheques in question. The order in appeal filed the complainant was passed on 17-10-2011 and thereafter the complainant never filed any revision petition against the said order dated 17-10-2011 and after the expiry of the period of limitation for filing the revision petition, the cheques were issued to the complainant on 12-3-2012. The opposite parties have pleaded that the complainant had sought the information from them under RTI which was supplied to her. On the application filed by the complainant for the refund of her amount, the then Estate Officer, BDA, Bathinda vide order dated 19-6-2009 had ordered for the refund of the earnest money to the complainant after deducting 2% of the total amount, but however the subsequent Estate Officer, BDA, Bathinda, found the said order dated 19-6-2009 to be against the rules and regulations of Punjab Regional & Town Planning & Development Act, 1995 and exercising his powers under the aforesaid Act, the Estate Officer, BDA, Bathinda vide its letter No. 811 dated 24-2-2010 referred the matter to the Chief Administrator, BDA, Bathinda for reconsideration and thereafter the fresh order was passed by the Estate Officer, Bathinda, on 13-9-2011 for the refund of the earnest money to the complainant after deducting 10% charges as per the provisions of Section 45 of Punjab Regional & Town Planning & Development Act, 1955 against which the complainant went in appeal and the appeal was decided on 17-10-2011 and no further revision has been filed by the complainant against the order dated 17-10-2011 and the same has already become final and even the full and final payment has also been made to the complainant in compliance of the said order dated 17-10-2011. The opposite parties have admitted that refund of the amount has been given to the allottee of plot No. 290 after deducting 2% charges. The Estate Officer, BDA, Bathinda, passed the order of refund in respect of plot No. 290 keeping in view the circumstances of the said case which were totally different then the present case of the complainant and further the order of the refund is passed by the Estate Officer and the appellant authorities by applying their mind and exercising their quasi judicial power which are discretionary powers. The opposite parties have denied that the complainant is entitled to the refund of 3% more in each case of plots No. 234 & 235. The total amount due to the complainant has already been refunded to her in full and final settlement.

3. Parties have led their evidence in support of their respective pleadings.

4. Arguments heard. Record alongwith written submissions submitted by the parties perused.

5. These are undisputed facts between the parties that the complainant made a bid for residential plots No. 234 and 235 in Phase-II, Model Town, Bathinda and being highest bidder, she was allotted plots No. 234 & 235. The complainant deposited 25% of the total price of the plots amount. The complainant applied for cancellation of plot and refund of the deposited amount on 26-3-2009 to the opposite party No. 2 as she was unable to deposit the further amount. The Estate Officer vide order dated 13-9-2011 ordered for refund of amount deposited by the complainant regarding the aforesaid plots after deducting/forfeiting 10% of the total amount of the consideration. Feeling aggrieved against the said order, the complainant filed appeal before Addl. Chief Administrator, BDA and the Addl. Chief Administrator vide his order dated 17-10-2011 reduced the forfeiture amount from 10% to 5% and the opposite parties refunded the amount on 12-3-2012. Thereafter the complainant sought information from the opposite parties under RTI Act vide application dated 17-4-2012 regarding order/noting passed on application of plots No. 234 and 235 and time period consumed in refunding the amount in case of surrender of plot and cases in which 2% amount has been deducted. The opposite parties supplied the required information and then the complainant came to know that the opposite parties have ordered the refund of the amount of the complainant regarding the aforesaid plots after deducting forfeiting the 2% of the total consideration amount vide order dated 19-6-2009, but they refunded the amount to her after forfeiting 5% of the total consideration amount as per order dated 17-10-2011 vide cheque dated 12-3-2012. The complainant also came to know that only 2% of total consideration has been forfeited regarding plot No. 290, Phase II, Model Town, Bathinda.

6. The submission of the learned counsel for the complainant is that as per rules and regulations, the opposite parties were duty bound to refund the above said amount within 15 to 30 days, but the Estate Officer of the opposite parties vide order dated 19-6-2009 ordered for refund of the deposited amount after deducting 2% amount. The opposite parties did not refund the amount and without informing the complainant, the new Estate Officer vide his order dated 13-9-2011, ordered for the refund of the above said amount after deducting 10%/ The complainant filed appeal before the administrator which was decided on 17-10-2011 vide which it was ordered that the refund of the due amount after deducting 5% be made. The learned counsel for the complainant submitted that the opposite parties were duty bound to refund the said amount within 15 to 30- days whereas the refund was made by them on 12-3-2012. The learned counsel for the complainant further submitted that there is no provision under PUDA Act that once the order for refund of the amount is passed by the competent authority i.e. Estate Officer, then PUDA can review the order. The Estate Officer vide his order dated 19-6-2009 has ordered for the refund of the amount after deducting 2% only and no appeal for revision was filed by the opposite parties against the order dated 19-6-2009, so the opposite parties have retained the lawful amount of the complainant without any reasonable cause and the order dated 13-9-2011 passed by the Estate Officer of the opposite parties is illegal. The learned counsel for the complainant further submitted that it has been admitted by the opposite parties that only 2% amount has been deducted regarding plot No. 290 situated in Phase II, Model Town Bathinda.

7. On the other hand, the submission of the learned counsel for the opposite parties is that the complainant has applied for cancellation and refund of the deposited amount against aforesaid plots and vide order dated 13-9-2011, the amount was refund to her as per rules and regulations of Punjab Regional & Town Planning & Development Act, 1995. The Estate Officer, PUDA, Bathinda passed the order dated 13-9-2011 for the refund of earnest money to the complainant after deducting 10%, but the complainant filed appeal against the said order before Ld. Additional Chief Administrator, BDA, Bathinda which was accepted and order dated 17-10-2011 was passed reducing the amount of deduction from 10% to 5%. On the application filed by the complainant for the refund of her amount, the then Estate Officer, BDA Bathinda vide order dated 19-6-2009 has ordered for the refund of the earnest money to the complainant after deducting 2% of the total amount but however the subsequent Estate Officer, BDA, Bathinda, found the said order dated 29-6-2009 to be against the rules and regulations of Punjab Regional & Town Planning and Development Act, 1995 and exercising his powers under the aforesaid Act, the Estate Officer, BDA, Bathinda, vide its letter No. 811 dated 24-2-2010 referred the matter to the Chief Administrator, BDA, Bathinda for reconsideration and thereafter the fresh order was passed by the Estate Officer, Bathinda on 13-9-2011 for the refund of the earnest money to the complainant after deducting 10% charges as per provisions of Section 45 of Punjab Regional & Town Planning & Development Act, 1995 against which the complainant filed appeal which was decided on 17-10-2011 and no further revision has been filed by the complainant, so that has already become final and even the full and final payment has also been made to the complainant in compliance of order dated 17-10-2011.

8. The opposite parties have admitted that on the application filed by the complainant for the refund of her amount, the then Estate Officer, BDA Bathinda vide order dated 19-6-2009 has ordered for the refund of the earnest money to the complainant after deducting 2% of the total amount but however the subsequent Estate Officer, BDA, Bathinda, found the said order dated 29-6-2009 to be against the rules and regulations of Punjab Regional & Town Planning and Development Act, 1995 and exercising his powers under the aforesaid Act, the Estate Officer, BDA, Bathinda, vide its letter Ex. C-5, No. 811 dated 24-2-2010 referred the matter to the Chief Administrator, BDA, Bathinda for reconsideration. It is not understandable that when the order dated 19-6-2009 Ex. C-10, wherein it has been mentioned that 2% deduction be made, was passed by the Estate Officer, BDA for the refund of the deposited amount after deducting 2% charges, then why the refund was not made to the complainant after the said order and her case was kept pending and thereafter, after about eight months a letter was written by the next Estate Officer to Chief Administrator for revision of that order. Moreover, a perusal of letter Ex. C-5 written by the subsequent Estate Officer vide which 10% deduction was recommended, reveals that proposal of 10% deduction regarding surrender of plots was given in the meeting dated 15-7-2009 whereas the order regarding 2% deduction in the case of the complainant was passed by the then Estate Officer on 19-6-2009. The opposite parties have failed to explain that if once the order has been passed by any officer then how the subsequent officer can revise that order.

9. The submission of the opposite parties that the subsequent Estate Officer found the order dated 19-6-2009 against the rules and regulations of Punjab Regional & Town Planning and Development Act, 1995 is also not tenable as if the order dated 19-6-2009 vide which 2% deduction was ordered in the case of the complainant, was against the rules and regulations, then how the refund of the amount after deducting 2% charges was made to the allottee of plot No. 290, Phase-II, Model Town, Bathinda whereas this fact has been admitted by the opposite parties. The opposite parties have pleaded in para No. 7 of their reply that Estate Officer, BDA, Bathinda, passed the order of refund in respect of plot No. 290 keeping in view the circumstances of the said case which were totally different than the present case of the complainant, but how the circumstances of complainant and allottee of plot No. 290 were different have not been explained by the opposite parties.

10. Keeping in view the facts, circumstances and the evidence placed on file by the parties, this Forum is of the considered opinion that the order dated 13-09-2011 vide which the refund of deposited amount of the complainant was passed after deducting 10% charges is null and void and the complainant is not bound to comply that order. As discussed above in detail, once the order dated 19-6-2009 was passed by the then Estate Officer, the opposite parties were bound to make the payment to the complainant after deduction of 2% charges from her deposited amount. Hence, there is deficiency in service on the part of the opposite parties and the complainant is entitled to 3% more refund of the amount deposited by her against plots No. 234 & 235 alongwith interest w.e.f. 19-7-2009 (i.e. after one month of the date of order passed on 19-6-2009) till realization.

11. The opposite parties have taken legal objection that this Forum has no jurisdiction to entertain and try this complaint as complainant has not availed the efficacious remedy available with her i.e. to file revision petition under Section 45 of Punjab Regional & Town Planning & Development Act, 1995 before State Government against the order of Addl. Chief Administrator, BDA, Bathinda passed on 17-10-2011. The Consumer/complainant has availed the additional remedy under Section 3 of the Consumer Protection Act. Section 3 of the 'Act' which reads as under:-

    “The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

    Thus, the remedy under the 'Act' is additional, not in derogation of any other law for the time being in force. Thus, this complaint lies under the 'Act' and the objection so taken by the opposite party, is not tenable.

12. With utmost regard and humility to the authorities cited by the learned counsel for the opposite parties, they are distinguishable on facts.

13. In view of what has been discussed above, this complaint is accepted with Rs.10,000/- as compensation and cost against the opposite parties. The opposite parties are directed to refund the remaining deposited amount to the complainant against aforesaid plots No. 234 & 235 after deducting 2% charges, alongwith interest @9% p.a. w.e.f. 19-7-2009 till realization. The opposite parties are further directed to pay interest on the amount of Rs. 18,45,106/- to the complainant @ 9% p.a. w.e.f. 19-7-2009 till the date of payment i.e. 12-3-2012.

14. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order.

    A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

    Pronounced in open Forum

    29-11-2013

    (Vikramjit Kaur Soni)

    President

     

     

    (Amarjeet Paul) Member

     

     

    (Sukhwinder Kaur)

    Member