Haryana

StateCommission

A/1153/2016

HARYANA STATE AGRICULTURE MARKETING BOARD - Complainant(s)

Versus

DEVI DAYAL - Opp.Party(s)

B.S.NEGI

09 May 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :   1153 of 2016

Date of Institution:     02.12.2016

Date of Decision :     09.05.2018

 

1.     Haryana State Agricultural Marketing Board, through its Chief Administrator, Sector-6, Panchkula.

2.     The Chairman/Administrator, Market Committee, Barwala, Tehsil and District Panchkula, through Secretary-cum-Executive Officer, Market Committee, Barwala.

                                      Appellants-Opposite Parties

Versus

 

M/s Devi Dayal Jagdish Kumar through its partner Shri Devi Dayal s/o Sh. Mehar Singh, Resident of Village and Post Office Rampur Sainia, Tehsil Derabassi and Shri Jagdish Kumar s/o Sh. Prem Chand Arya, Resident of Village and Post Office Barwala, Tehsil and District Panchkula.

                                      Respondent-Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri B.S. Negi, Advocate for appellants.

                             Shri Abhineet Taneja, Advocate for respondent.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This appeal has been preferred against the order dated August 11^th, 2016 passed by District Consumer Disputes Redressal Forum, Panchkula (for short ‘the District Forum’).

2.                In response to an advertisement in the year 2009, complainant – M/s Devi Dayal Jagdish Kumar (respondent herein) was allotted a plot for shop bearing No.17 measuring 15x40 square feet situated at New Vegetable Market, Barwala, District Panchkula, being the highest bidder at the time of open auction, vide allotment letter dated 01^st July, 2010 (Annexure C-13). As per terms and conditions, the complainant deposited 25% of the total sale price amount Rs19,05,000/-  before participation in auction sale proceedings. As per terms and conditions, after deposit of 25% of the total sale price amount, the allottee was required to deposit the remaining sale price amount of Rs.14,28,750/-  within one month from the date of issuance of the allotment letter. In case, the allottee preferred to make payment in six monthly instalments, he was required to pay interest at the rate of 15% per annum. The complainant did not make payment of the remaining sale price amount within 30 days and preferred to make payment in installments. The complainant was given liberty to make payment in six monthly installments amounting to Rs.2,38,125/- each for payment of the remaining sale price with interest.

3.                As per terms and conditions, the allottee was liable to pay interest in case the possession is delivered to the allottee within time and possession was to be delivered after completion of the development work and providing all amenities. The complainant was offered possession of the plot without providing basic amenities. The complainant could not obtain possession as green trees were in existence over the site allotted to the complainant and due to this reason construction work could not be completed. To provide basic necessities as per terms and conditions and delivery of possession after removal of the standing trees the complainant has written three letters dated 06^th May, 2014; 24^th May, 2014 and 21^st October, 2014 to the opposite parties. Ultimately, the complainant filed an application under Right to Information Act, 2005. In reply dated 03^rd November, 2014 to the application under Right to Information Act, information was received that process has been started for cutting the trees in existence over the allotted plot. A letter was also written in this regard to the Forest Department. The opposite party No.2 - The Chairman/Administrator, Marketing Committee, Barwala has written letters dated 13.08.2014, 27.10.2014, 03.11.2014 and 01.01.2015 for permission to cut the standing trees. The complainant also applied for issuance of licence by depositing an amount of Rs.30,000/- as licence fee. Out of the total sale price amount Rs.19,05,000/-, the complainant has already paid an amount of Rs.17,71,535/- and still the complainant received a calculation sheet mentioning that an amount of Rs.11,94,869/- is still outstanding against the complainant. The complainant is not liable to pay interest or any penalty amount as the possession has not been delivered so far.

4.                The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 with a prayer to quash the demand of Rs.10,61,404/- as on 01.07.2015 on account of interest on due installments and not to charge interest on due installments till the standing trees are removed and the complainant is able to utilize the plot; to pay interest to the complainant on the amount already deposited at the rate of 18% per annum from the date of deposit; to pay an amount of Rs.2.00 lacs on account of loss suffered by the complainant due to non-issuance of licence till the standing trees are cut and removed and the complainant is able to utilize the plot; to pay an amount of Rs.1.00 lac on account of un-necessary harassment and mental agony; to pay an amount of Rs.1.00 lac on account of punitive damages and an amount of Rs.22,000/- as litigation expenses.

5.                The opposite parties in their written version have taken plea that the complaint is not maintainable; that the District Forum has no jurisdiction to decide this complaint; that the complaint is bad for non-joinder of necessary parties and that the complaint is barred by limitation. It is pleaded that the complainant along with other allottees earlier filed Civil Writ Petition No.12990 of 2011 seeking relief that interest at the rate of 15% per annum be not charged from the allottees upon the delayed installments of the principal amount on the plea that the opposite parties have not made any effort to develop the New Sabji Mandi, Barwala and that the basic amenities have not been provided. Writ Petition was dismissed by the Hon’ble Punjab and Haryana High Court vide order dated 14.09.2012. The complainant and other allottees again filed Civil Writ Petition No.4563 of 2014 which was also dismissed by the Hon’ble High Court vide order dated 12^th March, 2014 mentioning that in the previous writ petition also somewhat similar issues were raised. It was ordered that the petitioner/complainant may avail the legal remedy as may be available to them against the aforesaid order dated 14^th September, 2014 (Annexure P-3).

6.                It is pleaded that in fact the complainant committed default in payment of installments of the remaining sale price amount and he is creating grounds to avoid payment of interest as per terms and conditions. The complainant has raised objection after four years from the date of allotment of the plot and offer to delivery of possession. The complainant did not raise any objection at the time of auction and at the time of offer of delivery of possession. The plot of the complainant deserves to be resumed as the complainant violated the terms and conditions of the agreement and did not make payment of the installments regularly. It is admitted fact that the complainant was successful bidder at the time of auction also on 02.12.2009. He had already deposited 25% of the total sale price amount Rs.19,05,000/-. Remaining sale price amount was to be paid in installments as desired by the complainant as per terms and conditions. As the complainant was willing to make payment in installments, he was required to pay interest at the rate of 15% per annum.

7.                It is pleaded that allotment letter was issued on 01.07.2010 along with schedule of payment of installments and on the same date vide memo No.480, the complainant was offered the delivery of possession of the plot in question. The complainant himself did not prefer to obtain possession of the plot. In such circumstances, the complainant became liable to make payment of interest at the rate of 15% per annum and was required to complete construction work within two years from the date of allotment. It is denied that delivery of possession was offered without completion of basic amenities. It is also denied that trees were in existence after he was issued notice regarding payment of the amount.  It is specifically mentioned in paragraph No.19 of the offer of memorandum that the Market Committee will not be responsible for leveling of uneven sites. Considering request of the complainant, the opposite parties had written few letters to the Forest Department and other competent authorities for permission to cut and remove the standing trees on the allotted shop and reply was given to the complainant vide letter dated 03.11.2014 after receiving his application  under Right to Information Act. It was also the duty of the complainant to get the standing trees cut and removed from the site. The complainant is not entitled to any relief as prayed in the complaint. It is prayed that the complaint filed by the complainant be dismissed.

8.                Parties led evidence in support of their respective claims before the District Forum.

9.                After hearing arguments, vide impugned order dated 11^th August, 2016, the complaint of the complainant was allowed directing the opposite parties to issue the revised calculation after handing over the physical possession of the shop; to adjust the interest amount already paid by the complainant and to pay an amount of Rs.25,000/- to the complainant as compensation for harassment, mental agony, unfair trade practice and deficiency in service as well as cost of litigation.

10.              Aggrieved with the impugned order dated 11^th August, 2016 passed by the learned District Forum, the appellants-opposite parties have filed the present First Appeal No.1153 of 2016 with a prayer to set aside the impugned order and to dismiss the complaint filed by the complainant.

11.              We have heard learned counsel for the parties and perused the case file.

12.              During the course of arguments, there was no controversy of any type that the complainant being the highest bidder at the time of auction, sale proceeds held on  02.03.2009, was allotted plot No.17 measuring 15x40 Sq. ft. situated at New Vegetable Market, Barwala, District Panchkula vide allotment letter dated 01.07.2010 for a consideration of Rs.19,05,000/-. An amount of Rs.4,76,250/- was deposited by the complainant being 25% of the total sale price and the remaining sale price amount of Rs.14,28,750/- was to be paid by the complainant within 30 days from the date of issuance of the allotment letter in case the complainant was willing to make payment of the remaining sale price in lump sum. During the course of arguments, there was no controversy of any type that as per agreement terms and conditions, the allottee was required to pay interest at the rate of 15% per annum if the complainant opts for payment of the remaining sale price amount in six monthly instalments. Admittedly, the complainant gave option to make payment of the remaining sale price in installments.
Vide letter dated 01.07.2010 (Annexure C-17) the complainant was given offer of possession of plot No.17. The complainant deposited 25% of the total sale price amount Rs.4,76,250/- as mentioned in letter dated 05.12.2009 (Annexure C-2).  Notice (Annexure C-8) was served upon the complainant on 03.11.2014 to make payment of the amount due.

13.              As discussed above, now situation is quite clear. Plot No.17 was allotted to the complainant vide letter dated 01.07.2010 (Annexure C-3). Letter (Annexure C-2) was issued by the opposite parties offering delivery of possession of the plot to the complainant. The complainant neither raised any objection regarding providing basic amenities etc. nor regarding existence of the trees.  The complainant remained silent for a period of about four years. The complainant never raised any objection and willfully avoided to obtain possession of the plot/shop. If the complainant had any grievance regarding providing basic amenities or regarding existence of the trees, the complainant should have raised objection on the date of offer of delivery of possession. It appears that the complainant preferred to submit the letters dated 06.05.2014, 24.07.2014, 21.10.2014 (Annexure C-4 to C-6) after the complainant received demand from the opposite parties regarding payment of the remaining amount. In the above mentioned three letters, the Executive Officer cum Secretary, Market Committee, Barwala was requested to get the standing trees in existence over the plot cut and removed so that possession of the plot may be delivered and the complainant may be able to complete construction work.  

14.              In response to the above mentioned letter, the opposite parties had written letters to the Chief Administrator, Haryana State Agricultural Marketing Board on 27.10.2014, 03.11.2014 and 01.01.2015 (Annexure C-10 to C-12) for obtaining sanction for cutting and removing trees standing over the plot so that possession may be delivered.  Vide letter dated 03.11.2014 (Annexure C-8) the complainant received information under Right to Information Act, 2005 from the Executive Officer and Secretary, Market Committee, Barwala to the effect that valuation of the standing trees has been got assessed from forest department and letter has also been written to the Head Office of the Board for cutting and removing the trees or to change site. On the basis of the above mentioned letters of correspondence, as discussed above (Annexure C-4 to C-12), the complainant claims that possession has not been delivered to the complainant and that the possession could not be delivered as basic amenities had not been provided as trees are already in existence over the plot/site in question.

15.              Regarding not providing basic amenities, the complainant earlier filed civil writ petition No.4563 of 2014 titled as “Jai Singh Saini vs. State of Haryana”. That writ petition was filed by the complainant Devi Dayal and Jagdish Kumar and three other plot holders with a prayer to direct the opposite parties not to charge interest at the rate of 15% from the allottees as delivery of possession could not be possible as basic amenities could not be provided. The writ petition, mentioned above, was dismissed by a Division Bench of Hon’ble Punjab and Haryana High Court, Chandigarh vide order dated 12.03.2014. The complainant and few other allottees also filed a Civil Writ Petition No.12990 of 2011 before the Hon’ble Punjab and Haryana High Court, Chandigarh with a prayer to give direction to the opposite parties to provide basic amenities like drinking water, arrangements of road side light etc and to develop the New Sabji Mandi at Barwala and not to recover interest from the petitioners including the complainant at the rate of 15% per annum. The above mentioned Civil Writ Petition was dismissed by the Hon’ble Division Bench of Punjab and Haryana High Court vide order dated 14^th September, 2012 (Annexure C-15).

16.              Civil Writ Petition No.1122 of 2003 titled as “Raksha Rani versus Haryana State Agricultural Marketing Board and others” was filed by the petitioner. In the proceedings of that petition, LPA No.502 of 2011 (O&M) was also filed. In that case, vide order dated 14.09.2012, the Hon’ble High Court has given findings that the plot holders would be liable to pay expenses, fee, interest and penalty from the date of offer of possession after framing of the rules on 10.03.2000.

17.              After close perusal of the orders passed by the Hon’ble High Court in the above mentioned three writ petitions also, it is clear that prayer of the complainant and few other allottees not to charge interest at the rate of 15% per annum and not to charge extension fee or penalty, was declined. In this way, same type of relief as prayed in this complaint has already been declined to the complainant and other plot holders by the Hon’ble Punjab and Haryana High Court, while deciding the above mentioned writ petition.

18.              As per discussions above in detail, it clearly appears that at the time of allotment, the complainant allottee was not willing to pay the remaining sale price amount in lump sum and neither he was willing to raise construction nor he was willing to pay interest as per terms and conditions of the allotment. The prayer of the complainant and other allottees for providing all the basic amenities like boundary wall, gate for the purpose of security and facility of shed in case of rain etc. were declined. Version of the opposite parties is that all basic amenities had already been provided to the allottee/complainant. We also feel that if grown up trees would have been in existence over the plot when delivery of possession was offered on 01.07.2010 or any other basic amenities would not have been provided, certainly the complainant would have raised objection in this regard on the same date mentioning reason of not obtaining possession of the plot. The complainant had written 3-4 letters mentioned above to the opposite parties to get the existing trees cut and removed from the plot, just after four years from the date of offer of delivery of possession. In these letters or in any other document, it is nowhere mentioned that how much trees were in existence over plot No.17 and also did not mention the type or varieties of these trees.  The complainant has nowhere mentioned the age of these trees. Barwala Town is situated near Morni hills and climatically this area is suitable for plantation and fast growth of the trees. When a plot shall remain vacant and un-attended for a period of four years, there may be possibility of growth of few other trees during this period of four years also. Approximately, five years period is enough for plantation and growth for sale of few varieties of trees like Poplar (genus Populus) and eucalyptus. In these circumstances, there appears to be possibilities that when the complainant did not agree to obtain possession of the plot, growth of few trees took place on this vacant and unattended plot and the opposite parties certainly cannot be blamed for it.

19.              As per discussions above in detail, we are of the opinion that the complainant did not obtain possession of the plot intentionally as neither he was willing to raise construction within time nor he was willing to pay the remaining sale price amount in lump sum nor he was willing to pay interest at the rate of 15% per annum as per terms and conditions. The complainant to avoid payment of interest and extension fee etc. is playing clever tactics and wants to take help from the process of law also by misleading facts when the complainant and other allottees were not able to obtain any favourable order from the Hon’ble High Court in the above mentioned writ petitions, the complainant took decision to file the present complaint. In fact, the amount which the complainant was required to pay within 30 days from the date of allotment, has not been paid till now and the complainant do not want to pay interest amount and also do not want to pay any penalty and extension fee etc. The complainant wants to cause heavy monetary losses to the opposite parties by using clever tactics.

20.              Keeping in mind all these circumstances, we feel the learned District Forum committed an error while passing the impugned order dated August 11^th, 2016. Hence, the appeal is allowed, the impugned order is set aside and consequently the complaint filed by the complainant stands dismissed.

21.              The statutory amount of Rs.10,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after expiry of period of appeal/revision, if any.

 

Announced: 09.05.2018

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL