DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAPURTHALA Building No. b-XVII-23, 1st Floor, fatch Bazar, Opp. Old Hospital, Amritsar Road, Kapurthala consumer case(CC) No. CC/07/139
Jarnail Singh
...........Appellant(s)
Vs.
Estate Officer
...........Respondent(s)
BEFORE:
1. A.K.SHARMA 2. ShAmarjit Singh
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
Present complaint under Section 12 of the Consumer Protection Act 1986 as amended upto date has been filed by Jarnail Singh complainant against opposite party i.e. PUDA through its Estate Officer Jalandhar City seeking direction against it for refund of interest of Rs. 62,438/- charged upto June 2002 on the instalment and also for providing basic amenities in the Urban Estate Kapurthala and for monetary compensation on account of deficiency in service on the part of opposite party. The brief facts of the complaint are that complainant became owner of the plot measuring 300 sq.yds. as well as house constructed over plot No.37 Urban Estate Kapurthala. He had purchased the said plot from the original allottee namely Sain Dass son of Brij Lal on payment of Rs.5,41,126/- vide demand draft No.770203 dated 27/11/2003 of H.D.F.C. Bank Kapurthala which amount included earnest money 20% of the total price of the plot. The first four installments of the plot alongwith interest which was paid by the original allottee to the opposite party plus premium more than what was prevalent . The original allottee also executed a writing on 28/11/2003 admitting receipt of Rs.5,41,126/- as full and final payment in respect of the plot No.37. He also executed requisite documents to the opposite party for transfer of the plot in his favour who after charging Rs.21000/- as transfer fee from him, transferred the said plot to him. Consequently re-allotment letter dated 3/12/2003 was also issued to him after due transfer of the plot. It is further alleged that opposite party at the time of allotment had not drafted or framed any zoning plan for the plots carved in Urban Estate Kapurthala. The first allotment letter were issued in December 2000 whereas the zoning plan was actually framed and finalised on June 2002. The opposite party wrongly and illegally charged interest on the due installment from his predecessor upto June 2002 for which PUDA was not entitled as on account of non framing of the zoning plan nor delivered the posession of the plot to the allottee. It is further averred that he agitated against the order of the opposite party for charging of interest as a result thereof, head office of the opposite party decided not to charge any interest on the installments upto June 2002 when the zoning plan was finalised and notified and conveyed its decision to Jalandhar office vide letter No.PUDA-Policy UE-1 2005/2171 dated 31/5/2005. Opposite party refunded amount of interest to several allottees but discriminated against him on this core by insisting for procuring no objection certificate from the original allottee despite order of the Hon'ble State Commission in similar complaint titled as Gurvinder Kaur & others vs. PUDA pertaining to House No.46, Urban Estate Kapurthala. It is therefore alleged that opposite party had committed deficiency in service by refusing to pay interest amount charged on the installments paid upto June 2002 to which he is lawfully entitled as he has stepped into shoes of original allottee for all rights and liability arisen out of the allotment of the said plot. and also statutory provisions of Section 55 (6)(a) of the Transfer of property Act. It is further urged that opposite party had also failed to provide basic amenities of sewerage work as its out let discharge drain connecting with the main municipal sewerage drain has not been constructed so far. Nearly hundred owners have shifted to their newly built houses since long alongwith their families and others are likely to shift on completion of their construction works. The entrance from main Jalandhar road to Urban Estate has not been constructed. Therefore, complainnt is entitled to the refund of interest charged on the installments upto June 2002 and also basic amenities as aforesaid alongwith monetary compensation on account of deficiency in service. Opposite party appeared and controverted the allegations of the complainant. Certain preliminary objections have been raised that Consumer Forum has no jurisdiction to entertain and decide the complaint as per clause 25 of the akkitnebt ketter No.652 dated 30/1/2001 and that complainant has got no cause of action nor has got any locus standi to file this complaint. That complaint is hopelessly time barred. On merits original allotment of the plot from Sain Dass son of Brij Lal on payment of installments in the Urban Estate Kapurthala and subsequent ownership by way of transfer of the plot to the complainant after fulfillment of requisite formalities vide reallotment letter dated 3/12/2003 by the opposite party is not disputed. It is however pleaded that complainant is not entitled to the interest on the installments paid upto June 2002 as the original allottee had paid last installment in July 2003. Therefore, interest can either be returned to the original allottee or complainant on the condition that complainant shall provide affidavit and undertaking from the original allottee and that he/she shall not claim refund of the intrest from the opposite party. Complainant was neither original allottee nor he provided affidavit and undertaking of the original allottee as per requirement of the opposite party. It is further stated that refund of the interest can be made to the transferee only on production of affidavit of no objection from the original allottee. Apropos the basic amenities in the Urban Estate, it is pleaded that all works of sewerage , roads and electricity has since long been completed. More than hundred owners have shifted to the newly built houses in the urban Estate. All the developmental works have been completed Therefore, there is no question of any deficiency in service on the part of opposite party so as to entitle the complainant to any monetary compensation. In support of his version Jarnail Singh complainant has produced in evidence affidavit ex.C1 reallotment letter Ex.C2 and affidavit Ex.C3 and other documents Ex.C4 to C20. On the other hand opposite party produced in evidence affidavit Ex.O1. We have heard arguments of learned counsel for the parties and perused ocular as well as documentary evidence on the record. Learned counsel for the complainant has vehemently urged before us that since complainant being transferee of the plot No.37 measuring 300 sq. yards in Urban estate Kapurthala has stepped into shoes of original allottee for all intents and purposes is entitled to the refund of interest charged on the installments paid upto June 2002 even by his predecessor besides he is also entitled to basic amenities like sewerage, discharge of rain water with the main municipal drain and also provision for entrance from main Jalandhar Road to Urban Estate. On the other hand it has been counterargued by learned counsel for the opposite party that opposite party ha no objection to refund of interest on the installments amount paid upto June 2002 to the complainant subject to production of no objection from the original allottee so as to avoid possibility of any conflict or litigation. apropos the basic amenities, it has been pleaded that all works of sewerage, roads and electricity have since been completed in the Urban Estate as more than hundred owners have shifted to their newly built houses in the Urban Estate. We have considered rival contentions of the counsel for the parties. We find considerable merit in the contentions of lerned counsel for the complainant partly. From the pleadings of the parties and evidence adduced thereon by them, these broad facts are not disputed about original allotment of plot NO.37measuring 300 sq. yards in the urban Estate Kapurthala to Sain Dass son of Brij Lal vide Ex.C20 and subsequent transfer of ownership thereof to the complainant by way of re -allotment letter dated 3/12/03 Ex.C2 after fulfillment of prescribed formalities like affidavit Ex.C3 and also no due certificate Ex.C4 and also Plinth level certificate Ex.C5 and also mutation and further payment receipts Ex.C6 to C16. This fact is also not disputed by the opposite party that interest will not be charged on the due installment upto June 2002 vide its letter No. PUDA- Policy UE-1/2005/2171 dated 31/5/2005 for lack o finalization of zoning plan and consequent inability of the complainant/transferee to raise construction on the plot in question. The stand of PUDA is that transferee of the plot is entitled to interest amount charged upto June 2002 only subject to undertaking/no objection certificate from the original allottee. The contention requires thoughtful consideration in the light of conditions No,.10 and 11 of the allotment letter which may be reproduced as under : You shall be required to take possession of the plot from Estate Officer PUDA, Jalandhar within 60 days of the date of issue of allotment letter.The site shall be offered on "a is where is basis and the allottee shall not be claim any rebate on any ground whatsoever. The authority will not be responsible for leveling uneven site.You shall have to complete the building within three years from the date of issue of the letter after getting the plans of the proposed building approved from the Estate Officer. In case of non-construction of the plot, on your own request, you may be allowed extension in time for construction of the building on the payment of extension fee as determined by PUDA from time to time. In case, no request is received within 30 days on the expiry of prescribed period, the Estate Officer shall initiate proceedings for resumption of plot as per the provisions of Punjab Urban Planning and Development Authority Act, 1995 and Rules framed thereunder. From the perusal of these terms and conditions and also from undertaking/indemnity bonds from the complainants/transferees, it is evident that PUDA reserved its right to claim th dues from the transferee of the plot even if attributable to the original allottee prior to the reallotment of these plots to the complainants. The question of entitlement of the transferee of the plot to the refund of interest amount charged uptil June 2002 has been squarely dealt with and adjudicated in para No.2 of judgment in a similar case titled as Gurinder Kaur vs. PUDA first appeal No.1421 of 2005 dated 9/3/2006 by our Hon'ble State Commission with its pertinent observations interalia as under :-It is not disputed before us that while allowing the transfer PUDA had taken an undertaking from the complainants that in case any amount is found against the plot sought to be transferred, the complainants a transferees would be liable to pay even if it is found that the amount was prior to the transfer of the plot to the transfer of the plot in the name of the complainants. PUDA cannot take a stand that heads. I win tails you loss. If PUDA has the right to claim any amount which is due against the plot even prior to the date of transfer there may be some amountwhich may be found due from the PUDA to the original allottee. The right to claim that would automatically stand transferred to the transferee after the transfer is allowed by the PUDA. The transferee steps into the shoes of the original allottee. There does not have to be anything in writing in that regard between the transfer and transferee. In case PUDA pays the amount which may be due to the original allottee it will absolve itself and the original allottee cannot claim that amount from the PUDA. If at all he may recover the same from the transferee. Consequently we hold that District Forum was not correct in its approach when it held that the transferee has no right to claim the refund of the amount of interest on the installments paid prior to 12.6.2002 by Shri Baldev Singh Bains.Therefore, following the ratio of above cited cases of Hon'ble State Commission we are of the considered opinin that complainant/transferee is entitled to the interest amount on the installments paid upto June 2002 whether paid by the original allottee or by the transferee.Apropos the basic amenities in the Urban Estate area under the Scheme, there is no doubt, allegation and counter allegation of the parties. Equally this fact is not disputed by the parties that the issue regarding the basic amenities in the Urban Estate area under the Scheme is already pending adjudication before the Hon'ble National Commission. Therefore, no positive findings can be returned on this issue in the peculiar circumstances of the case. Nevertheless, opposite party PUDA may accelerate the development activities for the basic amenities in the area of Urban Estate if not accomplished uptil now.The penultimate contention of learned counsel for the opposite party to oust jurisdiction of consumer Forum to adjudicate this complaint under the Arbitration clause under the terms of the allotment letter is not tenable in the light of Section 3 of the Conumer Protection Act 1986 which clearly provides that the provision of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being. In the ultimate analysis of aforesaid discussion we partly accept the complaint and direct the opposite party to refund interest amount on the installments paid upto June 2002 to the complainant with interest @ 10% p.a. thereon till payment as per record of installments maintained by the PUDA and compensation of Rs.5000/- for mental agony and physical harassment and Rs.1000/- as cost oflitigation which would be paid by the opposite party within a period of one month from th receipt of copy of this order. Let certified copies of judgment rendered be supplied/despatched to the parties without any unnecessary delay and thereafter file be consigned to record room. Announced : ( Surinder Mittal ) ( A.K., Sharma ) 29.1.2008 Member President.
