DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.326 of 2015

                                                   Date of institution:  13.07.2015

                                                   Date of decision   :  09.04.2019

Amrik Singh son of Sewa Singh, resident of House No.742, Phase-69, Mohali.

…….Complainant

Versus

Punjab Urban Planning & Development Authority now Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Mohali through its Estate Officer/Authorised Signatory.

……..Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member

Present:     Complainant in person with Counsel Sh. Munish Goel,

                Shri G.S. Arshi, counsel for the OP.

Order by :-  Shri G.K. Dhir, President.

Order

                Complainant purchased plot measuring 200 sq. yards in Sector 69, (erroneously mentioned as Phase-69) Mohali and thereafter allotment letter dated 08.09.2015 was issued by OP in favour of complainant. Out of total payable price of Rs.2,80,000/-, complainant deposited Rs.24,250/- alongwith application form as earnest money. Thereafter amount of Rs.45,750/-, being allotment money, was deposited by complainant on 30.10.1995. Physical possession of the plot was handed over to complainant on 15.04.1999. Complainant paid Rs.56,000/- more on 23.09.1996; Rs.52,500/- on 05.09.1997; Rs.49,000/- on 08.09.1998 and Rs.45,500/- on 08.09.1999. In this way total sum of Rs.2,73,000/- had been paid by complainant. Physical possession of the plot having all amenities was to be provided at earliest after issue of allotment letter dated 08.09.1995, but due to lack of amenities, same was handed over only on 15.04.1999 i.e. after lapse of 3 years and 7 months. Earlier complainant filed complaint No.357 of 22.09.1999 in Ld. District Consumer Forum, Ropar on account of deficiency in service due to delay in offering possession. That complaint was allowed in terms that amount of interest paid on installments upto 20.04.1999 be adjusted towards next due installment and thereafter balance amount be refunded in cash to complainant within 60 days, failing which said amount to carry interest @ 12% per annum from the date of default till actual payment. OP preferred appeal No.307 of 2000 before Hon’ble State Consumer Disputes Redressal Commission against those orders, but the same was dismissed in default vide orders dated 04.07.2000. Application for restoration of appeal dismissed in default even stood dismissed in default due to non appearance by anyone on behalf of OP on 03.10.2000. Complainant remained under impression as if the orders dated 25.11.1999 passed by District Consumer Forum, Ropar, referred above, will be complied by the OP by way of refunding the excess amount. Impression of complainant was that in case of need, claim for further amount after due calculations will be put forth by OP as per directions of order dated 25.11.1999. Complainant did not hear anything from OP till July, 2003 and that is why he sent letter dated 10.07.2003 requesting OP to do the needful. Copy of that letter was received by OP under the signatures of concerned official. Complainant did not hear anything from OP. Complainant got knowledge that revenue department had given final date of conveyance deed upto 03.06.2009. So application for conveyance deed was filed on 16.03.2009. In the reply received by complainant, it was mentioned that documents would be dispatched on 05.04.2009. However, those documents were not received untill 26.05.2009 and that is why complainant sent letter on 26.05.2009 to OP for calling upon it to clear the conveyance deed, so that he can get the same executed from revenue department. Nothing was heard by complainant and that is why he sent another letter dated 18.06.2009. Complainant contacted OP in July, 2009 and got information as if in one connected appeal No.220 of 1999, Hon’ble State Consumer Disputes Redressal Commission Punjab has remanded the case back to District Consumer Forum, Ropar for deciding the case afresh. However, complainant was having no knowledge about those orders. Complainant even did not get any notice of hearing either from the Hon’ble State Commission or from District Consumer Forum, Ropar. As District Mohali stood carved out from District Ropar and as such complainant approached Mohali Forum. Complainant got knowledge as if order dated 25.10.2000 passed by Hon’ble State Commission in Appeal No.220 of 1999 for remanding the case back was conveyed to District Forum. Ropar. On directions of this Forum, complainant approached Hon’ble State Commission for seeking report from District Forum, Ropar or in the alternative to seek direction for calling upon District Forum, Ropar to rehear the case in pursuance of the remand order dated 25.10.2000. An application for reconsideration of orders was submitted by complainant and thereafter this Forum was directed by Hon’ble State Commission to comply with the orders dated 20.12.2000 passed in appeal. Vide fresh orders dated 01.04.2010 passed by this Forum, earlier complaint (referred above) was dismissed. On appeal No.704 of 2010 being preferred before Hon’ble State Commission, the same was allowed vide orders dated 09.05.2014. Complainant duly applied for conveyance deed on 16.03.2009. Though OP was bound to send reply for disclosing if any dues are pending, but it kept the file pending for the final decision of the complaint and the appeal. On account of this, deficiency in service on part of OP alleged. After passing of orders by Hon’ble State Commission, complainant again sent letter to OP in March, 2015 for claiming that he has applied for conveyance deed on 16.03.2009, but OP has not replied to that query. Complainant asked upon OP to disclose about the discrepancy, if any, but nothing was done by OP. In May, 2015 complainant met officials of OP for requesting them to clear the position regarding conveyance deed. Complainant received letter dated 15.05.2015 from OP for claiming as if amount of Rs.2,86,672/- is due against complainant on account of non deposit of 5^th and 6^th installments which were due on 08.09.2000 and 08.09.2001. Though an amount of Rs.80,500/- on account of 5^th and 6^th installments alone was payable, but remaining amount of Rs.2,06,172/- illegally charged on account of interest and penalty. Complainant without wasting time deposited amount of Rs.2,86,680/- under protest with OP on 18.05.2015 for further avoiding payment of interest and penalty. OP issued letter dated 25.05.2015 for deposit of amount and conveyance deed. Plot was purchased by complainant for his own living, but penalty amount of Rs.2,06,172/- charged illegally and that is why refund of same with interest @ 12% per annum from the date of deposit namely 16.05.2015 till date is sought. Compensation for mental agony and harassment of Rs.33,000/- and litigation expenses of Rs.22,000/- claimed.

2.             OP was proceeded against ex-parte and thereafter on advancing of arguments by counsel for OP, OP was permitted to join proceedings at the stage of arguments vide orders dated 09.02.2016. No written reply in this case received from OP.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-11 as well as Mark-A to Mark-G and thereafter his counsel closed evidence.

4.             Written arguments not submitted by any of the party. Oral arguments heard and record gone through.

5.             After going through allotment letter Ex.C-1, it is made out that tentative price of plot No.742 allotted to complainant was Rs.2,80,000/-. This amount was payable in annual equated installments with interest @ 10% per annum as per schedule given below:

6.             Letter Ex.C-2 dated 15.04.1999 was issued by OP to complainant for informing him that he should come present during period from 9.00 A.M. to 5.00 P.M. for getting possession of plot No.742 allotted to him as aforesaid. In view of the issue of this letter of possession Ex.C-2, it is claimed that complainant remained under impression as if he need not pay amount of 5^th and 6^th installments because of terms of orders Mark-A dated 25.11.1999 passed in Consumer Complaint No.357 of 22.09.1999 by Ld. District Consumer Forum, Ropar. It may be mentioned here that earlier Mohali was not a district, when the above said Consumer Complaint No.357 of 22.09.1999 was decided on 25.11.1999 through Mark-A.

7.             After going through Mark-A, it is made out that direction was issued to OP for adjusting the amount of interest paid on installments upto 20.04.1999 towards next due installment, but the balance amount be refunded in cash to the allottee within 60 days, failing which that amount will carry interest @ 12% per annum from the date of default till actual payment.  Through Mark-A, it was further held that complainant entitled to amount of Rs.10,000/- by way of compensation-cum-cost of the proceedings. If the terms of Mark-A taken into consideration, then certainly it is made out as if complainant need not have paid the balance installments because the amount payable for balance installments had to be adjusted from the amount of interest paid on installments upto 20.04.1999. However, over all facts and circumstances of the case has to be taken into consideration and the latest order passed in the series of proceedings of CC No.357 of 22.09.1999 to prevail over the orders passed through Mark-A. Submission of counsel for OP in this respect has force.

8.             After going through copy of order Mark-B passed in appeal No.307 of 2000 by PUDA against present complainant, it is made out that said appeal was dismissed in default on 04.07.2000. Misc. Application filed in this appeal No.307 of 2000 for restoration of appeal also stood dismissed in default on 03.10.2000, is a fact borne from copy of order Mark-C passed by Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh. Complainant by referring to the orders contained in Mark-A regarding adjustment of payable amount of 5^th and 6^th installments, called upon Estate Officer of PUDA, Mohali to adjust the amount of interest towards payable amount of 5^th and 6^th installments and as such from contents of Ex.C-3 it is made out as if complainant remained under impression that he need not pay the amount of 5^th and 6^th installments. Undisputedly, amount of first four installments has been paid by complainant to OP. It is not the impression carried by complainant, but it is the order passed by the Forum/Hon’ble State Commission, which is to prevail.

9.             Perusal of copy of order Mark-D dated 13.08.2009 passed by this Forum reveals that an advice/guidance was given to complainant to approach the Hon’ble State Commission for appraising the facts regarding status of order passed in CC No.357 and of the orders of dismissal of appeal and of the Misc. Application in default. All this is made out after going through copy of order Mark-D dated 13.08.2009 passed by this Forum. However, on filing of Misc. Application No.1673 of 2009 in First Appeal No.307 of 2000 decided on 01.12.2009 by Hon’ble State Consumer Disputes Redressal Commission Punjab, order Mark-D dated 13.08.2009 was set aside and this Forum was directed to comply with the order dated 20.12.2000, vide which the matter was remanded back to the Ld. District Consumer Forum, Ropar for deciding the case afresh in accordance with law after affording due opportunity of hearing to the parties. Copy of this order is available on record as Mark-E. Being so, the position remains that the orders Mark-A and Mark-D stood set aside. It was in pursuance of the order Mark-E dated 01.12.2009 passed by Hon’ble State Commission that this Forum through order dated 01.04.2010 passed in CC No.71 of 2010, dismissed the earlier complaint filed by complainant.  So virtually order Mark-A passed by ld. District Consumer Forum, Ropar was set aside and earlier complaint of the complainant was dismissed.  On appeal being preferred against order Mark-F passed by this Forum, Hon’ble State Commission vide orders dated 09.05.2014 passed in First Appeal No.704 of 2010 set aside the order passed by this Forum regarding dismissal of the earlier complaint filed by complainant. Through this order Mark-G dated 09.05.2014, earlier complaint filed by complainant was accepted and direction issued to OP to pay interest @ 12% per annum on the installments paid upto 20.04.1999 and pay compensation of Rs.10,000/-. So from contents of Mark-G, it is made out that no direction has been issued to OP for adjusting amount of interest on installments towards the payable amount of Rs.80,500/- of 5^th and 6^th installments. As such submission advanced by counsel for OP has force that OP can recover this amount of 5^th and 6^th installment alongwith accrued interest and penalty amount by invoking provisions of Section 45 of Punjab Regional and Town Planning & Development Act, 1995 (hereinafter referred as ‘PUDA Act’) because Clause-15 of allotment letter Ex.C-1 specifically provides that allotment is subject to provisions of PUDA Act.

10.            Clause-16 of Ex.C-1 further provides that no separate notice will be sent for payment of yearly installments and payment had to be made in accordance with the schedule mentioned in Clause-6 of Ex.C-1 and as such it is vehemently contended by counsel for OP that it was the duty of complainant to pay amount of 5^th and 6^th installments without receipt of any notice from OP. Even if that be the position, despite that in view of Clause-15 of Ex.C-1, it has to be held that as the allotment is subject to provisions of PUDA Act and the rules framed thereunder and as such amount of penalties or of interest is recoverable as per provisions of that Act only.

11.            Clause-17 of allotment letter Ex.C-1 specifically provides that in the event of breach of any condition of allotment or of regulation or non payment of any amount due together with the penalty, the plot or building thereon, as the case may be shall be liable to be resumed and in that case the amount not exceeding 10% of the total consideration money shall be forfeited. However, in case such resumption and forfeiture on account of breach of terms of transfer to take place, then the same is to take place in accordance with Section 45 of PUDA Act.

12.            Section 45 of PUDA Act provides that when any transferee makes default in payment of any consideration money or any installment, on account of transfer of any land or building or both under Section 43, then the Estate Officer may, by notice in writing, call upon the transferee to show cause within a period of 30 days, why penalty as may be determined by the authority, be not imposed upon him. Proviso to Section 45 (1) of the PUDA Act further provides that penalty so imposed will not exceed the amount due from the transferee. It is undisputed that the amount due towards complainant of 5^th and 6^th installment was of Rs.80,500/- and as such penalty in excess of Rs.80,500/- could not have been levied or imposed. Even for imposing that penalty, the Estate Officer of PUDA has to issue a show cause notice in writing for calling upon the transferee like complainant as to why penalty determined by the authority, be not imposed. Such show cause notice not shown to be issued to complainant at all, but straightway requisition Ex.C-8 sent to complainant under signatures of Accounts Officer, GMADA that complainant should pay amount of Rs.2,86,672/- being amount of 5^th and 6^th installments plus amount of interest and penalty. It was in pursuance of this notice Ex.C-8 that complainant sent demand draft of this amount for making payment of balance amount by sending application Ex.C-9 alongwith the said demand draft, copy of which is produced on record as Ex.C-10. So after going through Ex.C-8, it is made out that bifurcation of amount of penalty and of interest on the due amount of Rs.80,500/- has not been furnished to complainant at all. Even notice Ex.C-8 not issued by the Estate Officer as per requirement of Section 45 of PUDA Act because the same has been sent by the Accounts Officer of GMADA only. So virtually this amount of Rs.2,86,672/- charged from complainant without affording him an opportunity of showing cause against the alleged recovery of penalty amount and the interest amount. In view of violation of provisions of Section 45 of PUDA Act referred above, it has to be held that virtually OP entitled to retain amount of Rs.80,500/-, out of the received amount of Rs.2,86,680/- deposited under protest through application Ex.C-9 dated 18.05.2015. Being so, illegal recovery is of amount of Rs.2,06,180/- because this is the amount recovered as penalty and interest, besides amount of 5^th and 6^th installments of Rs.80,500/-. As this amount of Rs.2,06,180/- recovered illegally and as such complainant entitled for refund of this amount with interest @ 8% per annum from today onwards till payment, provided payment is not made within 30 days from the date of receipt of copy of the order. Though excess charged amount is of Rs.2,06,180/-, if contents of Ex.C-9 alongwith that of demand draft Ex.C-10 taken into consideration, but the claimed amount for refund purposes is Rs.2,06,172/- only and that is why the claim allowed with respect to refund of Rs.2,06,172/-.

13.            Perusal of Ex.C-5 and Ex.C-6 further shows that complainant had been pressing upon OP to execute the conveyance deed on 26.05.2009 and 18.06.2009 even, but despite that demand of payable 5^th and 6^th installments not put forth from complainant till issue of Ex.C-8 dated 15.05.2015. So virtually demand raised after about 6 years of staking of claim by complainant for execution of conveyance deed. That lethargy on part of OP further projects that requests of complainant for issue of conveyance deed remained unattended for six years approximately. This is also deficiency in service on part of OP. Rather OP after receipt of requests Ex.C-5 and Ex.C-6 dated 26.05.2009 and 18.06.2009 should have called upon complainant to pay amount of 5^th and 6^th installments, but same not done and as such fault lays with OP in that respect also. It was due to this fault and adoption of unfair trade practice of recovery in violation of Section 45 of PUDA Act, that complainant suffered mental agony and harassment for about 10 years and as such complainant entitled to compensation for mental agony and harassment of Rs.40,000/- atleast and also to litigation expenses of Rs.10,000/-. Complainant also entitled for refund of excess paid amount of Rs.2,06,172/- within specific period failing which OP must pay interest @ 8% per annum from today till payment. As fault also remained with complainant in not paying the 5^th and 6^th installments and as such OP is given liberty to proceed against complainant in accordance with provisions of Section 45 of PUDA Act, referred above. However, in case such process to be initiated by OP, then the same must be initiated within 45 days from date of receipt of copy of order and not later than that.

14.            No other arguments advanced.

15.            As a sequel of above discussion, complaint allowed with direction to OP to refund the excess received amount of Rs.2,06,172/- (amount of penalty and interest) within 30 days from the date of receipt of certified copy of order, failing which complainant will be entitled to interest on this amount @ 8% per annum from today onwards till payment.  Compensation for mental agony and harassment of Rs.40,000/-  (Rs. Forty Thousand only) and litigation expenses of Rs.10,000/-  (Rs. Ten Thousand only)  more allowed in favour of complainant and against the OP. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order.   However, OP is given liberty to issue show cause notice for effecting recovery of penalty amount as per Section 45 of the Punjab Regional and Town Planning Development Act, 1995 afresh and pass order (if so desired), but after affording due opportunity of hearing to complainant against recovery of the penalty and interest amount. That process, if desired, be also initiated within 40 days from the date of receipt of copy of the order and not later than that. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

April 09, 2019

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member