Punjab

Ludhiana

CC/16/829

Bharat Goyal - Complainant(s)

Versus

GLADA - Opp.Party(s)

M.S.Sethi Adv.

01 Jun 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.829 of 08.12.2016

Date of order          :   01.06.2017

Bharat Goyal 40 years aged s/o Late Ishwar Lal Goyal, r/o 50/27, Ram Gali, Bharat Nagar Chowk, Ludhiana.

Complainant

Versus

 

1.Great Ludhiana Area Development Authority, Ferozepur Road, Ludhiana through Estate Officer.

2.Estate Officer, GLADA, Ferozepur Road, Ludhiana.

Opposite parties

 

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :           Sh.M.S.Sethi, Advocate

For Ops                         :           Ex-parte

 

PER G.K DHIR, PRESIDENT

 

1.     Complainant is an employee of private concern, situate in Industrial  Area-B, Ludhiana, wherein dealing in iron trading and as such he decided to start his own venture for self employment and earning livelihood by running Karyana Shop. So, complainant participated in auction held on 6.3.2013 for purchase of commercial site Phase-3,  SCF No.2, Dugri, Ludhiana. Allotment of this commercial SCF measuring 121 Sq. yards was made in favour of complainant vide allotment letter dated 3.5.2013 under the general trade category for sum of Rs.1,12,53,000/- at the price of Rs.93,000/- per sq.yards. Initially the complainant deposited Rs.11,25,300/-, being 10% of the price amount on 6.3.2013, but thereafter, he deposited Rs.16,87,950/- more on 4.4.2013 being 15% of the auction price of SCF-2. In this way, total sum of Rs.28,13,250/- was paid and the same was adjusted towards initial 25% of the sale price of the site. Balance 75% of price amounting to Rs.84,39,750/- was required to be paid by the complainant in four yearly installments along with interest @12% per annum of amount of Rs.25,31,926/-. First installment was required to be paid on 6.3.2014. Complainant took part in other auction held on 30.10.2013 for SCF Nos.9 to 13, Phase-3, Dugri, Ludhiana. Those sites were sold in the range of Rs.68,000/- to 70,000/- per sq.yard.  Complainant purchased SCF No.13 for total sale consideration of Rs.84,33,900/- in auction held on 30.10.2013. After auction of SCF No.13 in favour of complainant, he opted to do his business in this SCF and sent letter dated 28.11.2013 received by Ops on 29.11.2013 for requesting them to cancel the allotment of SCF No.2, Phase-3, Dugri, Ludhiana. This request was sent before issue of payment of first installment dated 6.3.2014. Request was submitted with Ops to adjust the paid amount of Rs.28,13,950/- of SCF No.2 against 15% amount payable for SCF No.13. Complainant sent letters dated 28.3.2014; 28.4.2014 and 5.12.2014 etc., for calling upon Ops to adjust the above said amount, but E.O. office ordered the deduction of amount of Rs.11,99,662/- out of the total paid amount of Rs.28,13,950/-. Copy of order dated 27.5.2014 was obtained by the complainant after visiting the office of OPs on two occasions. It is claimed that Ops adopted unfair trade practice by ordering forfeiture of Rs.11,99,662/- referred above because the same deduction is violative of section 45(3) of the Punjab Regional & Town Planning and Development Act. Present is not a case of resumption, but it is a case of voluntary cancellation sought by complainant and as such, no amount can be forfeited. It is admitted that vide allotment letter dated 3.5.2013, Ops disclosed through Para 7(viii) of the terms and conditions of auction that in case of breach of any condition of allotment or of regulation or on account of non-payment of any amount, the plot or building liable to be resumed by deducting amount not exceeding 10% of the total amount of the consideration money, interest or other fees payable in respect of plot. No breach of condition of allotment or of regulation committed by the complainant and as such, by pleading deficient/negligent services provided by OPs, this complaint filed for seeking directions against Ops for calling upon them to refund the illegal forfeited amount of Rs.11,99,662/- with interest @12% per annum from the date of deposit till actual refund. Compensation for mental harassment and agony of Rs.1 lac and litigation expenses of Rs.22,000/- more claimed.  

2.                Ops are ex-parte in this case.

3.                Complainant to prove his case tendered in ex-parte evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C7 and thereafter, his counsel closed the evidence. 

4.                Written arguments not submitted by the complainant. Oral arguments of counsel for complainant heard and records gone through minutely. 

5.                Allotment letter Ex.C1 produced by the complainant shows that in auction held on 6.3.2013, commercial site of SCF No.2 in Phase-3 in Dugri, Ludhiana was allotted to him against auctioned price of Rs.1,12,53,000/-. Clause 7(viii) of Ex.C1 provides that in case of breach of any condition of allotment or of regulations or on account of non-payment of any amount due together with the penalty, the plot or building liable to be resumed and in that event, amount not exceeding 10% of the total amount of consideration money, interest and other fees payable in respect of plot, liable to be forfeited as per the provisions of Section 45(3) of the Punjab Regional and Town Planning and Development Act, 1995. This site was purchased by the complainant at higher rate knowing fully well that it being a commercial site will have basement and six storeys. These facts evidenced by para no.3 of letter Ex.C2 dated 28.11.2013 sent by complainant to Ops for seeking cancellation of this allotted SCF No.2. So, from this request Ex.C2 itself, it is made out that commercial site of SCF No.2 was purchased by the complainant in hope that it will have basement and raising of six storeys will be permissible. A person for earning livelihood for self employment will not invest so much of the amount in a commercial site having basement and six storeys and as such, plea taken in the complaint is not correct that site of SCF No.2 was purchased for self employment for earning livelihood. Rather, in view of contemplated investment of Rs.1,12,53,000/-, it is obvious that complainant contemplated to purchase this site for commercial purposes for having six storeys and basement therein. Only that person will expect to have six storeys and basement in a commercial site, who is to use the same for the purposes other than self use. So, contents of Ex.C2 enough to infer as if commercial site in question was purchased by the complainant not for self employment for earning livelihood.

6.                Another letter Ex.C3 dated 28.3.2014 was sent by the complainant to Estate Officer of GLADA, Ludhiana for requesting to refund/adjust the deposited amount towards allotment of SCF No.13, Phase-3, Dugri Road, Ludhiana. This SCF No.13 even purchased by the complainant in open auction is a fact borne from the contents of Ex.C3 as well as the subsequent letter Ex.C4. After going through Ex.C2 to Ex.C4 together, it is made out that cancellation of SCF No.2 sought mainly for the reason as if the complainant had to pay higher price than that of one which he is to pay for the allotted site of SCF No.13. A person contemplating to start a venture for self employment for earning livelihood will not conceive to invest more than one crore rupees in one site and then Rs.84,33,900/- in another side. However, the complainant has done so by first seeking allotment of SCF No.2 and then SCF No.13 and as such, the same shows as if complainant purchased these sites or got the same in auction for commercial venture. It is unbelievable that an employee with a private concern, situate in Industrial Area-B, Ludhiana, will be able to invest more than one crore rupees for purchase of a commercial site in the first instance, but thereafter, within a span of six months, he will     opt for second commercial site of SCF No.13 by contemplating to invest Rs.84,33,900/-. In view of this, it is obvious that underline purpose in getting the sites allotted through open auction by the complainant was something else, than that of starting venture for self employment for earning livelihood. A person, who is to run a Karyana shop need not contemplate for a six storey building along with basement, but the complainant pleaded through para no.1 of the complaint as if he for running Karyana shop participated and remained successful in the auction of commercial site of SCF No.2 first and thereafter, of SCF No.13. So, the purpose of purchase through auction was not self employment for earning livelihood, but for earning profits. Being so, complainant is not a consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986.

7.                As per case titled as Inderjit Dutta vs. Samridhi Developer and others-II(2015)CPJ-342(N.C.), if a person took two flats for residential purposes by investing the amount, then the same investment to be deemed for commercial purpose, due to which, complainant concerned will not be a consumer. Same is the position in the case before us as discussed above because complainant after getting allotment of one commercial site in auction, opted to go out of that for getting allotment of another commercial site for lesser price.

8.                As per law laid down in case titled as Manu Talwar vs. DPT Ltd-IV(2015)CPJ-396(N.C.), if a commercial space purchased through buyer agreement for commercial purpose, then complainant concerned will not be a consumer. Ratio of this case is fully applicable to the facts of the present case before us because breach of buyer's agreement for seeking cancellation opted by the complainant, despite being successful  bidder  in auction held on "as is where is basis".

9.                In case, a person allotted a flat or plot to be developed by the Statutory authority by way of public auction on "as is where is" basis and     such sale is not accompanied by obligation of carrying out any other development or of provisions for augmenting infrastructure facility, then purchaser will not be a consumer. This in fact is the ratio of case titled as Delhi Development Authority vs. Palveen Kumar and others-II(2015)CPJ-36(N.C.). In the case before us also, complainant remained successful allottee of the auctioned sites without provision for further development of the area, in which, the sites are situate or without provision for providing further infrastructure facility and as such, certainly complainant is not a consumer in view of above cited cases. In case titled as Puneet Singh vs. Aerens Entertainment Zone Limited-2015(4)CLT-277(N.C.), it has been held that if complainant booked two shops for commercial complex of Ops at the time when he (complainant) is in job, then it can specifically be concluded that such booking was for commercial purpose and not for earning livelihood. Same is the position in the case before us because here in the complaint, it is specifically pleaded that complainant is an employee with a private concern situate in Industrial Area-B, Ludhiana, but he decided to start the karyana shop for self employment by participating in two auctions and remained successful in both the open  auctions. The analogy of law laid down in above cited cases is fully applicable to the facts of the present case in such circumstances and as such, complainant is     not a consumer.

10.              It is not Ops who cancelled the allotment granted in favour of the complainant through allotment letter Ex.C1, but it is the complainant himself who is seeking cancellation of this allotment. So, it is the complainant, who is seeking withdrawal from the allotment. Being so, it is a case, in which, withdrawal from the terms and conditions of allotment sought by the complainant and not by Ops. Open auction once conducted becomes final on acceptance of the final bid and as such, in conduct of such open auction, the authority like OPs has to bear expenses, due to which, necessity of deducting certain amounts required. As unilateral withdrawal from the terms and     conditions of the allotment of site forming subject matter of Ex.C1 sought by the complainant and as such breach of condition of allotment, if any, is on the part of the complainant. Being so, in view of clause No.7(viii) of the allotment letter Ex.C1, Ops are within their right to deduct amount of Rs.10% by passing orders in that respect placed on record as Ex.C6. So, no illegality even is there in the orders Ex.C6. That deduction contemplated by invoking section 45(3) of Punjab Regional and Town Planning and Development Act, 1995 and as such, it is vehemently contended by counsel for complainant that notice in writing must have been served before ordering forfeiture. Such notice contemplated by Section 45 not required in this case, particularly when complainant himself sought cancellation of the allotted plot/site and seeking adjustment of 15% of the amount required to be deposited,with respect to the second allotted SCF-13, as evidenced by para no.4 of letter Ex.C3. In para no.4 of Ex.C3, it is specifically mentioned that in case, adjustment of 10% of the already deducted amount with respect to SCF-2 not to be done, then complainant ready to pay the balance 15% amount with respect to the allotted SCF-13. In view of these assertions in Ex.C3, OPs were competent to rely on these assertions while passing orders Ex.C6 in terms of clause 7(viii) of allotment letter Ex.C1 by invoking section 45(3) of the above referred Act. A person cannot be allowed to approbate and reprobate and as such, after representing that in case, the amount of 10% cannot be adjusted, then 15% may be accepted (as evidenced through para no.4 of Ex.C3), now complainant cannot  claim that charging of 10% through orders Ex.C6 is illegal. So, by passing of orders Ex.C6, neither Ops adopted any unfair trade practice and nor they provided any deficient services to the complainant. Rather, they acted as per law and terms and conditions of the allotment letter Ex.C1 and as such, this complaint seems to have been filed for abusing the process of law only. However, in case, orders Ex.C6 to be challenged by the complainant, then he can approach competent authority/Civil Court only.

11.              Therefore, as a sequel of the above discussion, complaint dismissed with the observation that complainant may approach the competent authority/Civil Court because this complaint not maintainable. Copies of order be supplied to the parties free of costs.

12.                        File be indexed and consigned to record room.

 

                             (Param Jit Singh Bewli)                                 (G.K.Dhir)

                        Member                                                     President

Announced in Open Forum

Dated:01.06.2017

Gurpreet Sharma.