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

                                  Consumer Complaint No.313 of 2015

                                 Date of institution:          07.07.2015

                                              Date of Decision:            16.06.2016

Rakesh Kumar son of Tarsem Lal, House No.4024, Sector 68, Mohali.

                                     ……..Complainant

                                        Versus

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, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri Munish Goel, counsel for the complainant.

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

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:

(a)    refund him Rs.17,46,500/- alongwith interest @ 12% from the date of deposit i.e. 26.09.2014 till refund.

(b)    to pay him Rs.33,000/- on account of compensation for causing mental tension, harassment and mental agony.

(c)    to pay him Rs.22,000/- as costs of litigation.

                The case of the complainant is that he purchased for earning his livelihood by means of self employment and to live, one Shop-cum-Flat No.34, Phase-VI (Sector 56), SAS Nagar (Mohali from the OP for a total sale consideration of Rs.2,49,50,000/-.  The complainant deposited total amount of Rs.17,46,500/- on 26.09.2014 and 27.09.2014 vide receipts Ex.C-1 to C-3. The OP informed that the aforesaid SCF is located at fully developed site and basic amenities are duly provided for opening shop and earning livelihood.  The complainant went to the site after making initial payments and he found that the SCF falls in front of slum area and huge dustbins are fitted in front and across the road for throwing of  garbage by the residents. Apart from that wine shop also exist in the vicinity adding to the adversity of the site. Because of all these factors, it was not possible to live in these conditions. The complainant would not be able to open shop and would not be able to earn his livelihood. After seeing the condition at the site, the complainant in September, 2014 asked to the OP for refund of the deposited amount. On the asking of the OP, the complainant clicked photographs of the site and submitted the same with the OP on 04.11.2014.  The OP vide letter dated 22.12.2014 cancelled the booking of the complainant but forfeited the whole deposited amount.  As per rules and regulations governing the allotment of sites, the Estate Officer can forfeit amount ranging from 1% to 10% keeping in view the facts and circumstances of the case. The complainant had put forth valid and sound reasons for withdrawing from the site and reasons for surrender of the SCF. The OP has illegally and arbitrarily ordered forfeiture of the whole deposited amount of the complainant which amounts to deficiency in service and unfair trade practice. The complainant had also filed appeal before the Addl. Chief Administrator GMADA against the order dated 22.12.2014 which has also been dismissed. With these allegations, the complainant has filed the present complaint. 

 2.            Upon notice, the OP appeared and filed reply in which it took preliminary objections that the complaint is not maintainable as the complainant has already availed remedy of appeal against the order dated 22.12.2014. The complainant is not a consumer as he has purchased the SCF for commercial purposes and also he has purchased the SCF in an auction.  On merits, it is pleaded that the complainant had participated in the auction with the complete knowledge of location of the SCF in question and the facilities available there. The OP has denied that it asked the complainant to click photographs of the SCF and submit the same with letter for refund. The complainant has purchased the SCF for speculative purpose and now he is unable to make the remaining payment and has sought the refund. The OP has legally ordered the forfeiture of the deposited amount.  Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.

3.             To succeed in the complaint, the complainant proved on record his affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-8.

4.             Evidence of the OP consists of affidavit of
Mrs. Rajdeep Kaur, its Estate Officer Ex.OP-1/1.

5.             We have heard learned counsel for the parties and have also gone through pleadings and evidence of the parties.  

7.             The factum of complainant being a successful bidder in auction for purchase of SCF No.34, Phase-6, SAS Nagar (Mohali) for earning his livelihood by self employment and to live and further deposit of Rs.17,46,500/- on 26.09.2014 being the 10% of the total agreed sale consideration of the SCF is not disputed. After making the initial payment, the complainant has chosen to withdraw from the scheme on the ground that the site in question falls in front of slum area, wine shop etc. and is not congenial environment for habitation. Since the complainant has not paid the subsequent sums as per schedule, therefore, the OPs have cancelled the allotment and forfeited the whole deposited amount. Aggrieved by the cancellation and forfeiture order, the complainant has approached the appropriate authority under Section 174 of the Punjab Regional and Town Planning and Development Act, 1995. The appeal has been dismissed vide order dated 03.06.2015 by the appropriate authority i.e. Chief Administrator, GMADA exercising the powers of competent authority under the aforesaid Act. The complainant instead of following legal remedy available to him under the aforesaid Act has chosen to file the present complaint. 

8.             The OP has taken preliminary objection regarding the maintainability of the complaint before this Forum particularly when the complainant has already availed the remedy under the aforesaid Act for the same cause of action i.e. cancellation of allotment and forfeiture of the deposited earnest money.

9.             Before we go into the merits of the complaint, it will be appropriate to appreciate the preliminary concern raised by the OP.

10.           The perusal of Ex.C-8 i.e. order dated 03.06.2015 passed by the Chief Administrator, GMADA exercising the powers of competent authority under the aforesaid Act shows that the complainant has challenged the cancellation and forfeiture of 10% of the earnest money. The competent authority has passed speaking orders in the presence of the parties i.e. the complainant and the OP and has dismissed the appeal of the complainant. Thus, it is ample clear that the complainant has invoked the jurisdiction of Punjab Regional and Town Planning and Development Act, 1995 and the competent authority having passed the speaking order, instead of filing availing the appropriate remedy under Punjab Regional and Town Planning and Development Act, 1995, the complainant chose to file the complaint before this Forum.  Since the complainant has invoked the jurisdiction of the aforesaid Act and has not challenged the order dated 03.06.2010 passed by the competent authority, it does not lie in the hands of the complainant to file consumer complaint challenging the cancellation and forfeiture order.

11.           Though the remedy provided to a consumer is an additional remedy under Section 3 of the Consumer Protection Act, the complainant having himself chosen to approach the appropriate authority under Punjab Regional and Town Planning and Development Act, 1995 instead of filing a consumer complaint in the first instance, the complaint at this stage, therefore, is clearly not maintainable and we agree with the concern of the OP in this regard.  In support of this, we take  the help from the decision of Hon’ble National Commission in  Chandresh Kumar Vs. Kotak Mahindra Bank Ltd. 2016(2) CLT 108 (NC).

12.           Thus the complaint being not maintainable is hereby returned to the complainant with the liberty to approach appropriate authority for redressal of his grievance. The complaint alongwith documents in original be returned to the complainant and photocopies of the complaint and documents be retained for record. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the papers be consigned to the record room.

Pronounced.                           

June 16, 2016.    

                          (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

               Member