Haryana

StateCommission

A/772/2023

MUNICIPAL CORPORATION, KARNAL THROUGHS ITS ADDITIONAL COMMISSIONER AND ORS - Complainant(s)

Versus

HARPREET SINGH - Opp.Party(s)

PIYUSH BANSAL

22 Mar 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                         

                                                          Date of Institution:  08.07.2023

                                                          Date of final hearing: 12.01.2024

                                                          Date of Pronouncement: 22.03.2024

 

 

APPEAL NO.772 OF 2023

 

IN THE MATTER OF

                      

1. Municipal Corporation, Karnal through its Commissioner Earstwhile the Karnal Improvement Trust, Karnal.
2. Municipal Corporation, Karnal through its Secretary Earstwhile the Karnal Improvement Trust, Karnal.
3. The Director Urban Local Bodies, Bays 11-14, Sector-4, Panchkula, Haryana-134112.

 

All through its Additional Commissioner, Municipal Corporation, Karnal O/o at Sector-12, Karnal, Haryana-134112.

 

                                             ….Appellants/Opposite Parties

 

Versus

 

Harpreet Singh aged about 48 years son of Late Shri Ranjeet Singh, resident of House No.534, Sector-28A, Alpha InternationalCity, Karnal, Haryana. Aadhar No.695216813037.

 

1. Respondent/Complainant

 

         

CORAM:   Hon’ble Mr. Justice T.P.S. Mann, President

                   MS. MANJULA, MEMBER

                                                                                                              

Present:     Shri Piyush Bansal, counsel for the appellants.

                   Respondent-Harpreet Singh in person.   

 

 

PER: T.P.S. MANN, J.

 

ORDER

 

1. The present appeal has been preferred by Municipal Corporation, Karnal through its Commissioner as well as Secretary and the Director, Urban Local Bodies, Panchkula under Section 41 of Consumer Protection Act, 2019 for challenging the order dated 30.05.2023 passed by the District Consumer Disputes Redressal Commission, Karnal whereby the complaint preferred by the complainant-Harpreet Singh was allowed and it directed the opposite parties to refund the deposited amount of Rs.47,46,854/- along with interest @ 9% per annum from the respective dates of deposits till its realization besides this Rs.2,00,000/- on account of mental agony, harassment suffered by him and litigation expenses was awarded to the complainant. The said order was to be complied within 45 days and if not paid within the stipulated period then the amount would carry interest @ 12% per annum. However, the opposite parties were granted liberty to recover the compensation amount of Rs.2,00,000/- from the UHBVNL department who had installed two new electric poles and transformer instead of removing the old electric pole even after receiving the removing charges from the opposite parties on 21.02.2013.
2. According to the complainant, opposite parties no.1 and 2 offered a scheme for allotment/sale of freehold Booth and Kiosks sites etc. in open auction and advertised about the same. The auction date was fixed as 16.05.2012 and 17.05.2012. The complainant had purchased the East North Corner, Kiosks site no.289 situated in old Mugal Canal (Karan Commercial Centre) Scheme no.34 Extension Karnal, exclusively for the purpose of earning his livelihood, by means of self employment. He deposited the initial 10% of the ascertained price of the said Kiosks at the spot on 17.05.2012. The opposite parties issued confirmation letter being the highest bidder of the aforementioned kiosks to the complainant who deposited another 15% cost amounting to Rs.5,86,950/-. It was specifically mentioned in the letter that the “possession of his plot was ready and would be given only after the receipt of above mentioned 15%”.  Pursuant to the same, allotment of said Kiosks site no.289 for Rs.39,13,000/-, on freehold basis, the opposite parties issued an agreement dated 30.10.2012 in favour of the complainant. As per the agreement, all the conditions mentioned in the agreement were totally one sided in favour of the opposite parties and not even single relief point was mentioned in favour of the complainant. The complainant had already deposited Rs.3,91,300/- being 10% of cost and another Rs.5,86,950/- being 15% of the cost was deposited on 17.09.2012 and the balance 75% amount i.e. Rs.29,34,750/- was to be paid in 8 half yearly installment. After the payment of 25% of the auction price, the complainant being eligible for getting the possession and he wrote a letter for delivering the actual physical possession of the Kiosks. Upon inspection of the site after depositing 25% of the auction price, complainant was in a shock when he found a high tension electric pole was existing on his Kiosks site. He met the concerned authorities and called upon them to remove/shift the said electric pole from his Kiosks site to enable him to take valid physical possession of the site and construct his Kiosks site. Accepting the plea of the complainant as genuine and valid, the opposite parties wrote a letter dated 21.12.2012 to the Assistant Engineer, Sub Urban Sub Division UHBVN, Karnal. In pursuance of the same, the Assistant Engineer wrote a letter dated 08.02.2013 to opposite parties. In the said letter, the opposite parties were told that the shifting of the pole had been sanctioned at a deposit estimate of Rs.11,633/-, which amount was required to be deposited by the Karnal Improvement Trust, Karnal now Municipal Corporation Karnal. Meanwhile, the complainant kept on pursuing the opposite parties for doing the needful but to no avail. The complainant deposited the entire amount due towards the price of the Kiosks plot including all amounts whatsoever demanded by the opposite parties. The complainant was not possessed with adequate funds to pay for the purchase price of the Kiosks site. Therefore, complainant sold his residential property on 26.02.2013 by way of sale deed on 21.10.2013.
3. It is further case of the complainant that after making the full payment towards the Kiosks site, he again requested the opposite parties for issuance of ‘No Dues Certificate’ with respect to Kiosks site but opposite parties never replied to his request letter till date. Meanwhile, he moved to a new address and therefore informed the opposite parties about the said shifting and to update the address of the complainant in the records of the opposite parties. The complainant came to know from officials sources that the opposite parties had charged excess amount from him due to calculation of interest on excessive rate. Therefore, he wrote a letter dated 25.05.2017 calling upon the opposite parties to recalculate the amount and refund the excess amount taken from him. Instead of refunding the excess amount taken towards the kiosks site, opposite parties demanded further dues of Rs.90,390/- calculated till 21.05.2017. The complainant deposited the said amount alongwith penal interest amount of Rs.8300/-. The complainant once again wrote a reminder letter to the opposite parties requested that electric pole be removed immediately and vacant possession be delivered, so that complainant could construct the Kiosks site and no  interest amount be taken from him and requested to refund the excess amount deposited by him with interest, vide written application register entry no.352 dated 12.01.2018 to the opposite party no.1. On receipt of said letter, the opposite parties woke up and realized that electric pole existing on his kiosks site had still not been removed. In this context, opposite party No.2 wrote another reminder letter addressed to the Assistant Engineer, with copy forwarded to The Executive Engineer dated 16.01.2018, requesting them once again to remove the PCC electric pole from the said kiosks site at the earliest so that the complainant may raise construction without further loss of time. A cheque of Rs.11,633/- dated 21.03.2013 was deposited with the office of the Assistant Engineer but till today electric pole had not been shifted. The complainant once again wrote a detailed letter to opposite party no.1 and opposite party no.2 vide register entry no.3490 dated 24.06.2019 and the Secretary Municipal Corporation, Karnal vide register entry no.3491 dated 24.06.2019. In the said letter, it was mentioned that inspite of giving numerous oral and written requests for removal of electric pole, instead of removing existing old electric pole, new poles and transformer were installed.  After that, complainant requested the opposite parties  a number of times to remove the electric poles and transformer from the Kiosks site, so that allottee can construct the building on the kiosks site. Finally, the complainant once again wrote a detailed letter to opposite  party no.1 and dated 28.02.2022 for removal of the electrical poles and transformer with live wires from kiosks site no.289 and also regarding refund of amount paid by him alongwith 18% interest from the date of deposit till its realization. The opposite parties were not in a position to deliver actual effective possession of the allotted site. The opposite parties have collected huge amount of money from the complainant, without having any intention to deliver effective physical possession of the promised site. The complainant had paid Rs.47,46,854/- to the opposite parties including interest and panel interest charged at 14% as against the allotment price of Rs.39,13,000/-. In this way, there was deficiency in service and unfair trade practice on the part of the opposite parties. Hence this complaint.
4. Upon notice, the opposite parties appeared and filed written version, raising preliminary objections. On merits, it  was pleaded that as per clause 10 of the agreement arrived at between the parties which reads as under:

“In the event of any dispute or difference at any time arising between the trust and the said intended vendee as to the true intent and meaning of these presents and of each and every portion thereof the property and rights hereby reserved or any of them or in any manner incidental or relating thereto the said dispute or difference shall be referred to the arbitration of the Commissioner and Secretary to Government of Haryana, Urban Local Bodies Department or an Officer appointed by him on his behalf whose decision thereon shall be final and binding on the parties thereof”.

 

5. It was also pleaded that the present complaint is bad for non-joinder of necessary parties as the complainant had not impleaded UHBVN limited, Karnal as party as the pole in question was to be shifted by the said authorities for which the estimated amount has been deposited by the opposite parties. It was further pleaded that no complaint could be instituted against the Municipal Corporation or against the Commissioner or against any Corporation Officer u/s 389 of the Haryana Municipal Corporation Act, 1994.  It was further pleaded on merits that complainant took part in open bid of the site in question and he was the highest bidder of site and as such same was allotted to him.  The complainant gave bid of the said site after looking into the entire parameters of the property. At the time of auction, the plots were demarcated at site and marked and before starting the auction, the prospective bidders were requested to check the site and then take part in auction and accordingly after inspection of the spot the complainant took part in the auction proceedings. The contents of the agreement  were framed as per law and were not one sided as alleged. The complainant had signed the agreement and the allotment letter after fully understanding its contents. The electric pole was at the site in question which needed to be shifted. Therefore, the opposite parties wrote a letter dated 21.12.2012 to the Assistant Engineer for shifting of the said pole. On request of the opposite parties, the UHBVN prepared the estimate for shifting of said pole and intimated to the opposite parties, vide letter dated 08.02.2013 to deposit the estimate amount for shifting of electric pole. Accordingly, the opposite parties deposited Rs.11,633/- with the UHBVN through cheque dated 21.02.2013. Reminder was also sent to the UHBVN to remove the pole from the site in question. One more reminder was also issued to UHBVN in this regard. Thereafter, a letter dated 16.01.2018 was also wrote to the Assistant Engineer to shift the pole. A representation of complainant dated 24.06.2019 was received in the office of the Municipal Corporation Karnal, which was sent to the UHBVN and requested to shift the pole. Again representation of complainant dated 08.03.2022 was received in the office of the MC, Karnal which was sent to the UHBVN and requested to shift the pole. The opposite parties deposited the estimate amount of shifting of said pole to the UHBVN and requested UHBVN a number of times to shift the pole. The complainant applied for issuance of NOC but the same was not granted to the complainant due to the reason that the entire amount of the plot had not been deposited by the complainant. The balance amount was deposited by the complainant on 16.01.2018 and after that never applied for issuance of NOC.  The opposite parties  did not charged any excess amount from the complainant. The opposite parties received a letter from the Principal Secretary to Government of Haryana, Urban Local Bodies Department, Chandigarh regarding representation of the complainant made by him to the Government. On the complaint of the complainant the account of the plot was got checked from the Accounts Branch of the Municipal Corporation, Karnal and Rs.90,390/- were found due against the said plot. The said information was sent to the Principal Secretary to Government of Haryana, Urban Local Bodies Department vide memo no.11846/MCK dated 20.12.2017. There was no deficiency in service and unfair trade practice on the part of the opposite parties. Accordingly, the opposite parties prayed for dismissal of the complaint.
6. In support of his case, the complainant tendered his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C-35. On the other hand, the opposite parties tendered into evidence affidavit Ex.OP1/A of Bal Singh Secretary and documents Ex.OP1 to OP12.
7. After hearing the complaint and counsel for the parties and perusing the case file, the District Consumer Commission allowed the complaint as mentioned above.
8. The State Commission has heard the counsel for the parties and perused the impugned order.
9. It has been submitted by the opposite parties that as per Clause 10 of the agreement any dispute arising between the parties is to be referred to the arbitration and thus this Commission has no jurisdiction to entertain and decide the complaint. Merely because an arbitration agreement between the parties is visualized but still the Consumer Commission has jurisdiction to try and entertain the complaint under the Consumer Protection Act being an additional remedy the proceedings before the Consumer Commission have to go on.
10. As regards, the complainant not impleaded the UHBVN as a necessary party, the complainant is not the consumer of UHBVN. Rather the opposite parties had deposited Rs.11,663/- and UHBVN issued receipt Ex.OP4 in this regard and the opposite parties wrote a letter Ex.OP5 to UHBVN regarding deposited amount, estimate and shifting of PCC pole and thus, there was no need for impleading the UHBVN as necessary party.
11. The complainant had deposited the entire sale consideration with interest with the opposite parties with regard to kiosks site but no physical possession had been delivered to the complainant. It were the opposite parties who were to deliver the physical possession by removing all the obstructions at the site so that the complainant could raise construction but the opposite parties did not perform their duties wrote letter to the UHBVN. The UHBVN instead of removing the old electric pole, installed two new poles besides one transformer at the site in question without obtaining permission from the opposite parties. Since this fact is in the knowledge of the opposite parties  that new poles as well as transformer were installed without getting the permission from them. Despite that the opposite parties were doing simple correspondence with UHBVN and not taking criminal proceedings against the UHBVN.
12. In view of the above, the State Commission finds that the act of the opposite parties by not delivering the physical possession within the stipulated period, amounted to deficiency in service by the opposite parties and adopting of unfair trade practice. The complainant had deposited Rs.47,46,854/- from May-2012 to January-2018 out of which huge amount had been deposited till 10.10.2013. The opposite parties are enjoying with the hard earned money of the complainant for a long time. He had also sold his house vide deed Ex.C-18 dated 21.10.2023 so as to deposit the installments of kiosks site in question. Accordingly, it would be in the fitness of things that handsome amount be awarded as compensation on account of mental agony and harassment suffered by the complainant as well as litigation charges.
13. Resultantly, the appeal is without any merit and therefore dismissed.
14. Application(s) pending, if any, stand disposed of in terms of the aforesaid order.
15. The statutory amount of Rs.44,06,522/- deposited by the appellants at the time of filing the appeal be released in favour of the complainant against proper receipt and identification but in accordance with law.
16. A copy of this order be provided to all the parties free of cost as mandated by the law. The order be uploaded forthwith on the website of the Commission for the perusal of the parties.
17. File be consigned to record room along with a copy of this order.

 

(T.P.S. MANN)

PRESIDENT

 

 

                                                                                                  (MANJULA)

                                                                                                   MEMBER

Pronounced On: 22.03.2024

MS