Haryana

Panchkula

186/2015

MANPREET SINGH GUJRAL. - Complainant(s)

Versus

HARYANA STATE AGRICULTURE MARKETING BOARD . - Opp.Party(s)

SURINDER PAL

03 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                                      

Consumer Complaint No	:	186 of 2015
Date of Institution	:	16.09.2015
Date of Decision	:	03.05.2016

                                                                                          

1.       Sh.Manpreet Singh Gujral

2.       Sh.Charanjit Singh Gujral

(Both sons of Sh.Balwant Singh, R/o H.No.264, Sector-16, Panchkula)

                                                                                        ….Complainants

Versus

1.       The Chief Administrator, Haryana State Agricultural Marketing Board, Sector 6 Panchkula.

2.       The Secretary-cum-E.O., Market Committee, Sector 20, Panchkula.                                                                           

                                                                                      ….Opposite Parties

 

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                             Mr.S.P.Attri, Member.

For the Parties:     Mr.Surinder Pal, Adv., for the complainant. 

                             Mr.VPS Namdev, Adv., for the Ops.

 

ORDER

(Dharam Pal, President)

 

1.                          The complaint has been filed by the complainant with the averments that the OPs planned to set up country’s first Modern Apple Market in Sector-20, Panchkula and gave advertisements for allotment of 44 double storey shops by way of open auction. The complainants were successful bidder in the open auction held on 01.09.2008 and they were allotted the shop No.18 measuring 4.27x5.25 mtrs for an amount of Rs.75.80 lacs. The complainants paid 25% of the bid cost i.e. Rs.18.95 lacs to the Ops vide receipt No.150. The OP No.1 could sold only 11 or 12 shops out of 44 shops in the said market in the open auction and thereafter no shop has been sold by the Ops till date. The Op No.1 issued allotment letter No.1113 dated 03.11.2008 in favour of the complainants. The Ops asked, vide allotment letter, the complainants to remit a sum of Rs.56.85 lacs on account of balance 75% of the total price of the plot either without interest within 30 days from the date of issue of this letter or in six half yearly installments with 15% interest or as such rate of interest as may be specified by the board from time to time. Thereafter, the Ops did not develop the apple market which was required for the said market. The Ops even did not sell out or let out the remaining shops of the said apple market and the market was not operated by the Ops. The complainants were also deprived from earning their livelihood. Thereafter, the Ops converted the said apple market into a flower market and rented out some of the shops @ Rs.8000/- to Rs.9000/- for flower shops and for some other purposes like tyre puncture and wheel alignment. The place on the ground floor reserved for godowns is being allowed to use for storing grains such as wheat etc. and no godown was constructed there. The Ops has not provided cooling, sorting and storage facility till date. There are many piles of debris and other materials lying all around in apple market as well as in the vegetable market. There was no proper connectivity of the said mandi to the main road and packing, garding sorting and cool chain facility within the premises. It is further averred that the grain market, vegetable market and apple market are together in one compound surrounded by the walls in Sector-20, Panchkula. The complainants requested the Ops to waive off the interest vide letter dated 02.12.2008 as the construction work was not complete and physical possession yet had not been given but the Ops refused for the same. The Ops offered the paper possession only vide letter No.699 dated 22.06.2009 without developing the basic facilities for the storing, processing, packing, garding, sorting and chain cooling system etc especially for the apple. The Ops illegally resumed the shop of the complainants vide letter No.181 dated 07.02.2014 and forfeited the amount of Rs.18.95 lacs i.e. 25% paid by them. The complainants served legal notice dated 19.09.2014 to the Ops and asked to refund the entire amount of Rs.18.95 lacs with interest but to no avail. The act and conduct of the Ops clearly amounts to deficiency in service. In evidence, the complainant has tendered affidavit Annexure C-A alongwith documents Annexure C-1 to Annexure C-12 and closed the evidence.

2.                          The Ops appeared and filed joint written statement wherein several preliminary objections such as estoppal, cause of action, maintainability and concealment of material facts from this Forum etc. have been taken. It has been submitted that the Ops are the statutory authorities duly constituted under the provisions of the Haryana Agricultural Produce Markets Act, 1961. It is submitted that all the actions and proceedings of the Board as well as the Market Committee are carried out strictly as per provisions of the said Act and the rules framed thereunder. It is submitted that the Act has been amended vide notification dated 10.10.2008. It is submitted that this Forum has no jurisdiction under the statutory provisions of Section 42 of the Act, 1961. It is submitted that the shop was allotted in open auction, therefore, it is not covered under the Consumer Protection Act. It is submitted that the shop in question has already been resumed on non-payment of installments as per Rules after affording number of opportunities by the Ops. It is submitted that after the allotment of the shop, the complainants requested the Ops for waiving of interest on the balance installments, however, at that time all basic facilities were provided in the area by the Ops but the complainants failed to make the payment of the balance due installments and finally the property in question was resumed vide order memo No.181 dated 07.02.2014. It is submitted that the complainants much aware about the orders and instead of filing the appeal before the Competent Authority preferred the present complaint. It is submitted that the Ops are the principal and they are fully entitled to decide that how much shops are to be sold in one auction to get the revenue for the welfare of the State. It is submitted that after completion of the development work, the possession of the shop was handed over to the complainants but the complainants requested for waiving of interest on the balance installments which was denied vide office memo No.LA-III-2009/117368 dated 13.11.2009. It is submitted that the market is situated in the posh area of Panchkula and is just adjacent to the National Highway i.e. Delhi-Shimla. Other pleas made in the complaint were controverted and prayer for dismissal of the complaint has been made. In evidence, the Ops have tendered affidavit Annexure R-A and closed the evidence.

3.                          We have heard the learned counsel for the parties and have also perused the record carefully and minutely.

4.                          Learned counsel for the complainant has argued that shop No.18 measuring 4.27x5.25 mtrs was allotted to the complainants in an open auction in the apple market for an amount of Rs.75.80 lacs and they have deposited 25% i.e. Rs.18.95 lacs with the Ops vide receipt No.150 (Annexure C-1). It has been further argued that as per the allotment letter, the possession of the shops was to be delivered within 30 days from the date of issue of allotment letter and the complainants to remit a sum of Rs.56.85 lacs on account of balance 75% of the total price of the plot either without interest within 30 days from the date of issue of the letter or in the six half yearly installments from time to time (Annexure C-2). But thereafter, the Ops did not develop the apple market and converted the apple market into a flower market and rented out some of shops @ Rs.8000/- to Rs.9000/-. There is no connectivity of the said mandi to the main road and packing, grading sorting and cool chain facility within the premises. The complainants requested the Ops to waive off the interest vide letter dated 02.12.2008 (Annexure C-3) as the construction work was not completed and physical possession yet had not been given but the Ops refused for the same. Thereafter, the Ops resumed the shop of the complainants vide letter No.181 dated 07.02.2014 (Annexure C-5) and forfeited the amount of Rs.18.95 lacs i.e. 25% paid by them.

5.                          On the other hand learned counsel for the Ops has argued that the Ops are the statutory authorities duly constituted under the provisions of the Haryana Agricultural Produce Markets Act, 1961. It is submitted that after the allotment of the shop, the complainants requested the Ops for waiving of interest on the balance installments, however, at that time all basic facilities were provided in the area by the Ops but the complainants failed to make the payment of the balance due installments and finally the property in question was resumed vide order memo No.181 dated 07.02.2014. After completion of the development work, the possession of the shop was handed over to the complainants but they requested for waiving of interest on the balance installments which was denied vide office memo No.LA-III-2009/117368 dated 13.11.2009.

6.                          After going through the material available on the case file, it is clear that the arguments advanced by the learned counsel for the Ops are not sustainable because the Ops have failed to produce any document on the case file to show the status of the site. During the pendency of the case, the counsel for the complainant has filed an application for appointing Local Commissioner to inspect the site that whether there was development on the site or not. The application of the complainants was allowed and Sh.Sikander Bakshi, Advocate was appointed as Local Commissioner and was directed to inspect the site. Sh.Sikander Bakshi, Advocate inspected the site in the presence of both the parties and submitted his report before this Forum that:

“On site inspection it was seen that not even a single shop was in operation. The apple market was in compound surrounded by the walls and no business was in operation there. Woods furniture and bags of grains were lying on the ground floor, reserved for godowns. No cooling, storing and storage facility was there for apple market and no food court was found in operation. The first floor reserved for offices of the shopkeepers was found occupied by some unknown persons of jhuggi dwellers who were using kundi electricity connection and residing there in the name of the some unknown persons. The electric wires were hanging in a haphazard way. The surrounding of this site was very dirty as the people residing there are using it in their own way of living. The doors and window panes of some offices were missing/broken. The building was not even maintained properly by the Op’s and looks like abandoned site.

In the next building of the apple market, the opposite parties has rented out the area reserved for godowns to flower sellers and now the said shops were also vacant. Locks were seen over the temporary built up shops which were of the aluminum fittings over the portion of the site in question and this site was marked/displayed as flower market. The first floor was used by the official of the opposite parties. The District Marketing Enforcement officer Panchkula is using cabin No.25. No proper toilet facilities were provided in the site in question.

The area of the site in question was surrounded by the garbage, debris and other material which is polluting the environment over the site in question. The resting shelters are converted into the offices of the opposite parties. The staff of opposite parties are using it as there office. The built up shops are been used for tyre puncture and wheel alignment and for some other purposes but no vegetable market or apple market or even fruit market was in existence over the site in question.”

7.                          The report of the Local Commissioner was not challenged by the Ops at any point of time. In such a scenario, the appellant board as service provider is obligated to facilitate the utilization and enjoyment of the site an intended by the allottees and set out in the allotment letter.  From the report, it is clear that there was no facility such as Packing, Grading, Sorting and Cool chain facility available within the premises on the site at present as promised by the Ops as mentioned in the advertisement. It was obligatory on the part of the Ops to provide necessary facilities for full enjoyment of the same by the allottee and in case where the facilities like Packing, Grading, Sorting and Cool chain facility available within the premises have not been provided then the allottees are entitled to relief. During the course of proceedings of the complaint, Local Commissioner was appointed, who on the directions of this Forum inspected the site and in his report has mentioned that no facilities such as Packing, Grading, Sorting and Cool chain facility available within the premises are existing on the spot but it is strange that the Ops in their advertisement have mentioned about existence of the same.  

8.                          Perusal of condition No.5 of the allotment letter reveals that in case of default of making the payment of two successive installments, the plot and the building if constructed shall be resumed by the  Municipal Committee by after giving an opportunity of being heard but the Ops have failed to place on record any document/ evidence to show that they have issued notice/show cause notice to the allottees in this regard. However, the Ops have submitted an affidavit but it is not suffice to rebut the contention put-forth by the complainant.  Learned counsel for the complainant during the course of arguments has raised another point that the Apple Market has been changed to as Flower Market and the Ops have failed to rebut this plea rather they remained silent which shows that they have concealed material facts from this Forum and have violated the principle of natural justice.

9.                          In the present case, the inaction on the part of the Ops in providing the requisite facilities for a long time clearly establishes deficiency in service as the complainants were prevented from carrying out the apple business. Thus, considering the report of Local Commissioner and the documents available on file, it established that the Ops are unable to develop the site and thereafter, to resume the allotment of the complainants. However, it is admitted that the shop in question allotted to the complainants. However, it is admitted that the complainants are not in a position to run the business in the market area.

10.                        For the reasons recorded above, we find merit in the complaint and the same is hereby allowed.  The Ops are further directed as under:-

(i)      To refund the amount i.e. Rs.18,95,000/- deposited by the complainants alongwith interest @ 9 % per annum from the date of filing of the complaint;

(ii)     To make payment of an amount of Rs.50,000/- to the complainants as compensation for harassment, mental agony, unfair trade practice and deficiency in service.

(iii)    To make the payment of Rs.10,000/- for litigation expenses.

This order shall be complied with by the Ops within one month from the date of receipt of the certified copy. A copy of this order be supplied to both the parties free of costs.  File be consigned to records after due compliance.

 

 

Announced

03.05.2016          S.P.ATTRI            ANITA KAPOOR      DHARAM PAL

                            MEMBER            MEMBER                  PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

 

                                 

                                                         DHARAM PAL

                                                          PRESIDENT