Haryana

Panchkula

CC/279/2015

M/S DEVI DAYAL JAGDISH KUMAR. - Complainant(s)

Versus

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

ABHINEET TANEJA.

11 Aug 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                                      

Consumer Complaint No	:	279 of 2015
Date of Institution	:	16.12.2015
Date of Decision	:	11.08.2016

                                                                                          

M/s Devi Dayal Jagdish Kumar through its partners Sh.Devi Dayal S/o Sh.Mehar Singh, R/o village and P.O. Rampur Sainia, Tehsil Derabassi and Sh.Jagdish Kumar S/o Sh.Prem Chand Arya, R/o village and P.O. Barwala, Tehsil and District Panchkula.

 

                                                                                        ….Complainant

Versus

1.       Haryana State Agriculture Marketing Board through its Chief Administrator, Sector-6, Panchkula.

2.       The Chairman/Administrator, Market Committee, Barwala.

                                                                            

                                                                                      ….Opposite Parties

COMPLAINT UNDER SEC. 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.Abhineet Taneja, Adv., for the complainant. 

                             Mr.Ankush Gupta, Adv., for the Ops.

 

ORDER

(Dharam Pal, President)

 

1. The complaint has been filed by the complainants with the averments that in the year 2009, the Ops invited bid for the allotment of various sizes of booths and shops in village Barwala. As per terms and conditions of the bid, 25% of the amount was to be deposited on the spot at the fall of the hammer with the Marketing Committee and the remaining 75% bid amount could be paid either in lump-sum or in six half yearly equal installments alongwith interest @ 15% per annum. The auction was held on 02.12.2009. The complainants gave the highest bid for the sum of Rs.19,05,000/- and being the highest bidder, they deposited an amount of Rs.4,76,250/- as 25% with the Ops and chose to pay the remaining amount of Rs.14,28,750/- in six half yearly equal installments. The allotment letter dated 01.07.2010 was issued by the Ops and a shop No.17 allotted to the complainants. As per terms and conditions of the allotment letter, the installments were to be paid on 01.01.2011, 01.07.2011, 01.01.2012, 01.07.2012, 01.01.2013 and 01.07.2013 for an amount of Rs.2,38,125/- each @ 15% interest. The complainants further submitted that as per terms and conditions of the allotment letter, the interest on the installment was only payable in case, the Ops hand over the possession to the complainants within time. Thereafter, the Ops offered the possession to the complainants but there was no basic amenities and green trees were standing over the site allotted to the complainant and due to the reason, the complainants could not construct & utilize the shop. The complainants approached the Ops many times for redressal of their grievances but to no avail. Thereafter, the complainants gave written request vide letter dated 06.05.2014, 24.07.2014 and 21.10.2014 but to no avail. The complainants filed an application under RTI Act, 2005 requesting the Ops to inform as to what action was taken by them which was replied by the Ops vide letter dated 03.11.2014 that the process or cutting the trees was under process as the trees were standing on the allotted shop. The Ops further informed that they had already written to the concerned Forest Department in this regard. The Op No.2 also issued letter dated 13.08.2014, 27.10.2014, 03.11.2014 and 01.01.2015 to the Op No.1 and requested to give the permission to cut the trees or to give permission to change the site of the shop so that the demarcation of the shop might be done but to no avail. The complainants also requested the Ops to give the licence so that they might start the work and for this, they also paid Rs.30/- as licence fee with the Ops. As per complainants, they paid an amount of Rs.17,71,535/- out of Rs.19,05,000/- but as per calculation sheet received from the Ops, an amount of Rs.11,94,869/- was due & outstanding against the complainants whereas the interest on the installments was to be paid only after offer of physical possession and offer of possession could only be considered only if the basic amenities provided by the Ops  were in consonance with the optimum utilization of the plot. Since, the Ops did not provide any basic amenities, so they did not liable for interest. This act of the OPs amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops appeared and filed written statement by taking some preliminary objections and submitted that the present complaint is not maintainable as the complainants alongwith other allottees had filed a CWP No.12990 of 2011 seeking relief of not charging 15% p.a. interest upon the installments of principal amount on the ground that the Ops had not done any efforts to develop the New Sabzi Mandi, Barwala and the basic amenities were not provided in the Mandi. It is submitted that the Hon’ble High Court dismissed the said writ petition vide judgment dated 14.09.2012. It is submitted that the present complaint is time barred as it has been filed by the complainants after lapse of four years. It is submitted that the bid of booths and shops was invited in the year 2009 in Barwala. It is submitted that auction was held on 02.12.2009 and the complainants had given the bid for a sum of Rs.19,05,000/-. It is submitted that vide memo No.479 dated 01.07.2010, an allotment letter was issued to the complainants in which it was duly mentioned in condition No.4 that the bid amount had been adjusted toward 25% of the total price of the shop and the remaining 75% amount could be paid without interest within 30 days from the date of issuance of the said letter or in six half yearly with 15% interest or at such rate of interest as might be specified by the Board from time to time. It is submitted that interest was to be carried from the date of offer of possession. It is denied that the possession offered by the Ops on completion of basic amenities, was not in consonance with such amenities required for optimum utilization of the plot. It is submitted that all the allottees had been issued similar kind of possession as of the complainant and they had already constructed their shops as well and also deposited their installments/dues. It is submitted that the possession was delivered to the complainants in the year 2010 and the complainants raised the issue of alleged trees upon his shop only in the year 2014 i.e. after 4 years. It is denied that the complainants approached the Ops many times for the redressal of their grievances. It is submitted that the complainants filed an application under RTI Act, 2005 which was replied by the Ops vide their letter dated 03.11.2014 that the process for cutting the trees was under process as the trees were standing on the allotted shop. It is submitted that the Ops had also written to the Forest Department. It is submitted that it was not the duty of the Ops to cut the green tree when the possession was already offered to the complainants and the complainants also opted an option to pay the amount in installment without raising any issue. It is also mentioned the para 19 of the offer of memorandum that the Ops would not be responsible for leveling of uneven sites. It is submitted that the interest was to be carried from the date of offer of possession. It is submitted that the complainants were offered the possession of plot on 01.07.2010 as such the complainants were liable to make the due installments alongwith interest as per terms and conditions of the agreement. Thus, there is no deficiency in service on the part of Ops and prayed for dismissal of the complaint with costs.
3. Replication to the written statement has been filed by the counsel for the complainant.
4. The counsel for the complainant has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-17 and closed the evidence. On the other hand, counsel for the Ops has tendered into evidence by way of affidavit Annexure R-A alongwith documents Annexure R-1 to R-10 and closed the evidence.
5. We have heard the learned counsel for the parties and have also perused the record carefully and minutely.
6. Learned counsel for the complainants has argued that the Ops have allotted shop No.17 to the complainants as is evident from Annexure C-2 & Annexure C-3 respectively because they had been highest bidder in the auction held on dated 02.12.2009 and they have deposited an amount of Rs.4,76,250/- as 25 % with the Ops. Further,  they chose to pay the remaining amount of Rs.14,28,750/- in six half yearly equal installments and as per terms and conditions of the allotment letter the interest on the installment was only payable in case, the Ops hand over the possession to the complainants within time.  It is further argued that though the Ops offered the possession to them but there were no basic amenities and green trees were standing over the allotted site and due to this they could not construct & utilize the shop.  They wrote many letters to Ops qua redressal of their grievance but the Ops informed that process for cutting the trees standing over the allotted plot was under process as is evident through letter dated 03.11.2014 Annexure C-11.  In this very letter permission to cut the trees or to give permission to change the site of the shop so that the demarcation of the shop might be done was also sought but till date no further order has been received from OP No.1. The complainant have been deprived of from using the allotted plot despite depositing of  Rs.17,71,535/- out of Rs.19,05,000/- because the Ops have also not issued licence to start the work despite receiving Rs.30/- as licence fee. It has been further argued that as per calculation sheet received from the Ops, an amount of Rs.11,94,869/- was due & outstanding against the complainants whereas the interest on the installments was to be paid only after offer of physical possession and offer of possession could only be considered only if the basic amenities provided by the Ops  were in consonance with the optimum utilization of the plot. The Ops have failed to provide the basic amentias as per terms and conditions, therefore they are not entitled to get any interest from the complainants.
7.  Per contra, it has been argued on behalf of the Ops that present complaint is not maintainable as the complainants alongwith other allottees had filed a CWP No.12990 of 2011 seeking relief of not charging 15% p.a. interest upon the installments of principal amount on the ground that the Ops had not done any efforts to develop the New Sabzi Mandi, Barwala and the basic amenities were not provided in the Mandi but the said writ petition was dismissed by the Hon’ble High Court vide judgment dated 14.09.2012. It has been further argued that as per condition No.4 of the allotment letter the bid amount had been adjusted towards 25% of the total price of the shop and the remaining 75% amount could be paid without interest within 30 days from the date of issuance of the said letter or in six half yearly with 15% interest or at such rate of interest as might be specified by the Board from time to time. The interest was to be carried from the date of offer of possession and the Ops have never promised that the possession would be offered by them on completion of basic amenities. Further, that all the allottees had been issued similar kind of possession as of the complainants and they had already constructed their shops as well and also deposited their installments/dues. The possession was delivered to the complainants in the year 2010 but they issue of alleged trees upon their shop was raised only in the year 2014 i.e. after 4 years.  There is no deficiency in service on the part of the Ops as the complainants have opted an option to pay the amount in installment without raising any issue.  Moreover, as per para 19 of the offer of memorandum the Ops would not be responsible for leveling of uneven sites.  Since the possession was offered on 01.07.2010 to the complainants, therefore, they are liable to make the due installments alongwith interest as per terms and conditions of the agreement.
8.  The arguments advanced by the learned counsel for the Ops are not sustainable because it is admitted fact that trees were standing at the allotted site. Since trees were standing at the site, therefore, it is ample clear that the site is undeveloped and even no basic amentias are there.  Both the parties are bound by the terms and conditions of the allotment letter and as per Condition No.7 of the allotment letter the possession was to be offered after providing facilities such like roads, water supply sewerage and electrification.  Condition No.7 of the allotment is reproduced as under:

“7. The possession of the plot shall be offered to you within 30 days from the date of issue of allotment letter provided that minimum basic facilities i.e. roads, water supply, sewerage and electrification are existing and if the said basic facilities are not existing then after providing the said basic facilities.”

Perusal of the case file reveals that the complainants have written letters Annexure C4 & Annexure C5 to the Ops and requested to cut the standing trees in order to construct the shop. Perusal of Annexure C11 & Annexure C12 reveals that correspondence regarding cutting of standing trees was taken place in between OP No.1 & OP No.2 and the complainants were intimated that the process for cutting the standing trees is on. These documents clear the picture that the allotted site was undeveloped and there      were no basic amenities. The Ops are a government institution and such like act and conduct is quite depreciable and is not expected from them because being a service provider the Ops are obligated to facilitate utilization and enjoyment of the plots as intended   by the allottees. It is very well established on the case file that inaction on the part of the Ops in not providing the requisite         facilities  after passing of almost seven years clearly amounts to deficiency in service as the complainants were prevented from carrying out the business resulting into financial loss to them. From the above it is clear that they started the construction  according to their own sweet will and utilize the money received from the purchaser for the other purposes. The complainants had     purchased the shop in question under the impression that the possession of the same would be delivered very soon. It is clear         case of unfair trade practice. We are, therefore, left with no option         but to hold that the Ops have been highly unreasonable in not handing over the physical possession of the shop to the     complainant within a reasonable period of time. It is settled principle of law that he who seeks equity must do equity with others but in the present matter the Ops have not acted as per law rather violated the provisions of CP Act.  It appears that even today the standing trees have not been removed because the Ops have failed to file the status report of the site in question. The Ops have unambiguously promised to offer physical possession of the auctioned shop on completion of development works in the area and even it was the duty of the Ops to deliver the physical possession to the complainants  upto the satisfaction of the purchasers being service providers but the Ops have not done so, therefore, we have no hitch to reach at a conclusion that the OPs are deficient in providing service to the complainants and the complaint deserves acceptance. Accordingly, the complaint is allowed and the Ops are further directed as under:-

(i)      To issue the revised calculation after handing over the physical possession of the shop and adjust the interest amount already paid by the complainants.

(ii)     To make payment of Rs,20,000/- to the complainants as compensation for harassment, mental agony, unfair trade practice and deficiency in service as well as cost of litigation.

9. 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

11.08.2016          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