Haryana

Karnal

CC/24/2016

Bindu Bansal W/o Suresh Bansal - Complainant(s)

Versus

Haryana Urban Development Authority - Opp.Party(s)

V.K. Kapoor

01 May 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                               Complaint No.24 of 2016

                                                             Date of instt.: 20.01.2016

                                                               Date of decision:1.5.2017

 

1. Smt. Bindu Bansal wife of Suresh Bansal

2. Shri Suresh Bansal son of Bhagwat Parsad both residents of house no.1196 sector-13 Urban Estate Karnal.

                                                                   ……..Complainants.

                                      Vs.

 

The Haryana Urban Development Authority through its Estate Officer Sector-12, Urbana Estate, Karnal.

 

                                                                                         ……… Opposite Party.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

Ms. Veena Rani….Member

                   Sh.Anil Sharma…….Member.

                            

Present:-     Shri V.K.Kapoor  Advocate for the complainants.

                   Shri Amit Munjal Advocate for opposite party.

                                       

 ORDER:

 

                        This complaint has been filed by the complainants u/s 12 of the Consumer protection Act 1986, on the averments that they purchased a plot for commercial double storey shop with Basement, measuring 75.62 square meters bearing no.363 sector-12 Karnal, vide reallotment letter 26.2.2013, from original allottee Smt Poonam Kathuria. As per clause 16 of the allotment letter it was mandatory to complete the construction within two years from the date of offer of possession of the plot, but the time limit was extendable by the Estate Officer subject to payment of extension fee. Offer of possession of the plot was made by Estate Officer, HUDA Karnal on 29.01.2013. However, there was no sign of any development at site, therefore, they requested the Estate Officer, vide registered legal notice dated 8.12.2015 for construction of Road, Lighting, Pakka Thara, platform i.e. 3600 square yards approximately in front of the plot and Pakka, road/rasta to reach the shop in question, so that they could ascertain the level of the plot and raise the construction on the same, but the Estate Officer did not respond. Thereafter, they moved application under section 19(1) of Right to Information Act on 19.3.2013 seeking information regarding development work. Reply to the said application was received, vide memo no.4346 dated 26.4.2013. In para no.5 of the reply, it was specifically mentioned that as per report received from HUDA, the development work like water supply, sewerage, storm water and roads i.e. basic works completed, besides electrification work in the area was also completed. However, no such development work was done by HUDA as mentioned in the reply. Again reply was received on 3.10.2013, vide memo no.23788, wherein the executive engineer HUDA Division Karnal specifically mentioned that no pavement existed to reach the plot no.362-363, estimate of construction of pavement was under process and pavement would be constructed after approval of estimate. Complainants again moved application dated 23.12.2013 for getting information of the development work of the site through R.T.I. and the same was replied, vide memo no.2427 dated 31.1.2014, wherein it was submitted that the pavement in front of booths will be constructed after the construction of complete block of booths and arranging the Administrator approval of the estimate, which was under process and no approval was available and that time will be fixed after approval of the estimate and DNIT for calling tenders. Complainants again moved an application dated 4.2.2015 to the State Public Information Officer cum executive engineer HUDA Division Karnal seeking information regarding the taking of approval and completion of the development work. Reply was received vide memo no.6678 dated 25.3.2015. The same reply was given as given, vide memo no.2427 dated 31.1.2014. The opposite party admitted that upto 25.3.2015 no construction work, as per allotment letter, was done, though development work was started by HUDA in the premises of Mall and Golden Movement restaurant which was adjoining to the plot of the complainants. Saplings and congress grass had grown up at the site, as no development work was done at the site by HUDA and due to that no one can reach the plot on foot. The complainants had paid six installments alongwith 25% of basic price of the plot as per payment schedule mentioned in the allotment letter, but no development was done by HUDA at the spot. The complainants are not liable to pay the remaining installments. The complainants could not raise construction within stipulated period for want of the development work in the area. Therefore, they are not liable to pay any extension fees till the completion of the development work and the opposite party is not entitled to charge interest till the development work is completed. In this way, there was deficiency in service on the part of the opposite party, which caused mental agony and harassment to the complainants apart from financial loss.

2.                Notice of the complaint was given to the opposite party, who appeared and filed written statement controverting the claim of the complainant. Objections have been raised that the complainants have concealed the true and material facts from this forum; that the complaint is not legally maintainable in the present form; that the complainants have no locus standi and cause of action to file the complaint; that the complaint is bad for mis-joinder and non-joinder of necessary parties; that the complainants are estopped from filing the complaint by their own acts and conduct; that the complainants cannot take advantage on their own wrong; that the complaint is barred under section 50 of the Haryana Urban Development Authority Act and that the complaint is false, frivolous and abuse of process of law.

                   On merits, it has been submitted that after completing the development work in the area like water supply, sewerage, electricity and roads upto WBM level, the commercial sites were proposed for open auction. Public notice was published in leading newspapers alongwith Reserve Price, date and place of auction and other conditions were mentioned in it for the knowledge of bidders. Before the date of auction, all proposed sites were earmarked on site for the public. On the day of auction the site was displayed by the office on notice board and briefed by the Technical Staff (JE) to the interested bidders before starting the auction. Terms and conditions of the auction were displayed on the notice board and announced to the participants. After satisfaction interested persons came forwarded for bidding. As per condition no.11, the premix carpets and pavements in the shopping centre will be completed/provided after 50% construction in the respective shopping centre. The complainants are re-allottee vide office letter no.1341 dated 29.10.2012. Before reallottment they had submitted declaration in the shape of affidavit accepting the terms and conditions of auction. Moreover, they stepped in the shoes of original allottee and were bound by the terms and conditions agreed between the original allottee and the opposite party. It has been denied that no development work was done by HUDA as per allotment letter, as alleged. It has been averred that development works in the area like water supply, sewerage and roads upto WMB level were done before auction of the plots. The complainant could not raise construction within stipulated period and they are trying to take benefit of their own wrongs. Infact, there was no deficiency in service on the part of the opposite party. The other allegations made in the complaint have been specifically denied.

3.                In evidence of the complainant, affidavit of complainant no.2 Ex.CW1/A and documents Ex.C2 to Ex.20 have been tendered.

4.                On the other hand, in evidence of the opposite party, affidavit of Ashwani Malik Estate Officer, HUDA Ex. OP1/A and documents  Ex.OP1 to Ex.OP10 have been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                Admittedly,  commercial plot for double storey shop with basement measuring 75.62 square meters, bearing no.363 sector-12 Urban Estate, Karnal, was allotted by opposite party to Poonam Kathuria and the same was purchased by the complainant from her and reallotted by the opposite party, vide letter dated 26.2.2013. Offer of the possession of the plot was made by Estate Officer, HUDA Karnal on 29.01.2013. As per allegation of the complainants no development work was done by the opposite party at the site as per condition of the allotment letter, therefore, the complainants could not raise construction on the plot within stipulated period of two years and as such they are not liable to pay any extension fee and interest to the opposite party. On the other hand, the opposite party has submitted that basic development works like water supply, sewerage, electricity and roads upto WBM level were completed before putting the plots to auction and as per condition no.11 the premix carpets and pavements in the shopping centre will be completed/provided after 50% construction in the shopping centre.

7.                The terms and conditions of the auction have been mentioned in Ex.OP4. According to condition no.11 offer of possession would be given regarding the site after completion of development work. Basic services i.e. water supply, sewerage, electrification and roads upto the level of WBM would be provided before auction but finishing work i.e. premix carpets and pavements  would be provided after 50% construction in the area. Thus, the material question arises as to whether the opposite party had provided the basic development services as per condition no.11 of the auction.

8.                On the application of the complainant Shri Varinder Jhakad X.E.N. P.W.D. & BR was appointed as Local Commissioner to report Ex.C6 about existing state of affairs on the spot. He submitted his report. On inspection at the site it was observed that there were no facilities/services like service lane and concrete platform to connect the site in dispute. Proper parking place was not available near the SCO no.363, sector-12, Urban Estate, Karnal, though a parking place in very dilapidated condition was shown by the SDO, HUDA. It was further observed that no LT electric line was provided for the SCOs. Photographs of the site were also got prepared by the Local Commissioner and the same are Ex.C7 to Ex.C14.

9.                From the report of the Local Commissioner and the photographs, it is quite evident that no development work was carried out at the spot as per condition no.11 of the auction. Grass and weeds had grown at the site. Basic services like LT electric line and road upto WBM level were not provided by the opposite party for plot of the complainants, whereas according to condition no.11 of the auction it was incumbent upon the opposite party to provide such basic services. No road upto the level of the WBM was provided for the plot in question and weeds and bushes had grown all around. It is not possible for the complainants or any other person to reach the site. In such a situation, it was not possible for the complainants to raise construction within the stipulated period of two years. Raising construction over such a plot for which basic facilities have not been provided by the opposite party, would certainly be wastage of money by the complainants, because till basic facilities like road and electricity are provided, no customer would be able to reach shop and the complainants would not be able to make proper use of their money spent for purchasing the plot and raising construction. They would not able to derive any advantage from the plot and earn a return on the substantial amount of money already spent by them. No explanation for failure as to provide basic services/facilities has been furnished by the opposite party. Under such circumstances, mere offer of possession given by the opposite party is nothing, but a formality done without providing basic facilities for use of the plot by the complainants. Not providing basic facilities by the opposite party for plot of the complainants certainly amounted to deficiency in service.

10.              Learned counsel for the complainants laid emphasis on the contention that as the opposite party has not provided the basic facilities for the plot of the complainants. It is not entitled to charge any interest and extension fee from the date of auction to the date on which the facilities are provided. In support of his contention he has placed reliance upon  Rajinder Kaur Versus Union Territory, Chandigarh and others 2001(1) PLJ 195 wherein the respondent-Administration auctioned a site in the Industrial Area for the setting up of Weigh Bridge. Petitioner was the highest bidder and her offer was accepted. The petitioner paid 25% of the amount at the time of auction. The remaining 75% was to be paid in three annual installments. Petitioner sent communications to the Estate Officer for providing amenities at the site, so that she may setup Weigh Bridge and utilize the money spent by her. Under those circumstances, it was held by Hon’ble Punjab and Haryana High Court that sequence of events clearly shows that the petitioner has been unable to use the site for lack of basic amenities since November, 1997. Even a road has not been provided. Thus, it is not possible to reach the site. The setting up or utilization of the Weigh Bridge is obviously difficult. It is on account of the inaction on the part of the respondents that the petitioner has been unable to derive any advantage from the land and to earn a return on the substantial amount of money already spent by her. It was further held that a citizen who delays the payment of an installment of money is burdened with the payment of interest and penalty at the rate of 24%. The respondent have retained the petitioner’s money without providing anything to her for the last about three years. No explanation for the failure to provide a basic necessity like a road and parking area has been given. Therefore, the payment of installments by the petitioner was deferred and she was liable to pay the first installment on which all facilities are provided. It was also held that the respondents shall not be entitled to charge any interest or ground rent for the period from November 1997 to the date on which the amenities like the road, water and sewerage connection are provided.

11.              Learned counsel for the complainants also made reference to the decision of Hon’ble State Consumer Disputes Redressal Commission, Haryana, Chandigarh in case Haryana Urban Development Authority Versus Ganpat Rai Sardana first appeal no.713 of 2004, decided on 19.4.2006 wherein the complainant had given the bid for the allotment of booth site bearing no.375

located in Transport Nagar Sector-4, phase-1, Urban Estate Karnal and deposited Rs.55,250/- as bid money which was accepted as per allotment letter dated 26.2.1999. The balance of Rs.1,65,750/- was to be paid in lumpsum without interest within 30 days of issue of allotment letter or in ten half yearly installments. The first installment was to fall due after the expiry of six months of the date of the issue of letter. Each installment was recoverable together with interest @ 15% per annum on the remaining amount. It was stated in the letter that the interest shall, however, accrue from the date of offer of possession, which was to be offered on completion of development work in the area. Letter of offer of possession was issued on 26.2.1999 and the complainant was informed that the interest @ 15% per annum will accrue from that date. The complainant alleged that no pavements, parking, parks and street light etc were provided in the said area. He had written letters to HUDA in that regard, but to no effect. Executive Engineer PWD B&R was appointed as Local Commissioner, who submitted his report on 31.10.2001, according to which road portion shown in red colour in the plan was not linked with National Highway no.1 and the road was not existing to the site in question. Construction of parking was under progress and access to booth in question was not proper. Under those circumstances, it was held that the letter dated 26.9.1999, vide which offer of possession was made to the complainant was meaningless when the area in question was not developed, therefore, liability to pay interest by the complainant would only arise after essential facilities have been provided for carrying out commercial activities by the complainant. The demand notice dated 15.2.2001 served upon the complainant was fully unjustified. The order of the District Consumer Disputes Redressal Forum, Karnal was upheld and the appeal filed by the HUDA was dismissed.

12.              In the instant case as per the report of the Local Commissioner even basic facilities like WBM level, road, service lane, concrete platform, parking place and LT electric line have not been provided. Therefore, the aforediscussed authorities are fully applicable to the facts of the present case. Consequently, the letter of the opposite party regarding offer of possession dated 29.01.2013  is meaningless and has got no effect. The opposite party is to issue letter regarding offer of possession after providing basic facilities as per the auction condition. As those facilities have not been provided, it is not entitled to charge extension fee and interest from the complainants.

13.              Learned counsel for the opposite party contended that the complainants have concealed material facts from this forum and have not disclosed in the complaint that the matter was already referred to Arbitration and claim was already filed by the complainant, therefore, the complaint is not maintainable and the complainants are not entitled to any relief.

14.              The argument advanced by the learned counsel for the opposite party is not tenable and as such cannot be accepted. According to section 3 of the Consumer Protection Act, the provisions of the Act are in addition to and not in derogation of provisions of any other law for the time being in force the complaint. Thus, it is clear that the remedy under provisions of the Consumer Protection Act is in addition to the remedy available under any other law. Therefore, inspite of Arbitration clause, the complaint is maintainable. Moreover, learned counsel for the opposite party has not disputed the fact that no proceedings have taken place before Arbitrator upto filing the complaint or thereafter.

15.              As a sequel to the foregoing discussion, we accept the present complaint and direct the opposite party to provide basic facilities at the spot as per condition of the auction and then issue fresh letter of offer of possession within 30 days after completion of the development work of basic facilities. The opposite party is not entitled to charge any interest from the complainant on the installments and extension fee till the date of fresh offer of possession after completion of the basic facilities. We further direct the opposite party to pay Rs.11,000/- to the complainants on account of mental agony and harassment suffered by them and for the litigation expenses. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 1.5.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal

 

                             (Veena Rani)     (Anil Sharma)

                               Member               Member