DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA CC.No.234 of 30-05-2011 Decided on 29-09-2011
Sandeep Parmar son of Sh. Prem Parkash son of Sh. Hari Ram, aged about 47 years, Resident of Shiv Mandir Gali No.2, Power House Road, Bathinda. .......Complainant Versus
Improvement Trust, Bathinda, through its Chairman/Executive Officer. ......Opposite party
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt. Vikramjit Kaur Soni, President Sh.Amarjeet Paul, Member Smt. Sukhwinder Kaur, Member Present:- For the Complainant: Sh. M.L.Bansal, counsel for the complainant For Opposite parties: Sh. S.M.Goyal, counsel for opposite party
ORDER
Vikramjit Kaur Soni, President:-
1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 as amended up-to-date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant has given a bid in the open auction, held by the opposite party on 28.10.2007 and accordingly, the complainant proved to be a successful and highest bidder and SCF No.56, measuring 149.5 sq. yards in 25.57 Acre Scheme, Batihnda was allotted to the complainant by the opposite party vide allotment letter bearing No.222 dated 04.02.2008. The final bid for the aforesaid SCF was given by the complainant, of Rs.66,50,000/- and accordingly, an amount of Rs.16,62,000/- equal to 1/4th of the total bid amount and 4% Cess has already been deposited by the complainant. As per terms and conditions of the aforesaid allotment letter, the complainant was directed either to pay the remaining 3/4th amount and lumpsum within 30 days to make the complainant entitled for 5% rebate or to make the remaining 3/4th amount in installments as per schedule given in the allotment letter. As per schedule, the complainant has to deposit 3/4th amount in 5 installments of Rs.9,97,500/- plus interest on 04.08.2008, 04.02.2009, 04.08.2009, 04.02.2010 and 04.08.2010 respectively. As per the bid, the rate of said site is Rs.44,481.61 per sq. yard and Cess thereon @ 4% is Rs.1,779.26 per sq. yard is Rs.46,260.87. Thereafter, the complainant had continuously been depositing the installments with the opposite party from time to time and he deposited first 3 installments and 4th installment was to be paid/deposited on or before 04.02.2010. In January, 2010, the complainant applied for water & sewerage connection with M.C., Bathinda and the opposite party vide letter No.109 dated 22.01.2010 issued NOC for the release of water and sewerage connection. On 27.01.2010, the complainant got prepared a site plan from M/s Shelter Architos, Bathinda for submitting the same with M.C., Bathinda from which, it was came to the knowledge of the complainant on 27.01.2010 that the area of the aforesaid SCF is 144.06 sq. yards instead of 149.50 sq. yards. The complainant immediately wrote a letter to the opposite party on 28.01.2010 conveying about the less area and requested for adjustment of amount of lessor area as against the installment due on 04.02.2010 but the opposite party did not listen to his request and the complainant has to deposit the 4th installment to the opposite party. The complainant again wrote a letter/reminder dated 05.07.2010 to the opposite party who vide letter/reply dated 29.11.2010 has declined the requests of the complainant on false ground that the site was sold 'as is where is' basis and further directed the complainant to deposit the last installment alongwith interest. In this way, the complainant is entitled to pay less amount for the less area (i.e. Rs.46260.87x5.44 sq. yards which comes out to be Rs.2,51,659.13) but the opposite party has also charged the aforesaid amount alongwith interest @ 12% p.a. from the complainant. Hence, the complainant has filed the present complaint. 2. Notice was issued to the opposite party. The opposite party after appearing before this Forum, has filed its written statement and pleaded that the SCF was sold on “as is where is” basis and not with specific length and breadth. The plot in question is not such which was not visible to the naked eyes rather the complainant could have not measured it earlier also. The complainant has not paid the full auctioned money/price of SCF in question as per the allotment letter and as such, he has become a willful defaulter regarding the same. The terms and conditions of the allotment letter are self explanatory and binding upon the complainant. The rate of site was never agreed to be per sq. yard but the same was in lumpsum and for the complete available plot/SCF on the site. The opposite party has further pleaded that any such site plan, prepared from the Shelter Architos is not binding upon the opposite party. There is no such provision in the agreement or the law for rescheduling of installments. 3. Parties have led their evidence in support of their respective pleadings. 4. Arguments heard. Record alongwith written submissions submitted by the parties perused. 5. The complainant had purchased Shop-cum-Flat No.56, measuring 149.5 sq. yards in 25.57 Acre Scheme, Batihnda. The plot was allotted to the complainant by the opposite party vide allotment letter bearing No.222 dated 04.02.2008. This plot has been purchased by the complainant through auction. The plot was auctioned for the amount of Rs.66,50,000/-, the 1/4th i.e. Rs.16,62,000/- and 4% Cess has already been deposited by the complainant. The remaining 3/4th amount as per terms and conditions of the allotment letter, was to be deposited in lumpsum within 30 days. This also make the complainant entitled for 5% rebate or to make the remaining 3/4th amount in installments as per schedule given in the allotment letter. According to the schedule mentioned, the complainant has to deposit the 3/4th amount in 5 installments of Rs.9,97,500/- plus interest on 04.08.2008, 04.02.2009, 04.08.2009, 04.02.2010 & 04.08.2010 respectively. The rate of above mentioned site was Rs.44,481.61 per sq. yard and Cess @ 4% is Rs.1,779.26 per sq. yard and as such, the net rate per sq. yard was Rs.46,260.87. The complainant had continuously been depositing three installments and the 4th installment was to be deposited on or before 04.02.2010. In January, 2010, he applied for water & sewerage connection with M.C., Bathinda and the opposite party vide letter No.109 dated 22.01.2010 issued NOC for the release of water and sewerage connection. On 27.01.2010, the complainant had got prepared the site plan from M/s Shelter Architos, Bathinda. It came to the knowledge of the complainant first time on 27.01.2010 that the area of the above mentioned SCF is 144.06 sq. yards against allotted plot of 149.50 sq. yards. The complainant was given possession of less area measuring 5.44 sq. yards. The complainant wrote a letter dated 28.01.2010 conveying the opposite party about the less area and requested for adjustment of the amount of lessor area as against the installment due on 04.02.2010 but nothing has been done. He again wrote a letter/reminder dated 05.07.2010 and requested to reschedule the amount of installment and to reduce the amount and interest charged for the less area. The opposite party gave reply to his above said letter/reminder dated 29.11.2010 and declined the requests of the complainant on the ground that the site was sold on 'as is where is' basis and further directed the complainant to deposit the last installment alongwith interest and penal interest through letter dated 13.05.2011. 6. The opposite party has submitted that the Shop-cum-Flat in question was sold on “as is where is” basis and not with specific length and breadth. The plot was visible to the naked eyes, the complainant could have got measured it earlier. He had also not paid the full auctioned money/price of SCF as per the allotment letter and as such, he has become a willful defaulter regarding the payment. The rate of the site was never agreed to be per sq. yard but the same was in lumpsum and for the complete available plot/SCF on the site. The complainant is defaulter in depositing the installments. The opposite party has further submitted that they are not aware of the fact that the complainant had got prepared any such site plan from M/s Shelter Architos, Bathinda nor any such site plan is binding upon the opposite party. There is no such provision in the agreement or the law for rescheduling of installments. The opposite party has further submitted that nothing has been recovered in excess of what was agreed to be paid by the complainant and as such, the question of any adjustment or paying any lesser amount by the complainant does not arise. 7. The complainant submitted that the fact regarding the less area of the Shop-cum-Flat came to his knowledge on 27.01.2010 when he got prepared the site plan for the construction on the said plot in question. This is for the first time when the fact came to his knowledge that the area so allotted to the complainant was 144.06 sq. yards against the area of 149.50 sq. yards, the opposite party has given him the area 5.44 sq. yards less. 8. No doubt, the complainant has purchased the plot in question on “as is where is” basis but this fact remained confined to the fact that the complainant would accept the plot in what ever condition, it is allotted that means without sewerage, boundary wall and without development, auction does not mean that the specific area for which the auction has been given, can be reduced by the opposite party at any pretext. When the opposite party has called for bid/auction for the area of 149.50 sq. yards, it cannot be reduced to 144.06 sq. yards. 9. Moreover, Ex.C-2 dated 04.02.2008 shows that the area of the plot is 149.50 sq. yards and the payment schedule has been given for the plot of the area having 149.50 sq. yards. Ex.C-3 dated 22.01.2010 shows the area of the plot is 149.50 sq. yards but when he got the site plan prepared from M/s Shelter Architos, Bathinda, the area as per the site plan was 144.06 sq. yards and the area was less by 5.44 sq. yards. The complainant had also wrote a letter Ex.C-5 to the opposite party that the area so issued is lesser area. 10. The opposite party inspite of removing this discrepancy, has demanded the next installment from the complainant vide Ex.C-7 dated 29.11.2010 and Ex.C-8 dated 13.05.2011. The complainant was asked to deposit the 5th installment which was due towards him. 11. The scheme placed on file by the opposite party vide Ex.R-2 also shows that the plot has been issued under development scheme 25.57 and SCF No.53 and 57 are of 149.50 sq. yards. The complainant has not deposited the 5th installment which was due on 04.08.2010 for the amount of Rs.10,57,350/-. The opposite party has nowhere pleaded that the area of the plot is equal to the area allotted to the complainant, mentioned in the allotment letter whereas the complainant has put evidence on file that he has been allotted the area of 5.44 sq. yards less by the opposite party. The opposite party has taken the support of the law laid down by Hon'ble Supreme Court of India in case titled U.T. Chandigarh Administration & Anr. Vs Amarjeet Singh & Ors., 2009 (2) RCR (Civil) 401 (SC), wherein it has been held;- “Auction of plots by Chandigarh Administration on lease hold basis – Auction purchasers are liable to pay penal interest and penalty on delayed payment premium and installments even if no amenities (sewerage etc.) were provided by Administration – Consumer Forum has no jurisdiction to entertain complaint. B. Consumer Protection Act, 1986, Section 2 – Sale of plots by Chandigarh Administration byway of auction on 99 years lease on as is where is basis – Certain amenities such as (approach road, sewerage, street light etc.) not provided by the estate officer – There was no assurance on part of Administration to provide amenities – This does not amount to deficiency in service – Complaint before Consumer Forum is not maintainable – Held:- When the sites auctioned are existing sites, without any assurance/ representation relating to amenities, there is no question of deficiency of service or denial of service – When there is no assurance of any facility or amenity, the question of the owner of the site becoming a service provider, does not arise, 1996(1) SCC 485 and 2006(2) RCR (Civil) 26: 2006(1) RCR (Rent) 238 (SC) Distt.” With utmost regard and humility to the above cited authority relied upon by the opposite party is distinguishable on facts and circumstances, as this is with regard to basic amenities not with the area. In the present case, the matter is with regard to the area allotted itself. The opposite party has conducted auction for 149.50 sq. yards and got deposited payment for 149.50 sq. yards but the actual area has been given 144.06 sq. yards i.e. 5.44 sq. yards less was given to the complainant. Moreover, the opposite party has not got measured the plot by any of his officials. If the opposite party has bonafide intention, it should have got it measured from its official but no such effect has been done by the opposite party. 12. Therefore, in view of what has been discussed above, there is deficiency in service on the part of the opposite party as it has allotted the area lesser than the area mentioned in the allotment letter and the area for which the auction has been conducted. Hence, this complaint is accepted with Rs.10,000/- as cost and compensation and the opposite party is directed to adjust the amount of 5.44 sq. yards in his due installment i.e. 5th installment which was to be paid on 04.08.2010 if not paid yet by him. If this installment has been paid already by the complainant, the opposite party is directed to refund the amount for 5.44 sq. yards with interest since the date of deposit of last installment to the complainant. Compliance of this order be done within 45 days from the date of receipt of copy of this order. In case of non-compliance, interest @ 9% p.a. will yield on the price of 5.44 sq. yards till realization. A copy of this order be sent to the parties concerned free of cost and file be consigned for record. ' Pronounced in open Forum 29-09-2011 (Vikramjit Kaur Soni) President
(Amarjeet Paul) Member
(Sukhwinder Kaur) Member |
