Complaint No: 122 of 2019.
Date of Institution: 01.04.2019.
Date of order: 22.03.2024.
1. Hardeep Kaur Wife of Gurmeet Singh aged about 60 years
2. Gurmit Singh Son of Pritam Singh, Both residents of New Greater Kailash Colony, House No. 57/58 Batala Tehsil Batala and District Gurdaspur. …..........Complainants.
VERSUS
1. M/s. Pee Jay Land Promoters Pvt. Ltd., 95 Adarsh Nagar Jalandhar, through its Proprietor Sushil Kumar S/O Ram Singh, R/O 205-B Adarsh Nagar, Jalandhar (Promoter of New Greater Kailash Colony Batala). Pin Code – 144001.
2. Sushil Kumar Son of Ram Singh, resident of 205-B Adarsh Nagar, Jalandhar, through his General Power of Attorney Sh. Manoj Kumar Son of Madan Lal, resident of Urban Estate Batala and District Gurdaspur. Pin Code – 143505.
3. District Town Planner, Gurdaspur, New Court Complex Gurdaspur. Pin Code – 143521.
4. Executive Officer, Municipal Committee, Batala. Pin Code – 143505.
5. Sarabjit Singh Son of Sh. Kunan Singh
6. Harmanjit Singh Son of Sarabjit Singh, Both residents of New Greater Kailash Colony Batala, Tehsil Batala and District Gurdaspur. Pin Code – 143505.
….Opposite parties.
Complaint U/S 12 of Consumer Protection Act.
Present: For the Complainants: Sh.Gurbachan Singh, Advocate.
For the Opposite Party No.3: Smt.Neeru Bala, Senior Assistant, in person.
For the Opposite Party No.5: Sh.S.S.Dhaliwal, Advocate.
Complaint against the Opposite Parties No.1 & 2: Withdrawn.
Opposite Parties No.4 & 6: Exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Hardeep Kaur & Gurmit Singh, Complainants (here-in-after referred to as complainants) have filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against M/s. Pee Jay Land Promoters Pvt. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainants is that the opposite party No. 1 has established a colony named as New Greater Kailash Colony near Urban Estate Batala over the area measuring about 9.11 Acre situated in the revenue estate of Batala Sarki Village Jharian Wal H.B. No. 211 according to Jamabandi for the year 2003-04. It is pleaded that the said colony is dully approved by PUDA. Site plan of the colony was dully proved and passed by the District Town Planner Gurdaspur i.e. the opposite party No. 3. One Park measuring 150 X 50 Feet was left for the welfare and walking etc. for the inhabitants of the said colony. The opposite parties No. 1 to 3 promised with their plot holders at the time of selling the plots, to provide all the essential basic amenities like as roads, electricity, water and sewerage, School, Shopping center, Telephone facilities, post office and Parks. It was also promised that all the parks will be properly maintained. It is further pleaded that the complainant has purchased the Plot No. 57/58 measuring by 60" X 60", comprised in Khewat No. 219, Khatouni No. 278, Khasra No. 30/7,13/2, 14,17,18/1, 23/2, 24, 25/1,total area (40-6) Marlas out of which 330.8 Square Gaj, in the above said colony for the consideration of Rs.4,00,000/- from the opposite party No. 2 vide sale deed dated 16.8.2007 for the purpose of constructing a residential house thereon. As such the complainant No. 1 is a consumer of the opposite parties No. 1 to 3. It is further pleaded that the complainants have constructed their house over the above said plot and residing in the house along with whole family. The opposite party No. 5 has also constructed his house in the said colony and is also residing in the same colony in his House. There is one Park measuring about one Kanal in front of the house of the complainant and house of the opposite party No. 5 is also situated in Front of the same Park on the eastern side of the park. Similarly, there are so many other houses in the colony which are situated in front of the said Park. There are some trees and mini plants which are planted by the opposite party No. 2 for the greenery and beauties of the Park. All the inhabitants of the colony were enjoying the facilities of the park by using the same in common. They were doing morning and evening walk in the Park. Children used to play in the park in free time. It is further pleaded that on 19th January 2019, the opposite parties No. 5 and 6 forcibly and illegally encroached the park by using the criminal force armed with deadly weapons and emerged the same in the passage in front of his residential house by demolishing the front boundary wall of the Park with the active connivance of the opposite party No. 2. He also put down the trees about four in numbers. Now he is using the same as his Haveli / as a personal property. He is laying cots permanently in the Park and to sit over the cots with whole family. They are placing the wet cloths in the park after its washing. It is further pleaded that he used to park the heavy vehicles in the way just to harass the natives of the colony. He has changed the nature of the said park and changed the same into Private Park from the public park. It is further pleaded that due to the act and conduct of the opposite parties No. 5 and 6 the inhabitants of the colony especially residents of park front houses are aggrieved by this act and conduct of the opposite parties. They are being deprived off the facilities of this Park. They are deprived of evening and morning walks etc. It is further pleaded that the complainant and other aggrieved inhabitants of the colony have many times requested the opposite parties No. 5 and 6 to reinstate the earlier nature / position of the park, but the opposite parties No. 5 and 6 is reluctant to admit the request of the complainant. Even that the complainant has also requested to the opposite parties No. 1 to 4 by giving written representations, duly signed by the other inhabitants of the colony to get reinstate the previous position of the park and also to take legal action against the opposite parties No. 5 and 6, but no action has been taken by the opposite parties No. 1 to 4. It is further pleaded that the complainant is consumer of the opposite parties No. 1 to 4. She is suffering unnecessary harassment at the hands of the opposite parties. There are many plot holders in the colony who are also suffering from the same harassment. Hence, there is clear cut deficiency in service on the part of the opposite parties. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties No. 5 and 6 to reinstate the previous position of the park and not to use the same as his Private Property / Haveli. The opposite parties No. 1 to 4 also be directed to take legal action against the opposite parties No. 5 and 6. The opposite parties may please be also directed to pay damages of Rs.20,000/- for unnecessary harassment caused to the complainant and other residents of the colony.
3. Complaint against the opposite parties No.1 and 2 has already been withdrawn vide order dated 15.10.2019.
4. Opposite party No.6 did not appear despite the service of notice and was proceeded against exparte vide order dated 18.06.2019. Similarly, opposite party No.4 did not appear despite the service of notice and was proceeded against exparte vide order dated 15.10.2019.
5. Upon notice, the opposite party No.3 appeared through its Clerk i.e. Sh. Akhil Mahajan and contested the complaint and filing their written reply, stating therein that the complainant submits that the site plan of New Greater Kailash Colony at Batala near Urban Estate, Tehsil Batala and District Gurdaspur was sanctioned by this office vide Letter No. 2912 DTP (G)/CAG-3 dated 03.12.2005. It is further pleaded that the scheme falls within the limits of Municipal Council Batala. As per Notification No. 17/17/01-5hg2/1558 dated 12th August 2015, the government has appointed Regional Deputy Director, Local Government to perform the function of Competent Authority under section 2(L) of Punjab Apartment and Property Regulation Act 1995 within the municipal limits of cities and towns of state of Punjab. Therefore, now Regional Deputy Director, Local Government has to take action on the issue. District Town Planner Gurdaspur has no role to play in the development over the land in question.
6. Upon notice, the opposite party No.5 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint of the complainant is not maintainable in the present form, as the complainant is not consumer of the answering opposite party No. 5 in any manner. The complainant never hired or obtained the services of the answering opposite party in any manner. Hence, the ingredients of section 12 of the Consumer Protection Act are not made out. It is pleaded that no cause of action has accrued to the complainant against the answering opposite party for filing the present complaint. Even house of the complainant is situated at a much distance from the house of the answering opposite party. Moreover, the house of the complainant is connected with 35 feet wide passage, while house of the answering opposite party is adjoining with 15 Feet wide passage. It is further pleaded that the present complaint is sheer misuse and abuse of the process and the complainant has not come to the Hon’ble Court with clean hands and has filed a false complaint by concealing the true and material facts. It is further pleaded that the Story put forth in this present complaint is bundle of lie and far from truth and neither the answering opposite party demolished any park, nor merged the same in his residential house. Moreover, house of the complainant is connected with 35 feet wide passage, while house of the answering opposite party is adjoining with 15 feet wide passage. It is pertinent to mention here that the OP No. 6 is living abroad since 2018 and thereafter he never came to India, but the complainants have wrongly alleged that the OP No. 6 armed with deadly weapons committed above said illegal act. This fact alone is sufficient to prove that the complainant has filed a false complaint. It is further pleaded that the complainants never hired or obtained services of the answering opposite party in any manner, nor there is deficiency of any sort in service on the part of the answering opposite party, the ingredients of Section 12 of the Consumer Protection Act are not made out. It is further pleaded that the complainants have suffered nothing on account of act and conduct of the answering opposite party. It is further pleaded that complainant is not consumer of the answering opposite party in any manner. Hence, the complaint against the answering opposite party is liable to be dismissed with costs.
On merits, the opposite party has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
7. Learned counsel for the complainants has tendered into evidence affidavit of Hardeep Kaur, (Complainant No.1) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-5.
8. The opposite party No.3 has filed document as Ex.OP-3/1 alongwith reply.
9. Learned counsel for the opposite party No.5 has tendered into evidence affidavit of Sarabjit Singh S/o Sh. Kunan Singh, resident of New Greater Kailash Colony Batala and District Gurdaspur as Ex.OP-5/1 alongwith reply.
10. Rejoinder filed by the complainant.
11. Written arguments filed by the opposite party No.3 but not filed by the complainant and opposite party No.5.
12. Counsel for the complainants has argued that opposite party No.1 had established a colony named as New Greater Kailash Colony near Urban Estate Batala. It is further argued that complainants had purchased plot Nos. 57/58 in the said colony and complainants had constructed their houses over the said plots. It is further argued that opposite party No.5 had also constructed his house in the said colony in front of the park of eastern side. It is further argued that in January, 2019 opposite parties No.5 and 6 have illegally encroached the park and on account of which the residents of colony are unable to use the park and as such opposite parties No.1 to 4 be directed to take action against opposite parties No.5 and 6.
13. Complaint against opposite parties No.1 and 2 had already been withdrawn.
14. Opposite parties No.4 and 6 remained exparte.
15. Smt.Neeru Bala Sr.Asstt. on behalf of opposite party No.3 has argued that site plan was sanctioned by opposite party No.3. However, as per notification of Govt. Regional Deputy Director, Local Govt. has been appointed to perform the function of Competent Authority under section 2(L) of Punjab Apartment and Property Regulation Act, 1995 and action if any is to be taken by Regional Deputy Director.
16. Counsel for the opposite party No.5 has argued that there is no relationship of consumer and service provider and accordingly complaint is not maintainable. It is further argued that opposite parties No.5 and 6 have not encroached the park as alleged by the complainants.
17. We have heard the Ld. counsel for the complainant, Sr. Asstt. of the opposite party No.3 and counsel for the opposite party No.5 and also gone through the record.
18. To prove their case complainant No.1 has placed on record her affidavit Ex.CW-1/A, copy of sale deed Ex.C1, copy of licences issued by DTP Gurdaspur Ex.C2, photograph in original Ex.C3 and copies of complaints Ex. C4 and Ex.C5 whereas opposite party No.3 has placed on record affidavit of Surinder Kumar District Town Planner Gurdaspur and copy of notification Ex.OP-3/1. Opposite party No.5 has placed on record affidavit of Sarabjit Singh Ex.OP-5/1.
19. Perusal of affidavit of Surinder Kumar, District Town Planner and notification Ex.OP-3/1 shows that Govt. of Punjab has vide its notification dated 12.08.2015 appointed Regional Deputy Director, Local Govt. to perform the functions of competent authority under section 2(L) of Punjab Apartment and Property Regulation Act, 1995. However, the complainants have failed to implead Regional Deputy Director, Local Govt. as a party to the complaint and complainants have failed to approach the Regional Deputy Director, Local Govt. regarding his grievances regarding encroachment on the park by opposite parties No.5 and since opposite party No.3 has no authority to take any action in the dispute which is subject matter of the present complaint.
20. As such without going into the merit of the case, the present complaint is disposed off with the directions to the complainants to approach Regional Deputy Director, Local Govt. for the redressal of their grievances.
21. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
22. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
March 22, 2024 Member.
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