BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.
Complaint No: 158 of 16.03.2015.
Date of Decision: 22.03.2016.
Jagdish Kumar son of Sh. Ram Chand son of Sh. Radhu Ram, Tehsil Khanna, District Ludhiana.
..… Complainant
Versus
- M/s. Rangi Associates Pvt. Ltd. through its Director/authorized signatory Sh. Ravinder Pal Singh son of Sh. Gurcharan Singh, resident of Bank Colony, Khanna Kalan, District Ludhiana.
- Jarnail Singh Rangi, Director of M/s. Rangi Associates Pvt. Ltd. having its head office at 1516, Sector 36-D, First Floor, Chandigarh.
…..Opposite parties.
Complaint under the Provisions of Consumer Protection Act, 1986
QUORUM:
SH. G.K. DHIR, PRESIDENT
SH. S.P. GARG, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. G.S. Pahwa, Advocate.
For OPs : Sh. Nipun Gupta, Advocate.
ORDER
PER G.K. Dhir, PRESIDENT
1. Complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) filed by complainant by claiming that he is owner of Plot No.14 measuring 333/33 sq. yards comprised in Khewat No.184, Khatauni No.213, Killa No.12//8/2, 11//15/2, 16, 17/1, 25 as per Jamabandi for the year 1999-2000 situate in residential colony namely Rajdhani Enclave, Village Bhattian, Tehsil Khanna, District Ludhiana. Complainant claims to have purchased this plot from Ops vide registered sale deed date 09.09.2005. At the time of sale of this plot by Ops to complainant, it was disclosed that the colony is fully developed PUDA approved, having all the facilities of water supply, sewerage and electricity lines. Ops claimed to have carved out the colony after obtaining licence of developer from competent authority. Reliance on licence No.LDC-H&UD/COMPETEENT AUTHORITY (STP-LUDHIANA)/02/2015 DT. 18.05.2005 was placed by Ops. In that licence it was mentioned that development works of metalling of roads, paving of footpaths, laying of water and sewerage lines, plantation of trees and street light will be done by Ops. Even electrification works were to be carried out as per design and specification of Punjab State Electricity Board. In Clause-V of licence, it was mentioned that the licence was having validity for 3 years commencing from 18.05.2005 to 17.05.2008. Ops were to complete the development works within this period. As per terms of licence, promoter to make his own arrangement for water supply, sewerage, road network, drainage system etc. till these services integrated with the services of Municipal Council. After purchase of the plot, when complainant planned to start the construction, then he learnt as if Ops have not made arrangement for water supply and sewerage treatment plant and even have not installed the poles for electricity supply. Rather it was learnt by the complainant that electricity connection from electricity department and the water connection from Municipal Council was not got by Ops and nor Ops constructed the sewerage treatment plant. In CWP No.14427 of 2010, a Local Commissioner was appointed by Hon’ble High Court of Punjab and Haryana. That Local Commissioner after visiting the spot, submitted report dated 31.03.2013 for reporting as if colonizer failed to obtain water connection from Municipal Council Khanna and no electric connection was got for tube well and even there was no electricity connection to the lines, which are laid in the colony. That Local Commissioner also submitted report for disclosing that underground sewerage lines were not connected to the main sewerage line of Municipal Council Khanna. Colonizer even has not deposited the amount with Municipal Council Khanna and as such, by pleading deficiency in services on the part of Ops, prayer made for directing Ops to pay financial loss of Rs.18,38,700/-, being loss suffered on account of rise in market price of building material. Compensation of Rs.50,000/- for mental pain, harassment and agony and litigation expenses Rs.10,000/- claimed. Even direction sought against Ops for calling upon them to provide basic amenities of water supply, sewerage disposal system, electricity connections and security etc. in time bound period. Directions also sought against Ops to get the completion certificate from competent authority (GLADA) so that process of transfer of non saleable open space like roads, parks etc. in favour of Government or Municipal Corporation may be initiated. Complainant claimed that he could not start the construction due to non availability of facilities of water supply, electricity and sewerage. Complainant claims to have learnt about the deficient and negligent act on the part of Ops from the date of report of Local Commissioner 31.03.2013.
2. In written statement filed by Ops, it is pleaded, interalia, as if complaint is not maintainable; complainant has put forth concocted story regarding deficient and negligent act of Ops; remedy if any available with complainant is to file the complaint before the competent authority of GLADA under provisions of Punjab Apartment & Property Regulation Act, 1995 (hereinafter referred as Apartment Act). It is also claimed that complaint is not within limitation because the plot in question purchased in 2005 and the licence of Ops was valid from 18.05.2005 to 17.05.2008. Though Ops applied for renewal of licence after expiry of the earlier licence of date 18.05.2005, but the new licence was agreed to be issued with certain changes. Ops are bound by the terms and conditions of the revised licence in which there is no condition for water supply and electricity, free of cost. It is claimed that the complainant is not a consumer and as such, this Forum has no jurisdiction to entertain the complaint. Besides it is claimed that the complainant has no cause of action for filing the complaint. It is claimed that water tank has already been installed in the colony and even street lights put up and space for school earmarked. Security guard deployed and parks and roads constructed in the colony due to which complainant is bound to pay charges for these amenities to Ops as well as to Municipal Council, Khanna. Licence of Ops has already expired and as such, Ops are not bound to provide alleged amenities to the complainant. It is claimed that complainant has put forth false and concocted story by alleging that for the first time, he learnt about the deficient and negligent act of Ops after perusing the report of Local Commissioner dated 31.03.2013 submitted before Hon’ble High Court of Punjab and Haryana, which provides that as petitioner has not approached the competent authority under Apartment Act and as such, they should file a representation or suitable application before the competent authority, so that appropriate action against present Ops (developer) may be taken as per law. So remedy available with complainant is to file the complaint against Ops before competent authority of GLADA under Apartment Act. It is claimed that complicated questions of law and facts are involved and as such, the matter deserves to be referred to Civil Court. As Ops have completed the internal development works and that is why bank guarantee furnished by Ops has already been released, due to which Ops are not bound to provide the amenities as alleged. Each and every other averments of complaint denied except outcome of CWP No.14427 of 2010. Complainant has not suffered any loss due to alleged deficiency on the part of Ops and as such, prayer made for dismissal of the complaint.
3. Counsel for the complainant tendered in evidence affidavit Ex. CW1/A of complainant along with documents Ex. C1 to Ex. C16 and then closed evidence.
4. On the other hand, counsel for Ops tendered in evidence affidavit Ex. RA of Sh. Brijendra Singh, General Manager of OP1 along with documents Ex. R1 to Ex. R4 and then he closed evidence of Ops.
5. Written arguments not submitted by any of the parties, but oral arguments heard in the main case as well as on application for rejection/dismissal of the complaint dated 26.05.2015. That application also decided through different paras of this judgment.
On application for rejection/dismissal of complaint.
6. This application filed by claiming that complainant is owner of the plot in question after its purchase through sale deed dated 09.09.2005. However, licence issued in favour of Ops was having validity/period from 18.05.2005 to 17.05.2008, within which period the development works were completed and as such, there is no deficiency in services. Besides it is claimed that complaint is not within limitation and complainant has no cause of action against Ops because the story is concocted qua getting the knowledge of alleged deficiency in services w.e.f. 31.03.2013, the date on which Local Commissioner submitted report. In view of orders passed in CWP No.14427 of 2010 by Hon’ble High Court of Punjab and Haryana, remedy available with complainant is to approach the competent authority under Apartment Act.
7. In reply submitted to this application, it is claimed by complainant that the complaint has been filed due to deficiency in services on the part of Ops and as such, complainant is entitled for compensation for mental agony and harassment. Complainant is alleged to be consumer within the meaning of the Act. Besides the writ petition filed before Hon’ble High Court of Punjab and Haryana and the representation filed before competent authorities were aimed at for availing facilities, but the present complaint filed for claiming damages due to deficient services on account of negligent act on the part of Ops and as such, by reiterating the fact of getting knowledge w.e.f. the date of report of Local Commissioner dated 31.03.2013, complaint alleged to be within limitation. Admittedly, complaint has been filed on the basis of licence dated 18.05.2005 issued in favour of Ops. Ops carved out the colony on the basis of this licence by agreeing to provide number of facilities and as such, they were bound by the terms and conditions of the subsequent changes. It is claimed that Ops have not complied with the directions given by Hon’ble High Court and as such, cause of action accrued in favour of complainant w.e.f. 31.03.2013. Prayer made for dismissal of application.
8. Arguments on this application were heard along with arguments in main case itself. Application for dismissal of the complaint merits acceptance for the reasons:-
i. After expiry of licence period, Ops ceased to be under obligation from providing the sought for facilities.
ii. Parties are bound by the orders of Hon’ble High Court in pursuance of which remedy available with complainant and others is to seek enforcement of their rights of development works as per Section 5(13) of Apartment Act.
iii. Facts qua date of accrual of cause of action w.e.f. 31.03.2013, the date on which Local Commissioner submitted report before Hon’ble High Court are inaccurate and not proved.
9. Sale deed Ex. C2 was got executed by the complainant from Ops on 09.09.2005. As per terms of this sale deed, Ops to provide facilities of water supply, sewerage, street light, roads, park and security guards etc. So certainly complainant entitled to avail these basic amenities/facilities as per terms of sale deed Ex. C2, but legal limitations in grant of these facilities on part of Ops remained due to expiry of the licence Ex. C1 on 17.05.2008.
10. Complainant in para No.1 of complaint specifically claimed that Ops in view of licence No.LDC-H&UD/COMPETRENT AUTHORITY (STP-LUDHIANA)/02/2015 dated 18.05.2005 were bound to provide the facilities of metalling of road, paving of footpaths, laying of water and sewerage lines etc. and the same plea taken in the reply submitted by complainant to application for rejection/dismissal of the complaint as well as in the submitted affidavit. In para No.2 of the complaint, it is specifically mentioned that the validity of said licence issued in favour of Ops by the competent authority was for period from 18.05.2005 to 17.05.2008. It was during this period that the development works were to be carried out is the assertion contained in para No.2 of the complaint. In view of this, counsel for complainant takes us through terms and conditions of licence Ex. C1, which provides that responsibility of providing facility of metalling of roads, paving of footpaths etc. was of Ops. Certainly after going through contents of licence in question Ex. C1, it is made out that the liability of providing sewerage and water facility etc. was of Ops for which purpose he had to enter into an agreement with the competent authority and other authorities. The validity period of licence was for three years commencing from 18.05.2005 and ending on 17.05.2008. However, this complaint filed on 16.03.2015 by claiming that the facilities required to be provided by Ops as per terms and conditions of licence deed Ex. C1 has not been provided till date. As the terms of Ex. C1 itself provides that the development work facilities to be provided by Ops during period from 18.05.2005 to 17.05.2008 and as such, in case these development works not carried out by Ops by 17.05.2008, then the complaint for complaining of deficiency in services could have been filed by 17.05.2010 i.e. within two years from the date of accrual of last cause of action. It is so because the complaint has to be filed under the Act within two years from the accrual of cause of action and in case it is not filed within that period, then complaint deserves to be dismissed in view of Section 24-A of the Act.
11. Section 3(2) of the Apartment Act referred above provides that the promoter, who develops a colony or who constructs or intends to construct such building or apartments to make full disclosure of the nature of his title/encumbrance/fixtures/fittings and amenities and if that be the position, then all the documents, plans and specifications qua such facilities/amenities to remain available in the office of Ops for inspection to the persons taking or intending to take a plot or apartment. Specific reference to Section 3(2) (d) of the Apartment Act in that respect can be made. Purpose of such display is to make known to the intending purchasers, the nature of facilities/amenities to be provided by the promoter like Ops. So complainant was made known about the amenities and facilities to be provided to him in the colony in question. In view of the liability of the promoter (Ops) to make disclosures of the nature of his title etc., complainant got knowledge of the validity period of licence issued in favour of Ops by the competent authority. Validity period of that licence as was up to 17.05.2008 and as such, Ops were under obligation to provide these amenities/facilities up to 17.05.2008 only.
12. Section 5(4) of the Apartment Act even provides that the licence granted in favour of the promoter to have validity period of three years, but the licence renewable on payment of prescribed fee. Rights and obligations claimed by complainant on the basis of licence Ex. C1 alone, the validity period of which expired on 17.05.2008 and as such, after this period, licence in question in favour of Ops to be deemed to be cancelled by necessary legal implications. Section 5(13) of Punjab Apartment and Property Regulation Act, 1955 reads as under:-
“When a licence is cancelled under sub-section (12), the competent authority may itself carry out or cause to be carried out the development works, and after adjusting the amount received as a result of enforcement of bank guarantee, recover such charges as the competent authority may have to incur on the said development works from the promoter and the allottees in the manner prescribed as arrears of land revenue.”
After going through Section 5(13) of the Apartment Act, it is made out that after cancellation of licence, competent authority may itself carry out or cause to be carried out development works by adjusting amount received as a result of enforcement of bank guarantee or by recovering such charges as the competent authority may incur on the development works, from the promoter and the allottees. Cancellation of licence may be due to violation of the terms and conditions or due to promoter acting in contravention of the provisions of Apartment Act or the rules framed there under is provided by Section 5(12) of the above said Apartment Act. As grant of licence for specified period was one of the condition of licence and as such, on expiry of the validity period of licence, the licence virtually stood automatically canceled by efflux of time. So after 17.05.2008, the remedy available with complainant remained to get the liability of carrying out of development works enforced through competent authority as per Section 5(13) of the Apartment Act. As the present complaint is filed beyond period of two years after the expiry of licence Ex. C1 on 17.05.2008 and as such, submissions advanced by counsel for Ops has force that direction sought through this complaint for enforcement of the liability of carrying out development works is barred by limitation in view of Section 24-A of the Act.
13. Section 25 of Apartment Act provides that a certificate of registration granted under Section 21 shall be liable to be cancelled, but Section 24 provides that the competent authority may refuse to grant or renew the certificate of registration in favour of promoter. So non renewal of registration certificate stands on the same footing as that of refusal to grant registered licence to the promoter/colonizer.
14. Section 27 of the Apartment Act provides that when a certificate of registration is suspended or cancelled under Section 26 of the Act or when it expires and is not renewed under Section 23 of the Act, a promoter or estate agent, as the case may be, shall cease to carry on the business and any business or activity in furtherance of this business during the period of suspension or after the expiry or cancellation of the certificate of registration, shall be deemed to be carried on without any certificate of registration, due to which consequential liabilities of the promoters under Section 36 of the Apartment Act will follow. Section 36 of the Apartment Act provides for prosecution of the promoter or estate agent. A joint reading of all these sections of Apartment Act provides that after expiry of licence period, the promoter or his agent cannot carry out the development works. So in view of this legal position, Ops after 17.05.2008 could not have carried out the development works in the colony in question and if that be the position, then Ops were legally debarred from providing development works/amenities after 17.05.2008. So cause of action against Ops accrued until 17.05.2008 and not beyond that. In view of that the complaint filed after six years and 8 months of the accrual of cause of action is barred by limitation in so far as by pleading deficiency in services, the relief claimed for calling upon the Ops to provide the amenities of sewerage, water works and electricity etc.
15. In pursuance of provisions of Right to Information Act 2005, if complainant able to get the copy of licence deed Ex. C1, as disclosed by Ex.C3, then on account of that alone cause of action will not accrue in favour of complainant w.e.f. 27.01.2015, particularly when pleaded case of complainant itself is that he got knowledge qua deficiency in service on part of Ops after receipt of report Ex. C4 submitted by Local Commissioner in CWP No.14427 of 2010. That report is of dated 31.03.2013 and as such, virtually complainant claimed as if the complaint filed within two years from date of knowledge qua non providing of facilities/amenities by Ops. That assertion contained in the complaint absolutely is incorrect, particularly when date on which the construction contemplated to be started after purchase of the plot, not mentioned in para No.4 or in any other para of the complaint. It is for the complainant to plead the facts constituting cause of action, but the complainant suppressed the facts as to when he planned to start the construction. Even the complainant in para No.3 of the complaint claimed that he in view of the assurances given by OPs qua compliance of terms and conditions of the licence, qua providing of facilities, purchased the plot in question, which means that the complainant got knowledge of providing of facilities by Ops w.e.f 09.09.2015, when the sale deed Ex. C2 got executed by him from Ops. So after purchase of the plot in question on 09.09.2015, complainant was bound to have knowledge about the facilities provided in the colony in question. Looking from that angle also, complaint not being filed within two years from such purchase, is barred by limitation.
16. It is not the report of Local Commissioner Ex. C4 alone, which to give rise to cause of action because deficiency in services on the part of Ops came to an end w.e.f. date of cessation of their licence Ex. C1. So even if deficiency qua providing of water and sewerage connection facility etc. may have been pointed out by Local Commissioner through report Ex. C4 on 31.03.2013, but despite that as complainant got knowledge of the alleged deficiency much prior to the filing of this complaint and as such, virtually a story has been concocted in para No.8 of the complaint as if they got knowledge of deficiency in services w.e.f. 31.03.2013, when report Ex. C4 was submitted by Local Commissioner. When complainant contemplated to start construction, qua that date, month or year is not mentioned in the complaint and as such, virtually the complaint is filed by suppressing the facts qua accrual of cause of action. In view of that also complainant can be said to have not approached this Forum with clean hands. So application for rejection/dismissal of complaint merits acceptance.
On merits:-
17. Ex. C5 and Ex. C6 are the documents produced by the complainant to show as if he got estimates of construction works prepared from an approved draftsman on 05.01.2015. However, date of contemplation of start of construction work not specified in the complaint qua which inference of suppression of facts or of complaint being barred by limitation has already been drawn and as such, benefit from these documents cannot be availed by complainant.
18. Documents Ex. C7 to Ex. C16 are produced on record to show that in pursuance of order passed in CWP No.14427 of 2010 by Hon’ble High Court of Punjab and Haryana, competent authority has been approached for calling upon it to get provided the basic amenities/facilities from the colonizer. After going through Ex. R1, copy of decision dated 18.12.2014 rendered by Hon’ble High Court of Punjab and Haryana, it is made out that petitioners Madan Lal and others given liberty to approach the competent authority under Apartment Act. It was found in that decision given in CWP No.14427 of 2010 itself that the petitioners have not approached the competent authorities under Apartment Act till date and that is why they were permitted to file suitable application/representation before competent authority against the Builder (present Ops). It was further held through that decision that the application/representation made by petitioners like present complainant and others will be considered by competent authorities and disposed of by a speaking order within 5 months. Though direction through this writ was sought against present Ops for providing basic amenities in the area as stipulated in the licence, but that direction was not issued against the present Ops. That judgment of Hon’ble High Court is binding on this Forum also. As in view of non filing of any application before any of the competent authority earlier, prayer for issuing the directions to Ops to provide basic amenities was not granted by Hon’ble High Court and as such on the analogy of the law of the above cited case, such direction by this Forum even cannot be granted. When a Civil Court has already decided the matter qua a subject, then complaint under Consumer Protection Act will be barred by principle of resjudicata is the law laid down in case titled as B.L. Joshi Vs Bank of India and others decided on01.04.2013 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi through consumer case No.171 to 174 of 2010. As the reliefs against present Ops for granting amenities declined by Hon’ble High Court and as such, that declined relief cannot be granted by this Forum. Remedy available with complainant as such is to seek enforcement of the development works under Section 5 (13) of Punjab Apartment & Property Regulation Act, 1995. So for these reasons in addition to one mentioned for acceptance of application for rejection of complaint, this complaint merits dismissal.
19. Counsel for complainant vehemently contends that as the development works not carried out for long time and as such, in view of the recurring deficiency on the part of Ops, complainant is entitled for compensation for mental harassment. Reliance for such contention placed on ratio of case titled as Haryana State Agricultural Marketing Board Vs Bishamber Dayal Goyal & others 2014(2) Civil Court Case 772 (S.C.). After going through ratio of that case, it is made out that statutory duty is there on the board and development authorities to provide the requisite facilities of water, sewerage etc. as is essential for enjoying allotted plots/properties. Those facilities need to be provided within reasonable time, but here those facilities not provided for the last more than seven years and as such, it is vehemently contended that this complaint is maintainable. After going through the contents of cited case, it is made out that though shops were allotted for enabling allottees to carry out grain business, but the basic facilities/amenities of sewerage, electricity and roads were not provided and that is why compensation was awarded. After going through para No.4 of the cited case, it is made out that allottees concerned applied for licence for carrying on grain business by invoking notification of 31.10.1980, but despite that the basic amenities were not provided until 1998. Certainly the authorities promising to provide basic amenities/facilities are amenable to the jurisdiction of Consumer Forum in case of deficiency of service is there, but in case the licence issued in favour of promoter/developer not renewed and the complaint not filed within limitation, then benefit from ratio of this case cannot be availed. In the case before us competent authority approached after much delay and this complaint is not within limitation and as such, complaint deserves dismissal.
20. As a sequel of above discussion, the complaint dismissed, but with observation that complainant, if advised, may approach competent authority as per Section 5(13) of Punjab Apartment and Property Regulation Act, 1995 for enforcement of the bank guarantee or for causing development works to be carried out. No order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
(Sat Paul Garg) (G.K. Dhir)
Member President
Announced in Open Forum.
Dated:22.03.2016.
Gobind Ram.
