Punjab

StateCommission

A/11/393

Dr. Jawahar Lal - Complainant(s)

Versus

M/s Sethi & Associated - Opp.Party(s)

K.R. Dhawan

14 May 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.393 of 2011

 

                                                          Date of Institution:03.03.2011                                                               Date of Decision: 14.05.2015 

 

1.       Dr. Jawahar Lal Aggarwal (aged 55 years) S/o Sh.Faqir Chand S/o      Sh.Devi Ditta Mal. 

         

2.       Smt. Savita Aggarwal (aged 50 years) w/o Dr.Jawahar Lal Aggarwal   S/o Sh.Faqir Chand, both residents of Nehru Park, Partap Road,   Moga, Tehsil and District Moga.                                                                                                                                                                                                                    …..Appellants/Complainants

         

                                      Versus

 

1.       M/s Sethi & Associates, 9-New Town, D.M. College Road, Moga,        Tehsil & District Moga.

2.       Director Local Bodies, Local Government, Punjab Chandigarh.

3.       Municipal Council, Moga through its President, Moga District Moga

4.       Executive Officer, Municipal Council, Moga.

5.       Senior Town Planner, Local Government, Head Quarter, Municipal       Corporation, Ludhiana.

6.       Local Government, Punjab, Chandigarh, through Secretary, Local        Bodies.

                                                          …..Respondents /Opposite Parties

 

 

First Appeal against order dated 27.01.2011 passed by the District Consumer Disputes Redressal Forum, Moga.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member

          Shri.Vinod Kumar Gupta, Member

          Shri. Harcharan Singh Guram, Member

 

Present:-

 

          For the appellants                     :         Sh.K.R.Dhawan, Advocate

          For the respondent no.1            :         Sh.Nidhi Iyyer, Advocate

          For the respondent no.2, 3 & 6   :         Ex-parte

          For the respondent no.4            :         None.

          For the respondent no.5            :         None

 

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellants (the complainants in the complaint) have directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 27.01.2011 of District Consumer Disputes Redressal Forum Moga, accepting the complaint of the complainant and directing OP No.3 and 5 to approve the unified site plan Ex.A-20 submitted by the complainants and drafted by Mr. Tarun Sharma, within one month from the  date of receipt of copy of this order and after its approval, the complainants would be at liberty to raise the construction as per the approved site plan Ex.A-20. The instant appeal has been preferred against the same by the complainants now appellants.

2.      The complainants have filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainants had decided to construct a building on a portion of the land and got prepared the site plan for proposed construction from OP No.1 being approved draftsman of Municipal Council Moga. OP No.1 told the complainants that he had prepared the site , as per the Municipal bye-+laws and as per specifications of Municipal Council Moga. The complainants submitted the said site plan in the office of OP No.4 on 7.11.2007 and deposited the amount of Rs.32,399/- as per direction  of the  officials of Municipal Council Moga/OP No.3, vide receipt no.03, book no.749 dated 07.11.2007 for approval. It has not been sanctioned or revised within 60 days of the receipt from any person of a valid notice to erect or re-erect a building,  then it would deemed to have been sanctioned as per the provision of Section 193(4) of the Punjab Municipal Act read with Para 3.10 of the Building Bye Laws 1997. No intimation of its refusal was ever given by OP No.4 to complainant. The complainants decided to construct  the building on their remaining land and they got prepared another site plan from OP No.1 and submitted it with Municipal Council Moga on 21.01.2008 by depositing Rs.18096/- as fee of the committee, vide receipt no.03, book no.772. The complainant did not receive any intimation regarding the approval or rejection of the application from OP No.4 up to 21.03.2008 and hence the second site plan was also deemed to have been sanctioned on 21.03.2008. The complainants started raising the construction over the land. However, OP No.4 on 28.01.2008 issued letter to Executive Engineer Central Works Division Ferozepur, for NOC regarding the building to be constructed adjoining the National Highway. OP No.4 failed to reject or approve the building application within stipulated period of 60 days. The complainants also received another letter dated 03.07.2008, in which it was alleged that complainants were making construction without any approval of the site plan and said letter was unauthorized.  The complainants received letter no.1294 dated 23.09.2008 from OP No.4 alleging that site maps submitted by the complainants were sent to S.T.P Ludhiana/OP No.5 and the said S.T.P Ludhiana raised objection to the effect that proposed construction was not as per Building Bye Laws of Municipal Council. OP No.4 has illegally sent the site map and building application of the complainants to S.T.P Ludhiana and this act of the OP No.4 is against the provision of Municipal Act and building bye-laws as framed thereunder. In the letter issued by OP No.4  to S.T.P Ludhiana, it is alleged that site map is being referred to S.T.P Ludhiana,  because the commercial building is to be constructed in this case,  but the Municipal Council has approved several site plans and building applications regarding commercial buildings to be constructed adjoining National High Way without referring the site map/building applications to S.T.P Ludhiana. Bizarre procedure has been adopted in the case of the complainant  by OP No.3 and 4, which is unauthorized and illegal. The above act of the OP No.3 and 4 is illegal and against the law. The complainants have, thus, filed the present complaint directing the OPs to pay the compensation of Rs.20 lacs for their negligence and the mental harassment as caused to the complainant.

3.      Upon notice, OP No.1 appeared and filed the written reply raising preliminary objections that complaint is not maintainable against OP No.1. The Forum has no jurisdiction to try the complaint. The complainants have no locus standi to file the complaint. Actually, the complainants hired OP No.1 to draw a proposed site plan of a building in one part of a plot and after some time, the complainants again rushed to the office of OP No.1 and directed OP No.1 to draft one more site plan on the other part of the land. OP No.1 prepared second site plan as OP is the approved draftsman of Municipal Committee. The complainants also hired the services of Sh. Tarun Sharma, from whom they prepared the revised site plan for both the above-mentioned site plans. The proposed site plan was not acceptable to the Municipal Committee and it raised objections. It was further averred that letter dated 23.09.2008 of M.C Moga raising objections that both site plans are on the same plot and they should be one proposed site plan rather than two site plans on the same plot. No fault is there on the part of OP No.1. and OP No.1 prayed for dismissal for the present complaint.

4.      OP No.3 and 4 filed their separate written reply by raising preliminary objections that complainants submitted proposed plan of a hospital rented to financial institution. Building belongs to Smt. Savita Aggarwal and Dr. Jawahar Lal Aggarwal on 7.11.2007, which was received by OPs, as site plan no.328. Keeping in view the provisions of Punjab Act 11 of 1995 as amended up to date, they addressed letter no.1855 dated 5.12.1997 to , which was received by them on 5.12.2007. According to building Bye-Laws 1997, the Commercial Building means a building used or constructed or adopted to be used wholly or partially for shops, banks, nursing homes etc. As per Bye-Laws floor area ratio, site coverage etc is provided differently for different sizes of plots i.e. above 250 sq.yards up to 500 sq. yards, the site coverage is 60%  and FAR is 1:2 and above 500 sq. yards , the site coverage is 15% front 25% rear of plots. Above 250 sq. yards it is 20% on front and 30% on rear. The OPs addressed letter no.415 dated 2.4.2008 with copy to complainants duly received by him 11.04.2008 to Senior Town Planner Local Government Department Ludhiana. On 21.01.2008, complainants submitted another site plan of the remaining portion, which was received at serial no.418. Senior Town Planner Local Government Headquarter Municipal Corporation Ludhiana, vide letter no.825/STP/D dated 04.09.2008 considered  both the site plans no.328 dated 7.11.2007 and no.418 dated 21.01.2008  and no.428 dated 21.1.2008 and observed that these site plans are contrary to the Building Bye-Laws. The OPs addressed letter no.1294 dated  23.09.2008 , which was received by the complainant on 23.09.2008 to comply with the Building Bye Laws. In reply to notice, the complainants admitted that both the site plans no.328 dated 07.11.2007 and no.418 dated 21.01.2008 have been submitted to Senior Town Planner and they would not raise the further construction. The complainants constructed the basement without approval to the extent of 1374 sq. feet, vide site plan no.328 dated 7.11.2007 and 1688 sq. feet, vide site plan no.418 dated 21.01.2008. OP No.3 and 4 prayed for dismissal of the present complaint.

5.      OP No.5 appeared and filed its separate written reply by raising preliminary objections that  the present complaint is not maintainable in the present form. The complaint is bad for mis-joinder of necessary parties. It is submitted that as per Local Body Government , there are separate building bye-laws for hospital, commercial establishments and institutions. The OP No.5 was approached by OP No.4 regarding the plans concerning the complainant. After going through the same, it was  revealed that the OP No.4 has dealt with the matter treating it as Commercial establishments and treated under Commercial Building Bye Laws, whereas plans related to hospital/institutions and as such they were to be dealt with the separate hospital building bye laws as well as with institution building bye-laws and with these, the plans were returned to OP No.4 along with letter dated 4.9.08 and except this OP No.5 has no role whatsoever. The said letter dated 4.09.2008 already on the record and it was not disputed. OP No.5 prayed for dismissal of the present complaint against it.

6.      OP No.2 and 6 were set ex-parte in the District Forum, vide order dated 25.08.2010.       

7.      The complainant tendered in evidence the affidavit of complainant Ex.A-1, copies of receipts Ex.A-2 to Ex.A-3, copy of NOC Ex.A-4, copy of letters Ex.A-5 and Ex.A-6, copy of notice Ex.A-7, copy of postal receipts Ex.A-8 to Ex.A-13, copy of acknowledgement receipt Ex.A-14, another affidavit of complainant Ex.A-15, site plan showing the latest location of the property Ex.A-156, valuation report Ex.A-17, copy of sale deed Ex.A-18, copy of notice Ex.A-19, copy of site plan of Tarun Sharma Ex.A-20. As against it, OPs tendered in evidence affidavit of Sh.Rahgunandan Sethi Prop. Sethi and Associates Ex.R-1, receipt of Municipal Council Moga Ex.R-2, affidavit of Kulbir Singh Brar, Executive Officer, Municipal Council Moga Ex.R-3, copy of site plan Ex.R-4, copy of letter dated 5.12.2007 addressed from Municipal Council Moga Ex.R-5, copy of letter no.4566 dated 20.03.2008 Ex.R-6, copy of memo no.CT (LG) 992473 -2006 dated 15.12.1999 of Government of Punjab, Department of Local Government Ex.R-7, copy of letter dated 2.4.08 Ex.R-8, copy of site plan Ex.R-9, copy of letter dated 2.4.2008 Ex.R-10, copy of letter dated 4.09.2008 Ex.R-11, copy of letter Ex.R-12, copy of letter dated 29.10.2010 Ex.R-13, copy of notice of Municipal Council Moga dated 3.7.2008 Ex.R-14, copy of letter dated 7.7.2008 Ex.R-15, detail of proposed construction of commercial building Ex.R-16, copy of site plan Ex.R-17, copy of letter addressed to Sh. N.K.Arora , Principal Secretary Ex.R-18, copy of schedule -1 Ex.R-19, copy of affidavit of Balkar Singh Brar, Senior Town Planner, Local Government, Head Quarter Municipal Corporation Ludhiana Ex.R-20, On conclusion of evidence and arguments, the District Forum, Moga, accepted the complaint of the complainant by virtue of order dated 27.01.2011. Dissatisfied with the order of the District Forum Moga dated 27.01.2011, the complainants now appellants have preferred this appeal against the same.   

8.      We have heard learned counsel for the parties and have also examined the record of the case, whereas, none has appeared on behalf of respondent no.4 and 5 in this appeal at the time of arguments in this appeal. The instant appeal has been preferred by the complainants now appellants only on the short ground that they submitted the site plan for the approval to OP No.3 and 4 by depositing the amount of Rs.32,399/-, vide receipt no.03, book no.749 dated 07.11.2007 issued by OP No.3. It would be deemed to have been sanctioned, as per the provision of Section 193(4) of the Punjab Municipal Act within 60 days, in case, no intimation regarding its refusal was received. The appellants started raising construction over the land and thereafter received letter dated 03.07.2008, wherein OP No.4 alleged that building was being constructed without approval of the site plan, though the letter was issued against the provisions of  the law. OP No.4 sent another letter no.1294 in the month of September 2008 alleging that site plans submitted by the appellants were sent to OP No.5 as proposed building is a commercial building adjoining the National Highway. Sh. Tarun Sharma the approved Architect of  Municipal Council and he revised the site plan, if site plan is approved as per Bye-laws then OPs are liable to deficiency in services and complainants are entitled to get  the compensation . The submission of counsel for the appellants is that there is no rule for sending the site plan to Sr. Town Planner for approval and it was only just to harass the complainants now appellants. Senior Town Planner, Ludhiana raised objection that since there were two site plans pertaining to one land it should be a single site plan instead of two.  No other objection was raised by Senior Town Planner Ludhiana except above-referred, vide Ex.R-11. It was further submitted that fresh unified site plan prepared by Engineer Tarun Sharma on 02.01.2010, wherein proposed two constructions were shown in a single site plan, vide Ex.R-16 on the record. Municipal Council did not approved the same, despite waiting for five months and eventually complaint was filed. The submission of OP No.1 is that he prepared the site plan, as per instructions of Central Works Ferozepur and he has been unnecessarily dragged in this case. OP No.3 and 5 contended that Municipal Council Moga is justified in not approving the site plan prepared by the complainant because objections were raised by the Senior Town Planner, Ludhiana, which raised objection that since there were two site plans pertaining to one plot and hence it should be a single site plan instead of two.

9.      The District Forum observed in the order that complainants have left space 16' 6'' from the boundary wall in front of the building. Site plan was submitted and required fee was deposited, vide Ex.A-2 and Ex.A-3. Municipal Council has not brought on record any letter raising objections to the complainant at any time, despite lapse of 60 days under Section 193(4) of the Punjab Municipal Act. There was no implied consent by law of the complainant to raise the construction, as NOC was not received within stipulated time by the OPs.

10.    The District Forum has, thus, observed that there was no point in sending and submitting the site plans to the Senior Town Planner, Ludhiana. In case it was required so, the only objection raised by the Senior Town Planner Ludhiana is that the proposed site plan should be one instead of two on the same plot. To clear that objection, the complainants submitted the unified site plan on 02.01.2010. Except that, no other objection was raised by Senior Town Planner Ludhiana in letter Ex.R-11. Vide Ex.R-11 on the record, it was directed that  building bye-laws be not applied to the Senior Town Planner as no direction was required to be issued in the site plans. The site plans have been dealt with according to building bye-laws, which are not appropriate on the part of Municipal Council.

11.    The District Forum has, thus, appropriately observed that Municipal Council Moga should have approved the joint site plan Ex.A-20 submitted by the complainants, as advised by Senior Town Planner, Ludhiana in letter Ex.R-11. We find that order of the District Forum is supported by evidence and is correct and calls for no interference in this appeal by us.

12.    As a result of our above discussion, there is no merit in the  appeal  and same is hereby dismissed with no order as to costs.

13.    Arguments in this appeal were heard on 08.05.2015 and the order was reserved. Now the order be communicated to the parties.

14     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

           

                                                                          (J. S. KLAR)

                                                              PRESIDING JUDICIAL MEMBER

                       

                                               

                                                                    (VINOD KUMAR GUPTA)

                                                                             MEMBER

 

 

                                                               (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

May 14  2015.                                                                

(ravi)