Punjab

Patiala

CC/14/286

Arninder singh - Complainant(s)

Versus

Patiala urban Plaining and development - Opp.Party(s)

Sh Avtar Singh Tiwana

16 Feb 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

Complaint No. CC/14/286 of 15/10/2014

Decided on 16/02/2015

 

1. Avninder Singh son of Sh. Mohinder Singh.

2. Manpreet Kaur wife of Avninder Singh,

Both residents of VPO Rampur, Distt. Ludhiana.

3. Davinder Singh Sandhu son of S. Bhagat Singh, R/o House no.44, Punjabi Bagh, Patiala.

4. Avtar Singh Tiwana son of Sh. Jasmer Singh, R/o House no.8, Gill Enclave, Hira Nagar, Patiala.

….Complainants.

Versus

 

1. Patiala Urban Planning and Development Authority, Patiala through its Chief Administrator/ ACA, Urban Estate, PUDA Bhawan, Phase-II, Patiala.

2. Patiala Urban Planning and Development Authority, Patiala through its Estate Officer, PUDA Bhawan, Phase-II, Patiala.

3. Omaxe Ltd. through its M. D./ Authorized Representative, Office at 12, LSC, Kalkaji, New Delhi.

….Opposite parties.

 

Complaint under Sections 11 to 14 of the

Consumer Protection Act.

 

QUORUM

Sh. D. R. Arora, President Smt. Neelam Gupta, Member

Smt. Sonia Bansal, Member

Present:

For Complainants : Sh. Avtar Singh Tiwana Adv..

For Opposite parties no.1 & 2 : Smt. Kusum Sood Adv.

For Opposite party no.3 : None.

 

ORDER

D. R. ARORA, PRESIDENT:

1. It is the case of the complainant that complainants no.1 & 2 are the re-allottees of the plot no.E-143, complainant no.3 is the re-allottee of plot no.A-130 and complainant no.4 is the re-allottee of plot no.D-83 in respect of the plots situated in MEGA Township, Patiala Development Authority, Omaxe City, Baran, Sirhind Road, Patiala.

2. It is further averred that the terms and conditions were incorporated in the application meant for allotment of the plots. In the brochure issued by the OPs at the time of the booking, it was stated that the possession of the plots will delivered to the allottees / re-allottees within two years from the date of the allotment and it was further provided under clause 17 of the terms and conditions of the brochure that in case the possession of the plots was delayed beyond two years from the date of the allotment, all the liabilities and responsibilities shall be borne by Omaxe Ltd. i.e. OP no.3. However the OPs failed to deliver the possession of the plots to the complainants within the stipulated period of two years from the date of the allotment and rather a period of seven years had elapsed from the date of the booking of the plots.

3. It is further the case of the complainants that in the month of May, 2014, the Ops issued a letter to the complainants having demanded Rs.500/- per sq. yards towards the escalated price of the plots and also demanded that the amount be deposited within 30 days from the date of the issuance of letter by OP no.2. The price was escalated because of the enhancement of the compensation of the land acquired by State Government. The said demand raised by OP no.2 is said to be wrong and illegal.

4. It is further averred by the complainant that after the receipt of the demand letters, the complainant approached the OPs and requested them to provide the detail of the compensation and as to how the amount of Rs.500 per Sq. yards had been calculated and who disclosed thatthe same was calculated against the area of 5,62,289 Sq. yards. The said criteria adopted by the OPs is said to be not correct because the civil court enhanced the compensation in respect of the entire land i.e. 336.5 acres (16,28,660 Sq. yards). The compensation paid by OPs no.1 and 2 is approximately Rs.28.00 crores whereas the OPs have earned more than Rs.300 crores from the township.

5. It is also the plea taken up by the complainants that while calculating the amount of Rs.500/- per Sq. yards, the OPs have excluded the residential / commercial properties, which have yet not been allotted. Similarly the OPs have excluded the property reserved for IT Park and B Tech Institutions, whereas the amount of the compensation enhanced by the Civil Court pertains to the entire land.

6. It is further averred by the complainants that the allottees/ re-allottees have paid 95% of the price of the plot but the OPs have not handed over the possession of the same despite the lapse of a period of seven years. The complainants had got the plots for their own residence after getting the loan from the banks/ relatives. They have also paid the huge amount of interest. Under the threat given to the complainants vide the demand letter, they deposited the first installment with the OPs, which is liable to be refunded.

7. The complainants visited the OPs many a times and requested them to hand over the plots and to develop the infrastructure as committed by them but instead of doing the same, they were served with the demand notice. The said act on the part of the OPs is said to be an unfair trade practice also a deficiency in service. It is alleged that the complainants are entitled to a compensation in a sum of Rs.1 lac each on account of the harassment and the mental agony experienced by them and they are further entitled to a compensation of Rs.5 lac each because of the escalation in the cost of the construction and further the complainants are entitled to litigation cost of Rs.25000/-. Accordingly the complainants approached this forum though the present complaint brought u/s 12 of the Consumer Protection Act 1986 ( for short the Act) for a direction to the Ops to withdraw the demand letters annexures 4 to 6 and to refund the amount deposited by the complainants vide receipts annexures 7 and 8 and to pay the compensation as also the cost of the litigation in the terms as stated earlier.

8. On notice OPs appeared and file their written version, OPs no.1 and 2 having filed their written version jointly while OP no.3 filed its written version separately.

9. In the written version filed by OPs no.1 & 2, they have raised certain preliminary objections, interalia, that the complaint is barred by limitation; that the Forum lacks jurisdiction to try the complaint; that the complainants are not the consumer in respect of the OPs and that no deficiency of service on the part of the OPs has been made out by the complainants. As regard the facts of the complaint, the OPs have not denied the complainants being the re-allottees of the plot in Mega Township, Patiala Development Authority, Baran, Sirhind Road, Patiala. In the year 2011, there was an order of stay granted by the Hon'ble Punjab and Haryana High Court and therefore there occured a delay in delivering the possession and developing the area. Specifically the stay was applicable from 29/07/2011 to 26/9/2013 and therefore during the said period nothing could be changed/ done on the land as the matter was subjudice. The enhanced amount of Rs.500/- per sq. yard has been raised on the basis of the order of the Civil Court Patiala on account of the raise in the compensation given to the farmers in respect of their land. As per clause 14 of the brochure, the OPs were entitled to claim the enhanced price in respect of the plots from the allottees and it was also provided in the said clause that the compensation amount, if awarded by the Civil Court to the farmers, will be recovered solely from the allottees and the OPs no.1 and 2 would contribute no part in paying the same. The details of the calculations have been annexed with the written version and that the calculations have been made fairly. The allottees are not aware of the technicalities of the judgement.

10. It is further averred that the possession of the plots have already been offered to the allottees but they failed to get the same. It is denied that complainants are not liable to pay enhanced amount of compensation @ 500/- per Sq. Yard.

11. It is further averred by the Ops that they have entered into a joint development agreement with OP no.3 and received the amount of Rs.109 crores from it. After denouncing the other averments of the complaint, going against it, it was prayed to dismiss the complaint.

12. In the written version filed by OP no.3, it has also raised certain preliminary objections, interalia, that the complaint is liable to be dismissed as it exceedes pecuniary jurisdiction of this forum. The complainants are seeking withdrawal of the demand of Rs.1.5 lacs, approximately per allottee and also seeking the payment of Rs. 1 lac by way of compensation in respect of each complaint and further seeking the litigation expenses at Rs.1 lac per complaint. The total relief exceedes Rs.20 lac; that the complainants have not approached the Forum with clean hands as they have concealed the factum regarding the pendency of CWP No.8100 of 2011 qua the order of stay passed by the Hon’ble High Court. The development of the entire project was stalled on account of status quo order which stands vacated on 29-09-2013 because of the dismissal of the CWP. As regards the facts of the complaint, this OP has not denied the complainants being the re-allottees of the plots in Mega Township, Patiala Development Authority, Omaxe city, Baran, Sirhind Road, Patiala. The ops are playing the role of the developer in the project and from the very beginning it has been putting its sincere efforts in the development of the project but due to reasons beyond the control of the op because of the pendency of CWP No.8100 of 2011 and the passing of the order of status quo and the ops having lost a substantial time in pursuing the governmental procedures attributable to OPs no.1 and 2 in the matter of approval of the project at various stages, a lot of time was consumed, for which the OPs cannot be blamed. The non-delivery of the possession of the plots for a period of 7 years is misconceived in as much as the possession had to be delivered within 2 years from the date of allotment, which was done in June, 2009 and onwards and for the sake of arriving at the final date of delivery of possession, the period covered in the pendency of writ petition and the period consumed thereafter due to non-grant of permission by OPs no.1 and 2 to initiate the development work has to be excluded. This OP has supported the demand raised by OP no.2 being legal and as covered under clause 8 of the allotment letter. The calculations regarding the payment have been made by OPs no.1 and 2 and matter in that regard does not relate to the OP. The order regarding enhancement of the compensation was passed vide judgment dated 15/09/2012 but the order of status quo in the said CWP had continued till September 2013. After denouncing the other averments of the complaint, going against the OP, it was prayed to dismiss the complaint.

13. In support of their complaint, the complainants produced in evidence Ex.CA, the sworn affidavit of Sh. Davinder Singh Sandhu complainant along with documents Ex.C-1 to Ex.C-8 and their counsel closed the evidence. On the other hand on behalf of OPs no.1 and 2, their counsel tendered in evidence Ex.OPA the sworn affidavit of Sh. Manjit Singh, Estate Officer of the OPs along with documents Ex.OP-1 to Ex. OP-10 and closed their evidence. Similarly on behalf of OP no.3, its counsel tendered in evidence Ex.OPB the sworn affidavit of Sh. Varun Ghai, Deputy Manager (Legal) of the OP at New Delhi along with documents Ex.OP-11 to Ex.OP-25 and closed its evidence.

14. OPs no.1 & 2 filed their written arguments. We have examined the same, heard learned counsel for the complainant and OPs no.1 & 2, none having appeared on behalf of OP no.3 and gone through evidence on record.

15. The complainants have challenged the demand notices Ex. C-4 to Ex.C-6 in respect of the complainant Avninder Singh dt. 11/6/2014, Complainant Davinder Singh dt. 23/5/2014 and Ex.C-6 in respect of complainant Avtar Singh Tiwana dt. 28/5/2014, in respect of the escalated price of the plots no. E-143, A-130 and D-83 respectively @ 500/- per Sq. Yards.

16. It was submitted by Smt. Kusum Sood ld. Counsel for OPs no.1 & 2 that the Forum does not have the jurisdiction to decide the issue concerning the pricing of the plots because the pricing matter is an executive policy and that by now it is well settled law that the determination of the final price will not fall within the ambit of the Act. In this regard, she placed reliance upon the citations Jagdish Gurnani Vs Lucknow Development Authority 2010(1) CPR 237 (NC); Maharashtra Housing and Area Development Authority & Anr. Vs Manoharrao Madhavrao Dange & Ors. 2009(3) CPR 132 (NC); K.K. Gupta and others Vs H.P. Housing and Urban Development Authority through the CEO-cum-Secretary, Himachal Pradesh, Nigam 2007(3) CPR 60 and City and Industrial Development Corporation Maharashtra Ltd. Vs Sunita Naganath Gadewar 2009(4) CPR 274 of the Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Mumbai. In the case of the citation Jagdish Gurnani Vs. Lucknow Development Authority (supra), it was observed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi: “6. It also needs to be appreciated that the law by now is well settled that the determination of final price will not come within the ambit of Consumer Protection Act, 1986. This has been the view of this Commission starting with order of this Commission in the case of Himachal Pradesh Housing Board Vs. Surender Mohan Suneja & Anr, in which it was held, “… It has been repeatedly pointed out by this Commission pricing is not a factor falling within the purview of the scrutiny by the Consumer Forum, unless it be a case where there is a fixation of price by law or the price is marked on the container or on goods, where the transaction is one of Sale of Goods.” This was also reiterated by this Commission in the case of National Consumer Awareness Group (Regd.) Chandigarh Vs. The Housing Commissioner, Punjab Housing Development Board, Chandigarh in which it was held:

“CPA, 1986-Section 2(1) (e) Consumer dispute, pricing ‘price’, referred to in various sections is the price fixed by or under any law and not the price fixed otherwise. The price is determined by the Board in accordance with the procedure evolved by it and there is no statutory control over the fixation of the price and the same cannot, therefore, be interfered with. The pricing of the flats built by the public authority or plots developed by the authorities is not a consumer dispute.”

7. This was also confirmed by the Hon’ble Supreme Court in the case of Bareilly Development Authority and Another Vs. Ajay Pal Singh & Ors. in which it was held:

“When the brochure indicated estimated costs and other terms of allotment issues- fact that actual cost may increase or decrease is clearly indicated in brochure in view of which increase in cost of houses by development authority cannot be labelled as arbitrary and discriminatory.”

8. In the case of Ghaziabad Development Authority Vs. Gurudutt Pandey, RP No.152 of 2002 decided on 21-08-2002, this Commission relying upon the judgment of the Hon’ble Supreme Court in the case of Premji Bhai Parmar & Ors. Vs. Delhi Development Authority & Ors observed ‘that the price of the property was in the realm of contract between a seller and buyer. It was, in these circumstances, Supreme Court did not interfere.”

9. The Hon’ble Supreme Court in the case of Premji Bhai Parmar &Ors. Vs. Delhi Development Authority & Ors. (Supra) held that, “….Price of land, building material, labour charges and cost of transportation, quality and availability of land, supervision of management charges are all variable factors and enter into fixation of prices. There cost varies time-wise, place-wise and availability-wise. All these factors cannot be over-looked….”

17. On the other hand ld. Counsel for the complainants could not cite any judgement to the contrary and he simply contended that the complainants have approached this Forum because of the deficiency of service on the part of the OPs qua the unfair trade practice adopted by the OPs in working out the amount of Rs.500/- per square yards payable by the allottees/ re-allottees of the plots including the complainants in as much as the Civil Court vide its judgment dated 15/09/2012 enhanced the compensation in respect of the entire land measuring 336.5 Acres, which comes to 16,28,660 sq. yards but the OPs have apportioned the amount of the enhanced compensation by dividing the same with an area measuring 5,62,289 Sq. yards covered by the plots of different sizes. In other words, the learned counsel for complainants submitted that the amount of the enhanced compensation has not been recovered from the purchasers of the commercial property and the entire burden has been put on the shoulders of the residential plots.

18. It was also submitted by Sh. Avtar Singh Tiwana, learned counsel for the complainants that the complainants do not deny their liability to pay the amount of the enhanced compensation but the liability has been worked out excluding the commercial property.

19. We have considered the submissions. The enhanced amount of compensation awarded by the Civil Court has been demanded by the ops in accordance with clause 14 of the prospectus cum application form Ex.OP-5 which provides: “As per PUDA policy, if any compensation pursuant to land acquisition, is enhanced by the courts in favor of the land owners against the pending petitions for enhancement of compensation, the same shall be recovered from the allottees by Omaxe Ltd. and deposited with PDA.” However, the pricing of the flats falls within the domain of the ops because it is not the case of the complainants that the price has been fixed by operation of law. It has been observed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case of Jagdish Gurnani Vs. Lucknow Development Authority (Supra), “While in catena of judgments passed by this Commission and the Hon’ble Supreme Court, it has been held as referred to earlier that the price cannot become a matter of consumer dispute and it is clearly held that the parties shall be governed by the terms of the contract, which clearly spelled out in this case, that the price is tentative and final cost would be informed later on…..” In our case also it has clearly been provided under clause (14) of prospectus cum application form that the allottees will be liable to pay the amount of enhanced compensation, if so directed by the Civil Court. How the amount of the compensation enhanced by the Civil Court has to be apportioned is a matter of policy and the Forum has got no jurisdiction to entertain any objection on the same and consequently, we are of the considered view that the complaints brought before the forum cannot be entertained.

20. Now coming to the other aspect of the complaint that the complainants are entitled to a compensation in a sum of Rs.1 Lac each on account of the late delivery of the possession of the plots, in this regard, it was submitted by Smt. Kusum Sood, the learned counsel for OPs no.1 and 2 that the OPs had offered delivery of the possession to the allottees by virtue of the public notice Ex.OP-10 got published in the Daily Tribune dated 20/12/2009. There was no hitch on the part of the OPs in delivering the possession of the plots to the allottees. An allottee has to approach the OPs by making a request in writing to get the possession of the plot which is provided by way of demarcating the plot at the spot.

21. It was then submitted by Smt. Kusum Sood that in CWP No.8100 of 2007 titled as Harbhajan Singh and others Vs. State of Punjab and others, the parties were directed to maintain status quo vide order dated July 29^th 2011 as would appear from Ex.OP-21, the copy of the order passed by Hon’ble Punjab and Haryana High Court and that the said order remained operative till 26/09/2013, when the said CWP was dismissed as withdrawn as would appear from Ex.OP-22, the copy of order dt.26/09/2013 and therefore, no work of development could be carried out regarding the said plots. In case the allottees get the possession of the plots and they find that there is any lack of development, which has not been provided as per allotment letters, they can approach the competent authority of the ops and in case they fail to redress their remedy, they can have a resort to the process of law. But presently the complainants could not point out any deficiency of service on the part of the OPs and rather, in case, any allottee has not been able to get the possession of the plot, it is his/her own fault.

22. We have considered the submissions. The learned counsel for the complainants could not point out the case of any of the complainants who might have applied the OPs for delivery of the possession but the possession was not delivered to him/her, in the absence of which we are of the considered view that in case any allottee has not approached the OPs for possession of the plot allotted/ re-allotted to him/her, he cannot blame the OPs. Similarly in case the allottees/ re-allottees have any grievance with regard to the lack of amenities to be provided by the OPs in the Omaxe City, they can approach the competent authority of the OPs for redressing the remedy and in case they fail to redress the same, they are at liberty to redress the remedy under due process of law.

23. As an upshot of our aforesaid discussion, it would appear that whereas the complainants could not approach the Forum to get the issue regarding the price of the plots determined because that does not fall within the domain of the Forum and as regards other part of the relief sought by the complainants that they be awarded compensation on account of the deficiency in service on the part of the OPs in not having delivered the possession of the plots to the allottees/ re-allottees and in not having developed the Omaxe City, they have utterly failed to establish the same and resultantly, the complaint is bound to fail. It is important to note that pecuniary jurisdiction of the Forum would exceed the relief sought by the complainant in as much as the complainants have sought the compensation in a sum of Rs.1,00,000/- in respect of each complainant by way of compensation on account of the harassment and humilation suffered by them and a compensation of Rs.5 lac in respect of each complainant on account of the demand raised by the OP no.2 in the escalation of the price of the plot @ Rs.500/- per Sq. Yards and the said relief on those counts comes to Rs.30,00,000/- and thus the total relief exceeds Rs.20,00,000/-. The complaint is therefore, hereby dismissed.

Pronounced

Dated:16/02/2015

Sonia Bansal Neelam Gupta D. R. Arora

Member Member President