Punjab

Patiala

CC/15/68

A S Chawla - Complainant(s)

Versus

PUDA - Opp.Party(s)

Sh Amar Singh

02 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

 

                                      Complaint No. CC/15/68 of 30.3.2015

                                      Decided on:        2.9.2015

 

1.      A.S.Chawla S/o Sh. Jagat Mohan Singh.

2.      Surjan Singh S/o Sh.Gurcharan Singh both residents of 260, Sector 13, Extension, Urban Estate, Karnal Haryana, through their GPA Smt.Surinder Kaur W/o Sh.A.S.Chawla R/o above given address.

 

                                                                   …………...Complainants

                                      Versus

 

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

                                                                   …………….Op

 

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

 

                                      QUORUM

 

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

                                      Smt.Sonia Bansal,Member                               

                                                                            

Present:

For the complainants: Sh.Amar Singh , Advocate

For Op       :                  Smt.Kusum Sood,Advocate

                                     

                                         ORDER

D.R.ARORA, PRESIDENT

1. The complainants have brought this complaint under Section 12 of the Consumer Protection Act,1986 ( for short the Act) through their holder of the General Power of Attorney namely Smt.Surinder Kaur alleging that the complainants had purchased commercial site, SCO No.9, measuring 161.25 sq. yards situate in Sher-e-Punjab Market, Patiala by way of auction held on 27.9.2004. The allotment letter was issued in the name of the complainants. Smt.Surinder Kaur, their attorney got the plot registered in their favour on 17.12.2010.
2. The complainants had submitted the building plan regarding the said SCO no.9 with the Op in the month of March,2011 having deposited Rs.1,09,000+ Rs.87,000/- as non-construction charges. The complainants as also their attorney met the Op from time to time in getting the building plan approved and NOC issued. The correspondence was also made with the Op on 16.10.2007, 20.10.2011, 7.9.2012 and 18.2.2013.The Op replied vide letters dated 22.3.2013, 20.10.2011 and letter No.741 dated 19.12.2011.
3. It is further averred that after a lapse of about 2 years, the building plan was returned with certain vague objections vide letter dated 5.3.2013. The complainants immediately resubmitted the plan with the Op but no action was taken. Had the building plan been approved within a reasonable time , the complainants would have started the construction at the earliest and could avoid the extra cost of the material and the same defeated the purpose of purchasing the plot as the same was purchased for self- employment and for earning livelihood by the complainants.
4. It is further averred that as per the terms and conditions of the allotment letter, the construction work was to be completed within a period of three years from the date of the allotment letter after getting the building plan duly sanctioned from the concerned Estate Officer. The complainants however, having pursued the approval of the building plan for a period of two years decided to dispose of the plot so as to avoid further harassment and financial loss on account of the delay in the approval of the building plan. The complainants had to pay the penalty in the form of non construction charges to Rs.1,09,000/-+ Rs.87000/- on 7.5.2011. Besides the complainants had to deposit Rs.5,03,101/- vide letter dated 30.7.2014 for getting the N.O.C. in order to sell the plot. The inordinate delay on the part of the Op in according the sanction of the building plan and to issue the NOC is said to be a deficiency in service as also unfair trade practice on the part of the Op. The complainants got the op served with the legal notice dated 15.12.2014 but the same was not responded to. The complainants have brought this complaint against the Op seeking a compensation on account of the harassment and mental agony experienced by the complainants because of the delay caused in approving the building plan and further to direct the Op to refund the amounts deposited by the complainants with interest @12% .
5. On notice, the Op appeared and filed the written version having raised certain preliminary objections, interalia , that  the complaint is liable to be dismissed on the ground of mis-joinder and non joinder of necessary parties; that the complainants do not fall within the definition of the consumer as provided under the Act.The plot pertains to shop-cum-office , going to show that the property is commercial one and the complainants cannot seek any relief regarding the commercial purpose and that the complainants have already disposed off the property and therefore, they have ceased to be the allottees of the property. As regards the facts of the complaint, the Op has not denied the complainants being the purchasers of SCO No.9, measuring 161.25 square yards situate in Sher-e-Punjab Market, Patiala by way of auction held on 27.9.2014.It is however, averred that the attorney of the complainants namely Smt.Surinder Kaur had submitted the site plan vide diary No.426 dated 9.5.2011 for the approval thereof. The site plan was referred to the District Town Planner, Patiala vide letter No.2438 dated 10.5.2011 for inspection and approval. The District Town Planner, Patiala returned the site plan vide letter No.1925 dated 2.9.2011 disclosing the shortcomings and raising the objections. After the rectification of the objections, the site plan was again sent to the District Town Planner,Patiala for approval vide letter No.5642 dated 30.9.2011. Till the date of the filing of the written version, the Op had not received the approval from the District Town Planner, Patiala. The Op had sent the reminders to the District Town Planner, Patiala repeatedly including letter No.7412 dated 19.12.2011. The Op is not, in any way, deficient regarding any services. It is the District Town Planner, Patiala, who is required to approve the site plans and sanction the same as per the terms and conditions of the site. The District Town Planner,Patiala is a necessary party.
6. It is further the plea taken up by the Op that the site plan of the complainants was returned with specific objections vide letter No.5022 dated 5.3.2013 asking for certain requirements. The complainants had again submitted the site plan vide diary No.7088 dated 4.6.2014 with the Op and without any delay. The rectified site plan was again sent to the District Town Planner, Patiala vide letter No.12101 dated 18.6.2014.Copy of the zoning was also sent alongwith inspection. Subsequently a copy of the control sheet was also sent to the District Town Planner,Patiala vide letter No.14926 dated 18.7.2014 as desired. However, the District Town Planner, had not replied till the date of the filing of the written version. The delay in the sanctioning of the site plan has been caused because of the repeated shortcomings in the site plan submitted by the attorney of the complainants and for which the Op is not responsible.
7. It is also the plea taken up by the Op that the complainants had not applied for the sanctioning of the site plan for more than 7 years after the allotment of the plot. The complainants had to pay the non-construction charges as per the terms and conditions applicable to the allotment. During the correspondence made between the Op and District Town Planner, Patiala, the intimation was duly sent to Sh.P.S.Virdi, the Chattered Engineer of the complainants to co-ordinate with the office of District Town Planner, Patiala but no such co-ordination was made by the complainants or their chattered engineer on their behalf and therefore, the complainants were responsible for the delay in the sanctioning of the site plan.The complainants obtained the No objection certificate from the Op after making the necessary payment. The complainants cannot seek any refund of the amount already paid by them legally. After denouncing the other averments of the complaint, going against the Op, it was prayed to dismiss the complaint.
8. In support of their complaint, the complainants tendered in evidence Ex.CA, the sworn affidavit of Sh.A.S.Chawla, Ex.CB, the sworn affidavit of Smt.Surinder Kaur, the holder of the GPA of the complainants alongwith documents Exs.C1 to C15 and their counsel closed the evidence.
9. On the other hand, on behalf of the Op, its counsel tendered in evidence Ex.OPA, the sworn affidavit of Sh.Manjit Singh,Estate Officer of the Op alongwith documents Exs.OP1 to OP4 and closed its evidence.
10. The parties failed to file the written arguments. We have heard the learned counsel for the parties and gone through the evidence on record.
11. First of all we take up the objection raised by the Op that the complainants cannot maintain the complaint on the ground that the complainants are not the consumers as per the definition of the same given under Section 2(1)(d)(i) of the Act because the complainants purchased the commercial plot No.9 situate in Sher-e-Punjab Market, Patiala for doing the trade as would appear from Ex.C2, the copy of the allotment letter. In this regard, Smt.Kusum Sood, the learned counsel for the Op placed reliance upon the citation Harnam Singh versus Shalimar Estate Prv.Ltd.& Ors. 2013(1)CPC484 of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi. It was observed by the Hon’ble National Commission: “6.Counsel for the petitioner explained that the said show room was purchased for a consideration of Rs.80 lakhs. He would not show to this Commission that showroom is for some charitable purpose or for some self-employment of the petitioner. Nothing was produced on record to show what is the occupation of the petitioner. This was not brought to light from where this much huge amount has come into the hands of the petitioner. The petition is without merit and hence dismissed in limine.”
12. On the other hand, it was submitted by Sh.Amar Singh, the learned counsel for the complainants that it is the positive plea taken up by the complainants in para no.7 of the complaint that the purpose of purchasing the plot was self employment and for earning livelihood by the complainants, a fact further corroborated by Smt.Surinder Kaur, the General Attorney of the complainants, in her sworn affidavit Ex.CB. He also placed reliance upon the citation Sanjay Kumar Joshi Versus Municipal Board, Laxmangarh and another 2014(6) Recent Apex Judgments(R.A.J.)108 : 2014 (4) R.C.R. (Civil) 832 : 2014 (12) Scale 45: 2015(2) Law Herald (SC)1041:2015(2)Law Herald 1573. In the case of the citation, the Hon’ble Supreme Court of India placed reliance upon the citations National Seeds Corporation Ltd. V.M.Madhusudan Reddy reported in 2012(1)R.C.R.(Civil) 838: 2012(1)Recent Apex Judgments ( R.A.J.)150 : (2012)2 SCC 506  of the Hon’ble Supreme Court , where in it was held that if any person who is earning his livelihhood by self- employment and has entered into  commercial transaction, is a consumer within the definition of the Act. In the case of the citation, the appellant had purchased the commercial plot for commercial purpose but it was observed by the Hon’ble Supreme Court that  in view of the plea taken up by the appellant that he had purchased the plot in question for earning his livelihood and therefore, the exclusion of the sale of the plot for commercial purposes is not attracted to the situation of the case.
13. We have considered the submissions and are of the considered view that there being a specific averment made by the complainants that they had purchased the plot for self employment so as to earn their livelihood, the case of the complainants is covered under the explanation given to section 2(1)(d)(i) of the Act, which is in the following terms: Explanation-For the purposes of this clause,”commercial purpose” does not include use by  a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment”
14. Now coming to the other plea taken up by the Op that since the complainants have already disposed of the plot, they are no longer the allottees of the Op and consequently they are no longer the consumers. In this regard Smt.Kusum Sood, the learned counsel for the Op placed reliance upon the citations Subhash Sharma(Dr.) Versus Haryana Urban Development Authority & Ors.2013(3)CPC 103,Sukhbir Singh Versus Haryana Urban Development Authority 2013(1)CPC 85, Partap Singh Yadav Versus Haryana Urban Development Authority 2013(1)CPC140 and Jagjit Singh Versus H.U.D.A.& Anr. 2012(3)CPC478, all of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi. We have gone through the said citations but the same can not be applied to the facts of the present case because in the case of the first citation, the complainant/petitioner had surrendered the plot on account of financial constraints and he no where stated in the surrender letter that he was surrendering the plot on account non development of the area.It was an admitted fact that the complainant had received surrendered value of the plot and only after that complaint had been filed. In the case of the second citation also it was observed that the complainant had already surrendered the plot and received the refund. In the case of the third citation, the complainant had surrendered the plot as he could not deposit the enhanced installment and the Op/respondent had refunded the amount after having deducted 10% earnest money. It was observed by the Hon’ble National Commission that once the petitioner had received the entire deposited amount unconditionally and he also got the cheque encashed, petitioner ceased to be a ‘consumer’. Relationship of the consumer and service provider between the parties ,if any, came to an end unconditionally. In the case of the fourth citation also the complainant had surrendered the plot and the Op/respondent refunded the amount of Rs.66,454/- against the original amount of Rs.1,28,219/-. The grouse of the complainant was that a sum of Rs.61,765/- was wrongly debited. It was observed by the Hon’ble National Commission that the complainant surrendered the plot voluntarily. He accepted the cheque sent by the respondent without demur. He should not have accepted the amount without raising any objection. It was observed by the Hon’ble National Commission that it was well settled that after surrender of the plot and getting the refund of the deposited amount, the complainant does not remain to be a ‘consumer’.    
15. In our case, the complainants had not any occasion to surrender the plot purchased by them by way of public auction and the grievance of the complainants is that an uncalled for delay was caused by the Op in getting the building plan sanctioned from the District Town Planner, Patiala . In this regard, it is the plea taken up by the Op that it is the District Town Planner, Patiala  , who is to accord the approval for the building plan and the Op is not competent for the same. The Op did its best in referring the matter to the District Town Planner, Patiala and sending the reminders. The complainants should have joined the District Town Planner, Patiala  as an Op, which was a necessary party. In this regard, it is the plea taken up by the Op that Smt.Surinder Kaur, holder of the GPA of the complainants had submitted the building plan vide diary No.426 dated 9.5.2011 and the same was referred to the District Town Planner, Patiala  vide letter No.2438 dated 10.5.2011 for inspection and approval. The District Town Planner,Patiala returned the site plan vide letter No.1925 dated 2.9.2011 raising the objections and disclosing the shortcomings. After rectification of the objections, the site plan was again sent to the District Town Planner,Patiala   for approval and inspection vide letter No.5642 dated 30.9.2011. The Op sent the reminders to the District Town Planner, Patiala   repeatedly including  letter No.7412 dated 19.12.2011. It is also the plea taken up by the Op that the site plan of the complainants was returned with certain objections vide letter no.5022 dated 5.3.2013 calling for their compliance with certain requirements. The complainants submitted the site plan again vide diary No.7088 dated 4.6.2014 with the Op and the Op without any delay sent the rectified site plan to the District Town Planner,Patiala  vide letter No.12101 dated 18.6.2014 alongwith copy of zoning and subsequently a copy of the control sheet was also sent to the District Town Planner, Patiala   vide letter No.14926 dated 18.7.2014 but till the date of the filing of the written version, the Op had not received the approval from the District Town Planner, Patiala  .The said plea has further been corroborated by the Op byvirtue of the sworn affidavit Ex.OPA of Sh.Manjit Singh, Estate Officer of the Op and therefore, it would appear that the building plan has to be approved by the District Town Planner, Patiala   and not by the Op, a fact not rebutted by the complainants in any manner. The Op cannot be held responsible for the delay in the approval of the building plan by the District Town Planner. We are of the considered view that the complainants should have joined the District Town Planner as an Op because for the deficiency on the part of the District Town Planner, the Op cannot be held liable. Simply because in the allotment letter, Ex.C2, it is mentioned under Clause 5, pertaining to Construction of building that construction on site shall be completed within a period of three years from the date of issue of allotment after getting the building plan duly sanctioned from the concerned Estate Officer, does not mean that the building plan has to be sanctioned by the Estate Officer of the Op. It only means that the building plan has to be got approved with the co-ordination of the Estate Officer of the Op . From the plea taken up by the Op and the evidence lead by the Op, it can not be said that the Estate Officer of the Op had not co-operated with the complainants in getting the building plan approved. This can be very much appreciated by looking into the letter Ex.C15 dated 19.12.2011, written by the Estate Officer of the Op to the District Town Planner, Patiala and Ex.OP2, the letter dated 5.3.2013 written by the SDE (building) of P.D.A. Patiala to Smt.Surinder Kaur as also the letter bearing diary No.5575 dated 20.11.2011 written by the Op to District Town Planner.

              Even if, for the sake of arguments, it is stated that the Estate Officer of the Op was responsible in getting the building plan sanctioned and he failed to do so, the complainants cannot seek any compensation against the Op on that count because once the complainants submitted the site plans in accordance with rule 5 of the Punjab Urban Planning & Development Authority(building) Rules,1996 ( for short the Rules) with the competent authority and if, the competent authority neglected or omitted within 60 days of the receipts from the complainants, valid application, complete in all respects, to erect a building, to pass orders sanctioning or refusing to sanction such an erection under Rule 12, the plans shall without prejudice to the provisions of the Rules and their restrictions specified for erection of buildings shall be deemed to have been sanctioned and the applicant may proceed with the erection of building or carry out any development work as described in the application or in any accompanied document but not so as to contravene any of the provisions of  The Punjab Regional and Town Planning & Development Act,1995 and the rules and the restrictions specified for erection of the buildings. Thus, the complainants were very much entitled under rule 12 of the Rules to start erecting the building as per the site plan submitted by them before the Estate Officer of the Op after the expiry of a period of 60 days from the date of the submissions of the same, in case the orders for sanctioning the same or refusal thereof were not passed by the competent authority and therefore, the complainants could not make any complaint about any delay in the passing of the orders sanctioning or refusing to sanction the site plans.

16. As regards the issuance of the NOC at a delayed time by the Op, it is the plea taken up by the complainants that they applied for the NOC on 30.7.2014. Ex.OP4 is the NOC given by the Estate Officer of the Op to Smt.Surinder Kaur, the attorney of the complainants vide letter dated 25.8.2014. Therefore, it cannot be said that there was any uncalled for delay in granting the NOC.
17. As an upshot or our aforesaid discussions it would appear that the complainants have not been able to establish any deficiency of service in the matter of according the approval for the building plan because this had to be done by the District Town Planner, Patiala and therefore, the complainants cannot seek any compensation against the Op. Consequently, the complaint is hereby dismissed.

Pronounced

Dated: 2.9.2015

 

          Sonia Bansal                Neelam Gupta                        D.R.Arora

    Member                     Member                                 President