Punjab

StateCommission

CC/128/2017

Sanjeev Jain - Complainant(s)

Versus

Punjab Urban Development Authority PUDA - Opp.Party(s)

Munish Goel

11 Apr 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No.128 of 2017

 

                                                          Date of Institution   : 06.03.2017     

                                                          Order Reserved on : 09.04.2018

                                                          Date of Decision     : 11.04.2018

 

Sanjeev Jain s/o late Hari Krishan, R/o H.No. 3, Street No.30-B, Anand Nagar-B, Patiala                                                                                                                                                                                                                                                                    ….Complainant

                                                                       Versus

 

 

Punjab Urban Planning & Development Authority now Bathinda Development Authority, BDA Complex, Bhagu Road, Bathinda through its Estate Officer/Authorized Signatory.

 

                                                                            Opposite Party

 

Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

Present:-

          For the complainant         :  Sh. Manish Goel, Advocate

          For opposite party            :  Sh. Balwinder Singh, Advocate

  …………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                      

                     The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OP on the averments that he applied for one residential plot measuring 400 sq. yards in general category at Sugar Mill Budhlada, vide application no. 5299 with OP by depositing Rs.2,40,000/- on 31.01.2012 by taking loan from State Bank of Patiala. The complainant remained successful in draw of allotment of plots, which was held on 15.01.2013. Letter of intent dated 26.02.2013 was issued to him by OP. He further deposited Rs.3,60,000/- on 28.03.2013. He has deposited total amount of Rs.6,00,000/- being 25% of the total price of 400 sq. yard plot. The tentative price of plot was Rs. 24 lac as set out in letter of intent. As per clause 12 of letter of intent, the possession of plot was to be handed over after completion of development works at site or 18 months from the date of issuance of allotment letter, whichever occured earlier. OP was to give allotment letter within one month after deposit of 15% amount i.e. Rs.3,60,000/- by OP.  The complainant deposited the amount of Rs.3,60,000/- on 28.03.2013 with OP and as such, it was supposed to issue allotment letter within one month from 28.03.2013 uptill 27.04.2013, which has not been done. The complainant requested OP to issue allotment letter, but to no effect. The complainant came to know that OP conducted draw of lots on 03.06.2016 allotting plot no.177 to him. OP had not issued any allotment letter to complainant even after conducting draw of lots on 03.06.2016. The complainant wrote letter 31.08.2016 to OP for refund the deposited amount, which was received, vide diary no. 2073 dated 05.09.2016 in the office of OP. OP issued letter of allotment dated 08.09.2016. After receiving letter dated 31.08.2016 on 05.09.2016 from complainant for refund of his amount, the OP denied rightful claim of the complainant. The complainant further came to know that allotment letters were sent to successful applicants, but they have not able to give possession of the land because it was not transferred in their name. The development work would only start in the project after getting land transferred in the name of PUDA. OP published a scheme of allotment of residential plots to general public without any land in their name in 2012, which amounts to unfair trade practice. OP failed  to issue allotment letter since 2013 till 2016. OP vide office order dated 26.09.2016, illegally held that complainant would be entitled to refund of the deposited amount after deducting 10% amount of total consideration amount. This office order is against spirit of law and is smitten by unfair trade practice. The complainant prayed for below noted reliefs:-

i)        OP be directed to modify the office order dated 26.09.2016 and       to refund balance amount of Rs.2,41,065/- along with interest        @ 15% from the date of deposit till refund.

ii)       OP be directed to pay 15% interest on Rs.3,58,935/- from the           date of deposit i.e. 28.03.2013 till refund i.e.  07.12.12016 on     principal amount of Rs.3,58,935/- till payment.

iii)      OP be directed to pay Rs. 2 lac as compensation for mental   harassment and Rs.50,000/- as costs of litigation.

2.                Upon notice, OP appeared and filed written reply and contested the complaint of the complainant vehemently by raising preliminary objections that complainant is resident of Patiala and he applied for allotment of plot at Budhlada  for speculative purposes to generate profits only. The complainant has no cause of action or locus standi to file the complaint. The complaint is not maintainable. The complaint is barred by Section 174 of Punjab Regional and Town Planning and Development Act 1995. The complainant has concealed the material facts from the Forum. The complainant is estopped from filing the complaint by his act and conduct. On merits, this fact was not disputed by OP  that complainant applied for plot with OP and deposited the amount with it. OP issued allotment letter to complainant, vide no.6090 dated 08.09.2016 and hence no cause of action accrued to complainant to file the complaint. This fact was denied by OP that it was supposed to give allotment letter within one month after deposit of 155 amount i.e. Rs.3,60,000/- . This fact was denied that complainant contacted OP  for issuance of allotment letter. The draw of scheme was conducted on 03.06.2016. Since the allotment of plots in the OUVGL schemes, being centrally controlled by Head Office PUDA Mohali and thereafter approval of the specimen of allotment letter was issued. This fact was admitted that application dated 31.08.2016 of complainant was received in the office of ACA on 05.09.2016, vide diary no. 2073, whereas it has been received in the office of OP, vide diary no. 4916 dated 07.09.2016. The application was under process for issuance of allotment letter to complainant and allotment letters are issued by computer branch. Both the processes are different from each other. OP denied that it indulged in any unfair trade practice. As per clause 23 of letter of intent, OP is justified to deduct 10% of the amount of total consideration for refund. The transfer of the land had been approved by government/OUVGL Empowered Committee as far back as 26.07.2011 to OP much earlier and process of completion of formalities was in progress including removal of machinery and vacation of two kothis. The meeting of empowered committee had been actually held on 23.09.2011, which seems to be typographical error only, as mentioned otherwise. OP denied any deficiency in service and unfair trade practice on its part and it prayed for dismissal of the complaint

3.                The complainant tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-2 to Ex.C-11 and closed the evidence. As against it: OP tendered in evidence affidavit of Vinod Kumar Bansal Estate Officer of OP as Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-5 and closed the evidence.

4.                We have heard learned counsel for the parties and have also examined the record of the case.

5.                It is not the disputed fact that complainant applied for plot with OP by booking it and deposited Rs. 6 lac with OP. This fact is amply proved on record, vide receipts Ex.C-1 and Ex.C-3. OP issued letter of intent, vide no. PUDA EO/2013/1596 dated 26.02.2013 to the complainant. Clause 12 of letter of intent Ex.C-2 makes it clear that possession of the plot shall be handed over to the allottee after completion of development works at site or 18 months from the date of issue of allotment letter, whichever is earlier. It makes it clear that 18 months period was to be reckoned from the date of issue of letter of allotment letter, as per clause 12 of letter of intent. As per clause 5 of letter of intent, in case of failure to make 15% payment within stipulated period, allocation is liable to be cancelled. However, this period can be extended up to 180 days, on making a written request within 30 days from the date of issue of letter of intent. Surcharge and penal interest for the delayed period will be charged, otherwise earnest money already deposited shall be forfeited. Clause 22 of letter of intent Ex.C-2 is reproduced as  under :

          "In case of refusal to accept the offer, such refusal in writing    through a registered post should be received within 30 days from the date of issue of letter of intent, 10% amount of earnest      money shall be forfeited. In the event, such refusal is received    after a period of 30 days from the issue of letter of intent, entire         earnest money deposited shall be forfeited.

It is, thus, clear from perusal of clause 22 that the applicant can refuse to accept offer through registered post within 30 days from the date of issue of letter of intent. 10% amount of earnest money shall be forfeited in case the  refusal is received after a period of 30 days from the issue of letter of intent, entire earnest money deposited shall be forfeited. This clause makes it clear that in case applicant sought refusal through registered post within 30 days from the date of issue of letter of intent then 10% of earnest money shall be forfeited, whereas in case of such refusal after a period of 30 days therefrom, the entire earnest money deposited shall be forfeited. The stress of counsel for OP is on clause 22 of letter of intent in this case to the effect that complainant has not submitted refusal within 30 days from the date of issue of letter of intent. The counsel for complainant relied upon application Ex.C-4 dated 31.08.2016 that he has withdrawn from the scheme by seeking refund of the  deposited amount before 30 days from date of issue of letter of intent. This application Ex.C-4 dated 31.08.2016 has been received in the  office of OP on 05.09.2016 prior to issuance of letter of intent. As per clause  7(x) of allotment letter Ex.C-5 that in case of breach of any conditions of allotment or regulations or non-payment of any amount due together with the penalty, the plot or building, as the case may be, shall be liable to be resumed and in that case an amount shall be forfeited as per provision of Section 45(3) of the Punjab Regional and Town Planning and Development Act 1995. The impugned order has been passed by OP, vide Ex.C-6 no. 6467 dated 26.09.2016 forfeiting 10% of the amount out of the deposited amount of complainant. This letter has been assailed by counsel for complainant before us. The counsel for complainant mainly relied upon information supplied by Naib Tehsilar Bathinda under RTI Act to Public Information of BDA Bathinda to the effect that land of Budhlada Sugar Mill has not been acquired by PUDA uptil 22.11.2016 and it has been transferred to PUDA on 23.09.2016 under OUVGL scheme only. OP refunded amount of Rs.3,58,935/- by deducting the amount out of the deposited amount of complainant, vide Ex.C-9 letter dated 07.12.2016 on the record and Ex.C-10 be referred in this regard. OP also mainly relied upon Ex.OP-1 the noting dated 21.03.2012 to the effect that land of Sugar Mill Budhlada has been transferred to PUDA as per order of government dated 26.07.2011 and PUDA has received the possession. This document has shown that Naib Tehsildar Bathidna supplied the information under RTI Act to Public Information Officer with ultra motive only, which is not proper on the part of a public servant. The document Ex.OP-1 has, thus, proved that transfer of the land stood effected in the name of PUDA, as per order of government dated 26.07.2011 from Sugar Mill Budhlada. Ex.OP-1 is official document, which has proved that Naib Tehsilar gave deliberately wrong year in the information supplied by him under Right to Information Act. It is highly deprecable and it is for higher authorities to look into this matter. Ex.OP-2 is letter dated 02.04.2012 from Executive Engineer PUDA regarding transfer of 124 acres 7 marlas land at Budhlada, as per mutation no. 23059 and possession has been taken on 21.03.2012. Ex.OP-3 is document relied upon by OP to the effect that civil works to the extent of 78%, public health works 80% and electrical works 70% has been completed in the project. Ex.OP-4 photographs to this effect relied upon by OP in this case. The empowered committee approved transfer of Sugar Mill Budhlada 's land to PUDA, as per agenda no. 32.5 on 23.09.2011, vide Ex.OP-5. The information supplied by Naib Tehsilar under RTI Act to Public Information Officer is, thus, erroneous.

6.                We have, thus, come to this conclusion from appraisal of entire record that OP became owner of the land due to its transfer in the year 2011. The submission of counsel for complainant is that OP invited the booking applications without being owner is of no consequence. The next submission of counsel for complainant is that OP has not delivered the possession by not developing the project. As per clause 12 of letter of intent Ex.C-2, the possession of the plot was to be handed over after completion of development work at site or  18 months from the date of issue of allotment letter, whichever is earlier? No specific period of completion of development work has been given in clause 12 of letter of intent. We can count 18 months from the date of issue of letter of intent in this case. Allotment letter was issued on 08.09.2016, vide Ex.C-5. 18 months period would come to an end on 07.09.2018. The complainant has instituted this complaint on 06.03.2017 only. As per clause 22 and 23 of letter of intent and clause 7(x) of letter of intent Ex.C-5 the OP is justified in deducting the amount as per order dated 26.09.2016, vide Ex.C-6. The complainant has not applied within a period of 30 days for refund of the deposited amount and thereafter as per clause 22 of letter of intent Ex.C-2, OP was to proceed according to law only.

7.                Consequently, we find that reliance of complainant on law laid down in First Appeal no. 135 of 2016 titled as "Punjab Urban Planning and Development Authority versus Krishna Devi" decided on 21.11.2016 by this Commission is not attracted to the factual controversy of this case. The reliance of complainant on law laid down by National Commission in "Kamal Sood versus DLF Universal Ltd" reported in 2007 STPL 9386 NC is not applicable in this case,  as complainant failed to assert that OP had no sanction  with it when they advertised this project. Consequently, we find that the entire mistake cropped up  in this case on account of wrong information given by Naib Tehsildar to Public Information Officer contained in Ex.C-8, which has been found to be erroneous by Ex.OP-1 and Ex.OP-2.

8.                As a result of our above discussion, we have not come across any illegality or material infirmity in the order passed by PUDA/OP. There is no merit in this complaint and the same is hereby dismissed by leaving the parties to bear their own costs.

9.                Arguments in this complaint were heard on 09.04.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

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

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

April 11,  2018                                                               

(ravi)