0. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C.No.65 of 8.3.2007 Decided on :21.6.2007 <br /> <br /> Gurtej Singh S/o Sh. Bikkar Singh S/o Sh. Badan Singh, R/o Namdev Nagar, 40' Street, H. No. 1573, Bathinda.<br /> .... Complainant<br /> Versus <br /> 1. Punjab Urban Development Authority, Head Office, Chandigarh, though its Chief Administrator.<br /> 2. Estate Officer, Punjab Urban Development Authority, Bhagu Road, Bathinda.<br /> ..... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Ashok Gupta, Advocate<br /> For the opposite party : Sh. Ajitinder Singh Chahal, Advocate<br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. This is a complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) which has been preferred by the complainant seeking direction from this Forum to the opposite parties to deliver him possession of plot measuring 200 Sq. Yards bearing No. 473-C or in the alternative, to deliver possession of alternative plot of this size as he is ready to bear the cost of extra area, if any; pay Rs.3,00,000/- on account of escalation in the cost of construction; Rs.2,00,000/- as compensation on account of mental<br /> <br /> tension, agony and loss of physical health and on account of the fact that he has been compelled to live in a rental house; Rs.1,91,760/- received as interest on instalments without delivering possession of the plot and Rs.5,500/- as cost of litigation.<br /> 2. Version of the complainant lies in the narrow compass as under :-<br /> Open auction of plot No. 473-C (Corner) measuring 200 Sq. Yards in phase 3, Part-II, Urban Estate, Bathinda was held by the opposite parties. Complainant had given the bid which was accepted by the opposite parties. This plot was allotted to him vide allotment letter No. 10665 dated 8.10.2003. As per terms and conditions of the opposite parties, he had deposited 25% of the total price vide receipts dated 4.8.2003 and 4.9.2003/15.9.2003. Opposite parties were duty bound to deliver possession of the plot within 90 days from the date of allotment. Instead of handing over the possession, they insisted him to deposit the amount of instalments as per schedule in the allotment letter. According to the schedule, first instalment was payable on 6.8.2004 and the last/6th instalment was to be paid on 6.2.2007. Due to the fact that possession of the plot has not been delivered, he could not deposit the instalments in time. Opposite parties got the due instalments deposited from him alongwith penal interest on 14.2.2006. Thereafter, he is repeatedly approaching the opposite parties for delivering the possession. Various letters dated 30.9.2006, 7.11.2006, 13.11.2006, 22.11.2006, 28.11.2006, 30.11.2006, 7.12.2006, 22,12,2006, 12.1.2007 & 19.2.2007 were sent with the request that possession of the plot be delivered, but to no effect. He has already deposited Rs.7,400/- on 18.7.2006 as fee for approval of the building plan for construction. From reliable sources, he has come to know that area of this plot is less than 200 Sq. Yards due to which opposite parties are not delivering the possession. In these circumstances, he alleges deficiency in service on the part of the opposite<br /> <br /> parties. He claims refund of Rs.74,731/- received by the opposite parties as<br /> penal interest alongwith interest @ 18% P.A from the date of deposit till realization as well as interest at this rate on the amount of instalments.<br /> 3. On being put to notice, opposite parties filed their version taking legal objections that complainant has not served any legal notice; this Forum has got no territorial jurisdiction to entertain and try this complaint; complaint is not maintainable in the present form and it has been filed on false facts. They do not deny the allotment of the plot bearing No. 473-C to the complainant and issuance of the allotment letter No. 10665 dated 8.10.2003. Similarly, there is no specific denial about the deposit of 25% of the price of the plot by the complainant vide receipts dated 4.8.2003 and 4.9.2003/15.9.2003. According to them, possession was to be delivered to the allottee within 90 days from the allotment. If it is not taken by the allottee, the same would be deemed to have been delivered on the expiry of 90 days. First instalment was to be paid on 6.8.2004. Full amount was paid on 14.2.2006. Letter for taking possession was received from the complainant. Demarcation of this plot was to be given by the J.E. It had come to the notice of the Punjab Urban Planning & Development Authority (Here-in-after referred to as PUDA) that electricity transformer and electric poles are there in the plot. Demarcation could not be given. Report was submitted by the J.E. Letter No. 163-64 dated 24.1.2007 was written by opposite party No. 2 to Superintending Engineer, PUDA, Patiala and Sub Divisional Engineer, PUDA for removal of Transformer, electric poles and wires. Letters dated 1.3.2007 & 14.3.2007 were also sent to Divisional Engineer (Electrical), PUDA, Patiala for removal of the Transformer from plot No. 473-C for delivering the possession. According to them, Electric Wing of PUDA does not come under Estate Officer, Bathinda. Every effort is being<br /> made for shifting the Transformer from this plot at the earliest for handing over physical possession to the complainant. They deny the remaining averments in<br /> the complaint.<br /> 4. In support of his allegations and averments in the complaint, Gurtej Singh complainant tendered into evidence photocopies of letters (Ex.C.1 to Ex.C.11, Ex. C.14, Ex.C.15 & Ex.C.27 to Ex.C.29 ), photocopies of applications dated 7.11.2006 & 30.9.2006 (Ex.C.12 & Ex.C.13), photocopy of allotment letter dated 8.10.2003 (Ex.C.16), photocopies of receipts (Ex.C.17 to Ex.C.24), photocopies of cuttings from the newspapers (Ex.C.25 & Ex.C.26), photocopy of report of J.E (Ex.C.30), photocopy of report of Bandhu Associates dated 31.5.2007 (Ex.C.32), photocopy of site plan (Ex.C.33 to Ex.C.34), photograph (Ex.C.35) and his own affidavit (Ex.C.31).<br /> 5. On behalf of the opposite parties, reliance has been placed on the affidavit (Ex.R.1) of Sh. Pirthi Singh and photocopies of letters dated 16.4.2007, 24.1.2007, 1.3.2007 & 14.3.2007 (Ex.R.2 to Ex.R.5).<br /> 6. We have heard the learned counsel for the parties. Apart from this, we have perused the record.<br /> 7. From the facts and circumstances, material facts do not remain in dispute. They are that plot No. 473-C was allotted to the complainant by the opposite parties in an open auction. Allotment letter dated 8.10.2003, copy of which is Ex.C.16, was issued. 25% of the saleable price of the site was deposited by him. Possession of this plot was to be handed over to the complainant within 90 days from the issuance of the allotment letter. Opposite parties have not delivered possession within 90 days from the date of issuance of the allotment letter. Total price of the plot as per allotment was RS.7,70,000/-. Balance payment of 75% could be made by the complainant either in lumpsum without any interest within 60 days from the date of auction or in six equated half-yearly instalments alongwith interest @ 15% P.A as indicated in the payment schedule in para No. 3.2 of the allotment letter which<br /> is reproduced as under :-<br /> Instalment Due date Principal Interest Total amount<br /> Number Amount payable<br /> <br /> Ist 6.8.2004 96,250 69,300 1,65,550<br /> 2nd 6.2.2005 96,250 28,875 1,25,125 <br /> 3rd 6.8.2005 96,250 23,100 1,19,350 <br /> 4th 6.2.2006 96,250 17,325 1,13,575 <br /> 5th 6.8.2006 96.250 11,550 1,07,800<br /> 6th 6.2.2007 96,250 5,775 1,02,025 <br /> 8. In case of non-payment of instalments by due date, allottee is liable to pay penalty on the amount due at the following rates for the delayed period :-<br /> Sr. No. Delayed period Rate of penalty<br /> -------- --------------------- -------------------<br /> 1. Upto one year 10%<br /> 2. Between 1-3 years 20%<br /> 3. Between 3-5 years 50%<br /> 4. Beyond 5 years 100%<br /> However, before imposing penalty, Estate Officer will give notice and provide opportunity of being heard to the allottee and will pass an order in writing. Provided that penalty so imposed shall not exceed the amount due including principal and the interest chargeable from the allottee. <br /> 9. Complainant deposited Rs.77,000/- with the opposite parties vide receipt dated 6.8.2003, Rs.1,15,500/- vide receipt dated 15.9.2003, Rs.1,96,541/- vide receipt dated 14.2.2006, Rs.1,40,140/- vide receipt dated 14.2.2006, Rs.1,26,511/- vide receipt dated 14.2.2006, Rs.1,13,575/- vide receipt dated 8.2.2006 and Rs.1,82,875/- vide receipt dated 14.2.2006. Copies of the receipts are Ex.C.17 to Ex.C.23 respectively. Opposite party No. 2 wrote letter dated 10.2.2006 to the complainant stating that first, second and third instalment of the plot to the tune of Rs. 4,12,025/- were not deposited and a sum of Rs.74,731/- was payable on it as penal interest upto 28.2.2006. Another letter dated 17.2.2006 was issued directing him to deposit Rs.23,622/- upto 28.2.2006. Complainant has deposited Rs. 7,480/- on 14.8.2006 for getting the building plan sanctioned. J.E. had gone for giving demarcation of the plot in question. Copy of his report dated 13.10.2006 is Ex.C.30. According to it, electricity Transformer and electricity poles fall within the area of this plot. On that account plot could not be demarcated. He recommended shifting of the Transformer. Accordingly, letter dated 24.1.2007, copy of which is Ex.R.3, was issued by opposite party No. 2 to the Superintending Engineer, PUDA, Bathinda vide which it was brought to his notice that instructions be issued to the Divisional Engineer, Electrical/Sub Divisional Engineer, Electrical, PUDA, Bathinda for removal of Transformer, electricity poles and wires from 19 plots. Similarly, letters dated 1.3.2007 & 14.3.2007 were issued by him to the Divisional Engineer, Electrical, PUDA, Patiala for shifting the Transformer from the plot in question for giving physical possession to its allottee. <br /> 10. Important question which requires determination is as to whether there is deficiency in service on the part of the opposite parties. Mr. Chahal, learned counsel for the opposite parties argued that every possible effort is being made by the opposite parties for shifting the Transformer from the plot in question and for handing over its possession to the complainant. Opposite party No.2 has written letter to the Superintending Engineer, PUDA apprising him of the facts and circumstances which are creating hurdles in the delivery of possession. Further letters, copies of which are Ex.R.4 & Ex.R.5 have been written to the Divisional Engineer (Electrical), PUDA, Patiala for shifting the Transformer from plot No. 473-C immediately so that its physical possession may be delivered to the complainant. According to the learned counsel for the opposite parties Divisional Engineer (Electrical), PUDA has not taken any action so far and that as and when the Transformer is shifted from the plot in question, possession would be delivered.<br /> 11. Submission of the learned counsel for the complainant is that complainant has performed his part of the agreement by way of depositing price of the plot. Despite this, possession of the plot has not so far been delivered and as such, deficiency in service on the part of the opposite parties is proved. <br /> 12. After giving our thoughtful consideration to the rival contentions, we have no hesitation in agreeing with the learned counsel for the complainant. Possession of the plot was to be handed over to the complainant within 90 days from the issuance of the allotment letter on deposit of 25% of the saleable price which has been deposited. Allotment letter, copy of which is Ex.C.16, was issued on 8.10.2003. Total payment of the price of the plot alongwith interest and penal interest claimed by the opposite parties has been deposited as is evident from the copies of the receipts Ex.C.17 to Ex.C.23. Several letters have been issued by the complainant to the opposite parties, copies of which are Ex.C.1 to Ex.C.13 for getting physical possession of the plot and also for shifting the Transformer from it. Despite this, possession has not been given. It appears that in this case PUDA authorities are considering themselves helpless in delivering the possession due to existence of Transformer and electricity poles etc. If they are unable to remove them or get it done, then what was the necessity to allot the plot in question to the complainant and to get the total price of the plot deposited from him and that too, alongwith interest and penal interest. Possession has not been delivered. Despite this, interest has been got deposited from the complainant to the tune of Rs.1,38,600/- and penal interest to the tune of Rs.53,167/- i.e Rs.1,91,767/-. When the payment schedule in the allotment letter and the amount deposited through various receipts, copies of which are Ex.C.17 to Ex.C.23, are<br /> <br /> <br /> considered, position which emerges is as under :- <br /> S.<br /> No <br /> Due date of instal-ment<br /> Principal amount (Rs.)<br /> Interest on instal-ment(Rs.)<br /> Total amount to be paid on due date (Rs.) <br /> Date of instalment paid<br /> Penal interest paid on instal-ment(Rs.)<br /> Total amount paid inclu-ding penal interest(Rs.)<br /> Remarks<br /> 1<br /> 06/08/04<br /> 96250<br /> 69300<br /> 165550<br /> 11/02/06<br /> 30991<br /> 196541<br /> Paid vide draft No.<br /> 858647 dated 11.2.06 <br /> 2<br /> 06/02/05<br /> 96250<br /> 28875<br /> 125125<br /> 11/02/06<br /> 15015<br /> 140140<br /> Paid vide draft No.858648 dt. 11.2.06<br /> 3<br /> 06/08/05<br /> 96250<br /> 23100<br /> 119350<br /> 11/02/06<br /> 7161<br /> 126511<br /> Paid vide draft No.858647 dt. 11.2.06<br /> 4<br /> 06/02/06<br /> 96250<br /> 17325<br /> 113575<br /> 07/02/06<br /> Nil<br /> 113575<br /> Paid vide draft No.858639 dt. 7.2.06<br /> 5<br /> 6. <br /> 6.8.06<br /> 6.2.07.<br /> 91437<br /> 91437<br /> Nil<br /> Nil<br /> 91437<br /> 91437<br /> 11/02/06<br /> 11.2.06<br /> Nil <br /> Nil<br /> 91437 <br /> 91437 <br /> Paid vide draft No.858650 dt. 11.2.06 after deducting 5% rebate under PUDA rules on principal amount i.e. Rs.96250 5th<br /> Rs.96250 6th<br /> 192500 Less 5% 9625 <br /> 182875<br /> 7<br /> Total<br /> 567875<br /> 138600<br /> 706475<br /> <br /> 53167<br /> 759642<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> Amount paid with penal interest Rs.759642 Principal amount paid Rs.567875<br /> Amount paid with interest Rs.706475 Interest paid on instalment Rs.138600 <br /> Penal interest paid Rs. 53167 Total Rs.706475<br /> Total interest paid Rs.138600<br /> Total penal interest paid Rs. 53,167 <br /> Total interest alongwith Rs. 191767 <br /> penal interest paid<br /> 13. It has been held by the Hon'ble Judge of Punjab & Haryana High Court in the case of Renuka Khanna Vs. State of Haryana-1996(3)RCR-567 that interest is to be calculated only from the date of offer of actual possession on the instalments due, whereas in the case in hand, there is no offer of actual possession of the plot on the part of the opposite parties. Since, possession of the plot has not been delivered and interest on the instalments due and penal interest has been got deposited, deficiency in service on the part of the opposite parties is writ large. Opposite parties cannot wriggle out of the situation by saying that electric wing of PUDA has not so far shifted the Transformer from the plot and that possession would be delivered at the earliest. Complainant cannot be made to suffer indefinitely. <br /> 14. Now, question which requires consideration is as to which relief should be accorded to the complainant. In the facts and circumstances referred to above, direction deserves to be given to the opposite parties to deliver possession of plot No. 473-C to the complainant and in case, they are unable to deliver its possession, then in the alternative to allot another plot in phase 3, Part-II, Urban Estate, Bathinda and to deliver possession of the same to him under rules. As possession of the plot has not been delivered to the complainant, opposite parties could not claim interest/penal interest on the amount of instalments. There could be no justification for payment of interest. Accordingly, direction deserves to be given to the opposite parties to refund the amount of interest i.e. Rs.1,91,767/- alongwith interest @ 15% P.A from the dates of deposits i.e. on Rs.1,74,442/- from 14.2.22006 got deposited alongwith other amounts vide receipts, copies of which are Ex.C.19 to Ex.C.21 and on Rs.17,325/- from 8.2.2006 got deposited alongwith other amount vide receipt, copy of which is Ex.C.22 till payment as they are claiming interest on the amount of instalments at this rate as per clause 3.2 of the allotment letter, copy of which is Ex.C.16.<br /> 15. Complainant is craving for escalation in cost of construction to the tune of Rs.3,00,000/-. For this, he is placing reliance on the report of Bandu & Associates (Ex.C.32) which has opined that after physical examination of the plot, sanctioned map and estimating the cost of construction as per C.S.R. Rates, the cost of construction for the house has increased from Rs10,50,000/- in 2003 to Rs.14,59,000/- in 2007. If the house could have been constructed in 2004, then cost of construction as per sanction map could have been Rs.11,72,000/- and Rs. 13,22,000/- if constructed in 2005. In our view, complainant is not entitled to escalation in cost as first instalment was to be deposited on 6.8.2004 and last on 6.2.2007. As per allotment letter, remaining amount concerning the plot has been deposited with the opposite parties on 14.2.2006. Construction was to be completed within a period of three years. Complainant did not make specific request to the opposite parties immediately after deposit of 25% that possession be delivered as he wanted to raise construction of the house in the plot. Even upto 14.2.2006, no such particular request has been made by him. For the first time, he deposited fee for getting building plan sanctioned on 14.8.2006 vide receipt, copy of which is Ex.C.24. In such a situation, how can be claim escalation in cost of construction, particularly when he did not express his intention for construction in the plot immediately after deposit of 25% of the price of plot or thereafter upto 14.8.2006. It is not out of place to mention here that prices of such plots have also increased many folds. <br /> 16. Another relief sought by the complainant is compensation to the tune of Rs.2,00,000/- on account of mental tension, agony, loss to physical health and on account of the fact that he has been compelled to live in rental house. 25% of the price of the plot was got deposited from the complainant. Balance amount out of the price of the plot has also been got deposited. Possession of the plot has not been delivered. Opposite parties are using the price of the plot deposited by the complainant to his detriment. He is not getting any return for the price of the plot deposited by him. Opposite parties are being moved by him time and again for getting the possession of the plot. All this must have caused serious mental tension and agony for which he deserves some compensation which we assess as RS. 50,000/- in view of the authority J.Radhakrishnan Vs. A Basheera & Another-2001(2)CLT-225(M.P.) wherein it has been held that award of compensation always involves some sort of speculation and it is very difficult to quantify the amount of compensation on a rationale basis.<br /> 17. No other point was urged before us at the time of arguments.<br /> 18. In the premises written above, complaint is accepted against the opposite parties with costs of Rs.2,000/-. Opposite parties are directed to do as under :-<br /> ( i ) Deliver actual possession of plot No. 473-C to the complainant and if they are unable to deliver its possession,then in the alternative to allot another plot of this size in Phase 3, Part II, Urban Estate, Bathinda under the rules and deliver its possession to him.<br /> ( ii ) Refund Rs. 1,91,767/- to the complainant alongwith interest @ 15% P.A. on Rs.1,74,442/- from 14.2.2006 and on Rs.17,325/- from 8.2.2006 till payment.<br /> ( iii ) Pay Rs. 50,000/- to the complainant as compensation under section 14 (1)(d) of the Act.<br /> ( iv ) Compliance be made within 60 days from the date of receipt of copy of this order. <br /> 19. Copy of this order be sent to the parties free of cost. File be also<br /> <br /> <br /> consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 21.6.2007 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br /> <br /> <br /> <br /> <br />