DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA (PUNJAB)

CC No. 267 of 21-06-2010

Decided on : 23-12-2010

Tej Kaur W/o Sh. Balwant Singh Lamberdar, R/o Village Balluana, Tehsil & District Bathinda Now R/o H. No. 44-C, Phase III, Model Town, Bathinda.

.... Complainant

Versus

Punjab Urban Development Authority/Bathinda Development Authority, Bathinda, through its Administrator/Estate Officer, Bhagu Road, Bathinda.

 

..... Opposite party

Complaint under Section 12 of the Consumer Protection

Act, 1986.

 

QUORUM

Ms. Vikramjit Kaur Soni, President

Dr. Phulinder Preet, Member

For the Complainant : Sh. Amandeep Singh, counsel the complainant.

For the Opposite parties : Sh. A.S. Chahal, counsel for opposite party.

O R D E R

VIKRAMJIT KAUR SONI, PRESIDENT

1. The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 as amended upto date (here-in-after referred to as 'Act'). The complainant is the owner of plot No. 44-C, measuring 500 Sq. Yds, situated in Model Town, Phase-III, Bathinda, vide allotment letter No. 1632 dated 4.4.2008. Originally the said plot was allotted to Smt. Reshma Rani who further sold the same to complainant. At the time of allotment of said plot, 10% additional amount was deposited with PUDA/BDA being a corner plot, as per rules and regulations. The plot was alloted for a total price of Rs. 26,50,000/- including 10% on account of additional price being corner plot. The opposite party constructed/raised the construction of boundary wall alongside the plot in question due to which the plot is no more of corner plot. The same is now situated at the blind end due to which the complainant cannot enjoy the facilities attached with the corner plot and also cannot take benefit of the same being situated on the corner for which she has paid 10% extra price. The complainant alleged that since the plot in question is no more a corner plot, as such the complainant is entitled to get the refund of additional amount paid by the complainant for the said plot i.e. 10% extra. The complainant repeatedly requested the opposite to refund the 10% extra price charged from her and also got issued legal notice, but to no effect. Hence, this complaint.

2. The opposite party has filed its written statement and took preliminary objections that jurisdiction of civil court is specifically barred under PUDA Act which is a special Act and has taken support of law laid down in 2009(2)CCC 219 (DB) Bombay “S 9A CPC-Jurisdiction and that the complaint is time barred. It has been submitted that complainant has already availed the facility of corner plot by raising construction on the boundary wall so constructed by PUDA/BDA. The plot No. 44-C, Phase III, Part II, measuring 500 Sq. yards in Urban Estate, Bathinda, was sold to M.L. Arora S/o Pirthi Chand on “as is where is” basis and then the same was transferred/re-allotted in the name of Reshma Devi of Muktsar vide memo No. 840 dated 4.7.07 on the terms and conditions of original allotment letter. The said Reshma Rani transferred it to complainant Tej Kaur and the same was re-allotted to Tej Kaur, Complainant vide letter No. 1632 dated 4.4.08, hence she is bound by the terms and conditions of the allotment letter. The plot in question is a corner plot abutting on two roads as per report of District Town Planner. The complainant can utilize the facilities of corner plot. No extra space is for corner plot and the owner/allottee is entitled to keep windows, ventilators and a small gate (wicket gate) on it. The wall constructed by the opposite party is being used as boundary wall by the complainant and increased the height of the wall by raising further construction on it. The opposite party has submitted that it has no objection if the complainant makes any constructions on the said wall of house and avail facilities of being corner plot.

3. Parties have led evidence in support of their pleadings.

4. Arguments heard and written submissions submitted by the parties perused.

5. The learned counsel for the complainant submitted that complainant had got allotted a corner plot No. 44-C measuring 500 Sq. Yds situated in Model Town Phase III on 4.4.2008 and paid 10% additional amount to PUDA/BDA. The said plot was allotted for total price of 26,50,000/- including 10% on account of additional price being a corner plot. He further submitted that the plot in question is no more a corner plot and the same is situated at the blind end as the opposite party has constructed/raised a boundary wall due to which the complainant cannot enjoy the facilities attached with the corner plot and cannot get the benefit of the same being situated at the corner. The learned counsel for the complainant submitted that she should not have been curtailed from the facilities of corner plot while raising a wall at the end of her house. The complainant prayed for refund of additional amount paid for the said plot i.e. 10% additional price and any other alternative relief.

6. The learned counsel for the opposite party submitted that jurisdiction of this Forum is barred under PUDA Act which is a special Act. It is held in 2009(2) CCC 219(DB) Bombay “S 9A CPC-Jurisdiction. It does not find jurisdiction then no further enquiry is needed and saves lot of valuable judicial time”. The complaint is barred by limitation as the allotment of plot in question was made on 4-11-2004. The complainant has already availed the facility of corner plot by raising construction on the boundary wall so constructed by PUDA/BDA. Earlier the plot No. 440C, Phase III, Part II measuring 500 Sq. Yds in Urban Estate, Bathinda was sold to M L Arora S/o Pirthi Chand on “as is where is” basis and then the same was transferred/re-allotted in the name of Reshma Devi vide memo No. 840 dated 4.7.07 on the terms and conditions of original allotment letter. The said Reshma Rani transferred it to complainant Tej Kaur and the same was re-allotted to Tej Kaur, complainant vide letter No. 1632 dated 4.4.08 and hence, she is bound the terms and conditions of the allotment letter. The plot in question is a corner plot abutting on two roads as per report of District Town Planner and according to the rules of BDA, the complainant can utilise the facilities of corner plot. No extra space can be provided for corner plot and the owner/allottee is entitled to keep windows, ventilators and a small gate (wicket gate) on it. The boundary wall was constructed on the demand of the residents of Phase III by the opposite party at its own expenses. The wall constructed by the opposite party is being used as boundary wall by the complainant and increased the height of the wall by raising further construction on it. The learned counsel for the opposite party further submitted that opposite party has no objection if the complainant makes any construction on the said wall of the house and avail the facilities of corner plot. He denied that complainant is entitled to any refund and any legal notice was ever received by the opposite party.

7. The opposite party has taken legal objection that this Forum is barred to try and adjudicate this complaint under the PUDA Act. which is a special Act. This objection is not tenable as Section 3 of the “Act” envisages that “Act not in derogation of any other law – The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.” Another objection of the opposite party that complaint is time barred, is also devoid of merit as the plot in question was transferred/re-allotted to the complainant on 4-4-2008 and after re-allotment when opposite party constructed wall, the complainant raised objection. The opposite party did not pay any heed to his request and ultimately, the complainant had to knock the door of this Forum. The date was not disclosed by either of the party that when the wall was constructed Thus, it is a continuous cause of action and hence the complaint is within limitation.

8. Sh. Lachman Singh Kang, Assistant Engineer of the opposite party in his affidavit Ex. R-1 has deposed that plot No. 44-C, Phase III, Part II measuring 500 Sq. Yds in Urban Estate, Bathinda, was sold to M L Arora S/o Pirthi Chand on “as is where is” basis and then the same was transferred/re-allotted in the name of Reshma Devi W/o Pawan Kumar Garg of Mukatsar vide memo No. 840 dated 4.7.07 on the terms and conditions of original allotment letter who transferred it to complainant Tej Kaur. The plot was re-allotted to Tej Kaur, complainant vide letter No. 1632 dated 4.4.2008 and she is bound by the terms and conditions of the allotment letter and it is a corner plot abutting on two roads as per record of District Town Planner. The boundary wall was constructed on the demand of the residents of Phase III by the opposite party at his own expenses. Still the facilities of corner plot can be availed by the complainant. The wall constructed by the opposite party is being used as boundary wall by the complainant and she has increased the height of the wall by raising further construction on it.

   The opposite party has produced on file a letter allegedly written by the complainant Ex. R-2 , the English rendering of which reads as under :-

   “It is requested that plot No. 44-C, Urban Estate, Phase III, Part -II is in my name. The residents of the area keeping in view of their security has got constructed the wall adjoining my house. I have no objection for the same and I had already taken the facility of corner plot.”

   According to this letter, the complainant Tej Kaur has no objection for raising wall as she has already taken facility of corner plot. This piece of document cannot be relied upon as the complainant has denied this letter and prayed before this Forum that if she had no objection in raising the wall, there was no question for filing the complaint before this Forum. To corroborate her this version, the complainant referred her affidavit Ex. C-13. The opposite party has also placed on file a letter Ex. R-3 written by Jaswinder Singh, Contractor to the opposite party wherein he has mentioned that the wall constructed earlier was demolished by the opposite party but after 4-5 days the wall was again constructed by him on the request of residents including complainant. This document is also without any merit in view of our observations, prayer of the complainant and the affidavit Ex. C-13 of the complainant, mentioned above.

9. The complainant has filed an application requesting this Forum to appoint local commissioner to inspect the spot whether a road is existing at the corner between plot No. 44-C and 53-C and further there is road existing ahead to said plot or not. A perusal of evidence placed on file reveals that it is a admitted fact that plot in question is a corner plot. The meaning of 'Corner' as mentioned in 'The New Marriam – Webster Dictionary' which reads as under :-

   “Corner : 1 the point or angle formed by the meeting of lines, edges or sides 2. the place where two streets come together”. Hence, there is no need to appoint Local commissioner as it will further delay the proceedings. Thus, application of the complainant stands disposed of.

   A perusal of evidence and photographs Ex. C-8 and Ex. C-9 show that there is an adjoining wall to the plot No. 44-C, which curtails the complainant for getting the benefits of corner. The opposite party has not placed on file the affidavit of any such person who has given consent for the re-construction of the wall. This wall has been raised by the opposite party adjoining the plot No. 44-C and the complainant could not avail the facility of corner despite depositing 10% extra price of the plot. Hence, there is deficiency in service on the part of the opposite party.

10. In view of what has been discussed above, this complaint is accepted with Rs. 10,000/- as compensation and cost and the opposite party is directed to demolish the wall constructed adjoining the plot in question i.e. 44-C of the complainant. The compliance of this order be made within 30 days from the date of receipt of copy of this order.

11. A copy of this order be sent to the parties concerned free of cost and the file be consigned to record.

Pronounced :

23-12-2010 (Vikramjit Kaur Soni)

President

(Dr. Phulinder Preet)

Member