Kuldip Singh complainant through the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short, the C.P. Act.) has prayed for issuance of the necessary directions to the titled opposite party namely PUDA, Amritsar through its Estate Officer not to charge penalty for the construction till the full development of Urban Estate Gurdaspur, providing all infrastructure and amenities necessary for human habitation and construction of residential houses alongwith interest @ 12% on the payment made by him to the opposite party from the last date of payment of installments till realization alongwith penalty of Rs.20,000/- for unnecessary harassment and loss of income in transportation etc, in the interest of justice.
2. The case of the complainant in brief is that the plot no.216 measuring 430.56 sq.yards was allotted to him in Urban Estate Gurdaspur for residential purposes; as such he is consumer of the opposite party. He has paid full and final payment of Rs.25,83,360/- in installments through Bank draft. No Due Certificate has been issued by the opposite party. The plot No.216 was allotted vide Allotment Order No.5651 dated 9.08.2011. The opposite party has received 25% per price of Plot at the time of allotment of plot. The name of Scheme is “Urban Estate, Gurdaspur, situated at G.T.Road, Gurdaspur. The opposite party has not developed the area under Urban Estate. The opposite party has not provided any mettaled road, water supply, lights, sewerage, parks etc. in Urban Estate, Gurdaspur.They failed to provide basic amenities of life till date. The supply of water is necessary for construction of residential area. There has not been provided boundary wall. The opposite party objects to get water through Submersible pumps. There are no electricity and street lights provided in the area. He has further pleaded that the opposite party has taken full price of plot alongwith interest etc. amounting to Rs.32 Lacs (approximately). The money paid by the complainant is lying interest less in the hands of the opposite party. The office of the opposite party has not officially delivered the possession of land/plot to him. The office of the opposite party is at Amritsar which is 70/75 kilometer away from Gurdaspur. He and other persons have to visit Amritsar for petty works. Even the bank drafts sent by him by post, has not been acknowledged properly. One visit of Amritsar costs Rs.500/- per visit beside wastage of time and energy etc. The opposite party has not provided any local office for submission of site plans, bank drafts, payment and deposit of development and other charges. The site plans are not sanctioned in one visit of Amritsar. The site plans are not sanctioned in one visit of Amritsar. The complainant and other persons have to visit number of times for sanctioning of site plan and other works. So non-development of area disentitles the opposite party to charge development and betterment charges, for delayed construction. The opposite party is also not entitled for any penalty for late construction of residences due to non-development of Urban Estate, which will be fit for human habitation and enjoyment of life. The opposite party failed to provide basic services and is deficient in providing the services, necessary for development of residential area. In this way, the opposite party is deficient in providing services. Hence this complaint.
3. Upon notice the opposite party appeared and filed the written reply through their counsel submitting therein that the complainant was allotted plot No.216 measuring 430.56 Sq. Yards by the opposite party vide allotment letter dated 9.8.2011 for Rs.25,83,360/-. As per the instructions of the Allotment letter, the complainant was bound to construct the building within a period of three years from the date of allotment letter but the complainant has failed to construct the building on the said plot. Hence the opposite party has got a right to impose the penalty etc. and cancel the plot as per the terms and conditions of the Allotment letter. It was further submitted that nobody has applied for providing any such facilities nor any person moved any application or completed the formalities for providing the facilities. The opposite party never refused to provide the facilities. The complainant never moved any application nor approached the opposite party for the facilities. Infact alleged facilities are available in the Urban Estate Colony Gurdaspur. The present complaint has been moved by the complainant with ulterior and malafide motive and especially when the stipulated period of three years for the completion of the construction has been elapsed. The complaint is not within limitation and is not maintainable. All other averments made in the complaint have been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
4. Counsel for the complainant tendered into evidence affidavit of complainant Ex.C1, alongwith other documents Ex.C2 to Ex.C6 and closed the evidence.
5. Counsel for the opposite party tendered into evidence affidavit of Sh.Naresh Kumar S.D.E., Public Health Ex.OP-1, of Sh.Charanjit Singh S.D.E. Civil PUDA Ex.OP-2 and of Sh.Rajbir Singh S.D.E. Ex.OP3, alongwith other documents Ex.OP4 to OP5 and closed the evidence.
6. We find that the present complainant has been a successful allottee since 09.08.2011 of Plot # 216 in the Urban Estate, Gurdaspur; being developed by the opposite party PUDA (in the role of Service Provider/State Coloniser/ Allotter of Residential Plots to General Public) and thus a statutory consumer under the applicable Act. We find that the allotment letter Ex.C4 required that the ‘construction of building’ over the ‘plot’ was to be completed within ‘3’ years of the date of issue of the same (allotment letter) and apprehending levying of ‘penalty’ ( extension fee etc) by the OP PUDA, the present complaint has been filed seeking directions to the OP not to levy/charge and penalty/fee etc till the OP develops the estate in entirety and provides all the amenities necessary for human habitation besides to pay interest & penalty etc for the intervening period; alleging absence of the same.
7. In order to resolve the presently stuck-up issue of opposing claims of ‘development of estate’ & provision of ‘civic amenities’ etc.; one Commission was appointed for the purpose and he duly confirmed in his report (Ex.C2), the presence of civic amenities though in an unserviceable state may be on account of non-usage. Further, the OP PUDA has produced on records ‘completion – certificate’ Ex.OP4 that duly confirms the construction of the internal roads on: 31.03.2013; horticulture works on: 31.08.2013 and construction of Boundary Wall on 30.06.2015; and further Ex.OP5 PUDA certificate duly proves the completion of: Storm Sewer works on 28.07.2011, Water Tank on 22.12.2011 and Water supply completion on 29.07.2011; and Ex.OP7 proves the completion of electric wiring on 23.06.2013 and that proves that the OP PUDA had duly provided the civic amenities and other infrastructure etc and that disproves the allegation put forth in the complaint.
8. Further the OP PUDA through the reply and affidavit has prayed for consideration of its preliminary objections (as put forth in its written reply) first, insisting therein, the ‘non-maintainability’ of complaint on account of ‘extension fee’ not-falling within the statutory jurisdiction of this forum. We have intently perused and examined the ‘preliminary objections’ as prefixed to the OP’s written reply in the back-drop of the present complaint, main reply and the arguments as put forth duly supported by the superior court judgments. Somehow, we observe that the OP written reply and for that matter even the affidavit raises the issue of ‘absence of jurisdiction’ to the consumer forums to adjudicate matters pertaining to ‘extension fee/ penalty’ etc.
9. We find that the complainant has sought ‘non-charging of non-construction charges’ as the only relief in his complaint as pointed out in the OP’s ‘preliminary objections’. In order to remove all ambiguity, we determine here that ‘extension fee’ is attracted/liable/levied for delay in completing construction within the stipulated/prescribed period of time i.e., for the extended time for executing/completing construction; whereas the ‘non-construction’ charges are attracted/levied for ‘non-undertaking’ of construction activity by the allot-tee within the stipulated time even at the face of availability of OP’s provided infrastructure and continuing construction activity in the adjoining residential plots/houses etc. In the case of ‘extension fee’ it is the consumer who is at default and thus consumer courts shall not intervene whereas in other case of ‘non-construction’ charges, the OP coloniser can also be at default by not providing ‘infrastructure’ (including non-availability of civic amenities etc) and thus the resulting disputes shall not fall within the purview of the consumer fora. The present dispute (and the resulting complaint) falls under the first category of ‘extension charges’ and thus the same shall not fall under the adjudicatory jurisdiction of the forum.
10. We respectfully bow to concur with the legal proposition as transpired vide the OP quoted judgment of the Hon’ble NCDRC, New Delhi in RP # 2466 of 2013 titled as: PUDA & Ors vs. Dr Santosh Arora that “charging of extension fee by PUDA does not fall within the purview of service and Consumer Fora has no jurisdiction to go into correctness of demands made by PUDA on account of extension fee”; further confirmed by the orders of the Haryana State Consumer Disputes Redressal Commission, Panchkula; in FA # 1052 of 2010 titled: HUDA vs. Banarsi Dass Sharma.
11. In the light of the all above, we ORDER for the dismissal of the present complaint with however liberty to the complainant to avail any other suitable remedy under law. No orders as to its costs.
12. The orders be conveyed to the litigants, fee of cost, as per the statutory rules and file be consigned to records.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
August 10, 2016. Member.
*MK*
