DISTRICTCONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C.No.278 of 19.9.2007 Decided on : 7.1.2008 <br /> <br /> Swaranjeet Kaur W/o Sh. Bikramjeet Singh Aulakh, R/o House No. 22470, Street No. 12, Bhagu Road, Bathinda.<br /> .... Complainant<br /> Versus <br /> 1.Punjab Urban Planning & Development Authority though its Chief Administrator, Chandigarh.<br /> 2.Estate Officer, Punjab Urban Planning & 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 parties : Sh. Jasvir Singh, Advocate<br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Complainant by way of filing this complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) seeks direction from this Forum to the opposite parties to deliver her actual physical possession of plot No. 227 (corner) of 400 Sq. Yards or in the alternative to deliver possession of any other corner plot of 400 Sq. Yards or in case of excess area, the same be given @ Rs. 1,980/- per Sq. Yard as per allotment rate; pay interest @ 18% P.A on the total deposited amount of plot since 27.5.2003 and 2.12.2003 till actual physical possession of the plot is delivered; interest @ 18% P.A on the amount of Rs. 13,790/- deposited on 18.8.2005 for sanctioning the map; Rs. 3,00,000/- as compensation for mental and physical sufferings; Rs. 5,00,000/- for escalation in the price of cost of construction in 4 years due to default of the opposite parties in not handing over the physical possession of the plot and cost of the complaint.<br /> 2. Succinctly put, the version of the complainant is that she had moved an application to the opposite parties for allotment of residential plot. She was one of the successful candidates to whom plots of 400 Sq. Yards in Phase 3, Part-2, Urban Estate, Bathinda were allotted. Offer of allotment letter No. 10794 dated 14.10.2003 was issued to her regarding plot No. 227 corner measuring 400 Sq. Yards. As per terms and conditions of the opposite parties, 25% of the cost of plot was deposited by her. Remaining 75% was to be paid in instalments. Thereafter, she deposited the balance 75% amount in lumpsum i.e. Rs. 6,20,730/- through drafts No. 060442 dated 24.11.2003 of Rs. 3,00,000/- and 217117 dated 13.11.2003 for Rs. 3,20,730/-. Rebate of 5% as per rules was given. Loan of Rs. 3,00,000/- was obtained by her from ICICI Bank, Bathinda. Opposite parties were duly bound to deliver possession of the plot within 90 days from the date of issuance of the allotment letter. Despite the fact that full amount concerning the plot has been deposited, possession has not been delivered. A sum of Rs. 13,790/- was deposited by her for getting the building plan sanctioned for construction of the house. Neither possession of the plot has been delivered nor building plan has been sanctioned. Letter No. 3927 dated 10.11.2006 was issued by the opposite parties admitting that there is no plot of 400 Sq. Yards of which possession can be given and that she could opt to get plot of 500 Sq. Yards or 300 Sq. Yards. In case, she opts plot of 300 Sq. Yards, refund of the price of 100 Sq. Yards would be allowed. In case, she opts plot of 500 Sq. Yards, she has to pay the charges @ Rs. 4,150/- per Sq. Yard for extra land. It is further averred by her that she is ready and willing to make payment of extra land @ Rs. 1,980/- per Sq. yard. Further, corner plot be allowed. Due to non delivery of the possession, she has undergone huge loss on account of escalation in the cost of construction. Opposite parties are using her amount since the date of deposit i.e. 27.5.2003. For that, she is entitled to get interest @ 18% P.A on the total amount from the date of deposit till possession is delivered. She has also undergone mental tension, agony and sufferings. In these circumstances, she alleges deficiency in service and unfair trade practice on the part of the opposite parties.<br /> 3. On being put to notice, opposite parties filed their version taking the legal objections that complainant has got no locus-standi and cause of action to file the complaint; complaint is not maintainable; she has not come with clean hands as according to the information brochure plots are offered as is where is basis and the exact dimensions and area are subject to variations as per measurement at the time of actual delivery of possession at site and this was also mentioned in the allotment letter dated 14.10.2003; complainant is not consumer and this Forum has got no jurisdiction to entertain and try the complaint because as per terms and conditions of the allotment letter, dispute/differences covering the allotment are liable to be referred to the Sole Arbitrator i.e. Chief Administrator, Punjab Urban Planning and Development Authority or any person nominated by him in this behalf. On merits, they admit that plot No.227 corner was allotted to her through allotment/draw held on 27.5.2003 and offer of allotment memo No. 10794 dated 14.10.2003 was issued. 25% of the cost of plot was deposited by her. Remaining 75% was to be paid in instalments. Balance amount of 75% was deposited by her in lumpsum i.e. Rs. 6,20,730/- through drafts. They do not deny the fact that loan of Rs. 3,00,000/- has been taken by her from ICICI Bank, Bathinda. Possession was to be handed over to the allottee within 90 days from the date of issuance of the allotment letter. If possession is not taken, it would be deemed to have been handed over on the expiry of 90 days. In this case, possession was delivered to her on 7.11.2003 and she had put her signatures on the possession letter. They do not deny the fact of deposit of Rs. 13,790/- by the complainant for getting the building plan sanctioned. As per report of the field staff, there was reduction in the area of plots No. 107C, 126C and 227C. This fact was made clear to the complainant by opposite party No. 1 vide letter dated 10.11.2006. Vide this letter, option was sought from the complainant either to get plot of 300 Sq. Yards and refund of price of 100 Sq. Yards or plot of 500 Sq. Yards by way of making payment @ Rs. 4,150/- per Sq. Yards instead of 400 Sq. Yards subject to adjustment of the already paid amount. She agreed to pay the charges @ Rs. 4,150/- per Sq. Yard for the extra land. Matter has been referred to the Head Office which is under consideration. Complainant has admitted the terms and conditions of the allotment letter in toto. They deny the remaining averments in the complaint.<br /> 4. In support of her allegations and averments in the complaint, Swaranjeet Kaur complainant tendered into evidence her own affidavits (Ex.C.1 & Ex.C.2), photocopy of allotment letter dated 14.10.2003 (Ex.C.3), photocopy of possession letter dated 7.11.2003 (Ex.C.4), photocopies of letters dated 12.11.2003, 2.12.2003, 10.11.2006, 19.7.2005, 18.8.2005 & 7.9.2005 (Ex.C.5, Ex.C.6, Ex.C.8 to Ex.C.10 & Ex.C.12) respectively, photocopies of demand drafts and pay order (Ex.C.7 & Ex.C.12), cutting of newspaper (Ex.C.13), report of Architect (Ex.C.14), photocopy of estimate for construction (Ex.C.15), receipt (Ex.C.16) and photographs (Ex.C.17 to Ex.C.22).<br /> 5. On behalf of opposite parties, reliance has been placed on affidavit (Ex.R.1) of Sh. Pirthi Singh, Estate officer, photocopy of application for allotment (Ex.R.2), photocopy of affidavit of complainant (Ex.R.3), photocopy of allotment letter dated 14.10.2003 (Ex.R.4), photocopy of possession letter (Ex.R.5) and photocopies of letters dated 15.11.2006, 10.11.2006 & 19.1.2007 (Ex.R.6 to Ex.R.8) respectively.<br /> 6. We have heard the learned counsel for the parties. Apart from this, we have gone through the record. <br /> 7. Application, copy of which is Ex.R.2, for allotment of 400 Sq. Yards residential plot was submitted to the opposite parties by the complainant. Alongwith the application, she had filed affidavit, copy of which is Ex.R.3. Offer of allotment of residential plot No. 227 (corner) was given to her by the Punjab Urban Planning & Development Authority (Here-in-after referred to as 'PUDA') vide letter dated 14.10.2003. Tentative price of the plot as per its contents was Rs. 8,71,200/- @ Rs. 1,980/- per Sq. Yard. As per terms and conditions, complainant deposited 25% of the cost of the plot with the opposite parties. Thereafter, she deposited balance amount of 75% in lumpsum i.e. Rs.6,20,730/- as is evident from her affidavit, copy of the letter dated 2.12.2003 and copy of the pay order (Ex.C.7). She has also deposited Rs. 13,790/- for getting the building plan sanctioned as is clear from Ex.C.10 to Ex.C.12. Opposite parties had written letter dated 10.11.2006 to the complainant, copy of which is Ex.C.8, explaining that the area of the plot at the site is not 400 Sq. Yards and that there is no other plot of 400 Sq. Yards in the area. She was given the offer that she can keep her plot of 300 Sq. Yards and that the excess amount would be adjusted/refunded. She was further apprised that in case,she wants the plot of 500 Sq. Yards in place of plot of 400 Sq. Yards, she would have to pay for the excess area @ Rs.4,150/- per Sq. Yards. She was asked to give her option. Accordingly, she gave the option, copy of which is Ex.R.6 for getting plot of 500 Sq. Yards. Matter has not so far been decided by the opposite parties, although opposite party No. 2 has referred the matter to Additional Chief Administrator, PUDA, Bathinda vide letter, copy of which is Ex.R.8.<br /> 8. As per terms and conditions of the offer of allotment, possession was to be delivered within 90 days of its issuance. Principal grouse of the complainant is that opposite parties never delivered the possession of plot No. 227 corner to her. To the contrary, opposite parties are relying upon the possession letter dated 7.11.2003, copy of which is Ex.C.4, according to which possession has been shown to have been delivered to her at the site by Junior Engineer, PUDA, Bathinda. To prove delivery of possession, Sh. Pirthi Singh, Estate officer has submitted his affidavit Ex.R.4. A careful perusal of the record reveals that possession letter, copy of which is Ex.C.4, is merely a paper transaction. Opposite parties themselves admit that plot No. 227 at the site is not of 400 Sq. Yards and its area is 300 Sq. Yards. When it is so, how can it be believed that actual possession of plot No. 227 corner of 400 Sq. Yards was delivered to the complainant on 7.11.2003. Affidavit of the Junior Engineer, PUDA, Bathinda who allegedly delivered possession at the site has not been brought on record of this Forum by the opposite parties. Accordingly, conclusion is that possession of the plot was not delivered to the complainant at all. Since, opposite parties did not deliver possession of this allotted plot to the complainant within 90 days, deficiency in service on their part is writ large.<br /> 9. Not to speak of the fact that possession of plot No. 227 C has not been delivered, opposite parties have not taken any decision regarding the basis of the consent/option given by the complainant for accepting plot of 500 Sq. Yards in place of plot of 400 Sq. Yards allotted to her. No allotment letter for plot of 500 Sq. Yards on the basis of her option has so far been given. Huge amount deposited by her is being used by them without giving anything in return to her. They have gone to the extent of getting deposited Rs.13,790/- for getting building plan sanctioned concerning plot No. 227-C although area of the plot at the site is not 400 Sq. Yards as is admitted by them. On this aspect as well, clearcut deficiency in service on the part of the opposite parties is proved.<br /> 10. Now question for determination is as to which relief should be<br /> <br /> accorded to the complainant. Complainant is seeking the possession of plot No. 227 corner of 400 Sq. Yards or in the alternative of any other corner plot of 400 Sq. Yards or excess area, @ Rs. 1,980/- per Sq. Yard as per allotment rate when plot No.227 ( c ) was allotted. This relief is not permissible as plot no. 227( c ) is not of 400 Sq. Yards at the site. No other plot of 400 Sq. Yards is available. She has already given option for excess area @ Rs. 4,150/- per Sq. Yard. In view of the facts and circumstances of this case, direction deserves to be given to the opposite parties to allot plot of 500 Sq. Yards to her in place of plot No. 227-C which was previously allotted to her as plots of 500 Sq. Yards are still lying with the opposite parties as per Ex.R.8. The allotment of this 500 Sq. Yards plot would be @ Rs. 4,150/- for 100 Sq. Yards and at the previous rate of Rs. 1,980/- for the remaining 400 Sq. Yards. Further direction to the opposite parties in our view should be that they are liable to pay interest on the entire amount deposited by her from the dates of its deposits @ 12% P.A till possession of plot of 500 Sq. Yards is given to her. Opposite parties after calculating the interest upto the date of delivery of possession would adjust the amount i.e. principal and interest towards the plot of 500 Sq. Yards and if amount is in excess, they would refund the same within 15 days from the date of delivery of the possession of the plot of 500 Sq. Yards. Complainant is craving for compensation of Rs. 3,00,000/- for mental and physical sufferings and Rs. 5,00,000/- towards escalation in cost of construction. For escalation in the cost of construction, she is relying upon the report (Ex.C.14) of Dee Gee Architects according to which cost of construction of the house has increased from Rs. 17,19,857.85 in 2004 to Rs. 21525.95 in 2007. If the house could have been constructed in 2005, then the cost of construction as per submitted plan should have been Rs.19,51,290.87 and Rs. 21,52,510.25 if constructed in 2006. There is no case to allow escalation in the cost of construction and<br /> <br /> compensation for mental and physical sufferings in view of the relief which is going to be accorded as above. It is also worth mentioning that if there is some rise in the cost of construction, the price of the plots has also gone up many fold. No-doubt, complainant had moved the opposite parties for getting the building plan sanctioned. Question is as to whether she had the real intention to raise construction in the facts and circumstances of the case. The reply to our minds is in the negative. When she herself admits that possession of the plot was not delivered to her, the question of raising construction on the plot by her and getting the building plan sanctioned, did not arise. On this aspect as well, she is not entitled to escalation in the cost of construction.<br /> 11. No other point was urged before us. <br /> 12. In view of the forgoing discussion, complaint is accepted against the opposite parties with costs of Rs. 2,000/-. Opposite parties are directed to do as under :-<br /> ( i ) Allot plot of 500 Sq. Yards to the complainant within 60 days from the receipt of copy of this order. Price of 100 Sq. Yards out of it would be @ Rs. 4,150/- per Sq. Yard. Price of the remaining 400 Sq. Yards would be @. Rs. 1,980/- at which plot No. 227 (C ) was allotted to her.<br /> ( ii ) Calculate interest on the entire amount deposited by the complainant for plot no. 227-C including the amount deposited for getting the building plan sanctioned @ 12% P.A from the dates of its deposit till delivery of possession of plot of 500 Sq. Yards.<br /> ( iii ) Adjust principal amount and the interest thereon towards price of the plot of 500 Sq. Yards as mentioned above and if any amount is found in excess, the same be refunded to the complainant within 15 days from the date of delivery of the possession of the plot.<br /> ( iv ) Compliance with regard to payment of costs be made within 30 days from the date of receipt of the copy of this order.<br /> 13. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 7.1.2008 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br /> <br /> <br /> <br />