MRS. NEENA SANDHU, MEMBER

1.         This is an appeal received by transfer from Punjab State Consumer Disputes Redressed Commission under the orders of Hon’ble National Commission, filed by the OPs against order dated 10.9.2003 passed by District Consumer Disputes Redressal Forum, Ropar (for short hereinafter to be referred as District Forum) passed in complaint case No. 155 of 8.5.2003.

2.            Briefly stated the facts of the case are that the residential plot bearing No.3552-C measuring 500 sq.yds, Sector 69, Urban Estate, Mohali was originally allotted to S.Raghbir Singh s/o S.Ajit Singh by the OPs vide allotment letter dated 1.8.1995 issued by OP No.2. The tentative price of the plot was Rs.7,70,000/- @ Rs.1400/- per sq.yds plus 10% extra for the corner plot and Sh.Raghbir Singh had paid Rs.60,000/- as earnest money before allotment. It was submitted by the complainant that in the clause No.3 of the allotment letter, the complainant was asked to deposit Rs.1,32,000/- to complete 25% of the tentative price which the complainant deposited vide bank draft No.06048570487 dated 12.10.1995 drawn on Bank of Punjab, Mohali and OP No.2 issued receipt No.96 book No.10 dated 26.10.1995 in token of receipt of the said amount. After payment of the said amount, Sh.Raghbir Singh applied to OP No.2 for the grant of permission to transfer the plot in the name of complainant under the transfer policy of PUDA and the requisite permission was granted by OP No.2 vide his letter No.4321 dated 23.2.1996. The OP No.2 vide his letter dated 4.4.1996 informed the General power of Attorney of Sh.Raghbir Singh that the area of the plot is 69.44 sq.yds excess and asked him to deposit Rs.1,06,937/- (69.44 x 1400 + 10% extra) as price of the excess area and further informed that reallotment letter would be issued only after deposit of the said amount. It was further submitted that Sh.Raghbir Singh had already applied to OP No.2 for transfer of plot to the complainant and to issue re-allotment letter in his name, as such the complainant deposited the said amount of Rs.1,06,937/- but OPs did not issue the reallotment letter in favour of the complainant. In the meantime the first installment amounting to Rs.96,250/- principal + Rs.57,750/- = Total Rs.1,54,000/- became due on 31.8.1996 and the complainant deposited the same vide receipt No.83 dated 2.9.1996. However the OPs had not issued the re-allotment letter in the name of the complainant and the plot stood in the name of Sh.Raghbir Singh. Finally, the re-allotment letter of the plot in the name of the complainant was issued by OP No.2 on 3.12.2001 and thereafter the complainant deposited the remaining five installments as per the following details :-

It was submitted that as per condition No.1 of the allotment letter/reallotment letter, the allotment of the plot is governed by the provisions of the Punjab Regional and Town Planning and Development Act, 1995 and rules/regulations framed thereunder and as amended from time to time. It was submitted that as per condition No.10 of the reallotment letter issued in favour of the complainant and Rule 13 of the Punjab Regional and Town Planning and Development Act, 1995 framed under Section 180 of the Punjab Regional and Town Planning and Development Act, 1995 (hereinafter referred to as the PUDA Act), the complainant was required to complete the construction of the building on his plot within 3 years from the date of original allotment i.e. 31.8.1995 and hence the Ops were required to deliver possession of the plot to the original allottee/the complainant soon after allotment to enable him to complete the construction of the building within the prescribed period of 3 years but the OPs failed to deliver the possession of the plot to the complainant for more than 3 ½ years despite the fact that they had charged the price of the plot @ Rs.1400/- per sq.yds which was the price for developed plots prevalent at the time of allotment in the year 1995. The OP No.2 delivered the paper possession of the plot to the complainant on 15.3.1999 but in the possession certificate issued by OP No.2 the measurement of the plot was 30’ – 9” X 75” and the area was mentioned as 256.25 sq.yds instead of 560.44 sq. yds. Since the area of the plot was wrongly mentioned in the possession certificate as 256.25 sq.yds instead of 569.44 sq. yds. As such, the complainant vide letter dated 15.11.1999 pointed out the mistake to OP No.2 and requested to rectify the mistake. OP No.2 vide letter dated 16.12.1999 informed the complainant that area of the plot be read as 569.44 sq.yds instead of 252.25 sq. yds. After receipt of the letter dated 16.12.1999, the complainant engaged M/s Architects Consortium, Architects, Planners, Engineers and Industrial Designers, SCO 39, Phase 3 B 2, Mohali for preparation building plans of the proposed house on the plot and approval thereof from the competent authority as required under the Punjab Urban Planning and Development Authority (Building) Rules, 1995 and paid them a fee of Rs.15,000/- as fee plus service tax @ 5% i.e. Rs.750/- totaling Rs.15,750/-. However the receipt obtained from the said architects are not traceable now. The said building plans were approved by OP No.2 vide letter dated 19.9.2000. After approval of the building plants of the proposed house, the complainant wanted to start the construction of the house and for that purpose, he applied to OP No.2 on 27.12.2000 to give demarcation of the plot. The OP No.2 deputed his J.E Sh.Tara Singh to give the demarcation, who accompanied by the complainant went to the site but after inspection, it was found that the area of the block was 20 ft. less in width than shown in the demarcation plan and as such JE showed his helplessness to give demarcation of the plot to the complainant. After that, the complainant vide his application dated 10.1.2000 brought the matter to the notice of Additional Chief Administrator, PUDA, Mohali and requested him to sort out the matter. The Additional Chief Administrator, PUDA, Mohali marked his application to SDO with the order to get the demarcation done in two days and to intimate him. The SDO  vide his letter dated 17.1.2001 informed that while the concerned JE went for demarcation of plot no. 3552 at site, it was found that the area in the block of plots No.3552 to 3565 was less by 20 feet, while in the plan it was 642’ – 6” but at site it was 622’ – 6” and in this way, the whole block gets disturbed. He, therefore, requested the Divisional Town Planner to send the amended demarcation plan immediately so that demarcation could be given to the party. Thereafter the complainant vide his application dated 22.2.2001 brought to the notice of OP No.2 that due to the delay caused by PUDA, it would not be possible for him to complete the construction on the plot within the specified time and requested the OP No.2 to give him the extra time to complete the construction. Finally the OP No.2 vide his letter dated 10.12.2002 informed the complainant that as per report of the field staff the size of the plot No.3552, Sector 69, Mohali was 45’ – 9” x 100’-0”. The total area of the plot has been reduced from 569.44 sq.yds to 508.11 sq.yds and the OPs had recovered the price of the plot for 569.44 sq.yds. Thus the complainant was entitled to refund the price of 61.33 sq.yds, which @ Rs.1400/- sq.yds comes to Rs.94,109/- with interest @ 18% p.a. from the date of deposit i.e. 18.4.1996 till the date of refund. The complainant sent a legal notice dated 16.1.2003 to the OP No.2 for the refund of this amount but to no avail. The area of the plot had squeezed as mentioned above and the building plan of the proposed house sanctioned by OP No.2 vide its letter dated 19.9.2000 had been rendered infractuous. He engaged the architect again to get fresh building plan prepared and sanctioned on suffering another amount of Rs.15,750/- against receipt. The above said act of OPs amounts to deficiency in service. Hence, the complaint was filed.

3.         Reply was filed by OPs and admitted the allotment vide letter dated 31.8.1995. It was pleaded that the permission to transfer of plot was granted to Sh.Raghbir Singh through his General Power of Attorney. He had also applied for transfer of plot through his General Power of Attorney. The amount of Rs.1,06,938/- was deposited by Sh.Raghbir Singh through his attorney Sh.Sandip Singh. The receipt was inadvertently issued in the name of Sh.Raghbir Singh. The amount was deposited by one Ujjagar Singh and receipt was issued in the name of Sh.Tarsem Singh. The amount was not deposited by Sh.Raghbir Singh. The complainant vide letter dated 30.5.1996 of the OP asked to explain the contradiction in his age mentioned in affidavit and indemnity bond and he was also asked to deposit an amount of Rs.1040/- which was less from the amount deposited on account of transfer fee. The complainant vide his letter, which was received in the office of OP on 27.6.1996 described his age as 39 years and also deposited Rs.1040/-. Thereafter, the reallotment letter was issued to the complainant on 3.12.1996. It was denied that the OP failed to de3liver the possession to the complainant. The complainant was delivered the possession of plot on 15.3.1999. It was further pleaded that the physical possession at spot could not be delivered because the area of block comprising House No.3538 to 3565 including House No. 3552 was found to be less by 20’ in width. The SDO (Building) vide his letter dated 17.1.2001 to Divisional Town Planner asked for correction of demarcation plan. The price of Rs.1400 sq. yds of the plot was charged from the complainant as per the terms of allotment letter. It was denied that the complainant paid an amount of Rs.15,750/- to the Architects for preparing and approving building plan of the house. The OPs immediately asked the Divisional Town planner to provide correct demarcation plan when it was found that the area in the block of houses bearing No.3538 to 3565 is 20 ft less width than the area given in the demarcation plan and that it eventually informed the complainant vide letter dated 10.12.2002 about the demarcation as made afresh specifying that the area of the plot as per new demarcation plan was 45’9” x 100’. It was admitted that the area was reduced from 569.44 sq.yds to 508.11 sq.yds. it was denied that the complainant was entitled to the refund of price of 61.33 sq.yds. It was further pleaded that complainant obtained the possession of the plot on 15.3.1999 and as such he was liable to pay the extension fee amounting to Rs.36,475/- for the year 2002, which had been adjusted from the amount of price of said 61.33 sq. yds. It was also denied that the complainant was entitled to refund with interest @ 18% from the date of deposit and submitted that deduction in the area of the plot was not due to the negligence on the part of OPs. The complainant never suffered expenses of the Architect second time as he had not paid any amount to the Architect earlier as alleged in the complaint. It was submitted that the allotment of the plot is to be governed by PUDA Act and rules and it was entitled to recover the extension fee at the rate fixed by it.  Rest of the allegations leveled by the complainant in the complaint were denied and submitted that there was no deficiency in service on the part of OPs and prayed for dismissal of the complaint with special costs. 

4.         The parties led their evidence in support of their contentions.

5.         The learned District Forum allowed the complaint with costs quantified at Rs.2500/- and directed the OPs.

i)         To make refund of Rs.94,109/- to the complainant being the price paid by the complainant for the excess area with interest @ 18% p.a. from the date of deposit i.e. 18.4.1996 till realization, fully detailed in para No.4 of the impugned order.

ii)        To pay to the complainant a sum of Rs.15,750/-, which he suffered duly detailed in para No.5 of the impugned order.

iii)       To pay Rs.8,57,000/- as compensation to the complainant as detailed in para No.6 of the impugned order.

iv)        To permit the complainant 3 years period w.e.f. 10.12.2002 for raising construction over the plot allotted without charging any extension fee.

            The above said order was directed to complied with by the OPs within 30 days from the date of receipt of certified copy of the order failing which the amount of Rs.15,750/- and also the compensation of Rs.8,57,000/- would carry interest @ 9% p.a. till realization. 

6.            Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the OPs.  Sh.Balwinder Singh, Advocate has appeared on behalf of appellants and Sh.Y.S.Dhami, Advocate has appeared on behalf of respondent.

7.         In appeal, it has been contended by the OPs that the learned District Forum has failed to appreciate the fact that while ordering refund of Rs.94,109/- with interest @ 18% p.a. from the date of deposit i.e. 18.4.1996 till realization, as discussed in para No.4 of the impugned order, the learned District Forum completely ignored the fact that the reduction in the area was neither willfull nor deliberate nor intentional nor due to any malafides on the part of any of the officials of the appellants nor due to apparent negligence on the part of any of the officers/officials but due to a bona fide and genuine administrative fact that it is only when Sh.Tara Singh, JE went to the spot to give demarcation to the respondent, that he found the width to be less by 20 ft in the entire block comprising House Nos.3538 to 3565. It is submitted that the grant of interest @ 18% p.a. on the refundable amount is in excess and unjustified and liable to be quashed/reduced as the respondent had not deposited the money with the appellant in a fixed deposit for the sake of getting interest. It is submitted by the appellant that while granting the refund of Rs.15,750/- the learned District Forum has failed to appreciate the fact that though the respondent had submitted the receipts for making payment to the architects on the second occasion but he had not submitted any receipt for having made payment to the architect in the first instance and the respondent had stated in para No.8 of the complaint that the receipt obtained from the said architects is not traceable now. The learned District Forum did not put the respondent to strict proof before granting the relief of Rs.15,750/-. It is surprising that when the respondent could easily attach around 26 annexures to the complaint, how is it possible that he has misplaced an important document like the receipt for having paid the money to the architect in the first instance. Hence, the relief granted vide sub-para (ii) of para no.10 of the impugned order is not based on any evidence and is liable to be struck down. The amount of compensation i.e. Rs.8,57,000/- being interest @ 18% p.a. on the amounts deposited by way of installments towards the cost of the plot in question is excessive, arbitrary and illegal. While granted the compensation to the tune of Rs.8,57,000/- the learned District Forum has failed to appreciate the fact that the installments were agreed to be paid with the requisite amount of interest by way of yearly installments because the respondent was not in a position to make lumpsum payment. The learned District Forum has also ignored the fact that there were neither malafides nor negligence nor deliberate and intentional delay in giving the demarcation to the respondent. The delay was caused due to bona fide and genuine mistake which had crept in, in the measurement of the entire block consisting of plots No.3538 to 3565. The learned District Forum has gravely erred in considering a genuine and unintentional reason of delay in giving the demarcation as a deficiency in service while awarding excessive compensation as discussed in para no. 6 of the impugned order. The learned District Forum has also erred in attributing the delay for more than 7 years 3 months in handing over the possession to the respondent. It is submitted that the possession was handed over on 15.3.1999. Had the respondent being vigilant, he could have immediately initiated actions for getting the demarcation done whereas the respondent got his building plants approved only on 19.9.2000 i.e. after a lapse of 1 – ½ years. The appellants/OPs had all the intentions to give the demarcation on 27.12.2000 when Sh.Tara Singh, JE had gone to the spot to give demarcation and found that the area was 20ft. less. The bona fide intentions of the appellants/OPs in giving demarcation at the earliest is also evident from the fact that when the respondent submitted application dated 10.1.2001 to ACA PUDA, Mohali and later issued instructions to SDO to give the demarcation within 2 days. Since the demarcation could not be given till receipt of the amended plan, the same was delayed due to the lengthy administrative procedures. The learned District Forum has also failed to appreciate the fact that the prevalent rate of the plot in question is Rs.3750/- sq. yd whereas the respondent has got the plot @ Rs.1400/- sq.yds.  Hence the compensation to the tune of Rs.8,57,000/- is excessive and arbitrary and is liable to be modified. It is further submitted that the learned District Forum has directed to permit 3 years w.e.f. 10.12.2002 for raising construction over the plot without charging any extension fee and on the other hand has also awarded compensation amounting to Rs.8,57,000/-. This amounts to double jeopardy against the appellants and excessive compensation in favour of the respondent. Hence, it is prayed that the appeal may kindly be allowed and the order passed by the learned District Forum may kindly be set aside/modified.

7.         We have perused the record and heard the learned counsel for the parties.

8.         It is an admitted fact that plot bearing No. 3552-C measuring 500 sq. yds was originally allotted to Raghbir Singh vide allotment letter dated 31.8.1995 issued by OP No.2 against tentative price of Rs.7,70,000/- for a corner plot. Vide letter dated 4.4.1996 original allottee was asked to deposit further amount of Rs.1,06,937/- as the plot allotted was having additional area by 69.44 sq. yds. The plot allotted as above was transferred in the name of the complainant under the transfer policy of PUDA followed by re-allotment letter dated 3.12.1996. The complainant was eventually delivered defacto possession of the plot measuring 508.11 sq. yds as against 569.44 sq. yds i.e. less by 61.33 sq.yds on 10.12.2002.

9.         The learned counsel for the appellants/OPs argued and assailed the impugned order passed by the learned District Forum on the following issues.

i)         That while ordering refund of Rs.94,109/- with interest @ 18% p.a. from the date of deposit i.e. 18.4.1996 till realization as discussed in para No. 4 of the order, the learned District Forum has completely ignored this fact that the reduction in the area was neither willfull nor intentional. It is due to bonafide and genuine administrative fact. Moreover the refund of the amount of Rs.94,109/- along with interest @ 18% p.a. is on a higher side and prayed that if at all this amount is to be refunded to the complainant then the rate of interest should not be awarded more than @ 9% p.a. as prevalent during the current period.

ii)        That the learned District Forum while granting refund of Rs.15,750/- did not put the complainant to a strict proof that whether actually the complainant had paid the money to the architect. Hence, the relief granted by the learned District Forum vide sub-para (ii) of para No. 10 of the impugned order is not based on any evidence and is liable to be struck down.

iii)       The learned counsel argued that the learned District Forum has erred in awarded the compensation for Rs.8,57,000/- as discussed in para No.6 of the impugned order and awarded vide para No. 10 (iii). The same is liable to be modified and prayed for the grant of reasonable compensation.

iv)        The learned District Forum has also erred in attributing the delay of more than 7 years 3 months in handing over the possession to the complainant whereas it is humbly submitted that the possession was handed over to the complainant on 15.3.1999. Had the complainant being vigilant, he could have immediately initiated actions for getting the demarcation done whereas the complainant got his building plans approved only on 19.9.2000 i.e. after a lapse of 1-1/2 years. There is nothing mala fide on the part of OPs as alleged in the complaint since the demarcation could not be given till receipt of amended plan, the same was delayed due to the lengthy administrative procedures.

v)         It was argued that the learned District Forum has directed the appellants/OPs to permit 3 years w.e.f. 10.12.2002 for raising construction over the plot without charging any extension fee and on the other hand also awarded compensation amounting to Rs.8,57,000/-. Hence, this amounts to double jeopardy against the appellants/OPs.

            Thus with these issues, the appellants/OPs prayed that the appeal may kindly be allowed and the impugned order may kindly be set aside. 

10.       The learned counsel for the respondent/complainant argued that the area of the said plot had been subsequently squeezed to 508.11 sq.yds as against 569.44 sq.yds originally allotted and that too after the sanction of building plan vide letter dated 19.9.2000. The complainant had paid a sum of Rs.15,750/- more to an architect i.e. M/s Architects Consortium, SCO No.39, Phase 3B2, Mohali for the purpose of  preparing the fresh site plan with the new dimensions and to get the same approved. This fact has been fully established on the record that the complainant had paid a sum of Rs.15,750/- to an architect for preparing the fresh site plan. Therefore, the OPs are liable to compensate the complainant for the same. 

11.       It was argued that the delivery of defacto possession came into being after a period of more than 7 years 3 months from the date of initial allotment. Thus definitely there is deficiency in service on the part of OPs in delivering defacto possession of the plot to the complainant after such a long delay and the learned District Forum has rightly awarded the compensation by calculating the interest @ 18% p.a. on the amount deposited from time to time towards price of the plot as per allotment/reallotment letter/memo No.7056 dated 4.4.1996 w.e.f. date of deposit till 10.12.2002. This interest @ 18% p.a. could cover the costs of escalation in prices of the construction material as well as the costs of construction. While awarding this compensation, the learned District Forum has rightly relied upon the order passed by the Hon’ble State Commission, Haryana in the case titled as Malkiat Singh Vs. Estate Officer, HUDA etc. 2003(2) CLT 400.

12.       It was argued that as the defacto delivery of the plot has come in being on 10.12.2002 and the learned District Forum has rightly directed the Ops to permit the complainant 3 years period w.e.f. 10.12.2002 for raising the construction over the plot in question without charging any extension fee.

13.       After going through the facts and circumstances of the case, we have come to the conclusion that there is deficiency in service on the part of OPs.

i)         The learned District Forum has rightly directed the OPs to refund the excess amount as the area of the plot stood squeezed by 61.33 sq.yds (569.44 – 508.11) for which the complainant is legally entitled for the refund of Rs.94,109/- along with interest @ 18% p.a. from the date of deposit i.e. 18.4.1996 till realization as discussed in para no.4 of the impugned order.

ii)        As regard to the second issue, the learned District Forum has rightly awarded a sum of Rs.15,750/- to the complainant because it has been established on the file that the complainant had paid a sum of Rs.15,750/- to the architect for the fresh site plan on the second occasion.

iii)       The compensation of Rs.8,57,000/- awarded by the learned District Forum is appropriate because the defacto possession of the said plot was given to the complainant after a delay of more than 7 years 3 months and that too without any fault on the part of complainant, it is evident that the complainant had suffered a lot during this period on many counts and the learned District Forum has rightly awarded this amount of compensation by calculating the interest @ 18% on the amount deposited by the complainant towards the price of the plot from the date of deposit till the date of demarcation on 10.12.2002 by keeping in mind that the loss suffered by the complainant on account of escalation of cost of construction due to delay in giving the right demarcation and actual handing over the physical possession of the said plot.

iv)        As the defacto delivery of the plot was given to the complainant on 10.12.2002 and there is nothing wrong in the direction given by the learned District Forum to the OPs to permit the complainant three years period w.e.f. 10.12.2002 for raising construction over the plot allotted without charging any extension fee. The delay in handing over the possession leading to delay in construction is clearly attributed to the appellants/OPs and it cannot be allowed to take advantage of its own fault by charging non-construction fee.

14.       After discussing all the issues assailed in appeal by the OPs, we are of the view that the order passed by the learned District Forum is just, fair and proper. Hence, no interference is called for and the appeal filed by the OPs is hereby dismissed as devoid of any merit and the order passed by the learned District Forum is upheld. The parties are left to bear their own costs. 

15.       Copies of this order be sent to the parties, free of charge.