These three revision petitions have been filed against the order dated 06.04.2017 passed by the State Consumer Disputes Redressal Commission, Punjab, (in short ‘the State Commission’) in FA Nos.533 of 2016 & 736 of 2016.  Revision Petition No.2292 of 2017 has been filed by the complainant, whereas Revision Petitions No.3391 of 2017 & 3392 of 2017 have been filed by the opposite party.

2.      Brief facts of the case are that the complainant Saurabh Jain was allotted plot by the opposite party Amritsar Improvement Trust in the year 2009 and the total consideration was about 16.50 lakhs.  The time period for giving the possession was three years.  When the possession was not given, the complainant filed a consumer complaint bearing No.363 of 2014 before the District Consumer Disputes Redressal Forum, Amritsar, (in short ‘the District Forum’).  The District Forum vide its order dated 06.06.2016 directed the opposite party to pay a compensation of Rs.1,00,000/- to the complainant along with interest @ 9% p.a. from the date of the order of the District Forum as well as cost of complaint as Rs.2,000/-.

3.      Aggrieved by the order of the District Forum, the complainant preferred appeal bearing No.533 of 2016 before the State Commission.  Similarly, opposite party, Amritsar Improvement Trust preferred an appeal bearing No.736 of 2016 before the State Commission.  The State Commission vide its order dated 06.04.2017 dismissed the FA No.736 of 2016 filed by the opposite party, but accepted the appeal filed by the complainant being appeal No.533 of 2016 and enhanced the amount of compensation from Rs.1,00,000/- to Rs.1,50,000/- and cost of litigation from Rs.2,000/- to Rs.20,000/-.  The State Commission also allowed the interest which was ordered by the District Forum.

4.      Hence, the present revision petitions by the complainant as well as by the opposite party Amritsar Improvement Trust.

5.      Heard the learned counsel for both the parties and perused the record.  Learned counsel for the complainant stated that the allotment was done in the year 2009 and the possession was to be given within three years.  However, the possession was not given in time and that is why the consumer complaint was filed.  Though the State Commission has enhanced the compensation as well as the cost of litigation, the complainant is not fully compensated as the complainant must get interest on the deposited amount from the due date of possession, which was in the year 2012.  The total cost of the plot was Rs.16.50 lakhs and the complainant has paid more than Rs.20,00,000/-, which includes the interest for the payment of delayed instalments.  With respect to the objection of the opposite party that the District Forum did not have the pecuniary jurisdiction to decide the complaint, learned counsel stated that this issue of pecuniary jurisdiction was not raised either before the District Forum or before the State Commission and therefore, this issue cannot be raised at the stage of revision petition.  He further stated that the issue of jurisdiction has been finally decided by the larger Bench of this Commission in Consumer case no 97of 2016 Ambrish Kumar Shukla and others vs. Ferrous Infrastructure Pvt Ltd. decided on 7.10.2016 (NC), wherein this Commission has clearly held that only the consideration of the ‘property’ be taken into account along with compensation forms the basis for pecuniary jurisdiction.  The total consideration was only Rs.16.50 lakhs and therefore, the District Forum found it within its jurisdiction. As the jurisdiction was not opposed by the opposite party, the District Forum was not required to consider this aspect.  In respect of the objection of the opposite party that “agreement to sell” was not submitted by the complainant as per the provisions of the allotment letter, the learned counsel for the complainant stated that the State Commission has clearly observed that this is a mere formality and the opposite party itself has given possession to the complainant in the year 2016 without insisting on the agreement to sell. It means that the opposite party has relinquished the requirement of execution of agreement to sell before handing over of the possession.  Hence, this plea cannot now be taken by the opposite party that the complainant is not entitled to any interest on the delayed possession because he has not signed the agreement to sell.

6.      On the other hand, learned counsel for the opposite party states that the complainant has not fulfilled the other conditions of the allotment dated 30.12.2009. He mentioned that condition No.3 provides that if the instalment is not paid even after the delay of six months, the opposite party will have right to cancel the allotment. However, in the circumstances of complainant, the same was not cancelled. The complainant has deposited the instalments with interest.  The most important condition is condition No.5, wherein following has been mentioned:-

“5.  The agreement of sale shall be executed within 30 days from the issuance of this letter, on production of two stamp papers of Rs.300/- each, with 2 attested photographs, along with 2 witnesses (with attested identity proof) by the allottee in the office of the trust.” 

7.      The learned counsel for the opposite party also mentioned condition No.7 of the allotment letter, which reads as under:-

“7.   That the basic amenities under the scheme will be completed with a period of 2 ½ years within the said period the instalments should be paid and the possession of the plot can be taken after execution of the agreement to sell between the parties. The allottee has to complete the construction over the allotted plot within 3 years from the date allotment after getting the plan sanctioned from the trust or the allottee has to complete the construction within 2 years from the date on which the facility of water supply and road (where the plot is situated) provided by the trust.  In case construction is not completed within said then period can be further extended to 2 years (after paying non-construction fees at the rate fixed by the government from time to time).”

8.      On the basis of the above two conditions, it was argued by the learned counsel for the opposite party that no agreement to sell was executed by the complainant and therefore, there was no question of giving possession to the complainant.  However, after the order of the District Forum, the possession has been given to the complainant and it is recorded in the possession memo that the possession is being given in compliance of the order of the District Forum.  Therefore, the basic plea that there is no delay on the part of the opposite party in handing over the possession as the complainant did not submit the agreement to sell is still valid and on this plea the opposite party seeks the intervention of this Commission to annul the wrong order passed by the fora below in respect of the compensation granted to the complainant.  In fact, no compensation is payable for the delayed possession because the complainant himself has not completed the formalities particularly the submission of agreement to sell. It was further submitted by the learned counsel for the opposite party that the period of three years was given with the anticipation that the allottees will deposit the instalments in time.  However many allottees like the complainant deposited instalments with huge delays.  Though the interest has been paid by them, it cannot compensate for the non-availability of the funds to complete the construction in time.  The complainant has deposited the last instalment only on 28.02.2014 and therefore, he cannot expect the possession to have been given before at least this date.

9.      A legal issue was raised by the learned counsel for the opposite party that complaint was not maintainable before the District Forum as the complainant had paid more than Rs.20,00,000/- in respect of the consideration for the plot and interest on the delayed instalments. Even if the total consideration was taken to be Rs.16.50 lakhs, the complainant had also asked a compensation of Rs.10,00,000/- and thus, clearly as per the decision of the larger bench of this Commission in Ambrish Kumar Shukla and others vs. Ferrous Infrastructure Pvt Ltd. (supra), the District Forum did not have the pecuniary jurisdiction to decide the present complaint.  It is true that the issue was not raised either before the District Forum or in appeal before the State Commission, however, it is a legal issue and can be raised at any stage.  In support of his argument learned counsel for the respondent Amritsar Improvement Trust referred to the following judgements:-

(1)   Dr. Jagmittar Sain Bhagat Vs. Dir. Health Services, Haryana and Ors. 2014(2) MPHT 1.  It has been held that:

“7.   Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause.  Such an issue can be raised at any stage of the proceedings.  The finding of a Court or Tribunal becomes irrelevant and unenforceable/ inexecutable once the forum is found to have no jurisdiction.  Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation.  The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. (vide United Commercial Bank Ltd. v. Their Workmen, AIR 1951 SC 230; Smt. Nai Bahu V. Lal Ramnarayan & Ors., 1978 (1) R.C.R.(Rent) 211; Natraj Studios (P) Ltd. V. Navrang Studios & Anr., 1981 (1) R.C.R. (Rent) 350; and Kondiba Dagadu Kadam V. Savitribai Sopan Gujar & Ors., 1999 (2) R.C.R. (Civil) 587). 

(2) RP No.4285 of 2012, M/s. Ved Prakash & Sons & Ors. Vs. Om Prakash, decided on 05.11.2014 (NC).  It has been held that:

“8.       A perusal of the reply filed by the OP Bank before the District Forum indicates that in the preliminary objections, the OP have stated that the proceedings initiated by the complainant were without jurisdiction.  However, even if the version of the petitioner is believed that the OP did not raise the issue of pecuniary jurisdiction before the District Forum in so many words, even then, it was the duty of the District Forum to examine the issue on their own whether they had the requisite jurisdiction to deal with the matter.  It is quite evident, therefore, that the order passed by the District Forum is perverse in the eyes of law, as it was passed without jurisdiction.  The State Commission has rightly set aside that order and further given liberty to the petitioner/complainant to file the complaint before the appropriate forum on the same cause of action.  The petitioner/complainant should have filed a fresh complaint before the State Commission in response to the impugned order, rather than filing a revision petition against the said order.”

10.    I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and have examined the material on record.  So far as the issue of preliminary objection of pecuniary jurisdiction is concerned, it is seen that the issue was neither raised in the written statement filed by the opposite party nor the same has been taken as a ground for appeal.  This issue has been taken up for the first time at the stage of revision petition.  As the issue was not raised before the District Forum and apparently the complaint was filed for giving direction to opposite party to hand over the possession and grant a compensation of Rs.10,00,000/-, the District Forum considered the complaint within its jurisdiction and passed the final order.  As the issue was not raised in the appeal, the State Commission also did not give any finding in respect of the pecuniary jurisdiction and the appeal filed by the opposite party was dismissed on merits.  The Hon’ble Supreme Court in Harshad Chiman Lal Modi Vs. DLF Universal and Anr., AIR 2005 SC 4446, held as follows:-

“So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage”.

11.    From the above, it is implied that the issue of pecuniary jurisdiction cannot be taken up in the revision petition as the same was not taken at the first opportunity by the opposite party i.e. neither in the written statement nor in the grounds of appeal. This judgment of the Hon’ble Supreme Court in Harshad Chiman Lal Modi Vs. DLF Universal and Anr., (Supra) apparently seems to be in contradictions to the judgment of Hon’ble Supreme Court in Dr. Jagmittar Sain Bhagat Vs. Dir. Health Services, Haryana and Ors. But this is not so as the judgment in Dr. Jagmittar Sain Bhagat Vs. Dir. Health Services, Haryana and Ors. (supra) relates to matters which have not been kept by the statute within the jurisdiction of a particular court/tribunal and that court/tribunal exercises that jurisdiction.  In my view, both these judgments are complementary to each other.  The judgment in Dr. Jagmittar Sain Bhagat Vs. Dir. Health Services, Haryana and Ors.(supra) relates to cases where a court/tribunal does not have jurisdiction over a subject matter but exercises the jurisdiction and decides the same, whereas, in Harshad Chiman Lal Modi Vs. DLF Universal and Anr. (supra) the observation of the Hon’ble Apex Court is in respect of territorial and pecuniary jurisdiction, though the jurisdiction in respect of subject matter is not disputed.  Thus, it is clear that in the present matter where only the pecuniary jurisdiction has been questioned, the judgment of Dr. Jagmittar Sain Bhagat Vs. Dir. Health Services, Haryana and Ors.(supra) does not seem to be applicable. 

12.    So far as order of this Commission in M/s. Ved Prakash & Sons & Ors. Vs. Om Prakash (supra) is concerned, it is seen that the opposite party had taken the issue of maintainability in the written statement filed by the opposite party, whereas, in the present case no such plea has been taken that the complaint was not maintainable on the ground of pecuniary jurisdiction. It is surprising that the opposite party had not taken this plea in the appeal as well, therefore, in my opinion order passed in M/s. Ved Prakash & Sons & Ors. Vs. Om Prakash (supra) is not going to help the learned counsel for the opposite party.

13.    Coming to the merits of the case, it is seen that inspite of paying the total consideration along with interest on delayed instalments, the complainant has not complied with the condition No.5 of the allotment letter dated 30.12.2009, which relates to execution and submission of the agreement to sell for the reasons best known to the complainant.  It is also true that the State Commission has observed that this was only a formality as the opposite party has already given possession on 02.03.2016 without adhering to this condition relating to agreement to sell.  The assertion of the opposite party is that the possession has been given after the order of the District Forum, though the learned counsel for the opposite party could not clearly pin point whether there was any specific order of the District Forum to give possession.  It is seen that the possession was given on 02.03.2016 during the pendency of the consumer complaint and the same has been recorded by the District Forum.  It clearly strengthens the possibility that the possession may have been given on account of some direction written or oral by the District Forum as this fact is clearly recorded in the possession memo which has been signed by both the parties.  After considering every aspect of the case, the District Forum ordered compensation of Rs.1,00,000/-, which has been enhanced by the State Commission to Rs.1.50 lakhs in appeal filed by the complainant on the ground that even if the possession was required to be given after the payment of last instalment which has been paid on 28.02.2014 there has been still a huge delay in actual handing over of the possession.  The State Commission has also recorded that the pre-condition of submitting agreement to sell was really not that important because even after payment of last instalment, the opposite party did not send any letter for completion of this formality or any other letter.  The State Commission also reached to the conclusion that as there was no offer letter even after payment of last instalment, the construction may not have been completed.

14.    Based on these observations, the State Commission has enhanced the compensation from Rs.1,00,000/- to Rs.1,50,000/-.  Clearly, the State Commission has down played the importance of pre-condition regarding agreement to sell.   It has been stated by both the parties that no conveyance deed has been registered till date in respect of the sale of plot, which is not in the interest of the consumer.  Had there been an agreement to sell, the complainant would have been on a higher footing.  Clearly, there has been lapse on the part of the complainant in completing the formalities as per the allotment letter and therefore, he cannot claim any further compensation in the matter.  Consequently, the revision petition No.2292 of 2017 filed by the complainant is liable to be dismissed.

15.    It is clear that even after the payment of last instalment by the complainant, the opposite party did not offer the possession nor wrote any letter requiring the complainant to come forward to execute the agreement to sell as per the condition of the allotment.  Clearly, the opposite party has delayed the possession even after receiving the last instalment along with interest from the complainant and therefore, the opposite party is definitely deficient in their services and are liable to pay compensation to the complainant for this delay.  The State Commission has critically examined all the points raised by the opposite party in the appeal and on the basis of the observations made by the State Commission and as mentioned above, I find that the enhancement of compensation is justified. Hence, no force is found in the revision petitions filed by the opposite party Amritsar Improvement Trust.

16.    Based on the above discussion, revision petition No.2292 of 2017, revision petition Nos.3391 and 3392 of 2017 are dismissed as I do not find any illegality, material irregularity or jurisdictional error in the order dated 06.04.2017 of the State Commission which calls for any interference from this Commission.