DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.409 of 2017

                                                 Date of institution:  12.06.2017                                                     Date of decision   :  15.06.2018

Nand Kishore Garg son of Shri Mohan Lal, resident of village Lamlehra, PO Nangran, Tehsil and District Una (H.P.).

…….Complainant

Versus

1.     M/s. Sky Rock City Welfare Society (Regd.), Banur Road, Back side C.G.C. College, Landran, Sector 111-112, Mohali Punjab, through its President/Authorised signatory.

2.     Mr. Navjeet Singh s/o Daljit Singh, President of the Sky Rock City Welfare Society (Regd.), resident of House No.67, Sector 69, Mohali, Punjab (now in Central Jail, Patiala as per orders dated 27.03.2017 passed by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh), through Superintendent Jail Patiala, Punjab.

3.     Greater Mohali Area Development Authority (GMADA) through its Chief Administrator, PUDA Bhawan, Sector 62, SAS Nagar, Mohali.

……..Opposite Parties.

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Shri Amrinder Singh Sidhu, Member

                Mrs. Natasha Chopra, Member.

Present:     Shri P.P. Singh, counsel for complainant.

                OP No.1 and 2 ex-parte.

                Shri G.S. Arshi, counsel for OP No.3.

Order by :-  Shri G.K. Dhir, President.

Order

               Complainant after going through news paper advertisement of OP No.1 became member of OP No.1 by paying Rs.10,000/- as registration/membership charges on 20.06.2011. Share certificate dated 03.03.2012 was also issued in favour of complainant for disclosing about his share of 150 sq. yards in the plot. Complainant was required to make payment of 90% of the agreed sale consideration amount of Rs.15,75,000/- in four installments. Balance 10% amount was to be paid at the time of possession. Complainant paid total amount of Rs.15,30,000/- during period from 01.09.2011 to 23.03.2015. Details of payments made by complainant to OPs are given below:

                As per clause-5 of terms and conditions of the agreement, possession of the plot was to be handed over not later than two years of registration/requisition and as such the same was virtually to be delivered before 20.06.2013. Despite receipt of 90% of amount of sale consideration by 23.03.2015, OPs have not performed their part of the contract at all. Rather complainant was disclosed about his eligibility for draw of lots and allotment of plot only, if he signs a provisional allotment letter. So provisional allotment letter dated 28.12.2012 was signed by complainant. In that letter terms and conditions cleverly changed for incorporating Clause-13 as if possession will be given within 36 months from the date of allotment. So as per this condition, possession was to be handed over by 28.12.2012. Complainant personally visited the site several times and lastly in March, 2017 for finding that no development work commenced on the site. Rather the land was lying vacant. So finding that false assurance regarding delivery of possession was given by OPs, complainant snapped photographs of no development work on the spot on 23.03.2017. OP No.1 failed to carry out external and internal development works like that of laying of roads, water supply, sewerage and drainage system etc. OPs failed to comply with provisions of Punjab Apartment and Property Regulation Act, 1995 and they made false promise to complainant and as such by claiming that OPs adopted unfair trade practice, this complaint filed for seeking direction to OPs to deliver physical possession of the fully developed residential plot without further delay and even to pay 18% interest on the deposited amount with effect from 23.03.2015 till date and further till date of handing over of physical possession. In the alternative prayer made for refund of the deposited amount of Rs.15,30,000/- alongwith interest @ 18% per annum from the date of respective deposits till date of realisation. Compensation for mental harassment and agony of Rs.3.00 lakhs and litigation expenses of Rs.35,000/- more claimed.

2.             OP No.1 and 2 did not appear despite delivery of registered notices and as such they were proceeded against ex-parte vide orders dated 26.09.2017.

3.             OP No.3 filed reply for claiming that relationship of consumer and service provider do not exist between complainant and OP No.3, due to which complainant has no locus standi to file the complaint. Besides, complaint alleged to be filed without any cause of action against OP No.3. Complaint also alleged to be bad due to mis-joinder and non-joinder of necessary parties. Facts regarding transactions between complainant and OP No.1 and 2 denied for want of knowledge by OP No.3. However, it is claimed that license issued in favour of OP No.1 and 2 has neither been cancelled nor renewed by OP No.3. However, OP No.3 is taking action against OP No.1 for violating conditions of license and not carrying out the development works. Admittedly license of OP No.1 was issued on 06.05.2014 and thereafter on issue of public notice, office of OP No.1 was sealed. Further through public notice published in the Tribune dated 18.02.2017, general public was made aware as if OP No.1 society has cheated general public by booking flats/plots in excess of available one in the project. Even a complaint was forwarded to SSP, Mohali for registration of FIR against Mr. Navjeet Singh President of OP No.1 society. After receipt of number of complaints against OP No.1, meeting of representatives of society and the complainants was held in which following decisions were taken:

i)      Allotment letters be issued to those 10 members, who have deposited 90% payment with the society within one week.

ii)     Out of the remaining 86 plots, allotment letters be issued to those members who have deposited 90% payment, on first come first served basis.

iii)    While issuing allotment letters to the members, plot no. and sector should be intimated to the allottees as per the approved layout plan.

iv)    Those members who want to get refund of their amount deposited with the society, be refunded their amount as per terms and conditions of agreement with the society, on first come first served basis.

v)     A committee under the Chairmanship of Superintending Engineer (S.E.), GMADA shall inspect the colony in question and shall submit its report to the office regarding development works of the colony, within a period of 15 days.

                The committee constituted inspected the site and submitted report vide letter No.959 dated 18.02.2016 for pointing out the following irregularities:

i)      The welfare society has till date not got the service plans approved by it as per the approved layout plan of the colony from the office of Competent Authority.

ii)     A building of CGC Landran exists on the land, where plots were carved out as per the approved layout plan.

iii)    Although lines of water supply, sewer and storm sewer have been laid in some part of the colony, but road-gullies regarding the same have not yet been constructed.

iv)    There is no arrangement for disposal of sewer and storm sewer at the site, till date.

                So OP No.1 has not complied with the terms and conditions of license granted by OP No.3. Reply to certain queries was sought from OP No.1. OP No.1 gave list of total 350 members registered with the society. As per that list 170 members were allotted plots of different sizes, but 96 members opted for refund of the deposited amount. The list submitted by OP No.1 did not disclose proper and complete particulars of various members of the society, so it cannot be properly ascertained as to who are the actual allottees of plots. OP No.1 society was required to acquire ownership of area of the colony which was not in ownership of the promoter.  Consent letters of land owners were submitted. As per the latest record, OP No.1 acquired ownership of only 7.475 acres. OP No.1 did not deposit the requisite amount of EDC/License fee and that is why Revenue Department requested to stop registration of sale deeds regarding plots/flats/show rooms etc. by writing letter dated 04.11.2016. Estate Officer, GMADA vide letter dated 08.02.2017 requested SSP, Mohali to register FIR. Other averments of the complaint denied.

4.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-10 and Mark-A and thereafter closed evidence.  Counsel for OP No.3 tendered in evidence affidavit Ex.OP-3/1 of Shri Meetinder Singh Mann, District Town Planner alongwith documents Ex.OP-3/2 to Ex.OP-3/4 and thereafter closed evidence.

5.             Written arguments not submitted by any of the parties, but oral arguments heard and records gone through.

6.             Before adverting to merits of the case, it needs be determined as to whether this Forum has pecuniary jurisdiction to deal with this case or not because the order passed by a court having no jurisdiction, will be nonest in the eyes of law. After going through prayer clause, it is made out that refund of the deposited amount of Rs.15,30,000/- sought with interest @ 18% per annum from the dates of respective deposits till date of realisation. As per details of payments chart Ex.C-6 last of payment of Rs.1,36,250/- was made on 23.03.2015. If this last date of deposit be taken into consideration vis. a vis. date of institution of complaint as 12.06.2017, then it is made out as if complaint filed after more than two years and two months of date of last of payment made by complainant to OPs. As interest @ 18% per annum from the dates of deposits claimed and as such virtually interest on the deposited amount of Rs.15,30,000/- claimed for period of more than two years and two months, if the date of last of deposit taken into consideration. By calculating interest at demanded rate of 18% per annum on the total paid amount of Rs.15,30,000/-, it is made out as if interest of amount of Rs.2,75,400/- claimed by complainant per annum. So claimed interest for period of two years will be Rs.5,50,800/-. By adding this amount of Rs.5,50,800/- to the claimed principal amount of Rs.15,30,000/-, it is made out as if the claimed amount inclusive of interest for period of two years is Rs.20,80,800/-. Compensation for mental agony and harassment of Rs.3.00 lakhs and litigation expenses of Rs.35,000/- more claimed. So total of all these amounts comes to Rs.24,15,800/-. This amount of Rs.24,15,800/- does not include the amount of interest claimable from the dates of deposit ranging for the  period from 20.06.2011 to 23.03.2015 mentioned in Ex.C-6 and as such it is obvious that virtually the aggregate of reliefs claimed through complaint goes beyond the pecuniary limit jurisdiction of this Forum.  This Forum has pecuniary jurisdiction to deal with cases where valuation of aggregate of claimed reliefs is upto Rs.20.00 lakhs only. Being so, the complaint certainly is not maintainable before this Forum due to which same deserves to be returned back to complainant for presentation before the Hon’ble Punjab State Consumer Disputes Redressal Commission who will be having pecuniary jurisdiction to deal with this case.  

7.             As per law laid down in case of Bishwanath Choudhary Vs. Dr. Anand Gautam Das Gupta, 2016(1) CPJ 17 (Hon’ble Jharkhand State Consumer Disputes Redressal Commission, Ranchi), in view of Section 15 of Consumer Protection Act, 1986, question of pecuniary jurisdiction to be decided on the basis of claim made and not on the basis of relief granted. Same is the proposition of law laid down by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case Ambrish Kumar Shukla & 21 Ors Vs. Ferrous Infrastructure Pvt. Ltd. 2016(4) CPR 83. View taken in this case further reiterated by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No.1364 of 2017 titled as M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. & 2 others Vs. Lalitha Saini, decided on 21.08.2017. Rather in this latest mentioned case of M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. & 2 others (supra) it has been specifically held that the decision rendered by larger bench of Hon’ble National Commission in case of Ambrish Kumar Shukla & 21 Ors Vs. Ferrous Infrastructure Pvt. Ltd (supra)  is binding not only on the Fora below, but even on the other benches of Hon’ble National Commission, unless the same happens to be  a decision rendered by the larger bench than that of the one who decided case of Ambrish Kumar Shukla & 21 Ors Vs. Ferrous Infrastructure Pvt. Ltd  (ibid). So this Forum is bound by decision of Hon’ble National Commission and as such it has to be ascertained as to whether really this Forum has pecuniary jurisdiction to decide this complaint or not. Even if objection regarding pecuniary jurisdiction not raised in the written statement submitted by OPs, despite that it is the duty of this Forum to ascertain as to whether it has pecuniary jurisdiction or not because the judgment rendered without jurisdiction is a nullity in the eyes of law.

8.             In case of Gurbax Singh Bains Vs. M/s. Omaxe Chandigarh and another, 2014(3) CPC 390 (NC) it has been held that if the total value of the claimed relief exceeds limit of Rs.20.00 lakhs including the amount of claimed compensation, then the District Forum lacks pecuniary jurisdiction. Same is the position in the case before us because here the value of claimed relief goes beyond limit of Rs.20.00 lakhs as held above.  It is the aggregate value of the goods purchased or the services hired or availed by the consumer plus the amount of claimed interest and the compensation amount, which are to be taken together for determining the pecuniary jurisdiction of this Forum, is the crux of law laid down in case of Ambrish Kumar Shukla & 21 Ors Vs. Ferrous Infrastructure Pvt. Ltd  (ibid)  and also in case of M/s. Omaxe Chandigarh Extension Developers Pvt. Ltd. & 2 others Vs. Lalitha Saini (supra). So virtually the claimed reliefs through this complaint goes beyond the pecuniary jurisdiction limit of this Forum. Even in case of Kumari Lama versus General Manager ICICI Bank Ltd., 2014 (74) RCR (Civil)748, it has been held that aggregate of the reliefs claimed including that of refund amount, claimed compensation amount and interest to be taken into consideration for finding the pecuniary jurisdiction. In this case it has been specifically mentioned that if the District Forum has no pecuniary jurisdiction, then order passed by the Forum will be perverse in the eyes of law and the same being illegal, liable to be set aside.

9.             As a sequel of above discussion, the complaint ordered to be returned to the complainant for presentation before the Hon’ble State Commission Punjab because this Forum has   no pecuniary jurisdiction. Certified copies of the order be supplied to the parties free of costs as per rules.  File be indexed.

Announced

June 15, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                                   (Amrinder Singh Sidhu)                                                                 Member

(Mrs. Natasha Chopra)

Member