STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Ansal Properties & Infrastructures Ltd., SCO 183-184, Sector 9-C, Chandigarh.

……Appellant/OP

V E R S U S

1.            Subhash Chander Marwaha son of late Shri BL Marwaha, resident of H.No.146, Sector 38-A, Chandigarh.

2.            Mrs. Chand Rani Marwaha wife of Shri Subhash Chander Marwaha, r/o H.No.146, Sector 38-A, Chandigarh.

              ....Respondents/complainants.

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:          Kanwar Yuvraj Singh, Adv. for the appellant.

PER  JAGROOP  SINGH   MAHAL, MEMBER

                    This appeal is directed against the order dated 17.5.2011, rendered by the ld. District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainants/respondents and directed the OP/appellant to refund the amount of Rs.4,19,048/- alongwith Rs.40,000/- as compensation and Rs.10,000/- as litigation costs within one month failing which to pay the same with penal interest @ 9% per annum from the date of filing till realization.

2.                      The facts, in brief, are that the Complainants entered into an Agreement with the OP for the purchase of Independent Ist Floor No.602 (Exclusive Floors) at Golf Links, Mohali for Rs.27,00,000/- and deposited Rs.2,70,000/- as earnest money being 10% of the total price, upon which an allotment letter was issued to them on 05.02.2009. It was clearly stated in the allotment letter that the Ansal Gold Links, Mohali was approved by the Punjab Govt. but later on it transpired that the integrated township, wherein independent floor was being offered to the Complainants, was neither approved nor sanctioned by the Govt.  On 02.03.2009, they further deposited Rs.2,70,000/- as 2nd installment plus Rs.18,657/- each as External Development Charges [EDC] totaling Rs.2,88,657/-. Thereafter, on 25.5.2009 again Rs.18,657/- as EDC were deposited. Thus, a total of Rs.5,77,314/- was deposited by the Complainants with the OP. However, an amount of Rs.1,58,266/- was adjusted at the request of Complainant against Plot No.278 on 16.6.2010. It was alleged that in Jan., 2010, the OP intimated them that since the plans of the independent floors allotted to them were not approved by the PUDA, so they were being allotted a different independent floor being No.213/10. Thereafter, in the month of February, 2010, again the OP intimated the Complainants that their independent floor number has to be changed again as the Govt. has not approved the building plans of the OP. Having lost faith in the OP and totally aghast at the abysmal approach of the OP, they sought refund with interest, but to no avail. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) was filed.

3.                      The OP in its reply admitted the factual matrix of the case and pleaded that an agreement was entered into between the Govt. of Punjab and the OP on 3.7.2006 under which the Govt. of Punjab was under a liability to provide effective storm water drainage and other civic amenities within 240 days, which were not provided within the prescribed period. There were some seasonal drains in the vicinity which used to swell in the monsoon. When the problem of drainage and water sewerage system developed, the villagers fearing flood, filed a PIL bearing CWP No.10469 of 2008 before the Hon’ble Punjab and Haryana High Court and on the directions passed by the Hon’ble High Court, the initial layout plan of the above mentioned township was changed and a new layout plan was issued later, which was again subjected to change by Department of Town and Country Planning. Due to the change in the layout plan, which was beyond the control of the OP, the OP was forced to re-allocate the plots and flats as per the new master plan.  It was averred that the change in allocation was due to change in the layout plans. It was admitted that the date of booking for the original unit No.602 in Exclusive Floors was 4.1.2009; the date of allotment was 5.2.2009; the basic consideration of the flat was Rs.27 lacs and that the Complainants had deposited Rs.2.7 lac as earnest money as 10% of the total price. The allotment letter was issued on 5.2.2009 which was subject to conditions and terms as enumerated therein. It was also admitted that a total of Rs.5,77,314/- was deposited by the Complainants, that the new unit offered was 213/10 FF. At this stage the units were again relocated, for reasons beyond the control of the OP and the new unit offered was 213/20 FF. All other material contentions of the complaint were denied. Pleading that there was no deficiency in service on its part, prayer for dismissal of the complaint was made.

4.                      After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated above.

5.                      Feeling aggrieved, the instant appeal has been filed by the appellant/OP.

6.                      We have heard the ld. Counsel for the appellant at the admission stage and have gone through the evidence on record of the case carefully. 

7.                      Alongwith the appeal, the Counsel for the appellant has moved an application for condonation of delay of 63 days (as per office report 61 days) in filing the appeal alleging therein that the matter was being dealt with by Sh. Sudhir Solanki, DGM (Punjab affairs) who resigned from his job on 5.8.2011, that he did not bring the impugned order to their notice and it came to their notice when the summons for execution of the order was received on 5.8.2011.  Thereafter the OPs moved the appropriate authorities to get sanction for depositing the amount of Rs.25,000/- due to which there was delay in filing the appeal.

8.                      We have considered the contention of the appellant. There is no document on file to suggest if the case was being dealt with by Shri Sudhir Solanki, DGM. A perusal of the District Forum record shows that the reply in the case was filed by Sh. Sanjay Gupta, Additional General Manager, Ansal Properties & Infrastructure Ld. (OP) and not by Shri Sudhir Solanki.  Secondly, there is no document to suggest if Shri Sudhir Solanki has resigned.  Otherwise also, Shri Sudhir Solanki is said to have resigned on 5.8.2011 whereas the impugned order was passed on 17.5.2011 and a copy of the same had been delivered to the OP/appellant on 24.5.2011.  Otherwise also, presuming that Shri Sudhir Solanki was dealing with the case and if he thought that it is not fit for appeal and, therefore, he did not file the appeal, that cannot give a justification to another official of the appellant/OP to file the appeal.  There are, therefore, no valid reasons for condoning the delay in filing the appeal.  It was the duty of the OP/appellant to introduce proper supervision and checks in their office so that the matter remains in the knowledge of the others also.  Shri Sudhir Solanki was not the only man dealing with this case but would have been having a branch under his control and those officials would have reported the matter to the next higher authority even if Shri Sudhir Solanki was of the view that no appeal should be filed in the case.  We are, therefore, of the opinion that there are no grounds made out to condone the delay in filing the appeal. The appeal deserves dismissal on this ground alone.

9.                      Presuming that there were sufficient grounds to condone the delay and even if the delay is condoned, the appeal does not have any merits to admit it for regular hearing.

10.                   On 16.5.2011, when the complaint was fixed before the ld. District Forum at the stage of arguments, the OP offered to refund the amount of Rs.4,19,048/- to the complainant without any interest.  The complainant insisted for payment of interest also.  However, through the impugned order a sum of Rs.4,19,048/- was ordered to be   refunded without interest. The impugned order is, therefore, in accordance with the wishes of the OP that they were not liable to pay interest in view of clause 4(a) of the allotment letter. When the OP themselves wanted to refund the amount and if the ld. District Forum has passed the order directing them to refund the same, there could not be any grievance to the OP to file this appeal.

11.                   The OPs have also, in the grounds of appeal, mentioned that there was a choe regarding which the residents of village Chapper Chiri filed a writ petition before the Hon’ble High Court in pursuance of which the State Govt. was directed to make a provision for discharge of water of the said choe and it is due to that reason that the entire master plan of the area has to be changed.  This question arose in an earlier complaint filed by one Tejinder Singh Atwal against the OP/appellant.  The contention of the OP/appellant that there was any need for re-alignment of the entire master plan was not accepted by this Commission. The judgment of the said case is reported as I (2011) CPJ 609-Tejinder Singh Atwal Vs. Ansal Properties & Infrastructure Ltd. & Ors. It was observed by this Commission in para 7 as follows :-

“7.     ………… It appears the Choe is shown in this plan far away from the plot to the left but already there was least construction at that place and even if the provision of the storm water was made, it did not necessitate the change of layout plan of the plot in dispute or other plots nearby…….”

It was further observed as follows in the later part of para 7 :-

“……….A comparison of Annexures R-7 and R-8 shows numerous additional plots carved out by the OPs in the said chunk of land. If there was re-alignment due to Choe then the number of plots or increase in the area of plots would not have taken place. We are, therefore, of the opinion that the Choe was not at all the reason for realigning of the plots or for increasing the area of Plot No.206 and deleting the green parks from its front and back. It is, therefore, not only deficiency in service but an unfair trade practice on the part of OPs.”

12.                   The OPs are unnecessarily taking advantage of the said civil writ petition to increase the number of flats and plots under the garb of the change of master plan and thereby delaying the construction and development of the area.  We are, therefore, of the opinion that no alignment of the plots/flats or change of master plan was needed and such an argument being advanced by the ld. Counsel for the appellant was rightly ignored by the ld. District Forum. 

13.                   The impugned order has been passed in conformity with the wishes of the OP, with respect to interest, and a meager compensation of Rs.40,000/- has been allowed for harassment.  However, the interest allowed at a meager rate of 9% per annum in default of payment, within the prescribed period, is also just and proper.  Viewed from this angle also, we are of the opinion that there is no merit in this appeal to admit it for regular hearing.  The same is accordingly dismissed in limine.

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

Pronounced.

5^th September, 2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

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