DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. CC/16/212
Decided on: 30.11.2016
Sh.Saleem Mohammad son of Sh.Taj Deen and Dr.Zarina Begum wife of Sh.Saleem Mohammad resident of Village & P.O. Tarkheri, Tehsil and District Patiala.
…………...Complainants
Versus
The Estate Officer, Punjab Urban Planning & Development Authority, PUDA Complex, Phase-2, Urban Estate, Patiala.
…………Opposite Party.
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.Manpreet Singh, Advocate,
counsel for complainants.
Smt.Kusum Sood,Advocate,
counsel for Opposite party
ORDER
SMT.NEENA SANDHU, PRESIDENT
Sh.Saleem Mohammad alongwith his wife Smt.Zarina Begum have filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Party (hereinafter referred to as the O.P.) .
2. In brief, the case of the complainants is that they purchased a residential plot No.34, measuring 179.48 sq.meters, situated at adjoining P.R.T.C. Workshop site, Nabha Road, Patiala, in auction, held by the O.P. on 17.12.2013 @ Rs.28100/- per sq. meters. The total price of the said plot was Rs.50,43,388( Rupees Fifty Lac Forty Three Thousand three hundred eighty eight only). Out of the said amount, an amount of Rs.12,60,847/- being initial 25% of the total amount was to be paid up to 14.1.2014 including Rs.7,56,215/-. The balance amount i.e. Rs.35,93,414/- after rebate of 5% was paid by them vide draft No.053410 dated 25.3.2014. It is averred that after having paid full amount of the plot in question, the O.P. failed to handover the possession of the plot in time. They requested the O.P. vide letter dated 16.1.2015 for the delivery of the plot. The O.P. instead of delivering the possession of the plot, issued a letter dated 17.3.2015 stating therein that one mango tree is standing in the plot and the possession of the plot shall be delivered after removal of the said tree. It is averred that the O.P. has to deliver the possession of the plot immediately on receipt of Rs.12,60,847/- i.e. 25% of the saleable price as per clause 5(i) of the allotment letter, after clearing all hurdles. The condition for allotment and delivery of possession was only on the payment of 25% of the auctioned/total amount. The balance amount i.e. 75% of the amount can be paid either in lump sum with 5% rebate on the balance amount of 75% within 60 days of issue of allotment letter or in 6 half yearly equated installment @ 12% per annum interest as per clause 3.2(i) of allotment letter. It is further averred that in case any installment or part thereof is not paid by the due date, then without prejudice to any action under Section 45 of the Punjab Regional and Town Planning and Development Act, 1995, 18% penal interest will be levied for the period of delay up to 18 months as per clause 3.2(ii) of allotment letter. The complainants paid the entire price of the plot on 25.3.2014. The OP inspite of issuing letter dated 17.3.2015 failed to fulfill its own promise. Thereafter, they wrote letter dated 28.4.2015 to the O.P. to know about the delay in handing over the possession of the plot allotted to them. They also requested that the delay in giving the possession of the plot is disturbing their construction plan and also resulting in financial loss apart from causing inconvenience as they are living in a rental accommodation and paying a huge price @ Rs.15000/-per month and also are paying unbearable interest on the total loan amount of the plot. On 9.6.2015, the O.P. gave the possession of plot alongwith tree on the condition that the tree does not create any hurdle in raising construction. It is alleged that they consulted with architect Sh.Jatinder Singh, who advised that without removing the tree, no construction on the plot can be raised. They again requested the O.P. vide letters dated 23.11.2015 & 10.12.2015, for removal of the said mango tree but the O.P. put the matter off on pretext or the other. The O.P. was also got served with the legal notice dated 5.2.2016. In reply dated 29.3.2016, the O.P. admitted that the rate/value of the tree has been assessed by the Forest Department and is ready to cut down. But the O.P. failed to do so. Thus, there is deficiency in service on the part of the O.P. and they have suffered from mental agony, physical harassment and financial loss. It is therefore, prayed that the O.P. be directed to pay an amount of Rs.20,00,000/- paid on account of interest on the loan amount borrowed from LICHFC, interest foregone on GPF withdrawals and other personal savings up to 24.3.2016 on the amount of Rs.48,54,261/- .
3. On being put to notice, the O.P. appeared and filed the written version taking preliminary objections that the complaint does not fall in the periphery of the definition of Consumer under the Act, that the plots were auctioned on ‘as is where is basis’ and that there is no cause of action to file the complaint. On merits, it is submitted that all the allottees including the complainants were given the benefit of the delay . Thus no prejudice has been caused to the complainants in any way. It is further submitted that the complainants had purchased the plot having the knowledge regarding the trees on the land. The payment of the plot was made by the complainants as per the terms and conditions . The possession of the plot could not be handed over to the alltottes immediately because of the mango trees standing there and the same was removed after taking permission from the concerned authorities. It is denied that if, it ever assured the complainants that the mango tree on the plot would not create any hindrance in raiusing the construction on the plot and in fact the complainants were keen to take the possession of the plot alongwith the mango tree standing in the plot and now they cannot go back from their own statements. There is no deficiency in service on its part. After denouncing all other averments made in the complaint, it is prayed to dismiss the complaint.
4. We have heard the ld.counsel for the parties on the point of maintainability of the present complaint, and have also gone through the record of the case, carefully.
5. At the outset, the ld. counsel for the O.P. submitted that at the time of purchase of the said plot, the complainants were well aware of the fact that tree was already standing there. She further submitted that prior approval from the competent authority is required to remove the said tree and proceedings for the removal of the said tree from the said plot were initiated by the OP without any delay. On getting the approval, the O.P. removed the tree from the plot of the complainants and as such no cause of action has arisen to the complainants to file the present complaint. It is further submitted that the complainants purchased the plot in question in auction on “as is where is basis” and therefore, they are not consumers. She further submitted that even otherwise complainants are not consumers qua the O.P as the law has already been laid down by the Hon’ble Apex Court, in the case U.T.Chandigarh Administration and Anr. Vs. Amarjeet Singh and Ors.(2009) 4 SCC 660, wherein, it has been held by the Hon’ble Supreme Court that:
“ Where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser / lessee participates in the auction after having an opportunity of examining the site, the bid in the auction is made keeping in view the existing situation, position and condition of the site, if all amenities are available, he would offer a higher amount. If there are no amenities, of if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction. Once with open eyes, a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment or the ground rent, on the ground that the site suffers from certain disadvantages or on the ground that amenities are not provided. With reference to a public auction of existing sites( as contrasted from sites to be formed), the purchaser/lessee is not a consumer, the owner is not a trader or service provider and the grievance does not relate to any matter in regard to which a complaint can be filed. Therefore, any grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute and the Fora under the Act will not have jurisdiction to entertain or decide any complaint…………”
The Ld. Counsel for the complainants has not raised any objection regarding non removal of the tree from the plot. Since the O.P. has already removed the tree from the plot in question, thus the complainants have no cause of action to file the present complaint. It may be stated that the complainants have purchased the plot in question in auction on ‘as is where is basis’ and in view of the law laid down by the Apex court in the case U.T.Chandigarh Administration and Anr. Vs. Amarjeet Singh and Ors (supra), complainants are not consumers .Therefore, the complaint filed by them is not maintainable before this Forum. Accordingly, we dismiss the complaint at this stage only with no order as to costs. Certified copies of the order be sent to the parties free of cost under the rules.Thereafter, file be indexed and consigned to the record room.
ANNOUNCED
DATED:30.11.2016 NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
