THE BARNALA IMPROVEMENT TRUST, BARNALA & ANOTHER - Opp.Party(s)
MUKUND GUPTA
17 Mar 2010
ORDER
Date of Filing: 17 Oct 2005
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHIAPPEAL NO. No. FA/437/2005
(Against the Order dated 29/08/2005 in Complaint No. 79/2002 of the State Commission Punjab)
1. DR. CHANDER REKHAR/O OPPOSITE SADHU SWEETS SHOP,BARNALA PUNJAB -
...........Appellant(s)
Vs.
1. THE BARNALA IMPROVEMENT TRUST, BARNALA & ANOTHER THE BARNALA IMPROVRMENT TRUST BARNALA -
...........Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE R.C. JAIN ,PRESIDING MEMBERHON'BLE MR. ANUPAM DASGUPTA ,MEMBER
For the Appellant :
MUKUND GUPTA
For the Respondent :
NEMO
Dated : 17 Mar 2010
ORDER
These appeals arise from a common order dated 29.08.2005 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short, the State Commission) in original complaint No. 79 of 2002. By the impugned order, the State Commission has partly allowed the complaint filed by the complainant and has directed the opposite party-Barnala Improvement Trust to pay lump sum compensation of Rs. 4 lakh on account of loss of interest on the money deposited by the complainant with the Barnala Improvement Trust for a period of more than two and a half years, i.e., from 24.12.2000 (the date on which the entire money had been deposited by the complainant) till 4.9.2003 (the date on which the physical possession of the site was handed over to the complainant) as also for the loss in business, escalation in construction cost, harassment and mental tension including costs of proceedings with a stipulation that the amount shall be paid within one month. 2. Aggrieved by the said order, both sides have filed appeals. Appeal No. 437 of 2005 has been filed by the original complainant seeking upgradation of the relief by way of enhancement of the compensation while appeal no. 499 of 2005 has been filed by Barnala Improvement Trust praying for setting aside the impugned order passed by the State Commission. 3. We have heard learned counsel for the parties at length and have considered their submissions. Before we deal with appeal No. 437 of 2005 filed by the complainant, we consider it expedient to answer appeal No. 499 of 2005 filed by the Barnala Improvement Trust because the consideration of appeal No. 437 of 2005 will depend upon the outcome of appeal No. 499 of 2005. 4. The facts and circumstances of the case leading to the filing of the complaint, have been amply noted by the State Commission in the impugned order and need no repetition at our end. However, for the consideration of these appeals, we may simply notice that the complainant had applied and was allotted a plot of land measuring 686 sq. yards for constructing a nursing home in 22 Acre Scheme in the city of Barnala for a consideration of about Rs. 14 lakh. It is not disputed that the complainant had deposited in all a sum of Rs.15,80,000/- as total consideration of the plot by 24.12.2000. However, despite having paid the entire consideration as demanded by the Barnala Improvement Trust, the actual physical possession of the allotted plot was not handed over to the complainant as it had not been demarcated promptly. Possession of the plot in question was handed over only on 4.9.2003. The complainant, aggrieved by the delay in handing over the actual physical possession of the plot, sought demarcation and possession of the plot, compensation amounting to Rs.5 lakh for the loss suffered by her due to inability to set up and run the nursing home, a sum of Rs. 2 lakh as damages besides certain interest and compensation towards harassment and mental agony suffered by her. The State Commission, going by the undisputed position that there was delay of more than two-and-a-half years in handing over the actual physical possession of the plot in question despite the complainant having paid the entire consideration as demanded by the Barnala Improvement Trust, found deficiency in service on the part of latter Trust and allowed the complaint in the above manner. 5. Learned counsel for the appellant-Barnala Improvement Trust in appeal No. 499 of 2005 would assail the impugned order on the following grounds:- (i) The complainant/appellant in appeal No. 437 of 2005 is not a consumer within the meaning of section 2(1)(d) of the Consumer Protection Act, 1986, she having applied for and been allotted a plot for commercial purpose, viz., for construction of a Nursing Home. (ii) Barnala Improvement Trust cannot be said to have rendered any service to the complainant within the meaning of section 2(1)(o) of the Consumer Protection Act. (iii) No deficiency in service has been established on the part of Barnala Improvement Trust because under the agreement it was not its obligation to do the demarcation and to hand over actual physical possession of the allotted plot to the complainant. 6. In regard to ground (i), learned counsel for the appellant, on the strength of the allotment letter issued to the complainant, has vehemently argued that the plot in question was allotted to the complainant for commercial purpose as this finds mention in clause 9 of the agreement with the title Sanitation of land. In any case, his submission is that the complainant had applied for allotment of the site for no purpose other than constructing and running a nursing home. Therefore, by her own showing, it should be held that the plot was meant for commercial use only. In any case, his submission is that the activity of nursing home involves an element of commerce because the nursing homes are run with the primary object of earning profit. As against this, the submission of the learned counsel for the complainant is that no doubt the plot in question was earmarked and was allotted for the specific purpose of constructing and running a nursing home but the nursing home was to be constructed and run by the complainant for the purpose of earning her own livelihood. In this connection, he has invited our attention to the averment made in para.7 of the complaint which is to the following effect:- 7. That the complainant being a professional and after depositing about Rs.16 lacs has not been able to get benefit of the amount so deposited. The complainant wants to construct this nursing home for earning her lively-hood. The complainant has suffered a loss of Rs. 5 lacs for not able to construct and run her Nursing home and her ability is being wasted. 7. Having regard to the definition of consumer appearing in section 2(1)(d) of the Act, more particularly, the explanation appearing below that sub-section, there can be least doubt that the complainant is a consumer well covered within the said definition, even if we assume that running of nursing home is a commercial activity. We, therefore, see no merit in this contention of the learned counsel representing the Barnala Improvement Trust and reject the same. 8. Ground (ii) is that the Barnala Improvement Trust had not undertaken to render any service to the complainant by allotting and selling a plot of land because no element of service other than the sale transaction was involved in the agreement and thus the Barnala Improvement Trust cannot be said to have rendered any service. We have noted this contention simply to reject it because such a contention, if accepted, will be preposterous and violative of the whole scheme under which the Barnala Improvement Trust (or, for that matter any Improvement /Development Authority) who is set up. The Barnala Improvement Trust or such a Development Authorities are not created by statute(s) simply to acquire land of some persons at low prices and sell it out to the allottees of various schemes of development/improvement at much higher prices without doing anything. These Improvement/Development authorities have been created for the inter alia, object of development of land, construction of houses, etc., i.e., overall development of the town/city/area concerned. All such improvement/development activities enjoined on such statutory bodies necessarily include a whole range of activities amounting to service under Section 2(1)(o) of the Consumer Protection Act. As regards ground (iii), unless otherwise provided, sale of any immovable property generally involves handing over the actual physical possession of the property and unless the physical possession of the immovable property is handed over, the sale is not deemed to be complete. It appears that the learned counsel for the appellant is not conversant with the functioning of the Improvement Trust and so he has contended that demarcation of the allotted plot and handing over its actual physical possession to the complainant, was not the job of the Improvement Trust and it was the function of the concerned Patwari or the Revenue authorities working under the Collector of the District. We again have to reject this contention because it is misconceived and not based on correct information. 9. It was also contended by learned counsel for the Trust that if at all it is assumed that the Improvement Trust was to render any service, it was free of charge because the Improvement Trust has not levied any separate charge for handing over possession of the allotted plot. Perhaps, this contention proceeds on the assumption that the obligation of the Barnala Improvement Trust had come to an end the day it had pocketed the entire consideration of Rs.15,80,000/- without bothering what would happen to the person who had paid this amount, viz., whether she was required to be given conveyance deed in her favour and whether physical possession of the allotted land had been handed over to her. There was no question of any separate charge being levied by the service provider or any seller of immovable property for handing over possession of a property which he/it has already sold to the vendee. This contention too deserves to be rejected as wholly untenable. 10. Now, coming to the last contention, the submission of learned counsel for the Barnala Improvement Trust is that there was no deficiency on the part of the Barnala Improvement Trust because the delay so caused was due to inaction/acts of omission of the complainant herself in not approaching the authorities concerned, who were responsible for sanctioning the building plans, etc. This contention too appears to be devoid of any merit because unless the plot of the complainant was actually demarcated on ground and she was put in physical possession of the plot in question, she could not have applied for sanction of building plans to the authorities concerned. Therefore, on all counts, deficiency on the part of Barnala Improvement Trust was writ large, as been rightly held by the State Commission in not handing over the actual physical possession of the demarcated plot to the complainant and we have no reason to differ with the said finding. 11. Now, we come to the common question raised in both the appeals as to whether in the above-noted facts and circumstances, the relief granted by the State Commission to the complainant by awarding compensation of Rs. 4 lakh, is inadequate, adequate or excessive. Learned counsel for the Barnala Improvement Trust pointed out that the compensation awarded by the State Commission which also has a component of loss of business and of escalation in cost of construction, is excessive. On the other hand, learned counsel for the complainant in support of his appeal No. 437 of 2005, has strenuously argued that the compensation so awarded by the State Commission is inadequate going by the principle of law as settled by the Apex court in the case of Ghaziabad Development Authority vs. Balbir Singh 2004(5) SCC 65 and the view taken by this Commission in the cases of similar nature. 12. Learned counsel for the appellant has pointed out to us condition No. 4 appearing in the allotment letter dated 25.08.1998 which contains stipulation to the effect that if there was any delay or default in payment of the amount as per the schedule indicated in the allotment letter, the allottee shall be liable to pay interest at the rate between 18% to 23%. If the Barnala Improvement Trust wants interest at this rate in case of any delay and default on the part of allottee, it should also be prepared to pay the interest at the same rate in case there is any default on its part in handing over the actual physical possession of the allotted plot after receiving the entire consideration of the plot. It is pointed out that the complainant has paid interest @12% per annum on the amount which was delayed. Therefore, in our view, it would adequately meet the ends of justice if we award compensation in the shape of interest @12% per annum for the delay of 32 months on the total amount of Rs.15,80,000/- deposited by the complainant. That brings the amount of compensation payable to the complainant on this score alone to over Rs.5,05,000/- i.e. without any element towards loss of business or escalation in cost of construction. However, we would round it off to a sum of Rs.5 lakh. Besides this, we propose to award cost of Rs.25,000/- to the complainant in the proceedings throughout. 13. In the result, the appeal No. 499 of 2005 titled as Barnala Improvement Trust, Barnala through its Chairman and another vs. Dr. Chander Rekha, is hereby dismissed as devoid of any merit, while appeal No. 437 of 2005 is partly allowed. The impugned order of the State Commission shall stand modified to the extent that the figure of Rs. 4 lakh appearing in the order of the State Commission shall be substituted with figure of Rs.5 lakh, with all other findings remaining unchanged. In addition, appellant-Barnala Improvement Trust in appeal No. 499 of 2005 shall pay cost of Rs.25,000/- in the proceedings throughout. The amount of Rs.5,25,000/- shall be paid by the Barnala Improvement Trust within six weeks from the date of this order. Learned counsel for the Barnala Improvement Trust is present and has noted down the order passed today. In case of failure of payment of the amount of Rs.5,25,000/- within the stipulated period, the amount shall carry interest @12% per annum. Both the appeals stand disposed of accordingly.
......................JR.C. JAINPRESIDING MEMBER ......................ANUPAM DASGUPTAMEMBER
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