Chander Rekha vs IMPROVEMENT TRUST

THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 22.05.2012, passed by the Punjab State Consumer Disputes Redressal Commission (for short ''the State Commission '') in FA No. 825/2008, ''''Dr. Chander Rekha versus Improvement Trust, Barnala & Anr. '''' and FA No. 841/2008, ''''Barnala Improvement Trust versus Dr. Chander Rekha, '''' vide which appeal no. 841/2008 filed by the Barnala Improvement Trust was accepted and FA No. 825/2008 filed by Dr. Chander Rekha was dismissed. These two appeals have been filed against the order dated 2.07.2008 passed by the District Consumer Disputes Redressal Forum, Sangrur, vide which the consumer complaint no. 746 filed on 22.11.2007 by the petitioner / complainant Dr. Chander Rekha had been partially allowed.

THE facts of the case on record indicate that there have been two rounds of litigation between the same parties. In the first round of litigation, the consumer complaint no. 79/2002 was filed by Dr. Chander Rekha against the respondent/OP Improvement Trust on 20.11.2002, which was decided by the State Commission on 29.08.2005. Two appeals were filed against this order before the National Commission which were decided vide order dated 17.03.2010 by this Commission, and the OP Improvement Trust was directed to make a payment of Rs. 5,25,000/ - to the complainant and also Rs. 25,000/ - as cost of litigation. The present complaint is second complaint no. 746 filed on 22.11.2007 before the District Forum which was decided on 2.07.2008. The impugned order has been passed by the State Commission in the second complaint. The brief facts of the case giving rise to the consumer complaints are that the complainant / petitioner Dr. Chander Rekha is a Doctor by Profession and stated to be practising at Barnala, Punjab. The OP, Improvement Trust Barnala brought out a scheme for allotment of sites for nursing homes in their ''''22 Acre Scheme '''' on 07.05.1998. The complainant was allotted a site measuring 686 sq. yards vide allotment letter dated 25.06.1998 in the general category for a sum of Rs.14 lakh. As per the allotment letter, 25% of the total amount in question was already deposited and the remaining amount was to be deposited in five equal half -yearly instalments alongwith interest. An agreement between the parties was also executed on 28.07.2000. It has been stated that as per clause 8 of the allotment letter dated 25.06.1998, the building was to be constructed and completed within 3 years from the date of issue of the allotment letter, after getting demarcation of the plot on site, and after getting the building plan approved from the OP. It was alleged by the complainant in her first complaint no. 79/2002 that although the whole amount was deposited with the OP, the demarcation and possession of the plot had not been given and hence, she was entitled to compensation from the OP for the same and also the possession of the plot. The State Commission vide their order passed on 29.08.2005 allowed the complaint and directed the OP to pay a sum of Rs.4 lakh as compensation on account of loss of interest on her money, which was kept by the OP from 24.12.2000 to 04.09.2003, the date on which the physical possession of the site was handed over to the complainant and on account of loss in business, mental harassment, etc. Against this order dated 29.08.2005 passed by the State Commission, two appeals were filed before the National Commission - one by the complainant Dr. Chander Rekha and the other by the OP / Barnala Improvement Trust. The OP took the stand that since the plot had been allotted for a commercial purpose, i.e., for a construction of the nursing home, the complainant was not a consumer under section 2(1)(d) of the Consumer Protection Act, 1986 and that the Trust had not done any deficiency in service to the complainant. The National Commission vide their order dated 17.03.2010 dismissed the appeal filed by the OP / Improvement Trust, Barnala, but partly allowed the appeal filed by the complainant Dr. Chander Rekha and modified the order of the State Commission, stating that the compensation payable by the OP to the complainant shall be Rs. 5.25 lakh instead of Rs.

,00,000/ - ALLOWED by the State Commission and in addition, a cost of Rs. 25,000/ - shall be paid to the complainant as litigation cost. From the material on record, it appears that the said order dated 17.03.2010 of the National Commission has attained finality. 4. The second consumer complaint, which is the subject matter of present petition, has been filed by Dr. Chander Rekha before the District Forum, Sangrur vide complaint no. 746 dated 22.11.2007. It has been alleged in this complaint that the OP / Improvement Trust published a notice dated 31.08.2007 in the newspapers that the construction on the site in question should be completed till 31.12.2007, otherwise the said plot shall be resumed. This notice had been issued although the basic amenities like sewerage, parking place, water supply, street light etc. had not been provided. The complainant demanded that interest @18% p.a. should be paid on the deposited amount with effect from 04.09.2003, the date of the delivery of the possession till the basic amenities are provided. The complainant has also stated that the notice published in the newspaper should be withdrawn and compensation of Rs. 10,000/ - for the loss suffered by the complainant due to non -provision of basic amenities should be provided. In addition, a sum of Rs. 5 lakh as compensation for escalation in construction cost and Rs. 1 lakh as compensation for mental harassment / agony etc. should be given. In reply to the complaint, the OP stated that they had already provided basic amenities like water supply and sewerage in the year 1994 and the roads in 1997. However, the complainant had failed to get the building plan sanctioned and also failed to raise the construction. The OP took the plea that on the adjacent site, a nursing home had already been constructed. The complaint had been filed just to avoid the payment of non -construction fees. The District Forum vide their order dated 2.07.2008 directed the OP to provide the basic amenities in the area and not to resume the site till the complainant fails to construct the plot within 3 years after the basic amenities are provided. It was also directed that compensation of Rs.15,000/ - for mental harassment and cost should also be given. This order of the District Forum was challenged before the State Commission by the petitioner/complainant vide FA No. 825/2008 and by the OP Improvement Trust FA No. 841/2008. As per the impugned order dated 22.05.2012, the appeal filed by the petitioner/complainant Dr. Chander Rekha was dismissed, while the appeal filed by the respondent/OP Improvement Trust was ALLOWED. It was held that the contention of the complainant that the basic amenities had not been provided was not correct. It was also held by the State Commission that the petitioner/complainant does not fall under the definition of ''consumer '', as she had purchased the said plot in auction and the facts of the case were similar to those in the case of ''''U.T. Chandigarh Administration and anr. versus Amarjeet Singh & Ors. '''' decided by the Supreme Court of India, as reported in [(2009) 2 CPC 6]. The State Commission also relied upon the judgement of the Hon ''ble Apex Court in ''''Haryana State Agricultural Marketing Board versus Rajpal, '''' as reported in [III (2011) CPJ 20], in which it has been held that the allottees cannot postpone payment of instalments merely on the ground that some of the amenities were not ready. This order of the State Commission dated 22.05.2012 has been challenged by way of the present revision petition by the petitioner/complainant Dr. Chander Rekha.

AT the time of hearing before us, the learned counsel for the petitioner/complainant stated that the National Commission by the order dated 17.03.2010, in the first round of litigation between the parties had held that the petitioner was a ''consumer '' under the Consumer Protection Act, 1986. The State Commission cannot, therefore, take a contradictory opinion in the impugned order passed by them. The learned counsel stated that since the petitioner had already made full payment for the plot long time back, it was her right to demand that all basic amenities are provided by the OP. As per the conditions of allotment letter also, it was obligatory on their part to provide basic amenities. Moreover, the OP had not approved the building plan submitted by them. The learned counsel for the petitioner has further drawn our attention to the order passed by this Commission in RP No. 729/2011, ''''Rajil Khod versus Haryana Urban Development Authority, '''' and RP No. 2951/2009, ''''Haryana Urban Development Authority versus M/s. Suneja & Sons, '''' pleading that even if the petitioner is auction purchaser, he comes under the definition of ''consumer ''. In reply, learned counsel for the OP/respondent stated that the petitioner had not submitted any building plan for approval so far. He also shown some photographs during the course of arguments, saying that the construction on the adjoining plot had already been completed. However, the petitioner had filed the present complaint just to avoid the payment of non -construction fees. It had been stated in the reply filed by the OP before the District Consumer Disputes Redressal Forum, Sangrur that the actual possession was delivered to the petitioner alongwith all the basic amenities. It has also been stated in the said reply that the adjoining nursing home site no. 2 had already been constructed. The orders passed by the State Commission were, therefore, in accordance with law and should be upheld. The learned counsel also stated that as per agreement entered between the parties, there was a clause for arbitration in the event of any dispute between the parties, but the complainant had not taken recourse to the said clause.

WE have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The entire factual matrix of the case makes it very clear that this Commission vide order dated 17.03.2010, had allowed a compensation of Rs. 5,25,000/ -, as interest @12% p.a. on the total amount of Rs. 15,80,000/ - for the delay of 32 months in handing over the possession. The National Commission also held vide this order that the petitioner was a ''consumer '' under the Consumer Protection Act, 1986. In the present consumer complaint which is the second complaint filed by the petitioner, it has been alleged that they could not carry out construction on the allotted site as the basic amenities have not been provided on the site. This contention of the petitioner has been denied by the OP saying that the basic amenities have already been provided on the site and hence, it was obligatory on the part of the petitioner to raise the construction on the site plot. In support of their contention, they have taken the plea that construction of nursing home has already been done on the adjoining site in the same scheme. This plea has been taken by the OP in their reply filed before the District Forum in response to the second complaint. The petitioners have not been able to produce any proof to rebut the contention of the opposite parties. It is very clear from record that compensation has already been allowed by this Commission for the late delivery of the possession to the complainant. The impugned order passed by the State Commission also observes that the water supply and sewerage connection were provided in the year 1994 and the roads had been constructed in 1997. The State Commission has also made a mention of letter dated 10.11.2008 issued by the Sub Divisional Engineer, Punjab Water Supply and Sewerage Board and Sub - Division, Barnala, in which it has been stated that the sewerage was laid in the area on 18.12.1994. This letter also says that it is possible to give water supply and sewerage connection to the petitioner as well, from the line already laid in the area.

IN view of the position explained above, it becomes clear that basic amenities have already been provided by the OP in the area. On the adjoining site, a nursing home has already been constructed. Moreover, a compensation of Rs. 5,25,000/ - has already been awarded as per the orders passed by this Commission on 17.03.2010. The petitioner, is therefore, not entitled to any other relief. It is their duty to comply with the rules and regulations of the Trust in so far as raising the construction on the site is concerned. We, therefore, do not find any merit in the revision petition and the same deserves to be dismissed and we order accordingly. The second consumer complaint, in question, is ordered to be dismissed. There shall be no order as to costs.