DALBIR KAUR DHILLON vs Punjab Urban Planning and Development Authority

DR. Dalbir Kaur Dhillon claims compensation under different heads against the Punjab Urban Planning and Development Authority (PUDA) on account of negligent act of the opposite party in not delivering actual possession of the plot allotted to her which resulted in causing monetary loss, mental tension and harassment. Since broad facts are not disputed, they can be summarised from the pleadings of the parties as such. In 1971 DR. Dalbir Kaur Dhillon applied for allotment of plot in locality of Phase-2, Patiala to the opposite party. On February 25, 1980 she was alotted plot No. 4170-C measuring 507.50 Sq. Loards in Phase 2, Patiala. Its dimensions were stated to be 50''-9" x 90. As per terms and conditions of the allotment letter, the complainant deposited 25% of the price promptly. The remaining amount was payable in six years by yearly instalments. On deposit of 25% of the price she called upon the opposite party to deliver possession. However, for years together possession was not delivered. Actual possession was delivered in June, 1998. Before that the opposite party raised a demand of extension fee for non-completion of the building within three years from the date of allotment of the plot. Aggrieved by the said demand, the complainant filed an appeal before the Additional Chief Administrator. The said appeal was allowed on December 29, 1997 vide order Annexure C-5. Still there was some clarification required that a revision petition was filed before the Principal Secretary. The aforesaid revision petition was allowed in April, 1998. In these orders it was specifically held by the Authorities that the opposite party was unable to deliver possession of the plot to the complainant on account of discrepancies in demarcation of the plot and thus PUDA was not justified in imposing penalty for non-construction of the building on the plot within the specified period. Since during all this period on account of negligent act and deficiency on the part of the opposite party the possession was not delivered, the complainant suffered loss. During this period he paid about 200 visits to the office of the opposite party initially at Chandigarh to seek possession, but officials of the PUDA did not pay any heed. The following amounts were claimed in the complaint : (1) Difference in the cost of construction in 18 years as per details given in Annexure C-9, Rs. 9 lacs. (2) Compensation for harassment and mental agony Rs. 1 lac. (3) Compensation for amount spent on litigation at the three levels Rs. 20,000/-. (4) Interest @ 18% per annum on the amount deposited towards price of the plot. (5) Cost of litigation (the complaint).

THE opposite party submitted reply broadly admitting the aforesaid facts, however denying liability for payment of compensation. It was asserted that the complainant was called upon to take delivery of the possession of the plot after removal of discrepancies in the dimensions vide letter dated November 16, 1983, Annexure R-2/1. THE complainant did not come forward during all these years to take possession. Hence there was no deficiency on the part of the opposite party or negligent act entitling the complainant to any compensation. THE factum of details of delay in payment of instalments of the price was also highlighted by alleging that on payment of the entire price of the plot actual possession was required to be delivered, as plans for the building could only be sanctioned after the entire price of the building had been paid. It was also asserted that the complainant was never ready and willing to raise construction on the plot. Both the parties filed their affidavits and documents in support of their respective pleadings. THE complainant produced C.W. 1 Lakhbir Singh who has proved his report of escalation of cost of construction. He was cross-examined. THE complainant appeared as C.W. 2 and was cross-examined. She has produced here two affidavits alongwith documents. On behalf of the opposite party, Ms. Jaswinder Kaur Sidhu, PCS, Estate Officer, PUDA appeared as OPW-1 and was cross-examined. We have heard the Counsel for the parties. THE following questions require consideration in this case : (1) Whether there was deficiency in rendering service on the part of the opposite party in delaying delivery of actual possession ? (2) Whether the complainants suffered loss on account of negligent act on the part of the opposite party in the matter of delivery of possession ? (3) To how much compensation the complainant is entitled to from the opposite party ? (4) Relief.

Question Nos. 1 and 2 : These questions can be considered together. Under Section 14(1) of the Consumer Protection Act a finding is required to be recorded with respect to the deficiency in rendering service on the part of the opposite party and further that the complainant had suffered loss on account of negligent act on the part of the opposite party, which is to be compensated. Since copy of the allotment letter was not produced by the parties, during arguments photocopy of the same was produced. This shows that the plot aforesaid was allotted to the complainant by Estate Officer, PUDA. Cost of the plot was Rs. 25,000/- plus Rs. 2,500/- on account of preferential plot, total being Rs. 27,500/-. 25% of the price was required to be paid within 30 days and the balance amount in 6 equated annual instalments. The price aforesaid was subject to variation according to the actual area of the plot demarcated or enhancement of compensation as allowed by the Court. Clause 12 referred to the completion of the building within three years from the date of issue of allotment order after getting the plans of the proposed building approved by the Competent Authority. Annexures C-5 and C-6 are the orders passed by the Authorities while dealing with the appeal filed by the complainant against the demand raised as penalty for non-completion of the building within three years from the date of allotment order. The following passage from Annexure C-5 is reproduced : "I have also gone through the records of the file. As per records, the possession of the plot could not be handed over to the allottee on 16.12.1981 due to wrong dimensions of the plot, inspite of her requests. Ultimately, the paper possession of the plot was handed over to the appellant on 22.1.1996 by the Estate Officer. However, as per version of the appellant in the written arguments, the paper possession was given on 26.6.1994 and again on 22.1.1996. As per policy decision of Head Office, if due to some unavoidable reasons the possession of the plot is not handed over to the allottee, then the three years'' prescribed time is to be considered from the date when the possession is handed over to the allottee take into account the version of the appellant that first possession was handed over to her on 26.6.1994, even then she was to be given three years'' time from 26.6.1994 for constructing the plot, i.e., upto 30.6.1997. Hence in the circumstances I allow the appeal of the appellant and set aside the order of Estate Officer dated 24.1.1997 to the extent that she is not required to deposit the amount of non-construction charges upto amount on 30.6.1997 as required by the Deptt. and there remains nothing due towards the appellant against the said plot No. 4170-C, Phase-II, Urban Estate, Patiala. Moreso, she was not handed over the physical possession of the plot due to wrong dimensions of the plot as such she could not construct the plot and hence he cannot be required to deposit the non-construction charges against the said plot. On the other hand, she is also required to deposit the enhanced price of the plot amounting to Rs. 21,214/- as demanded by the Estate Officer, Patiala alongwith interest @ 18%. I dispose of the appeal."

The following passage from Annexure C-6 is required to be noticed : "The most vital point of the case is that during the last about 18 years, the department has not been able to deliver the actual demarcation/possession of the site to the petitioner at the spot. Further, there was also some ambiguity in dimensions of the plot. In these circumstances, how could the petitioner be expected to raise construction on the said plot within the stipulated period. Accordingly, the Addl. Chief Administrator has rightly quashed the order of the Estate Officer, Patiala qua the demand of extension fee. As regards the second element of additional price which has been ordered to deposit @ 18% interest in the order, after hearing the parties, I am of the considered view that a lenient view requires to be taken especially keeping in mind that the Department has failed to deliver the actual possession of the plot to petitioner for a long span of 18 years. I feel considerable weight in the submission of the learned Advocate appearing on behalf of the petitioner that the cost of construction has gone high and high during the past 18 years. The allottee has suffered heavily on this account without any fault of her own."

As a matter of fact nothing more is required to be discussed in view of the finding recorded by the Authorities as above that the opposite party (PUDA) failed to deliver possession of the plot allotted to the complainant during all these years, for the reasons that there were discrepancies in the dimensions of the plot allotted. It was only on June 1, 1998 that the actual possession of the plot was delivered.

THE contention of learned Counsel for the PUDA is that after removal of the discrepancies in the dimensions of the plot, the complainant was called upon to take possession vide letter dated November 16, 1983 Annexure R-2/1. According to the Counsel after receipt of this letter, the complainant never approached the Authorities for taking actual possession. To the same effect affidavit of Ms. Jaswinder Kaur Sidhu, Estate Officer was filed. A specific question was put to her why possession was not delivered by the PUDA. She replied giving reasons that action was being taken for rectifying dimensions and after such rectification, letter dated November 16, 1983 was issued and thereafter the complainant remained silent for 10 years. To a further question whether PUDA received letters from the complainant Annexures C-1, C-3, C-4, C-10 and C-11, the witness replied that copies of letters Annexures C-1, C-4 and C-11 were existing on the file whereas copies of letters Annexures C-3 and C-10 were on the other file, which had not been brought. To further question, she stated that actual possession is delivered when allottee submits building plans and the paper possession in the present case was given on June 21, 1994 and January 22, 1996. She further clarified that at the time of submission of building plans, the allottee must clear all the dues, i.e. total amount due at that time towards price of the plot. THE letters referred to in her statement would show that throughout the complainant had been claiming for delivery of possession. Annexure C-1 is dated June 28,1982 requesting for delivery of possession. Annexure C-2 is the same as Annexure R-2/1 referred to above. Annexure C-3 is the letter delivered in the office of PUDA sometime in February, 1988 for giving possession by demarcation. It bears endorsement of the opposite party in token of receipt of the application. Annexure C-4 is the letter dated June 20, 1994 addressed to Estate Officer sending a draft of Rs. 5,515/- and calling upon the officer to deliver possession. Annexure C-10 is another request made on January 21, 1988 for delivery of possession of the plot by the complainant and finally Annexure C-11 is the letter dated November 15, 1983 just a day before letter Annexure C-2 was issued, the complainant asked for delivery of possession. THE very fact that inspite of letter Annexure R-2/1, the opposite party delivered paper possession twice - first time on June 21, 1994 and January 22, 1996 would indicate that the opposite party was not in a position to deliver actual possession after removal of the discrepancies. Had the same been removed as is being projected now in Annexure R-2/1, there was no reason why actual possession could not be delivered in June, 1994 or January, 1996. It shows that throughout it was negligent act on the part of the employees of the PUDA in not removing the discrepancies in dimensions of the plot and in not delivering possession thereof to the complainant during all these 18 years and that on this account the complainant was made to suffer. Even otherwise it may be pointed out that the terms and conditions of the allotment letter as referred to above and the stand taken up by Ms. Sidhu that building plans could only be sanctioned after the complainant had paid the entire price of the plot, suggests that the PUDA was taking contradictory stands. Since as per terms and conditions of the allotment letter, remaining 75% of the price of the plot was payable in instalments in a period of 6 years and such plans for construction of the building could only be sanctioned after full price of the plot had been paid, obviously the condition of the completion of the building within three years from the date of issuing of allotment letter after getting building plans approved by the Competent Authority could not be implemented. In view of vagueness in the contract as referred to above, deficiency and negligent act is writ large as the complainant was deprived of opportunity of raising construction on the plot allotted during all these years, on account of which the complainant suffered not only mental agony and harassment but monetary loss also as she could not raise construction on the plot immediately on payment of 25% of the price. Both the questions are answered to favour of the complainant and against the opposite party. Question No. 3. The present is a case where complainant has produced cogent and reliable evidence regarding the actual and monetary loss sufficient on account of non-construction of the building on the plot in dispute, i.e. in the form of report Annexure C-9 prepared by Lakhbir Singh, who appeared as C.W. 1. Nothing in the cross-examination was brought out to discard the contents of his valuation report Annexure C-9. He assessed the value of construction on 2250 sq. ft. area in the year 1980 @ Rs. 200/- per sq. ft., Rs. 4,50,000/- and @ Rs. 600/- per sq. ft. in the year 1998 Rs. 13,50,000/-. In this manner the difference of costs of construction is stated to be Rs. 9 lacs, which amount the complainant claims under first head as referred to above. In this report further detailed items are also given for construction of the building on such an area as per specifications. Learned Counsel for the complainant relied upon the decision of the National Commission in Rajnish Chander Sharda v. Haryana Urban Development Authority, II (1995) CPJ 70 (NC), wherein it was held that the complainant was entitled to compensation for the loss incurred on account of escalation of the cost of construction. The precise matter of fixation of such escalation cost was referred to be decided subsequently. The perusal of the judgment of the Haryana State Commission in Param Vir Rathee v. The Chief Administrator, HUDA, III (1998) CPJ 334, would show that in Rajnish Chander''s case such compensation was fixed at Rs. 15 lacs. The ratio of the decisions aforesaid it can be applied to the case in hand. In the absence of any evidence to the contrary there is no reason to discard the valuation report, Annexure C-9 produced by the complainant in this case. Thus it is held that the complainant is entitled to compensation of Rs. 9 lacs on account of delay in delivery of possession of the plot to the complainant, which is of 18 years.

THE complainant, further claims a sum of Rs. 1 lac towards mental agony and harassment. As per her evidence she paid 200 visits during all these years from Patiala to Chandigarh for seeking possession. In such like matters only on rough estimation compensation is required to be allowed. At the rate Rs. 200/- per visit, it would be reasonable to allow in lumpsum a sum of Rs. 40,000/- under this account as compensation to the complainant. So ordered. Third item claimed towards compensation is litigation expenses incurred in the previous litigation that the complainant was constrained to file appeal and revision before the Authorities. In our view the complainant is not entitled to any compensation on that account. The Authorities were claiming extension fee and interest on delayed payment of instalments, may be they were not justified in doing so that the appeal and the revision were allowed but in the present case it cannot be said that the complainant suffered loss on account of the aforesaid negligence as discussed above, in processing legal remedies. The complainant claims 18% interest on the amount to be found due as such compensation was also allowed in Rajnish Chander''s case referred to above. We are of the view that on the price of the plot the complainant should be allowed interest @ 18% per annum as she was deprived of the use of the plot. But such price was paid in instalment and with interest on delayed payments. This claim as suggested in entirety cannot be allowed. However, it is only after the entire amount as per terms and conditions of the allotment letter was paid that the complainant would be entitled to 18% per annum interest on the price of the plot, i.e. Rs. 27,500/- only, till payment. We so order.

AS far as litigation expenses of this complaint are concerned, the complainant obviously is entitled to the same, which are assessed at Rs. 2,000/-.

THE complaint is allowed with the direction to the opposite party to pay compensation and costs as assessed above within two months from receipt of copy of this order. Complaint allowed with costs.