Mahesh Gupta vs Union Territory, Chandigarh

THE complainants purchased a commercial plot bearing SCO 26, Sector 33C, Chandigarh, in an auction held on 18.12.1996 for Rs. 34,80,000/-. Out of it, a sum of Rs. 8,70,000/- has been deposited as 25% of the premium of the site and it was there after that a form matter of allotment was issued by the respondents on 14.2.1997. It has been alleged that there was a huge tree standing on the site and possession of the aforesaid plot could not be delivered. Since possession was not delivered, the lease-deed was also not executed inasmuch as Condition No. 10 of the letter of allotment was not satisfied. THE relief claimed is reproduced as under : "(i) direct the respondents to give physical possession of the site describable as SCO 26, Sector 33D, Chandigarh, and after giving the possession to reschedule and regularise the mode of instalments to be paid by the complainants; (ii) to pay a compensation/damages to the complainants on account of financial losses on money/ instalments already deposited towards 25% payment to the tune of Rs. 3,37,560/- and the payment by way of compensation in lieu of loss of rental income which the complainants would have got had the possession of the site mentioned above been given in time to the complainants to the tune of Rs. 8,00,000/- and loss on account of escalation in cost of the construction of the building to be constructed on the site to the tune of Rs. 2,88,750/- and Rs. 5,00,000/- which the complainants have suffered because of the non-cooperative attitude of the respondents along with 24% interest on the claims made above till the date of realisation of the damages along with the cost of the present complaint. (iii) any other order which in the circumstances of this case, this Hon''ble Court deems fit and proper be also passed; (iv) cost of the complaint may also be allowed."

THE respondents have filed a reply wherein it has been averred that as soon as it came to their notice that there was a tree on the site in question, they approached the Horticulture Deptt. UT, Chandigarh and the tree was ultimately removed by the aforesaid deptt. and intimation in this regard was received vide Memo No. 4016 dated 23.10.1998. It has further been averred that the complainants were bound to make the payment of instalments inasmuch as they accepted the terms and conditions of allotment and proceedings under Rule 12(3) for recovery of instalments were rightly started against them. It shall be useful to refer to para 4 of the affidavit of Assistant Estate Officer, Chandigarh, dated 11.1.1999 and it is as under : "4. That in reply to para 4, it is submitted that immediately after having came to notice regarding existance of a tree on SCO Site No. 26, Sector 33D, Chandigarh, answering respondent took up the matter with the concerned Authorities with the result the said tree was removed by the concerned Authorities i.e. Department of Horticulture, UT, Chandigarh as intimated by them vide their Memo No. 4016 dated 23.10.1998. A copy of said memo is attached herewith as Annexure R1."

A perusal of the record goes to show that the complaint was instituted on 13.10.1998 and it was thereafter on 23.10.1998 that the tree was removed. A perusal of the letter dated 23.10.1998, Annexure R1 shows that no intimation was sent to the complainant regarding removal of the tree. The Hon''ble Supreme Court in Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC), has observed that when possession of the property is not delivered within the stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immovable property as argued but deficiency in rendering of service of particular standard, quality or grade. Such deficiencies or omissions are defined in Sub-clause (ii) of Clause (r) Section 2 unfair trade practice. The sale of the said plot with the tree standing in it which could not be removed by the purchaser under the law, was denial of service of a reasonable standard in this case. The possession if symbolically delivered cannot be deemed to be a real possession. The sale of plot can at best be taken from the date when the respondent informed this Commission and the complainant by way of their reply filed on 11.1.1999. The auction of the plot is hereby deemed from the aforesaid date. After considering all the facts and circumstances of the case we hold that there was deficiency on the part of the respondents. We also hold that the date of filing the written statement i.e. 11.1.1999 when information has been supplied regarding removal of the tree shall be the deemed date of auction. Thus in this case, the interest shall be payable by the respondents to the complainant on the amount deposited by him @ 18% per annum till 23.10.1998. Besides this, the payment of instalments requires re-scheduling taking into consideration the above date as the deemed date of auction for this specific purpose. The respondent shall not be entitled to lease money for the period prior to the deemed date of auction. The complainant is also entitled to costs of proceedings Rs. 3,000/-. Announced. Complaint allowed with costs.