Mandeep Kang vs Punjab Urban Planning and Development Authority

THIS appeal has been directed by the complainant against order dated 11.4.2005 passed by the Consumer Disputes Redressal Forum-I, U.T. Chandigarh, vide which her complaint was dismissed by observing that no case was made out for granting any relief to her.

BRIEFLY stated the facts are that the appellant took part in public auction held on 29.8.2001 in pursuant to an advertisement issued by the Punjab Urban Planning and Development Authority (hereinafter refer to as PUDA). She was allotted booth No. 7, Crystal Plaza, Choti Baradari, Near Defence Colony, Jalandhar, for Rs. 4,49,085. She deposited 10% of the bid money i.e., Rs. 44,909 at the time of auction and 15% of the bid money i.e., Rs. 67,364 within stipulated period of 30 days, so as to make payment of 25% of the total price of the booth. It was next averred that at the time of auction, respondents had declared that the Crystal Plaza, Choti Baradari, Jalandhar where booth No. 7 was situated would be developed and the development work was almost near completion and would be complete in all respect by the time, 15% of the bid amount is deposited i.e., within one month from the date of allotment of booth. Thereafter, the respondent issued allotment letter in respect of booth No. 7, on 23.10.2001, whose copy is Annexure C-3. According to the allotment letter, the balance amount of Rs. 3,36,912 being 75% of the price of plot could be paid in three equal half yearly instalments along with interest @ 15% p.a. or in lumpsum without interest within 60 days from the date of auction and rebate of 5% would also be given. In order to avoid payment of interest, she deposited 75% of the price of plot amounting to Rs. 3,19,975, on 29.10.2001. Thereafter, respondents issued no due certificate bearing No. 8912 dated 31.12.2001 in respect of booth No. 7. According to Clause No. 12 of the allotment letter the possession of the plot was to be given within 30 days from the date of its issuance, but the area remained undeveloped and no facility of roads, water supply, electric supply, sewerage etc. was provided. It was further averred that after receiving standard plan from PUDA, appellant applied for building plan which was not approved. She was interested to start immediate construction but could not do so due to non-delivery of the possession of booth in question and as such she suffered loss due to rise in the cost of construction and also for not getting rent.

With these allegations, she prayed that respondents are liable to make payment of Rs. one lac on account of escalation of price and cost of construction, since, she has been deprived of the possession of plot despite having made its full price, as there was no approach road, 16 ft wide pavement, no arrangement of sewerage, drainage of rainy water, street light, toilet, parking etc.

WITH these allegations, alleging deficiency in service on the part of respondents, the appellant has filed the complaint praying the following relief against the respondents- (a) to deliver the possession of booth No. 7, Crystal Plaza, Choti Baradari, Near Defence Colony, Jalandhar (Pb) to the complainant after providing the basic amenities like street lights, water supply, toilets, roads, 16 ft wide pavements for the site as shown in PUDA''s site plan, sewerage connection and parking etc.; (b) to pay Rs. 34,800 as interest on the amount deposited by the complainant along with future interest at the rate of 18% p.a. on this amount; (c) to pay future interest at the rate of 18% p.a. on the amount of Rs. 4,32,248 w.e.f. 1.4.2002 till delivery of the possession of the plot of the booth in question; (d) to pay a sum of Rs. one lac on account of escalation of the cost of construction of the booth; (e) to pay a sum of Rs. 20,000 on account of mental harassment, pain and agony, suffered by the complainant due to deficiency in service of the parties; (f) to pay Rs. 7500 for visiting Jalandhar from Panchkula; (g) to pay damages at the rate of Rs. 10,000 p.m. with effect from 1.1.2002 till the date of delivery of possession of plot of the booth in question; (h) to delete the condition of charging enhanced price from the complainant mentioned in Annexure C-6; (i) to pay Rs. 5,000 towards costs of litigation.

Respondents contested the complaint and filed written reply inter alia stating that the general conditions of auction were announced at the time of auction and had also been published in the newspaper/advertisement. They next stated that no commitment was ever made regarding completion of development work by the time of deposit of remaining 15% of the bid amount, however, public amenities such as water supply, roads, parking, pavement, sewerage, electrical and other infrastructural facilities had already been provided at the spot for public use and were functioning. They next stated that the appellant had paid the entire balance amount of 75% within stipulated period of 60 days from the date of auction to avoid payment of interest and to get 5% rebate. They next stated that the appellant had not wilfully taken possession of the plot although, basic infrastructural facilities had been provided. They further stated that the zoning plan of the commercial site was approved vide Drawing No. 13 dated 20.7.2002 (wrongly stated as 20.8.2002), copy of which had been displayed at the time of auction and copies of the standard design could be had from the office of Senior Town Planner, PUDA, Mohali by depositing requisite fee. Since, appellant herself wilfully had not submitted the building plan for approval, so, question of starting construction before the approval of the building could not arise and the loss being claimed by the appellant was not justified. They also stated that the appellant had purchased the booth in auction, so, she was not a consumer and territorial jurisdiction of the Forum to entertain the complaint was also denied. The appellant filed rejoinder reiterating averments made in the complaint. Parties adduced their evidence by way of affidavits. After hearing Counsel for the parties, the District Forum-I, U.T. Chandigarh, vide its order dated 11.4.2005 dismissed the complaint.

AGGRIEVED by the said order, the complainant has filed the present appeal. We have heard Mr. Jai Kumar Chauhan, Advocate for the appellant, Mr. Gurminder Singh Arshi, Advocate for the respondents and carefully gone through the file. It is an admitted fact that the appellant had purchased booth No. 7, Crystal Plaza, Choti Baradari, near Defence Colony, Jalandhar (Pb) for Rs. 4,49,085 in an open auction held on 29.8.2001 which took place in pursuant to an advertisement issued by PUDA. She had deposited Rs. 44,909 at the spot as 10% of the bid money and Rs. 67,364 within 30 days from the allotment of booth No. 7 to her, so as to make it 25% of the total price of booth in question. She deposited the balance amount, being 75% of the total price i.e., Rs. 3,36,912 on 29.10.2001, after deducting 5% as rebate money. Respondents issued no due certificate bearing No. 8912 dated 31.12.2001. The advertisement Annexure C-1 issued by PUDA shows that the date of auction was fixed as 29.8.2001 at 11.00 a.m. at PUDA complex, SCO 41, Ladowali Road, Jalandhar. There is no mention in the said advertisement that all the basic amenities would be provided within one month and the development work was near completion, as alleged by the appellant. The very fact that this clause was not mentioned in the advertisement suggests that no commitment was made by PUDA, that basic amenities would be provided within one month from the date of auction. Annexure C-3 is photocopy of the allotment letter. It also does not reflect that the possession would be offered after completion of development work. Clause 12 of the said allotment letter reads as under: "You shall be required to take possession of the plot from Estate Officer, PUDA, Jalandhar, within 30 days from the date of issue of allotment letter. In case, the allottee fails to take possession of the site within the stipulated period, it shall be deemed to have been handed over on the due date. The allottee shall be allowed to undertake construction after the possession of site is given subject to the sanction of the building plans."

THUS, it is not mentioned in it that the possession would be offered after the development work is completed. On the other hand, the clause is absolute and suggests that allottee was required to take possession within 30 days from the date of issuance of allotment letter. Admittedly, appellant had not taken possession of the booth No. 7, therefore, it shall be deemed that the appellant had received possession of booth No. 7, after the expiry of 30 days from the date of issuance of allotment letter on 23.10.2001. Admittedly, appellant did not apply for taking possession but to talk of sanctioning of building plan for starting construction of the building. It is true, that the appellant had made payment of balance amount i.e., 75% of the total amount within 60 days from the date of auction i.e., she has sent draft for Rs. 3,19,975 after deducting 5% as rebate money, vide letter dated 27.10.2001. She had also stated in it that the terms and conditions were one sided and to date no roads were there, zonal plan was not ready, parking/pavement was also not ready. It has already been mentioned that there was no condition precedent that the development work was to be completed within 30 days from the date of issuance of allotment letter. Any how, it is the duty of PUDA to provide basic amenities such as roads, drinking water, electricity etc. The respondents in para-11 of their reply have categorically stated that zoning plan of commercial sites was approved vide Drawing No. 13 and its copy was displayed at the time of auction. They have further stated in para-13 that all infrastructural public amenities like pavement 16 ft. wide, roads, sewerage, water supply, street lights, other infrastructures parking etc. had already been provided at the spot. However, appellant never asked for delivery of the physical possession. Annexure R-1 is letter from Superintending Engineer (C) addressed to Estate Officer, Jalandhar. In the said letter, it is categorically stated that the certificate regarding completion of public health works had been sent direct to the office of Estate Officer by the Divisional Engineer (PH), PUDA, Jalandhar, vide letter dated 20.11.2002 and the certificate along with completion of civil and electrical work was received from Divisional Engineer (W) and Divisional Engineer (E) which were enclosed along with the letter. Photographs placed on record also show that roads had been well laid, and electricity/street lights have been provided. There is affidavit dated 9.6.2003 of Sh. Jit Ram, Estate Officer, Jalandhar on the file. It also suggests that public amenities such as water supply, roads, parking, pavements, sewerage, electrical and other infrastructural facilities had already been provided at the spot for public use and were functioning. There is another affidavit of Sh. S.C. Ganda, Superintending Engineer on the file, asserting about providing of facilities.

COUNSEL for appellant contended that the said affidavits were false and in fact, such facilities have not been provided. Be that as it may, we do not want to comment on the affidavits, at this stage. If the affidavits were false and the amenities stated therein were not provided, then the appellant could have appointed Local Commission who could have been asked to visit the site and to report whether the facilities as stated in the affidavits had been provided or not. If, affidavits had been found to be false, then auction could have been taken against the persons who had filed affidavits. But the appellant did not elect to adopt this course. In the absence of this evidence, the mere affidavit of the appellant that the facilities had not been provided could not be believed. Counsel for appellant next contended that the appellant was also allotted SCO 27, situated in Crystal Plaza, New Defence Colony, Jalandhar in an open auction held on 29.8.2001 i.e., the date she had purchased auctioned booth No. 7 and the Consumer Disputes Redressal Commission, U.T. Chandigarh vide judgment dated 6.9.2002, (Annexure C-9) had held that the opposite party was deficient in providing basic facilities such as street lights, water supply, toilets, road, 16 ft wide pavements as shown in the PUDA''s site plan. It is just possible that facilities might have not been completed when evidence was led in Complaint Case No. 18 of 2002, whose judgment is Annexure C-9, but subsequently they completed the basic facilities. In view of the affidavits, much reliance cannot be placed on the judgment Annexure C-9.

Counsel for the respondents contended that the plot in question was sold after development of the area and it was ready for possession at the time of auction but the appellant herself had wilfully failed to take possession of the booth in question, so, there was no question of deficiency on their part. From the affidavit of respondents, it is proved that the amenities have been provided. Photographs placed on record also depict that the roads have been well laid and the electricity installation have also been provided.

COUNSEL for the respondents next contended that the appellant had purchased booth No. 7 for commercial purpose and as such she was not a consumer in view of Section 2(d)(i) of the Consumer Protection Act. There is no evidence on the file that the appellant had purchased the booth for running it for commercial purpose. It is just possible that she may have purchased it for earning her livelihood or for giving it on rent for earning livelihood. It is not proved on record that she had purchased the property for commercial purposes, so as to exclude herself from the definition of ''consumer''. It has been observed in Ajit Singh Sodhi v. Estate Officer, Union Territory, Chandigarh, IV (2003) CPJ 362, that where an auction sale of a plot of land had been made as an outright sale then there was no question of hiring of service of the concerned Development Authority and the purchaser does not come under the definition of consumer. But in the present case it was not an outright sale as the remaining 75% amount was to be paid in instalments and the area was to be developed. Certainly, appellant is a consumer, as service had to be provided by way of providing amenities to the booth allotted to her. Therefore, in view of the foregoing discussion, we hold that there is no force in the appeal and the same is dismissed. Copies of the order be communicated to the parties, free of charge. Appeal dismissed.