N S KOHLI vs Punjab Urban Planning and Development Authority

-THIS is an appeal by the complainant whose complaint has been dismissed by the District Forum vide impugned order dated 16. 12. 2004. Brief facts giving rise to filing of this appeal may be noticed: complainant Mr. N. S. Kohli had purchased a single storey shop site No. 80 (SSS. No. 80) in Phase-III-B2, SAS Nagar, Mohali in open auction held on 3. 9. 1993 in the sum of Rs. 5,82,000. He paid Rs. 90,000 at the fall of hammer and the remaining amount, to complete 25% of the price, was to be paid within 30 days of the auction. He paid Rs. 55,000 on 7. 9. 1993. Allotment letter in respect of the said site purchased by the complainant was issued on 10. 4. 1995. It may be observed here that as per the allotment letter the construction on a site was to be completed within a period of three years from the date of allotment. In other words, the construction had to be completed by 9. 4. 1998. As per the allegations in the complaint the complainant had been paying the instalments. The schedule of payment of instalment was, in fact, fixed from the date of auction and not from the date of allotment. According to the allotting authority i. e. PUDA there was some default in the payment of interest/penalty of the instalments by the complainant which led it to pass an order on 21. 2. 1997 resuming the site in question. This resumption order was challenged before the authorities under the Act. The complainant succeeded partly in his appeal but succeeded wholly in his revision petition filed before the Special Secretary, Government of Punjab, Department of Housing and Urban Development who passed the order in favour of the complainant on 5. 8. 2003 which reads as under: "i have heard the Counsel for the petitioner and have also perused the record of the case. I am in agreement with the Counsel for the petitioner that in this case the schedule of payment of instalments should have been from the date of allotment i. e. on 10. 4. 1995 and not from the date of auction i. e. 3. 9. 1993. Thus, the 1st instalment should have been due on 10. 4. 1996 which was deposited by the petitioner in advance and similarly 2nd instalment which should have fell due on 10. 4. 1997 had also been deposited in advance i. e. on 22. 1. 1996. In this situation of the matter, I am inclined to take a considered view in the matter and set aside the impugned order. The State Officer, Mohali is directed to re-schedule the instalments in the instant case from the date of issue of allotment letter. Due credit should also be given to the petitioner for the period he deposited the instalments in advance by not charging the interest for that particular period. The whole account of the case be prepared as per this order and in case, there is any outstanding amount to be paid by the petitioner, the same shall be paid by him within 30 days from the demand by the Estate Officer and in case, there is surplus amount received from the petitioner then the same should be refunded to him within 30 days from the receipt of this order. "

AFTER the order of the revisional Authority dated 5. 8. 2003, quoted above, calculations were made by PUDA Authorities and it was found that Rs. 14,005 had been received in excess. However, as per PUDA non-construction fee to the tune of Rs. 81,235 was payable by the complainant for not completing the construction within three years of allotment. After adjusting the excess amount of Rs. 14,005 towards non-construction fee Rs. 67,230 was claimed from the complainant vide memo dated 25. 11. 2003, Ex. C-3, before the District Forum. This non-construction fee is stated to have been calculated from 9. 4. 1998 upto year 2003. From this it is apparent that according to PUDA the construction was required to be completed by 9. 4. 1998 and since it had not been completed by the time memo dated 25. 11. 2003 was issued and a sum of Rs. 67,230 became payable towards non-construction fee after adjusting Rs. 14,005 which PUDA had received in excess. The complainant vide letter dated 5. 12. 2003 asked as to how this amount was being charged as non-construction fee and prayed that the demand of said amount be withdrawn and requested for the delivery of possession of the site. The possession was not delivered on the ground that the complainant had not paid the non-construction fee. This led the complainant to file a complaint before the District Forum which has been dismissed as not maintainable because the complainant was an auction purchaser and according to the District Forum he could not be said to be a consumer under the C. P. Act. Hence, the present appeal.

So far as the question of complainant to be a consumer is concerned it is well settled by the National Commission as well as by this commission that auction purchaser is as good a consumer as a person who gets a plot allotted otherwise than by auction. The end result of allotment of a plot by auction or by allotment by any other means is the same. It is only the methodology of allotment. Consequently, it will not make any difference whether any person gets a plot by way of auction or by way of allotment or by any other means of allotment.

THE question that remains for consideration is as to upto which date, under the circumstances of this case, the complainant was required to complete the construction? As per the allotment letter the complainant had to complete the construction by 9. 4. 1998. However, resumption intervened on 21. 2. 1997 which disenabled the complainant to start/complete construction. That order was set aside by the revisional Authority on 5. 8. 2003. So w. e. f. 21. 2. 1997 till 5. 8. 2003 the complainant could not make any construction or complete the construction as the site stood resumed during this period. Of course for period 10. 4. 1995 to 21. 2. 1997 he having not made any construction that period will have to be counted towards three years period of construction which is provided by the allotment letter. In other words, after stopping of the running of the construction period on 21. 2. 1997 the same would start again on 5. 8. 2003 when the resumption order was set aside. That order was conditional in the sense that calculations had to be made and if any excess amount had been received from the complainant that had to be refunded and alternatively, if there was anything due from the complainant that was to be demanded by the PUDA Authorities. According to PUDA, since the complainant had not completed construction by 1998 he was liable to pay non-construction fee w. e. f. 10. 4. 1998. We do not see any basis for asking for non-construction fee for the period 1998 to 2003. After the resumption order was set aside and within a reasonable time thereafter when the complainant asked for possession of the site the construction period which had stopped running on 21. 2. 1997 when the resumption order was passed would start on the delivery of the possession by PUDA. Puda could only charge non-construction fee if the complainant failed to complete construction within the balance period of three years (after taking into account the period from 10. 4. 1995 to 21. 2. 1997) after delivery of possession of the site. Consequently, we allow this appeal and set aside the impugned order of the District Forum dated 16. 12. 2004 by giving the following directions: (i) The demand raised by Puda for non-construction fee from the year 1998 to 2003 vide memo dated 25. 11. 2003 (Ex. C-3) is hereby set aside; (ii) Respondent Puda to refund Rs. 14,005, admittedly received by it in excess from the complainant, with interest at the rate of 9% p. a. from 25. 11. 2003 (when calculations were made after the order of the revisional authority dated 5. 8. 2003) till payment; (iii) Let the physical possession of the site be delivered to the complainant within a period of 30 days of the receipt of a copy of this order from this Commission or a certified copy thereof from the complainant whichever is earlier after giving due notice by registered post to the complainant to come present to take the physical possession; (iv) The complainant will be given a further period of construction to complete three years period from the date of possession after taking into account the period from 10. 4. 1995 to 21. 2. 1997 (about 22 months ). In other words, the complainant will be given period to complete construction of about 14 months from the date of possession and if the complainant does not complete the construction, as aforesaid, Puda will be at liberty to levy/charge non-construction fee in accordance with law. We make no order as to costs. Appeal allowed.