PUDA vs VIMAL OPAL

Challenge in this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), is to order dated 21.11.2014 in Appeal No. 1810 of 2011 passed by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh (for short "the State Commission"). By the impugned order, the State Commission affirmed the order of the District Forum and dismissed the Appeal preferred by PUDA.

The brief facts as set out in the Complaint are that the Complainant applied for a 400 sq. yards plot on 29.12.2000 and paid an amount of Rs. 81,600/- vide State Bank of Patiala, Kapurthala Demand Draft towards application money. A letter of intent was issued by PUDA on 21.5.2001 informing the Complainant that she had been successful in the draw of lots and demanded 15% i.e. Rs. 1,22,400/- which was also deposited within time and allotment letter dated 6.11.2001 for Plot No. 1062 was issued to the Complainant. The Complainant averred that Rs.5,81,400/- was made towards full and final payment and the receipt was also issued. Thereafter, the Complainant made several oral and written requests to the Opposite Party to indicate the cut-off date as to when the construction would begin and even got issued a Legal Notice on 31.1.2002 listing all the deficiencies in the development of the site, but there was no reply. Hence, the Complaint, seeking direction to the Opposite Party to handover the physical possession of Plot No. 1062 admeasuring 400 sq. yards; pay Rs. 9,01,600/- towards interest payable for the period 01/2002 to 03/2011 defaulting and handing over the possession of the plot; to pay compensation and costs.

PUDA filed their reply before the District Forum stating that as per the spirit of the said allotment, the inference had to be drawn that even if the possession had not been applied within the period of 90 days, or if the same had been applied but not given, it shall be presumed that possession is deemed to have been taken. Hence, the physical possession is deemed to have been delivered to the Complainant. It is pleaded that the Complainant on account of her own negligence in not submitting the Plans for approval to higher authorities and not raising the construction violated the terms and conditions of the allotment letter and therefore, there is no deficiency of service on their behalf.

The District Forum, based on the evidence adduced, allowed the Complaint directing the Opposite Party to hand over the physical possession of plot No. 1062 within one month from the date of receipt of the order and not to claim Rs.2,18,818/- as non-construction fee/extension fee from the Complainant as infrastructure had not been developed in the colony and physical possession was not given due to incomplete works of civil amenities like linking of sewerage etc.

Aggrieved by the said Order, PUDA preferred an Appeal before the State Commission. The State Commission while confirming the order of the District Forum observed as follows:-

"We have, thus, reached the conclusion that by virtue of Ex. R-3, the document of the opposite party, it is established that the final sewerage work was completed only on 14.12.2009 in the area of allotment. Unitil 14.12.2009, the opposite party was not justified in raising the demand of non-construction fee, when they have themselves not provided the basic amenities to the complainant. There is no fault of the complainant, because she has already paid the price of the plot without any default to the opposite party. Consequently, we have reached this conclusion that since the basic amenities remained incomplete till 14.12.2009 by the opposite party, as reflected in its document Ex. R-3, therefore, there was no justification on the part of the opposite party, to raise the demand of non-construction fee of Rs. 2,81,818/- from the complainant. The District Forum has, thus, correctly concluded in this case that the demand of non-construction charges to the extent of Rs. 2,18,818/- raised by the opposite party from the complainant without providing basic facilities and without delivering the physical possession, was unjustified. The District Forum relied upon judgment of the Hon''ble National Commission reported as " GDA Vs. Krishna Kumar Ji ", I (2004) CPJ - 119 to the effect that infrastructure has not been developed in the colony area, where the plot was allotted and physical possession was delivered due to incomplete work of civil amenities, like linking of sewerage etc., consequently, the demand of extension fee would not justify. We, thus, find no illegality in the order of the District Forum under appeal, calling for any interference therein.

As a result of our above discussion, we affirm the order of the District Forum under appeal and finding the appeal without any merit, the same is hereby dismissed".

Dis-satisfied with this order, PUDA preferred this Revision Petition.

Both sides filed their written submissions.

The learned counsel for the Revision Petitioner contended that the letter of allotment dated 6.11.2001 issued in favour of the Respondent for plot No. 1062 had been allotted on "as is where is" basis. The allottee had to take the possession of the plot as per clause 9 from the Estate Officer, PUDA within 90 days, failing which possession was deemed to have been taken by the allottee. Clause 10 stipulates that the completion period of construction is initially for three years from the date of allotment after getting the Plan approvals. However, this period was subsequently extended and construction could be raised without payment of extension fee upto three years beyond 12.6.2002 when the Zonal Plan was approved and the basic development work was completed to enable construction to be raised.

Learned counsel appearing for PUDA vehemently argued that in case of non-completion of construction beyond the said period of three years (w.e.f. 12.6.2002 expiring in 2005), extension fee was payable. Vide letter dated 15.12.2009, the Estate Officer, PUDA, Jalandhar was informed by the Divisional Engineer, PUDA that the work of connecting the internal sewer line (which was laid in the year, 2002) was connected with the main sewer line on 14.12.2009. The learned counsel argued that the temporary disposal of sewage was being done regularly to avoid any inconvenience to the allottees and the water supply network was also made functional in the year, 2002. Therefore, the allottees could easily raise the construction work on their plots. She submitted that the Respondent filed the complaint on 2/2011 without applying for extension of

time after the moratorium period of three years expired in 2005. The learned counsel for the Petitioner herein filed in her written submission the list of plots, which have been constructed before 2005 in and around the Urban Estate, Kapurthala. She relied on the Judgment of this Commission in Baldev Singh vs. PUDA in Revision Petition No. 2217 of 2010 decided on 17.1.2011, in which this Commission held that having availed the Moratorium period of 3 years, the date on which the Zoning plan was approved and the basic development work completed, PUDA rightly demanded the completion fee.

The facts in this case are different as the main contention of the Complainant is that even the basic amenities were not completed, whereas there is no such allegation with respect to non-provision of amenities in the afore-mentioned cited Judgment. The record shows that the Complainant was issued a letter of allotment on 6.11.2001 for plot No. 1062 measuring 400 sq. yds. and the Complainant had paid the entire amount of Rs. 5,81,400/- by 3.1.2002. Clause 9 of the allotment letter stipulates that the Complainant shall be required to take possession of the plot from the Estate Officer, PUDA within 90 days, failing which it shall be presumed that the possession is deemed to have been taken by the allottee. As per Clause 10 of the allotment letter, the allottee shall have to complete the building within three years from the date of issue of allotment letter after getting the plan of the proposed building approved from the Estate Officer.

There is concurrent finding of fact by both the Fora below that physical possession had not been delivered to the Complainant and that the Complainant cannot construct a house without the physical possession and without the completion of basic amenities like sewerage, roads, water supply etc. Letter dated 15.12.2009 issued by the Divisional Engineer to Estate Officer, PUDA, Jalandhar to the effect that the sewerage work had been completed on 14.12.2009, clearly evidences that the basic amenities like sewerage work was completed only on 14.12.2009 and therefore, the contention of the learned counsel for the Petitioner that the temporary disposal of sewerage was done regularly and therefore, it should be construed that this amenity was made available, is unsustainable. The State Commission had noted that since the basic amenities remained incomplete till 14.12.2009 by the Petitioner herein, as reflected in the document dated 15.12.2009, there was no justification on behalf of PUDA to raise the demand of non-construction fee of Rs.2,18,818/- in the Complaint.

Learned counsel for the Respondent filed additional document, which is true copy of the letter dated 15.9.2015 addressed by the Respondent/Complainant to the Estate Officer, PUDA seeking information about the said Plot No. 1062 and the actual size of the plot as per the measurement of the site at the time of registration be made available so that the correct figure can be entered in the Sale Deed.

It is pertinent to note that non-construction fee is sought from the Respondent from the period between 12.6.2005 to 30.6.2011 under Sections 44 & 45 of the PUDA Act, 1995, which

provides for reasonable opportunity and show cause notice. As seen from the record, the Consumer Complaint was filed before the District Forum on 2.4.2011 and the last communication from PUDA to the Respondent is dated 6.4.2011, wherein there is no mention of non-construction fee.

It is also pertinent to note that the Respondent got to know about the imposition of non-construction fee for the period 12.6.2005 to 30.6.2011, only by way of the reply, filed by the Petitioner herein before the District Forum. The record does not show any notice issued to the Respondent as stipulated under Sections 44 & 45 of the PUDA Act.

For all the afore-mentioned reasons, I do not find it a fit case to exercise our limited revisional jurisdiction to interfere with the concurred finding of fact of both the Fora below.

Hence, this Revision Petition fails and is dismissed accordingly. No order as to costs.

IA Nos. 2601, 7677 & 8625 of 2015 stand infructuous as the main Revision Petition itself is disposed of.