PUNJAB URBAN PLANNING AND DEVELOPMENT AUTHORITY vs Jarnail Singh

PETITIONER /Opposite party being aggrieved by order dated 11.5.2012, passed by Punjab State Consumer Disputes Redressal Commission, Chandigarh (for short, ''State Commission '') has filed the present revision petition.

AS per respondent/complainant ''s, petitioner floated a residential scheme near Sainik School, Kapurthala in which allotment of plots were made by way of auction held on 16.1.2001. It is averred that respondent remained successful in giving the highest bid against plot No.55 measuring 150 sq. yards for a total sale price of Rs.6,37,500/-, which was duly accepted by the petitioner. Letter of allotment dated 17.7.2001 was issued by the petitioner admitting therein that a sum of Rs.1,59,375/- have already stand deposited by the respondent, being 25% of the total cost of the plot. While remaining amount of Rs.4,78,125/- was allowed to be deposited by way of installments. It is alleged that since petitioner was not in possession of the area where the proposed residential estate was to be set up and as such petitioner was not in a position to deliver the possession of the plot allotted to the respondent in auction. Respondent has been approaching the officials of the petitioner with a request to give the status of scheme but they explained that some litigation is pending regarding the estate area and as such the scheme has come to an end. Therefore, respondent did not deposit the remaining installments as the scheme was no more operative and petitioner was not in a position to transfer the plot to the respondent. Apparently, there was deficiency in service on the part of the petitioner. In this regard, respondent has prayed that following reliefs may be granted ; (a) Respondent may kindly be directed to refund of Rs.1,59,375/- being already stand deposited by complainant being 25% of the total cost of the plot, along with interest @ 12% p.a. from the date of its deposit, till actual realization. (b) The respondent may also be directed to pay Rs.50,000/- on account of harassment, mental tension and agony. (c) The respondent may also be directed to pay Rs.5,500/- as litigation expenses. (d) Any other relief to which the complainant is found entitled may also be granted to him with costs. "

Petitioner, in its written statement raised Preliminary Objections stating that the complaint is not maintainable ; the Forum has no jurisdiction to entertain and decide the complaint as per clause 25 of the allotment letter ; complaint is time barred and complaint is also bad for non-joinder of necessary party. On merits, it is denied that petitioner was not in possession of the area of residential estate or that it was not in a position to deliver the possession of the plot to the respondent in open auction. It is pleaded that respondent never approached the petitioner or its officials for taking possession of the plot before the service of the legal notice dated 13.7.2006. It is also submitted that as per schedule of the allotment, petitioner was required to make payment of balance of installment as per the clause 4 of the allotment letter and was to make the full payment upto 16.7.2004. Respondent has made payment of only 25% of the amount out of the total sale price of Rs.6,37,500/- but he failed to pay the balance amount in installments, as per clause 4 of the Allotment letter till date. Therefore, notice under the provision of the Act for the recovery of the amount was issued to him. Respondent instead of replying the notice or making the payment of the balance amount, filed the present complaint. Therefore, petitioner is entitled to not only forfeiture of the 25% of the amount deposited, but also to the resumption of the plot as per clause 5 of the allotment letter, in exercise of the power under the provision of Section 45(3) of the PUDA Act. Respondent is not entitled to refund of any amount, as there was no deficiency in service on the part of the petitioner.

District Forum, vide its order dated 3.4.2007, partly accepted the complaint and directed the petitioner to refund the earnest money of Rs.1,59,375/- after deduction of 10%.

AGGRIEVED by the order of District Forum, both parties filed separate appeals. First Appeal no.1232 of 2007 was filed by the respondent/complainant whereas, First Appeal no.788 of 2007 was filed by the petitioner/opposite party. State Commission, vide its impugned order dismissed the appeal of the petitioner, whereas appeal of the respondent was accepted and it modified the order of District Forum by setting aside the directions about deduction of 10% of the deposited amount and held ; "The complainant would be, therefore, entitled to the refund of the earnest money of Rs.1,59,375/- along with interest @ 9% per annum since the date of deposit till the date of payment to the complainant. However, the appeal (First Appeal No.788 of 2007) filed by the OP-respondents is dismissed. In view of the facts of the case, parties are left to bear their own costs. This case is a classic example of the negligence on the part of the officials of the PUDA. They are equipped with a power to impose penalty on the defaulters but even then have not imposed any penalty and did not forfeit the deposited amount, due to which, PUDA may have suffered huge loss in similar cases of default by the depositors. The PUDA may, therefore, recover the amount of loss so suffered by it along with interest and costs from the officials/officers who were negligent and did not take appropriate action against the defaulters as referred to above, of course after giving the officials/officers an opportunity of being heard."

THIS is how this matter has reached before this Commission. It is contended by learned counsel for the petitioner that deficiency of service is sine qua non under The Consumer Protection Act, 1986. In the present case, deficiency of service alleged by the respondent in an ex facie frivolous complaint was found by the District Forum to be wholly groundless and unsustainable as District Forum in its order has observed ; "Complainant has failed to produce any evidence that PUDA was not in position to deliver possession of the plot to him. Therefore, it appears that complainant might have faced some financial stringencies to pay the balance amount of the installments as per scheduled dates under the terms and conditions of the allotment letter Ex.C4 dated 17.7.20001."

Other contention is that the impugned order tantamount to unwarranted interference with the petitioner ''s legitimate exercise of powers under section 45 (3) of the Act. Further, there were lapses on the part of the respondent, since he failed to make the agreed payment. Thus, there is no deficiency on the part of the petitioner. In support, learned counsel has relied upon the following judgment ; (i) Greater Mohali Area Development Authority and Ors. Vs. Manju Jain and Others, (2010) 9 SCC 157.

FIRST of all, it would be fruitful to reproduce the relevant pleadings of the parties which are necessary to decide the real controversy in this case. Para 3 of the complaint read as under ; "3. That complainant did not deposit the remaining installments as per the advice given by the respondent ''s officials on the ground that the scheme is yet to be matured etc. and now since the scheme is no more operative, the respondent are not in a position to transfer any plot to complainant and as such the respondent are bound to return the amount deposited by complainant by way of sale price along with interest @ 15% p.a., which was to be levied on the balance sale price of the aforesaid plot, although the officials of the respondent department has been promising to make the payment of the amount with interest, but the matter is being delayed on one pretext of the other. "

WHEREAS , corresponding para no.3 of the written statement states ; "3. That para No.3 of the complaint is admitted to the extent that the complainant did not deposit the remaining installments as per the demand of the opposite party. But it is wrong and denied that the scheme has not matured. It is also wrong that scheme is no more operative. It is further wrong and denied that the opposite party is not in position to transfer any plot to the complainant. It is submitted that the complainant never approached the opposite party for the alternate plot or has never put forward his any grievance before the opposite party orally or in writing. It is further wrong and denied that the opposite party is bound to return the sale price along with interest 15% p.a. It is submitted that as per the clause 5 of the allotment letter the complainant was having option to refuse to accept the allotment within 30 days from the date of the issuing of the allotment letter. But the complainant never opted to refuse the allotment as per the clause 5 of the allotment letter. The clause 5 of the allotment letter dated 17.7.2001 reads as under :- Clause-5 � "In case you refuse to accept this allotment, you shall communicate your refusal by Registered Letter within 30 days from the date of issue of the allotment letter in that case 10% of the earnest money deposited shall be forfeited. In case, the refusal is received after 30 days and within 60 days of the issue of the allotment letter 15% of the earnest money deposited shall be forfeited. In case the refusal/acceptance is not received within the 60 days of the issue of the allotment letter the action shall be taken under the provisions of Section 45 (3) of the PUDA Act. "

Thus, as the opposite party has already spent crores of rupees on the development of the site and for providing basic infrastructure on site. Therefore, the complainant is not entitled to refund of any amount. But is liable for the proceedings under section 45(3) of the PUDA Act. It is wrong and denied that the officials of the opposite party ever promised the complainant for the refund of amount. " Hence, as per para no. 3 of the written statement, petitioner has nowhere specifically controverted the averments made by the respondent "that as per the advice given by the petitioner ''s officials on the ground that the scheme is yet to be matured etc. and now since the scheme is no more operative, the petitioner are not in a position to transfer any plot to the complainant and as such the petitioner are bound to return the amount deposited by complainant by way of sale price along with interest @ 15% p.a., which was to be levied on the balance sale price of the aforesaid plot, although the officials of the petitioner department has been promising to make the payment of the amount with interest, but the matter is being delayed on one pretext of the other ".

Moreover , petitioner in its written statement itself has pleaded that "complainant never approached the opposite party for the alternate plot "(emphasis supplied).

I fail to understand as to where was the need for the respondent to have approached the petitioner for an alternate plot when the scheme in question was in existence. The making of an offer for alternate plot, as per written statement of the petitioner gives credence to the averments of the respondent made in its complaint that the respondent was not in possession of the area where the proposed residential estate was proposed to be set up and as such respondent was not in a position to deliver the possession of the plot allotted to the complainant in auction. Further, these averments made by the complainant that he had been approaching the respondent and its officials on number of occasions with a request to give the status of scheme but they failed to give any satisfactory reply and simply used to state that some litigation is pending regarding the said area, and as such further proceedings cannot be carried out and now, complainant has been told that the scheme has come to an end as the area sought to be allotted is neither owned nor possessed by the respondent, have not been specifically denied by the petitioner.

THEREFORE , it is stand clearly established from the record that, the scheme in question was not inexistence and the petitioner was not in a position to transfer the plot in question to the respondent and that is why petitioner has taken the plea in its written statement "the complainant never approached the opposite party for the alternate plot ". Otherwise, there was no occasion for the petitioner to have taken such a plea in its written statement. Under these circumstances, the deficiency in service on the part of the petitioner is writ large and it could not have initiated the proceedings under section 45(3) of the Act and also it cannot forfeit the amount deposited by the respondent. Decision of Greater Mohali Area Development Authority (supra) as cited by learned counsel, is not applicable to the facts of the present case.

ACCORDINGLY , I do not find any infirmity or illegality in the order passed by the State Commission. There is no reason to disagree with the findings given by State Commission and specially the remarks made against the working by the officials of the petitioner/authority.

UNDER these circumstances, present petition which is having no merit at all, is hereby dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only). Petitioner is directed to deposit the cost of Rs.10,000/-, by way of demand draft in the name of "Consumer Legal Aid Account " of this Commission, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.