PUNJAB URBAN PLANNING AND DEVELOPMENT AUTHORITY vs JATINDER SINGH JUNEJA

WE propose to decide the two appeals bearing Nos. 280 and 281 both of 2004, mentioned above, which arise from a common judgment and order dated 25.3.2004 passed by District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [for short hererinafter referred to as the District Forum] in Complaint Case No. 1040 dated 3.12.2002, Jatinder Singh Juneja v. Punjab Urban Planning and Development Authority (for short hereinafter to be referred to as PUDA) and Another, deciding another Complaint Case No. 1041 of 2002, Smt. Surinder Kaur v. PUDA and Another. The two complaint cases were taken up for disposal by a common judgment on the ground that they involved common questions of law and facts. The facts were, however, extracted from the case filed by respondent Shri Jatinder Singh Juneja. The relevant facts for disposal of these two appeals as extracted from the complaint case are as under:

THE appellant-PUDA floated a scheme for allotment of freehold booth sites on reserved price in S.A.S. Nagar (Mohali) in District Ropar. THE scheme commenced from 25.6.2001 and closed on 27.7.2001. A sum of Rs. 50,000/- was required to be deposited as the application money as set out in the brochure (Annexure C-1) issued by the appellant PUDA. THE brochure enables a person to either move an application under ordinary scheme of allotment or under Tatkal scheme of allotment. THE latter scheme known as Tatkal scheme of allotment required the applicant to deposit 10% extra amount than under the ordinarily allotment price. Undisputedly, the respondent Shri Jatinder Singh Juneja, as also the other respondent/complainant Smt. Surinder Kaur opted for the second alternative offer applying under the Tatkal scheme of allotment. THE applicants under the Tatkal scheme of allotment were to be considered first for draw of lots, preferred over the applicants under the ordinarily scheme of allotment. THE appellant PUDA intimated to the respondent vide their letter dated 27.9.2001 (Annexure C-4) that he was successful under the Tatkal scheme and asked him to approach the Chief Administrator, PUDA on 10.10.2001 at 9.00 a.m. for selection of the premises, which in the instant case was a booth, of his choice. THE respondent/complainant opted for booth No. 82-A, Sector 70, SAS Nagar, Mohali and gave it in writing vide letter Annexure C-5. A letter of intent in respect of the aforesaid booth was issued by the appellant PUDA on 18.1.2002 to the respondent/complainant wherein the tentative price was worked as Rs. 15,10,502/-. The appellant required the respondent to deposit a sum of Rs. 3,77,628/- within 60 days from the date of issue of letter of intent being 25% of the tentative price. The Condition No. 4 of the letter of intent enabled the respondent/complainant to make request for extension of the aforesaid period of 60 days by further 30 days by the Estate Officer, PUDA, Mohali by making a written request. The extension of 30 days time could be given subject to payment of interest @ 2% per month, calculated on daily basis, on the amount due. The earnest money of Rs. 50,000/- was to be adjusted towards costs of 25%.

Clause 6 of the letter of intent provides that in case the applicant neither deposited the money within 90 days nor gave his refusal to accept this offer within 90 days, the entire earnest money deposited by such applicant shall stand forfeited. Clause 7 of letter of intent conferred a right on the respondent/complainant to transfer the letter of intent by way of sale, mortgage, gift or otherwise with the permission of Estate Officer, PUDA and subject to the payment of transfer fee equal to 5% of the amount deposited with PUDA, which could be revised also by PUDA from time-to-time. Clause 8 contained a condition that booth was allotted under the "General Trade" and any trade involving use of fire cooking, manufacturing, repair of furniture, car, cycle, etc., sale of fish/meat or any trade which cause obstruction to public causes or any other abnoxious trade shall not be allowed. Clause 9 provided that after the requisite formalities are completed by the applicant to the satisfaction of the office of PUDA and his application is found to be correct after scrutiny, allotment letter will be issued to such an applicant. Clause 10, which is the last clause of letter of intent, provides for any dispute arising between PUDA and the applicant relating to the terms and conditions of letter of intent shall be referred to the Chief Administrator, PUDA whose decision would be final and neither party could raise objection that Chief Administrator is an officer of PUDA who is acting as an Arbitrator in the present case.

AS per the terms and conditions contained in the letter of intent, the respondent applied to the appellant-PUDA for extension of date of deposit by another 30 days and the appellant PUDA vide their letter dated 12.4.2002 extended the period of deposit by another 30 days but PUDA declined the request of the respondent for waiving/remitting 10% of the price under the Tatkal Scheme of allotment. The copy of the letter in this regard is Annexure C-8 and is dated 12.4.2002. The complainant did not feel satisfied with the response of the appellant PUDA and he vide his letter dated 16.4.2002 (Annexure C-9), which was received in the office of the appellant PUDA and entered at diary No. 4433 dated 16.4.2002, itself informed PUDA that the respondent was surrendering the booth and requested for refund of his earnest money, which was declined by the appellant vide letter Annexure C-10 dated 30.7.2002 on the ground that his earnest money was being forfeited. An appeal was filed before the Chief Administrator, PUDA against the forfeiture of amount deposited by the respondent, which was dismissed on 11.8.2002. It is alleged by the respondent/complainant that the Chief Administrator, PUDA did not take into consideration Condition No. 6 of letter of intent. The contention of the respondent/complainant was that he had within 90 days of the issue of letter of intent conveyed his refusal to accept the allotment of booth to the appellant-PUDA and asked for refund of the earnest money, the action on the part of appellant-PUDA in not refunding the earnest money was described as deficiency in service hired and availed by the respondent/complainant. Resultantly, the complaint was filed seeking refund of Rs. 50,000/- with interest @ 18% per annum from 11.7.2001 till its realization and compensation of a sum of Rs. 1 lac on account of mental tension, agony and harassment caused to the complainant by the appellant-PUDA. A sum of Rs. 10,000/- was claimed against PUDA for floating a frivolous scheme under the pretext of Tatkal scheme. A sum of Rs. 5,000/- was claimed as costs of litigation.

THE appellant-PUDA appeared and filed written statement wherein it was contended that the application made with earnest money under Tatkal Scheme for allotment of booth was irrevocable under Condition No. 2 of letter of intent under Clause (i) of the brochure, the applicant under no circumstances was entitled to withdraw the application once submitted either before or after the draw. THE action of the appellant-PUDA in forfeiting the amount deposited by the respondent/complainant was defended. The District Forum held that the earnest money deposited by the complainant was not liable to be forfeited and the complainant was entitled to its refund. It was held that the O.P.-PUDA had committed deficiency in service by refusing to refund the earnest money to the complainants. The two complaint cases were partly allowed and PUDA/O.Ps. were directed to refund the earnest money in both the complaint cases with interest @ 6% per annum from the date on which they conveyed their refusal to the O.Ps. till payment. The rate of interest of 6% per annum was determined on the basis of fiscal measures adopted by the Reserves Bank of India and Government of India. Feeling aggrieved against the judgment and order dated 25.3.2004 of the District Forum, the O.Ps. in both the complaint cases i.e., PUDA through its Chief Administrator, Sector 17-A, Chandigarh and PUDA through Estate Officer, Mohali have filed these two appeals. The respective respondent/complainant put in appearance through Mr. Neeraj Sharma, Advocate. The record of the two complaint cases was summoned from the District Forum. We have heard Mr. G.S. Arshi, Advocate appearing for the appellant-PUDA and another and Mr. Neeraj Sharma, Advocate appearing for the respondents/complainants.

THE main contention raised in these two appeals is that the respondent/complainant was bound by the terms and conditions contained in the letter of intent and the application for allotment of booth under Tatkal Scheme was irrevocable and the respondent/complainant could not withdraw from the same and since the respondent/complainant did not pay the balance amount, the terms and conditions contained in Clause 6 of the letter of intent became applicable and the application of the complainant/respondent for refund of the earnest money was declined on the ground that the earnest money deposited by the respondent/complainant stood forfeited.

THE sole point, which requires decision in both the appeals is whether the appellant-PUDA was justified under the terms and conditions of letter of intent in forfeiting the amount of earnest money deposited by the respondent/complainant. It follows that the respondent/complainant has to show that his case did not come under the mischief of Clause 6 of the letter of intent and that he could make a prayer for refund of the earnest money deposited by him that he communicated his refusal within the time allowed in Clause 6 of the letter of intent. At the outset, it may be pointed out that the appellant-PUDA had not issued the letter of allotment of the booth to the respondent/complainant as the same was to be issued subsequently as contained in Clause 9, which has been mentioned in the earlier part of our judgment. The District Forum considered the rival contentions and took into consideration the terms and conditions of the Tatkal Scheme and the letter of intent. Clause (i) of the brochure regarding the Tatkal Scheme provides that the refund/forfeiture of earnest money in the Tatkal Scheme shall be recorded as irrevocable and under no circumstances whatsoever an applicant shall be permitted to withdraw his application once submitted either before or after the draw. Condition No. (ii) referred to the allotment being subject to the provisions of Punjab Regional and Town Planning Development Act, 1995, rules and regulations, policies framed thereunder, as well as the terms and conditions of the brochure, on the basis of which application was made by the applicant and the application made by the respondent/complainant was considered as irrevocable.

As mentioned above, Condition No. 2 of letter of intent referred to the allotment to be made in respect of the booth, which in the instant case had not been made till the respondent/complainant communicated his refusal to accept the allotment and prayed for refund of the earnest money. The District Forum referred to Condition No. 4 of the letter of intent, which we have also mentioned in the earlier part of our order and it clearly enabled the applicant to pray for extension of the period of 60 days by further 30 days by the Estate Officer, PUDA, Mohali. The District Forum held that no doubt under the brochure and the condition Nos. 2 and 4 of the letter of intent, the Tatkal application was irrevocable and in case of default of the application, the money was to be forfeited. It was held that it is settled principle of law that a document has to be read as a whole and harmoniously. It was pointed out that it is Clause 6 of the letter of intent, which dealt with the defence of the appellants/O.Ps.

A perusal of Clause 6 of the letter of intent, which has been extracted as (i) and (ii) in Para 7 of the impugned judgment and order of the District Forum, clearly shows that earnest money could be forfeited if (i) the complainant did not deposit money within 90 days, or (ii) that within 90 days he did not convey to the O.P. his refusal to accept this offer contained in the letter of intent. It was referred to in para 8 of the District Forum that the learned Counsel for PUDA admitted before the District Forum that the complainant''s letter of refusal was received in the office of PUDA even on 89th day of the date of issue of letter of intent. It was under these circumstances that the District Forum held that the earnest money could not be forfeited as the refusal to accept the offer as contained in the letter of intent was communicated to the appellant-PUDA within 90 days of the date of issue of letter of intent by the complainant. The District Forum rightly pointed out that if two interpretations are possible then the one, which favour the consumer should be preferred. After reading clauses of irrevocability of Tatkal application in the brochure in conjunction of Condition Nos. 2, 4 and 6 of the letter of intent, an interpretation can reasonably be made that if within 90 days of the issue of letter of intent, the complainant had conveyed to the O.Ps. his refusal then his earnest money was not liable to be forfeited.

WE have taken into consideration Clause No. 6 and other clauses of the letter of intent and while considering the fact that the letter of refusal was received in the office of appellant-PUDA within 90 days, the respondent/complainant became entitled to seek the refund of the earnest money and the appellant could not forfeit the entire earnest money deposited by the applicant. Clause 6 of the letter of intent thus clearly and categorically enabled the applicant to seek the refund of the earnest money deposited by the respective complainant and this interpretation is clearly inferable from the reading of Clause 6 of the letter of intent. The aforesaid interpretation is in favour of the consumer and it should be interpreted accordingly in his favour keeping into consideration the fact that the provisions of the Consumer Protection Act, 1986 are for better protection of the consumer and the consumer is to be protected against the provider of the service. The extreme step of forfeiting the amount of earnest money runs counter to the very fact that the appellant-PUDA, a statutory body, is functioning for serving the Society and not as an institution of earning profits. Resultantly, we find no infirmity in the impugned judgment and order of the District Forum. Both the appeals bearing Nos. 280 of 2004 and 281 of 2004 are devoid of merit and are dismissed leaving the parties to bear their own costs of respective appeals. Copies of this judgment be sent to the parties free of charge. Appeal dismissed.