PUNJAB URBAN PLANNING AND DEVELOPMENT AUTHORITY PUDA vs Sardara Singh

-THIS is an appeal received by transfer from Punjab State Consumer Disputes Redressal Commission against the order of District Consumer Disputes Redressal Forum, Ropar (for short hereinafter to be referred as District Forum) dated 14. 9. 2001 in complaint case No. 277 of 2000, Sardara Singh v. Punjab Urban Development Authority (PUDA) and Another.

BRIEFLY stated the complainant''s case is that he had applied for plot measuring 250 sq. yards at Mohali and he was enrolled for allotment of the same on deposit of Rs. 500 as registration fee on 29. 12. 1990. The complainant further deposited Rs. 30,000 as earnest money @ Rs. 1,200 per sq. yard vide draft No. CO/a/93/052257 dated 3. 8. 1994. The OPs increased the rate of land from Rs. 1,200 per sq. yard to Rs. 1,400 per sq. yard and he was asked to give his option showing his willingness to pay the same. The complainant filled the requisite form and deposited a sum of Rs. 5,000 as difference in the costs as additional earnest money vide draft No. C0/a/93/064206 dated 11. 12. 1995. A draw of lot was held in the year 1994 but the name of the complainant had not been included in the same and likewise even in the draw held in the year 1995, the name of the complainant was not considered for allotment of the plot. The complainant eventually received a letter No. 14200 dated 10. 6. 1996 from the OPs mentioning that the draft sent by him was not traceable in the office. He replied to this vide his letter dated 21. 6. 1996 to the OPs and even wrote to Secretary, PUDA and paid personal visits to explain the position. In the year 1997, he approached the office of the OPs whereupon his file was taken by the concerned official who had given the noting that the name of the complainant was ignored in the draw held in the years 1994 and 1995 on account of fault of the department. The complainant avers that he was entitled for the draw but even then no allotment letter was issued nor his name was considered even in the draw held in May 2000. Further alleging that all the persons whose names were put in the draw in the year 2000 had been allotted plots. The complainant has, therefore, filed the complaint for issuance of directions to the OPs to allot him a plot in Sector 69 or 70, Mohali or in any other sector equivalent thereto measuring 250 sq. yards @ Rs. 1,400 per sq. yard and also to pay the complainant Rs. 3 lacs as damages on account of escalation in the costs of construction and also on account of rent paid in the absence of his own house and further pay an amount of Rs. 1,50,000 as damages for deficiency in service and for causing mental agony in addition to payment of interest @ 18% per annum on the amount deposited as earnest money till realization. The case of the OPs is that the complainant had applied for the allotment of a plot measuring 250 sq. yards and had deposited Rs. 500 and his registration number was 7153. Deposit of Rs. 30,000 as well as Rs. 5,000, as averred by the complainant, has also been admitted. It has further been admitted that all persons whose names were put in the draw had been allotted plots but the OPs justified their act of not adding the name of the complainant in the list of draw on the plea that draft for Rs. 30,000 was not traceable in the office and the amount of Rs. 5,000 had been deposited late. The OPs also raised preliminary objections namely the complainant had not become a consumer on mere registration and he had no right to file the complaint and also that the complaint was time-barred.

The learned District Forum, in their analysis of the case, referred to Exhibit A-19 on perusal of which it found that fault in not considering the name of the complainant in the draw of lots rests with the OPs and, therefore, his name should have been considered in the next draw. The learned District Forum has also made a note of the fact that the OPs had admitted in their reply that all those persons whose names had been put in the draw had been allotted plots and in this view of the matter, it cannot be said that the complainant is not a consumer. To support their view, the learned District Forum relied on the authorities in the case of Haryana Urban Development Authority v. Smt. Veena Kakkar, II (1995) CPJ 43 (NC) and Punjab Urban Planning and Development Authority through its Estate Officer and Anr. v. Prem Lal, I (2002) CPJ 362=2000 (2) CON. LT 514, wherein it had been held by the Hon''ble National Commission that process of tendering of service commences when HUDA invite applications for allotment of plots and in response to that offer, persons apply for the same with necessary deposits. Even the State Consumer Disputes Redressal Commission, Punjab had held that after registration money is confirmed to have been received, service as defined in Section 2 (1) (d) of the Consumer Protection Act, 1986 is deemed to start and hence, the applicant is a consumer. As regards the preliminary objection regarding the complaint being time-barred, the learned District Forum rejected the plea of the OPs since a final no had not been given by the OPs to the complainant and, therefore, the complainant had a continuing cause of action. The learned District Forum, on merits of the complaint, had recorded that the misplacement of the draft of Rs. 30,000 in the office of the OPs proves deficiency in service on the part of the OPs. It is further recorded that there is nothing on record, which may suggest that additional demand of Rs. 5,000 towards the earnest money of the plot due to increase in price was to be remitted by the complainant by a specific date. The learned District Forum was, therefore, of the view that it cannot lie in the mouth of the OPs to state that the complainant had paid the amount of Rs. 5,000 late because of which his name was not put in the draw of lots. However, while considering the relief to be granted to the complainant, the learned District Forum held the view that the demand of compensation of Rs. 3 lacs as damages on account of increase in the cost of construction/rent and that of Rs. 1. 5 lacs as damages for deficiency in service cannot be granted in the absence of direct evidence of loss in this regard. Resultantly, the learned District Forum allowed the complaint with costs quantified at Rs. 1,000 and direct the OPs as under: (i) To allot plot to the complainant measuring 250 sq. yards at Mohali in Sector 69 or in Sector 70 or any other equivalent sector at a price prevailing in the year 1995 i. e. Rs. 1,400 per sq. yard at the most. (ii) To pay interest on sums of Rs. 30,000 and Rs. 5,000 deposited vide demand drafts dated 3. 8. 1994 and 11. 12. 1995 respectively @ 18% p. a. from the dates of deposit till payment by way of adjustment in the price of the plot to be allotted as above.

THE OPs were further directed to comply with the order within 30 days from the date of receipt of certified copy of the judgment. Aggrieved by the order of learned District Forum, OPs had filed this appeal before Punjab State Commission, which has now been transferred to this Commission by the orders of Hon''ble National Commission. Mr. Sukant Prabhakar, appeared on behalf of the appellants whereas Mr. Munish Goel, Advocate and Mr. Subhash Chander Patial, Advocate represented the respondent. Mr. Sukant Prabhakar, Advocate learned Counsel for the appellant did not come present on 5. 11. 2007 i. e. the date fixed for oral arguments. However, he has filed written arguments on behalf of the appellants on 6. 11. 2007 and the same have been taken on record. Mr. Munish Goel, Advocate submitted that the order of learned District Forum is well reasoned and detailed and it should, therefore, be upheld and the appeal be dismissed.

WE have gone through the record of the complaint case on file as well as the impugned order and have heard the learned Counsel for the respondent/complainant and have also gone through the written arguments submitted by the learned Counsel for the appellants. The main ground urged in the written arguments is that the complainant is not a consumer qua the OPs as he had only applied for the plot and had not been allotted the same and to substantiate this plea, reliance has been placed on the judgment of Hon''ble Supreme Court of India reported as Delhi Development Authority v. Pushpendra Kumar Jain, 56 (1994) DLT 408 (SC)=air 1995 SC 1. The next argument of the appellant is that the cause of action arose in favour of the complainant in the year 1997 and not thereafter, but he has filed the complaint on 3. 10. 2000 and, therefore, the complaint is barred by limitation. The next submission of the learned Counsel for the appellants is that the complainant was initially required to make the payment by 30. 6. 1994 and, subsequently, make the payment for enhancement in price by 4. 10. 1995 but he delayed these payments and, therefore, he was not entitled to invoke the jurisdiction of the Hon''ble Court. From the evidence on record, it is clear that the complainant had got himself enrolled for allotment of plot measuring 250 sq. yards by paying registration fee of Rs. 500 on 29. 12. 1970. Thereafter, he was asked to deposit a sum of Rs. 30,000 as earnest money @ Rs. 1,200 per sq. yard by 30. 6. 1994 but he paid the same amount through a draft No. CO/a/93-052257 dated 3. 10. 1994. Thus, there was a delay of almost a month in the payment of this amount, which the complainant has attributed to the delay in getting the loan from his G. P. Fund. Be that as it may, the OPs accepted this amount and kept the application of the complainant for further processing. There is no evidence on record to indicate that the OPs raised any objections to this late payment by the complainant. However, it is an admitted fact that the complainant''s name was not included in the draw held in the year 1994. Subsequently, the complainant had been asked to make additional payment of Rs. 5,000 by 4. 10. 1995 towards the enhanced price of the land, which he admittedly paid vide draft No. CO/a/93-064206 dated 11. 12. 1995. Again this amount was received by the OPs without any objection nonetheless the name of the complainant was again not included in the draw of lots in the year 1995. The complainant continued to project to the OPs that he be allotted a plot as applied for, however, he was informed that the draft for Rs. 30,000 paid by him was not traceable in the office of the OPs. It is also on record that the complainant''s name was not even put in the draw of lots held in May 2000, even though, no additional money had been sought from the complainant and earlier demanded money stood paid by him. It has also not been denied by the OPs that all those persons whose names had been put in the draw of lots had been allotted plots. It is also the case of the complainant that at the time period when the complainant had applied for the plot, the draw of lots was a mere formality to indicate to the applicants the number of the plot allotted as everyone who used to apply for the plot invariably got the same, unlike these days, when there is a large number of applicants and there are only few plots. We concur with the reasoning of the learned District Forum that the complainant is a consumer qua the OPs because in the instant case, the OPs had received the earnest money from the complainant including the enhanced price and it is not the case of the OPs that the complainant could have been unsuccessful in the draw of lots. It is, therefore, quite evident that the allotment of plot to the complainant was forgone conclusion and it was a only exact number of plot that had to be allocated to the complainant through the draw of lots. Therefore, in the instant case, the complainant stood on a completely different footing as compared to applicant of today where the filing of the application is no guarantee for the allotment of a plot. Since there was no doubt regarding the allotment of a plot, as proved by evidence on record and as admitted by the OPs themselves, in our considered opinion, the complainant stepped into the shows of being a consumer on paying the earnest money as demanded by the OPs.

COMING to the plea of the OPs that the complainant''s name was not included in the draw of lots due to late payment of earnest money, we find that there was definitely a very minor delay in the payment of the two sums. However, since the OPs had accepted these amounts without any objection and had thereafter not returned the same to the complainant, it cannot now lie in the mouth of the OPs to say that they did not put the name of the complainant in the draw of lots due to late payment of the earnest money, particularly so, in the draw of lots held in May 2000 whereas the earnest money in totality stood paid admittedly by 1995 and the OPs had not conveyed to the complainant that his application is no longer valid.

COMING to the issue of the complaint being barred by limitation, again we concur with the reasoning given by the learned District Forum that the case of the complainant had been under consideration by the OPs till the filing of the complaint and he had not been conveyed final no by the OPs and, therefore, there was a continuing cause of action available to the complainant to agitate. In view of the foregoing discussion, we are of the clear view that the complainant had paid the registration amount as well as the earnest money as demanded by the OPs and the OPs accepted the same without any objections. It, therefore, entitled the complainant to the allotment of applied size of plot in the draw of lots held in the years 1994, 1995 and 2000. Since all the applicants in these draws were admittedly allotted plots, there is no cogent reason put forth by the OPs to convince us that the complainant could have been unsuccessful in such a draw. It is also proved by evidence on record that the name of the complainant was not put in the draw of lots as his draft for Rs. 30,000 was not traceable in the office of the OPs, which itself is a deficiency in service on their part and the plea put forward that the name was not included in the draw of lots due to late payment is a mere excuse and an afterthought. We, therefore, hold that the complainant is not only entitled to allotment of plot as applied for at the same rate as was prevalent at the time of application i. e. @ Rs. 1,400 per sq. yard but is also entitled to the interest on the deposited amount of Rs. 35,000 and, therefore, we do not find any illegality in the impugned order, which directs the OPs to do the same.

Consequently, we find no merit in the appeal and the same is dismissed with costs, which we quantify at Rs. 5,000 and the impugned order is upheld.

COPIES of this order be sent to the parties free of charge. Appeal dismissed.