SAHIB CHAND vs PUNJAB URBAN PLANNING AND DEVELOPMENT AUTHORITY PUDA

BOTH the appeals have arisen out of same order dated 21. 12. 2004 and as such are disposed of by common judgment.

BRIEFLY stated the facts are that complainants Rajiv Makkar and Sahib Chand jointly purchased a residential plot No. 9 for Rs. 13,12,500 in the scheme advertised by Punjab Urban Planning and Development Authority (for short PUDA) for residential and commercial plots at Old Police Academy, Phillaur, by way of auction vide allotment letter dated 15. 6. 2001. He deposited Rs. 1,31,250 i. e. 10% of the sale price on 7. 2. 2001 at the spot and deposited Rs. 1,96,875 being 15% of the total amount on 5. 3. 2001. The balance price was deposited by complainant vide receipt No. 55 dated 2. 8. 2001 accepting it as full and final payment of the total price of the plot. It was next averred that however, PUDA failed to deliver physical possession of the said plot and further failed to provide amenities/facilities in the colony as promised through advertisement and as per terms and conditions of the allotment letter.

It was further averred that site plan was submitted for sanction which was returned as zoning plan of the scheme was not approved by 26. 1. 2003. Issuance of ''no Due Certificate'' was also refused on 28. 11. 2002, although full and final payment was made as early as on 2. 8. 2001. PUDA started asking for the payment of interest amount of Rs. 1,05,604 and consequently alleging deficiency in service, the complaint was filed.

PUDA contested the complaint and stated that in view of the terms and conditions, the matter was to be referred to the Arbitrator and as such complaint was not maintainable. It further stated that the complaint was to be referred to the Chief Administrator which was not done and as such the complaint was not maintainable. It next stated that the complaint was also time barred as the last payment was made on 2. 8. 2001 and the present complaint had been filed on 20. 11. 2003 after a lapse of more than two years. It next stated that the remaining payment was required to be paid to get rebate of 5% within 60 days of the date of auction and since, payment was not made within 60 days, so, complainant was not entitled to 5% rebate. It further stated that the complainant was bound by the terms and conditions of the allotment letter. According to allotment letter, balance payment should have been deposited on or before 7. 4. 2001 and not on 2. 8. 2001 to claim rebate. It also stated that facilities like water supply and sewerage were to be provided by the Municipal Corporation and not by PUDA and it had already deposited Rs. 1,27,240 with Nagar Council, Phillaur for carrying out the works of sewerage and water connection. Therefore, if there was any dealy, it was not to be blamed. It next stated that complainant was still liable to pay Rs. 93,550 on 25. 2. 2004,so, complaint should be dismissed. Parties adduced their evidence by way of affidavits.

AFTER hearing Counsel for the parties, District Consumer Forum vide order dated 21. 12. 2004 accepted the complaint with costs of Rs. 2,000 and directed PUDA to refund Rs. 80,000 paid in excess and further to pay compensation @ Rs. 20,000 per year from the date of final payment i. e. 2. 8. 2001 till handing over of actual possession and providing of amenities. Aggrieved by the said order, both parties have filed abovementioned two appeals. We have heard Mr. Asa Singh, Advocate for Mr. Sahib Chand, etc. , complainant, Mr. Harsh Aggarwal, Advocate for PUDA, and carefully gone through the file.

IT is an admitted fact that residential plot No. 9, near Veterinary Hospital, Phillaur at Old Police Academy, Phillaur was purchased by Shri Sahib Chand and Shri Rajiv Makkar, complainants in open auction on 7. 2. 2001 for Rs. 13,12,500. They had deposited Rs. 1,31,250 being 10% of the sale price vide receipt No. 70 dated 7. 2. 2001 and the balance amount of Rs. 1,96,875 on 5. 3. 2001 so, as to make 25% vide demand draft dated 5. 3. 2001 issued by State Bank of India, Phillaur in favour of PUDA. Ex. C.-1 is the pamphlet issued by PUDA for the auction which was to be held on 7. 2. 2001. According to it, possession was to be delivered to the successful purchasers on depositing of 25% of the amount and they would be authorised to make construction after getting site plan sanctioned. Ex. C-2 is receipt dated 7. 2. 2001 vide which Rs. 1,31,250 were deposited. Ex. C. 3 is the receipt dated 5. 3. 2001 vide which an amount of Rs. 1,96,875 was deposited, so, as to make 25%. Annexure-V is the allotment letter dated 15. 6. 2001 according to which an amount of Rs. 3,28,125 i. e. 25% was deposited earlier and the balance amount of Rs. 9,84,375 i. e. 75% was to be deposited within 60 days from the date of auction, so, as to claim rebate of 5%. According to Clause -16 of the allotment letter, construction on the plot was to be made within three years from the date of issuance of allotment letter, after getting site plan of the building sanctioned.

EX. C. 10 is receipt dated 2. 8. 2001 vide which Rs. 9,35,157were deposited and this amount was accepted as full and final i. e. it was deposited after giving rebate of 5%. It is true that according to allotment letter, balance amount after deducting 5% as rebate was to be deposited within 60 days from the date of auction. In that way the amount was deposited late but since it was accepted as full and final payment vide Ex. C. 10, so, PUDA cannot go against the said receipt. It means that PUDA after waiving condition No. 5 accepted the payment as full and final payment. There was a reason for it because allotment was issued on 15. 6. 2001 i. e. more than after 4 months of auction. Since, complainant came to know late of the terms of allotment letter, so, 5% rebate was allowed on deposits within 60 days from issue of allotment letter. Therefore, we hold that the full amount had been paid. A perusal of the letter Ex. C. 8 dated 1. 8. 2001 issued by complainant shows that he had written to Estate Officer, PUDA, Jalandhar that the development had not taken place as necessary amenities like water supply, electricity, storm water and park had not been provided. On the other hand vide letter dated 28. 11. 2002 Ex. C. 12 PUDA had demanded Rs. 1,05,604 as balance amount. Vide receipt Ex. C. 15 complainant had deposited Rs. 80,000 regarding balance amount as per demand of PUDA.

Puda has not led any evidence that it had provided electricity, roads, sewerage and water supply, etc. On the other hand, it had stated that the water supply and sewerage were to be provided by the Municipal Corporation. Primarily it was duty of Puda to make arrangement to provide amenities at the earliest. It is not mentioned in the written reply as to when the amount was deposited with Municipal Corporation to provide these facilities. It is stated in the written reply that the possession was delivered to the complainant on 1. 8. 2001 and otherwise also under the auction letter the complainant was bound to take possession within 30 days. Taking of possession within 30 days from the date of issue of allotment letter or on 1. 8. 2001 was meaningless because no amenities were provided and further complainant could not make an application for getting site plan sanctioned because so far zoning plan had not been approved.

THERE is letter Ex. C18 dated 21. 1. 2003 bearing memo No. 146 which shows that zoning plan had not been approved of the site of Old Police Academy, Phillaur. Since, zoning plan had not been approved by the Chief Town Planner and also by the Chief Administrator, PUDA, so, site plan could not be sanctioned. Thus, recovery of Rs. 73,828 as interest could not be held valid because no interest could be recovered as the site plan was not sanctioned as zoning plan was not got approved and further amenities had not been provided. Therefore, demand of PUDA for interest vide letter dated 21. 1. 2003 was not justified. Since, amenities had not been provided and the zoning plan had not been approved, so, District Consumer Forum had rightly ordered refund of Rs. 80,000 which was deposited in excess. It had further awarded compensation of Rs. 20,000 per year from the date of final payment upto the period when actual possession was to be delivered and amenities were to be provided and zoning plan was sanctioned. No basis has been laid for awarding compensation of Rs. 20,000 per year. We think it will be appropriate if compensation by way of interest on the amount deposited by complainant is awarded till the amenities are provided and site plan is sanctioned after approval of zoning plan. We further think it appropriate if interest @ 18% p. a. is awarded. It will also take care of escalation in cost of construction as well as mental agony, etc. Thus, instead of compensation of Rs. 20,000 per year, we award interest @ 18% p. a. from the date of respective deposits till amenities are provided and site plan is sanctioned. The Hon''ble Supreme Court in Ghaziabad Development Authority v. Balbir Singh, II (2004) CPJ 12 (SC)=iii (2004) SLT 161= (2004) 5 SCC 65, has awarded interest @ 15% to 18% p. a by way of compensation for escalation in cost of construction, etc.

COUNSEL for PUDA also contended that the matter should have been referred to the Arbitrator and further to the Chief Administrator as per terms and conditions. However, contention of the learned Counsel is not tenable because under Section 3 of the Consumer Protection Act , the provisions of the C. P. Act are in addition to and not in derogation of the provisions of any other law for the time being in force and in spite of provisions of arbitration, complaint can be filed under the C. P. Act. With the modification as stated in para-15 above, both appeals are dismissed. Copies of this order be communicated to the parties, free of charge. Appeals dismissed.