UMESH RAWLLEY vs CHANDIGARH ADMINISTRATION

-BY this common order we are disposing of four appeals filed against the common order of District Consumer Disputes Redressal Forum-II, U.T., Chandigarh [hereinafter referred to as District Forum-II, for short], dated 1.7.2004 in two complaint cases bearing No. 439 of 2002, Sh. Umesh Rawlley v. Chandigarh Administration and Others, and Complaint Case No. 440 of 2002, Smt. Prem Lata and Another v. Chandigarh Administration and Others.

SINCE the complaints are similar, the facts are taken from Complaint Case No. 439 of 2002. The complainant was a successful bidder on 12.2.1989 for auction of Booth No. 243, Sector 40-D, Chandigarh with a bid of Rs. 3,67,000/- as premium and Rs. 9,175/- per year as ground rent for 1st 33 years of the 99 years lease. He was issued allotment letter dated 20.3.1989. A sum of Rs. 91,750/- i.e., 25% of the cost was deposited by the complainant with the Estate Officer and remaining 75% was to be paid in three equated annual instalments. These were also duly paid and the ground rent was also paid regularly till filing of the complaint in 2002. Grouse of the complainant is that even though he has paid the entire premium and the ground rent upto the date the O.Ps. have not provided basic amenities promised at the time of auction. These facilities are street light, car parking, link road to car parking, drinking water for the public, public toilets, storm water sewerage. Due to absence of these facilities the complainant avers that full potential of the commercial property cannot be fully exploited. Another grouse of the complainant is that a Rehri Market has been allowed to come up adjoining the market of Sector 40-D. In the complaint the complainant sought following relief: "(1) The complainant having suffered tremendous loss, confine their claim to Rs. 3,00,000/- on account of deficiency in service on the part of the respondents and a sum of Rs. 1,00,000/- towards mental agony. Hence, a total claim of Rs. 4,00,000/- with future interest @ 24% on the said amount till the date of actual payment. (2) The date of auction be re-fixed to the date such amenities are actually provided by the respondents and a certificate to that effect issued by the Chief Engineer. (3) That future recovery be stayed. (4) The costs may kindly be awarded to the complainant."

O.P. No. 3-Municipal Corporation, Chandigarh pleaded limitation. It also denied that complainant is a consumer qua O.P. No. 3. It also stated that water supply line was laid in the area even before formation of the Municipal Corporation, sewerage line was laid in 1990-91 and S.W.D. system exists in the main road. It has also been stated that booths area not entitled to water supply and sewerage connection though they exist in the locality.

Even O.P. Nos. 1 and 2 had denied that complainant is a consumer. It has been stated that physical possession of the site was handed over to the complainant on 21.3.1989, building plan was sanctioned on 3.7.1989 and electricity connection was released to the booth on 21.6.1990. It is further stated that the approach road was completed in 1995, whereas water supply line was made in 1980 and the sewerage in 1988. In 1991 storm water drainage and street lights were existing. It is denied that at the time of auction the complainant was given any assurance about amenities/facilities or that a development plan of the market of Sector 40-D, Chandigarh had been exhibited. It is further stated that the O.Ps. are not under obligation to auction fully developed sites. It has also been stated that metalled road at site is prepared only after construction at the site is completed. About the Rehri Market it is stated that it was already in existence at the time of auction and the land on which it has come up is earmarked for commercial purpose.

LEARNED District Forum-II while discussing the complaint dismissed it qua O.P. No. 3 holding that the complainant is not a consumer qua O.P. No. 3, as he has not proved that he had any contract with O.P. No. 3 or paid them any consideration. In coming to this conclusion the learned District Forum was guided by the order of this Commission in Complaint Case No. 34 of 2000, Jarnail Singh and Others v. Chandigarh Administration and Others. Regarding status of the complainant qua O.P. Nos. 1 and 2 the learned District Forum-II held that since the auction was not outright sale but was a 99 years lease the complainant was a consumer who had hired/availed the services of O.P. Nos. 1 and 2. Learned District Forum-II also held that the complaint was in its pecuniary jurisdiction as the total value of the consumer complaint was only Rs. 4,00,000/-. It was also held by the learned District Forum that due to recurring cause of action the complaint is not barred by limitation.

DISCUSSING the complaint on merits, learned District Forum-II held that existence of a Rehri Market near market of Sector 40-D did not amount to deficiency in service as the Rehri Market was already in existence at the time of auction and the complainant has failed to cite any law in support of his version. Next the learned District Forum-II observed that the booth was constructed by the complainant and occupied by one M/s. Chandigarh Stores and even the electricity connection was given on 21.6.1990. This was done within one year and four months of the date of auction whereas the complainant had three years available to complete construction from the date of taking possession. It thus concluded that O.Ps. have provided the basic facilities/amenities to the complainant so as to enable him to construct the booth on the demised site and start business on it. So prima facie no terms and conditions of the letter of allotment nor any specific provisions of Capital of Punjab (Development and Regulation) Act, 1952 or rules framed thereunder had been violated/breached. It was, therefore, held that no deficiency in service was committed by the O.Ps. as electric connection had been taken for the booth in June, 1990. Regarding water and sewerage services, it is also observed that these services do exist in the locality for shop-cum-offices in this sector and since there is no provision of supply water lines or sewerage connection to booths no deficiency in service on this count, too, has been committed. Discussing the provisions of approach road and its tile paving (V-4 Road), the learned District Forum observed that it has been stated by the O.Ps. that approach road has already been provided and its tile paving is being carried out on top priority basis and since this work is required to be completed when majority of the plot holders have completed their construction no deficiency in service on the part of O.Ps. can be said to have been committed since it is not suggested that majority of plot holders in Sector 40-D market have completed construction. Similarly due to the reason stated above even non-provision of gully road, at this stage, was also not considered as deficiency in service on the part of the O.Ps. For same reasons of non-completion of construction by July, 1998 by plot holders of Sector 40-D market in the light of law laid down by the Hon''ble Punjab and Haryana High Court in C.W.P. No. 13695 of 2001 titled M/s. DLG Builders Private Limited v. The Advisor to the Administrator, Chandigarh Administration, even the non-completion of parking site has also not been considered as a deficiency in service on the part of O.Ps. Guided by law laid down in the case of M/s. D.L.G. Builders Private Limited (supra) and 1996 (1) P.L.R. 52, Sukhpal Singh Kang and Others v. Chandigarh Administration and Another, the learned District Forum-II held that it was not the requirement of the 1952 Act and rules framed thereunder nor it was stipulated in allotment letter that Chandigarh Administration was required to auction fully developed plots or the possession could not be delivered to the complainant until the plot has been fully developed and all the amenities enumerated by the complainant were provided to him nor any such assurance was given by the O.Ps. to the complainant. It was held by the learned District Forum-II that practically all the basic amenities/facilities were provided by the O.P. Nos. 1 and 2 to the complainant much more than two years prior to the filing of this consumer complaint on 3.6.2002. It further held that the O.Ps. have committed deficiency in service only to the extent of non-provision of car parking lot, public toilets and drinking water facilities for the public. Consequently, the learned District Forum directed the O.Ps. to pay Rs. 5,000/- to the complainant for mental agony (for the period from 3.3.2000 as the period prior to that is barred by limitation). It also directed the O.Ps. to pay the complainant another Rs. 20,000/- for loss of business for a period of two years immediately preceding the date of filing the complaint as the period prior to that was barred by limitation. Learned District Forum-II further directed the O.P. Nos. 1 and 2 to complete the construction of parking lot, public toilets and provide drinking water facilities in the Sector 40-D market within one year from the date of receipt of the copy of the impugned order. The payment of the amount was awarded to the complainant was to be done within 3 months from the date of the receipt of the impugned order failing which it was to attract interest @ 6% from the date of the order till payment.

AGGRIEVED by this order, both the complainant and the Chandigarh Administration and Others have filed counter Appeal Nos. 308, 309, 320 and 321 all of 2004. The appeals were taken on board and the records of the complaint cases were summoned from District Forum-II. Notices were sent to respondents and consequently Mr. R.N. Maurya, Advocate appeared on behalf of the complainant whereas Mr. K.C. Sahu, Govt. Pleader represented the O.Ps.

THE appeals of the complainants were admittedly only for the purpose of going into inadequacy or otherwise of the compensation granted. Mr. R.N. Maurya, Advocate made the sole submission that the sufference of the complainants has been for over 15 years and the compensation awarded is grossly inadequate. He, therefore, prayed for enhancement of compensation.

Mr. K.C. Sahu, Govt. Pleader in grounds of appeal has submitted that even though the learned District Forum has held that the O.Ps. had provided basic facilities/amenities to the complainant, it has awarded a total of Rs. 25,000/- as compensation to the complainants, which does not stand legal scrunity. He also submitted that the learned District Forum-II has erred in holding non provision of car parking lot, toilet and drinking water facility as deficiency in service and it has not taken into account relevant law, rules and record.

FROM the evidence on record, it is quite clear that the following amenities/facilities were provided well in time as under: (a)Electricity connection in June, 1990. (b)Water supply in 1980 though no connection was given to the booth of the complainant as it was not entitled. (c)Sewerage in 1988 (d)Storm water drainage in 1991. (e)Street lights in 1991. (f)Approach road less final touches to be given.

It has also been proved that the following amenities/facilities are given only after majority of the construction on the plots is completed because construction activity damages these facilities and there is nothing on record to prove that majority of construction in market of Sector 40-D is complete- (a) Approach road and its tile paving. (b) Provision of gully road. (c) Parking lot.

IT is also on record that all the three facilities stated above, the construction of approach road is over and tile paving work is going on priority basis and the parking lot has not been fully completed. However, in view of the fact that majority of construction on plots of Market of Sector 40-D is yet not complete non-provision/partial provision of these facilities cannot constitute deficiency in service on the part of O.Ps. even though learned District Forum-II taking a pro-consumer view has held the only facilities that were not provided are the car parking lot, public toilets and drinking water facility for the public and this amounts to deficiency in service. Keeping in view the evidence on record this view of the learned District Forum cannot be legally faulted. Coming to the amount of compensation awarded, we are one with the view of the learned District Forum that most of the facilities/amenities were provided well in time and only three facilities i.e., car parking lot, public toilets and drinking water facilities are not existing, hence the award of the District Forum has to relate only to this aspect. Under the provisions of Section 14 of the Consumer Protection Act, 1986 the learned District Forum is fully justified in directing the O.Ps. to provide the aforesaid facilities within one year of the receipt of the impugned order. For calculation of the amount of compensation, it is clear from the record that no evidence of actual loss has been placed on record by the complainant. Moreover, the period prior to two years of filing the complaint is barred by limitation and hence the compensation granted is for a period of two years. Thus taking the circumstances and the facts of the case in totality, we are of the considered view that the compensation awarded is just, fair and legal.

IN view of the foregoing, we find no infirmity in the impugned order and it, therefore, does not require any interference. Consequently, the impugned order is upheld. All the appeals bearing Nos. 308, 309, 320 and 321 all of 2004 are dismissed as they lack in merit. Parties are left to bear their own costs of appeals. Copies of this order be sent to the parties free of charges. Appeals dismissed.