Non allotment of site as per allotment letter even after 11 years after depositing entire amount for constructing Jain temple by Authorities on lame excuses is nothing but deficiency of service =
District Consumer Disputes Redressal Forum,Jalandhar (for short, ‘District Forum’) vide its order dated 26.2.2007, allowed the complaint and passed the following directions;
“We hold that respondents have not allotted the plot to the complainant that amounts to deficiency on the part of the respondents and complainant is entitled for refund of the amount with 10% interest from the date of deposit till payment. Interest would serve as compensation to the complainant. Complainant is also entitled for Rs.3,000/- as cost of litigation”.
8. Being Aggrieved by the order of the District Forum, respondent filed (Fist Appeal No.575 of 2007) whereas, petitioners filed (First Appeal No. 150 of 2008) before the State Commission. Vide impugned order,
the State Commission allowed (First Appeal No. 575 of 2007) of the respondent and modified the order of District Forum and directed the petitioners:
“ To allot the plot of 1000 sq.yds. to the appellant after identifying the suitable land and shall get the approval of R.P.D.C., if any, within two months from the receipt of copy of the order and to pay compensation of Rs.1,00,000/- (Rupees One Lac) for rise in construction charges during last 12 years. The order of the District Forum for refund of the amount along with interest is set aside. The litigation costs of Rs.3,000/- awarded by the District Forum are enhanced to Rs.10,000/-“.
“unfair trade practice” =
Admittedly, after receipt of the above letter of intent, respondent deposited Rs.2 lacs with the petitioners in April/May,2002. Thus, amount as demanded by the petitioners is lying with them for last more than 11 years, but petitioners are delaying the allotment on one pretext or the other. This act on the part of the petitioners being a Public Authority amount to “unfair trade practice” and this act of the petitioners is in consonance with the conduct of private builders who make the Consumers run from pillar to post. Petitioners’ Authority has been created for the welfare and betterment of the society and not to harass the citizens. Respondent in the present case being a registered society, has deposited Rs.2 lacs as demanded by the petitioners themselves, long ago for allotment of a religious site, but even after 11 years, petitioners have failed to complete the necessary formalities for earmarking the site, which as per petitioners’ case is still under progress.
punitive cost =
what should be the quantum of punitive cost to be imposed upon the petitioners for not allotting the respondent religious site for more than 11 years without any justification. Admittedly, respondent has complied with the demand of the petitioners about 11 years back and that to within the specified time. Therefore, keeping in view of the principle of law laid down by Apex Court in Bikaner Urban Improvement Trust Vs. Mohal Lal 2010 CTJ 121(Supreme Court)(CP) and in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors, Civil Appeal Nos. 4912-4913 of 2011 decided on July 4, 2011, we hereby impose punitive cost of Rs.1 lac (Rupees One Lac only) upon the petitioners for indulging in unfair trade practice and for causing undue harassment to the respondent. Moreover, petitioners have kept the amount deposited by the respondent, more than 11 years ago without any sufficient and justifiable cause.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO.2406-2407 OF 2013
With
I.A. No. 4000 of 2013 for Stay
(From order dated 31.1.2013 in First Appeal No.575 of 2007 of the State Consumer Disputes Redressal Commission, Punjab)
1. Punjab Urban Planning & Development Authority through its Chief Administrator, PUDA Bhawan,
Sector-62, SAS Nagar, Mohali.
2. The Estate Officer, Punjab Urban Planning & Development Authority, SCO 41, Ladowali Road,
Jalandhar(Now JDA)
…Petitioners
Versus
Sh. Atmanand Jain Shabha (Regd.),
Chowk Jain Mandir Bazar Kalan,
Jalandhar, through its President
…Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioners : Mr. Rachna Joshi Issar, Advocate
with Ms. Ambreen Rasool and Ms.
Ms. Aishwarya Kaushik, Advocates
Pronounced on: 10th October, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Present revision petitions have been filed by the Petitioners under Section 21(b)of The Consumer Protection Act,1986 (for short, ‘Act’)for setting aside common order dated 31.1.2013 passed by State Consumer Disputes Redressal Commission, Punjab, Chandigarh (for short, ‘State Commission’) in First Appeal No. 575 of 2007 and First Appeal No.150 of 2008.
2. Facts in brief are that Respondent/Complainant filed a complaint under section 12 of the Act against petitioners making assertions that respondent is a registered society under the Societies Registration Act, 1860. Petitioners are providing housing service to the general public for consideration. In response to their advertisement, respondent applied for allotment of a plot measuring 1,000 sq. yds. at Jalandhar for construction of a Jain Temple, under the scheme for allotment of religious sites on leasehold basis for Temple, Gurudwara, Masjid and Church. Respondent deposited Rs.50,000/-through bank draft dated 04.07.2001 and the same was acknowledged by petitioners on 16.07.2001 for allotment of the plot. Petitioners vide its letter dated 25.02.2002/18.03.2002 agreed to allot the plot and asked the respondent to deposit Rs.2.00 lacs as non-refundable security which was deposited through draft dated 02.04.2002 and receipt was issued by the petitioners on 07.05.2002.
3. It is further stated that petitioners after several reminders provided the specimen of the agreement for lease and respondent submitted the lease agreement through registered post on 06.02.2003 and petitioner no.1 signed the same in March and provided it to the respondent. Petitioner no.1 wrote a letter dated 11.06.2003 to petitioner no.2 for allotment of plot/site to the respondent.
4. Petitioner no.1 vide its letter dated 19.02.2004 suggested the site to the District Town Planner, Jalandhar for allotment to the respondent, but till date no plot/site has been allotted despite the receipt of the payment of Rs.2.50 lacs and respondent could not construct the religious temple till now and religious feelings of the members of the respondent have been hurt due to the said acts of the petitioners. The construction cost after 2001 has also increased tremendously. The entire Jain Community suffered lot of mental tension, harassment and inconvenience and now the steep rise in the construction cost is assessed to the tune of Rs.20.00 lacs. Thus, respondent prayed that petitioners be directed to allot the plot/site to them and to pay Rs.20.00 lacs as compensation with costs.
5. In the written reply petitioners took preliminary objections stating that respondent has no locus standi to file the complaint because respondent does not fall under the definition of consumer under the Act.
Petitioner no.1 issued letter of intent under which it was clearly stated that the said offer was tentative and the site to be allotted was yet to be earmarked.
Necessary formalities for earmarking the site are still under progress and the same is also evident from Para-7 of the complaint.
In the absence of any promise/timeframe under the intent letter to allot the site, no cause of action has accrued to the respondent against the petitioners.
6. On merits, it admitted that respondent is a registered society and petitioners are providing housing services to the general public.
The respondent applied for allotment of a plot measuring 1000 sq. yds. at Jalandhar for construction of a Jain Temple.
Petitioners have admitted that respondent had paid Rs.2.50 lacs and vide letter dated 19.02.2004, petitioner no.2 suggested the site to the District Town Planner, Jalandhar for the allotment of the plot to the respondent, but till date no plot has been allotted. It was further pleaded that some sites available with the petitioners had already been shown to the respondent, but respondent for the reasons known to it, rejected the proposal.
The site under the scheme was to be allotted on concessional rates subject to the availability of the plot.
There is no new scheme in operation under which a suitable plot can be allotted to the respondent. Hence, it was prayed that complaint may be dismissed with costs.
7. District Consumer Disputes Redressal Forum,Jalandhar (for short, ‘District Forum’) vide its order dated 26.2.2007, allowed the complaint and passed the following directions;
“We hold that respondents have not allotted the plot to the complainant that amounts to deficiency on the part of the respondents and complainant is entitled for refund of the amount with 10% interest from the date of deposit till payment. Interest would serve as compensation to the complainant. Complainant is also entitled for Rs.3,000/- as cost of litigation”.
8. Being Aggrieved by the order of the District Forum, respondent filed (Fist Appeal No.575 of 2007) whereas, petitioners filed (First Appeal No. 150 of 2008) before the State Commission. Vide impugned order,
the State Commission allowed (First Appeal No. 575 of 2007) of the respondent and modified the order of District Forum and directed the petitioners:
“ To allot the plot of 1000 sq.yds. to the appellant after identifying the suitable land and shall get the approval of R.P.D.C., if any, within two months from the receipt of copy of the order and to pay compensation of Rs.1,00,000/- (Rupees One Lac) for rise in construction charges during last 12 years. The order of the District Forum for refund of the amount along with interest is set aside. The litigation costs of Rs.3,000/- awarded by the District Forum are enhanced to Rs.10,000/-“.
9. On the other hand, (First Appeal No. 150 of 2008) of the petitioners was dismissed.
10. Being aggrieved by the impugned order, petitioners have filed this revision.
11. We have heard learned counsel for the petitioners and have gone through the record.
12. It has been contended by learned counsel for the petitioners that impugned order is contrary to the well settled principle and ratio of the Hon’ble Supreme Court in Delhi Development Authority Vs. Pushpendra Kumar Jain (1994)Supp 3SCC, 494 where the Court held that right to allotment does not arise by mere identification or selection of the allottee and the right to allotment arises only on the communication of the letter of allotment. It is also contended that when no deficiency is found in the service rendered by a public authority, it was unjust for the State Commission to have saddle the petitioners with unjustified liability to pay compensation to a litigant who had caused loss to the public authority by involving it into frivolous litigation.
13. Further, it is contended that can an allottee of a plot which is to be earmarked(“as is where is” basis), be termed as a “consumer” under the Act and can Petitioners’ Authority be regarded as “service provider”, contrary to the ratio of Hon’ble Supreme Court’s judgments, inter alia, in U.T, Chandigarh Vs. Amarjeet Singh & Others, (2009) 4 SCC 660, which has been re-affirmed by the Court, in, Punjab Urban Planning & Authority & Ors. Vs. Raghu Nath Gupta & Ors. (2012) 8 SCC 197?
14. Lastly, it is contended that, unfortunately the sites which were available for allotment and were got physically inspected by the representative of the respondent were not acceptable to the respondent for allotment. This fact has been admitted by the respondent in para 7 of its complaint that, one of the sites was also referred by the Petitioners, vide letter dated 19.2.2004, for approval of the District Town Planner Jalandhar. The said site, however, was not yet approved by District Town Planner, Jalandhar. Thus, impugned order is liable to be side aside.
15. State Commission in its impugned order observed;
16. The appellant is a registered society and applied for allotment of a plot measuring 1000 sq.yds. at Jalandhar for construction of a Jain Temple. The appellant also paid Rs.2.50 lacs. The dispute has arisen between the parties on the version of the appellant that the respondents are not allotting the plot and the version of the respondent is that appellant was offered and shown the available site/sites, but the representative of the appellant did not accept the same. The respondents vide letter Ex.C-2 asked the appellant to nominate four persons, with authority letter, to attend the interview for allotment of the land to religious places. Another letter Ex.C-3 was written to attend the interview on 25.09.2011 at 12.30 P.M. Letter of Intent is Ex.C-4. Vide receipt Ex.C-5, a sum of Rs.2.00 lacs was deposited. Vide letter Ex.R-6, Chief Administrator wrote to the Additional Chief Administrator,PUDA, Jalandhar to allot 1000 sq.yds. land on leasehold basis. Vide letter Ex.C-7,Estate Office, PUDA, Jalandhar wrote to the District Town Planner, Jalandhar about the purpose of keeping a pocket of land behind plots no.1 to 8 and also other land lying vacant near the commercial parking. The Administrator Officer (Policy) vide letter Ex.C-8 wrote to the Additional Chief Administrator, PUDA, Jalandhar to identify the land and to allot the same immediately. Similar letter is Ex.C-9.
17. From the above discussion, it is clear that the officials of the respondents have been writing to the District Town Planner, Jalandhar and other authorities, to identify the plot and allot the same to the appellant. During the course of arguments, the counsel for the respondents have produced on record letter dated 21.03.2005 written by Estate Officer, PUDA, Jalandhar to Additional Chief Administrator, PUDA, Jalandhar wherein it is mentioned that for identification of the land, the case was considered in the meeting of Regional Planning and Design Committee (R.P.D.C.) at serial no.21.10, but still the land has not been identified. It was further stated that after identifying the land by District Town Planner, Jalandhar and after taking the approval of the R.P.D.C., the allotment can be made. Another letter in this regard was written on 06.05.2005 as per which, as per the record, in Urban Estate, Phase-I and Phase-II, Jalandhar, whichever the lands were available regarding that, the consent was not given by the representative of the appellant. It was further mentioned that till the case regarding the availability of the land is identified by the District Town Planner, Jalandhar and is considered by the R.P.D.C., till then the formal allotment letter of the land is not possible to be issued and the case be again considered in the coming R.P.D.C. meeting.
18. The respondents have not denied anywhere the allotment of the plot to the appellant, but due to non-availability of the appropriate plot or due to consent not given by the representative of the appellant, the plot in question has not yet been allotted to the appellant. The respondents are considering the case of the appellant for identification of the land as well as for the allotment of the land and this process is going on for the last more than 12 years. The District Forum has not taken notice of all these facts and has allowed the refund of the amount deposited and not satisfied with the said order, the appellant is in appeal before this Commission, for modification of the impugned order. We are of the opinion that respondent no.1 has also asked the authorities of PUDA, Jalandhar to allot the plot to the appellant for raising the Jain Temple, but no concrete steps have been taken to allot the said land. The respondents have reserved the areas in every scheme for the construction of the religious places and the identification of the land and allotment of the land to the appellant cannot be made a ground to linger on with the matter.
19. In view of above discussion, the appeal filed by the appellant (F.A. No.575 of 2007) is accepted and the impugned order under appeal dated 26.02.2007 passed by the District Forum is modified and the respondents are directed to allot the plot of 1000 sq.yds. to the appellant after identifying the suitable land and shall get the approval of R.P.D.C.,if any, within two months from the receipt of copy of the order and to pay compensation of Rs.1,00,000/- (Rupees One Lac) for rise in construction charges during last 12 years. The order of the District Forum for refund of the amount along with interest is set aside. The litigation costs of Rs.3,000/- awarded by the District Forum are enhanced to Rs.10,000/-“.
16. Under Section 21(b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
17. As per written statement filed by the petitioners, they themselves have admitted para Nos.1 to 7 of the complaint. It is also an admitted fact that no allotment has yet been made by the petitioners to the respondent. Petitioners in the present case are taking shelter only on this plea that necessary formalities for earmarking the sites are still under progress. Moreover, in the absence of any promise/time framed work under the intent letter to allot the site, no cause of action has accrued to the respondent.
18. We are really appalled, shocked and surprised at such defence taken up by the petitioners. As per letter of intent dated 25.2.2002, petitioners were contemplating to allot to the respondent a site measuring 1,000 Sq. Yds in Urban Estate, Jalandhar. The letter of intent states;
“In case you are interested for the allotment, you may send your consent alongwith security amount of Rs.2.00 lacs within 90 days failing which it will be presumed that you are not interested for the allotment. In that case, letter of intent shall be withdrawn and earnest money will be refunded to you after deducting processing fee as per policy.
Chief Administrator”.
19. Admittedly, after receipt of the above letter of intent, respondent deposited Rs.2 lacs with the petitioners in April/May,2002. Thus, amount as demanded by the petitioners is lying with them for last more than 11 years, but petitioners are delaying the allotment on one pretext or the other. This act on the part of the petitioners being a Public Authority amount to “unfair trade practice” and this act of the petitioners is in consonance with the conduct of private builders who make the Consumers run from pillar to post. Petitioners’ Authority has been created for the welfare and betterment of the society and not to harass the citizens. Respondent in the present case being a registered society, has deposited Rs.2 lacs as demanded by the petitioners themselves, long ago for allotment of a religious site, but even after 11 years, petitioners have failed to complete the necessary formalities for earmarking the site, which as per petitioners’ case is still under progress.
20. Petitioners as per their own case are service providers and are sitting over Respondent-Society’s money for last 11 years. Thus, deficiency in service on the part of petitioner is writ large in this case.
Moreover, present case is not a case of an auction purchaser and as such decision of Amarjeet Singh(supra) is not applicable to the fact of the present case.
21. Thus, in our opinion, the findings recorded by the State Commission are based on correct analysis of the facts and documents produced by the parties and no jurisdictional error has been committed by the State Commission in passing the impugned order.
22. Now the question which arise for consideration is as to
what should be the quantum of punitive cost to be imposed upon the petitioners for not allotting the respondent religious site for more than 11 years without any justification. Admittedly, respondent has complied with the demand of the petitioners about 11 years back and that to within the specified time. Therefore, keeping in view of the principle of law laid down by Apex Court in Bikaner Urban Improvement Trust Vs. Mohal Lal 2010 CTJ 121(Supreme Court)(CP) and in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors, Civil Appeal Nos. 4912-4913 of 2011 decided on July 4, 2011, we hereby impose punitive cost of Rs.1 lac (Rupees One Lac only) upon the petitioners for indulging in unfair trade practice and for causing undue harassment to the respondent. Moreover, petitioners have kept the amount deposited by the respondent, more than 11 years ago without any sufficient and justifiable cause.
23. This punitive cost should be paid to the respondent for the sufferings they have faced during the last 11 years. Petitioners are therefore, directed to deposit demand draft of Rs.1 lac(Rupees One Lac only) in the name of respondent with this Commission, within one month from today. In case, petitioners fail to deposit the cost within the specified period, then they shall also be liable to pay interest @ 9% p.a. till its realization.
24. Meanwhile, petitioners shall recover the cost amount from the salaries of the delinquent officers who have been pursuing this merit less litigation, with the sole aim of wasting the public exchequer. The affidavit giving details of the officers from whose salaries the cost has been recovered, be also filed within one month
25. Cost deposited by the petitioners be paid to the respondent only after expiry of period of appeal or revision, preferred if any.
26. With these observations present petitions stand disposed of.
27. List on 29th November, 2013 for compliance.
……..……………………J
(V.B. GUPTA)
( PRESIDING MEMBER)
………………………… (REKHA GUPTA) MEMBER
SSB/
