Legal Question in Consumer Law in India

II (2008) CPJ 91

PUNJAB STATE CONSUMER DISPUTES

REDRESSAL COMMISSION, CHANDIGARH

Hon?ble Mr. Justice R.S. Mongia, President; Mr. C.P. Budhiraja & Mrs. Jasbir Kapoor, Members

N.S. KOHLI?Appellant

versus

PUNJAB URBAN PLANNING & DEVELOPMENT AUTHORITY & ANR.?Respondents

First Appeal No. 523 of 2005?Decided on 5.6.2007

(i) Consumer Protection Act, 1986 ? Section 2(1)(g) ? Housing ? Auction ? Site purchased ? Complainant could not complete construction within prescribed period of 3 years ? Non-construction fees charged ? Complainant could not make construction for about 6 years as site stood resumed during the period ? Non-construction fee not paid ? Possession denied ? Deficiency in service alleged ? Complaint dismissed by Forum ? Order set aside in appeal ? Demand raised for non-construction fee set aside ? OP directed to deliver possession ? Refund of excess amount charged with interest directed.

[Paras 5, 6]

(ii) Consumer ? Auction purchaser ? Is consumer.

[Para 4]

Result : Appeal allowed.

Counsel for the Parties:

For the Appellant : In person.

For the Respondents : Mr. R.K. Sharma, Advocate.

ORDER

Mr. Justice R.S. Mongia, President?This is an appeal by the complainant whose complaint has been dismissed by the District Forum vide impugned order dated 16.12.2004. Brief facts giving rise to filing of this appeal may be noticed:

Complainant Mr. N.S. Kohli had purchased a single storey shop site No. 80 (SSS. No. 80) in Phase-III-B2, SAS Nagar, Mohali in open auction held on 3.9.1993 in the sum of Rs. 5,82,000. He paid Rs. 90,000 at the fall of hammer and the remaining amount, to complete 25% of the price, was to be paid within 30 days of the auction. He paid Rs. 55,000 on 7.9.1993. Allotment letter in respect of the said site purchased by the complainant was issued on 10.4.1995. It may be observed here that as per the allotment letter the construction on a site was to be completed within a period of three years from the date of allotment. In other words, the construction had to be completed by 9.4.1998. As per the allegations in the complaint the complainant had been paying the instalments. The schedule of payment of instalment was, in fact, fixed from the date of auction and not from the date of allotment. According to the allotting authority i.e. PUDA there was some default in the payment of interest/penalty of the instalments by the complainant which led it to pass an order on 21.2.1997 resuming the site in question. This resumption order was challenged before the authorities under the Act. The complainant succeeded partly in his appeal but succeeded wholly in his revision petition filed before the Special Secretary, Government of Punjab, Department of Housing and Urban Development who passed the order in favour of the complainant on 5.8.2003 which reads as under:

?I have heard the Counsel for the petitioner and have also perused the record of the case. I am in agreement with the Counsel for the petitioner that in this case the schedule of payment of instalments should have been from the date of allotment i.e. on 10.4.1995 and not from the date of auction i.e. 3.9.1993. Thus, the 1st instalment should have been due on 10.4.1996 which was deposited by the petitioner in advance and similarly 2nd instalment which should have fell due on 10.4.1997 had also been deposited in advance i.e. on 22.1.1996. In this situation of the matter, I am inclined to take a considered view in the matter and set aside the impugned order. The State Officer, Mohali is directed to re-schedule the instalments in the instant case from the date of issue of allotment letter. Due credit should also be given to the petitioner for the period he deposited the instalments in advance by not charging the interest for that particular period. The whole account of the case be prepared as per this order and in case, there is any outstanding amount to be paid by the petitioner, the same shall be paid by him within 30 days from the demand by the Estate Officer and in case, there is surplus amount received from the petitioner then the same should be refunded to him within 30 days from the receipt of this order.?

2. After the order of the revisional Authority dated 5.8.2003, quoted above, calculations were made by PUDA Authorities and it was found that Rs. 14,005 had been received in excess. However, as per PUDA non-construction fee to the tune of Rs. 81,235 was payable by the complainant for not completing the construction within three years of allotment. After adjusting the excess amount of Rs. 14,005 towards non-construction fee Rs. 67,230 was claimed from the complainant vide memo dated 25.11.2003, Ex. C-3, before the District Forum. This non-construction fee is stated to have been calculated from 9.4.1998 upto year 2003. From this it is apparent that according to PUDA the construction was required to be completed by 9.4.1998 and since it had not been completed by the time memo dated 25.11.2003 was issued and a sum of Rs. 67,230 became payable towards non-construction fee after adjusting Rs. 14,005 which PUDA had received in excess.

3. The complainant vide letter dated 5.12.2003 asked as to how this amount was being charged as non-construction fee and prayed that the demand of said amount be withdrawn and requested for the delivery of possession of the site. The possession was not delivered on the ground that the complainant had not paid the non-construction fee. This led the complainant to file a complaint before the District Forum which has been dismissed as not maintainable because the complainant was an auction purchaser and according to the District Forum he could not be said to be a consumer under the C.P. Act. Hence, the present appeal.

4. So far as the question of complainant to be a consumer is concerned it is well settled by the National Commission as well as by this commission that auction purchaser is as good a consumer as a person who gets a plot allotted otherwise than by auction. The end result of allotment of a plot by auction or by allotment by any other means is the same. It is only the methodology of allotment. Consequently, it will not make any difference whether any person gets a plot by way of auction or by way of allotment or by any other means of allotment.

5. The question that remains for consideration is as to upto which date, under the circumstances of this case, the complainant was required to complete the construction? As per the allotment letter the complainant had to complete the construction by 9.4.1998. However, resumption intervened on 21.2.1997 which disenabled the complainant to start/complete construction. That order was set aside by the revisional Authority on 5.8.2003. So w.e.f. 21.2.1997 till 5.8.2003 the complainant could not make any construction or complete the construction as the site stood resumed during this period. Of course for period 10.4.1995 to 21.2.1997 he having not made any construction that period will have to be counted towards three years period of construction which is provided by the allotment letter. In other words, after stopping of the running of the construction period on 21.2.1997 the same would start again on 5.8.2003 when the resumption order was set aside. That order was conditional in the sense that calculations had to be made and if any excess amount had been received from the complainant that had to be refunded and alternatively, if there was anything due from the complainant that was to be demanded by the PUDA Authorities. According to PUDA, since the complainant had not completed construction by 1998 he was liable to pay non-construction fee w.e.f. 10.4.1998. We do not see any basis for asking for non-construction fee for the period 1998 to 2003. After the resumption order was set aside and within a reasonable time thereafter when the complainant asked for possession of the site the construction period which had stopped running on 21.2.1997 when the resumption order was passed would start on the delivery of the possession by PUDA.

6. PUDA could only charge non-construction fee if the complainant failed to complete construction within the balance period of three years (after taking into account the period from 10.4.1995 to 21.2.1997) after delivery of possession of the site. Consequently, we allow this appeal and set aside the impugned order of the District Forum dated 16.12.2004 by giving the following directions:

(i) The demand raised by PUDA for non-construction fee from the year 1998 to 2003 vide memo dated 25.11.2003 (Ex. C-3) is hereby set aside;

(ii) Respondent PUDA to refund Rs. 14,005, admittedly received by it in excess from the complainant, with interest at the rate of 9% p.a. from 25.11.2003 (when calculations were made after the order of the revisional authority dated 5.8.2003) till payment;

(iii) Let the physical possession of the site be delivered to the complainant within a period of 30 days of the receipt of a copy of this order from this Commission or a certified copy thereof from the complainant whichever is earlier after giving due notice by registered post to the complainant to come present to take the physical possession;

(iv) The complainant will be given a further period of construction to complete three years period from the date of possession after taking into account the period from 10.4.1995 to 21.2.1997 (about 22 months). In other words, the complainant will be given period to complete construction of about 14 months from the date of possession and if the complainant does not complete the construction, as aforesaid, PUDA will be at liberty to levy/charge non-construction fee in accordance with law.

We make no order as to costs.

Appeal allowed.

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(Equivalent Citation:- 2007 (1) CPR 353 (NC), 2007 (1) CLT 656 (NC))

I (2007) CPJ 192 (NC)

NATIONAL CONSUMER DISPUTES

REDRESSAL COMMISSION, NEW DELHI

Hon?ble Mr. Justice M.B. Shah, President & Mrs. Rajyalakshmi Rao, Member

R. JAGAN (Dr.)?Petitioner

versus

MOTOR VEHICLES MAINTENANCE DEPARTMENT & ORS.?Respondents

Revision Petition No. 42 of 2006 ? Decided on 22.1.2007

Consumer Protection Act, 1986 ? Sections 2(1)(g), 14(1)(d) ? Motor Vehicles ? Car purchased in auction sale held by Motor Vehicles Maintenance Department and others ? Full payment received ? R.C. Book and T.O. Form not delivered to complainant ? Said necessary documents not handed over to him despite repeated letters and visits to office of OPs ? Deficiency in service proved ? Forum directed OP to pay Rs. 50,000 as damages, which State Commission reduced to Rs. 20,000 ? Hence revision petition ? Fit case for atleast paying compensation of more than Rs. 50,000 ? No justifiable reason for State Commission to interfere with discretionary order passed by Forum.

[Paras 2, 12, 13]

Result : Revision Petition allowed.

Case referred :

Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=(1994) 1 SCC 243. (Relied)

[Para 8]

Counsel for the Parties :

For the Petitioner : Mrs. Aruna Ganesh, Advocate.

For the Respondent No. 1 : Mr. K. Senthu Kumar, Advocate.

For the Respondent Nos. 2 and 3 : Mr. V.R. Thangavelu, Advocate.

ORDER

Mr. Justice M.B. Shah, President ? The petitioner purchased an Ambassador car in an auction held by the respondents ? the Director, Motor Vehicle Maintenance Department and others. He purchased the said vehicle on 7.9.1994. The possession of the vehicle was delivered on 28.10.1994 after receipt of full sum, namely, Rs. 25,999. However, the R.C. Book and the T.O. Form were not delivered to him for reasons best known to the opposite parties. The contention of the complainant is that for making the car roadworthy, which was an Ambassador car, he was required to spend more than a sum of Rs. 1 lakh. As the necessary documents were not handed over to him, despite repeated letters and visits to the office of the respondents on various occasions, he was required to file O.P. No. 151 of 1995 before the District Forum, Coimbatore.

2. The District Forum considered the fact that despite various requests the opposite parties failed to issue the R.C. Book, but, immediately after filing of the complaint in April, 1995, they issued the registration certificate in June, 1995. The District Forum also noted that the complainant was required to incur expenses towards hiring of taxis for carrying out his work. For this deficiency in service by the opposite parties the District Forum directed the opposite parties to pay a sum of Rs. 50,000 for damages and Rs. 10,000 as compensation and Rs. 5,000 as costs of litigation.

3. Against that order, the opposite party preferred Appeal No. 93 of 2000 before the State Commission. The State Commission confirmed the finding that the R.C. Book and the T.O. Form were not given to the complainant and that he was sending repeated letters to the opposite parties for getting the same. This aspect is discussed by the State Commission in paragraph 11 of its judgment. The State Commission also noted that the dilly-dallying attitude of the opposite parties provoked the complainant to issue legal notice on 7.1.1995 to the opposite parties. The State Commission also noted from Exhibit A-16 that it was proved that the car which was auctioned and purchased by the complainant was used by the opposite party No. 2, namely, the Deputy Transport Commissioner, for more than 5 years, and, therefore, it would have been easily possible for the opposite party No. 2 to have issued the duplicate R.C. Book, and, unfortunately, the opposite parties were blaming one another and in the process the complainant suffered.

4. Despite this finding, the State Commission reduced the amount of Rs. 50,000 awarded by the District Forum for damages to Rs. 20,000, and Rs. 5,000 for mental agony. Against that order of the State Commission this Revision Petition is filed by the complainant.

5. The learned Counsel appearing on behalf of the complainant submitted that the petitioner who is a Doctor purchased the vehicle for his personal use. He paid the full amount as per the auction price. Despite this, the officers of the respondent harassed him and failed to hand over the R.C. Book and the T.O. Form. He was required to spend money for getting the Legal Notice issued. He has written a number of letters. It is the submission of the learned Counsel for the complainant that if a man like the complainant is harassed by the respondents in such a manner, think over the plight of illiterate or poor persons, and visualize to what extent officers of the opposite parties can harass the common man. She further submits that this is a fit case not only to confirm the order passed by the District Forum but also to award more compensation so that in future officers would behave properly.

6. As against this, learned Counsel appearing for the opposite parties submitted that the opposite parties have already complied with the order passed by the State Commission and paid Rs. 25,000. He has further submitted that it is not a fit case for enhancement of compensation because complainant has failed to prove that he was required to spend Rs. 50,000 by hiring taxies, and the receipts for hiring taxies produced by the complainant are rightly doubted by the State Commission.

7. In our view, presuming that the complainant has failed to prove the receipts, but this would not mean that he must not have spend money for attending his work and the car which was purchased by him could not be used by him for want of R.C. Book and T.O. Form.

8. This case illustrates how a common man/little man can be harassed by the Government officials. In such a situation, it would be just and proper to rely upon the observations by the Apex Court in Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=(1994) 1 SCC 243.

?The jurisdiction and power of the Courts to indemnify a citizen for injury suffered due to abuse of power by public authorities is founded as observed by Lord Hailsham in Cassell & Co. Ltd. v. Broome, 1972 AC 1027 : (1972) 1 All ER 801, on the principle that, ?an award of exemplary damages can serve a useful purpose in vindicating the strength of law?. An ordinary citizen or a common man is hardly equipped to match the might of the State or its instrumentalities..........A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it. He who is responsible for it must suffer it..............Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable functioning in offices instead of standing against it.?

9. Thereafter, the Court also considered that who should pay compensation and further held as under :

?It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrated and it erodes the credibility in the system?.

10. Apex Court finally held that in such cases the Consumer Fora shall pass appropriate orders that Competent Authority/Department shall pay the amount and recover the same from the concerned responsible officer for their unpardonable behaviour by dividing it proportionately where there are more than one functionary.

11. For better administration/governance the aforesaid law is required to be implemented so that in discharge of their duties the common man may not feel helplessness or frustrated. They succumb to the pressure of undesirable functioning in the offices instead of standing against that.

12. Hence, in our view, this is a fit case for at least paying the compensation of more than Rs. 50,000 to the complainant, and, there was no justifiable reason for the State Commission to interfere with the discretionary order passed by the District Forum.

13. In the result, the Revision Petition is allowed. The impugned order passed by the State Commission modifying the order passed by the District Forum is set aside. The order passed by the District Forum is restored. The respondents shall pay Rs. 1,000 as costs of this revision petition to the complainant.

Revision Petition allowed.

?????????????????

It has been held by the National Commission that auction purchaser is as good a consumer as a person who gets a plot allotted otherwise than by auction. The end result of allotment of a plot by auction or by allotment by any other means is the same. It is only the methodology of allotment.

I agree with the above opinion.

you are a consumer so contact a good local lawyer