J.S. Klar, Presiding Judicial Member.
1. Challenge in the above referred appeals by appellants is to order dated 27.07.2018 passed by District Consumer Disputes Redressal Forum Kapurthala accepting the complaint of the respondents in the above referred appeals by directing the appellants to refund the 10% deducted amount and Rs.3,00,397/- as non construction charges, Rs.14,590/- as building plan fees with interest 12% per annum from the date of deposited amounts till actual payment, besides compensation for mental harassment of Rs.40,000/- and Rs.10,000/- as cost of litigation. The appellants of the above referred appeals are opposite parties in complaint no.10 and complaint no. 9 of 2018 decided on 27.07.2018 respectively, whereas respondents of above referred appeals are complainants in the above referred complaints and they be referred as such, hereinafter. Since common question of controversy of facts and law are involved in the above appeals, hence they are taken up together to dispose of them conveniently by passing the order in main First Appeal no. 494 of 2018 titled as Punjab Urban Planning and Development Authority (PUDA).
Facts of First Appeal No.494 of 2018 arising out of Complaint No.10 of 2018.
2. The complainant Sital Singh has filed the consumer complaint no.10 of 2018 U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") before District Forum Kapurthala against OP on the averments that the latter invited general public for auctioning of site at Seed Farm Kapurthala on 03.05.2013. The terms and conditions thereof had been published for the general public a
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nd it was announced that the auction would take place for commercial sites. The complainant had given bid as per his requirement of shop no.18 and same was allotted to him and he deposited 10% amount i.e. Rs.2,38,503/- on 3.05.2013 and thereafter he also deposited Rs.3,57,755/- on 27.05.2013. Subsequently, remaining amount was deposited by him, as per rules. The allotment letter was issued, vide memo no. EO PUDA JAL A-1-1-2013/1324 dated 05.07.2013 to him by OPs. Non-construction fee was also charged by OPs from him. He wanted to construct the site and applied for NOC, vide application no.IDI36114, reference 1023/2017 dated 25.08.2017 in accordance with the original terms of the auction of the site. Thereafter, he deposited building fee with basement, vide DD 024096 dated25.08.2017 for Rs.6400/- vide receipt no.23 dated 01.09.2017 totaling of Rs.14,950/- and subsequently, building plan was issued vide receipt no. 1078 dated 01.09.2017 and building plan was passed with basement and fee was received by OP, vide letter dated 18.09.2017. The building plan preparation fee of Rs.8000/- was paid to OP/PUDA without issuance of receipt of money received by complainant. Specification letter was also issued by OP/PUDA, vide registration no.CA/2000/26294 dated 23.08.2017 for construction of site with basement. He has already hired a contractor for starting the construction of the site. He has applied for demarcation of the site on the application form issued by PUDA/OP in this respect and he also approached OP for execution of conveyance deed and permission to mortgage the site for obtaining loan for construction, vide serial no.001249 issued by PUDA to him. But neither OP nor any higher authority paid any heed to his request. Ultimately, he applied for withdrawal of building plan and also for surrender of the site in question. He prayed for total amount of Rs.19,97,321/- from OP in this complaint.
3. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. The complainant is not consumer of OP. The complainant is barred by his own act and conduct from filing the complaint. The complainant has got no cause of action to file the complaint. On merits, it was averred that no amount was ever received by OP without issuing the proper receipt. Building plan of complainant has been sanctioned as per the rules, building rules and the instructions and plan was sanctioned of this scheme by competent authorities and same was duly notified to all the auction purchasers before and at the time of auctions. It was denied that contractor was hired by complainant at any time. As per rules, building rules and instructions and plans were sanctioned of this scheme by competent authorities, construction of any basement of any shop/site or plot is allowed, subject to condition that owner thereof is to raise it by leaving 8 ft space from the adjoining walls of the adjoining plots/sites, if adjoining owners have not raised their basement sites. Any deficiency in service was denied by OPs on their part and they prayed for dismissal of the complaint.
4. The complainant has tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-16 and closed the evidence. As against it; OP has tendered affidavit of Jai Inder Singh Estate Officer as Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-7 and closed the evidence. On conclusion of evidence and arguments, the District Forum Kapurthala, accepted the complaint of the complainant by virtue of order dated 27.07.2018. Dissatisfied with the order of the District Forum Kapurthala dated 27.07.2018, OP now appellant carried this appeal against the same.
Fact of First Appeal No.495 of 2018 arising out of Complaint No.09 of 2018.
5. The complainant Sital Singh has filed consumer complaint no.9 of 2018 U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that OPs invited general public for auctioning of site at Seed Farm Kapurthala on 03.05.2013. The terms and conditions thereof had been read out to the general public and it was announced that the auction would take place for commercial sites. The complainant had given bid as per his requirement of SCF and in auction SCF was allotted to him and he deposited 10% amount i.e. Rs.390830/- on 3.05.2013 and thereafter he also deposited Ist installment of Rs.10,84,553/- vide receipt no. 16 dated 05.05.2014. Again he deposited second installment of Rs.9,96,616/- vide receipt no.84 dated 04.05.2015 and he again deposited Rs.9,08,679/- vide receipt no. 92 dated 05.04.2016 and last installment of Rs.8,37,264/- vide receipt no.40 dated 22.06.2017 total amount of Rs.48,04,192/- as full and final payment. All installments were deposited by him with interest @ 12% p.a and 18% in case of penal interest if any. Thereafter, he had the intention to raise the construction of SCF and before start of the construction, he deposited Rs.1,16,199/- being non-construction fee within the stipulated period, vide receipt no.36 dated 29.08.2017 in the month of September 2017. Thereafter, he applied for building plan, which was prepared and issued by AR Rahul, vide CA/2011/53807 dated 11.09.2017. After obtaining the building plan, the complainant applied for sanctioning of building plan to PUDA and paid Rs.82,070/- vide memo no.65 dated 11.09.2017 including labour cess and security fee etc. DD no.133463 dated 08.09.2017 for an amount of Rs.8150, vide receipt challan no.909736 dated 27.09.2018 which was submitted to DTP on 19.09.2017 and ws received by Raj Kumar. As per the procedure, he approached DTP Kapurthala with the request for approval of the building plan as to start the construction of the SCF-C1. He was shocked to learn from DTP Kapurthala that SCF could not be constructed on the allotted site. As per zoning plan and layout plan of the Kapurthala, the site was only meant for building of SCO and not SCF. A letter in this regard was issued by DTP Kapurthala, vide DTP/Kpt receipt no.974 DTP(K) UE-1(K) dated 18.09.2017. This act on the part of OP is clear cut case of unfair trade practice and deficiency in service. The complainant prayed for refund of total amount of Rs.19,99,692/- from OP.
6. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. The complainant is not consumer of OP. The complainant is barred by his own act and conduct from filing the complaint. The complainant has no cause of action to file the complaint. On merits, it was averred that nature of the proposed constructions in the building plan submitted by the complainant did not show that it was for shop cum flat only. Had it been for SCF only, then bed rooms, kitchen, bathrooms etc required by the residential purpose should have been mentioned in the building plan, so submitted by complainant. Building plan was not to be sanctioned/approved by DTP as alleged by complainant, but the same was to be sanctioned by the competent officers of the OP/Authority as per the rules and instructions. OP was not bound by any alleged act or letter of DTP. OP has not rejected the submitted building plan of complainant. As per record of the OP, building plan of complainant was sent to DTP Kapurthala, vide letter no.1105 dated 13.09.2017 by SDO PUDA Jalandhar for inspection and as per the records of OP, same has never been received back from the office of DTP Kapurthala or without any objection, the same was received from the said office by complainant. Any unfair trade practice and deficiency in service was denied by OP and it prayed for dismissal of the complaint.
7. The complainant has tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-19 and closed the evidence. As against it; OP has tendered affidavit of Jai Inder Singh Estate Officer as Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-5 and closed the evidence. On conclusion of evidence and arguments, the District Forum Kapurthala, accepted the above referred complaints of the complainant by virtue of order dated 27.07.2018. Dissatisfied with the order of the District Forum Kapurthala dated 27.07.2018, OP now appellants carried these two appeals against two separate orders.
8. We have heard learned Counsel for the parties at considerable length and have also examined the record of the case.
9. Sh. G.S. Arshi, counsel for above referred appellants contended that the value of the subject matter in the above referred complaints along with compensation claimed by complainant exceeded the jurisdiction of pecuniary limit of 20 lac and as such District Forum below was not competent to entertain and decide the complaints for want of pecuniary jurisdiction. He referred to Section 11 (i) of Consumer Protection Act 1986, which lays down as under :-
11. Jurisdiction of the District Forum.—(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed ''does not exceed rupees twenty lakhs.
10. On the other hand, the submission of counsel for respondents of this appeal is that whatever amount has been already refunded to complainant, cannot be a subject matter in calculating the pecuniary jurisdiction of District Forum in this case. The forceful submission of counsel for the complainant now respondent in the above referred appeals is that only the net value of the subject matter, after adjustment of the already refunded amount, has been computed in this case and as such, the matter is within cognizance of pecuniary jurisdiction District Forum below. This is the sole point agitated during the arguments in the above referred appeals as to whether District Forum Kapurthala passed the order under challenge in the appeal within the limits of its pecuniary jurisdiction of Rs.20 lac or not. The submission of counsel for complainant now respondent in the above appeals cannot be accepted that pecuniary jurisdiction of the District Forum has to be computed after taking into account the refund of the amount by OPs now appellants. The matter is not res integra. The larger bench of National Commission has held in “Ambrish Kumar Shukla & others vs. Ferrous Infrastructure Pvt. Ltd” reported in 2016(4) CPR-83 that the value of the complaint would be fixed in accordance with total value of the goods purchased or services hired or availed of. This judgment by Larger Bench of National Commission is in accordance with Section11 (i) of Consumer Protection Act which defines the pecuniary jurisdiction of District Forum. As per Section11(i) of Consumer Protection Act 1986, it is set out that where value of the goods or services and the compensation, if any, claimed, which has to be calculated in the case, does not exceed Rs.20 lac, then District Forum has jurisdiction to try the complaint.
11. Herein, the complainant applied for booking of SCF (shop-cum-flat) with OPs for sale consideration of Rs.39,08,300/- qua SCF-1. The tentative price of the site is Rs.39,08,300/- which could be increased. As per mandate of law laid down in “Ambrish Kumar Shukla’s case” by larger bench of National Commission that in this case total value of goods or services availed of Rs.39,08,300/- is in excess of the cap of Rs.20 lac fixed on District Forum and as such District Forum should not have entertained the complaint for want of pecuniary jurisdiction. Similarly, in the connected complaint no..10 of 2018 giving rise to First Appeal no. 494 of 2018 the total value of the shop no. 18 in commercial complex is Rs.23,85,030/-, which is in excess of the amount of Rs.20 lac. The contention of counsel for complainant is rejected on this point by this Commission that it is the net amount only, after deducting the refunded amount, out of the total value of goods or services availed of which has to be computed for ascertaining the pecuniary jurisdiction of District Forum. Consequently, it is observed that District Forum below committed an illegality in entering upon the jurisdiction to decide the above referred complaints without holding any pecuniary jurisdiction to do so.
12. As a result of our above discussion, District Forum is held to have committed an illegality in passing the above orders in above connected complaints giving arise to above connected appeals without holding requisite pecuniary jurisdiction in the matter. Consequently, the orders of District Forum under challenge in both above appeals cannot be sustained in the appeals and deserves to be reversed herein by accepting the above appeals of the appellants.
13. Resultantly, First Appeal no. 494 of 2018 of the appellant is accepted and order of District Forum Kapurthala dated 27.07.2018 is hereby set aside by dismissing the complaint of the complainant. Similarly, First Appeal no.495 of 2018 is accepted by setting aside the order of District Forum Kapurthala dated 27.07.2018 thereby dismissing the complaint of the complainant. It is further observed that complainant is at liberty to file the complaints before competent Forum under law and the period spent by the complainants in prosecuting in the above complaints in and appeals in good faith can be invoked to be condoned under Section 14 of the Limitation Act 1963.
14. In First Appeal No.494 of 2018 appellant had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal and further deposited Rs.2,81,380/- as per compliance of the order of this Commission. Both these amounts with interest, if any, accrued thereon, be remitted by the registry to the appellant of this appeal/opposite party in the complaint by way of crossed cheque/demand draft after the expiry of 45 days.
15. In First Appeal No.495 of 2018 appellant had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal and further deposited Rs.1,73,782/- as per compliance of the order of this Commission. Both these amounts with interest, if any, accrued thereon, be remitted by the registry to the appellant of this appeal/opposite party in the complaint by way of crossed cheque/demand draft after the expiry of 45 days.
16. Arguments in both appeals were heard on 14.01.2019 and the order was reserved. The certified copy of the order be communicated to the parties.
17. The appeals could not be decided within the statutory period due to heavy pendency of court cases