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Judgment
THIS complaint has been filed by Harinder P.S. Cheema, a Non Resident Indian through his special power of attorney, Mrs. Avinash Kaur, resident of Mohali, District Ropar.
THE allegations made in the complaint are that the complainant had applied for a residential plot in Urban Estate, S.A.S. Nagar, Mohali in the NRI quota. A copy of the application dated 29.12.1983 requesting for allotment of 500 sq. yards plot to Estate Officer, Urban Estate, Punjab, respondent No. 4 alongwith a draft of Rs. 10,000/- has been annexed as Annexure C-2 with the complaint. A photo-copy of acknowledgement slip is annexed as Annexure C-3 with the complaint. THE respondents vide letter dated 16.3.1995 informed the complainant that they were acquiring the land for Sectors 67, 68 and 69 at S.A.S. Nagar, Mohali shortly and the plots were likely to be allotted to the pending NRI applicants. Vide that letter, the complainant was asked to deposit Rs. 50,000/- to complete the amount of earnest money i.e., 10% of the allotment price. A copy of the letter dated 16.3.1995 has also been attached with the complaint as Annexure C-4. After the receipt of this letter requisite amount of Rs. 50,000/- was sent by postal draft from USA by the complainant and the same was received by the Estate Officer, Urban Estate, Punjab, vide their Diary/Receipt No. 1467-B dated 28.4.1995. A copy of this draft from 1st Tannessee Bank has also been annexed with the complaint as Annexure C-5. Alongwith this draft complainant had also sent the requisite option form alongwith photo-copies of the passport as well as affidavit duly attested from Notary Public. Photo-copies of the abovesaid documents have been annexed alongwith the complaint collectively as Annexure C-6.
Thereafter, an advertisement was published regarding draw of lots on 14.7.1995, which was later on postponed and was held on 1.8.1995. Photo-copy of the advertisement has also been annexed with the complaint as Annexure C-7. Thereafter, respondent No. 4 vide letter dated 26.2.1997 (annexed as Annexure C-8 with the complaint) to the utter surprise of the complainant after about 10 months sent back the demand draft for getting its date corrected, which otherwise was correct i.e., 19.4.95, written as 4.19.95 as per American Banking System. It is stated in the complaint that the delay in this regard was attributable to the respondents as even if the draft was to be sent back then the same could have been despatched within reasonable time. However, without getting into any sort of controversy, the complainant again sent revalidated draft alongwith requisite amount alongwith letter dated 12.4.1996, which was duly received alongwith letter notifying his change of address, which was received by the office of the respondent No. 4 vide Diary No. 963-B dated 22.4.1996. A photo-copy of the letter is also annexed with this complaint as C-9.
IT is then alleged in the complaint that after keeping mum for about 1 years, the respondents vide their letter dated 6.10.1997 asked for attested copies of the passport alongwith photograph of the complainant enabling them to make allotment of the plot. A copy of the letter dated 6.10.1997 is annexed as Annexure C-10 with the complaint. In response to the above-said letter the complainant again vide his letter dated 2.2.1998 sent copies of his photograph as well as passport duly notarized as per requirement and the same were received in the office of the respondents vide Diary No. 2736 dated 18.2.1998. A copy of the letter dated 2.2.1998 has been annexed as Annexure C-11 with the complaint. IT was remained to the respondents that he had sent these documents to them earlier also. Despite the receipt of the abovesaid documents, respondent No. 4 again vide their letter dated 7.5.1998 wrote to the complainant that he should deposit duly attested photograph alongwith attested indemnity bond from third party. A copy of the letter dated 7.5.1998 has been annexed as Annexure C-12 with the complaint. Accordingly, the complainant again vide letter dated 30.5.1998 sent requisite documents including photograph, passport as well as third party indemnity bond and affidavit etc., which was received by the office of the Estate Officer, PUDA, Mohali on 26.6.1998 vide Diary No. 9963. Copy of the letter dated 30.5.1998 has been annexed as Annexure C-13 with the complaint. IT was again reminded to the respondents in this letter that he had sent these documents earlier also in February, 1998. IT is then alleged in the complaint that despite all this action on the part of the complainant, no allotment was made by the respondents and again vide their letter dated 24.8.1998, they wrote to the complainant asking him to send the latest photograph duly attested by 1st Class Magistrate. A copy of the letter dated 24.8.1998 has been annexed as Annexure C-14 with the complaint. In response to this letter, the complainant again sent duly notarized photograph vide letter dated October 1, 1998 and this letter was received in the office of the Estate Officer, Urban Estate, Punjab, vide Diary No. 17936 dated 16.10.1998. In this letter, the complainant has specifically mentioned that it was for the fourth time that the complainant was sending his photograph to the respondents. A copy of this letter dated 1.10.1998 has also been annexed with the complaint as Annexure C-15. After all this was done, to his utter surprise and dismay, vide letter dated 9.11.1998, the Assistant Estate Officer, PUDA again asked the complainant to send third party indemnity bond though the same was earlier sent and duly received by the respondents. A copy of the letter dated 9.11.1998 has also been annexed with the complaint as Annexure C-16. The complainant still sent another third party indemnity bond to the respondents vide his letter dated 4.1.1999, which was received vide Diary No. 198 dated 7.1.1999 in the office of the Estate Officer, PUDA, a copy of this letter dated 4.1.1999 has been annexed as Annexure C-17 with the complaint. After waiting for quite sometime, the complainant wrote to the Estate Officer, PUDA, regarding non-allotment of the plot despite completion of all the formalities and despite the passage of number of years. This letter of the complainant was received in the office of the Estate Officer vide Diary No. 3485 dated 26.3.1999. The copy of the said letter has been annexed with the complaint as Annexure C-18. It is then alleged by the complainant that in response to the above-said letter and to his utter surprise Assistant Estate Officer, PUDA vide his letter dated 1.4.1999 wrote to the complainant that a plot bearing No. 1093, Sector 69, Mohali was earmarked for him vide draw of lots dated 1.8.1995 and, therefore, the complainant should file an affidavit accepting the rate prevalent as on 1.4.1999 i.e., Rs. 3,600/- per square yard. A copy of this letter dated 1.4.1999 is annexed as Annexure C-19 alongwith the complaint.
IT is then stated in the complaint that per square yard rate of the plots of the category, which was earmarked for him was revised from Rs. 1,400/- per square yard to Rs. 3,600/- per square yard in the meeting of the Finance Committee held on 30.6.1997. However, he had completed all the requisite formalities for the allotment of plot much before 30.6.1997 i.e., alleged revision of rate of such type of plots. The demand of Rs. 3,600/- per square yard from the complainant amounted to unfair trade practice apart from the non-allotment of plot being a deficiency in service. IT is also alleged in para No. 13 of the complaint that many similarly situated NRIs/co-applicants have already been allotted plots @ Rs. 1,400/- per square yard. Specific names of the allottees of the plot have been mentioned in this para of the complaint. IT is then mentioned in the complaint that the complainant had represented to the respondents, but they did not respond to his requests. Rather they refused to do anything in the matter. Even the personal visits made on behalf of the complainant failed to persuade the officers concerned. A copy of the representation made to the concerned officer for allotment of the plot is annexed as Annexure C-25 with the complaint. IT is further alleged in the complaint that despite the fact that the plot was earmarked to the complainant after the draw of lots held on 1.8.1995 still the allotment letter was not given to the complainant illegally and arbitrarily on one pretext or the other. A direction ultimately has been sought from this Commission to be issued to the respondents to pay,- (a) compensation to the tune of Rs. 10 lacs covering the enhanced construction price which still have to be now borne by the complainant due to the delay caused by the opposite party in giving possession to the complainant; (b) Rs. one lac towards the mental agony and harassment undergone by the complainant for the non-allotment of the plot in time and also for apart from sending the same documents again and again especially for the delay caused malafidely and arbitrarily by the opposite party; (c) Rs. 10,000/- legal expenses incurred by the complainant in filing of the complaint and other litigation.
On notice being issued to the respondents, reply has been filed by Estate Officer, Punjab Urban Planning and Development Authority, Mohali, District Ropar on behalf of the respondent Nos. 2, 3 and 4. The first preliminary objection taken is that the matter of pricing is not within the ambit of Consumer Commission and thus complaint was liable to be dismissed. The second preliminary objection taken is that the price is only pegged after the issuance of allotment letter as such the complainant has no locus standi to agitate the matter before the Consumer Commission. On merits, it is stated that special power of attorney can be used for one purpose only and as such Mrs. Avinash Kaur has no locus standi to file the complaint on behalf of Harinder P.S. Cheema. Application for allotment of plot and deposit of earnest money etc. has been admitted. Correspondence alleged to have been made between the parties is also not denied. The main thrust of the reply is that the complainant did not fulfil the required formalities before 30.6.1997 i.e., before the rise of price of plots from Rs. 1,400/- to Rs. 3,600/-. The main formality, which was not fulfilled by the complainant according to the respondents and which is highlighted in the reply is that the complainant submitted the third party indemnity bond only on 4.1.1999 and thus formalities were completed only on 4.1.1999 when the price of the plots had already been increased. The specific allegation made by the complainant in Para No. 13 of the complaint with regard to allotment of plots @ Rs. 1,400/- per square yard to many similarly situated NRIs/co-applicants of the complainant has not been denied. It has been prayed that the complaint be dismissed with costs.
AFFIDAVIT of Mrs. Avinash Kaur, power of attorney of the complainant reiterating the contents of the complaint has also been placed on the record by way of evidence.
REPLICATION has been filed by way of affidavit of Mrs. Avinash Kaur to the written statement of the respondents. The reply to the preliminary objection Nos. 1 and 2 reads as under : "(1) That the contents of para 1 of the objections are wrong and hence denied. It is respectfully submitted that the present complaint is not only a matter of pricing but has been filed against the unfair trade practice adopted by the opposite parties and also against the deficiency in service provided by the opposite parties. The opposite parties cannot take advantage of their own wrongs by first delaying the allotment by time and again asking for documents which already stood submitted to them and then on account of delay caused by them in allotment, charge the enhanced price. Thus, the present complaint is well within the ambit of Consumer Protection Act, 1986. (2) That the contents of this para are wrong and hence denied. The plot was earmarked after the draw of plots held on 1.8.1995, but still the allotment letter was not given to the deponent illegally and arbitrary on one pretext or the other and now the allotment is being made on a much higher price i.e., Rs. 3,600/- per sq. yd. though the same should have been Rs. 1,400/- per sq. yd. as was the price in the year 1995 which further amounts to an unfair trade practice being adopted by the opposite parties, thus the complainant has got the necessary locus-standi to file this complaint."
With regard to the objection about the special power of attorney, it has been submitted that special power of attorney annexed as C-1 is with regard to the plot in question, which includes the filing of suit, complaint, arising out of any dispute with regard to plot in question. Therefore, the attorney is fully competent to file the complaint. In the replication, the stand taken by the complainant is reiterated. In reply to para No. 13 of the reply filed by the respondents, the complainant has stated that he had completed all the formalities before 30.6.1997. It has been stated in para No 13 that the respondents be directed to produce which formalities they asked from the complainant between 1.8.1995 i.e., when the plot was earmarked to the complainant and the dated i.e., 30.6.1997 when the rates of the plots were revised. It is then stated that the respondents rather had themselves admitted that they had allotted the plots @ Rs. 1,400/- per square yard to the co-applicants of the complainant who were left inadvertently by the respondents.
Learned Counsel for the complainant submits that admittedly the complainant was successful in the draw of lots, which was held on 1.8.1995 and a Plot No. 1093, Sector 69, Mohali was earmarked for him against the draw of lots dated 1.8.1995. The earnest money and all other formalities with regard to issuance of letter of allotment of the concerned plot were fulfilled by him before 30.6.1997 i.e., the date on which the price of such type of plots was enhanced from Rs. 1,400/- to Rs. 3,600/- per square yard. Learned Counsel has further submitted that the indemnity bond from the third party is required only in the case of second transfer whereas the complainant was the original allottee of the plot. There is neither any requirement of law nor there is any rule requiring the first allottee to furnish the indemnify bond from the third party. But even then the complainant had furnished the required indemnity bond also, though it was not required to be submitted in the case of the complainant as stated above.
IT is then contended by the learned Counsel for the complainant that the other co-applicants of the plots have never been asked for such third party indemnity bond and it has been asked from the complainant only in order to harass him and to delay the allotment of plot. The respondents did not ask the complainant to complete any formality with respect to the allotment of said plot earmarked for him after draw of lots i.e., from 1.8.1995 to 30.6.1997. IT was only after 30.6.1997 when the price of such plots was increased that the respondents started writing letters to the complainant for sending one thing or the other. The learned Counsel for the complainant, in these circumstances has submitted that non-allotment of the plot to the complainant is an unfair trade practice committed by the respondents and certainly is a deficiency in service on the part of the respondents/opposite parties. On the other hand, learned Counsel for the respondents has contended that Mrs. Avinash Kaur has no locus standi to file the present complaint as special power of attorney can be used for one purpose only. The learned Counsel for the respondents has further submitted that due formalities had not been fulfilled by the complainant before 30.6.1997 i.e., the date on which the price of such types of plots was increased. The formality which could not be fulfilled according to him within the stipulated period is that special power of attorney demanded from the complainant was not filed before 7.1.1999.
WE have heard the learned Counsel for the parties and have gone through the record with their assistance. The preliminary objections have rightly not been pressed by the learned Counsel for the respondents because in the case in hand, the fact, which needs determination is "as to whether the complainant had fulfilled all the requisite formalities for the allotment of the plot to him before 30.6.1997, i.e., the date on which the price of the plots of the same category was revised from Rs. 1,400/- to Rs. 3,600/- per square yard. It has not been brought to our notice by the Counsel for the respondents as to which were those formalities required to be fulfilled by the complainant under the law, which were not fulfilled by the complainant before 30.6.1997. He has been able to point out only about non-production of third party indemnity bond by the complainant before the crucial date. The learned Counsel for the complainant has contended that the complainant being the first allottee was not required to submit any indemnity bond at all. Requirement of furnishing of third party indemnity bond was only in case of second allottee and not in case of first allottee, complainant is admittedly the first allottee. We had asked the learned Counsel for the respondents to show us any law, rule or condition which requires the first allottee to submit third party indemnity bond. He has not been able to show us any such condition, rule or law, which requires the first allottee to submit any indemnity bond muchless third party indemnity bond. Thus the objection of the respondents that the indemnity bond was furnished by the complainant before 4.1.1999 and thus had not completed the formalities before the crucial date is meaningless. The conduct of the respondents in dilly-dallying the matter and not issuing the allotment letter to the complainant immediately after he had furnished all the required documents etc. is certainly an unfair trade practice as well as a deficiency in service on their part. They have played a cruel joke with the complainant in not allotting the plot to him merely because he had not fulfilled the condition of producing third party indemnity bond, which condition is not provided under any law and is not required to be fulfilled by the complainant; and thus depriving the complainant the possession of the plot, which was earmarked to him as far back as 1.8.1995 was a deficiency in service on the part of the respondents. The second objection of the Counsel for the respondent is that Avinash Kaur being special power of attorney was not competent to file the present complaint. According to the learned Counsel the special power of attorney in this case can be used for one purpose only and not for filing the complaint etc. before the Commission. This objection is also meaningless and deserves to be rejected. We have gone through the contents of special power of attorney, photo-copy of which is annexed as Annexure C-1 with the complaint with the help of both the Counsel for the parties. It has been specifically mentioned in this power of attorney that the attorney can file any type of case, suit, writ petition, appeal etc. before any officer or Court from the lowest to the highest i.e., Supreme Court in connection with any dispute etc. The attorney has further been specifically authorised to engage any Counsel and to take any step in connection with any dispute etc. with regard to the allotment of the plot. The contention of the Counsel for the respondent that special power of attorney Mrs. Avinash Kaur is not competent to file the complaint before this Commission is, thus, without any force and this objection needs rejection and is hereby rejected.
IT is pertinent to note here that the allegation made by the complainant in para 13 of his complaint that many similarly situated NRIs/co-applicants namely, Mr. S.S. Daari, Mrs. Malti Lakhanpal and Mr. Darshan Singh had already been allotted plots @ Rs. 1,400/- per square yard, have not been rebutted by the respondents.
MR. Harinder P.S. Cheema, complainant claims a direction to the respondents, Punjab Urban Planning and Development Authority known as PUDA to charge price of the plot allotted to the complainant @ Rs. 1,400/- per square yard like other similarly situated persons. He claims compensation to the tune of Rs. 10 lacs covering the increased construction price which still have to be now borne by the complainant due to the delay caused by the respondents in giving possession to him. He also claims Rs. one lac towards mental agony and harassment undergone by the complainant for non-allotment of the plot in time and for sending the same documents again and again especially for the delay caused malafide and arbitrarily by the respondents. He has further claimed Rs. 10,000/- as legal expenses incurred by the complainant in filing the complaint and other litigation expenses. Admittedly, the complainant had submitted his application dated 29.12.1983 for allotment of 500 sq. yards plot to the Estate Officer, Urban Estate, Punjab, respondent No. 4 in this complaint alongwith a demand draft of Rs. 10,000/-. He had further deposited an amount of Rs. 50,000/- to complete the amount of earnest money i.e., 10% of the allotment price. It is also an admitted fact that thereafter the complainant was held successful in draw of lots, which was held on 1.8.1995 and Plot No. 1093, Sector 69, Mohali was earmarked for him against the draw of lots held on 1.8.1995 by the respondent Authorities. Earnest money and all other requisite formalities with regard to issuance of letter of allotment were fulfilled by the complainant before 30.6.1997 i.e., the date on which the price of such type of plots was enhanced i.e., from Rs. 1,400/- to Rs. 3,600/- per sq. yard. It is also an admitted fact that the price of the plot at the time of allotment and at the time of draw of lots in August, 1995 was Rs. 1,400/- per square yard. The enhancement was made only on 30.6.1997.
It would be unfair trade practice if persons similarly situated are differentiated in the manner on charging price of the plot allotted. It has been so held in a number of cases by the Hon''ble National Commission. If any reference is needed, The Commissioner of Assam State Housing Board v. Manoj Kumar Adhikary & Ors., II (1996) CPJ 47 (NC)=(1996) 2 CON.LT 644, is the relevant one.
IN these circumstances when the earnest money was already deposited, the complainant was successful in draw of lots in the year 1995 and he was also allotted Plot No. 1093, Sector 69, Mohali. It was incumbent upon the respondent Authority to deliver the possession of the plot to the complainant. The delay in delivery of plot to the complainant on the basis of a non-existing condition i.e., asking the complainant to furnish third party indemnity bond, which was not the requirement to be fulfilled by the complainant under any law, was certainly a delay on the part of the respondent Authority, and smacks of malafide intention of the concerned respondent or its employees, firstly in not delivering the possession of the plot to the complainant immediately after the complainant was successful in draw of lots held on 1.8.1995 and Plot No. 1093, Sector 69, Mohali was earmarked for him against the draw of lots held on 1.8.1995 and thereafter asking for enhanced price of the plot @ Rs. 3,600/- per square yard instead of Rs. 1,400/- per square yard prevalent at the time of draw of lots and particularly when similarly situated persons were asked to pay only Rs. 1,400/- per square yard even after the enhancement of the price was highly arbitrary and all the actions of the respondent Authority-PUDA amounted to unfair trade practice and it also amounted to deficiency in service on the part of the PUDA. Since the plot was allotted in the draw of lots, the price prevalent on the date of draw as was being charged from the others is to be charged from the complainant. The action of respondent-PUDA in not allotting the plot immediately after the complainant was successful in draw of lots and the plot was earmarked for him on 1.8.1995 and when he had fulfilled all the requirements immediately thereafter and much before the price of such plots was enhanced. The action of the respondent-PUDA asking for enhanced price of Rs. 3,600/- per square yard from the complainant in the circumstances mentioned above also amounted to unfair trade practice on the part of the respondent-PUDA. In view of the reasons recorded above, this complaint is allowed. The opposite parties are directed to give immediate possession of the plot of 500 sq. yards to the complainant. The opposite parties are also directed to charge the price of the plot @ Rs. 1,400/- per square yard and to pay a composite compensation of Rs. 1,00,000/-, which includes harassment and inconvenience caused to the complainant. An amount of Rs. 5,000/- is also awarded to the complainant as costs of the litigation. Resultantly, this complaint is allowed with costs. Complaint allowed with costs.