.…Complainant
Versus
- The Estate Officer, Greater Ludhiana Area Development Authority, Ferozepur Road, Ludhiana.
- The Additional Chief Administrator, Greater Ludhiana Area Development Authority, Ferozepur Road, Ludhiana.
- The Chief Administrator, Punjab Urban Development Authority, Mohali (Punjab).
....Opposite parties
Complaint Under Section 35 of the Consumer Protection Act, 2019.
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
SH. JASWINDER SINGH, MEMBER
MS. MONIKA BHAGAT, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. L.D. Gupta, Advocate.
For OPs : Sh. Rajesh Kumar Rohilla, Advocate for OPs (Defense of OPs already struck off vide order dated 03.09.2022).
ORDER
PER JASWINDER SINGH, MEMBER
1. Briefly stated, the facts of the case are that plot No.1072, Phase-III, Urban Estate, Dugri Road, Ludhiana measuring 444.45 sq. yards was allotted to Ms. Sarabjit Kaur W/o. Sh. Surinder Singh, 28-L, Model Town, Jalandhar vide memo No.5778 dated 11.07.2007 by the opposite parties @ Rs.7450/- per sq. yd. for the total sale consideration of Rs.33,11,153/- out of which 25% was to be paid within 30 days of the issue of allotment letter of the plant and balance 75% was to be paid in 6 half yearly equated installments with 12% interest. The complainant stated that vide memo No.2685 dated 03.03.2011 issued by opposite party No.1, the said plot was transferred in his name on the same terms and conditions on which the same was allotted to the original allottee and the complainant stepped into the shoes of the original allottee. The complainant further stated that he wanted to raise construction of his house on the said plot for which he wish to raise house building loan from some financial institution regarding which No Due certificate of the said plot was required from the opposite parties and the complainant repeatedly visited office of opposite party No.1 and 2 with request to issue No Dues Certificate but the same was not issued and the matter was delayed on one pretext or the other and he could not raise construction. The complainant further stated that on 14.03.2022, he again filed an application dated 14.03.2022 to opposite party No.1 for issue No Dues Certificate but opposite party No.1 neither issued No Dues Certificate nor conveyed any reasons for not issuing the same despite receipt of letter. The complainant issued legal notice dated 04.04.2022 to the opposite parties but to no effect. The complainant further asserted that vide Endst. No.PUDA/KS.MD/2022/429 dated 19.04.2022, legal advisor of opposite party No.3 directed opposite party No.2 to settle the issues raised by the complainant but opposite party No.1 and 2 have neither supplied No Dues Certificate of the plot to the complainant nor have conveyed any reason for not issuing No Due Certificate. According to the complainant, he has paid the entire sale consideration of the plot to the opposite parties and no single paise is payable by him to the opposite parties. Due to non issuance of No Due certificate by the opposite parties, he is unable to raise building loan for raising construction over the plot. Due to deficiency in service on the part of the opposite parties, the complainant has suffered physical and mental harassment, tension, agony and torture. In the end, the complainant has prayed for issuing direction to issue no Due Certificate of the plot in question and also to award compensation of Rs.2,00,000/- and litigation expenses of Rs.75,000/-.
2. Upon notice, opposite parties appeared through counsel Sh. Rajesh Kumar Rohilla, Advocate but they failed to file written statement within prescribed period and as such, defence of the opposite parties was struck of vide order dated 30.09.2022.
3. In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents i.e. Ex. C1 is the copy of allotment letter bearing memo No.5778 dated 11.07.2007, Ex. C2 is the copy of re-allotment letter No.2685 dated 03.03.2011, Ex. C3 is the copy of terms and conditions of GLADA, Ex. C4 is the copy of letter dated 14.03.2022 written to opposite party No.1, Ex. C5 is the copy of legal notice dated 04.04.2022, Ex. C6 is the copy of postal receipt, Ex. C7 is the copy of Endst. No.PUDA-KS-MD/2022/429 dated 19.04.2022 of legal adviser of PUDA, SAS Nagar and closed the evidence.
4. We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents produced on record by the complainant. We have also gone through written arguments submitted by the opposite parties.
5. Admittedly, the plot in question was originally allotted to Smt. Sarabjit Kaur on 11.07.2007 by the opposite parties @ Rs.7450/- per sq. yards for a total sale consideration of Rs.33,11,153/- vide allotment letter Ex. C1. Clause 5 and Clause 6 of the original allotment letter Ex. C1 provides for construction of the building and that of extension fee respectively, same are reproduced as under:-
“5. Construction of Building
i) Construction on plot shall be completed within a period of 3 years from the date of issue of allotment letter after getting the building plans duly sanctioned from the concerned Estate Officer.
ii) Construction shall be carried out as per sanctioned building plans and as per the provision of PUDA (Building) Rules, 1996, as amended from time to time.
iii) Any construction carried out in violation of sanctioned building plan/Building Rules shall be dealt as per policy laid down in this regard from time to time.
iv) Before occupying the building, allottee would be required to obtain completion certificate and occupation certificate from the concerned Estate Officer.
6. Extension Fee
i) If the construction on the plot is not completed within the time stipulated in para 5 above, extension in construction period would be granted subject to payment of Extension Fee, as may be determined from time to time. However, extension in period of completion of building shall be subject to the satisfaction of the Estate Officer that the failure to complete the building within the stipulated period was due to a cause beyond the control of allottee.”
6. The plot in question was transferred in the name of the complainant on the same terms and conditions on which this plot was allotted to Sarabjit Kaur. The transfer letter is Ex. C2 and re-allotment letter is Ex. C3. Clause 16 of the re-allotment letter Ex. C3 also stipulates about the duration in the construction of the plot has to be completed and consequences of its non-completion. Clause 16 reads as under:-
“16. The construction on plot shall be completed within a period of 3 years from the date of issue of original allotment letter on dt. 11.07.07. If the construction on the plot is not completed within the time stipulated extension in construction period would be granted subject to payment of Extension Fee, as may be determined from time to time. However extension in period of completion of building shall be subject to the satisfaction of the Estate Officer that the failure to complete the building within the stipulated period was due to a cause beyond the control of allottee.”
On 14.03.2022, the complainant moved an application Ex. C4 for issuance of No Due Certificate as he wanted to raise Building Loan for the construction of his house on this plot and also showed his willingness to deposit the necessary charges.
7. The opposite parties also submitted written arguments stating therein that the complainant never applied for issuance of No Due Certificate of the plot on a prescribed performa. However, now No Due Certificate has been issued to the allottee/complainant vide office letter No.10328 dated 09.11.2022 whereas the complainant is liable to pay an amount of Rs.35,17,316/- up to 31.12.2022 as non construction charges and also produced copy of No Due Certificate as Annexure-R1. The counsel for the opposite parties has also contended that the facilities to obtain the permission to mortgage and No Due Certificate on prescribed performa are available online.
8. It can be seen from the facts and circumstances of the case that the complainant was fully aware of the fact that he has not constructed house within the stipulated period of 3 years and has also not paid the non-construction charges. He maintained stoic silence for long 14 years and now suddenly woke up to move an application dated 14.03.2022 (Ex. C4), to issue legal notice dated 04.04.2022 (Ex. C5) and to file the present complaint on 17.05.2022 within short span. Now since the opposite parties have issued conditional No Due Certificate Annexure-R1 wherein they have asked the complainant to pay Rs.35,17,316/- and further referred to and reminded the complainant of the terms and conditions of the allotment letters. Since allotment of the plot dates back to year 2007 and close scrutiny and examination of the record to work out outstanding dues took some time which is just fair and reasonable. It has emerged from record that the opposite parties have acted in bonafide manner and followed due procedure. Even if the allegations made in the complaint are taken on their face value, then also, it clearly emerges that there was no willful fault, imperfection, shortcoming or inadequacy in the discharge of the duty on the part of the opposite parties which could be termed as “deficiency in service” under Section 2 (1) (g) of the Consumer Protection Act. As such, there is no deficiency in service on the part of the opposite parties for issuance of No Due Certificate. As such, the complainant has failed to discharge his initial burden of proving deficiency in service on the part of the opposite parties.
9. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-
’19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.
In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”
‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-
“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”
In the given set of facts and circumstances, the complainant has failed to discharge his burden to prove that there was a deficiency in service on the part of the opposite parties and as such, his complaint deserved to be dismissed.
10. As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.
11. Due to huge pendency of cases, the complaint could not be decided within statutory period.
(Monika Bhagat) (Jaswinder Singh) (Sanjeev Batra) Member Member President
Announced in Open Commission.
Dated:16.06.2023.
Gobind Ram.
Sanjeev Aggarwal Vs E.O. GLADA CC/22/201
Present: Sh. L.D. Gupta, Advocate for complainant.
Sh. Rajesh Kumar Rohilla, Advocate for OPs (Defense of OPs already struck off vide order dated 03.09.2022).
The opposite parties submitted written arguments.
Oral arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.
(Monika Bhagat) (Jaswinder Singh) (Sanjeev Batra) Member Member President
Announced in Open Commission.
Dated:16.06.2023.
Gobind Ram.
