Bhag Chand Sharma, v Municipal CorporatBEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SHIMLA, H.P.
Consumer Complaint No: 347/2006
Date of presentation: 23.11.2006
Date of decision: 02.12.2009
Shri Bhag Chand Sharma, S/o Sh. Ladhi Ram Sharma,
R/o Narayan Bhawan, Kanlog,
Tehsil and District Shimla, H.P.
… Complainant.
Versus
1. Municipal Corporation Shimla,
Through its Commissioner,
Municipal Corporation, Shimla,
The Mall, Shimla-171001.
2. Sh. N.S. Guleria, J.E. A.P.
Branch of Municipal Corporation, Shimla, at Shimla.
3. Sh. Bhavesh Chaturvedi, J.E. A.P.
Branch of Municipal Corporation, Shimla, at Shimla.
…Opposite Parties
For the complainant: Mr. Chetan Sharma, Advocate vice
Mr. R.K. Khidtta, Advocate.
For the Opposite Parties: Mr. H.S. Upadhyay, Advocate.
O R D E R:
Sureshwar Thakur (District Judge) President:-
This complaint has been filed by Shri Bhag Chand Sharma, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that, he, is, owner in possession of a house known as ‘Narayan Bhawan’, hence, intended to make some additions in the aforesaid house and thus, submitted a plan for approval to OP No.1, on, 07.06.2004, after depositing Rs.433/-, for processing the plan and sanction thereof. He further avers, that, at the relevant time, OPs No.2 & 3, were the officials concerned, when the plan was submitted to the OP No,1 for approval, which was kept pending till December, 2004, despite his repeated requests, in writing as well, as, orally. It is averred that in the month of December, 2004, the plan was returned to the complainant, with a baseless and frivolous objection, hence, in order to avoid delay or confrontation, closed the vacant space, objected by the OPs, and resubmitted the plan, on, 15.01.2005, to the OP No.1, for approval. However, in November, 2005, a letter regarding missing of ferro prints was received by him, which was supplied by the complainant, vide Annexure C-8 and ultimately sanctioned the plan in December, 2005 and conveyed the approval to him in January, 2006. The complainant further proceeded to aver that due to the delay in processing and sanctioning of the plan, as well, as, raising baseless and illegal & frivolous objection, the prices of construction material and labour, increased and the complainant had to incur about three lacs more than the cost of construction without would have been in the year 2004. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in his favour.
2. The OPs, in its written version, to the complaint, raised preliminary objections vis-à-vis maintainability of the complaint in as much, as, suppression of material facts, lack of deficiency in service and cause of action and status of the complainant as a consumer. On merits, it is admitted that the complainant submitted revised/completion plan of his building, on, 08.06.2004 and after carrying out necessary spot inspection, by the OP No.2, rejected the case of the complainant, on, 22.11.2004. They further admitted that Ferro prints were not available in case file so submitted by the complainant, hence, was asked to supply the same and sanction was conveyed to him, on, 06.12.2005. It is further contended that there was no intentional delay on the part of the OPs and they delay if any, was that of the complainant, who kept open the basement illegally. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.
3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.
4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.
5. The complainant, is, having a serious grievance against the OPs, that, on account of the purported intentional delay, so committed by the OPs, in belatedly sanctioning the revised plan, submitted for approval before the OP, he, has been put to unnecessary harassment and inconvenience, inasmuch it has resulted, in, an exorbitant increase in the cost of construction, which was to be carried out by him, in the year, 2004, had to be carried out, after, January, 2006, solely on account of delays on the part of the OP. The OP-Corporation, has come up with the plea that, their was, no, intentional delay, in, sanctioning the plan, so submitted, to, them by the complainant, rather, it was on account of the fact, that, the complainant was using the basement, as revealed by their reply, which, user by him raised the number of storeys beyond the permissible sanctionable limit as ordained by the Municipal Bye Laws, hence, it engendered, the, initial delay in the according of sanction, which, sanction on, the complainant closing the basement, came to be, then, without, delay, accorded, in his favour. As such, they, have sought to exculpate their liability.
6. Undisputedly, the revised/completion plan was submitted to the OP No.1, on, 07.06.2006, which was entered in the office of the OP No.1, on, 08.06.2006, vide diary No.224. It is also not in dispute, that, the case of the complainant, was rejected by the OP No.1, on, 22.11.2004, with the remarks, that, it, can only be considered in case the complainant closes the basement, hence, the rejection was conveyed to him, on, 01.12.2004. Admittedly, the plan was resubmitted by the complainant on, 15.01.2005, which came to be sanctioned in December, 2005, and the approval thereof was conveyed to the complainant in January, 2006. The prime as well, as, the, moot adjudicable controversy, is hinged on the tenability, of, the, refusal, on, the part of the OP accord sanction to the complainant, on, the score of, the purported act, of, the complainant in not closing the basement, of his building or, its, user by him, as, revealed, in, the reply of the OP, which user purportedly raised the number of storeys proposed to be constructed by him beyond the permissible limits prescribed, by, the Bye Laws. Obviously the refusal would have been construed, to be, untenable only, on, adduction of cogent proof, by, the complainant to, repel the pointed contention, in, the reply of the OP, that, the basement having an ingress to it, with a door, hence, was intended to be used, its want, then, constrains us to impute truth to it and concomitant tenability to the refusal. More so, when the complainant came to close it, tantamounting, to, acquiescence of its user by him. The said acquiescence estops him from contending, that, the same was not a basement nor was used by him. Moreover, when the complainant has not adduced evidence, that, the space beneath the lintel was, of, a height which did not classify, it to be construed, as, a basement comprising, an, additional floor, within the purview of the Bye Laws, therefore, its, want, also, enables us, to, hence, firmly, construe, that, the initial rejection, by the OP, for, the existence of a basement in the building comprising, a, floor was tenable. Its non-closure or user, by the complainant, when, it, comprised an additional floor, obviously initially, precluded the OP, to, accord approval, to, the fourth storey, as, sought for by the complainant. As a sequitor, it, appears, that, for, an obvious lapse on the part of the complainant, to, initially, conform to the Municipal Bye Laws, inasmuch, as his failure, to, close the basement, occasioned the delay, if any, which, may have occurred in the according of approval by the OP, to, the map initially submitted before them, by him.
7. Be that, as, it may, even, if, their was an initial lapse on the part of the complainant, , yet, the sanction to his revised plan came to be accorded, by, the OP-Corporation, only after a lapse of a year, since, his having come to conform to the provisions of the Municipal Bye Laws, inasmuch, as, his coming to meet the objection, initially, raised by the OP, qua user of basement by him, which then, precluded the OP, to, then accord approval. Since, the OP-Corporation, has attributed, the, subsequent delay, to the misplacement of Ferro prints, hence, assuming, that, their is truth, in it, then even, when the complainant having promptly submitted fresh Ferro prints, no, plausible explanation has come forth, from the OP, in, the ordinate delay of one year, which was occasioned, in theirs, then, subsequently sanctioning, the, revised plan of the complainant, even when, he, had come, to, conform, to, the provisions of the Municipal Bye Laws, inasmuch, as, he having come to close the basement of his building. The said delay having remained unexplained, gives vigor, to, the contention of the complainant that, it, added to the cost of construction, which fact remain unrebutted by the OP. The above unexplained delay having caused concomitant strain on the financial resources of the complainant, is, required to be compensated by the OP-Corporation, hence, the OPs, cannot exculpate their liability, on, the score that the delay, if any, had occasioned on account of the lapse of the complainant. The lapse was on the part of the concerned Junior Engineer, manning the area, during the period of its re-submission, after initial refusal, where, the building of the complainant was located.
8. Consequently, the complaint deserves to be allowed and we accordingly allow it, by, directing, the, OP-Corporation, to, pay reasonable compensation, which in the given facts and circumstances of the case, we quantify, at, Rs.25,000/-, besides litigation costs of Rs.2500/-. The aforesaid sums, shall be defrayed to the complainant by the OP-Corporation, within a period of forty five days, after the date of receipt of copy of this order. The learned counsel for the parties under took to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.
Announced on this, the 2nd day of December, 2009.
(Sureshwar Thakur)
President.
NMehta) (Karuna Machhan) (Charanjit Singh)
Member Member.