1. The case is at the stage of the decision while the arguments were heard on previous date and file has been perused in the light of the arguments as such I proceed to discuss and decide and dispose off the matter in accordance with the findings in the following paragraphs.
2. Briefly stated the version of the claimant is to the effect that he is consumer with the defendants being the owner of plot No.89-A1 measuring 1708 Square feet (Front 30 feet, Back 30 feet, Western side 59 feet 3 inches, Eastern side 54 feet 8 inches); that he has paid all the dues; that defendant no.4 has issued clearance letter on 03-08-2011 alongwith complete possession; that the claimant has stared construction over the plot; that the defendants have stopped the construction on 23- 09-2011 without assigning any reason, that the defendants have not provided promised facilities of sewerage, electricity, gas and water; that the front road is not according to proposed measurement of 50 feet; that plot has not yet been registered; that legal notice dated 03-11-2011 has been issued without any action. The claimant has requested for recovery of Rs.10,00,000/- as damages for mental tension and financial loss, Rs.20,000/- as litigation charges; Rs.35,000/- as counsel fee alongwith any other admissible relief.
3. The version of defendant No.2 in his separate written statement is to the effect that this court has no jurisdiction in the matter; that the case of civil rights is within jurisdiction of civil court; that defendant No.2 has alienated the whole area of both phases of the colony consisting of 104 Kanals 01 Marlas through agreement dated 02-06-2007 to defendants No.1 & 3 and one Mohammad Sharif; that relationship of consumer and service provider is not established; that the grand plan is approved by TMA; that the claimant has made the payment to defendants No.1 & 3; that that the complaint is liable to be dismissed to the extent of defendant No.2; that the measurement of plot of five Marlas is 25 x 45; that the road of TMA is being encroached upon by the claimant by construction on excess land; that the claimant has given incorrect measurement by concealment of facts; that the complaint is liable to be dismissed under the Consumer Act; that the complaint is false, baseless. Defendant No.2 has requested for grant of Rs.40,000/- as counsel fee alongwith litigation charges and damages by dismissal of the complaint.
4. Joint version of defendants No.1,3 & 4 represented by defendant No.4 is to the effect that the housing scheme is established under 'Private Site Development Schemes (Regulations), 2005; that no sort of claim can be filed in this court; that status quo is issued by the civil court in the civil suit titled Hafiz Razaullah Rauf versus Hafiz Abdul Karim etc; that the claimant has no locus standi due to pendency of matter before learned civil court; that the complaint is with collusion of defendant No.2; that notice has not been received by the defendants; that the complaint is defective; that the claimant has purchased the property at his own risk and cost; that the constructions and alienations of Garden Town Scheme are stopped due to stay order of civil court; that the defendants have never obstructed the construction of the claimant; that there is no hurdle in his way except stay order; that the complaint is false and baseless; that the complaint should be dismissed with costs.
5. It is pertinent to note that although evidence is necessary to be recorded under S. 30 of PCP Act 2005 for disposal of the complaints by the Consumer Courts but since the procedural laws known as the Code of Civil Procedure, 1908; the Code of Criminal Procedure, 1898; the Qanun-e-Shahadat Order, 1984, the Bankers' Books Evidence Act, 1891 are not strictly applicable to the proceedings of the Consumer Courts, as such the propriety demands that the regular evidence should not be recorded in such cases where the points for determination are mostly based on the copies of the admitted documents available in the file of the complaint or admitted in the pleadings just like the present case.
6. It is provided in the definition of the CONSUMER? in S. 2 (c) of the 'Act' that it means such a person or entity who "Hires any service for a consideration and includes the beneficiary of such services". The beneficiary of the services hired by another is also included in the definition of the consumer. The objection of the defendants about the definition of the term 'CONSUMER' is not acceptable because the services of the defendants are presumed to be hired by the claimant by purchase of plot situated within the colony being developed by them. The claimant is therefore entitled to be treated as the consumer so as to bring his claim about bait advertisement service providers is misconceived because it is clear from S.2 (k) of PCP Act (Act II of 2005) that the free services without payment of any fee are not excluded from definition of the term SERVICES" because said services do not fall within prohibitory clauses (i) to (iii) of the said clause in which the examples of the services excluded from the definition are given as the contract of personal services, astrology, palmistry, court of law, arbitration while the services to be included in the definition are given as medical, legal or engineering services.
8. It is understood that the said examples are not exhaustive and many other instances of both kinds of services can be included by practical experience in accordance with the nature of the cases but it can be safely found that the services of the developers of the colonies are within the definition of the services as defined by the Act.
9. It is also observed that since the defendants are deemed to be the service providers and since the claimant is deemed to be the consumer as such the jurisdiction of this court to adjudicate the present complaint is not barred while the defendants are liable to arrange for the providing of promised facilities at the earliest and to facilitate the claimant for the construction of building in accordance with the clearance letter the copy of which is included in the file of the present complaint.
10. It is being pointed out that the relevant law governing the rules for the housing colonies is 'PUNJAB PRIVATE HOUSING SCHEMES AND LAND SUB-DIVISION RULES 2010' published in PLD Punjab Statutes Volume LXII 2010.
11. As far as the request about grant of damages is concerned, it is observed that it is settled law that the manufacturer or service provider is not liable for any damages except a return of the consideration or a part thereof and the costs, specifically where the consumer has not suffered any damages from the product or provision of service except lack of utility / benefit.
12. It is pertinent to note that the grant of damages is curtailed even under Contract Act, 1872 in which it is provided in S.73 to 75 that the damages should be proportionate to the loss and not excessive by mentioning that such compensation for loss or damage caused by breach of contract is not to be given for any remote and indirect loss or damage sustained by reason of the breach. It is an embargo placed by the general law of contracts upon the powers of the courts about grant of damages.
13. It is also observed that further embargo on the quantum of damages to be awarded by the consumers courts has been placed by the law provided in S. 4, 10, 13 & 15 of PCP Act by declaring that the manufacturer or service provider shall be liable to a consumer for damages proximately caused by anticipated use of the product or provision of services that have caused damage but he shall not be liable for any damages except a return of the consideration or a part thereof and the costs in such cases where the consumer has not suffered any damages from the provision of service except lack of benefit or loss of utility.
14. Since there is no explanation in the present complaint about any other damage except the loss of utility or lack of benefit as such I find that the claimant is not entitled to recover the damages or compensation or counsel fee or litigation charges through this court under the law of consumers.
15. As far as the ownership of the claimant is concerned, it is observed that the claimant is admittedly registered transferee of the basic land measuring five Marlas from defendant No.2 as attorney of one Ahmad Bakhsh as mentioned in the copy of the registered deed included in the file of the present complaint and admitted in the written statement of the said attorney while he is allottee of the remaining land from defendants No.1 & 3 & 4, in excess of five Marlas as mentioned in the clearance letter therefore he is entitled to raise the construction subject to the clearance from the learned civil court about applicability of temporary injunction or otherwise and since it is mentioned in the clearance letter that he has the permission to build his house as per laws of TMA Housing Department as such he is also subject to the rules of TMA in accordance with said letter.
16. I have observed that as far as the services of the defendants are concerned, the same are to flow from the clearance letter issued about delivery of possession and permission to build the house by defendant No.4 on behalf of defendants No.1 & 3 & 4 because the said letter amounts to the allotment letter of the excess land measuring 374 square feet from defendants No.1 & 3 & 4 relating to the total land measuring 1708 square feet including purchased land measuring 1361 square feet and construction is allowed by the said letter to be raised on the demarcation mentioned in the said letter which conforms to the measurements given in the instant complaint, while the claimant is the transferee of the land by registered deed to the extent of land measuring five Marlas from defendant No.2 therefore his entitlement is secured by the said letter for the purpose of construction.
17. In accordance with above discussion, the complaint is hereby accepted partly to the extent of the issuance of the direction to the defendants to allow the claimant to complete the construction at his own risk and cost subject to the clarification from the learned civil court about applicability of the temporary injunction or otherwise about the said construction and subject to the rules and regulations of TMA, while the complaint is dismissed to the extent of the recovery of the damages, costs, litigation charges and counsel fee.
18. Parties are left to bear their own costs.
19. This order would become final u/s 34 of PCP Act 2005, if the appeal is not preferred within period of 30 days after obtaining of the copy u/s 33 of PCP Act 2005 & Rule 18 of PCP Rules 2009 in accordance with the Rules of Procedure of Honourable High Court.
20. In case of delay in compliance, the claimant is entitled to get the order implemented by filing the application for implementation with reference to S.31, 32 & 36 of PCP Act, 2005, if so required with the warning to the defendants that the costs to be incurred for and during the application for implementation would be liable to be recovered from them.
21. Copies of this order are to be provided to the representatives of the defendants on demand.
22. A copy of this order is directed to be made available for publishing on the internet to the website of Punjab Consumer Protection Council Secretariat, 135-J, Model Town, Lahore for public disclosure and easy access of information to the consumers relating to the products and services in accordance with Rule 25 of PCP Rules, 2009.
23. The file of this complaint is to be consigned to the record room of this court duly page marked with proper index and after due completion and made available for issuance of attested copies and kept under safe custody till the period fixed for destruction in accordance with the Rules & Orders of Honourable Lahore High Court.