State Consumer Disputes Redressal Commission
Improvement Trust, Ludhiana vs Nirmala Wati Loomba on 4 April, 2014
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1273 of 2009
Date of institution: 4.9.2009
Date of Decision: 4.4.2014
Improvement Trust, Ludhiana through its Executive Officer.
.....Appellant/OP No. 1
Versus
1. Nirmala Wati Loomba widow of Sh. K.K. Loomba, resident of H. No.
74, Model Gram, Ludhiana.
...Respondent No.1/Complainant
2. The Adarsh Colony Co-op Housing Building Society, 570/1, National
Road, Near Bhaiwala Chowk, Ludhiana through its President/Secretary.
.....Respondent No.2/OP No. 2
First Appeal against the order dated
19.12.2008 passed by the District Consumer
Disputes Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member
Present:-
For the appellant : Sh. Ashish Yadav, Advocate
For respondent No.1 : Sh. L.D. Gupta, Advocate
For respondent No.2 : Ex.-parte.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/OP No. 1(hereinafter referred as "OP No. 1") has filed the present appeal against the order dated 19.12.2008 2 FIRST APPEAL NO. 1273 OF 2009 passed by the District Consumer Disputes Redressal Forum, Ludhiana (hereinafter referred as "the District Forum") in consumer complaint No.360 dated 20.6.2006 vide which the complaint filed by respondent No.1/complainant(hereinafter referred as 'the complainant') was allowed with a direction to OP No. 1 to execute the sale deed of the allotted plot in favour of the complainant on depositing enhancement charges of Rs. 17,010/- within a period of 30 days on deposit of enhancement charges whereas the demand of non-construction charges amounting to Rs. 5,14,318/- and development charges of Rs. 52,798/- was held to be illegal, arbitrary, unjustified and against the rules and regulations. OP No. 1 was further directed to sanction the building plan for construction of the house of the complainant as per rules and regulations within a period of two months of executing the sale deed with no order as to costs.
2. The complaint was filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') against the opposite parties on the allegations that one Adarsh Colony Co-op House Building Society, Ludhiana(hereinafter referred to as 'the Society') was formed in the year 1968 to provide plots for construction of residential houses to its Members. For the said purpose, the Society purchased 39 acres of land in Village Sunet, now part of Bhai Randhir Singh Nagar. It was further pleaded that the land so owned by the Society was acquired by the Ops for development of scheme known as 'Bhai Randhir Singh Nagar Scheme'. However, finally the Local Government Department exempted the land of the Society from acquisition vide notification No. 3 FIRST APPEAL NO. 1273 OF 2009 928-ICII-77/4202 dated 9.2.1977 with the condition that the proposed Co-operative Colony will form part of overall layout of the scheme. The development charges will be paid by the Society to the Trust on the rates fixed by the Trust. However, no plots were allotted by the Improvement Trust to its Members for about 4 years then CWP No. 2659 of 1981 and CWP No. 1625 of 1981 in the Hon'ble Punjab & Haryana High Court was filed but the same was dismissed as withdrawn. Consequently, the Ludhiana Improvement Trust allotted 281 plots of various sizes to the said Society through different allotment letters. The cost of the plots was paid by the Members to the Society and Society further paid the cost to the OP. One plot No. 348-G was allotted to the complainant. After its full payment was made the complainant became full owner of this plot and was entitled to get the sale deed of this plot executed in her favour. On 29.11.1994, building plan for construction of the house was submitted by the complainant to the Ops alongwith NOC and No due Certificate from the Society and also paid Rs. 1600/- to the Ops but inspite of repeated reminders, representations and personal visits neither the building plan of the plot was sanctioned nor the sale deed was executed in favour of the complainant. On 7.1.1999, the complainant again submitted an application alongwith NOC, allotment letter, and NDC and other documents to the Ops for execution of the sale deed and for sanctioning of the building plan but with no result. Even reminders were issued on 16.5.2000, 27.2.2002, 2.4.2004. However, he was only intimated that as per Trust record, one Dr. Ajit Singh was owner of this plot, therefore, neither the sale deed of this plot in her 4 FIRST APPEAL NO. 1273 OF 2009 favour could be executed nor possession and the demarcation of this plot could be given to her. On 25.10.2005, the complainant submitted job slip No. 12950 to the OP and the Ops vide their letter dated 31.10.2005 intimated the complainant that as per Trust record, one Dr. Ajit Singh was owner of this plot and again asked to submit documentary evidence regarding her ownership of this plot. Complainant vide her letter dated 28.11.2005 again submitted all the original documents to the Ops. After fully examining the said documents, she was admitted as owner of this plot by Trust after 28.11.2005. However, vide letter No. LIT/SB/5872 dated 8.12.2005, the Ops again asked the complainant to submit No Objection Certificate and No Due Certificate, allotment letter and affidavit and the complainant vide letter dated 19.12.2005 again submitted all these documents and affidavit but instead of executing the sale deed and sanctioning the building plan, the Ops vide their letter No. LIT/SB/6618 dated 29.12.2005 raised fresh objections and asked to submit fresh NOC from the Society. Vide letter dated 27.1.2006, the complainant again submitted fresh NOC from the Society. Then vide letter No. LIT/SB/619 dated 10.2.2005, the Ops asked the complainant to again submit fresh NOC from the Society. The complainant vide his letter dated 9.2.2006 again submitted NOC and pleaded for stoppage of her harassment. However, on 1.3.2006, she received the greatest shock when she received a notice dated 1.3.2006 asking for non-construction fine of Rs. 5,14,318/-, enhancement of Rs. 17,010/- and development charges of Rs. 52,798/-. The complainant immediately submitted NOC from the 5 FIRST APPEAL NO. 1273 OF 2009 Society and requested the Ops to submit the year wise details of Rs. 5,84,376/- but no detail has been supplied till date. The demand of Rs. 5,84,376/- as non-construction fine is bad in law as the demand was illegal, unwarranted and against the instructions. The Society had already given undertaking to the Ops to pay the amount of enhancement, development charges and non-construction charges to the Trust, if applicable as per rules and have already paid Rs. 36.71 lacs to the Ops, as such, the demand is illegal and un-lawful. No tax, fee, fine, levy or any other charges can be levied and recovered except under the authority of some law, Act or statute. There is no provision under the Punjab Town Improvement Act, 1922 and Rules (for short 'Act of 1922') and the Ludhiana Improvement Trust Land Disposal Rules, 1964 (for short '1964 Rules') and Utilization of Land and Allotment of Plots by Improvement Trusts Rules, 1975 (for short '1975 Rules') and Punjab Town Improvement (Utilization of Land and Allotment of Plots) Rules, 1983 (for short 1983 Rules) provide for levy or authorise the OPs to levy and recover such non-construction charges and this fact was considered by the State Commission, Punjab as well as Hon'ble National Commission and held that the Ops were not entitled to recover non-construction charges in this manner. It was contended that the Ops were deficient in services and were indulged in unfair trade practice by demanding Rs. 5,14,318/- as non-construction fine, Rs. 17,010/- as enhancement charges and Rs. 52,798/- as development charges, hence, the complaint with a direction to the Ops to execute the sale deed of plot No. 348-G, BRS Nagar, Ludhiana in favour of the complainant, recall letter dated 6 FIRST APPEAL NO. 1273 OF 2009 1.3.2006 demanding Rs. 5,14,318/- as non-construction charges, fine of Rs. 17,010/- as enhancement charges and Rs. 52,798/- as development charges and award compensation and damages to the tune of Rs. 2 lacs and litigation expenses.
3. The complaint was contested by the opposite parties. OP No. 1 in its written reply had taken the preliminary objections that the complainant was not a consumer; the complainant was estopped by her own act and conduct to file the complaint as she failed to deposit the non-construction charges of Rs. 5,14,318/-, enhancement charges of Rs. 17,010/- and development charges of Rs. 52,798/- demanded vide letter dated 1.3.2006; there was no deficiency in service on the part of the Ops; the complaint was barred by limitation; as per 1964 rules, no sale deed of the property can be executed without the approval of the completion plan of the plot. Admittedly, the complainant had not got the building plan approved and that the Society was a defaulter and as per resolution No. 100 dated 19.8.1999, if any individual deposits the enhancement charges of his plot only then he was entitled for sanction of the plan and for execution of the sale deed subject to completion of all other formalities. On merits, the ownership of the Society, exemption of the land of the Society for acquisition by the Government of Punjab and allotment to his Members of Society was admitted. However, the complainant had not deposited full payment and other dues, which were outstanding against him as per letter dated 1.3.2006 and as per Rules of 1964 without completion certificate, sale deed cannot be executed. The allegations otherwise levelled by the complainant 7 FIRST APPEAL NO. 1273 OF 2009 against the Ops were ill-founded. The charges had been demanded strictly in accordance with Act and Rules, therefore, there was no deficiency in service or negligence on the part of this OP. The complaint was without merit and the same be dismissed.
4. OP No. 2 in its written statement has stated that OP No. 1 was guilty of causing harassment to the Society as well as to its Members and had not intentionally executed the sale deed in favour of the complainant; the conduct of OP No. 1 was malafide, careless and callous towards the complainant on the grounds that OP No. 1 in its meeting dated 17.11.1994 passed the resolution No. 359 that if there was a dispute inter-se among the Members of the Society and dispute between the Society and the Improvement Trust but these observations were wrong because the Ops were demanding non- construction charges but they are failed to give the possession to the plot holders, therefore, how they can raise the demand for non- construction charges. Moreover, it was resolved that the Society should furnish a written undertaking that the Society will be bound by the order of the Government Department, the payment of non- construction fine and in the meantime the site plan submitted by the Members of the Society should be sanctioned. The Trust vide resolution No. 359 dated 17.11.1994 resolved to pass the building plan without the payment of non-construction fine; the order to cancel the allotment was wrong on the face of it because it was for the Administrator of the Society, the Ops were not making the payment of compensation to the Society, which was due to the acquisition of the land of the Society and that as per the law settled by the Hon'ble 8 FIRST APPEAL NO. 1273 OF 2009 Supreme Court no non-construction fine can be imposed by the Ops. On merits, ownership of the Society, acquisition of the land by the Ops; exemption to the acquisition by the Government was a matter of record. Other facts were denied for knowledge with regard to correspondence between the complainant and the Ops and ultimately, it was stated that the complaint filed by the complainant be allowed with compensation and costs.
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence affidavit of Mrs. Nirmala Wati, letter dt. 9.2.1977 Ex. C-1, letter dt. 2.9.83 Ex. C-2, order of Hon'ble Pb. & Hry. High Court Ex. C-3, allotment order dt. 18.5.84 and letter Ex. C-4 & 5, certificate of Adarsh Colony Ex. C-6, receipts Ex. C-7 & 7A, letter dt. 31.10.05 Ex. C-8, letters of complainant Ex. C-9, 11, 14, 16, letters of OP Ex. C-10, 13, 15, 17, affidavit Ex. C-12, order of Hon'ble National Commission Ex. C-18, Rules of 2005 Ex. C-19, order of Civil Court Ex. C-20, instructions/resolution Ex. C-21, order of Government Ex. C-22, instructions of Govt. Ex. C-23, policy of Govt. Ex. C-24, policy of Govt. Ex. C-25, letter of Accountant General Ex. C-26, Govt. letter dt. 26.10.04 Ex. C-27, order of Hon'ble N.C. Ex. C-28, agreement Ex. C-29, affidavit of T.R. Gupta Ex. C-30. On the other hand, opposite party No. 1 had tendered into evidence agreement for sale Ex. R-1, instructions of Govt. Ex. R-2 & 3, policy Ex. R-4, demand details Ex. R-5.
9FIRST APPEAL NO. 1273 OF 2009
7. After going through the allegations in the complaint, written statement filed by the OPs, evidence and documents brought on the record, the complaint of the complainant against OP No. 1 was allowed as stated above.
8. Aggrieved with the order passed by the learned District Forum, the appellant/opposite party No. 1 has filed the present appeal.
9. We have heard the learned counsel for the parties.
10. In the grounds of appeal, it has been contended by the counsel for the appellant that the order of the District Forum is erroneous as respondent No. 1 was not consumer of the appellant as there is no privity of contract between the appellant and respondent No. 1 and the amount has not been deposited by respondent No. 1 directly with the appellant. According to 2005 Rules, the allottee was required to complete the building on the allotted plot within a period of two years from the date of providing basic amenities i.e. water supply, approach path and that respondent No. 1 did not complete her building within a requisite period, accordingly, the non-construction charges were demanded. Enhancement charges have already been deposited by the complainant/respondent No. 1, therefore, the order so passed by the learned District Forum quashing the demand of non-construction charges and development charges is liable to be set-aside.
11. As is clear from the facts of the case, land was purchased by the Society in the year 1968 i.e. 39 acres in Village Sunet to develop residential colony in Bhai Randhir Singh Nagar, which was 10 FIRST APPEAL NO. 1273 OF 2009 lateron acquired by the OP. However, vide letter dated 9.2.1977, it was exempted from acquisition but the Society Members were to pay the development charges and housing colony will form part of layout of the scheme. Plot No. 348-G in BRS Nagar was allotted to the complainant. The allotment letter issued by the Society on the record is Ex. C-4. Lateron the Ops disputed the allotment of this letter in the name of one Dr. Ajit Singh but when the complainant submitted all the documents with regard to the allotment then they conceded. Number of times the complainant submitted the documents for approval of building plan and execution of the sale deed and delivery of possession but it was not done. Lastly vide letter dated 1.3.2006 they demanded non-construction charges, enhancement charges and development charges. So far as enhancement charges are concerned, those were not set-aside by the learned District Forum and there is no cross appeal with regard to these charges and moreover, during the course of arguments, the counsel for respondent No. 1 stated that these charges have already been paid to the Ops/appellants.
12. Now the preposition is with regard to non-construction charges/development charges. The allotment order is dated 18.5.1984 whereas the land was exempted from acquisition by the Government vide their letter dated 9.2.1977, therefore, 1975 rules will be applicable. At that time, there was no provision under the rules for demanding non-construction charges. It was made by way of amendment in the Rules in 2005, therefore, that amendment will not operate retrospectively. In case the building plan and possession has 11 FIRST APPEAL NO. 1273 OF 2009 not been delivered to the complainant then how she will raise the construction. The Government of Punjab vide its letter dated 22.4.1999 Ex. C-23 issued the instructions that non-construction charges are to be recovered only from those allottees, who are responsible for non-construction in the prescribed period or delay in payment of instalment on account of their own lapse. However, in such cases where such delay cannot be directly attributed to the allottee, no such fee or penalty is required to charge from such category of allottees. Vide letter dated 14.2.2000 Ex. C-25, it was directed by the Government, the allottee should have to complete the construction over the plot within two years of laying of the basic infrastructure i.e. laying of water lines, sewer lines and approachable roads. The delay in providing the abovesaid civil amenities would entitle waiver in favour of allottees. There is another letter dated 26.10.2004 Ex. C-27 vide which it was decided that non-construction fee from those land owners whose land has been abandoned /exempted by the Trust in a given scheme will not be charged. Here in this case, the Government has given exemption from the acquisition of the land of the Society. Moreover, the split up of the charges from which year it has been levied by the OP, it has been given by the Ops in the letter dated 1.3.2006 or in their written reply, therefore, Op No. 1/appellant is not coming with the clean hands from which date they are claiming the non-construction/development charges. When the Ops have not been able to give the possession or pass the building plan, which is pending with them for the last number of years then how they can claim non-construction charges. A 12 FIRST APPEAL NO. 1273 OF 2009 reference can be made to the judgment "Haryana Urban Development Authority Vs. Shanti Devi", 2005 (1) CLT 496, wherein it was observed that in case development authority was not in a position to deliver the possession, they could not ask for non- construction charges. Therefore, firstly in the rules, which were applicable at the time of exemption of acquisition to the Society, there was no provision under the rules in the year 1977, the provision was made in the year 2005, therefore, these rules cannot be made applicable to the case of the complainant retrospectively. A reference has been made to "Improvement Trust, Moga, Vs. Narinder Nath" in which it was observed that notification dated 13.12.2005 and 28.7.2011 are not applicable as plot was allotted to the respondent on 21.12.1998. On the same lines are other judgments "State of M.P. Vs. Yogendra Shrivastva", 2010(1) SCT Page 434 Supreme Court, "Escorts Ltd. Vs. Union of India", 2010(2) RCR (Civil) 60 (Pb. & Hry. High Court), wherein it has been observed that amendment in rules cannot be applied retrospectively and that in case any right has accrued to the other party the same cannot be taken away.
13. Till 2005, the Ops were contesting about the ownership of the plot by the complainant but when the documents were shown to the Ops they admitted the ownership of the plot by the complainant and instead of executing the sale deed or delivery of possession or passing the building plan, they issued the letter dated 1.3.2006 demanding such amount of Rs. 5,84,376/- (Rs. 5,14,318/- as non- construction charges, Rs. 17,010/- as enhancement charges and Rs. 52,298/- as development charges) without giving split up of the 13 FIRST APPEAL NO. 1273 OF 2009 charges, from which year they are demanding the charges after ignoring the instructions issued by the Government of Punjab that where the lapse is not on the part of the allottee, then the Ops will not charge non-construction charges and where the land is exempted from acquisition then the non-construction charges will not be levied as referred above. But the Ops again ignored their own instructions and demanded the non-construction charges and development charges against their own rules and instructions. It is also pertinent to mention that in case the possession has not been delivered and building plan has not been sanctioned by the Ops, which is pending with them for the last so many years then how they can demand for non-construction charges. Without taking possession it was not possible to raise the construction within two years from date of allotment. Moreover, the non-construction fine cannot be raised on the basis of administrative instructions, it has been so held by the Division Bench of the Hon'ble Punjab & Haryana High Court in case "Tehal Singh and others vs. State of Punjab", CWP No. 13648 of 1998 decided on 4.5.1998 and its SLP was dismissed by the Hon'ble Supreme Court.
14. Therefore, we are of the opinion that demand so raised by the appellant/OP No. 1 with regard to payment of non-construction charges of Rs. 5,14,318/- and development charges of Rs. 52,798/- was rightly quashed by the learned District Forum. The findings given by the learned District Forum are justified. We do not differ with the findings so recorded by the learned District Forum. The same are hereby affirmed.
14FIRST APPEAL NO. 1273 OF 2009
15. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
16. The arguments in this appeal were heard on 26.3.2014 and the order was reserved. Now the order be communicated to the parties as per rules.
17. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
April 4, 2014. (Vinod Kumar Gupta)
as Member