State Consumer Disputes Redressal Commission
Improvement Trust, Ludhiana vs Neeraj Chugh on 16 September, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1278 of 2009
Date of institution: 8.9.2009
Date of Decision :16.9.2013
Improvement Trust, Ludhiana, through its Executive Officer/Administrator,
Improvement Trust, Ludhiana.
.....Appellant/OP No. 1
Versus
1. Neeraj Chugh wife of Sh. Rakesh Chugh, House No. 379-G, Bhai
Randhir Singh Nagar, Ludhiana.
.....Respondent No.1/Complainant
2. The Adarsh Colony Co-op House Building Society, Ludhiana,
570/1, National Road, Near Bhaiwala Chowk, Ludhiana through
its Authorised Signatory.
3. Department of Local Government, Punjab through its Principal
Secretary, SCO No. 131-132, Junja Building, Sector 17-C,
Chandigarh.
.....Proforma Respondents/OP Nos. 2 & 3
Argued By:-
For the appellant : Sh. Prem Kumar, Advocate
For respondent No.1 : Sh. L.D. Gupta, Advocate
For respondent No.2 : Ex.-parte.
First Appeal against the order dated 3.2.2009
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member Gurcharan Singh Saran, Presiding Judicial Member The appellant/OP No.1 (hereinafter called "OP No.1") has filed the present appeal against the order dated 3.2.2009 passed by the District Consumer Disputes Redressal Forum, Ludhiana (hereinafter called "the District Forum") in consumer complaint No. 589 dated 25.9.2007 vide which the complaint was allowed and Op FIRST APPEAL NO. 1278 OF 2009 2 No.1 was directed to refund non-construction fine of Rs. 1,39,200/-, Rs. 2300/- and development charges of Rs. 52,800/- to the complainant within 30 days but prayer for quashing the demand of Rs. 17,080/- on account of enhancement charges was declined. If OP failed to pay the same within 30 days then liable to pay interest @ 9% per annum from the date of deposit till payment.
2. The complainant-Neeraj Chugh(hereinafter called "the complainant") has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') stating that she is Member of Adarsh Colony Co-op House Building Society, Ludhiana (hereinafter called 'the Society') bearing Membership No. 1395. The Society was formed in the year 1968 for providing plots for residential houses to its Members and the Society purchased 39 Acres of land in village Sunet now part of Bhai Randhir Singh Nagar. It has been further alleged that the said land was acquired by OP No. 1 for its development scheme known as 'Bhai Randhir Singh Nagar' but when the scheme was finally sanctioned by the Local Government Department, Punjab, this land was acquired from the Society and vide notification No. 928-ICII-77/4702 dated 9.2.1977, the Society was exempted and accordingly, this 39 acres land became surplus with OP No. 1. It was further stated that according to the said notification, the Society was to be given plots by OP No. 1. However, no plot was allotted to the Members of the Society by OP No. 1 and thereon the Society filed CWP No. 2659 of 1981 in the Hon'ble Punjab and Haryana High Court, Chandigarh. Fearing adverse judgment, OP No. 1 allotted 281 plots of various sizes to the said FIRST APPEAL NO. 1278 OF 2009 3 Society @ Rs. 50/- per sq. yard and accordingly, the Society withdraw the writ petition. Plot No. 379-G was allotted to Sh. Upinder Sood s/o Ram Murti Sood and then this Membership was transferred in the name of the complainant and after making full payment of the cost and dues, she became full owner of the plot. It has been further alleged that the allotment of these plots was challenged in various Courts and Punjab Government Departments. After a long litigation, the entire allotment was cancelled on 9.5.1993 and fresh allotments were made. Due to this reason, OP No. 1 did neither give the possession nor executed any sale deed or sanctioned the building plan. Fresh allotment was made to the complainant on 9.5.1993. In Group 'G' where the plot of the complainant is situated, roads, water supply, sewerage, parks and other amenities were provided by OP No. 1 by the end of 2001. Building plan No. 292 of the complainant was sanctioned on 16.6.1997 and then she raised the construction but till date OP No. 1 did not execute the sale deed in favour of the complainant despite repeated representations and personal visits. Vide letter No. LIT/SB/1210 dated 6.3.2006, OP No. 1 now asked the complainant to submit completion plan and to pay Rs. 1,39,100/- as non-construction fine(in short 'NCF'); enhancement amount of Rs. 17,080/- and Development Charges of Rs. 52,800/- and the complainant repeatedly pleaded with the Ops that all these demands are illegal and unauthorised and that she was not bound to pay this but OP No. 1 stated that in case the payments are not made then no sale deed will be executed in favour of the complainant. Under the fear, she paid Rs. 2,11,280/- under protest but even then OP No. 1 FIRST APPEAL NO. 1278 OF 2009 4 had not executed the sale deed and raised new objections for getting the completion plan approved by the Municipal Corporation, Ludhiana. The complainant paid Rs. 16,610/- to Municipal Corporation, Ludhiana and Municipal Corporation, Ludhiana sanctioned the site plan and ultimately, the sale deed was executed in favour of the complainant on 29.5.2007. Amount of Rs. 2,11,280/- recovered by OP No. 1 on account of NCF, enhancement charges and development charges were illegally recovered from the complainant against the judgments of the Hon'ble National Commission, State Commission, therefore, the complaint was filed with the direction to OP No. 1 that demand of non-construction charges, development charges and enhancement charges demanded are illegal, unauthorised and contrary to law and judgments; be quashed and OP No. 1 be directed to refund Rs. 1,39,100/- and Rs. 2300/- as non-construction charges; Rs. 52,800/- as Development Charges and Rs. 17,080/- as enhancement amount alongwith interest.
3. The complaint was contested by OP No. 1 and filed written statement taking preliminary objections that there is no deficiency in service on the part of OP No.1; the complaint is barred by limitation; the dues were deposited by the complainant herself, therefore, she is not entitled to the refund of the same; the complainant is not a 'consumer' as defined under the C.P. Act; the complaint is collusive between the Members of the Society and OP No. 3 and that the complainant is estopped by her act and conduct to file the complaint. On merits, it has been stated that it is a matter of FIRST APPEAL NO. 1278 OF 2009 5 record that the Society was formed to provide residential plots and that the Society purchased the land. However, it has been denied that the land of the Society was exempted. However, the Punjab Government vide its letter No. 8067 dated 7.10.1982, exemption of the land was withdrawn and it was directed that land of 16 acres in the shape of plots be allotted to the Society and accordingly, the plots were sanctioned. It was denied that the complainant has deposited the full amount. In fact she is in arrears of non-deposit of non- construction charges, enhancement amount charges and other dues. So far as Resolution No. 147 dated 29.4.1988, every individual of OP No. 3 was liable to pay Rs. 95/- per sq. yard to OP No. 1. It has been denied that development work, such as, roads, water supply, sewerage, parks and other civic amenities were provided by OP No. 1 till the year, 2001. The complainant by way of misrepresentation got the site plan sanctioned from Municipal Corporation, Ludhiana without obtaining 'NOC' from OP No. 1. It has been denied that the complainant was giving continuous representations and personal visits to OP No. 1. It has been further denied that the representations were made or personal visits made by the complainant after getting the site plan sanctioned. It has been denied that the amount was deposited by the complainant under protest. The demand of amount of non-construction fine and other charges were legally demanded by OP No. 1. It has been denied that the complainant is entitled for the refund of amount of Rs. 2,11,280/-. Amended rules of Punjab Town Improvement (Utilization of Land & Allotment of Plots) Rules, 1983 are applicable. It has been denied FIRST APPEAL NO. 1278 OF 2009 6 that non-construction charges from 1986 to 2007 are totally wrong, illegal or un-warranted or that any judgment has been given by the Hon'ble National Commission and State Commission that these charges cannot be demanded. Therefore, the demand of the complainant for the refund of the said amount alongwith interest and compensation is totally illegal, accordingly, it has been stated that there is no merit in the complaint filed by the complainant and the same be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence her affidavit Ex. CW-1/A, Ex. C-1 Punjab Govt. Notification dt. 9.2.77, Ex. C-2 copy of allotment letter dated 2.9.83, Ex. C-3 order of Hon'ble High Court dt. 10.11.1983, Ex. C-4 copy of allotment letter, Ex. C-5 NOC, Ex. C-6 Pb. Govt. Circular, Ex. C-7 Site Plan, Ex. C-8 receipt, Ex. C-9 completion plan, Exs. C-10 to 14 letters and receipts, Ex. C-15 copy of sale deed, Ex. C-16 legal notice, Exs. C-16A to Ex. C-23 circulars, order and resolution, Ex. C- 24, affidavit. On the other hand, opposite party No. 1 had tendered into evidence affidavit of Avtar Singh Azad, E.O. Ex. RW-1/A, Ex. R-1 agreement for sale, letters/scheme Exs. R-2, 3, 4 & 5, copy of indemnity bond Ex. R-6.
6. After going through the allegations in the complaint, written statements, evidence and documents brought on the record, the learned District Forum videimpugned order observed that for the first time non-construction fine/charges were introduced in 1988 but FIRST APPEAL NO. 1278 OF 2009 7 the possession was not delivered to the complainant and in case the possession was not delivered then non-construction fine/charges cannot be demanded as held by the Hon'ble Supreme Court in case "Haryana Urban Development Authority (HUDA) Vs. Shanti Devi", 2005 (1) CLT 496 (Supreme Court), therefore, the complainant was not required to pay the non-construction fine/charges and the charges have been deposited by the complainant due to coercive method adopted by OP No. 1. Regarding enhancement charges the indemnity bond was executed by the Society in favour of the Trust and not by the individual, therefore, Society can demand the charges not Ops. Accordingly, the complaint was allowed and OP No. 1 was directed to refund non-construction fine of Rs. 1,39,200/-, Rs. 2300/- and development charges of Rs. 52,800/- but prayer for the refund of enhancement charges of Rs. 17,080/- was declined.
7. Aggrieved with the order passed by the learned District Forum, the appellant/opposite party No. 1 has filed the present appeal.
8. We have heard the learned counsel for the parties.
9. In the grounds of appeal, it has been contended that the complainant had purchased Plot No. 379-G from one Upinder Sood having Membership No. 714. Vide resolution No. 147 dated 29.4.1988, every individual was liable to pay to the Society the price of the land @ Rs. 95/- per sq. yard, therefore, he was liable to pay this amount. The complainant did not take the NOC for sanctioning of the plan, therefore, letter dated 6.3.2006 was issued and she was asked to submit the completion plan and to pay non-construction FIRST APPEAL NO. 1278 OF 2009 8 fine/charges, enhancement charges and development charges, however, the learned District Forum has wrongly set-aside the order of OP No. 1 with regard to non-construction fine and development charges as the evidence and documents on the record has not been properly appreciated. Accordingly, it was prayed that the impugned order be set-aside.
10. In case we go through the allegations in the complaint, the Society has purchased 39 acres of land, which was acquired by OP No. 1 but lateron this land of the Society was exempted vide notification dated 9.2.1977 and OP No. 1 was to allot the plots but the same was not done but when CWP No. 2659 of 1981 was filed in the Hon'ble High Court of Punjab & Haryana, OP No. 1 allotted 281 plots of various sizes with plot in dispute to the complainant after litigation in Courts or with Govt. of Punjab Departments was over then the plot was allotted on 9.5.1993. Ex. C-2 is the letter with regard to provisional allotment of the plots. Vide resolution No. 359 dated 17.11.1994 Ex. C-18, it was decided by the opposite party to charge NCF from the allottees, however, the Govt. of Punjab vide their letter dated 22.4.1999 Ex. C-20 directed all the Improvement Trusts including the appellant not to charge non-construction charges, interest and any other penal interest in respect of those plots which were remained under stay or subject matter under litigation either in the Courts or with the Punjab Govt.. After getting the site plan sanctioned on 16.6.1997, the complainant raised the construction but till the year 2001, there was no development in the area, therefore, the non-construction charges have been wrongly demanded and FIRST APPEAL NO. 1278 OF 2009 9 recovered from the complainant. In those circumstances, the NCF cannot be recovered. Moreover, the NCF cannot be recovered on the basis of Administrative Instructions as held in the judgment "Tehal Singh Vs. State of Punjab" CWP No. 13648 of 1998 decided on 4.5.1998 by DB of Hon'ble Punjab and Haryana High Court, "Sant Kaur Pabbi Vs. State of Punjab", CWP No. 18986 of 2001 decided on 31.10.2002 and again in the judgment "Harpreet Singh VS. State of Punjab", 2009 (2) RCR (Civil) 771 it was again reiterated after relying upon the judgment of "Tehal Singh and others' (supra), the charging of NCF on the basis of administrative instructions have been set- aside in the judgment "Improvement Trust, Barnala Vs. Mrs. Shashi Kansal" 1999(2) CLT 651(Pb.), "Nazar Ram Bali Vs. Ludhiana Improvement Trust", 2006(2) CPC 130 (Pb.)" and further amendment was made in the Rules in the year 2005 i.e. 15.12.2005 whereas the plot was allotted in the year 1993 and amendment in the Act cannot operate retrospectively. It has been so held by the Hon'ble Supreme Court in "State of M.P. and ors. Versus Yogendra Shrivastava", 2010 (1) SCT 434 that the 'right and benefits already earned or acquired under the unamended rules cannot be taken away by amending the rules with retrospective effect'. It has been so held in another judgment by the Hon'ble Punjab & Haryana High Court in "Gurcharan Singh Vs. State of Punjab and others", CWP No. 1452 of 1998, decided on 17.3.1998, in case any amount has been illegally taken then its refund can be ordered. It has been so held by the State Commission as well as by the Hon'ble National Commission in the judgements of "Improvement Trust, Barnala Vs. Mrs. Shashi FIRST APPEAL NO. 1278 OF 2009 10 Kansal"(supra), "PUDA Vs. Balbir Singh", Appeal No. 284 of 2005 decided on 4.3.2005, "PUDA Vs. Prem Singh Mann", Appeal No. 1382 of 2005 decided on 21.2.2006 and "PUDA VS. Narinder Singh Nanda" Appeal No. 704 of 2006 decided on 26.5.2006. Against these judgments, counsel for the appellant has not been convince before us how the amendment in the Act can be retrospectively introduced to demand the non-construction fine, therefore, we are of the opinion that the learned District Forum has correctly observed that the demand of OP No. 1 with regard to non-construction fee is illegal, unwarranted and arbitrary and we affirm the view taken by the learned District Forum.
11. Another point taken by the counsel for the appellant is with regard to development charges. In the notification dated 9.2.1977 Ex. C-1, these plots were exempted by the Punjab Govt.. It was clearly mentioned that the development charges were to be paid by the Society to the Trust on the basis of rates fixed by the Trust and the development of the areas carried out by the Trust and the Society has already recovered the amount of development charges from the complainant, therefore, no development charges can be recovered from the complainant. In case as per Ex. C-1 development charges were to be paid by the Society and if the complainant has already paid the development charges to the Society then the appellant cannot again raise the demand of the development charges from the complainant/allottee. During the course of arguments, the counsel for the appellant cannot justify his demand from the complainant, therefore, we are of the opinion that the learned District Forum has FIRST APPEAL NO. 1278 OF 2009 11 correctly decided that the opposite party cannot raise the demand of development charges from the complainant.
12. With regard to demand of additional amount, there is no cross appeal from the complainant.
13. It was contended by the counsel for the appellant that in case there is a dispute between the Society and the Member relating to refund of equalization fee, whether the complaint from the complainant will be maintainable? In fact the complainant has purchased the membership from one Upinder Sood s/o Ram Murti Sood, counsel for the respondent has referred to the judgment of the Hon'ble National Commission in "The Talagang Co-operative G/H Ltd. versus Vandana Sharma", 2009(3) CPC 577, in which it was observed that because the membership was transferred and objection was raised by the petitioner that complaint is not maintainable under the Act, it was held that the contention is without force, the complaint is maintainable in view of Section 3 of the Act. There is another judgment of U.T. State Commission, Chandigarh in "Haryana Urban Development Authority versus Mehar Singh", 2009(1) CLT 607, in that case alternative plot was allotted to the original allottee on account of litigation on the old price, which was further transferred and the transferee had come under the footsteps of original allottee and it was held that higher amount is not justified and complaint under the Act is maintainable. In another judgment of this Commission "Sunita Sharma Vs. Ludhiana Improvement Trust", in that judgment after discussing the judgment "HUDA Vs. Sunita", (2005) 2 Supreme Court Cases 479, "PUDA VS. Narinder Singh FIRST APPEAL NO. 1278 OF 2009 12 Nanda" Appeal No. 704 of 2006 decided on 26.5.2006, "Tehal Singh Vs. State of Punjab"(supra), it was held that the complainant is a 'consumer'. However, the counsel for appellant could not controvert the judgments referred above to justify how the complainant is not 'consumer'.
14. No other point has been raised.
15. In view of the above discussion, we are of the opinion that the order passed by the learned District Forum is quite justified and we do not see any infirmity in the same and the same is hereby affirmed.
16. In view of the above discussion, the appeal filed by the appellant is dismissed with costs being without any merit and the fee of cost is assessed as Rs. 3,000/-
17. The arguments in this appeal were heard on 3.9.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
18. The appellant had deposited an amount of Rs. 25,500/- with this Commission at the time of filing the appeal. This amount of Rs. 25,500/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
19. Remaining amount shall be paid by the appellant to respondent No. 1 within 30 days from the receipt of the copy of the order.
FIRST APPEAL NO. 1278 OF 2009 13
20. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
September 16, 2013. (Piare Lal Garg)
as Member