State Consumer Disputes Redressal Commission
Smt. Kamlesh Rani vs Estate Officer, Gmada, Phase-8, Mohali on 29 April, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SCO NO.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.707 of 2010.
Date of Institution: 30.04.2010.
Date of Decision: 29.04.2011.
1. Smt. Kamlesh Rani W/o Sh. H.B. Garg, R/o House No.724, Sector 12-
A, Panchkula.
2. Vivek Garg S/o Sh. H.B. Garg, R/o House No.724, Sector 12-A,
Panchkula.
.....Appellants.
Versus
Estate Officer, GMADA, Phase-8, Mohali, Sector-62, Punjab.
.....Respondent.
First Appeal against the order dated
25.03.2010 of the District Consumer
Disputes Redressal Forum, SAS Nagar
(Mohali).
Before:-
Sh. Inderjit Kaushik, Presiding Member.
Sh. Baldev Singh Sekhon, Member.
Present:-
For the appellants : Sh. Gaurav Jindal, Advocate.
For the respondent : Sh. Balwinder Singh, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
This order will dispose of two appeals i.e. First Appeal No.707 of 2010 (Kamlesh Rani & Anr. Vs Estate Officer, GMADA) and First Appeal No.768 of 2010 (Estate Officer, GMADA Vs. Kamlesh Rani & Anr.), as both the appeals are directed against the same impugned order dated 25.03.2010 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (in short "District Forum"). The facts are taken from 'First Appeal No. 707 of 2010' and the parties would be referred by their status in this appeal.
2. Facts in brief are that the appellants/complainants (in short, "the appellants") filed a complaint u/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondent, pleading that she is resident of House No.724, Sector 12-A, Panchkula and she along with Sh. Vivek Garg First Appeal No.707 of 2010 2 son of Sh. H.B. Garg, is owner of commercial SCF No.65, Phase-2, Sector- 54, SAS Nagar, Mohali, as the same was re-allotted in their favour vide memo no.PUDA-EO/2001/7982 dated 06.11.2001 and after completing the formalities of the transfer vide memo dated 28.09.2001, the same was issued to the appellants clearly mentioning that nothing was due against the said SCF.
3. The appellants no.1 & 2 wanted to transfer their 2/3 share to Sh. Vikas Garg, who is the son of appellant no.1 and brother of appellant no.2 and approached the respondent vide application dated 23.10.2008 and along with the application, a draft of Rs.47,350/- was attached towards processing fee and transfer fee, but the transfer was not made even after two months from the date of the application.
4. On inquiry, it came to notice that a balance of Rs.12,148/- was shown as outstanding against the SCF No.65, Phase-2, Mohali. The appellants were shocked to know about it, as nothing was outstanding as per memo dated 28.09.2001, but the respondent did not agree and the appellants were left with no option except to deposit the same and the amount of Rs.12,148/- was deposited vide draft no.011442 dated 23.12.2008, but instead of transferring the same, the respondent vide memo no.GMADA- 2009/120 dated 01.01.2009, demanded a balance amount of Rs.62,370/- as compounding fee against the said SCF.
5. The compounding fee is charged only if any violation in the construction is made, but no violation was ever made by the appellants till date, nor any such notice was received. The appellants asked for the information under the RTI Act, to know about the reasons for not recovering Rs.62,370/- as compounding fee from the person, who compromised with PUDA and Rs.12,148/- as non construction fee from the original allottee/person. The information provided was not, at all, satisfactory. The letter dated 04.03.2009 of the allotment branch shows that Rs.12,148/- were First Appeal No.707 of 2010 3 due till the year 1992 and the appellants were re-allotted the SCF in the year 2001 and it was mentioned that nothing was due against the appellants. If any amount was to be recovered as extension fee, it was to be recovered from the original allottee and not from the appellants. No additions or alternations of any kind whatsoever in the said SCF were made by the appellants after the allotment.
6. Vide letter dated 19.05.2009, the respondent asked the appellants to deposit Rs.62,370/- as compounding fee and specifically stated that unless the same is deposited, the transfer of the appellants' share cannot be made and the appellants were left with no other alternative, but to deposit Rs.62,370/- with the respondent vide draft no.013218 dated 22.05.2009 under protest. Even after harassing the appellants, the department further asked for the deposit of Rs.12,956/- on account of difference in composition fee and transfer fee which was deposited with the respondent on 04.08.2008 vide draft no.013604. The appellants are not liable to pay anything as there was nothing outstanding and prayed that the respondent be directed to refund the amount deposited in the form of extension fee, compounding fee, difference on account of extension fee and composition fee, totaling Rs.87,474/- along with interest @ 18% p.a. and Rs.1.00 lac as compensation and Rs.10,000/- as litigation expenses be also awarded.
7. In the reply filed on behalf of the respondent, preliminary objections were taken that the complaint is bad for non-joinder of necessary parties. The Greater Mohali Area Development Authority (in short, "GMADA") is the competent authority who has not been made a party and the complaint is not maintainable. There is no deficiency in service as the respondent has legally charged the compounding fee and the extension fee and the appellants have undertaken to pay the same and, as such, now they are estopped from filing the present complaint. There is no cause of action and the jurisdiction is barred. On merits, it was admitted that plot no.SCF-65, First Appeal No.707 of 2010 4 Phase-2, Mohali was transferred in the name of the appellants by way of allotment letter no.7982 dated 06.11.2001. It was also admitted that the permission to transfer the said plot was given to Smt. Madhu Bhatia vide memo no.25678 dated 28.09.2001. It was also admitted that the appellants and Vikas Garg moved an application for transfer of the said plot, but the transfer was not made because the amount was due towards compounding fee and extension fee. It was admitted that that the appellants deposited Rs.12,148/- and Rs.62,370/-. The excess construction was done on 2nd and 3rd floors of the said SCF and the compounding fee for the excess construction on 2nd floor was Rs.22,275/- and for excess construction on 3rd floor was Rs.40,095/-, totaling Rs.62,370/-.
8. Sewerage connection to the building was granted vide letter no.3918-19 dated 19.12.1994 and as per the instructions, the extension fee for the period 1988 to 1994 amounting to Rs.22,869/- was due and a sum of Rs.10,721/- was deposited towards extension fee and the appellants were intimated to deposit the remaining amount. Permission was granted for transfer of the plot in the name of the appellants and Vikas Garg. The appellants at the time of seeking permission to transfer the plot in favour of Vikas Garg, undertook to pay the additional price, extension fee and other dues, if any, in respect of the said SCF as and when demanded by the Estate Officer and in case of failure, the competent authority could resume the SCF. They also undertook to pay the compounding fee for any violations. The allottee Mrs. Madhu Bhatia had only sought permission to transfer and not the 'No Due Certificate' and the said plot was transferred in the name of the appellants and Vikas Garg, on their furnishing the affidavit to pay the above amounts and now, they cannot challenge the same. Filing of the application under RTI Act was admitted. Making of the payments by the appellants was also admitted. Denying all other allegations contained in the complaint, it was prayed that the complaint may be dismissed.
First Appeal No.707 of 2010 5
9. Re-joinder was filed in which, allegations of the complaint were reiterated and that of the written reply were denied.
10. Parties adduced evidence in support of their respective contentions by way of affidavits and documents.
12. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the appellants were bound to pay the outstanding amount against the said SCF in question, as they have stepped into the shoes of original allottee and gave affidavits Ex.R1 to Ex.R4, but a specific procedure for levying and assessment of the dues is provided U/s 45 of the 1995 Act and a notice in writing to show-cause within a period of 30 days, is required to be given before imposing the penalty, but the respondent did not follow the procedure, nor any show-case notice was issued, and allowed the complaint, directing the respondents to refund Rs.87,474/- with interest thereon @ 8% p.a. from the date of deposit till the date of refund. Rs.2000/- were awarded as litigation expenses. However, the respondent was at liberty to pass a fresh order after following the proper procedure as per law.
13. Aggrieved by the impugned order dated 25.03.2010, the appellants-Kamesh Rani & Anr. have come up in the present appeal with a prayer to modify the impugned order to the extent of denying right to respondent. to recover the outstanding dues on the basis of affidavits against the SCF in question.
14. Whereas, the respondent has also filed cross appeal i.e. First Appeal No.768 of 2010 titled as "Estate Officer, GMADA Vs Kamlesh Rani & Anr.", praying that the impugned order dated 25.03.2010 may be set aside.
15. We have gone through the pleadings of the parties, perused the record of the District Forum and heard the arguments advanced by the learned counsel for the parties.
First Appeal No.707 of 2010 6
16. It was contended on behalf of the appellants that fee for transfer of the said SCF in question was paid, but instead of transferring the plot in question in the name of Vikas Garg, respondent demanded extension fee, compounding fee. No notice prior to the same was given and at the time of transfer in the year 2001, nothing was due and later on, various demands were made which were paid under protest, but the respondent is not liable to recover the same. The District Forum has rightly passed the order, but observed that the appellants have given undertaking in the affidavits Ex.R1 to Ex.R4 to pay the outstanding amount against the property in question. The respondent cannot claim any amount, as nothing was due and the affidavits were only given in case any amount is found to be due and that cannot be made the basis for recovering amount.
17. On behalf of the respondent, it was contended that 'No Due Certificate' was not given to the appellants and only the permission to transfer was given. There was no need to issue any notice u/s 45(1) 45(2) of the Punjab Regional & Town Planning & Development Act, 1995 (in short, "the 1995 Act"), as the schedule of payment was already given and it was well in the notice of the appellants that there is stipulation and the recovery can be made as per the schedule.
18. It was further contended that the Forum has no jurisdiction to go into the correctness of the demand and the composition fee and extension fee and the order is liable to be set aside. It was contended that for the violation committed while constructing the 2nd floor and 3rd floor of the said SCF, the composition fee was demanded to the tune of Rs.62,370/- and there is no illegality in the same and all the dues have been paid without raising any protest and the order under appeal is liable to be set aside on this ground. He has relied upon "HUDA Vs Sunita", (2005) 2 Supreme Court Cases-479 and "Punjab Urban Planning & Development Authority Vs Punjab First Appeal No.707 of 2010 7 Khapatkar Sangh", Revision Petition No.3107 of 2005 decided on 16.11.2006 by the Hon'ble National Commission.
19. We have considered the submissions made by the learned counsel for the parties.
20. Admittedly, the Plot/SCF in question was initially allotted to Smt. Madhu Bhatia and the appellants and Vikas Garg applied for re-allotment of the said Plot/SCF vide application Ex.C1 and at that time, nothing was due and the balance was shown nil. The application is dated 06.11.2001 and another application Ex.C2 was given by the said allottee, seeking permission to transfer the plot and vide letter Ex.C2 (re-exhibited), Smt. Madhu Bhatia was permitted to transfer the said plot/SCF subject to the conditions that remaining installments, compounding fee and other futkal, if any, shall be paid by the appellants, but no amount outstanding against Smt. Madhu Bhatia was mentioned. The letter/memo Ex.C2 is dated 28.09.2001 and instead of specifying the balance, "balance if any", was mentioned. It is proved that till 28.09.2001, the respondent was not sure about any balance amount due towards the first allottee Smt. Madhu Bhatia, but as and when the appellants sought for transfer of the said plot in the name of Vikas Garg, various demands above mentioned were made from time to time. The appellant Kamlesh Rani vide application Ex.C6, sought the information under the RTI Act, regarding the transfer of the said SCF and posed the following questions:-
a) Date of completion of building.
b) Details of violations which were compounded.
c) Date of compromise and the names of persons and authorities who
compromised regarding violations.
d) Reasons for not recovering outstanding amount of Rs.62,370/- as
compounding fees and Rs.12,148/- as non-construction fees from the allottee/person who compromised with PUDA.
e) Period of non-construction for which amount of Rs.12,148/- has been demanded.
First Appeal No.707 of 2010 8
f) Reasons for not mentioning the abovementioned amounts in the permission letter for transfer issued by your vide Memo No.PUDA/2001/25768 dated 28.09.2001.
g) Detail of correspondence made during the year 2001 to 2008 for recovery of this amount, if any.
21. In the reply to the above questions, for points (d) & (e), it was mentioned vide Ex.C7 that as per record, the sewerage connection at the site was given vide letter no.3918-19 dated 19.12.1994 and the construction fee was Rs.22,869/- out of which, Rs.10,721/- were deposited and the remaining amount of Rs.12,148/- was due. Strangely enough, the amount due till 1994 was not recovered from the original allottee and no mention of the same was made at the time of issuing letter Ex.C2 on 28.09.2001 above mentioned. Vide Ex.C8, the remaining questions were answered as per which, compounding policy regarding building by-laws violation came into existence on 06.11.2003. In answer to question 2(a), it was mentioned that the partial completion certificate of ground floor was issued on 19.12.1994. In answer to the questions 2(b), it was mentioned that the back area of second floor and third floor was compounded in the year 2006. In answer to question 2(c), it was answered that date of compromise regarding the compounding fees violations will be considered only as and when compounding fees is deposited to the Estate Officer, GMADA. Compounding fees changes by increase of 10% after every two years.
22. Thus, from the above, it is clear that the strange are the ways of the working of the GMADA and the officials of the GMADA gave vague reply without mentioning as to what were the details of the violations, who compromised and why the outstanding amounts of Rs.62,370/- and Rs.12,148/- were not recovered from the original allottee. Vide Ex.C3, it was written to appellant Smt. Kamlesh Rani that after deposit of Rs.62,370/- only, the ownership can be transferred. The respondent did not bother to explain its own act and to give details of the violations made and who made it and who First Appeal No.707 of 2010 9 compounded the matter, but simply demanded that amount should be paid or else, transfer will not be affected. In such a situation, what an ordinary prudent man can do, is nothing but to deposit the amounts demanded without there being any reason for the payment and the appellants mentioned while depositing the amounts that there is no other alternative, except to deposit the amount demanded. Much reliance has been placed on the affidavits Ex.R1 to Ex.R4 that the appellants and Vikas Garg undertook to pay all the dues as and when demanded, but the respondent forgot that the respondent being a statutory body is performing all its acts under a statute and every official is bound to justify his action for doing anything, whether making a demand or refunding the amount and it has to be explained as to on what grounds, the demand is being made, but we are afraid that the respondent-GMADA has not led any evidence to prove that the demands made were justified in any manner. Even their own record does not justify the demands made and it is settled principle of law that whenever the officials of a statutory body fail to perform their statutory duties or do not follow the procedure laid down, the courts which include this Commission also, can intervene. The illegal demands raised without any basis, if not checked, will lead to chaos and a statutory body like GMADA cannot be permitted to pass orders arbitrarily, without affording an opportunity to the party without explaining the details and the reasons for the demand. The Hon'ble Supreme Court in case 'HUDA Vs Sunita' (supra) as well as the Hon'ble National Commission in the above noted revision petition, have held that the Hon'ble National Commission has no jurisdiction to go into the correctness of the demand of composition fee and extension fee, because in those cases, the facts were different and in latter case, the transferees were given due opportunity to put forward their case and it was clearly mentioned that the non-construction charges were levied under the provisions of the HUDA Act and its rules and regulations but in the present case, as discussed above, no procedure has been followed, no First Appeal No.707 of 2010 10 reason has been given as to on what basis, the demands were made and as such, affidavits of the present case are totally different and distinguishable. Hon'ble Supreme Court has also held that the ratio of the law laid by the Hon'ble Supreme Court does not apply to the facts and circumstances of each case and as discussed above, particularly in this case, the respondent authority has violated all the provisions of its own rules and regulations and there is no record available with the respondent about the levying of the various charges as mentioned above and even no notice or show-cause was given as observed by the District Forum before levying the charges and all the above demands of Rs.12,148/-, 62,370/- and Rs.12,956/- made by the respondent-GMADA are not sustainable in the eyes of law and the same were rightly quashed and there is no illegality in the impugned order as no procedure was followed, as discussed by the District Forum.
23. The undertaking given in the affidavits can be implemented only if the demand made is legal and is strictly as per the rules and regulations of the respondent and unjust demands cannot be made and the amount recovered just on the asking of the officials of the respondent, cannot be justified in any manner, more particularly when the procedure is not followed.
24. Accordingly, the appeal is partly accepted and the impugned order dated 25.03.2010 passed by the District is modified to the extent that the respondent is not entitled to recover the balance amounts as mentioned above on the basis of affidavits Ex.R1 to Ex.R4 given by the appellants. So far as other reliefs are concerned, those have not been challenged and qua those, there is no illegality in the impugned order.
F.A. No.768 of 2010:-
25. In view of the reasons and discussions held in F.A. No.707 of 2010, there is no merit in the appeal i.e. F.A. No.768 of 2010 (Estate Officer, GMADA Vs Kamlesh Rani & Anr.) and the same is dismissed. No order as to costs.
First Appeal No.707 of 2010 11
26. The appellant-GMADA had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued, if any, be remitted by the registry to respondents/complainants, by way of crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to appellant-GMADA.
27. Remaining amount shall be paid by the appellant-GMADA to the respondents/complainants within two months from the receipt of copy of the order.
F.A. No.707 of 2010:-
28. Arguments in both the appeals were heard on 27.04.2011 and the order was reserved. Now the order be communicated to the parties.
29. The appeals could no be decided within the stipulated timeframe due to heavy pendency of Court cases.
30. Copy of this order be placed in F.A. No.768 of 2010 (Estate Officer, GMADA Vs Kamlesh Rani & Anr.) (Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member April 29, 2011.
(Gurmeet Singh)