State Consumer Disputes Redressal Commission
Ludhiana Improvement Trust vs Vijay Lakshmi on 8 June, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.953 of 2016
Date of Institution : 16.12.2016
Order Reserved on: 05.06.2017
Date of Decision : 08.06.2017
Ludhiana Improvement Trust, Feroze Gandhi Market, Ludhiana,
through its Chairman.
.....Appellant/opposite party
Versus
Vijay Lakshmi W/o Joginder Pal Gupta, R/o 78-D, Kitchlu Nagar,
Ludhiana.
.....Respondentss/complainant
First Appeal against order dated
27.09.2016 passed by the District
Consumer Disputes Redressal Forum,
Ludhiana.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Ms. Kavita Arora, Advocate
For the respondent : Sh. Munish Geol, Advocate
............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal is to order dated 27.09.2016 of District Consumer Disputes Redressal Forum Ludhiana (in short the 'District Forum) by appellant, vide which, the complaint of the complainant was allowed. The appellant of this appeal is opposite First Appeal No.953 of 2016 2 party in the complaint before the District Forum and respondents of this appeal are the complainants therein and they be referred as such hereinafter for the sake of convenience.
2. Vijay Lakshmi complainant filed complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OP on the averments that plot No.78-D measuring 156.66 sq. yards in Dr. Kitchlu Nagar (100 acre scheme) was allotted to her by OP after completion of formalities by her in the year 1976. The complainant got the plan sanctioned from concerned authorities and constructed the house and also installed the electricity connection in the said premises. It was further averred that before execution of registered sale deed in 1984, she complied with all the formalities and only thereafter, the above said plot was registered in her name, as per conditions of allotment letter. It was further submitted that OP charged Rs.910/- vide receipt No.57054 dated 28.07.1983, being compounding charges. She applied for No Due Certificate (NDC) from OP, vide diary No.2933 dated 19.08.2014. In reply to that, OP issued letter dated 08.09.2014 bearing memo No.9408. Vide that letter, OP instead of issuance of NDC, demanded certain documents like initial electricity bill, sewerage bills, completion plan etc. It was further pleaded that she had already supplied all the documents, as demanded by OP. She again filed one application with OP for issuance of NDC, in response to which, OP asked her to pay Rs.42,959/-, being second instalment amount against enhanced compensation. Aggrieved by above referred demand of OP, she asked OP reason for raising such demand, wherefrom, OP disclosed First Appeal No.953 of 2016 3 that as per decision rendered by Hon'ble High Court of Punjab and Haryana in CWP 1599 of 1986 decided on 02.05.2006, the enhancement in the cost of the land had taken place because enhanced compensation has to be paid to the land owners in lieu of their acquired land, where 'Kitchlu Nagar' area has been developed by OP. The complainant alleged unfair trade practice on the part of OP. It was further averred that vide memo No.5/384/98/2ss2/1856 dated 10/02/1999, Punjab Government informed the allottees through LIT of Kitchlu Nagar, that they were liable to pay Rs.34/- as a consequence of enhancement of compensation order by Land Acquisition Tribunal in 1985. Besides, interest on the above said amount of Rs.34/- was also payable from 1986 to 1999. At that time, it was informed that Rs.98/- per sq. yard, in lieu of enhancement of compensation, was payable to the land owners, whose land was acquired. Earlier, Land Acquisition Tribunal fixed rate at Rs.39/- for Block A, but Rs.31/- for Block B and same was charged by OP. Amount of Rs.15,666/- was duly deposited on 04.03.1999 by the complainant with OP. She was enjoying the peaceful possession of the allotted area, since 1999 without any notice from the Hon'ble High Court or from OP qua the pendency of any dispute qua enhancement of the payable compensation to the land owners. Complainant after paying Rs.15,666/- remained under impression, as if nothing else is left due against her. It was further pleaded that R.P. Gosain, President of Dr.Kitchlu Nagar Welfare Association informed her that the Hon'ble High Court had increased the rate of compensation from Rs.31/- to Rs.39/- i.e.Rs.8/- per sq. yard for block First Appeal No.953 of 2016 4 B only. OP issued notice in newspapers dated 12.12.2012 for calling upon the allottees of Kitchlu Nagar to pay enhanced amount of compensation of Rs.199/- per sq. yards. After going through the calculation of the said demand supplied by the President of Kitchlu Nagar Welfare Association, it appeared as if the demand put forth by OP through memo in question was based on imaginary and wrong calculations. Complainant got knowledge about the notice qua second enhancement of the price through President of Kitchlu Nagar Welfare Association on 25.8.2014 and from demand put forth by OP in September, 2014. OP instead of claiming enhancement of Rs.8/-, claimed the enhancement of Rs.13/-, which is alleged to be an unfair trade practice. Demand of Rs.42,959/- was put forth after making calculation of Rs.199/-. The demand raised by OP is alleged to be arbitrary and illegal, being put forth without assigning any cogent reason for it. The rate stood enhanced from Rs.99.32P to 199/- by calculating the interest upto 30.04.2009. The complainant submitted representation to OP qua wrong calculation by claiming that she was ready to deposit sum of Rs.64.20 per square yard, but OP refused it by claiming that amount chargeable was Rs.199/- per square yard. Op pressurized the complainant to deposit the amount without any protest, but the same was not acceptable to the complainant. Complainant is not liable to pay any interest because the delay in accepting the amount after orders passed by the Hon'ble High Court has been caused by OP only. Besides, demand put forth by OP in 2014 is time barred as per law, because OP did not claim the amount within 3 years from the orders dated 02.05.2006 passed by First Appeal No.953 of 2016 5 the Hon'ble High Court of Punjab and Haryana. Complainant has not received any notice in writing from the OP calling upon her to pay the enhanced price as per orders of Hon'ble High Court. OP was required to inform every allottee in person in writing about its mind of charging the amount of compensation in pursuance of the resolution dated 21.05.2009. Such notice was not issued qua enhanced amount of compensation by OP. Chairman of OP issued directions for publication of public notice. Directions were also issued for initiating disciplinary action against the erring officials for not sending notices to the allottees. No action was even taken against the erring officials by OP. Rather, allottees were burdened with interest in an illegal manner only. She alleged unfair trade practice and deficiency in service on the part of OP. She prayed for quashing of illegal demand of Rs.42,959/- put forth through memo dated 25.11.2014 by OP. She further prayed for compensation of Rs.25,000/- for mental harassment and litigation expenses of Rs.5500/-.
3. Upon notice, OP appeared and filed written reply by raising preliminary objections that complaint is not maintainable in the present form; complaint is barred by limitation; complainant is not a consumer. It is further averred that land of 100 acre of Dr.Kitchlu Nagar scheme was notified under Section 36 of The Punjab Town Improvement Act, 1922 on 01.08.1972, but notification u/s 42 of The Punjab Town Improvement Act, 1922 was issued on 18.09.1973 and thereafter, award of the scheme was announced on 20.09.1974 by the Land Acquisition Collector. The said Collector assessed the rate at Rs.113/- for belt A, and Rs.75/- for block B in addition to 15% First Appeal No.953 of 2016 6 solatium. In award dated 12.2.1986 passed by the Land Acquisition Tribunal, LIT Ludhiana, the amount was enhanced to Rs.39/- per square yard of the land, which was adjoining to Rajpura Road and Udham Singh Nagar, Ludhiana upto 16 Gathay, but in the block B, the rate was enhanced to Rs.26/- per square yard plus solatium @30% and interest @9% per annum for one year from the date of taking possession and 15% thereafter. However, the Hon'ble High Court of Punjab & Haryana, vide judgment dated 02.05.2006 passed in CWP filed by Sh.Isher Singh etc, assessed the flat rate of Rs.39/- per square yard for whole of the land plus other benefits such as solatium and interest. The rate fixed earlier was @Rs.31/- per square yard, but same was enhanced to Rs.39/- per square yard. Demand of the amount was raised by OP as per the decision of The Hon'ble High Court of Punjab and Haryana and as such, there is no question of adoption of unfair trade practice or rendering any deficient/negligent services by OP. Demand of enhanced amount was raised as per the terms and conditions of the allotment letter/sale agreement/sale deed. Allottee is bound to pay the enhanced amount of compensation, as per terms of resolution No.4 dated 21.05.2009, vide which, recovery from the allottee of the plot in question was ordered @Rs.199/- per square yard. In pursuance of that resolution, allottees including the complainant were asked to deposit the enhanced amount of compensation. The calculation by OP was alleged to be correct. OP issued the public notice to the allottees as well through newspapers dated 12.12.2012. Complainant instead of depositing the amount filed the present First Appeal No.953 of 2016 7 complaint on false averments. Rather, the complainant is liable to pay the amount along with interest as per the rules and regulations of the Trust. The enhanced amount has to be calculated for whole area of the scheme and the same is recoverable from the allottees, so as to make the payment to the land owners for enhanced compensation, whose land has been acquired. The other averments of the complainant were denied by OP contending that public notices through the newspapers have already been issued to all concerned and as such, NDC can only be issued on payment of full amount and completion of all the formalities to boot. OP prayed for dismissal of the complaint.
4. The complainant tendered in evidence affidavit Ex.CA-1 along with documents Ex.C-1 to Ex.C-20 and closed the evidence. As against it, OP tendered in evidence affidavit Ex.RA of Sh.Harinder Singh Chahal, E.O. of Ludhiana Improvement Trust, Ludhiana along with document Ex.R-1 closed the evidence. On conclusion of evidence and arguments, the District Forum allowed the complaint of the complainant by quashing the memo in question with the observations that OP will have the right to re-fix the enhanced chargeable amount per square yard by keeping in view the enhanced compensation amount awarded by Land Acquisition Tribunal as well as by the Hon'ble Punjab and Haryana High Court, Chandigarh, besides, OP will work out the details in writing for adjudging as to how much enhanced amount per square yard is recoverable. OP will work out the details of more recoverable amount as held by lower Forum within 60 days from the date of First Appeal No.953 of 2016 8 receipt of copy of this order. After working out these details, copy of those details would be sent by the OP to the complainant for giving her right to submit the written reply. Final re-fixation of enhanced amount will be ordered after hearing the complainant. However, before effecting recovery on the basis of final adjudged enhanced recoverable amount by OP, a notice in writing will have to be issued by OP to the complainant, so that she may avail appropriate remedy before the appropriate Forum. The District Forum awarded compensation for mental harassment of Rs.10,000/-(Rupees Ten thousand only) and litigation expenses of Rs.5000/-(Rupees Five Thousand only) to the complainant. Aggrieved by above order, the OP now appellant has directed this appeal against the same.
5. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The appellant challenged the validity of the order passed by the District Forum Ludhiana by filing this appeal. The order of the District Forum is with regard to refixing the enhanced chargeable amount per square yard, keeping in view the enhanced compensation as awarded by the Land Acquisition Tribunal as well as by the Hon'ble Punjab and Haryana High Court, Chandigarh and thereafter to send it to complainant for giving right to submit reply. The order of the District Forum has been challenged in this appeal by the appellant. It was submitted that no prior opportunity of hearing is required to be given to the allottees and allottees can only ascertain the correctness of price by inspecting the record. It was submitted by counsel for the appellant that the District Forum has not properly First Appeal No.953 of 2016 9 appreciated the controversy involved in this case. It was further urged by counsel for the appellant that as per agreement to sell dated 09.11.1984, the allottee is bound to pay the enhanced amount of compensation, if any ordered by the Tribunal or the High Court. The order passed by the District Forum with regard to giving an opportunity of hearing to complainant/allottee has been challenged in this appeal. As per clause 14 of the terms and conditions of the memorandum of agreement dated 15.12.1980/28.01.1981, the dispute has to be referred to arbitration before the Secretary Local Government Punjab at Chandigarh and hence jurisdiction of Consumer Forum is excluded. This submission of counsel for the appellant is rejected, in view of Section 3 of C.P. Act, 1986 conferring the additional remedy on the Consumer Forum. As per condition no.16 of the terms and conditions of memorandum of agreement dated 15.12.1980/28.01.1981, allottee has given an undertaking to pay the enhanced amount of compensation under Section 18 of Land Acquisition Act without issuance of any notice to him. It was further submitted that fixation of price of the plot is within the domain of Improvement Trust and Court cannot substitute its own opinion and order of the District Forum is, thus, erroneous. On the other hand, counsel for the respondent in this appeal contended that the District forum appreciated the controversy and evidence properly and then passed the order under challenge in this appeal.
6. Evidence on the record has been examined by us. The controversy in this case is with regard to enhancement of the price due to enhancement of compensation by Land Acquisition Tribunal First Appeal No.953 of 2016 10 or the High Court. We have to settle this controversy as to whether the allottee is required to be heard at the time of fixing the price of allotted plot again or not due to enhanced compensation to land owners. Affidavit of complainant is Ex.CA-1 on the record. It is reiteration of her pleadings on oath in this case. Ex.C-1 is the agreement to sell on the record. Ex.C-2 is copy of request slip for providing no due certificate. Ex.C-3 to C-5 are the letters from of Executive Officer of OP to Vijay Kumar Sharda. Ex.C-7 is the copy of letter from R.P. Gosain to residents of Kitchlu Nagar regarding enhancement of price. We have also considered the other documents relied upon by complainant from Ex.C-8 to C-20 on the record. The OP mainly relied upon affidavit of Harinder Singh, E.O. of OP Ex.R-A on the record. This affidavit is reiteration of the pleas contained in written reply of OP. Ex.R-1 is the copy of public notice published in the newspaper by OP.
7. We have come to this conclusion from appraisal of above referred evidence on the record that enhancement of compensation of the acquired land has been ordered by the Land Acquisition Tribunal and thereafter by the Hon'ble High Court in this case to land owners. The allottees are bound to pay the enhanced amount of the allotted plot due to enhancement of compensation to the oustee land owners, as per the order of Tribunal or the High Court. This point is, thus, decided by holding that OP is justified to refix the price of the allotted plot on account of enhancement of compensation, as ordered by the Land Acquisition Tribunal and the Hon'ble High Court. Keeping in view the enhanced compensation awarded by First Appeal No.953 of 2016 11 Land Acquisition Tribunal and the Hon'ble High Court, the District Forum passed the order that OP will workout the detail of more recoverable amount within 60 days from the date of receipt of copy of order and the judgment would be sent by OP to complainant and complainant can file representation thereto and final refixation of enhanced amount will be carried out by OP after hearing the complainant. The District Forum passed the order of issuing notice to the complainant for refixing the price of the land, as per the order of the enhancement of complainant to oustee land owners passed by the Courts. The OP is entitled to enhance the price of allotted land in case of enhancement of compensation under Land Acquisition Act. The counsel for the OP now appellant referred to law laid down by our own High Court passed in Civil Writ Petition No. 10462 of 1988, decided on 03.02.2000 titled as "Jan Kalyan Simiti (Regd.) Panipat and others Vs. Housing Board Haryana and others"
2003(2)RCR (Civil)-411, wherein it has been held that where the price of land is enhanced by the Courts awarding enhanced compensation to land owners, the payment is consequential from the allottees of plots. It does not require giving any hearing to the allottee for refixing of price of plots. The condition is applicable only where the Board itself wants to raise additional demand. Allottees are bound to pay the enhanced price on account of enhancement of compensation by the Court to land owners. As per this judgment of our own Hon'ble High Court, no such notice is required to be given to allottees on account of enhancement of land price of the allotted area by the Land Acquisition Tribunal. In view of this judgment of our First Appeal No.953 of 2016 12 own High Court, the order passed by the District Forum with regard to issue of notice to complainant and hear her at the time of refixing the price is not sustainable and is reversed in this appeal.
8. As a result of our above discussions, we accept the appeal of the appellant and set aside the order of the District Forum Ludhiana under challenge in this appeal. Resultantly, the complaint of the complainant stands dismissed.
9. The appellant had deposited an amount of Rs.7500/- in this Commission at the time of filing the appeal. This amount, alongwith interest, which accrued thereon, if any, be remitted by the registry to the appellant of this appeal by way of crossed cheques/demand drafts after expiry of period of 45 days from this order.
10. Arguments in this appeal were heard on 05.06.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER June 08, 2017 MM