State Consumer Disputes Redressal Commission
Chairman, Ludhiana Improvement Trust, ... vs Rajinder Singh Son Of Piara Singh on 25 September, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.594 of 2011
Date of institution: 5.4.2011
Date of Decision :25.9.2013
1. Chairman, Ludhiana Improvement Trust, Ludhiana.
2. Ludhiana Improvement Trust, Ludhiana through its Executive
Officer.
.....Appellants/Opposite Parties
Versus
Rajinder Singh son of Piara Singh son of Bagga Singh C/o Piara Singh &
Sons, Threeke Chowk, Ferozepur Road, P.O. Baddowal, Tehsil & District
Ludhiana.
.....Respondent/Complainant
Argued By:-
For the appellants : Sh. Sandeep Khunger, Advocate
For the respondent : Sh. M.S. Mohali, Advocate
First Appeal against the order dated 8.12.2010
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member Shri Jasbir Singh Gill, Member Gurcharan Singh Saran, Presiding Judicial Member The appellants/opposite parties (hereinafter called 'the opposite parties') have filed the present appeal against the order dated 8.12.2010 passed by the District Consumer Disputes Redressal Forum, Ludhiana (hereinafter called "the District Forum") in consumer complaint No. 306 dated 21.4.2010 vide which the complaint filed by the complainant was allowed with the direction to the opposite parties to allot one plot in Shaheed Bhagat Singh Nagar FIRST APPEAL NO. 594 OF 2011 2 475 acre scheme to all the legal heirs of deceased Bagga Singh including Piara Singh father of the complainant, Balram Singh, Atma Singh sons and Jaswant Kaur, Basant Kaur and Sant Kaur daughters, who shall hold the plot in equal share within a period of 60 days, if any, fee or charges legally payable under the Rules and Regulations of the LIT or any Law Governing body, shall be legally recoverable from the legal heirs of Bagga Singh before the allotment of the plot, with no order as to costs.
2. The complainant-Rajinder Singh s/o Piara Singh (hereinafter called 'the complainant') has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short 'the C.P. Act') on the allegations that one Bagga Singh grand-father of the complainant was owner of land comprised 2 Kanals 13 Marlas, which was acquired by the opposite parties for carving out a colony i.e. Shaheed Bhagat Singh Nagar 475 acre scheme, Pakhowal Road, Ludhiana, therefore, Bagga Singh was Local Displaced Person (in short 'LDP'). Said Bagga Singh deposited Rs. 1,000/- vide receipt No. 33390 dated 6.5.1982 for allotment of plot as Local Displaced Person alongwith completing all formalities but till date no plot has been allotted. Bagga Singh had died leaving behind his following LRs, namely, Balram Singh, Atma Singh sons and Jaswant Kaur, Basant Kaur and Sant Kaur daughters. When the opposite party did not allot any plot he served a legal notice through his counsel dated 30.8.2007 but without any result. It is also submitted that earlier the complaint was filed under the Act on the same grounds, which was withdrawn from the Court/Forum on 23.12.2009 on the assurance of the FIRST APPEAL NO. 594 OF 2011 3 opposite parties that they would redress his grievance but the opposite parties backed out from their assurance. Hence, the complaint with the direction to the opposite parties to allot the plot under LDP category and pay Rs. 1 lac as compensation.
3. The complaint was contested by the opposite party, who filed written statement taking preliminary objections that the complaint is legally not maintainable as the complaint No. 275 of 2009 was filed against the opposite parties, which was dismissed by the Ld. District Forum vide order dated 23.12.2009 and no permission was sought by the complainant for cause of action; complainant is estopped by his own act and conduct to file the complaint as the complainant never applied for any plot under LDP category even amount of Rs. 1,000/- was not deposited with Form 'A', which is mandatory; complaint is false, frivolous and vexatious to the knowledge of the Ops; barred by limitation, there is no deficiency in service on the part of the opposite parties; the complainant has no locus-standi as he is not LDP and that the complaint is bad for non-joinder of necessary parties, Bagga Singh had left behind him Piara Singh, Atma Singh, Basant Kaur, Jaswant Kaur, Sant Kaur and all the legal heirs of Bagga Singh have not been impleaded as party. On merits, it has been denied that the complainant is consumer under the Act. However, it was admitted that 2 kanal 13 marlas of land belonging to Bagga Singh was acquired for carving out colony Shaheed Bhagat Singh Nagar. However, it has been denied that the complainant is legal heir of Bagga Singh, apart from the complainant there are other legal heirs of Bagga Singh, who are not party, therefore, the complainant is left FIRST APPEAL NO. 594 OF 2011 4 with no right to file this complaint. It has been denied that complainant many times given any representation for the allotment of the plot. It has been denied that the complainant suffered due to non-allotment of the plot by the opposite parties and ultimately, it was stated that there is no merit in the complaint 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 his affidavit Ex. CW-1/A, receipt of deposit Ex. C-1, Will Ex. C-2, copy of award and memo of costs Ex. C-3 & C-4, copy of orders of Hon'ble High Court Ex. C-5 & C-6, application under RTI & Postal order Ex. C-7 & C-8, application of the complainant Ex. C-9, legal notice Ex. C-10, postal receipts Ex. C-11 & 12, application of Piara Singh Ex. C-13, copy of ration card Ex. C-14, application under RTI Ex. C-15, ration card and election card Ex. C-16 & 17, death certificates Ex. C-18 and 19. On the other hand, the opposite parties had tendered into evidence affidavit of Lal Singh Tiwana, E.O. Ex. RW-1.
6. After going through the allegations in the complaint, written statement, evidence and documents on the record, the learned District Forum in its impugned order observed that Piara Singh is one of the legal heir of Bagga Singh, whose property was admittedly acquired by the opposite parties for carving out Shaheed Bhagat Singh Nagar and the complainant has Will of Piara Singh in his favour and the question of Will certainly, is to be inquired into by the Civil Court and as a legal heir of Piara Singh, complainant has a FIRST APPEAL NO. 594 OF 2011 5 right to file a complaint and all legal heirs of Bagga Singh as a Local Displaced Person are entitled to allotment of plot in equal share, accordingly, the complaint of the complainant was allowed as stated above.
7. Feeling aggrieved with the order passed by the learned District Forum, the appellants/opposite parties have filed the present appeal.
8. In the grounds of appeal, it has been contended that the complainant had earlier filed the complaint but the same was withdrawn without taking any permission to file a fresh one, therefore, the 2nd complaint is not maintainable; the complaint is time barred and is not maintainable because land of Bagga Singh was acquired vide notification dated 2.7.1976, award was passed on 4.8.1981, complaint was filed on 29.3.2010 after a gap of 34 years. The application for allotment of the plot was not given within time, therefore, the order of the learned District Forum is liable to be set- aside.
9. We have gone through the written arguments submitted by the counsel for the appellant and we have orally heard the counsel for the respondent.
10. The first point taken by the counsel for the appellant is that earlier also the complaint was filed by the complainant, which was dismissed as withdrawn with no permission to file a fresh one. The order dated 23.12.2009 is as under:-
"Present :- Sh. S.S. Ahuja, Adv. for the complainant.
Sh. S.S. Grewal, Adv. For the O.P. FIRST APPEAL NO. 594 OF 2011 6 Complainant filed an application to withdraw the complaint. Allowed. In view of the application filed by the complainant, the complaint is dismissed as withdrawn.
Sd/-
23.12.09"
11. The 2nd complaint was filed on 21.4.2010. In the complaint it has been stated that the opposite parties had assured to allot the plot but thereafter, they had withdrawn the earlier affidavit filed in the complaint. Moreover, the first complaint filed on 29.3.2010 was not decided on merits. In case first complaint was not decided on merits then there is no legal bar to file the 2nd complaint, therefore, we do not agree with the preposition raised by the counsel for the appellants that the 2nd complaint of the complainant/respondent was not maintainable.
12. The next point raised by the counsel for the appellant is that land was acquired vide notification dated 2.7.1976 and award was passed by the Ld. Addl. Collector on 4.8.1981, therefore, there is a gap of 34 years whereas the complaint should have been filed within two years. However, in the written reply filed by the opposite parties no date of taking possession of the property has been mentioned. In case we taken the date of notification dated 2.7.1976, at that time Punjab Town Improvement (Utilization of Land and Allotment of Plots) Rules of 1975 (in short '1975 Rules) were applicable and Rules of 1983 were not applicable as they came into existence lateron and according to 1975 Rules, the Local Displaced Person has been defined as under:-
FIRST APPEAL NO. 594 OF 2011 7
"2(a) Local Displaced Persons being a person, who is the owner of a property acquired by the Trust for the execution of a Scheme and has been such owner for a continuous period of 2 years immediately before the first publication of the scheme by the Trust under Section 36 of the Punjab Improvement Act, 1922."
13. Therefore, the complainant being legal heir of Bagga Singh was fully competent for allotment of the plot and the stand of the appellant that the complainant did not lodge the claim within three years according to 1983 Rules is not correct because 1983 Rules were not applicable at that time giving the time frame. A sum of Rs. 1,000/- was deposited vide receipt No. 33390 dated 6.5.1982 but no allotment was made to the complainant although allotments were made to the several other persons. One Kulwinder Singh has filed Civil Suit, which was dismissed by the Ld. Trial Court. He filed an appeal, which was decided/accepted and the Improvement Trust was directed to allot a plot of suitable size to the plaintiff within two months. 2nd Appeal against the said order before the Hon'ble High Court, which was dismissed and SLP against the said order was also filed, which was also dismissed on 29.8.2006, therefore, the complainants are entitled for the allotment of plot under the LDP category.
14. It was also held in two civil writ petitions No. 3687 and 3690 of 1994 by the Hon'ble Punjab & Haryana High Court titled as "Kapoor Singh Versus State of Punjab through Secretary to Government" as under:-
"5. Having heard the learned counsel for the parties, I am of the view that the stand taken by the Improvement Trust that the petitioners did not FIRST APPEAL NO. 594 OF 2011 8 deposit the requisite amount of Rs. 500/- with their respective application is factually incorrect. The petitioners along with their respective replication have annexed a photo-copy of the draft of Rs. 500/- which they had deposited with the Improvement Trust on 21.1.1986. Petitioners made a number of representations and also appeared before the Chairman, Improvement Trust in response to public notice but at no stage the petitioners were told that they had not deposited the earnest money of Rs. 500/-. In the legal notice served through their counsel upon the Improvement Trust the petitioners had specifically made a mention of their depositing the earnest money of Rs. 500/- along with applications on 21.1.1986. They had also given particulars of the application which they had made. The Improvement Trust never gave any reply to the legal notice. The action of O.P. No. 2 thus in not allotting two plots to the petitioners is wholly arbitrary and violative of Article 14 of the Constitution, particularly when persons similarly situated have been allotted plots whereas petitioners in this regard have been discriminated.
xxxxx xxxxx xxxxx xxxx
7. Resultantly, the writ petitions are allowed. O.P. No. 2 is directed to allot to the petitioners the plots, measuring 400 sq. yards each on reserve price calculated on the basis of formula prescribed under the 1975 Rules in any of the existing schemes if plots are available, within three months from the date of receipt of copy of this order. In case the plots are not available in the existing scheme, then the petitioners shall be allotted plots in the forthcoming scheme within a period of three months from the date the Scheme comes into operation.
There shall be no order as to costs.
Petition allowed."
15. It was also held in civil writ petition No. 7978 of 1998 titled as "Rajinder Kaur Versus State of Punjab and another" by the Hon'ble Punjab & Haryana High Court as follows:-
"A similar controversy, regarding allotment of a plot, to an owner, whose land was acquired by the Improvement Trust, came up for consideration before a Bench of this Court in Jagdish Rai v. State of Punjab 1994(3) RRR 53. This Court after noting the provisions of 1975 Rules and 1983 Rules, came to a conclusion that the latter Rules cannot be made applicable retrospectively. It was observed as under:-FIRST APPEAL NO. 594 OF 2011 9
"After hearing learned counsel for the parties, I am of the view that 1983 Rules would be applicable to the Schemes, which were framed after the enforcement of the 1983 Rules and all schemes for which land had been acquired earlier then the enforcement of 1983 Rules would be covered by 1975 Rules. The Instructions/decision which were issued by the State Government (Annexure R-1) to which reference has been made above would not be applicable retrospectively to the Scheme for which land had already been acquired and these would be applicable only to those Schemes which were sanctioned after the Instructions were issued."
Again, a similar controversy came up before a learned Single Bench of this Court in the case of Smt. Pritam Kaur Grewal and others v. The Improvement Trust, Ludhiana and others (CWP No. 2190 of 1984, decided on 30.8.2006, in that case also, land was acquired by O.P. No. 2, to execute 2.2. hectares development scheme. Dispute was with regard to allotment of a plot to a local displaced person, who was co-sharer alongwith others, in the land acquired. O.P. No. 2 in that case also, put up a defence that as per provisions of 1983 Rules, all the co-sharers were eligible to get only one plot. The learned Single Bench, on taking note of the provisions of 1975 Rules and 1983 Rules, observed that retrospective effect cannot be given to the latter Rules and that the case of the local displaced persons for allotment of plots would be covered under the 1975 Rules. It was opined as under:-
"Since the Rules of 1983 have not been given retrospective effect, therefore, this contention is not liable to be accepted, since as already discussed above, the case of the petitioners is covered under the Rules of 1975 and even if by virtue of proviso to rule 16 of the Rules 1983, the Rules of 1975 are repealed, even then this saving clause would not help the O.P. in any manner, nor it would stand in the right of the petitioners, which they have clearly acquired under the 1975 Rules and according to the Rule of 1975, the petitioners are entitled to separate plot as per the area of entitlement and it is not open to the O.P. to now contend that the petitioners being joint owners under the scheme, are entitled to only one plot particularly when new Rules of 1983 would not operate in the present case, as the acquisition had taken place in the year 1976."
This dispute was finally set at rest, by a Division Bench of this Court, in Ranjit Kaur v. State of Punjab and another (CWP No. 940 of 2007), decided on 23.7.2008. In that case, allotment of a plot to an owner, FIRST APPEAL NO. 594 OF 2011 10 whose land was acquired by the Improvement Trust, Amritsar in the year 1980, was in question. After analyzing provisions of 1975 Rules and 1983 Rules, it was observed that the petitioner, whose land was acquired in the year 1980, cannot justifiably be excluded from the definition of the local displaced person and cannot be subjected to the embargo which has been created by 1983 Rules. Retrospective effect to 1983 Rules cannot be given. It was also stated thus:-
"The petitioner had applied in the year 1980 and the O.P. had slept over the allotment for a good period of 12 years and if in this interregnum some changes are effected in the policy or the rules, the same could not imply that the petitioner should be put to a disadvantageous position."
In the present case, situation is also not different. Land of the petitioner was acquired in the year 1976. Amount of compensation was disbursed to her along with others, as per her individual share, in the year 1980. On asking of O.P. No. 2, she moved an application to get allotted a plot and also deposited an amount of Rs. 500/- towards earnest money on 19.6.1981. O.P. No. 2 continued to put off her right, on one or the other technical objection, which was not justified.
xxxxxxxxx xxxxxxxxxxx xxxxxx In view of above, these writ petitions are allowed and directions are issued to O.P. No. 2 to allot a plot to the petitioner/petitioners in all these writ petitions, as per their entitlement, under the provisions of 1975 Rules against prevalent (present) reserved price. Plots of the size, as they may be entitled to get, as per those Rules, be sanctioned in their favour either, in the Scheme for which their land was acquired or in the adjoining Scheme, wherever the plot(s) may be available. Needful be done within a period of two months from the date of receipt of a copy of this order. No order as to costs.
4.08.2009 (Jasbir Singh) Judge"
16. In another judgment titled as "Gurmukh Singh versus State of Punjab & Ors.", decided on 27.4.2009, the Hon'ble Punjab and Haryana High Court in paras No. 2, 21, 22, 23 observed as follows:-
"2. The petitioner - Gurmukh Singh, (since deceased and is represented by his legal heirs) seeks quashing of Memo dated 27.12.1984 FIRST APPEAL NO. 594 OF 2011 11 (Annexure P-2) whereby his claim for allotment of a plot in the category of Local Displaced Persons, has been turned down. While questioning the vires of Rule 2(a) and 7(1)(a) and (b) of the Utilization of Allotment of Plots by the Improvement Trust Rules, 1975, the petitioner has also sought a direction to the Improvement Trust, Ropar to allot him a residential plot.
21. The plea taken by the O.P. Trust that the petitioner had applied on 11.8.1981 much after the 1975 Rules came into force and therefore, he can not claim eligibility under the 1964 Rules, has no legal or factual basis. It is not the case of the O.P. that they ever invited applications from the LDPs prior to 1981. The petitioner was given no opportunity prior to 1981 to seek allotment as LDP. So far as the application under the 1975 Rules is concerned, a Photostat copy thereof has been perused. The application is in a Prescribed Format, i.e. Form 'A'. Since by that time the 1975 Rules had come into force, there is a mention of these Rules in para No. 3 of the Prescribed Form 'A'. However, merely by applying in that prescribed format can not estop the petitioner as there can be no estoppel against law. If the petitioner is entitled for determination of his eligibility as LDP under the 1964 Rules, submission of application in a wrong format, does not take away his said legal vested right.
22. Learned counsel for the O.P. Trust has relied upon a judgment of the Supreme Court in Chairman, Ludhiana Improvement Trust v. Kanwaljit Singh & Ors., 2004(2) RCR (Civil) 145: 2004 LAR 5 where in their Lordships have held that exchange of correspondence between the Improvement Trust and the State Government can not be taken as a decision to allot plots. No such plea has been taken by the petitioner in the case in hand. Similarly, reliance placed by learned counsel for the O.P. Trust on a recent judgment of the Apex Court in K.D. Sharma v. Steel Authority of India Ltd. & Ors., 2008 AIR SCW 6654, wherein their Lordships have held that no equitable relief is to be granted if a petitioner approaches the Court suppressing the material facts, is also not attracted to the facts and circumstances of the present case. He has also referred to a recent judgment of the Supreme Court in Swaika Properties (P) Ltd. and Anr. V. State of Rajasthan & Ors., 2008 (2) RCR (Civil) 96: 2008(2) RAJ 82 : [2008) 4 SCC 695 on the question of delay and latches. That was a case where their Lordships have held that no writ petition challenging the acquisition of land after the award had been passed under Section 11 of the Land Acquisition Act, 1894 should be entertained. In the present case, the petitioner has no where challenged the acquisition of his land. Likewise, the principle reiterated by their Lordships in U.P. Jal Nigam & Anr. V. Jaswant Singh & Anr., 2007(1) SCT 224 : [2006) 11 SCC 464 FIRST APPEAL NO. 594 OF 2011 12 that the Court would come to the rescue of a vigilant person only, is not an issue involved in the present case.
23. For the reasons afore-stated, the impugned order dated 27.12.1984 (Annexure P-2) whereby the petitioner's claim for allotment of a residential plot as LDP has been rejected on the solitary ground that he does not fall within the definition of a LDP as defined in Rule 2(a) of the 1975 Rules, can not sustain and is hereby quashed. It is directed that the petitioner's claim for allotment of the residential plot in the category of LDP shall be re-considered by treating him eligible as per the definition of LDP given in Rule 2(b) of the 1964 Rules, however, subject to fulfillment of other eligibility conditions by him. It is further directed that in case no plot is available with the O.P. Trust in the Development Scheme in question, the claim of the petitioner shall be considered for allotment of a plot of equivalent size in some other Scheme."
17. The similar cases were decided by this Commission i.e. complaint No. 12 of 2008 titled as "Jangir Singh Versus State of Punjab through Secretary, Local Government, Punjab, Chandigarh"
with 8 other complaints titled as Consumer Complaint No. 17 of 2008(Sarwan Singh Vs. State of Punjab & anr.); in which identical questions of law and facts were involved vide order dated 28.1.2009 in complaint No. 12 of 2008 titled as "Jangir Singh Vs. State of Punjab". The findings are reproduced:-
"9. ........... Therefore, in the present set of complaints 1964 Rules and 1975 Rules shall be applicable; 1983 rules shall not be applicable as none of the scheme was commenced and executed when the rules of 1983 rules were introduced.
13. In the present set of cases the land of all the complainants was acquired for execution of one or the other development scheme and it is not disputed by the Improvement Trust that the complainants were not the owners or co-owners of the land acquired shorter than two years from the date of publication of section 36 Notification. Therefore, all the complainants are the local displaced persons."FIRST APPEAL NO. 594 OF 2011 13
18. So as per the above proposition, the complainant was entitled for allotment of the plot under LDP category and subsequent rules of 1983, which were not in existence at the time, had no retrospective operation for the allotment of plot to the complainant under Local Displaced Person (LDP) category, therefore, the deposit of the complainant for the allotment of plot is not time barred.
19. The next point raised by the counsel for the appellant is that the complaint filed by the complainant is time barred. After deposit of Rs. 1,000/- for allotment of the plot, the complainant/respondent was expecting for the allotment of the plot and lateron some reminders were also issued by him, which is application Ex. C-13 dated 11.4.2010 and application Ex. C-9 dated 10.1.2007 but no reply was given by the opposite parties that the complainant is not entitled for allotment of the plot, therefore, it will be recurring cause of action to the complainant. The Hon'ble National Commission in case "IFFCO TOKIO GENERAL INSURANCE CO. LTD. & ANR. Versus GOKAK TEXTILES LTD.", iii (2012) CPJ 522 (NC) in para No. 11 held as follows:-
"11. The concept of recurring cause of action has been explained by the Apex Court in Raja Ram Maize Products v. Industrial Court of M.P. and Ors., III (2001) SLT 839=(2001) 4 SCC 492 in the following terms:
"10. The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishn Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 SC 798, it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case. When the workers demanded that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not raise at all. The FIRST APPEAL NO. 594 OF 2011 14 question of demanding to allow to do work even on refusal does not stand to reason."
Facts of the case before us need to be seen in the light of the law laid down in the above decisions. The incidents of breakdown of the power generator in 2005 were reported to the Insurance Company. Surveyors were appointed in the same year and their reports were obtained by the Insurance Company. Together with the grounds of repudiation, these are the 'bundle of facts' due to which the cause of action would reoccur when the claims were repudiated by IFFCO Tokio General Insurance Company on 29.8.2007. Therefore, the period of limitation would not run from the date of loss in 2005. We therefore, have no hesitation in rejecting the argument of learned appellate Counsel that the State Commission should have dismissed the complaints on the ground of limitation. Moreover, acceptance of his argument would also amount to punishing the complainant for the inordinately long delay on the part of the appellant/OP in deciding these claims under the insurance policy."
20. In view of this judgment, the complaint filed by the complainant is within limitation. The counsel for the appellant has relied upon judgment of the Hon'ble Punjab & Haryana High Court "Pawan Kumar Puri and others versus The Improvement Trust, Batala and another", 2003(3) PLR 431 that "filing of appropriate application within three years and deposit of the amount is must." In the above referred judgments, it has been held that 1975 Rules will be applicable and in the 1975 Rules, there was no requirement to move the application otherwise required amount of Rs. 1,000/- was deposited by the complainant vide receipt No. 33390 dated 6.5.1982, therefore, this judgment will not forefeit the claim of the complainant.
21. No other point has been raised.
FIRST APPEAL NO. 594 OF 2011 15
22. Accordingly, the findings recorded by the learned District Forum in the impugned order are correct findings and we do not see any infirmity in the same and affirmed the same.
23. 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.
24. The arguments in this appeal were heard on 13.9.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
25. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member September 25, 2013. (Jasbir Singh Gill) as Member