State Consumer Disputes Redressal Commission
Punjab Urban Planning & Development ... vs Sh. Surinder Singh, Son Of Gurmail ... on 17 September, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 574 of 2010
Date of institution: 09.04.2010
Date of decision : 17.09.2013
Punjab Urban Planning & Development Authority (PUDA) through its Chief
Administrator, SCO-41, Opposite District Admn. Complex, Jalandhar City.
.....Appellant
Versus
Sh. Surinder Singh, son of Gurmail Singh, resident of H. No. 200, Chotti
Baradari (Part-I), Jalandhar.
.........Respondent
First Appeal against the order dated
26.11.2009 passed by the District Consumer
Disputes Redressal Forum, Jalandhar.
Before:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Sh. Piare Lal Garg, Member Present:-
For the appellant : Sh. Balwinder Singh, Advocate
For the respondent : Sh. Munish Goel, Advocate
PIARE LAL GARG, MEMBER
This is an appeal filed by the appellant/O.P. (hereinafter called "appellant") under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as "the Act") against the order dated 26.11.2009 passed by the Learned District Consumer Disputes Redressal Forum, Jalandhar (in short the "District Forum") vide which the complaint of the respondent /complainant (hereinafter called "respondent") was accepted.
2. Brief facts of the case are that the respondent purchased Plot No. 200 measuring 250 sq. yards situated in Chhoti Baradari, Part No. 1, Jalandhar from its original allottee Smt. Rajni Chabra vide sale deed dated First Appeal No.574 of 2010 2 7.5.2004 and its transfer was effected by the appellant in favour of the respondent on the basis of the Sale Deed on 28.5.2004. The appellant raised a demand of Rs. 66,108/- as extension fee when the respondent approached the appellant for the issuance of partial completion certificate on 15.12.2006, which was highly excessive and arbitrary. The appellant threatened the respondent, if the said amount was not deposited by the respondent then his plot will be resumed and other penalties will also be imposed upon the respondent. The respondent was compelled to deposit the said amount and then the certificate was issued by the appellant to the respondent. The demand of the appellant was against Rule 13 of the Punjab Regional and Town Planning and Development Rules, 1995 as well as law laid down by the Hon'ble High Court of Punjab & Haryana in CWP No. 18986 of 2002 titled as "Tehal Singh Vs. State of Punjab etc.". The complaint was filed by the respondent with the prayer that the appellant may be directed to refund Rs. 65,373/- with interest @ 18% p.a. from the date of deposit till its realization as well as Rs. 20,000/- as compensation for mental harassment, agony and Rs. 50,000/- as punitive damages alongwith Rs. 16,000/- as litigation expenses etc.
3. Upon notice, reply was filed by the appellant taking preliminary objections that the respondent was bound to comply with the terms and conditions of the allotment letter vide which the plot was allotted to the original allottee and subsequently, purchased by the respondent; the respondent was also estopped to file the complaint by his own act and conduct as he had already deposited the extension fee voluntarily and without any protest as per the terms and conditions of the allotment letter, the District Forum had no jurisdiction to try and decide the complaint and the respondent had concealed the material facts from the District Forum. On merits, the purchase of the plot by the respondent from the original allottee was not denied. It was also not denied that the plot was transferred First Appeal No.574 of 2010 3 in the name of the respondent by the appellant. It was also not denied that demand of Rs. 66,108/- was raised by the appellant from the respondent vide letter dated 26.5.2006. It was further pleaded that the demand was raised rightly as non-construction fee at the enhanced rate, which was deposited by the respondent with the appellant without any protest. On deposit of the amount of non-construction fee, the partly completion certificate was issued to the respondent. It was further pleaded that the law quoted by the respondent in his complaint is matter of record and the respondent had mis-interpreted the judgments. The dispute between the parties was not covered under the law quoted by the respondent in the complaint. The remaining averments of the respondent were denied as wrong and prayed for the dismissal of the complaint.
4. The learned District Forum after hearing the learned counsel for the parties and going through the evidence and documents on record, accepted the complaint and the demand of the appellant of Rs. 66108/- dated 26.5.2006 was quashed and the appellant was directed to refund the excess amount alongwith interest @ 7% from the date of deposit till its repayment with compensation of Rs. 5,000/- as costs of litigation within one month from the date of receipt of copy of the order.
5. Aggrieved by the order of the learned District Forum, the appellant has filed the present appeal on the grounds that the judgments relied upon by the respondent in his complaint were not applicable in the present dispute, the demand was made by the appellant as per the Policy of the Government and as per the law laid down by the Hon'ble Punjab & Haryana High Court in case "Parshotam Singh Vs. PUDA", the respondent was liable to pay the extension fee as fixed by the authority from time to time, as such, the order of the District Forum, is against the evidence on record as such liable to be set-aside.
First Appeal No.574 of 2010 4
6. We have gone through the pleadings of the parties, grounds of appeal, perused the record of the learned District Forum and heard the arguments of the counsel for the parties.
7. There is no dispute between the parties that Plot No. 200, measuring 250 sq. yards in Chotti Baradari (Part-I), Jalandhar was allotted to Smt. Rajni Chhabra and sale deed dated 7.5.2004 was executed in her favour by the appellant. It is also admitted case of the parties that the said plot was purchased by the respondent from Smt. Rajni Chhabra and the same was transferred by the appellant in the name of the respondent on 28.5.2004 subject to the provisions of Punjab Regional and Town Planning and Development Act, 1995 and Rules (hereinafter called "Development Rules, 1995") framed thereunder. It is also admitted fact between the parties that the respondent approached the appellant for the grant of partial completion certificate and occupation certificate. The appellant raised a demand of Rs. 66,108/- as extension fee from the respondent vide letter Ex. O-7 dated 26.5.2006, which was deposited by the respondent with the appellant vide bank draft No. 929607 dated 2.5.2007 of Canara Bank and on receipt of the extension fee of Rs. 66,108/-, partial completion certificate was issued by the Estate Officer, Puda, Jalandhar Ex. O-15 on 14.5.2007.
8. The only dispute between the parties is that whether the appellant was entitled to charge Rs. 66,108/- as extension fee as per Rule 13 of Development Rule, 1995 or not?
We have perused Rule 13 of the Punjab Regional & Town Planning and Development Rule, 1995, which is reproduced:-
Rule 13:-
13. Time within which building is to be completed. - (1) The transferred shall complete the building within three years from the date of issue of allotment order or the date of auction, as the case may be, in accordance with these rules.First Appeal No.574 of 2010 5
(2) The time limit specified in sub-rule (i) may be extended by the Estate Office in the manner and on payment of fee specified hereinafter if he is satisfied that the failure to complete the building within the said period was due to a cause beyond the control of the transferee.
(3) Extension in time limit in terms of provisions of sub-rule (2) may be granted by the Estate Officer for a period not exceeding five years on the payment of fee at the following rates, namely:-
(a) in the case of residential plots as under:-
Period of Extension Rate of per square meter Sq yard (i) First year Rs.1.50 1.26 (ii) Second year Rs.2.00 1.68 (iii) Third year Rs.2.50 2.09 (iv) Fourth year Rs.4.50 3.77 (v) Fifth year Rs.6.00 5.02
9. So, the appellant is entitled to charge the extension fee as per Rule 13 of the Punjab Regional & Town Planning and Development Rule, 1995 which was applicable when the plot was purchased by the respondent from original allottee Smt. Rajni Chhabra. It was also held by the Hon'ble National Commission in Revision Petition No. 2568 of 2004 "P.U.D.A. versus Narinder Singh Nanda", decided on 27.5.2009 and the relevant para of the same is reproduced as under:-
"Learned counsel for the petitioner relying on the Judgment of the Hon'ble Supreme Court of India in HUDA V. Sunita case, reported in (2005) 2 SCC 479 in which the Supreme Court upheld the Order passed by this Commission holding that the Consumer Fora did not have the jurisdiction to go into the correctness of the demand made by the Haryana Urban Development Authority (HUDA), contends that the Judgments of the Hon'ble High Court of Punjab and Haryana in Tehal Singh's and Sant Kaur Jabbi's cases (supra) are no longer good law. That since the Consumer Fora did not have the jurisdiction to entertain the complaints, the Appeal by the PUDA has to be accepted and the complaint be ordered to be dismissed. We do not find any substance in this submission. In Sunita's case (supra), HUDA was performing its statutory duties under the provisions of the Haryana Urban Development Authority Act. It cannot be First Appeal No.574 of 2010 6 doubted that if an Order is passed by the Statutory Authority acting under and in accordance with the provisions of the Act and the Rules framed thereunder, the Consumer Foras would not be entitled to interfere but if the Authority is acting contrary to the provisions of the Act or is acting beyond the scope of the Act, then, certainly that would be a deficiency in service. In the present case, PUDA was charging extension fee at enhanced rates which it could not do in view of the two Judgments in Tehal Singh's and Sant Kaur Jabbi's cases (supra), meaning thereby that the PUDA was acting against the provisions of law as it was demanding extension fee under the instructions which had already been struck down by the High Court being ultra vires the provisions of the Act.
A consumer would certainly be entitled to file a complaint under the C.P. Act with a prayer to direct the Authority to act under the provisions of the Act and not beyond it or in any case which has already been struck down by the High Court. High Court of Punjab and Haryana is the highest Court insofar as the State of Punjab is concerned. Until and unless the Judgments passed by the High Court of Punjab and Haryana are not set aside, the administrative instructions issued on 15.01.1998 and the amended instructions issued on 8.10.2001 by the State of Punjab seeking to charge enhanced extension fee, cannot prevail and the PUDA under those instructions, cannot charge the enhanced extension fee. The law declared by the High Court of Punjab and Haryana is binding in the State of Punjab. Special Leave Petitions filed against the said Judgments have already been dismissed by the Supreme Court. Under the instructions issued by the State of Punjab on 15.1.1998 and, subsequently, on 8.10.2001, the PUDA was not entitled to charge enhanced extension fee at enhanced rates. A fee, if any, can be charged only as per the Act and the Rules in terms of the Order passed by the High Court.
We agree with the view taken by the State Commission. The State Commission has rightly dismissed Appeal No. 784 of 2006 filed by the PUDA."
10. In view of the above discussion and law laid down by the State Commission & Hon'ble Supreme Court, we do not find any merit in the appeal and the same is dismissed with costs of Rs. 5000/- to be paid by the appellant to the respondent.
11. The registry is directed to pay Rs. 10,000/- to the respondent and the remaining amount be refunded to the appellant alongwith interest accrued thereon, if any, by way of crossed cheque/bank draft after the expiry of 45 days under intimation to the learned District Forum.
12. The arguments in this appeal were heard on 03.09.2013 and the order was reserved. Now the order be communicated to the parties. First Appeal No.574 of 2010 7
13. 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 17, 2013.
RK First Appeal No.574 of 2010 8 First Appeal No.574 of 2010 9