State Consumer Disputes Redressal Commission
Improvement Trust, Barnala vs Gurnam Chand on 14 September, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.94 of 2007.
Date of Institution: 17.01.2007.
Date of Decision: 14 .09.2012.
Improvement Trust, Barnala, through its Executive Officer.
.....Appellant.
Versus
1. Gurnam Chand S/o Sh. Tirath Ram, Resident of H.No.B-VI-140,
Mohalla Amarpura, Barnala, Tehsil Barnala, District Sangrur.
...Respondent.
2. Improvement Trust, Barnala, through its Chairman.
...Performa Respondent.
First Appeal against the order dated
27.11.2006 of the District Consumer
Disputes Redressal Forum, Sangrur.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
...................................
Present:- Sh. Rajiv Joshi, Advocate, counsel for the appellant.
Sh. Rajinder Kumar, Advocate, counsel for the respondent.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
Improvement Trust, Barnala, appellant (In short "the appellant") has filed this appeal against the order dated 27.11.2006 passed by the learned District Consumer Disputes Redressal Forum, Sangrur (in short "the District Forum").
2. Facts in brief are that Sh. Gurnam Chand, respondent/complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant and performa respondent, narrating that he is transferee of plot no.197 and plot no.198, having an area of 108 sq.yds. each First Appeal No.94 of 2007 2 in '16 Acre Scheme', vide letters dated 28.02.2001 and 17.09.2001 respectively and has stepped into the shoes of original allottees. As per the Punjab Improvement Trust Act and Rules, the development charges have been charged from all the allottees for the said scheme to provide water, sewerage, electricity, parks, metalled roads etc. at the time of allotment.
3. The respondent applied for the clubbing of said plots, which the appellant clubbed vide letter dated 28.11.2001. Thereafter, the respondent approached the appellant to get demarcation and possession along with basic amenities and for approval of site plan, but the appellant without providing the basic amenities, gave possession and demarcation of the plot and raised an illegal demand of Rs.16,200/- as non-construction fee. The respondent requested the appellant to withdraw the wrong demand, but they forced the respondent to deposit the same, or else the site plan will not be approved and the respondent deposited the said amount under protest and thereafter, the appellant approved the site plan. At the time of approval of the map, the appellant promised to provide basic amenities, but even after the completion of the construction of the house, the appellant has not provided the basic amenities till date. Perusal of the letter dated 28.01.2004 of the appellant makes it clear that the respondent has completed the construction of his house before issuing the said letter and as per that letter, the respondent deposited Rs.22,841/- as composition fee and asked the appellant to provide the basic amenities, but the appellants again raised a wrong and illegal demand of Rs.1,02,384/- as non-construction fee vide letter dated 16.03.2006. The act and conduct of the appellant is against the law and facts and amounts to deficiency in service and unfair trade practice.
4. It was prayed that the appellant and performa respondent may be directed to withdraw the demand of Rs.1,02,384/- raised vide letter dated 16.03.2006 as non-construction fee, to refund Rs.16,200/- and Rs.675/- along with interest @ 18% p.a. from the date of deposit till realization and further to pay interest on the original price of the said plot till giving possession and First Appeal No.94 of 2007 3 demarcation along with basic amenities and to refund the interest charged by the appellant along with interest and to pay Rs.30,000/- as litigation expenses.
5. In the written reply filed on behalf of the appellant and performa respondent, preliminary objections were taken that the complaint is not maintainable and there is no cause of action to file the present complaint. The respondent has not come to the Forum with clean hands and the complaint is liable to be dismissed with special costs.
6. On merits, it was admitted that the respondent is transferee of plot no.197 and plot no.198 and the development charges have been charged from all the allottees under the scheme to provide water, sewerage, parks, metalled roads etc., but no charges were charged for electricity. The clubbing of the plots was also admitted vide letter dated 28.11.2001. The possession of the plot was delivered. The demand of Rs.16,200/- before the approval of map was legal, as the respondent has not completed the construction within time and the respondent violated the approved map and Rs.22,841/- were charged as composition fee. The demand raised by the appellant on account of non-construction fee amounting to Rs.1,02,384/- vide letter dated 16.03.2006 is legal and the respondent is liable to pay the same. All the basic amenities were provided at the spot long time back and the respondent is not entitled to any relief. Other allegations were denied and it was prayed that the complaint may be dismissed with costs.
7. Rejoinder was filed in which averments of the complaint were reiterated and that of the written reply were controverted.
8. Parties led evidence in support of their respective contentions by way of affidavits and documents.
9. 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 basic amenities are yet to be provided to the respondent and, as such, the demand of Rs.1,02,384/- and of Rs.16,200/- First Appeal No.94 of 2007 4 plus Rs.675/- are uncalled for and directed the appellant and performa respondent to provide basic amenities such as roads, street lights, water, electricity etc., withdraw the impugned demand of Rs.1,02,384/- raised vide letter dated 16.03.2006 as non-construction fee, refund Rs.16,200/- plus Rs.675/- along with interest @ 9% p.a. from the date of deposit till realization. Rs.3,000/- were awarded as compensation and Rs.1,000/- as litigation expenses.
10. Aggrieved by the impugned order dated 27.11.2006, the appellant has come up in appeal.
11. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have perused the written arguments filed on behalf of the appellant and the respondent.
12. In written arguments filed on behalf of the appellant, it was submitted that the respondent is not consumer under the Act. The respondent purchased the plots in question from the original allottees and even if there was initially any relationship of consumer and service provider between the appellant and the original allottee, the same stands nullified because of the commercial transaction for profit between the original allottees and the respondent.
13. Averment of the respondent that the basic amenities were not provided is untrue. The District Forum has passed the impugned order on the presumption that no basic amenities have been provided, but the same stands nullified from the document Annexure A-3, supported by the affidavit of Executive Officer which reflects that the basic amenities were provided by 31.12.2000 and the non-construction fee was charged for the period 01.01.2003 to 31.12.2006. As per the terms and conditions of the allotment letter, the construction was to be completed within a period of three years from the date of allotment, as the allotment was subject to the terms and conditions of Punjab Town Improvement Act, 1922 and the Punjab Town Improvement (Utilization of Land and Allotment of Plots) Rules, 1983. Under First Appeal No.94 of 2007 5 the said Act and the Rules, the Govt. has fixed the rate of non-construction fee vide notification dated 6th February, 2001. The non-construction fee has been charged two years after providing basic amenities i.e. from 01.01.2003 and prayed that the appeal may be allowed and the impugned order may be set aside.
14. In the written arguments filed on behalf of the respondent, it was submitted that the development charges have been charged from all the allottees to provide basic amenities. The respondent applied for clubbing of the said plots, but the appellant raised a demand of Rs.16,200/- in lieu of clubbing the plots, which is not genuine and is illegal. Till the basic amenities are provided, the appellant cannot compel the respondent to raise construction. The demand of the appellant of Rs.1,02,384/- on account of non-construction fee is illegal and against the law. No construction can be raised till the basic amenities are provided and prayed that the appeal may be dismissed.
15. We have considered the respective written submissions filed on behalf of the parties and have minutely scrutinized the entire record and material placed on the file.
16. Case of the respondent is that he is transferee of plot no.197 and plot no.198 in '16 Acre Scheme', and he stepped into the shoes of original allottees. The development charges have been charged from the original allottees in order to provide basic amenities, such as water, sewerage, electricity parks, metalled roads etc. The non-construction fee demanded for providing the basic amenities is illegal.
17. On the other hand, the version of the appellant is that the basic amenities were provided way back in the year 2000 and as per the terms and conditions of the allotment letter, the respondent was supposed to complete the construction within three years.
18. Ex.C-2 is the advertisement for allotting plots. Vide letter Ex.C- 3 dated 17.09.2001, plot no.198 in '16 Acre Scheme' was transferred in First Appeal No.94 of 2007 6 favour of the respondent and vide letter Ex.C-4 dated 28.02.2001, plotno.197 was transferred in favour of the respondent. Vide letter Ex.C-6, the Executive Officer of the appellant demanded compound fee of Rs.22,841/- and the same was deposited vide receipt Ex.C-7. Vide letter Ex.C-9, the respondent was asked to deposit non-construction fee along with interest upto 30.06.2005 and the total demand of Rs.1,02,385/- was raised vide letter Ex.C-10 dated 16.03.2006.The respondent also deposited Rs.16,200/- and Rs.675/- vide receipts Ex.C-11 and Ex.C-12.
19. The appellant and performa respondent have also placed on file documents Ex.R-1 to Ex.R-6 along with copy of the order Ex.R-7 and affidavit Ex.R-8. Affidavit Ex.R-8 is on the basis of the written reply and in this, it is mentioned that all the basic amenities have been provided at the spot long time ago, but no date is mentioned as to when the basic amenities were provided. It is well settled that the non-construction fee or other charges cannot be demanded till the basic amenities are provided. It cannot be expected from a prudent person that he will complete the construction without there being any amenity such as water, roads etc. Before the District Forum, the allotment letter or the letter of the Govt., fixing the rates of non- construction fee in the year 2001 as well as the copy of the resolution no.197 dated 21.08.2001 and the affidavit of the Executive Officer regarding the basic amenities, were not filed, but along with the appeal the same have been annexed and on the basis of these documents, it was argued that the construction has to be completed within three years of the allotment and the Govt. of Punjab has fixed the rates of non-construction fee and as per resolution no.197 of 21.08.2001, the basic amenities were provided on 31.12.2000 and after 31.12.2002, the non-construction fee is to be charged and as per the decision taken, the appellant extended the period of construction till 31.12.2001. The affidavit of the Executive Officer is also to the same effect.
First Appeal No.94 of 2007 7
20. These documents have not been produced in evidence before the District Forum, nor any chance to rebut these documents was given to the respondent. Even otherwise, the resolution itself is not sufficient to prove that the basic amenities have been provided at the spot, till some cogent evidence regarding the same is produced to prove that when the basic amenities were provided. The appellant has failed to prove as to when the basic amenities were provided. The appellant has not placed and proved on record any document, showing that the basic amenities were provided on a particular date. Mere attaching of the photostat copies of the allotment letter and the copy of resolution and the affidavit of the E.O., without producing documents to prove that the basic amenities in the area in question were provided from this date, is not sufficient to prove that the basic amenities were provided. Mere delivery of possession without providing the basic amenities in no way entitles the appellant to charge the non-construction fee. Reliance can be placed on 'Delhi Development Authority Vs R.K. Meena", II (2009) CPJ- 191(NC), wherein it was so held.
21. The appellant has not even mentioned in its reply as to when the basic amenities were provided. No specific date has been mentioned, but only a vague reply, mentioning that the basic amenities were provided long back, was filed, which further proves that the basic amenities were not provided or else, there was no hitch for the appellant to specifically plead that the basis amenities were provided from a particular date, but that was not done. The District Forum has relied upon a number of authorities in its order, wherein it has been held that without providing basic amenities, no construction charges or other charges can be demanded. The order of the District Forum is a detailed and speaking order and needs no interference.
22. In view of above discussion, the appeal filed by the appellant being without any merit is dismissed and the impugned order under appeal dated 27.11.2006 is affirmed and upheld. No order as to costs. First Appeal No.94 of 2007 8
23. The appellant had deposited an amount of Rs.13,909/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent no.1/complainant 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.
24. Remaining amount as per order of the District Forum shall be paid by the appellant and performa respondent to respondent no.1/complainant within 45 days of the receipt of copy of the order.
25. The arguments in this appeal were heard on 06.09.2012 and the order was reserved. Now the order be communicated to the parties.
26. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member September 14, 2012.
(Gurmeet S)