State Consumer Disputes Redressal Commission
Punjab Urban Development Authority, ... vs Ram Singh S/O Chetan Singh on 24 September, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 931 of 2009
Date of institution: 3.7.2009
Date of Decision : 24.9.2013
1. Punjab Urban Development Authority, Patiala through its Estate
Officer.
2. Estate Officer, Punjab Urban Development Authority, Patiala
.....Appellants/Opposite parties
Versus
Ram Singh S/o Chetan Singh, House No. 240, Type 3, Power Colony,
Ropar.
.....Respondent/Complainant
Argued By:-
For the appellants : Sh. G.S. Arshi, Advocate
For the respondent : Sh. Jaideep Verma, Advocate
2nd Appeal
First Appeal No. 1374 of 2009
Date of institution: 25.9.2009
Ram Singh S/o Chetan Singh, House No. 240, Type-III, Power Colony,
Rupnagar.
.....Appellant/Complainant
Versus
1. Punjab Urban Development Authority, Patiala through its Estate
Officer.
2. Estate Officer, Punjab Urban Development Authority, Patiala
.....Respondents/Opposite Parties
Argued By:-
For the appellant : Sh. Jaideep Verma, Advocate
For the respondents : Sh. G.S. Arshi, Advocate
First Appeal against the order dated
25.11.2008 passed by the District Consumer
Disputes Redressal Forum, Patiala.
Quorum:-
FIRST APPEAL NO. 931 OF 2009 2
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member Shri Jasbir Singh Gill, Member Gurcharan Singh Saran, Presiding Judicial Member This judgment will dispose of two appeals i.e. (1) First Appeal No. 931 of 2009(Punjab Urban Development Authority, Patiala and Another versus Ram Singh) and (2) First Appeal No. 1374 of 2009(Ram Singh versus Punjab Urban Development Authority, Patiala and Another). Both the appeals are cross appeals and against the impugned order dated 25.11.2008 passed by the District Consumer Disputes Redressal Forum, Patiala(in short the "District Forum") vide which the appeal of the complainant was partly accepted.
2. The complaint was filed by the complainant-Ram Singh under Sections 11 to 14 of the Consumer Protection Act, 1986 (in short 'the C.P. Act') on the allegations that the opposite parties allotted a residential plot No. 2467-C, Phase II, Urban Estate, Patiala vide memo No. CLI/P. No. 2467-C, Phase-II/83/14141 dated 17.6.1983. Complainant had been making requests vide letter dated 7.6.1988 for handing over the possession of the allotted plot but it was not delivered on the pretext that the case regarding land acquisition is sub-judice. However, to the utter surprise of the complainant, he received a letter bearing No. 24316 dated 30.12.1988 asking the complainant to deposit Rs. 165/- as extension fee as the complainant had not raised the construction after 3 years from the date of allotment whereas the possession was not delivered FIRST APPEAL NO. 931 OF 2009 3 to the complainant. Then the complainant visited the office of the opposite parties at Chandigarh and handed over letter No. 498 dated 23.1.1989 to hand over the possession of the allotted plot whereas Ops vide letter No. 9498 dated 17.8.2004 again required the complainant to deposit the increased price of the plot of Rs. 5383/-, which was deposited vide bank draft No. 306854 dated 4.9.2004 and after that possession of the plot was delivered to the complainant on 21.9.2004. Then the complainant requested the Ops to give the plinth level, which was replied on 23.9.2004. When the complainant was making efforts to raise construction, Ops again sent letter dated 26.10.2004 asking the complainant to deposit Rs. 47,434/- on account of late construction and penal interest. The complainant again visited OP No. 2 and requested to withdraw this amount but the amount was increased to Rs. 61,629/- vide their letter No. 6817 dated 11.7.2005. Therefore, there is a delay in not raising the construction due to delay on the part of the Ops for not delivering the possession. He had prepared the site plan approved by Architect and was deposited with bank draft No. 976204 dated 5.12.2005 alognwith Rs. 4890/-, which has not been passed by the Ops. The complainant is being harassed by the Ops unnecessarily by demanding various amounts. Hence, the complaint with the direction to the Ops to withdraw letters dated 26.10.2004, 11.7.2005 and 21.6.2006, compensation of Rs. 10,000/- as costs and Rs. 3 lacs as loss suffered by the complainant as escalation of the construction cost.
3. The complaint was contested by the Ops, who filed reply taking preliminary objections that the complainant is not a 'consumer'; FIRST APPEAL NO. 931 OF 2009 4 complaint is not maintainable as the District Forum has no jurisdiction to try and adjudicate the same as per Section 174 of the Punjab Regional & Town Planning & Development Act 1995; the complaint is time barred; that the complainant was given the possession of the plot on 21.9.2004 before that the complainant never submitted any request for release of the possession; the Urban Estate was earlier with the Housing Board and then PUDA; complainant has not come to the Court with clean hands; the complainant has not submitted his site plan and failed to submit the dues pending against him; the demand of the opposite party for deposit of the pending dues by the complainant is very much legal; the allottees were given 3 years for the construction of their plots from the year 1994, therefore, upto 1994 no construction charges have been charged; therefore, the complainant is liable to pay non-construction charges from 1997 onwards; the complainant has no locus-standi to come to the District Forum after getting the possession and that the opposite parties have not indulged in any unfair trade practice. On merits, it was admitted that Plot No. 2467-C, Phase II, Urban Estate, Patiala was allotted to the complainant on 17.6.1983, however, the complainant failed to deposit the full consideration, therefore, the opposite party has right to recover the same alongwith penal interest. The complainant never made any request for the delivery of the possession and ultimately, delivered on 21.9.2004. The complainant was required to deposit a sum of Rs. 165/- vide memo No. 24316 dated 30.12.1998 being penal interest levied for the delay in deposit of the full consideration towards the purchase of the plot. The complainant on their request FIRST APPEAL NO. 931 OF 2009 5 was also supplied the plinth level. The complainant has been asked to pay Rs. 47,434/- on account of late construction and penal interest, which is quite legal and valid but he did not deposit the same and now a sum of Rs. 61.629/- is outstanding against the complainant. There is no default on the part of the Ops whereas the complainant is at fault for not raising the construction within 3 years and the Ops are well within their right to demand non-construction charges and ultimately, it has been 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. C-1, letters of PUDA Ex. C- 2,4, 9, 12, 13, 14 & 16, letters of complainant Ex. C-3,5,6, 8, 10, 11, 15, 17 to 20, copy of allotment letter Ex. C-7. On the other hand, the opposite parties had tendered into evidence affidavit of Parneet Shergill, PCS, EO, PUDA, Patiala Ex. R-1, letter dt. 29.1.88 Ex. R-2, Policy guidelines Ex. R-3, letters Ex. R-4 to R-7, Notification Ex. R-8, Order dated 19.4.1991 Ex. R-9.
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 Plot No. 2467-C, Phase II, Urban Estate, Patiala was allotted to the complainant. The perusal of the letters Ex. C-6 dated 12.9.1987 and Ex. C-20 dated 7.6.1988 show that the complainant had been making request for handing over the possession. Vide letter Ex. C-9, the FIRST APPEAL NO. 931 OF 2009 6 complainant was required to deposit a sum of Rs. 165/- and again vide letters Ex. C-19, Ex. C-11 and Ex. C-5 a request was made to the opposite party to hand over the possession whereas vide letter Ex. C-4 dated 17.8.2004, OP No. 2 required the complainant to deposit the increased price of Rs. 5383/- of the allotted plot, which was deposited by the complainant vide draft No. 306854 dated 4.9.2004 Ex. C-3 and vide certificate dated 21.9.2004 Ex. C-12 certificate of possession was delivered and vide letter dated 23.9.2004 Ex. C-13 plinth level was given. However, then vide letter dated 26.10.2004 OP No. 2 had issued letter asking the complainant to deposit Rs. 47434/- on account of late construction and penal interest of late deposit of the increased amount by the complainant and then vide letter dated 11.7.2005 Ex. C-16, the amount of non- construction charges has been increased to Rs. 61,629/-, therefore, in case the possession of the plot would have been given to the complainant earlier then certainly, he would have raised the construction and accordingly, the complaint was allowed. Then opposite party was directed to withdraw letters dated 26.10.2004 and 11.7.2005 with the direction to the opposite parties to approve the building site plan of the complainant within one month and Rs. 5,000/- was allowed as compensation inclusive of cost of harassment.
7. Aggrieved with the order passed by the learned District Forum, both the opposite parties as well as complainant have filed the present appeals.
8. The Opposite parties have filed appeal No. 931 of 2009 on the grounds that the learned District Forum has wrongly and FIRST APPEAL NO. 931 OF 2009 7 illegally held that the delay has been caused by the appellant by not handing over the allotted plot to the complainant and not giving the plinth level. As and when the respondent approached the appellant for giving the possession, the same has been delivered. The learned District Forum has wrongly placed reliance on the letters Exs. C-6, C- 20, C-10 and C-11 that the respondent has been requesting the appellant for handing over the possession. In case there was any delay on the part of the appellant then the respondent could have approached the Ld. District Forum earlier. Since the respondent did not raise the construction within 3 years of his allotment after coming into force the Rules of 1994, then the respondent is liable to pay the non-construction charges from 1997 onwards. The building site plan was also not passed for non-deposit of the non-construction charges. The Ld. District Forum has also ignored the terms and conditions of the allotment between the parties and accordingly, it has been stated that the order passed by the Ld. District Forum is liable to be set- aside.
9. Whereas in the 2nd Appeal No. 1374 of 2007 the appellant/complainant has filed the appeal on the grounds that the appellant/complainant had requested to pay a sum of Rs. 3 lacs on account of loss suffered by him and just Rs. 5,000/- has been allowed to the complainant alongwith cost, therefore, the amount of compensation be increased.
10. Now coming to the appeal filed by the opposite parties, the main contest between the parties is non-construction charges. It has been stated by the counsel for the appellants that after the FIRST APPEAL NO. 931 OF 2009 8 allotment it was for the respondent/complainant to approach the appellant for possession of the plot as per the terms and conditions of the allotment letter. Allotment letter is Ex. C-7 dated 17.6.1987, where there is no reference that for possession the complainant will approach the opposite parties but certainly in case the plot has been allotted to the complainant he will approach the opposite parties for delivery of possession. However in case we go through the documentary evidence on the record the complainant had been approaching the opposite parties for delivery of its possession. It is clear from letter Ex. C-6 dated 12.9.1987 for delivery of the possession then there are other letters Ex. C-20, Ex. C-11, therefore, it cannot be said that the complainant did not approach the opposite party for delivery of the possession and ultimately, the possession was given on 21.9.2004 and plinth level was given on 23.9.2004. Therefore, when the possession was not delivered to the complainant then how they can charge the non-construction charges from 1997 onwards as alleged by the opposite parties. Moreover, in the allotment letter Ex. C-7, there is no reference that in case the construction is not raised within 3 years the non-construction charges will be levied. It has been further stated that allotment is subject to the terms and conditions of the Punjab Urban Estate (Development and Regulation) Act, 1964 but counsel for the appellants has not been able to show before the Commission that there was any provision to charge non-construction charges if there is no provision under the Act. The NCF cannot be recovered on the basis of Administrative Instructions as held in the judgment "Tehal Singh Vs. State of Punjab" FIRST APPEAL NO. 931 OF 2009 9
CWP No. 13648 of 1998 decided on 4.5.1998 by DB of Hon'ble Punjab and Haryana High Court, "Sant Kaur Pabbi Vs. State of Punjab", CWP No. 18986 of 2001 decided on 31.10.2002 and again in the judgment "Harpreet Singh VS. State of Punjab", 2009 (2) RCR (Civil) 771 it was again reiterated after relying upon the judgment of "Tehal Singh and others' (supra), the charging of NCF on the basis of administrative instructions have been set-aside in the judgment "Improvement Trust, Barnala Vs. Mrs. Shashi Kansal" 1999(2) CLT 651(Pb.), "Nazar Ram Bali Vs. Ludhiana Improvement Trust", 2006(2) CPC 130 (Pb.)" and in case lateron amendment has been made in the rules, the amendment in the Rules cannot operate retrospectively.
On this point, there is judgment of Hon'ble Apex Court in "State of M.P. and ors. Versus Yogendra Shrivastava", wherein it was observed that right and benefits already earned or acquired under the unamended rules cannot be taken away by amending the rules with retrospective effect and same view was held by the Hon'ble High Court in the judgment of "Gurcharan Singh Vs. State of Punjab and others", CWP No. 1452 of 1998.
11. The counsel for the appellants has not been able to show how they are entitled to charge non-construction charges, therefore, when there is no provision in the allotment letter or under the Rules applicable at the time of allotment, therefore, we are of the opinion that the order so passed by the learned District Forum is correct order and the same is hereby affirmed. We do not find any merit in appeal No. 931 of 2009 and the same is dismissed with no order as to costs.
FIRST APPEAL NO. 931 OF 2009 10
12. With regard to appeal No. 1374 of 2009, the only point raised by the counsel for the respondent/complainant is for enhancement of the compensation. Since the demand of non- construction charges has been set-aside by the learned District Forum, therefore, the same is not liable to pay by the complainant. Otherwise on account of complaint, which has to be filed by him a sum of Rs. 5,000/- has already been allowed by the learned District Forum and we do not find any merit for enhancing the amount of compensation and litigation costs assessed by the learned District Forum, therefore, this appeal is also without any merit and the same is dismissed with no order as to costs.
13. The arguments in these appeals were heard on 12.9.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
14. The appellants in F.A. No. 931 of 2009 had deposited an amount of Rs. 2500/- with this Commission at the time of filing the appeal. This amount of Rs. 2500/- with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
15. Remaining amount shall be paid by the appellants to the respondent within 30 days from the receipt of the copy of the order.
16. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
FIRST APPEAL NO. 931 OF 2009 11
17. Copy of this order be placed on First Appeal No. 1374 of 2009(Ram Singh versus Punjab Urban Development Authority, Patiala and Another).
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member September 24, 2013. (Jasbir Singh Gill) as Member