State Consumer Disputes Redressal Commission
Municipal Corp. vs Meenakshi on 11 March, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 790 of 2011
Date of institution : 16.05.2011
Date of decision : 11.03.2016
Municipal Corporation of Ludhiana, Zone B, Ludhiana through its
Commissioner.
.......Appellant-Opposite Party No.1
Versus
1. Meenakshi Sharma W/o J.P. Sharma, R/o 12335, Street
No.14, Vishvkarma Colony, Ludhiana.
........Respondent No.1/Complainant
2. Department of Local Bodies, Punjab through its Director, Local
Government, Punjab, Chandigarh.
........Respondent No.2/Opposite Party No.2
First Appeal against the order dated
17.1.2011 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Shri Vinod Kumar Gupta, Member
Present:-
For the appellant : Shri Parminder Singh, Advocate. For respondent No.1: Shri Munish Goel, Advocate. For respondent No.2: Ex parte.
JUSTICE GURDEV SINGH, PRESIDENT :
Appellant/Opposite Party No.1 has preferred this appeal against the order dated 17.1.2011 passed by the District Consumer Disputes Redressal Forum, Ludhiana (in short, "District Forum"), vide which the complaint filed by Meenakshi Sharma, respondent No.1/complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") was allowed and the demand of First Appeal No.790 of 2011 2 Rs.14,88,278/- raised by this opposite party was quashed and was directed to refund the building fee of Rs.71,955/- and to pay Rs.25,000/-, as compensation and Rs.4,000/-, as litigation expenses.
2. The complainant alleged, in her complaint, that she is the owner of school plot measuring 4847.56 square yards situated in Ansal Bachittar Enclave, Bhamia Kalan, Ludhiana and the purpose is to establish education centre at the said plot. She approached opposite party No.1 for the purpose of establishing the education centre but was advised to approach the PUDA office (now known as GLADA) on the ground that the area falls under the jurisdiction of that authority; being in the residential zone approved by that authority as per the layout plan. Thereafter she approached the PUDA office for sanctioning of the building plan and paid the requisite charges/fee of Rs.97,960/-, vide receipt No.697/19 dated 11.7.2005 and another amount of Rs.24,000/-, vide receipt No.697/100 dated 23.8.2005. In those receipts, it was disclosed that the payments were received as school development & building fees. Even the building plan for the ground floor was approved by PUDA. After the sanctioning of the Plan on 6.8.2006 she started the construction of the boundary wall upto 10 feet height and a gate was affixed. She stopped the construction work due to shortage of funds. After arranging for the funds, she again started the construction work on 19.12.2009 but was informed by opposite party No.1 that the said area was then under its jurisdiction and she was required to apply for approval of the building plan and she was directed to stop the construction till the sanctioning of the site plan by it. It refused to First Appeal No.790 of 2011 3 accept the building plan sanctioned by PUDA. Under compelling circumstances and heavy pressure she applied for the sanctioning of the building plan for semi basement, ground floor and first floor; for which opposite party No.1 charged Rs.2,58,282/-, vide receipt book No.9604 and Rs.25/-, vide receipt book No. Nil on 30.4.2010, on the ground of building fee etc. She was orally directed to pay Rs.14,88,278/- : against the development charges of Rs.12,42,091/-; compromise fee of Rs.2,24,263/-; and malba fee of Rs.21,924/-. She asked the concerned official to supply the photostat copy of that demand but he refused to issue notice for claiming the same. She was orally told that she could pay that amount even in instalments without protest, if she was interested in getting the building plan sanctioned without further delay. She did not agree to that demand; being illegal and baseless. She even wrote letter against that demand to opposite party No.1 but all in vain. The demand of Rs.12,42,091/-, as development charges is illegal, unlawful, unjustified, unreasonable and is not applicable as she has already paid the development charges to PUDA at the time of applying for the building plan for the ground floor. Opposite party No.1 is not entitled to claim any such charges, as it is performing nothing for the development of the site/area. No work of any kind is pending or required to be performed by the opposite party relating to the site in question. Even the demand of Rs.2,24,263/-, as the compromise fee, is not payable; as she had started the construction of the ground floor after obtaining the building plan sanctioned from PUDA and no unlawful/illegal/excess construction beyond the sanctioned building First Appeal No.790 of 2011 4 plan was carried out by her. The claim of Rs.21,924/-, as malba charges, is also illegal and against law; as no malba or wastage was put on the road and all the construction materials were stored in the site of the school itself. She did not create any obstruction at any time. Opposite party No.1 could have charged the building fee maximum to the tune of Rs.2,09,314/- but it charged the same in excess to the extent of Rs.48,993/- and it is bound to return the same. All these acts/omissions on the part of the opposite parties amount to negligence and deficiency in service as well as adopting of unfair trade practice; which caused her harassment, mental tension and financial loss on account of increase in the cost of construction material and wastage. She prayed for the issuance of following directions to the opposite parties:-
i) to release the building plan without any further delay, which has already been sanctioned and approved under Docket Plan No.8-B dated 30.4.2010;
ii) the illegal demand of Rs.12,42,091/- against the development charges be quashed;
iii) the illegal demand of Rs.2,24,263/- against compromise fee be quashed;
iv) the illegal demand of Rs.21,924/- against malba fee be quashed;
v) to refund the building fee of Rs.71,955/- against the ground floor;
vi) to refund the building fee of Rs.48,993/- charged in excess;First Appeal No.790 of 2011 5
vi) to pay interest at the rate of 12% on all the amounts to be refunded; and
vii) to pay Rs.15,000/-, as cost of litigation.
3. The complaint was contested by opposite party No.1 whereas opposite party No.2 did not appear before the District Forum in-spite of its service and was proceeded against ex parte. Opposite party No.1 in its written reply admitted that the complainant is the owner of the plot/site in dispute and that she was directed to pay Rs.14,88,278/- against development charges, compromise/compounding fee and malba fee. While denying the other allegations made in the complaint, it averred that site in dispute falls within its jurisdiction. The complainant was raising illegal construction on the site in December, 2009 and, as such, its officials directed her to stop the same and to apply for the sanction of the building plans as per rules. When she started the illegal construction, notice under Section 269(1) and 270(1) of the Punjab Municipal Corporation Act, 1976, was issued to her on 4.1.2010 and thereafter by following the rules and regulations and building bye- laws she applied for the sanctioning of the building plan, by depositing Rs.2,58,307/- towards building fee and the building plan was sanctioned, vide B.A. No.8-B dated 30.4.2010. However, thereafter she miserably failed to deposit the requisite charges in the form of development charges, malba fee and compounding fee before collecting the sanctioned site plan. She is liable to deposit the above said amount before collecting the sanctioned plan and that was duly conveyed to her at the time she applied for sanctioning of First Appeal No.790 of 2011 6 the building plan. In these circumstances no notice was required to be served upon her for raising that demand. If any charges had been deposited with PUDA/GLADA, the complainant can recover that amount from that authority by initiating appropriate legal proceedings and that she cannot restrain it from raising the demand of the amount in dispute towards development charges, compounding fee and malba fee. She has no right to raise the construction on the site in dispute without the payment of those amounts. She has suppressed the material facts and has not come to the District Forum with clean hands. She has no cause of action nor any locus-standi to file this complaint. Even as per the allegations made by her in the complaint, about the deposit of the building fee with PUDA, she was required to complete the construction within one year and as per its norms she was required to complete the construction within one year but she failed to complete within two years of the alleged sanctioning of the building plan by PUDA. In these circumstances the charges already deposited by her with PUDA have been seized. The District Forum has no jurisdiction to entertain the complaint and the same is triable only by the Civil Court. The same is not maintainable in the present form. The complainant is estopped by her act and conduct from filing this complaint, which is misuse of the process of law. It prayed for dismissal thereof with costs.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the First Appeal No.790 of 2011 7 same and hearing learned counsel on their behalf allowed the complaint, vide aforesaid order.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. In the course of arguments serious question cropped up as to whether the complainant falls within the definition of 'consumer', as contained in the Act? Learned counsel for the complainant raised the contention that the development charges are being demanded by opposite party No.1 from the complainant, which means that the development is to be carried on at the site and that is the service hired by the complainant, which makes her to fall under the definition of 'consumer'.
7. On the other hand, it has been submitted by the learned counsel for opposite party No.1 that the site in question is meant for school and the running of school is a commercial purpose. Firstly, it cannot be said that the complainant hired the service of opposite party No.1 and even if it is to be held that she hired such a service, the same having been hired for commercial purpose, takes the complainant out of the purview of the definition of 'consumer'. It is not her case that the service was hired by her exclusively for earning her livelihood by means of self-employment. No person can run a school by way of self-employment and is required to employ staff for running the same.
8. The District Forum without first deciding the question as to whether the complainant falls under the definition of 'consumer', proceeded with the merits of the complaint. The complaint was First Appeal No.790 of 2011 8 cognizable by the District Forum only if the complainant was able to prove that she was the 'consumer' as defined in the Act. She was required to prove that she hired the service of opposite party No.1 for a consideration and there was deficiency in such a service. Once she came out with the plea that the service was obtained by her regarding the site, which was meant for the school and the running of the school is a commercial purpose, she was also required to prove that she hired that service exclusively for the purpose of earning her livelihood by means of self-employment; in order to take the benefit of the Explanation appended to the definition of 'consumer'. She neither alleged in her complaint nor produced any evidence for proving that she hired the alleged service of opposite party No.1 exclusively for the purpose of earning her livelihood by means of self-employment. The running of the School is admittedly a commercial purpose. Thus, she does not fall under the definition of the 'consumer'.
9. Even otherwise from the allegations made in the complaint, it cannot be held that she hired the service of opposite party No.1. She applied for the sanctioning of the site plan for raising the construction and never deposited the development charges; which were asked from her. Without the payment of those charges, she cannot contend that she hired the service of opposite party No.1; which was to develop the area in which the site in dispute is located. Without going into all these aspects of the case, the District Forum entertained the complaint and decided the same on merits. It was required to be dismissed on the ground that she does not fall under First Appeal No.790 of 2011 9 the definition of 'consumer' and even had not hired the service of opposite party No.1.
10. Accordingly the appeal is allowed. The order passed by the District Forum is set aside and the complaint filed by the complainant is dismissed without prejudice to her rights to seek the remedy before the appropriate Forum/Civil Court.
11. The sum of Rs.25,000/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellant/opposite party No.1 by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER March 11, 2016 Bansal