State Consumer Disputes Redressal Commission
Barnala Improvement Trust, Barnala vs Smt. Kanta Devi on 18 May, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.751 of 2007.
Date of Institution: 30.05.2007.
Date of Decision: 18.05.2012.
Barnala Improvement Trust, Barnala through its Executive Officer.
.....Appellant.
Versus
Smt. Kanta Devi W/o Sh. Prem Kumar, Resident of B-XXI-2711, Gali No.3,
Amin Street near M.C. Office, Barnala, Tehsil Barnala, District Sangrur.
...Respondent.
First Appeal against the order dated
02.01.2007 of the District Consumer
Disputes Redressal Forum, Sangrur.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Jasbir Singh Gill, Member.
Present:- Sh. I.S. Ratta, Advocate, counsel for the appellant.
Sh. Preetinder Singh Dhaliwal, Advocate, counsel for the respondent.
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JASBIR SINGH GILL, MEMBER:-
Barnala Improvement Trust, Barnala, appellant (In short "the appellant") has filed this appeal against the order dated 02.01.2007 passed by the learned District Consumer Disputes Redressal Forum, Sangrur (in short "the District Forum").
2. Facts in brief are that Smt. Kanta Devi, respondent/complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), making averments that she was allotted plot no.52, measuring 144 sq.yds. in '16 Acre Scheme' and paid all the installments along with interest. The appellant-Trust charged the development charges for the said scheme and agreed to provide water, sewerage, electricity, parks, metalled roads etc. at the time of allotment. First Appeal No.751 of 2007 2
3. The respondent approached a number of times to the appellant to get the possession and demarcation of the said plot in order to construct the house, but the appellant neither delivered the possession nor the demarcation, nor provided the basic amenities. Seeing the attitude of the appellant, the respondent applied for transfer of the said plot in the name of Nirmal Jindal wife of Abhey Kumar Jindal, but the appellant raised a demand of Rs.21,600/- as non-construction fee. The respondent approached the appellant and objected that the said demand is illegal and against the terms and conditions of the allotment letter, but the appellant did not agree and under compelling circumstances, the respondent deposited Rs.21,600/- under protest and plot was transferred in the name of Smt. Nirmal Jindal vide letter dated 23.12.2005.
4. The respondent approached the appellant a number of times for refund of the non-construction fee, but the same was not refunded and has been illegally utilized by the appellant. The act and conduct of the appellant amounts to deficiency in service and unfair trade practice, and prayed that the appellant be directed to refund of Rs.21,600/- along with interest @ 18% p.a. from the date of deposit till realization, to pay interest on the original price of the said plot till delivery of possession and demarcation along with basic amenities and refund of the interest charged by the appellants along with interest and pay Rs.30,000/- as compensation and litigation expenses.
5. In the reply filed on behalf of the appellant, preliminary objections were taken that the complaint is not maintainable in the present form and the respondent has no locus standi or cause of action to file the complaint. The respondent transferred the plot in the name of Smt. Nirmal Jindal and the complaint is liable to be dismissed. True facts have been concealed regarding the previous complaint no.328 dated 02.06.2004 decided on 08.11.2004 by the District Forum and the complaint is liable to be dismissed on the same ground.
First Appeal No.751 of 2007 3
6. On merits, allotment of the plot in question in favour of the respondent was admitted. It was also admitted that the development charges were charged from all the allottees for the said scheme to provide water, sewerage, parks, metalled roads etc., but nothing was charged for electricity. The respondent earlier filed the complaint which was decided on 08.11.2004 and it was held by the District Forum that the basic amenities were provided at the spot in December, 2001 and till December, 2004, no non-construction fee was payable but even thereafter, the respondent has failed to take possession of the said plot and to construct the building after December, 2004 and the appellants were entitled to charge non-construction fee from the respondent and Rs.21,600/- were charged legally. The said amount was charged according to rules and as per the order passed by the District Forum. The respondent has transferred the said plot in the name of Smt. Nirmal Jindal and the respondent is no longer consumer of the appellant. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
7. Parties led evidence in support of their respective contentions by way of affidavits and documents.
8. 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 respondent was yet to be provided with possession, demarcation along with basic amenities, which were not provided till the transfer of plot in the name of Nirmal Jindal on 23.12.2005, nor there is any document of verificable nature on record to prove so. In such a situation, there was no question of raising construction till the plot was transferred in the name of Nirmal Jindal and charging of Rs.21,600/- is not justified. It was further observed that as per allotment letter Ex.C-3 in Clause-8, it is nowhere provided that in the event of the non-compliance of the clause, the respondent would be liable to pay non-construction fee, and allowed the complaint, directing the appellant to refund the amount of Rs.21,600/- which First Appeal No.751 of 2007 4 was deposited by the respondent on 14.10.2005 on account of non- construction charges, along with interest @ 9% p.a. from 14.10.2005 till realization and to pay Rs.3,000/- as compensation and Rs.1000/- as litigation expenses.
9. Aggrieved by the impugned order dated 02.01.2007, the appellant has come up in appeal.
10. We have gone through the pleadings of the parties and perused the record of the learned District Forum. We have also heard the arguments advanced by the learned counsel for the appellant and perused the written arguments filed on behalf of the respondent.
11. Learned counsel for the appellant contended that earlier, the respondent-Kanta Devi filed a complaint against the appellant and in that case, the District Forum vide order dated 08.11.2004, observed that the basic amenities were provided ion December, 2001 and till December, 2004, no non-construction fee could be charged. It has been argued that after December, 2004 also, the construction was not raised by the respondent and the respondent transferred the plot in favour of Nirmal Jindal, after paying the non-construction fee without any protest and also cannot wriggle out from the earlier orders passed. The non-construction fee was legally charged and the order of the District Forum is liable to be set aside.
12. In the written arguments filed on behalf of the respondent, the pleadings of the complaint were repeated. It was further submitted that the original allottee has deposited the development charges and in Revision Petition No.883 of 2006 titled as 'Improvement Trust, Barnala Vs Urmila Devi', it was held that there is no mention of imposition of non-construction fee in the allotment letter. Basic amenities were not provided till the plot was transferred and, as such, charging of non-construction fee was illegal and the District Forum has rightly passed the order and the appeal may be dismissed.
13. We have considered the oral submissions advanced by the learned counsel for the appellant, written submissions filed on behalf of the First Appeal No.751 of 2007 5 respondent and have thoroughly monitored the entire material placed on the file.
14. The respondent has concealed the fact of filing the complaint earlier which was decided on November, 08, 2004 by the District Forum. In the concluding Para of the order dated 08.11.2004, the District Forum observed that a period of three years from December, 2001, when the required amenities were completed, the complainant (respondent in this case) could not be penalized and the appellant Improvement Trust, Barnala was directed to refund a sum of Rs.26,388/- along with interest and litigation expenses.
15. The respondent cannot file the complaints again and again on similar grounds. Earlier also, she claimed refund of non-construction charges and again in the present complaint, she is seeking refund of non-construction charges on the grounds that the possession and demarcation was not given. As per the finding of the District Forum in the order Ex.C-7, the District Forum has concluded that the basic amenities were provided in December, 2001. Once the basic amenities have been provided in December, 2001, then till December, 2004 she could very well raise the construction and take the possession, as the other allottees did, but the respondent intentionally and deliberately did not do so and further sold the plot in question to Nirmal Jindal and again filed the complaint and the District Forum without taking notice of all these facts and evidence on record, passed the impugned order which is illegal on the face of it and being against the evidence on record, is liable to be set aside.
16. In view of above discussion, the appeal filed by the appellant- Trust is accepted and the impugned order dated 02.01.2007 under appeal passed by the District Forum is set aside. Consequently, the complaint filed by the respondent/complainant is dismissed with special costs of Rs.10,000/- (Rupees Ten Thousand), to be paid by the respondent to the appellant within two months of the receipt of copy of the order.
First Appeal No.751 of 2007 6
17. The appellant had deposited an amount of Rs.14,193/- 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 appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
18. The arguments in this appeal were heard on 09.05.2012 and the order was reserved. Now the order be communicated to the parties.
19. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Jasbir Singh Gill) Member May 18,2012.
SK/(Gurmeet S)