State Consumer Disputes Redressal Commission
Harpal Singh vs Improvement Trust Barnala on 17 February, 2021
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.529 of 2019
Date of institution : 14.08.2019
Reserved On : 10.02.2021
Date of decision : 17.02.2021
Harpal Singh son of Sh. Bikkar Singh alias Teja Singh son of Sh. Ralla
Singh, through his General Power of Attorney, Ranjit Singh son of Sh.
Harchand Singh, Resident of House No.21, Shaheed Jita Singh
Nagar, Barnala, District Barnala.
....Appellant/Complainant
Versus
Improvement Trust, Barnala, through its Executive Engineer.
....Respondent/Opposite Party
First Appeal against the order dated
16.07.2019 of the District Consumer
Disputes Redressal Forum (now,
"Commission") Barnala.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
Mrs. Kiran Sibal, Member.
1) Whether Reporters of the Newspapers
may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported
in the Digest? Yes/No
Argued By:-
For the appellant : Sh. Tribhawan Singla, Advocate
For the respondent : Sh. Sandeep Khunger, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT
The instant appeal has been filed by the
appellant/complainant against the order dated 16.07.2019 passed by District Consumer Disputes Redressal Forum (now, "Commission"), Barnala (in short, "the District Commission"), whereby the complaint First Appeal No.529 of 2019 2 filed by him, under Section 12 of the Consumer Protection Act, 1986, through his General Power of Attorney, Sh. Ranjit Singh, against the respondent/opposite party was dismissed.
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission. Facts of the Complaint
3. Brief facts, as averred in the complaint, are that the complainant, who is now settled in Canada, had purchased plot No.12 measuring 304 sq.yds. situated in the scheme launched by the opposite party, under the name and style of "Shaheed Jita Singh Shopping Centre (6.3 Acre Scheme)" Barnala. That plot was transferred in his name, vide letter No.ITB-92/564 dated 11.09.1992. The complainant applied for approval of map/site plan for raising construction on the said plot on 27.07.1994, along with transfer letter and site plan. The site plan was approved by the opposite party, vide letter No.ITB/94/75 dated 19.09.1994. The complainant also deposited extra construction fee amounting to ₹15,325/- in the office of opposite party, vide receipt No.4550 dated 19.08.1994. Vide letter No.290 dated 21.02.2013, the opposite party acknowledged that the property has been constructed at the spot, but it refused to transfer the property in the name of complainant. The complainant, vide letter dated 23.05.2013, informed the opposite party that requisite site plan had been passed and he had completed the construction in the year 1996/97 and he also got released water and sewerage connections on First Appeal No.529 of 2019 3 20.07.1998. Copies of the consumption bills and receipts were also sent to the opposite party, vide postal receipt No.ARP223714297 dated 23.05.2013. The original receipts and sewerage charges bills are in possession of complainant. The complainant also submitted the Completion Report of the house, duly prepared by Bansal Associates at the spot on 09.09.2013, through postal receipt dated 23.10.2013. Thereafter, the complainant has been running from pillar to post for registration of Sale Deed of the plot, but the opposite party has been harassing him, intentionally. It is further pleaded that the Punjab Government, vide Notification No.GSR26/CASA2/ 1899/S.75/ Admn(8)/2015 dated 08.04.2015 (which was duly published in Government Gazette dated 12.04.2015), keeping in view the interest of the purchasers, authorized to charge the stamp duty on the old rates, existing at the time of first allotment of the plot/house and not as per the existing rates. The State of Punjab had further extended the date of the said concession of registration of Sale Deed on the actual price of the allotted plot till 30.08.2015. However, the opposite party failed to execute the Sale Deed in favour of the complainant within the said period. Earlier, the complainant had filed a consumer complaint (Complaint No. 367/2015) before the District Commission; which was decided on 21.06.2016, directing him to get the electricity connection installed in the said building. Accordingly, the complainant got the electric connection/meter installed in the house and informed the opposite party in this regard. He even offered to inspect the house, First Appeal No.529 of 2019 4 vide letter dated 13.10.2016. However, the opposite party raised irrelevant and vague objections and failed to execute the Sale Deed. Legal notice dated 15.07.2015 was also sent to the opposite party, but to no effect. Alleging deficiency in service and unfair trade practice on the part of the opposite party, the complainant approached the District Commission, seeking following directions to it:
i) to get the Sale Deed of the plot, in question, registered in his favour;
ii) to pay ₹50,000/- on account of loss incurred by him due to non-
availability of concession regarding registration charges of Sale Deed;
iii) to pay ₹10,000/-, as compensation for the mental agony and harassment suffered by the complainant;
iv) to pay ₹10,000/- as litigation expenses; and
v) to pay interest @ 12% per annum from 15.07.2015 when the complainant had sent legal notice to the opposite party. Defence of the Opposite Parties
4. Upon notice, the opposite party appeared before the District Commission and filed reply to the complaint, raising legal objections that the complainant had no locus standi and cause of action to file the complaint, as he failed to deposit non-construction charges. An amount of ₹20,84,185/- was due from the complainant towards non-construction charges till the date of filing of the reply. The District Commission had no pecuniary jurisdiction to entertain and decide the complaint, as the due amount exceeded ₹20 lac. On merits, facts about purchase/transfer of the plot, in question, sanctioning of site plan and deposit of extra construction charges of ₹15,325/- by the First Appeal No.529 of 2019 5 complainant, vide receipt dated 19.08.1994, are not disputed. Installation of water/sewerage/electric connections is also not disputed. It is pleaded that a written demand was raised against the complainant for payment of non-construction charges within the prescribed period. However, instead of depositing the due amount, he has been stressing for getting the Sale Deed registered; which is against rules. After receipt of information regarding installation of electric connection, the opposite party sent letter dated 09.12.2016, raising demand of ₹19,78,938/- towards non-construction fee, but the complainant failed to deposit the same. The opposite party is ready and willing to execute the Sale Deed of the plot in favour of the complainant, subject to payment of due amount. It is further pleaded that the complainant is not a 'consumer', as per provisions of the Act, as the dispute raised in the complaint related to landed property, which is not covered under the provisions of the Act. The complainant failed to raise construction on the plot within the prescribed period. As such, the complaint is time barred. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed.
Evidence of the Parties and Finding of the District Commission
5. The complainant, in support of his claim, tendered into evidence affidavit of his General Power of Attorney, Ranjit Singh, Ex.CW1/A, along with copies of documents i.e. General Power of Attorney Ex.C-1, letter dated 11.09.1992 Ex.C-2, letter dated First Appeal No.529 of 2019 6 19.09.1994 Ex.C-3, extra construction fee receipt dated 19.08.1994 Ex.C-4, letter dated 21.02.2013 Ex.C-5, application dated 23.05.2013 Ex.C-6, completion report Ex.C-7, postal receipt Ex.C-8, notification dated 12.04.2015 Ex.C-9, notification dated 30.08.2015 Ex.C-10, order dated 21.06.2016 Ex.C-11, letter dated 13.10.2016 Ex.C-12, receipt Ex.C-13, list of vacant plots Ex.C-14, application dated 29.07.2013 Ex.C-15, postal receipt Ex.C-16, receipt of new connection order Ex.C- 17, electricity bills receipts Ex.C-18 & Ex.C-19, application from Improvement Trust Ex.C-20 & Ex.C-21, application dated 27.07.1994 Ex.C-22, receipts issued by Sewerage Board Ex.C-23 to Ex.C-25 and receipt dated 20.07.1998 Ex.C-26. The opposite party, in support of its defence, tendered into evidence affidavit of Ravinder Kumar, Executive Officer Ex.OP-1 only. The District Commission, after going through the record and hearing learned counsel for the parties, dismissed the complaint, vide impugned order. Hence, this appeal. Contentions of the Parties
6. We have heard learned counsel for the parties and have carefully gone through the written arguments submitted on their behalf and records of the case.
7. The written arguments submitted on behalf of the appellant/complainant are on the lines of averments made in the complaint and grounds of appeal. The sum and substance of oral and written arguments is that the plot, in question, was transferred in the name of the complainant on 11.09.1992 and the site plan for raising First Appeal No.529 of 2019 7 construction was approved on 19.09.1994. Thereafter, the complainant had raised construction on the plot, in question, and also deposited extra construction fee of ₹15,325/-, vide receipt dated 19.08.1994, Ex.C-4. The water and sewerage connection were got installed in the said property on 20.07.1998. Thereafter, the complainant had migrated to Canada and his general power of attorney is taking care of the said property. The electric connection bearing No.48/0795F was also installed on 20.01.1999; which was later on disconnected. It is further contended that, vide Notification No.GSR26/CASA2/1899/S.75/ Admn.(8)/2015 dated 08.04.2015, published in Government Gazette dated 12.04.2015, the State of Punjab approved to charge the stamp duty on the old rates existing at the time of first allotment of the plot/house and not as per the existing rates. The date of the said concession of registration of Sale Deed on the actual price of the allotted plot was further extended till 30.08.2015. However, the opposite party failed to execute the Sale Deed of the said plot in the name of the complainant within the statutory period. The complainant filed Complaint No.367 of 2015 before the District Commission, which was decided on 21.06.2016, directing him to first get the NOC about installation of the electricity connection. After taking the same, the complainant was again forced to file Consumer Complaint No.9 of 2017, in which the opposite party raised the demand of non- construction charges of ₹20,,84,185/- for the first time. That complaint was dismissed on the ground of pecuniary jurisdiction. However, in First Appeal No.529 of 2019 8 appeal (F.A. No.174 of 2018) filed by the complainant, the case was again remanded back to the District Commission to decide the same on merits. It is further contended that as per information obtained from the concerned authority by the appellant, plot No.12 is not shown in the list of vacant plots, as on 10.11.1998. It means that the plot, in question, was already constructed in the year 1998. The Notification dated 13.12.2005, relied upon by the District Commission, came into being in the year 2005, whereas the dispute raised in the complaint pertains to the period from 11.09.1992 when the plot was allotted/transferred to the complainant. In view of the law laid down by the Hon'ble Supreme and High Court, no notification can be made operative retrospectively. Therefore, the above said Notification is not applicable to the present case. The District Commission has failed to consider all these facts and circumstances and passed the impugned order on the basis of conjectures and surmises, which is liable to be set aside and the complainant is entitled to all the reliefs, as prayed for in the complaint.
8. The written arguments submitted on behalf of the respondent/opposite party are on the lines of pleadings made in their reply. The sum and substance of oral and written arguments is that the question of extension fee does not fall under the purview of 'service' and the dispute raised in this case is outside the realm of the Act. It is further contended that after getting the site plan approved in the year 1994, only water and sewerage connection were got released by the First Appeal No.529 of 2019 9 complainant. However, the electric connection was installed in the plot, in question, only after directions issued by the District Commission, vide order dated 21.06.2016, in Consumer Complaint No.367 of 2015. Thereafter, the opposite party sent letter dated 09.12.2016, raising the demand of ₹19,78,238/- towards non-construction charges. As per Notification dated 13.12.2005 issued by the Department of Local Government, Punjab, by which the Punjab Town Improvement (Utilization and Land and Allotment of Plots) Rules, 1983 were amended. As per amended Rule-7, to fall within the ambit of 'completion of the residential unit/building', the construction of one habitable room, kitchen, bathroom and water closet along with taking of connection of water supply and electricity are the basic requirements. Since the electric connection was taken by the complainant only after 21.06.2016, so it was rightly held that he did not raise the construction/completed the house within the stipulated period, making himself liable to pay the non-construction charges as per rules and regulations. The District Commission committed no illegality, while passing the impugned order and the appeal is liable to be dismissed. In support of his contentions, learned counsel for the opposite party relied upon following cases:
i) Revision Petition No.2466 of 2013 (PUDA & Anr. v. Dr. Santosh Arora) decided, vide order dated 05.05.2014 (NC); and
ii) First Appeal No.1839 of 2011 (Improvement Trust, Moga v.
Gurnam Singh) decided by this Commission, vide order dated 21.05.2015 First Appeal No.529 of 2019 10 Consideration of Contentions
9. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties.
10. With regard to the objection of the opposite party that the District Commission had no pecuniary jurisdiction, on the ground that the due amount against the complainant exceeds ₹20 lac, it needs to be mentioned that the opposite party has interpreted the pecuniary jurisdiction of the District Commission, as per its own whims and wishes, keeping in view of its own demand of ₹20,84,185/- raised against the complainant towards non-construction charges. The pecuniary jurisdiction is to be determined on the basis of the relief claimed in the complaint only and not on the basis of demand raised by the opposite party. The complainant has prayed for issuing directions to the opposite party to execute the Sale Deed of the plot, in question, and to pay ₹50,000/- as compensation for loss of concession on registration charges, ₹10,000/- for mental agony and harassment etc. suffered by him, besides ₹10,000/- towards litigation expenses, along with interest at the rate of 12% per annum. By no stretch of imagination, the value of total relief claimed in the complaint exceeds ₹20 lac. Hence, the aforesaid objection of the opposite party is rejected.
11. Now, coming to merits of the case. In view of the pleadings and arguments of the parties, the following questions are to be decided, in order to settle the controversy involved in this appeal: First Appeal No.529 of 2019 11
I) Whether the Consumer Commission is competent to go into the legality of the Non-construction Charges/statutory fee imposed by the Statutory Authority?
II) Whether the demand of Non-construction Charges raised by the opposite party against the complainant is legal and valid?
In Re: Question No.(I):
Whether the Consumer Commission is competent to go into the legality of the Non-construction Charges/statutory fee imposed by the Statutory Authority?
12. This issue is no more res-integra. The Hon'ble Supreme Court, vide its order dated 16.09.2019, passed by the three-Judges Bench in SLP (C) No. 4272/2015 [Punjab Urban Planning and Development Authority (Now GLADA) v. Vidya Chetal], overruled the judgment rendered in case HUDA vs. Sunita (2005) 2 SCC 479 and held that the Consumer Foras (now, "Commissions") have the jurisdiction to deal with the legality of the statutory fees imposed by the Statutory Authorities. The relevant paragraphs of that judgment are reproduced below:
"7. Having observed the law on beneficial interpretation, we need to observe the concerned statutory provisions of the Act:
Section 2 (1) (g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
Thus, meaning of deficiency is explained as any fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance of any service or supply of goods, in terms of standards set by the parties themselves through contract or otherwise, or imposed by the law in force. The basis for application of the consumer laws hinges on the relationship between the service provider and consumer. The usage of First Appeal No.529 of 2019 12 'otherwise' within the provision subsumes other modes of standard setting alternative instruments other than contracts such as laws, byelaws, rules and customary practices etc.
8. Service is defined under Section 2(1)(o) of the Act, which reads as under:
(o) "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
This definition is not exhaustive rather the legislature has left the task to expound the provision on a case to case basis to the judiciary. The purpose of leaving this provision open ended, without providing an exhaustive list indicates the requirement for a liberal interpretation. Broadly speaking, it is inclusive of all those services performed for a consideration, except gratuitous services and contract of personal services. Moreover, aforesaid provision reflects the legislative intent of providing impetus to 'consumerism'. It may be noted that such a phenomenon has had a benevolent effect on the Government undertakings, wherein a new dynamism of innovation, accountability and transparency are imbibed.
9. On perusal of the impugned precedent, it may be noted that it does not provide clear-cut reasoning for the view held by the Court, except to the extent of pointing out that statutory obligations are not encompassed under the Act. Such broad proposition necessarily required further elaboration, as there is a possibility of overinclusivity. Further, there is no gainsaying that all statutory obligations are not sovereign functions. Although all sovereign functions/services are regulated and performed under constitutional/statutory instruments, yet there are other functions, though might be statutory, but cannot be called as sovereign functions. These sovereign functions do not contain the consumer service provider relationship in them and are not done for a consideration. Moreover, we need to be mindful of the fact that sovereign functions are undergoing a radical change in the face of privatization and globalization. India being a welfare State, the sovereign functions are also changing. We may note that the government in order to improve the quality of life and welfare of its citizens, has undertaken many commercial adventures.
First Appeal No.529 of 2019 13
10. Sovereign functions like judicial decision making, imposition of tax, policing etc, strictly understood, qualify for exemption from the Act, but the welfare activities through economic adventures undertaken by the Government or statutory bodies are covered under the jurisdiction of the consumer forums. Even in departments discharging sovereign functions, if there are sub units/wings which are providing services/supply goods for a consideration and they are severable, then they can be considered to come within the ambit of the Act. [refer to Standard Chartered Bank Ltd. v. Dr. B. N. Raman, (2006) 5 SCC 727]
11. Having observed the provisions and the interpretation of pertinent provisions, we need to refer to Lucknow Development Authority Case (supra), wherein this Court was concerned with the question as to the amenability of statutory authorities like Lucknow Development Authority, for development of plots, to the Consumer Protection Act, 1986.
12. This Court in Lucknow Development Authority Case (supra) elaborated the meaning of 'Consumer', as occurring under Section 2(1)(b), in the following manner: "3......The word 'consumer' is a comprehensive expression. It extends from a person who buys any commodity to consume either as eatable or otherwise from a shop, business house, corporation, store, fair price shop to use of private or public services.
... It is in two parts. The first deals with goods and the other with services. Both parts first declare the meaning of goods and services by use of wide expressions. Their ambit is further enlarged by use of inclusive clause. For instance, it is not only purchaser of goods or hirer of services but even those who use the goods or who are beneficiaries of services with approval of the person who purchased the goods or who hired services are included in it." (emphasis supplied)
13. Further, this Court elaborated on the meaning of the 'service' in the following manner: "4. What is the meaning of the word 'service'? Does it extend to deficiency in the building of a house or flat? Can a complaint be filed under the Act against the statutory authority or a builder or contractor for any deficiency in respect of such property.
.....
It is in three parts. The main part is followed by inclusive clause and ends by exclusionary clause. The main clause itself is very wide. It applies to any service made available to potential users. The words 'any' and 'potential' are significant. Both are of wide amplitude. The word 'any' dictionarily means 'one or some or all'. First Appeal No.529 of 2019 14 In Black's Law Dictionary it is explained thus, "word 'any' has a diversity of meaning and may be employed to indicate 'all' or 'every' as well as 'some' or 'one' and its meaning in a given statute depends upon the context and the subject matter of the statute". The use of the word 'any' in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all....
The legislative intention is thus clear to protect a consumer against services rendered even by statutory bodies. The test, therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility." (emphasis supplied) Thereafter, this Court answered the relevant question in the following manner:
"5. This takes us to the larger issue if the public authorities under different enactments are amenable to jurisdiction under the Act. It was vehemently argued that the local authorities or government bodies develop land and construct houses in discharge of their statutory function, therefore, they could not be subjected to the provisions of the Act....
...Any attempt, therefore, to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and the spirit behind it.... A government or semi-government body or a local authority is as much amenable to the Act as any other private body rendering similar service. Truly speaking it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions be scrutinised as public accountability is necessary for healthy growth of society.
6. What remains to be examined is if housing construction or building activity carried on by a private or statutory body was service within the meaning of clause (o) of Section 2 of the Act as it stood prior to inclusion of the expression 'housing construction' in the definition of "service" by Ordinance No. 24 of 1993. ... So any service except when it is free of charge or under a constraint of personal service is included in it. Since housing activity is a service it was covered in the clause as it stood before 1993.
...
8.....Under our Constitution sovereignty vests in the people. Every limb of the constitutional machinery is obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself. Public authorities acting in violation of constitutional or statutory provisions oppressively are First Appeal No.529 of 2019 15 accountable for their behaviour before authorities created under the statute like the commission or the courts entrusted with responsibility of maintaining the rule of law. ... Therefore, when the Commission has been vested with the jurisdiction to award value of goods or services and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation.
(emphasis supplied) ...................................................... ......................................................
19. Therefore, it is a clearly established principle that certain statutory dues, such as fees, can arise out of a specific relation. Such statutory dues might be charged as a quid pro quo for a privilege conferred or for a service rendered by the authority. As noted above, there are exactions which are for the common burden, like taxes, there are dues for a specific purpose, like cess, and there are dues in lieu of a specific service rendered. Therefore, it is clear from the above discussion that not all statutory dues/exactions are amenable to the jurisdiction of the Consumer Forum, rather only those exactions which are exacted for a service rendered, would be amenable to the jurisdiction of the Consumer Forum.
20. At the cost of repetition, we may note that those exactions, like tax, and cess, levied as a part of common burden or for a specific purpose, generally may not be amenable to the jurisdiction of the Consumer Forum. However, those statutory fees, levied in lieu of service provided, may in the usual course be subject matter of Consumer Forum's jurisdiction provided that there is a 'deficiency in service' etc.
21. We may also refer to the case of Ghaziabad Development Authority (supra) wherein this Court, relying upon Lucknow Development Authority case (supra), held that the power of the Consumer forum extends to redressing any injustice rendered upon a consumer as well as over any mala fide, capricious or any oppressive act done by a statutory body. The relevant para of the judgment reads as under:
"6. ....Thus, the law is that the Consumer Protection Act has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities. Such authorities become liable to compensate for misfeasance in public office i.e. an act which is oppressive or First Appeal No.529 of 2019 16 capricious or arbitrary or negligent provided loss or injury is suffered by a citizen.
... Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation. If the Commission/Forum is satisfied that a complainant is entitled to compensation for loss or injury or for harassment or mental agony or oppression, then after recording a finding it must direct the authority to pay compensation and then also direct recovery from those found responsible for such unpardonable behaviour.
(emphasis supplied)
22. Therefore, in line with the law laid down by us, we hold that the determination of the dispute concerning the validity of the imposition of a statutory due arising out of a "deficiency in service", can be undertaken by the consumer fora as per the provisions of the Act. The decision of this Court in the case of Sunita (supra), wherein it was held that NCDRC has no jurisdiction to adjudicate the legitimacy of the aforementioned statutory dues, was rendered without considering any of the previous judgments of this Court and the objects of the Act. Consequently, the law laid down in the aforesaid case does not hold good before the eyes of law, and is thereby overruled."
In view of the law laid down by the larger Bench of the Hon'ble Supreme Court in the above noted case, the Consumer Commission has the jurisdiction to decide the validity of the extension fee/non- construction fee raised by the opposite party, which is a statutory fee imposed under the Punjab Regional and Town Planning Development (General) Rules, 1995. The authorities relied upon by the learned counsel for the opposite party are distinguishable. Accordingly, Question No.(I) is answered in affirmative.
In Re: Question No.(II):
Whether the demand of Non-construction Charges raised by the opposite party against the complainant is legal and valid?First Appeal No.529 of 2019 17
13. It is admitted that plot No.12, measuring 304 sq.yds., situated in the above noted scheme of the opposite party, was transferred in the name of the complainant, vide letter dated 11.09.1992, Ex.C-2; on the same terms and conditions of allotment letter dated 08.08.1980 issued to the original allottee. The original allotment letter has not been produced by either of the parties. The site plan submitted by the complainant for raising construction on the said plot was approved by the opposite party, vide letter dated 19.09.1994, Ex.C-3. The complainant had also deposited the extra construction fee of ₹15,325/- with the opposite party, vide receipt dated 19.08.1994, Ex.C-4. The construction had also been completed by the complainant in the year 1996-97 and this fact has not been denied by the opposite party in its reply. Furthermore, the plot, in question, does not find mentioned in the list of vacant plots, Ex.C-14 (colly.), obtained by the attorney of the complainant from the office of the opposite party. It means that the construction in the plot of the complainant had already been raised and that is why its number is not mentioned in the list of vacant plots. He had also got installed the water and sewerage connections in the said property on 12.08.1998, as is evident from receipt Ex.C-25. The other receipts, Ex.C-23 and Ex.C-24, issued by Water Supply and Sewerage Board, Barnala, have also been produced on record. Copies of bills/receipts were also supplied to the opposite party, along with letter dated 23.05.2013, Ex.C-6. However, First Appeal No.529 of 2019 18 the opposite party failed to execute the Sale Deed of the plot, in question, in favour of the complainant.
14. The opposite party pleaded in its pleadings that a sum of ₹20,84,185/- is due against the complainant towards non-construction charges, on the ground that the electric connection was installed in the premises only after 21.06.2016. In this regard, it relied upon Notification dated 13.12.2005 issued by the Department of Local Government, Punjab. Rule-7 of that Notification provides that the construction of one habitable room, kitchen, bathroom and water closet, along with connections of water supply and electricity, are the basic requirements for falling within the ambit of 'completion of the residential unit/building'. The opposite party had not made any mention of this Notification in its reply to the complaint. However, some part of the same has been produced by it, along with the written arguments filed in the appeal, as Annexure R-1. Vide this Notification, the "Punjab Town Improvement (Utilization and Land and Allotment of Plots) Rules, 1983" were amended and the "Punjab Town Improvement (Utilization of Land and Allotment of Plots) (First Amendment) Rules, 2005" were formulated. However, the fact remains that the transfer of the plot was effected in favour of the complainant way back on 11.09.1992, as per letter Ex.C-2; site plan was approved vide letter dated 19.09.1994, Ex.C-3, and admittedly the construction in the plot, in question, was completed by the complainant in the year 1996-97. Rule 1(2) of aforesaid Notification reads as under: First Appeal No.529 of 2019 19
"They shall come into force on and with effect from the date of their publication in the Official Gazette."
Thus, it is clear that the said Notification/Rules were applicable only after 13.12.2005 and on the date of their publication in the Official Gazette. The Hon'ble Supreme Court in case State of Madhya Pradesh and Ors. v. Yogendra Shrivastava 2010 (1) SCT 434 has gone to the extent of holding that the rights and benefits already earned or acquired under the un-amended rules cannot be taken away by amending the rules with retrospective effect. In Para-12, it was held as under:
"12. It is no doubt true that Rules under Article 309 can be made so as to operate with retrospective effect. But it is well settled that rights and benefits which have already been earned or acquired under the existing rules cannot be taken away by amending the rules with retrospective effect. [See: N.C. Singhal vs. Director General, Armed Forces Medical Services - 1972 (4) SCC 765; K. C. Arora vs. State of Haryana - 1984 (3) SCC 281; and T.R. Kapoor vs. State of Haryana - 1986 Supp. SCC 584]. Therefore, it has to be held that while the amendment, even if it is to be considered as otherwise valid, cannot affect the rights and benefits which had accrued to the employees under the unamended rules.."
15. This Commission also, in First Appeal No.1278 of 2009 (Improvement Trust, Ludhiana v. Neeraj Chugh & Ors.) decided, vide order dated 16.09.2013, relied upon the aforesaid judgment of the Hon'ble Supreme Court and, by discarding the Notification dated 13.12.2005, quashed the demand of non-construction charges raised by the Improvement Trust. In view of the law laid down in the above noted cases, it is clear that the aforesaid Notification dated First Appeal No.529 of 2019 20 13.12.2005, having no retrospective effect, is not applicable to the facts and circumstances of the present case.
16. It also needs to be mentioned that in the written argument, the complainant has contended that electric connection bearing No.48/0795F was installed on 20.01.1999; which was later on disconnected. Though, no record of that electric connection has been produced, yet it is the specific plea of the complainant that he is living abroad and in his absence, his attorney, Sh. Ranjit Singh, is taking care of his house only. It may be on account of that reason that the aforesaid electric connection was disconnected earlier, being not in use.
17. The demand of non-construction charges was raised only in the year 2017, whereas the construction had already been completed by the complainant in the year 1996-97. The complainant had earlier filed Consumer Complaint No.367 of 2015 before the District Commission; which was decided, vide order dated 21.06.2016, Ex.C-11. Perusal of that order shows that no demand of non- construction charges was raised by the opposite party and it only took the defence that the building of the complainant was not completed, as the electric connection was not installed. While deciding that complaint, the complainant was directed to get the electric connection installed in the building, in question, and thereafter approach the opposite party for executing the Sale Deed, as per Rules. The complainant duly complied with that order and got installed the electric First Appeal No.529 of 2019 21 connection in the building. Thereafter, his attorney sent letter dated 13.10.2016, Ex.C-12, through registered post (Ex.C-13), informing the opposite party that the electric connection had been installed in the premises. Copies of receipts, Ex.C18 and Ex.C-19, were also sent. He complainant has also produced the copy of "Technical Feasibility Check/Site Visit Form", Ex.C-17, submitted with PSPCL. The opposite party issued letters dated 04.10.2016 and 07.10.2016, Ex.C-21 and Ex.C-20, to the complainant. However, there is no mention of non- construction charges in these letters. Despite installation of electric connection, the Sale Deed was not executed by the opposite party. The complainant had to file another Consumer Complaint No.9 of 2017 before the District Commission; which was decided, vide order dated 16.02.2018 (Page 129 of District Commission's record). For the first time, the opposite party raised the demand of ₹19,78,938/- towards non-construction charges, vide letter dated 09.12.2016, as mentioned in its reply to that complaint. It was stated that a total sum of ₹20,84,185/- was due against the complainant on that account. However, no such letter has been produced on record by the opposite party. It means that the said demand was raised only after the installation of electric connection in the premises of the complainant and prior to that, there was no whisper of these charges. The said complaint was dismissed, on the ground that the District Commission had no pecuniary jurisdiction to entertain and decide the complaint, as the value of claim, as per written version of the opposite party, was First Appeal No.529 of 2019 22 more than ₹20 lac. The appeal (F.A. No.174 of 2018) preferred by the complainant before this Commission was allowed, vide order dated 13.06.2018, and the matter was remanded back to the District Commission, with a direction to decide the case on merits, in accordance with law. Thereafter, the impugned order has been passed, which is under challenge in this appeal.
18. As already discussed above, the demand of non- construction charges was raised only, vide letter dated 09.12.2016, i.e. after 9/10 years of completion of construction by the complainant on the basis of Notification dated 13.12.2005; which is not sustainable. There was no such condition in the year 1996-98. The Completion Report dated 09.09.2013 issued by the Architect in respect of the building of the complainant was only got prepared on the demand of the opposite party, but that does not mean that the construction was not completed in the year 1996-97. The opposite party has failed to produce cogent an convincing evidence to prove that obtaining of electric connection was a condition precedent for terming the building raised by the complainant complete, under the rules and regulations prevalent at the time of allotment/transfer of the plot, in question. The complainant has been forced to go in rounds of litigation, without any basis. The demand of non-construction charges is not based on solid and legal grounds and, as such, the same is not sustainable, in the eyes of law. The same is liable to be set aside. Accordingly, Question No.(II) is answered in negative.
First Appeal No.529 of 2019 23
19. The complainant has relied upon Notification dated 08.04.2015, issued by the Government of Punjab, which has been focused in letter dated 17.04.2015, Ex.C-10. As per the said Notification, Rule-3B of the Punjab Stamp (Dealing of Under Valued Instruments) Rules, 1983 was substituted/amended. As per that Rule, the Sale Deed of the immovable properties, sold by the Government and semi-Government departments, are to be executed at the rates fixed at time of issuance of the allotment letter. The period for execution of the Sale/Conveyance Deeds was extended for two months' i.e. up to 07.06.2015, but for the fault of the opposite party, the Sale Deed could not be executed in favour of the complainant at old rates. Even otherwise, since the execution of the Sale Deed has been delayed by the opposite parties, without any cogent and convincing reason, so the Sale Deed is to be executed on the rates, when the complainant obtained water and sewerage connections in building constructed by him. The complainant suffered mental agony and harassment due to the deficiency in service and unfair trade practice on the part of the opposite party. In these circumstances, it is held that the opposite party is liable to execute the Sale Deed of the plot, in question, in favour of the complainant at the old rates, prevalent on 12.08.1998, when the complainant had got installed the water and sewerage connection etc. in the building. In case any extra amount is to be paid towards execution of the Sale Deed i.e. stamp First Appeal No.529 of 2019 24 duty, registration charges etc., the same shall be borne by the opposite party.
20. The District Commission, in Para-16 of the impugned order, relied upon Instructions/Notification dated 13.12.2005, which were not applicable earlier, as discussed above. All the formalities were completed and the construction was raised by the complainant in the years 1996-98. The District Commission also wrongly held in Para- 19 of the impugned order that the house of the complainant was completed only in the month of July, 2016, when he had taken the electric connection. The construction had already been raised by the complainant and the water and sewerage connection were taken in the years 1996-98. Merely obtaining the electric connection in the year 2016 does not mean that the construction of the house of the complainant was incomplete. Hence, the impugned order is not sustainable.
21. In view of our above discussion, the appeal is allowed and the impugned order is set aside. Consequently, the complaint filed by the complainant is allowed. The demand of non-construction charges raised by the opposite party against the complainant, vide letter dated 09.12.2016, is set aside. Following directions are issued to the opposite party:
i) to execute the Sale Deed of the plot, in question, at the old rates prevalent on 12.08.1998, when the complainant had got installed the water and sewerage connection etc. in the building. In case First Appeal No.529 of 2019 25 any extra amount is to be paid towards execution of the Sale Deed i.e. stamp duty, registration charges etc., the same shall be borne by the opposite party; and
ii) to pay ₹57,000/- (Rupees Fifty Seven Thousand only) towards the mental agony and harassment suffered by the complainant, delay in execution of the Sale Deed etc., including litigation expenses.
22. The compliance of the order shall be made by the opposite party within a period of 30 days of the receipt of copy of the order.
23. The appeal could not be decided within the statutory period due to heavy pendency of court cases and pandemic of COVID-19.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (MRS. KIRAN SIBAL) MEMBER February 17, 2021.
(Gurmeet S)