State Consumer Disputes Redressal Commission
Punjab Urban Planning And Development ... vs Vidya Chetal W/O Sh. Suresh Kumar ... on 6 November, 2012
1
First Appeal No. 633 of 2007
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 633 of 2008
Date of institution : 20.06.2008
Date of Decision : 06.11.2012
Punjab Urban Planning and Development Authority, (now Greater Ludhiana
Area Development Authority), Ferozepur Road, near B.R.S. Nagar,
Ludhiana through Estate Officer (Previously known as Punjab Housing
Development Board).
....Appellant/OP
Versus
Vidya Chetal w/o Sh. Suresh Kumar Chetal, r/o F-1, Pankaj Vikram
Complex, Rajinder Nagar, Raipur (CG).
...Respondents/complainant
Argued by:-
For the appellant : Sh. Balwinder Singh, Advocate
For respondent : Sh. Munish Goel, Advocate
First Appeal No. 751 of 2008
Date of institution : 21.07.2008
Vidya Chetal w/o Sh. Suresh Kumar Chetal, r/o F-1, Pankaj Vikram
Complex, Rajinder Nagar, Raipur (CG).
...Appellant/complainant
Versus
Punjab Urban Planning and Development Authority, (now Greater Ludhiana
Area Development Authority), Ferozepur Road, near B.R.S. Nagar,
Ludhiana through Estate Officer (Previously known as Punjab Housing
Development Board).
...respondent/OP
First Appeal against the order dated
25.04.2008 of the District Consumer
Disputes Redressal Forum,
Ludhiana.
Before:-
Sardar Jagroop Singh Mahal,
Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Argued by:-
For the appellant : Sh. Munish Goel, Advocate
For respondent : Sh. Balwinder Singh, Advocate
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First Appeal No. 633 of 2007
JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER:
This order will dispose of the two appeals filed under Section 15 of the Consumer Protection Act (herein after referred to as the Act) one (F.A.No. 751 of 2008) filed by the complainant for quashing the demand of Rs.3,43,350/- and the other (F.A.No. 633 of 2008) filed by the OP for setting aside the impugned order dated 25.04.2008 passed by the Learned District Consumer Disputes Redressal Forum, Ludhiana (hereinafter referred to as 'the District Forum') vide which the complaint was partly allowed and the Punjab Urban Planning and Development Authority (herein after referred to as PUDA) was directed to charge the non construction charges as per Rule 13 of 1995 Rules and to refund the excess amount, if any on this account to the complainant along with interest @9% per annum. Since both the appeals are against me and the same order these are therefore, being heard and disposed of through this single order. The facts have been taken from the complaint and parties are referred to in this order by the status they enjoyed in the said complaint.
2. The brief facts of the case are that PUDA allotted plot no. 601 to the complainant measuring 250 Sq. yards vide transfer/permission dated 08.10.1992. She was also allotted 98.06 Sq. yards additional land which adjoined the plot in question. The OP vide letter dated 31.08.2006 demanded a sum of Rs.3,43,350/- on account of cost of excess area so allotted, and non construction fee from the complainant. The contention of the complainant is that the OPs are demanding the non construction fee at a higher rate than the one mentioned in Rule 13(3) of PUDA Rules, 1995 and the said demand is therefore, illegal and void. Her other contention is that the possession of the plot has not been delivered to her due to which she could not raise construction over the same and therefore the extension fee cannot be imposed and recovered from her. The complainant filed the 3 First Appeal No. 633 of 2007 present complaint to direct the OPs to quash the demand of Rs.3,43,350/- and also to refund the amount of Rs.10,555/- and Rs.50,000/- deposited by her with the OPs. She also prayed for Rs.50,000/- as compensation for mental tension, harassment and agony and Rs.2,00,000/- due to escalation in cost of construction.
3. The complaint was contested by the OPs alleging that the complainant is not the original allottee of the plot but a transferee and does not come under the definition of the consumer. It was maintained that the demand of extension fee by the OP cannot be termed as deficiency in service and the District Forum have no jurisdiction to try this complaint. On merits it was admitted that the plot was transferred in favour of the complainant and she is therefore, liable to pay the extension fee as she did not raise construction within three years of the allotment. It was admitted that the amount of Rs.10,555/- was deposited towards building fee and Rs.50,000/- towards the price of the additional area. According to them, the extension fee has been rightly demanded from the complainant and the same cannot be challenged through this complaint.
4. Both the parties were given opportunity to produce evidence in support of their contentions.
5. After hearing the Learned Counsel for the parties and perusing the record, the complaint was allowed by the learned District Forum vide impugned order dated 25.04.2006. The complainant has filed an appeal for quashing the demand of Rs.3,43,350/- through F.A.No. 751 of 2008 and the OPs have challenged the impugned order through F.A.No. 633 of 2008 for setting aside the same and for dismissing the complaint. Since both the appeals are against the same order these are therefore, being disposed of through this single order.
4First Appeal No. 633 of 2007
6. We have heard the arguments of the Learned Counsel for the parties and have perused the record.
7. The first contention of the learned counsel for the complainant is that the possession of the plot was not delivered to her and therefore, no extension fee for non construction can be imposed on her because there was default and delay on the part of the OP to deliver the possession of the plot to the complainant. In this respect, we may refer to Ex. R-1 vide which the re-allotment of the plot was made in favour of the complainant. It was subsequently mentioned therein that she would have to abide by the terms and conditions of the allotment and the provisions of Punjab Urban Estate (Development and Regulation) Act, 1964 and the instructions/guidelines issued thereunder. She was further told that the extension fee paid by the previous allottee was valid up to 31st December, 1992 and she would be liable to pay fresh extension fee thereafter. The complainant submitted an affidavit Ex.R-3 accepting the said terms and conditions. Ex.R-12 is the notice issued to the complainant informing her that she has not raised construction over the plot within three years of the allotment and was therefore, liable to pay extension fee. In view of these facts it is clear that the complainant never requested the OPs that the possession of the plot has not been delivered to her or that the same be delivered or that due to non delivering of possession she could not raise construction. In view of this fact it cannot be said if there was any default or delay on the part of the OP in delivering possession to the complainant. She was herself to ask for it if the same had not been delivered earlier to her predecessor and complete the construction within three years from the date of allotment.
8. The next aspect of the case is about the additional area of 98.06 Sq. yards. The complainant wrote a letter Ex.R-6 requesting the OP for allotment of the adjoining land to her. She again moved an application 5 First Appeal No. 633 of 2007 Ex.R-7 on 17.05.1996 requesting for taking measurement of extended area on the backside of plot and tell her the cost which she was required to deposit therefore. The OP vide letter Ex.R-8 dated 12.05.1996 informed her to deposit the amount of Rs.19,738/- and that only thereafter, the case for allotment of the adjoining land would be started. The said amount was paid by the complainant and again she wrote a letter Ex.R-13 to allot the said land. The OP took measurement and worked out the area as 98.06 Sq. Yards as per their reports Ex.R-19 and R-20 dated 02.08.2006. We are therefore, of the opinion that the complainant is entitled to a period of three years as extension for raising construction over the additional land calculated from the date on which the said area was allotted to her. The OPs cannot recover the extension fee on the adjoining area of 98.06 Sq. yards from the date when plot no.601 was allotted.
9. The learned counsel for the OP has argued that under the instructions issued by the Punjab Government they are entitled to recover non extension fee at the higher rates than the one mentioned in Rule 13(3) of the PUDA Act. Earlier also there have been litigation in this respect when the instructions issued by the State of Punjab to charge extension fee was struck down by the Hon'ble High Court in Civil Writ Petition No. 13648 of 1998 "Tehal Singh and others Vs. State of Punjab". The OPs filed Special Leave Petition before the Hon'ble Supreme Court of India which was dismissed. The State of Punjab then issued another set of administrative instructions on 08.10.2001 to take away the basis of the order passed by the Hon'ble High Court in Tehal Singh's case. However, the subsequent administrative instructions dated 18.01.2001 were also struck down by the Hon'ble High Court of Punjab & Haryana in Civil Writ Petition No. 18986 of 2001 in Sant Kaur Jabbi and another Vs. State of Punjab and others. The State of Punjab again filed Special Leave Petition before the Hon'ble Supreme Court of India in this case which also was dismissed. 6 First Appeal No. 633 of 2007
10. This Commission in Balbir Singh's case relied upon the aforesaid decision and dismissed appeal no. 784 of 2006 filed by PUDA and allowed the appeal no.668 of 2006 filed by Narendra Singh Nanda. The appellant as well as Narendra Singh Nanda filed separate Revision Petitions (No. 2568 of 2004 and 2125 of 2006) before the Hon'ble National Commission which, vide its orders dated 27.05.2009 dismissed the Revision Petition filed by the appellant whereas the Revision petition filed by the complainant was allowed and the OP was directed to refund the amount of extension fee along with interest @9% per annum from the date of deposit.
11. The learned counsel for the appellant has argued that infact the notification dated 08.10.2001 related to the amendments of Rule 13 of the Punjab Regional and Town Planning and Development (General) Rules 1995 but the same have been referred to as administrative instructions and struck down. It was argued in view of the notification dated 08.10.2001 Rule 13 was amended authorizing the OP to recover the extension fee at enhanced rate. It is also argued that in Tehal Singh's case only the notice issued by PUDA was set aside and not the executive instructions. His contention is that SLP is pending before the Hon'ble Supreme Court of India in Narendra Singh Nanda's case. It is also argued that in Sant Kaur Jabbi's case the retrospective effect of the amendment was set-aside and therefore, a combined reading of the notification dated 08.10.2001 when read with Tehal Singh's Case and Sant Kaur Jabbi's case it becomes clear that OPs are entitled to recover enhanced extension fee as has been demanded from the complainant. We do not find any merit in this argument. The Hon'ble National Commission has already held that instructions dated 08.10.2001 having been setting aside by the Hon'ble High Court no longer authorize the OPs to recover the enhanced extension fee. In view of the decision dated 27.05.2009 in Revision Petition no.2125 of 2006 "Narendra Singh Nanda 7 First Appeal No. 633 of 2007 Vs. PUDA" the impugned order passed by the learned District Forum is perfectly legal and valid and does not call for any interference.
12. The learned District Forum vide impugned order dated 25.04.2008 directed the OP to charge non construction charges as per Rule 13 of 1995 Rules and refund the excess amount if any to the complainant along with interest @9% per annum from the date of deposit till its refund. The impugned order is perfectly in conformity with the orders passed in this respect by the Hon'ble National Commission which have stood the test before the Hon'ble Supreme Court of India when challenged by the appellant. We are of the opinion that the impugned order is perfectly legal and valid, there is no merit in any of the appeals and the same are accordingly dismissed.
Parties are left to bear their own costs. Copy of the order be placed on the file of each appeal. Copy of this order be sent to all the parties in both appeals free of costs.
(Jagroop Singh Mahal) Presiding Judicial Member (Vinod Kumar Gupta) Member 6th November, 2012 Rashmi