State Consumer Disputes Redressal Commission
Improvement Trust Barnala, vs Sh. Prem Kumar on 7 April, 2014
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1043 of 2009
Date of institution: 23.7.2009
Date of Decision: 7.4.2014
1. Improvement Trust Barnala, through its Executive Officer.
2. Improvement Trust, Barnala, through its Chairman.
.....Appellants/Opposite Parties
Versus
Sh. Prem Kumar and Sons, through its Karta,
Sh. Prem Kumar R/o B-1/342, Gurdwara Street, Near Pinki Market,
Handiaya Bazar, Barnala Tehsil, District Barnala.
.....Respondent/Complainant
First Appeal against the order dated 10.6.2009
passed by the District Consumer Disputes
Redressal Forum, Sangrur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellants : Sh. Jai Singh Brar, Advocate
For the respondent : Sh. Tribhuwan Singla, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellants/opposite parties (hereinafter referred as "the opposite parties") have filed the present appeal against the order dated 10.6.2009 passed by the District Consumer Disputes Redressal Forum, Sangrur(hereinafter referred as "the District Forum") in consumer complaint No.136 dated 10.6.2009 vide which the complaint filed by the respondent/complainant(hereinafter referred as 'the complainant') was allowed with a direction to the Ops to refund the amount deposited i.e. Rs. 90,064/- as non-construction 2 FIRST APPEAL NO. 1043 OF 2009 charges alongwith interest @ 9% per annum from the date of deposit till realization and also pay Rs. 5,000/- as litigation charges.
2. The complaint was filed by the complainant against the opposite parties on the allegations that Plot No. 6 having an area of 144 sq. yards in 16 acre scheme of the Ops was allotted in the name of the complainant vide letter dated 18.2.2005 and all the instalments were deposited. As per the Punjab Town Improvement Trust Act and Rules, the development charges have been charged from all the allottees. The complainant approached the Ops number of times to get the possession and demarcation of the said plot alongwith basic amenities i.e. sewerage, water supply, metalled roads, street lights, parks etc. but it was not given rather a sum of Rs. 39,720/- was demanded in the month of December, 2005. Despite request, Ops did not withdraw that notice, he had to deposit this amount. Then again another demand of Rs. 6,000/- was raised on account of non- construction fee and it was deposited under protest. Thereafter, another demand of Rs. 21,600/- was raised as non-construction fee in the month of December, 2006, which was deposited by the complainant again under protest. Again another demand of Rs. 43,400/- (Rs. 22,672/- as non-construction fee and Rs. 20,726/- as enhancement fee), which was again deposited by the complainant under protest on 13.9.2007. The complainant approached the Ops time and again but possession and demarcation of the plot was not given. He applied for transfer of the plot in the name of Rakesh Kumar s/o Budh Dev, resident of Barnala, which was transferred vide letter dated 27.9.2007. The complainant approached the Ops many 3 FIRST APPEAL NO. 1043 OF 2009 times to withdraw the demand but to no effect. There is clear cut deficiency in services on the part of the Ops because they have demanded and received the amount, which they were not entitled. Hence, the complaint.
3. The complaint was contested by the opposite parties, who filed written statement taking legal objections that the complaint was not maintainable; the complainant had not come to the Court with clean hands; the complaint was time barred and that the complainant was not a consumer. On merits, it was stated that originally the plot was allotted to one Amrik Singh vide allotment letter dated 25.11.1997 and agreement dated 25.7.2011 was executed between the parties on form 'D' and allottee was to comply with terms and conditions mentioned therein. It was specifically mentioned in Condition No. 3 that allottee was to construct the plot within three years. The possession of the plot was given at the spot on the date of allotment. When this plot was transferred in the name of Sheela Devi w/o Pawan Kumar and Mr. Prem Kumar submitted the affidavit, indemnity bond admitting all the terms and conditions of the original allotment letter. Then this plot was transferred in the name of the complainant, subject to all the terms and conditions mentioned in the original allotment letter and agreement. The complainant has now transferred this plot in the name of Rakesh Kumar. It was further stated that the Ops is established basically for the development of the City. The facility of water supply and electricity was given in March, 1999. Road was constructed in the year 1998 and the sewerage connection was given in the year 2001, therefore, the development 4 FIRST APPEAL NO. 1043 OF 2009 activities were completed before the plot was transferred in favour of the complainant. He did not raise the construction within the stipulated period, therefore, the non-construction fee was taken from him, which was in accordance with their rules, therefore, there was no deficiency in services on their part. The complaint is without merit 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, receipts Exs. C-2, C-3, C-4, C-5, protest letter Ex. C-6, letter of OP Ex. C-7, letter of OP Ex. C-8. On the other hand, the opposite parties had tendered into evidence advertisement Ex. R-1, affidavit of Amrik Singh Ex. R-2, allotment letter dt. 25.11.07 Ex. R-3, letter dt. 18.12.06 of OP Ex. R-4, copy of register of Municipal Works Ex. R-5, certificate Ex. R-6, indemnity bond Ex. R-7, indemnity bond of Rakesh Kumar Ex. R-8, affidavit of Rakesh Kumar Exs. R-9 & 10, affidavit of Prem Kumar Ex. R-11, indemnity bond Ex. R-12, affidavit Ex. R-13, affidavit of Prem Kumar Ex. R-14, indemnity bond Ex. R-15, indemnity bond Ex. R-16, agreement for sale Ex. R-17, affidavit of Z.R. Khan, EO, Barnala Ex. R-18.
6. After going through the allegations in the complaint, written statement filed by the OP, evidence and documents brought on the record, the learned District Forum vide impugned order accepted the complaint stating that there was no clause in the 5 FIRST APPEAL NO. 1043 OF 2009 allotment letter that in case the construction was not completed within three years then he will be liable to pay non-construction fee.
7. Feeling aggrieved with the order passed by the learned District Forum, the appellant/opposite parties have filed the present appeal.
8. We have heard the learned counsel for the parties.
9. In the grounds of appeal, it has been contended by the counsel for the appellant that the order of the learned District Forum is liable to be set-aside because it has failed to interpret Condition No. 8 of the allotment letter and Condition No. 3 of the agreement dated 25.7.2001 under which the non-construction fee was to be taken in case of default. The development works were completed in the year 1998, 1999 and 2001 whereas non-construction fee has been taken from 2004 onwards. In case the complainant has not come the Court with clean hands then he is not entitled to any equitable relief at any stage. He has not requested for delivery of possession because the possession has delivered immediately after the allotment letter.
10. Firstly coming to the point of possession because in the complaint it has been repeatedly stated by the complainant that he was unable to complete the construction as the possession was not delivered to him. However, in case we go through the documents so produced by the complainant on the record, apart from his affidavit Ex. C-1, he has tendered Ex. C-2 the receipt vide which a sum of Rs. 43,408/- was deposited with the Ops, Ex. C-3 is the receipt of Rs. 21,600/- deposited with the Ops, Ex. C-4, is the receipt vide which 6 FIRST APPEAL NO. 1043 OF 2009 Rs. 39,397/- deposited with the Ops, Ex. C-5 is another receipt vide which a sum of Rs. 6,000/- were deposited. Ex. C-6 is a letter from the complainant vide which he has stated that he was unable to complete the construction on this plot in which there is no reference that he is not in possession of the plot, Ex. C-7 is the letter vide which the plot was transferred from Sheela Devi to Pawan Kumar, Ex. C-8 is the letter in which it has been stated that with the erection of poles, there is no disturbance in the construction of the plot, therefore, there is no letter vide which the complainant had ever stated that he was not delivered the possession, therefore, the version of the Ops that the possession was given at the time of allotment is un-rebutted.
11. The learned District Forum has accepted the complaint filed by the complainant on the plea that in case we go through condition No. 8 in Ex. R-3, it nowhere envisages that there would be imposition of non-construction fee in case the allottee fail to carry out the construction within three years but we are not to read this document in isolation. There are specific pleadings in the written statement of the Ops that there is agreement between the parties on form 'D', which has been tendered by the respondents as Ex. R-17. This agreement was with original allottee Amrik Singh and condition No. 3 reads as under:-
"3. Within the said period of 36 calender months said 25 day of 11 one thousand nine hundred and 97 the intended vendee/allottee shall and will at his own expenses erect upon the said land cover in and complete in a substantial and workman like manner building in accordance with plans sections, frontage, elevations & designs which shall have been previously approved by the Trust in this behalf. After that the extension will be granted by trust in payment of extension of times fees as fixed by govt."7
FIRST APPEAL NO. 1043 OF 2009
12. The perusal of abovesaid condition makes it clear that in case construction is not raised within three years, the extension will be granted by Trust on payment of extension of times fees as fixed by the Government. Therefore, we have to say with hesitation that the learned District Forum has not cared to go through the Agreement of Sale executed between the parties wherein there was a condition for imposition of non-construction fee in case the construction is not raised within three years from the date of allotment. The complainant is beneficiary, the plot has been allotted to him from original allottee Amrik Singh, which was transferred to Sheela Devi, who had also executed indemnity bond in favour of the Ops that she will abide by the terms and conditions of the allotment in agreement for sale. Similarly there is no change of conditions in the allotment letter and agreement for sale, the complainant is beneficiary under the original allottee Amrik Singh, therefore, he is to abide by all the terms and conditions of the allotment letter and agreement to sell. The counsel for the appellants has also referred to Revision Petition No. 3119 of 2007 "Improvement Trust, Sangrur through its Executive Officer versus Poonam w/o Bhagwandass", decided on 11.9.2009 by the Hon'ble National Commission and after relying upon "The Improvement Trust, Sangrur and Another v. Surinder Kaur and Another etc.", Revision Petition No. 1339, 1671, 1672 and 1673 of 2006, it was held by the Hon'ble National Commission that the Improvement Trust will charge non-construction fee for November, 2005 after taking three years period when the facilities like water supply, sewerage, street lights and roads etc. were provided to the 8 FIRST APPEAL NO. 1043 OF 2009 allottees. Here in this case, water supply has been supplied in the year 1999, sewerage has been provided in the year 2001, street lights in the year 3/1999 and roads in the year 3/1998 etc. has been made available and non-construction fee has been charged in the year 2004 onwards, which has been rightly charged by the Ops as per their receipts Ex. C-2 to C-5.
13. Counsel for the respondent during the course of arguments was unable to controvert the factual and legal position with regard to the non-construction fee, which has been claimed by the appellants/Ops according to the terms and conditions of the allotment letter in accordance with the rules, which has not been properly appreciated by the learned District Forum, therefore, the order so passed by the learned District Forum is not legally sustainable and is liable to be set-aside.
14. No other point has been raised.
15. In view of the above discussion, we find merit in the appeal, the same is hereby accepted. The impugned order of the District Forum is set-aside. The complaint so filed by the complainant is dismissed being without merit with costs, which are assessed as Rs. 5,000/-, to be paid by the respondent/complainant to the appellants/Ops within 30 days from the receipt of copy of the order.
16. The arguments in this appeal were heard on 28.3.2014 and the order was reserved. Now the order be communicated to the parties as per rules.
17. The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of 9 FIRST APPEAL NO. 1043 OF 2009 Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to appellant No.1 by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Vinod Kumar Gupta) Member April 7, 2014. (Harcharan Singh Guram) as Member