National Consumer Disputes Redressal
Hoshiarpur Improvement Trust vs Major Amrit Lal Saini on 7 December, 2007
Equivalent citations: I(2008)CPJ249(NC)
ORDER
B.K. Taimni, Member
1. These two appeals arise from a common order passed by the State Commission on a complaint filed by Major Amrit LaiSaini (appellant in First Appeal No. 675/2003) alleging deficiency in service on the part of the Hoshiarpur Improvement Trust (H.I.T.)(appellant in First Appeal No. 358/2003).
2. Very briefly the facts leading to filing the complaint were that, undisputedly, the land belonging to the family of the complainant Major Amrit Lal Saini was acquired by the Hoshiarpur Improvement Trust for which compensation was also paid under a scheme titled, The Punjab Town Improvement (Utilization of Land and Allotment of Plot) Rules, 1975. The displaced persons were entitled to allotment of plots. As per material on record, earlier the sister of the complainant had applied for allotment of plot, being an oustee, but that was rejected by the State Government of Punjab, vide letter dated 21.2.85. It is the case of the complainant that he had earlier applied in 1983 for plot but that was not entertained by the Improvement Trust, hence he again applied on 26.3.1987 and after lot of delay on the part of Hoshiarpur Improvement Trust, they allotted a plot only on 26.7.1999 but at the enhanced rate of Rs. 1,000 per sq. yard, against which a representation was made by the complainant to the State Government, who reduced to Rs. 275 per sq. yard vide Government's letter dated 22.10.1999 with a specific reference that "this price may not be considered in other cases." The complainant was not satisfied with this relief.
3. It is in these circumstances, a complaint was filed before the State Commission praying for direction to allot the plot @ Rs. 70 per sq. yard and not Rs. 275 per sq. yard being demanded from him. The matter was contested and the State Commission after hearing both the parties directed that the complainant being a displaced person is entitled to the allotment of plot on the same rate under Rules, 1975, which was prevalent at the time of original allotment and have been allotted to the other displaced persons in the similar situated position and circumstances. The opposite party-Hoshiarpur Improvement Trust was also directed to issue the revised allotment letter in view of above conclusion of this Commission. The opposite party was further directed to refund the excess amount, if charged, together with interest @ 9% p.a. from the date of deposit till payment and also to pay compensation of Rs. 25,000 towards harassment and mental agony. The complainant was awarded costs of this litigation which were assessed at Rs. 2,500.
4. Aggrieved/dissatisfied with this order these two appeals have been filed before us.
5. We heard the learned Counsel for the Hoshiarpur Improvement Trust and the complainant Major Amrit Lal Saini, in person.
6. We have heard the parties and have very carefully gone through the extensive material brought on record. There is no disputing the fact that the complainant Major Amrit Lal Saini being a member of the joint family and after obtaining a no-objection from his sister and mother, was allotted a plot in July 1999.
7. As admittedly, the land was acquired way back in 1978 by the Hoshiarpur Improvement Trust. It is the case of the complainant that he applied for the first time in 1983 even when, there is no material on record that he did so. Admittedly, as per record he applied for the first time on 26.3.1987 and after protracted correspondences between the parties, the complainant was allotted a plot on 26.7.1999 but at the enhanced rate of Rs. 1,000 per sq. yard. Admittedly on the representation of the complainant the rate per sq. yard was scale down by the State Government to Rs. 275 per sq. yard. It is the case of the complainant that he cannot be charged the price more than Rs. 70 per sq. yard, prevalent at the time of acquisition of his land, i.e., 1975 Rules.
8. Learned Counsel for the appellant states that this relates to question of pricing, which is outside the purview of the Consumer Fora. It is now well settled position as per law laid down by this Commission as also by the Hon'ble Supreme Court that unless there is something contrary in the contract, the Consumer Fora cannot go into the question of pricing, where the prices are fixed by Statutory Authority. In this case there is no dispute that Improvement Trust is a creation of statute and is a 'State' as defined in the Constitution and carries out its statutory duties as per law. If internally, they had increased the price of plots at Rs. 1,000 per sq. yard, it would squarely fall within the law laid down on the point, for the simple reason that the Consumer Fora cannot go into the question of pricing.
9. Be that as it may, we are concerning ourselves with one more fact of the case. Admittedly, the original allotment was made by the Improvement Trust @ Rs. 1,000 per sq. yard which on representation to the State Government was reduced to Rs. 275 per sq. yard. It was the case of the appellant Improvement Trust that this order had become final hence the complaint was not maintainable.
10. We have very carefully gone through the order passed by the State Commission and found that this particular issue has not been dealt in by the State Commission even while recording the above facts the order with reference to the pleas of H.I.T. The Consumer Protection Act, undisputedly, has been enacted for the benefit of the 'consumers' but as per law laid down by this Commission in catena of judgments, that if a consumer has selected a certain route for redressal of his grievance, then he has to pursue his remedy adopting that line only, which he has earlier adopted of his own volition. In this case, the complainant approached the State Government, and as per record the price was reduced from Rs. 1,000 to Rs. 275. If the consumer/complainant was not satisfied with the relief granted by the State Commission then he should have sought his remedy at a higher level, if one was available. Consumer Fora are not the Appellate Authority when an order is passed in the representation/ appeal filed by a consumer. Section 3 of the Consumer Protection Act, 1986 reads as follows:
3. Act not in derogation of any other law--The provisions of this Act- shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
11. It is clear that this is an additional remedy, but this does not mean, that consumer would be permitted to do 'forum-hopping', more so when order has been passed by a Competent Authority under law on representation/appeal filed by a consumer. As per law laid down by this Commission in large number of cases, the complainant is estopped from filing a complaint before the consumer forum against the order passed by State Government on representation, in view of which we are not able to sustain this complaint filed before the State Commission. Remedy for him lies with the authority higher than the authority who has passed the order fixing the rate of the plot @ Rs. 275 per sq. yard.
12. Another issue which has been agitated before us is that the plot in question has since been sold for a consideration of Rs. 10 lakh out of which way back in 2001, the complainant has received Rs. 6 lakh and the balance Rs. 4 lakh later on having transferred his right during the pendency of the complaint. In these circumstances whether the complainant would still remain a consumer or not? We have our serious reservation on this point. Having disposed of the property during the pendency of the complaint, in our view, the complainant would cease to be a consumer.
13. Another related issue is that when we see the record we find that the complainant had approached the Hoshiarpur Improvement Trust for permission to transfer/sell the land to one Sharma family. We also see on record that there is an affidavit filed by the complainant to the effect that he will withdraw the said complaint against the Hoshiarpur Improvement Trust before State Consumer Disputes Redressal Commission, Chandigarh. This letter and affidavit are dated 27.3.2001. Based on this, permission was given on 29.3.2001 to enable the transfer of the land to the prospective purchaser. A copy of the sale-deed is on record signed by the Executive Officer of the Improvement Trust as also the purchasers. In this regard, it is the case of the complainant that he had withdrawn the affidavit dated 27.3.2001. There is no material on record or any affidavit or document to this effect, in the absence of which, it smacks of rack dishonesty on the part of the complainant for the simple reason that when he wanted to take advantage of the situation, he made an application for permission to transfer the plot to the purchasers and also made an application in the form of undertaking to withdraw the complaint duly supported by an affidavit to this effect, and after the permission is given and having pocketed the purchase amount of almost Rs. 10 lakh he now wishes to state that he withdrew this affidavit. The latter part of the statement remains unsubstantiated and uncorroborated. There is no evidence to this effect on record.
14. It may further be mentioned that after taking advantage of the permission to transfer the property, as is evident from his letter and affidavit mentioned hereinabove, he cannot be allowed to take an about-turn and say that he would continue with the complaint. He is estopped on the basis of the principles laid down under Section 115 of the Indian Evidence Act, 1872, which reads as under:
115. Estoppel--When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.
15. This is an additional reason to say that he is not a consumer.
16. The complainant has taken two objections to this appeal filed by Improvement Trust. Firstly, that the statutory amount as per proviso of Section 19 has not been deposited, and secondly, the Executive Officer who has filed this appeal is not competent to file this appeal.
17. As far as the first point is concerned, the appeal was filed on 16.4.2003, the amendment to the Consumer Protection Act, 1986 incorporating the statutory requirement of depositing the given amount was made effective from 15.3.2003 and the rules and regulations to this effect were made subsequently. It takes certain amount of time for them to percolate. Registry of this Commission finally woke up in February 2007 to point out this lacuna and it was brought to the notice of the appellant Hoshiarpur Improvement Trust and consequently this amount was deposited on 15.3.2007, hence as on date no fault can be found on this ground on the part of the Hoshiarpur Improvement Trust. Fault, if any, will lie with the Registry of this Commission who did not notice the particular fact.
18. As far as the second leg of the argument is concerned, the Executive Officer is the Chief Executive Officer of the Hoshiarpur Improvement Trust and in our view is competent to file the appeal. Nothing to the contrary has been brought to our notice, that the CEO could not file the appeal. No law, rule, regulation of the Trust have been brought to our notice to take any different view, hence we see no merit in these primary objections, hence they are dismissed.
First Appeal No. 675 of 200319. This appeal has been filed by the complainant praying for compensation on account of cost-escalation, enhanced compensation for mental agony, cost of litigation being too low and praying for enhancement of litigation expenses and the fact that he being an ex-serviceman and being a senior citizen having no source to raise the construction of the house as no institution willing to help the complainant hence praying for enhancement of compensation.
20. This appeal has been filed by the complainant in the year 2003. It is amazing that how the prayer with regard to the cost-escalation and non-raising of finances from the financial institutions could matter when he has already sold this plot way back in 2001.
21. In the aforementioned circumstances, firstly, we do not find the complainant to be a consumer as already discussed for two reasons firstly, since he had already opted for a certain route for redressal of a grievance relating to per sq. yard price of plot, and such a view has been taken by State Government on his representation, we cannot be an Appellate Authority against any order passed by the State Government on representation from the complainant. Secondly, he was no more the owner of the plot. During the pendency of the complaint, having passed on the interest of the plot to somewhere else in our view, he will not continue to be a consumer. More so, when the permission to transfer land to a third party was given upon his undertaking to withdraw the case duly supported by the affidavit which according to the complainant he withdrew later, but there is no evidence to this effect.
In the aforementioned circumstances, FirstAppealNo. 358 of 2003 filed by Hoshiarpur Improvement Trust is allowed and the order passed by the State Commission is set aside.
22. The First Appeal No. 675 of 2003 filed by the complainant Major Amrit Lal Sairti, is devoid of merit as discussed earlier, hence dismissed.
23. The complainant shall always be free to seek his remedy before any Court of Law other than Consumer Forums, if so advised, under any law, for which he can take advantage by way of getting a set-off for the period spent before us, under Section 14 of the Limitation Act, as per law laid down by the Hon'ble Supreme Court in the case of Laxtni Engineering Works v. P.S.G. Industrial Institute .