State Consumer Disputes Redressal Commission
Ludhiana Imp. Trust vs Dr. Satpal Aggarwal And Others on 19 May, 2015
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.554 of 2011 Date of Institution: 28.03.2011 Date of Decision : 19.05.2015 Ludhiana Improvement Trust, Ludhiana, through its Executive Officer/Chairman. .....Appellant/Opposite Party No.1 Versus 1. Dr.Satpal Aggarwal Son of Sh. Muni Lal Aggarwal, resident of House No.177-G, Bhai Randhir Nagar, Ludhiana Respondent no.1/Complainant 2. The Adarsh Colony Co-operative, House Building Society, Ludhiana, 570/1, National Road, Near Bhaiwala Chowk, Ludhiana through its Authorized Signatory. .....Respondent no.2 /Opposite Party No.2 First Appeal against order dated 17.12.2010 passed by the District Consumer Disputes Redressal Forum, Ludhiana Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri. Vinod Kumar Gupta, Member.
Shri Harcharan Singh Guram, Member Present:-
For the appellant : Sh.Prem Kumar, Advocate For the respondent no.1 : Sh.L.D Gupta, Advocate For the respondent no.2. : Ex-parte. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant (the Opposite party No.1 in the complaint) has directed this appeal against the respondents of this appeal, (the respondent no.1 is the the complainant in the complainant) (respondent no.2 in this appeal is the opposite party no.2 in the complaint), challenging order dated 17.12.2010 of District Consumer Disputes Redressal Forum Ludhiana, accepting the complaint of the complainant and partly allowing the quashment of the demand of Rs.7,48,570/- for non-construction charges, being illegal and unwarranted with direction to OPs to execute the sale deed of the allotted plot in favour of the complainant within 45 days from the date of receipt of copy of this order, subject to deposit of enhanced charges of Rs.69707/- and increased cost of Rs.19740/-. The instant appeal has been preferred against the same by the OP No.1.
2. The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he has been the original and permanent member of Adarsh Colony Cooperative House Building Society /OP No.2, vide membership no. 564. He was allotted plot no.177-G, measuring 250 sq. yards in BRS Nagar Ludhiana by the OPs. This land was owned by OP No.2 Society, which was acquired by OP No.1 for its development scheme, known as Bhai Randhir Singh Nagar Scheme. This scheme was finally sanctioned by the Local Government, Department of Punjab Government Chandigarh. The land, which was acquired from the said society was exempted, vide notification no.92B-ICII-77/4702 dated 09.02.1977 issued by the Local Government Department of Punjab Government on the basis of proposal submitted by the OP No.1, vide memo no LIT/TE/5769 dated 24.06.1976. As per notification, members of the Society/OP No.2 were to be given plots by OP No.1. The said Society filed Civil Writ Petition No.2659 of 1981 in the Punjab & Haryana High Court and thereafter it was withdrawn by the Society, vide order dated 10.11.1983. Vide allotment letter no.LIT/3744 dated 02.09.1983, plots including plot no. 177-G, measuring 250 sq. yards in BRS Nagar Ludhiana was allotted @ Rs.50/- per sq. yards to Rs.66/- sq. yards to the said Society for the allotment to its members and OP No.2 further allotted plot no.177-G to the complainant, vide allotment letter. The complainant became full owner of this plot and was fully entitled to get the sale deed of this plot executed in his favour. The allotment of the plots along with the plot of the complainant was challenged in various Courts and Punjab Government Departments. After a long period of litigation, the entire allotment including the plot of the complainant was cancelled as per Courts orders. On 09.05.1993, fresh allotments to its members including the complainant was made of the plots. OP No.1 did not give possession nor executed any sale deed of the plot in favour of complainant. The complainant was allotted this plot on 09.05.1993 and was given possession in the year 1995 by the OPs only. OP No.1 started executing the sale deeds and handing over the possession after making fresh allotment of the plots on 09.05.1993. All development work was to be executed by OP No.1, but due to pending litigation no development works like road, water supply, sewerage and other amenities were provided by OP No.1 therein. The complainant continued making representations and paying personal visits to the opposite parties for execution of the sale deed of this plot in his favour, but to no effect. After re-allotment of this plot on 09.05.1993, OP No.1 provided some infrastructure in this block. The complainant decided to construct the house in this plot. Since, on 01.08.1994 this scheme was transferred to the Municipal Corporation Ludhiana by deposting Rs.300/-, vide receipt no.748/29 dated 11.10.1996 and Rs.125/-, vide receipt no. 9593/23 dated 11.10.1996. The Commissioner Municipal Corporation Ludhiana, vide order no.1409 dated 08.11.1996 sanctioned this building plan. As per mandatory circular dated 22.09.2003 issued by the Department of Local Government Punjab Chandigarh, building control of Improvement Trust Colnoies stood transferred to Municipal Corporation. In spite of fulfilling all conditions and even after making full payment, OP No.1 had not executed the sale deed of the allotted plot in favour of the complainant. OP No.1, vide memo no.LIT/SB/4854 dated 28.07.2008, directed the complainant to deposit Rs.686318/- for non-construction charges before his request for execution of sale deed was acceded to of the allotted plot. The complainant had contacted OP No.1 and pleaded with them that since he had constructed his house within permitted period of three years and after getting the site plan sanctioned, so he is not liable to pay any non-construction charges. The complainant applied to OP No.1, vide slip no.26933 dated 17.12.2009, which was acknowledged by OP No.1, vide receipt dated 18.12.2009. However, despite that no sale deed was executed in his favour. The Punjab Government, vide its notification dated 11.11.2009 amended the Punjab Stamp Rules 2009. Complainant further averred the he could not be asked to pay the non-construction charges with effect from 1.1.1986 because he was neither handed over the possession of the plot nor his building plan was sanctioned, which prevented, to construct his house on the plot in dispute. He further averred that he was re-allotted this plot on 09.05.1993 only and then his building plan was sanctioned and he constructed his house within the permitted period of three years. The complainant has, thus, filed the present complaint by directing the OPs to execute the sale deed of plot no.177-G BRS Nagar Ludhiana in his favour without recovering any non-construction charges from him and he be also awarded compensation of Rs. 3 lac for mental harassment, Rs.35,000/- for incurring huge expenses and Rs.25,000/- as costs of litigation.
3. Upon notice, OP No.1 filed written reply and contested the complaint of the complainant. It was further averred in preliminary objections by OP No.1 that there is no deficiency in service on its part. The complaint is barred by time and merits dismissal on that point. OP No.1 denied the averments of the complainant that he has made the full payment of the plot or other dues of this plot. It was denied that he has become owner of the plot in dispute. It was further averred that complainant has been still in arrears of non-construction charges and other dues and without making the payment thereof, the complainant is not entitled for the execution of the sale deed of the allotted plot in his favour. OP No.1 further averred that complainant has not deposited the non-construction charges with OP No.2, before execution of the sale deed in his favour. OP No.1 prayed for dismissal of the complaint.
4. OP No.2 was set exparte before District Forum on 07.04.2010.
5. The complainant tendered in evidence the affidavit of Dr. Satpal Aggarwal complainant Ex.CW-1/A, copy of PAN number Ex.C-1, copy of letter of allotment Ex.C-2, copy of letter addressed to Chairman Improvement Trust Ludhiana by the Secretary to Government Punjab Ex.C-3, copies of letters Ex.C-4 to Ex.C-5, copy of receipt of Rs.300/- of Municipal Corporation Ludhiana Ex.C-6, copy of receipt of Rs.125/- of MC Ludhiana Ex.C-7, copy of Form of Sanction Ex.C-8, copy of receipt of MC Ludhiana Ex.C-9, copy of letter dated 22.09.2003 Ex.C-10, copy of memo no.4854 dated 28.7.08 Ex.C-11, copy of request slip of Ludhiana Improvement Trust Ex.C-12, acknowledgement Ex.C-13, copy of notification Ex.C-14, copy of letter Ex.C-15, copy of order Ex.C-16, copies of documents Ex.C-17 to Ex.C-18, copy of order Ex.C-19, copy of circular dated 08.07.1994 Ex.C-20, copy of letter regarding charging of non-construction fee Ex.C-21, copy of memo dated 28th October 2004 Ex.C-22, additional affidavit of complainant Ex.CW-2. As against it, OPs tendered in evidence affidavit of Lal Singh, Executive Officer Ludhiana Ex.R-1, copy of calculation Ex.R-1. On conclusion of evidence and arguments, the District Consumer Disputes Redressal Forum Ludhiana, partly accepted the complaint of the complainant and quashed the demand of Rs. 7,48,750/- raised as non-construction charges by OP No.1. District Forum further directed to OPs to execute the sale deed in favour of the complainant within 45 days from receipt of copy of this order, subject to depositing the enhancement charges of Rs.69707/- and increased cost of Rs.19740/- with the OPs. Dissatisfied with the order of the District Forum Ludhiana, the OP No.1 now appellant has preferred this appeal against the same.
6. We have heard learned counsel for the parties and have also examined the record of the case. We are called upon to determine this point in this appeal as to whether the demand of non-construction charges of Rs. 6,86,318/- raised by OP No.1 is legal and warranted or not. The next point for adjudication is as to whether complainant is entitled to direction to the OP NO.1 to execute the sale deed in favour of the complainant of the allotted plot. Evidence is required to be examined by us on the record in this case to adjudicate this matter. The affidavit of Dr. Satpal Aggarwal Ex.CW-1/A is on the record, wherein he stated in his affidavit that due to acquisition and de-acquisition of the proceedings between OP No.1 and OP No.2, the allotment of plot of the complainant was de-acquisitioned eventually. He further stated that after de-acquisitioned, the fresh allotment of the plot was made on 09.05.1993 to him. He further stated that OP No.1 provided some infrastructure in this block and complainant decided to construct his house on this plot. He further deposited in his affidavit that since 01.08.1994, the scheme was transferred to M.C Ludhiana and he submitted his building plan to M.C Ludhiana by depositing Rs.300/-, vide receipt Ex.C-6 and by depositing Rs.125/-, vide receipt Ex.C-7 and building application fee and Commissioner Municipal Corporation Ludhiana, vide its order Ex.C-8 sanctioned site plan and it is on the record. He further pleaded that he started raising construction on this plot. He has challenged the demand of non-construction charges raised by OPs, being not warranted and authorized. He further deposed that instead of executing the sale deed, the OPs raised demand of Rs. 686318/- as non-construction charges from the complainant. The complainant pleaded that since he had constructed the house in the permitted year of three years from the allotment, after getting site plan sanctioned and hence he was not liable to pay any non-construction charges to OP No.1. He produced copy of request slip Ex.C-12 acknowledged by OP No.1, vide Ex.C-13. He also produced copy of notification Ex.C-14. He stated his case on oath, as pleaded in the complaint. Ex.C-1 is Permanent Account Number of the complainant, Ex.C-2 is letter of allotment issued by OP/Society, Ex.C-3 is letter dated 09.02.1977 addressed by Secretary to Government of Punjab Local Government Department to Chairman Improvement Trust with regarding to exemption of the area from acquisition of the society and Ex.C-15 has also been considered by us on the record. Ex.C-6 is receipt of Rs.300/- deposited by the complainant on 08.11.1996 with M.C Ludhiana. Ex.C-7 is receipt of Rs.125/- deposited by complainant on 11.10.1996 with M.C. Ludhiana. Ex.C-8 is Form of Sanction issued by Assistant Corporation Town Planner Municipal Corporation Ludhiana. The building plan of the complainant was sanctioned on 06.11.1996 and this fact is substantiated by Form of Sanction Ex.C-8 on the record. Ex.C-8 has proved this fact categorically that building plan of the complainant was sanctioned on 6.11.1996. Ex.C-9 is receipt of acknowledgment issued by M.C Ludhiana. Ex.C-10 is letter addressed to M.C Ludhiana by Additional Secretary, Government of Punjab for transfer of the scheme to M.C Ludhiana. Ex.C-11 is memo no.177-G dated 28.7.08 intimating the complainant the amount of Rs.686318/- as non-construction charges was outstanding against him. Ex.C-12 is Request Slip for computer job only. Ex.C-14 is notification issued by Government of Punjab under Stamp Act. Ex.C-15 is instructions of government to Chairman Municipal Trust, in para no.2 and 3 of Ex.C-15 contended that extension fee will be applicable in respect of all the late construction in the plot. The Government of Punjab issued instruction by virtue of this letter Ex.C-15 that non-construction charges would be applicable, when construction is not completed within the stipulated period. Ex.C-16 is copy of order with regard to litigation with Cooperative Society/OP No.2. Ex.C-17 is copy of Writ Petition as per own case of the complainant, Writ Petition was eventually withdrawn from the High Court. Ex.C-19 is copy of order passed by Secretary to Government of Punjab, Department of Local Government. Ex.C-20 is circular no.1 1994-95. Ex.C-21 is letter from Joint Secretary to Chairman Improvement Trust on 22.4.1999 for recovering the non- construction charges. Ex.C-22 is instruction of Government of Punjab regarding charging of non-construction fee in respect of the area exempted in various schemes by the Trust. Additional affidavit of complainant Ex.CW-2 is on the record.
8. To counter this evidence, OPs tendered in evidence affidavit of Sh. Lal Singh Tiwana Executive Officer of Improvement Trust Ludhiana on the record. He stated in it that complainant never paid the full payment of the cost or allotment costs of the plot in question. The complainant is still in arrears of non-construction charges to the tune of Rs.6,86,318/-and other dues and without making the payment of all the dues, complainant is not entitled to the execution of the sale deed of the property in question. He further stated that non-construction charges have risen up to Rs.8,38,197/- and complainant is liable to pay the outstanding amount thereof. It was denied that complainant is their consumer. Ex.R-1 is amount due from the complainant. Ex.R-A is further affidavit of the Sh. Lal Singh Tiwana , Executive Officer Ludhiana Improvement Trust Ludhiana. On the basis of above referred evidence, the District Forum Ludhiana accepted the complaint of the complainant partly and quashed the demand of Rs. 7,48,750/- raised by OP No.1 as non-construction charges from the complainant. The District Forum directed OP No.1 to execute the sale deed of the allotted plot in favour of the complainant, subject to depositing the enhanced charges of Rs.69707/- by the complainant and increased cost of Rs.19740/- by complainant with the OPs.
9. The findings of District Forum have been assailed by OP No.1, the present appellant in this case. The demand raised by the OPs on 28.07.08 of non-construction charges is Ex.C-11. The District Forum observed in the order that the complainant under terms and conditions of the allotment would be liable to pay the enhanced and increased cost of the plot. The cost of the plot was increased, vide resolution dated 29.11.2000 by OP No.1 from @ 50/- to 95/- per sq. yards. The complainant would be liable to pay the increased demand of the price of the plot. On the point of the non-construction charges, it was observed by District Forum that non-construction charges are unauthorized and illegal. We do not agree with the reasoning of the District Forum on this point, when evidence placed on the record in this case is examined. The submission of counsel for complainant is that there is no provision under Improvement Trust Act or Rules to levy the non-construction charges in case construction is not raised within the stipulated period. Similarly emphasis has been laid by counsel for the complainant on the re-allotment letter to the effect that there was no resolution for raising the non-construction charges. It was submitted by counsel for the complainant that neither there is any provision under the Improvement Trust Act or the Rules nor in the allotment letter to raise non-construction charges and as such they were unauthorized.
10. We find that OPs issued instructions for raising non-construction charges from those allottees, who did not raise the construction within the stipulated period. Consumer Forum cannot set aside the instructions of the Government like regular courts. Even Ex.C-15, contain of the provision to raise the construction within three years from the date of issue of allotment order after getting the demarcation and there is provision for raising non-construction charges in it. Even Ex.C-21 issued by Joint Secretary to the Chairmen Improvement Trusts, no penal fee or non-construction fee will be charged from the allottees for such period during which the allotments were either under the stay of the Government or litigation and these will be referred to the Government. Ex.C-22 is instructions of the Punjab Government for non-construction charges. The Government of Punjab has been issuing the instructions for levy of non-construction charges in this case. The counsel of the complainant referred to law laid down by this Commission in Improvement Trust Ludhiana Vs. Neeraj Chugh & others in First Appeal No.1278 of 2009, Date of Institution 08.09.2009, Date of Decision : 16.09.2013 and also judgment of this Commission in Improvement Trust Ludhiana Vs. Nirmala Wati Loomba & Others, First Appeal No.1273 of 2009, Date of Institution 04.09.2009, Date of Decision : 04.04.2014 and contended that non-construction charges could not be raised. On the other hand, Counsel for OP No.1 now appellant relied upon the judgment of this Commission in Improvement Trust Barnala Vs. Meena Modi reported in II(2010) CPJ 123. From perusal of the cited judgments, we find that the ratio of the case of the Improvement Trust Barnala Vs. Meena Modi is directly applicable to this case, wherein it was held that allottee cannot avoid the liability of raising construction within stipulated period. Settled policy of the Government is that allottee is to raise construction within stipulated period from the date of allotment and if they failed to do so, they would be liable to pay non-construction/extension fee. Ratio of the judgment in Improvement Trust Barnala Vs. Meena Modi (supra) is directly applicable in this case. Counsel for the complainant referred to law laid down by our own State Commission in Ludhiana Improvement Trust Ludhiana Vs. Mulkh Raj & others in FA No.974 of 2011, decided on 25.03.2015, instituted on 23.06.2011, the facts of the said above authority are distinguishable from the facts of the case in hand. It was observed in the cited authority that allottee could not raise the construction, as basic amenities like water supply, sewage, roads and water were not provided by the OPs in the disputed area and due to this OPs were not liable to levy the non-construction charges. This judgment would not be helpful in this case due to different factual matrix wherefrom it arose.
11. Now, we consider this point as to whether development was carried out by OP No.1 and amenities were provided in the allotted area or not. Complainant pleaded this fact in para no.9 of the complaint that complainant was allotted the plot on 09.05.1993 and possession was given to him in the year 1995. Previously on account of acquisition, de-acquisition proceedings, the allotment stood revoked and eventually the plot was re-allotted to the complainant on 09.05.1993, as per own pleaded case of the complainant. The complainant could not have raised the construction within three years period from the date of the re-allotment i.e. 09.05.1993 up to 08.05.1996. The complainant further pleaded that he was given possession in the year 1995 by the OPs. We find that building plan was sanctioned by the Improvement Trust Ludhiana on 06.01.1996, vide Ex.C-8 on the record in pursuance of deposit of the fee by the complainant. Consequently from the date of the re-allotment of the plot to the complainant on 09.05.1993, the complainant could have raised the construction at the outside within three years period up to 08.05.1996. The OPs are not justified in raising the non-construction charges from the complainant prior to 08.05.1996, when three years period have not elapsed or rolled by from the date of re-allotment of the plot to complainant. The OPs are within their jurisdiction to raise non construction charges from the complainant for the period from 08.05.1996 onwards.
12. The complainant further took plea that he has completed the constructions in this case within the stipulated period. The affidavit of the complainant is on the record to this effect. On the other hand, OPs have not admitted this fact and denied it vehemently. The complainant merely stated that construction raised by him was within stipulated period. Vide Ex.C-11, OP asked the complainant to deposit the non-construction charges and this memo was issued on 28.7.08. We have examined the record on the file. There is no question of raising non-construction charges by the OPs, had construction been completed by the OPs, as contemplated by law within time. Counsel for appellant submitted that as per the judgment of the Apex Court in HUDA Vs.Sunita, reported in (2005)2 SCC 479 that District Forum has no jurisdiction to go into the correctness of the demand made by the Haryana Urban Development Authority regarding non-construction charges. We find that when the Development Authority has performed its duty and provide the basic amenities and allottee has failed to raise the construction, then demand of the non-construction charges could not be overlooked by the Forum. Herein, we find that the OPs could not have raised the demand of the non-construction charges from the complainant till 08.05.1996 up to expiry of three years period from the date of re-allotment of the plot on 09.05.1993 to the complainant. OP No.1 now appellant is fully within its province to raise the non-construction charges with effect from 08.05.1996 onwards from the complainant. The order of the District Forum under challenge is thus not sustainable and stands modified in this appeal protanto accordingly.
13. As a result of our above discussion, we accept the appeal of the appellant with the modification that appellant being OP No.1 is entitled to demand the non-construction charges from the respondent no.1 in the appeal being the complainant with effect from 08.05.1996 onwards and not prior to 08.05.1996. The order of the District Forum stands modified to this extent and stands set aside accordingly.
14. Arguments in this appeal were heard on 15.05.2015 and the order was reserved. Now the order be communicated to the parties.
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER (HARCHARAN SINGH GURAM) MEMBER May 19, 2015.
(ravi)