State Consumer Disputes Redressal Commission
Improvement Trust, Moga vs Gurnam Singh on 21 May, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1839 of 2011
Date of Institution: 15.12.2011.
Date of Decision: 21.05.2015.
1. Improvement Trust, Moga through its Chairman.
2. Executive Officer, Improvement Trust, Moga.
.....Appellants/opposite parties
Versus
Gurnam Singh S/o Shri Sampuran Singh, resident of Village Khosa
Pando, Tehsil and District Moga now resident of House no.1393,
New Civil Line, Moga.
....Respondent/complainant
First appeal against order dated
08.11.2011 passed by the District
Consumer Disputes Redressal
Forum, Moga.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Shri H.S. Guram, Member.
Present:-
For the appellants : Sh. D.P. Gupta, Advocate
For the respondent : Sh. L.D. Gupta, Advocate
.............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellants of this appeal (the opposite parties in the complaint) have directed this appeal against the respondent of this appeal (the complainant in the complaint), assailing order dated 08.11.2011 of District Consumer Disputes Redressal Forum Moga First Appeal No.1839 of 2011 2 (in short, "the District Forum"), accepting the complaint of the complainant by directing the OPs to execute the sale deed of the allotted plot in favour of complainant by waiving the non-construction charges and building application fee thereon.
2. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OPs on the averments that he was allotted plot no.2, Block-B in Scheme no.6, Tianwala Chappar Moga, measuring 200 sq. yards, vide allotment letter no.IT(M)-87/393 dated 18.05.1987 for a total consideration of Rs.32,000/- to be paid in half yearly installments. As per terms and conditions of allotment letter, there is no condition of levy of any non-construction charges. As per terms and conditions of this allotment letter, the complainant paid all the installments alongwith interest, penal interest and penalty to the OPs. The detail of payments made by the complainant to the OPs is as under:-
Sr. Receipt no. Date Amount (in Annexure
no. Rs.) no.
1. 43/8 06.03.1987 4000 C-2
2. 75/9 11.09.1987 4000 C-3
3. 87/9 19.11.1987 6240 C-4
4. 25 16.05.1988 5952 C-5
5. 11/54 05.05.1989 5664 C-6
6. 13/11 (not clearly 26.10.1989 5376 C-7
legible)
7. 12/23 (not clearly 05.12.1989 5088 C-8
legible)
8. 20/17 22.08.1994 5637 C-9
First Appeal No.1839 of 2011 3
The complainant has deposited the cost of the said plot with the OPs and no amount is outstanding against the complainant. The complainant got the building plan sanctioned, vide sanction letter no.IT(M)-88/1057 dated 01.03.1988, after paying the building application fee of Rs.550/-, vide receipt no.5/10 dated 29.02.1988. The complainant constructed a habitable unit consisting of two bedrooms, kitchen, bathroom and toilets, etc. after getting the sanction of building plan. The complainant applied for transfer of this plot in the name of S. Mohinder Singh S/o S. Joginder Singh, but the same was not done by the OPs. The complainant applied to OPs for execution of sale deed of this plot in his favour, but to no effect. The OPs raised the plea that the amount of Rs.4,52,100/- + Rs.1,79,832/- total Rs.6,31,932/- was due, as non construction charges and Rs.17,295/- as building application fee from the complainant. There is no provision in the Punjab Town Improvement Act, 1922, nor in the Rules enacted thereunder or in the allotment letter to levy any non-construction charges over the above plot. The demand of the OPs raising non-construction charges amount from complainant is unjustified and unreasonable. The complainant has filed the complaint with the averments that even civic amenities, such as roads, water supply and sewerage in this scheme have not been provided by the OPs in adjoining area of the plot and hence no such demand of non-construction charges could be raised. The amount of First Appeal No.1839 of 2011 4 Rs.17,295/- as building application fee was demanded from the complainant again since the complainant had already paid the building application fee. The complainant further averred that no sale deed was executed in his favour by the OPs. The complainant has thus filed the complainant against the OPs, directing them to set aside the demand of Rs.6,31,932/- as non construction charges and Rs.17,295/- as building application fee and further directing OPs to execute the sale deed of the said plot in favour of complainant. The complainant has also prayed for the compensation of Rs.2 lakhs for mental harassment and Rs.55,000/- as litigation expenses.
3. Upon notice, OPs appeared and filed written reply raising preliminary objections that the complaint of the complainant is false and frivolous. The complainant has concealed the material facts from the Forum. Vide allotment letter no.IT(M)87/393 dated 18.05.1887, the complainant was allotted the property for a consideration of Rs.32,000/-. The complainant undertook to abide by all Rules and Regulations amended day to day and said Rules and Regulations are of Punjab Town Improvement Act, 1922 and Punjab Town Improvement (Utilization of land and allotment of plots) Rules 1983. The complainant undertook to complete the building construction within three years from the date of allotment after getting demarcation and after getting site plan of the proposed building approved from the OPs. The complainant has not fulfilled the undertaking and failed to comply with the Rules. The complainant First Appeal No.1839 of 2011 5 got the site plan passed, vide letter no.IPM/88/1057 dated 01.03.1988, which was duly received and signed by the complainant himself. The complainant himself undertook in letter dated 01.03.1988 to raise the construction within one year from 01.03.1988, but the complainant had not raised any such construction. The OPs issued letters/notices no.ITM/99/213 dated 20.04.1999, ITM-2000/379 dated 14.12.2000 and ITM-2006/821 dated 12.09.2006 to the complainant for raising construction and in the event of non compliance, the resumption of plot for its non- compliance. Vide application dated 10.05.2011, the complainant submitted his completion certificate/letter, but said letter stating completion of construction is false, in as such as, the Executive Officer of OPs after letter dated 10.05.2011, visited the spot and found that there was no building, but only two rooms were there at the spot. The J.E. and Assistant Trust Engineer, vide their report dated 30.11.2010 reported that the said room on the disputed plot were in dilapidated condition and are not habitable and there was no electric and sewerage connection in the property. The Punjab Government, vide notification no.G.S.R/36/PA dated 15.12.2005, defined the building and the complainant has not completed the building, thus, entailing the levy of non construction charges. On merits, OPs averred that Punjab Government issued notification/rules regarding payment of non construction fee, vide memo no.296-Misc.2CII-89/15112 dated 29.11.1989, no.5/74/95- First Appeal No.1839 of 2011 6 4LGII/3512 dated 08.04.1997, no.5/74/95-3L/GII/7716 dated 16.06.1998, no.5/74/95-3LGII/1091 dated 28.01.1999, no.5/110/99- 2LGII/4985 dated 22.04.1999, no.5/74/95-4 3LGII/12049 dated 09.09.1999, no.5/74/95-4LGII 8071 dated 20.07.2000, no.74-95- 4LG-11/9387 dated 14.08.2000, no.5/277/2003-4 dated 27.11.2003, no.2/258/99-ILGII dated 04.12.2003 and memo no.8/2004 2LG2/3322 dated 07.03.2005. Vide letter no.1679/M-22 dated 18.09.1998 issued by Punjab Water Supply Sewerage Board to Chairman Improvement Trust Moga. It was informed to the OPs that the sewerage works and pipe lines have been completed in scheme no.6, where the plot in dispute of the complainant was situated. The complainant is liable to pay the non-construction charges, as the above said amenities were provided and completed by the OPs in the allotted area in the year 1998. The OPs asserted the validity of the demand for non-construction charges raised by the OPs from the complainant. The OPs prayed for the dismissal of the complaint of the complainant.
4. The complainant tendered in evidence his affidavit Ex.1-A alongwith documents Ex.C-1 to Ex.C-15 and closed the evidence. As against it, the OPs tendered in evidence the affidavit of Yogesh Goyal, Chairman Ex.R-1 alongwith documents Ex.R-2 to R-26 and closed the evidence. On conclusion of evidence and arguments, the District Forum Moga accepted the complaint of the First Appeal No.1839 of 2011 7 complainant. Dissatisfied with the above order, OPs now appellants have preferred this appeal against the same.
5. We have heard learned counsel for the parties and have also examined the record of the case. Evidence is required to be examined by us on the record to settle the controversy between the parties in this case. The affidavit of the complainant is Ex.1-A on the record. He has stated the averments, as contained in complaint on oath, in his affidavit. He stated in his affidavit that 200 sq. yards plot was allotted to him, vide letter number IT(M)-87/393 dated 18.05.1987 for a total consideration of Rs.32,000/- to be paid in half yearly installments. He further stated in his affidavit, that as per terms and conditions of allotment letter, there is no condition of levy of non-construction charges and he has paid all the installments alongwith interest, penal interest and penalty to the OPs, as per terms and conditions of this allotment letter. He further stated that the complainant has deposited the cost of the said plot with the OPs and no amount thereof is outstanding against the complainant. He further stated in his affidavit that he got the building plan sanctioned, vide sanction letter no.IT(M)-88/1057 dated 01.03.1988, after paying the building application fee of Rs.550/-, vide receipt no.5/10 dated 29.02.1988 and he constructed a habitable unit consisting of two bedrooms, kitchen, bath room and toilets etc. after getting the sanction of building plan and copy of fee deposited by the complainant against building plan is Ex.C-10 and copy of sanction First Appeal No.1839 of 2011 8 letter is Ex.C-11. He further stated that OPs took shelter under Punjab Government notification dated 15.12.2005 for raising non construction charges. That there was no condition before 15.12.2005, nor it was mentioned in the allotment letter and hence the complainant is not liable to pay any non construction charges of Rs.6,31,932/- in all, as raised by the OPs. He further stated that civic amenities have not been fully provided by the OPs and due to this reason, no non construction charges could be levied on him. He further stated that he served legal notice dated 16.07.2011 upon OPs, but to no effect. Ex.C-1 is the copy of allotment letter dated 18.05.1987. Clause 7 of this allotment letter records that allottee shall have to complete the building on the plot within three years from the date of issue of allotment order after getting the demarcation and after getting the plan of the proposed building approved from the Trust. Clause 11 of this allotment letter further lays down that allotment is subject to the provisions of the Punjab Town Improvement Act, 1922 and Punjab Town Improvement (Utilization of land and allotment of plots) Rules, 1983, as amended upto date and the allottee shall have to abide by the provisions of the same. The amounts deposited by the complainant with the OPs are proved through receipts Ex.C-2 to Ex.C-10 on the record. Ex.C-11 is the copy of letter sent by the OPs to the complainant on 01.03.1988 to the effect that the building plan of the complainant has been sanctioned and complainant has to raise the construction within one First Appeal No.1839 of 2011 9 year. The complainant has to inform the trust within one month from date of starting of construction, failing which it would be deemed that he has not complied with and would be liable to pay the default fee therefor. The complainant wrote letter Ex.C-12 to the Improvement Trust Moga, but there is no date recorded on it, on which date, it was written regarding his willingness to get sale deed executed. Ex.C-13 is the copy of letter dated 03.03.1988 of Punjab Government to Chairmen of Improvement Trusts regarding grant of extension in time limit for the construction of plots by following uniform policy. It lays down that construction has to be completed within three years from the date of allotment, failing which the allottee would give the extension fee. Ex.C-14 is the copy of notification of the Government of Punjab dated 07.03.2011 for amending the Stamp Act. Ex.C-15 is the copy of legal notice served upon the OPs by the complainant. In rebuttal of evidence of the complainant, the OPs placed reliance on, the affidavit of Yogesh Goyal Chairman of OPs Ex.R-1 on the record. Yogesh Goyal Chairman of Improvement Trust Moga sworn in his affidavit Ex.R-1 that complainant was allotted the plot on 18.05.1887 for Rs.32,000/-. The complainant undertook to abide by the Rules and Regulations amended day to day under Punjab Town Improvement Trust Act. The complainant undertook to complete the construction of building on the plot within three years from the date of allotment of letter after getting the demarcation and after getting site plan of proposed building approved from the Trust. He further First Appeal No.1839 of 2011 10 stated in his affidavit that the complainant has not fulfilled the undertaking and failed to comply with the Rules. The complainant got the proposed site plan passed, vide letter no.IPM/88/1057 dated 01.03.1988, which was signed and received by the complainant himself. The said letter indicates that the complainant undertook to raise the construction within one year from 01.03.1988, but the complainant has failed to raise the construction within year. The OPs issued letter to the complainant in this regard and to resume the plot in the event of non-compliance thereof. The complainant submitted the completion certificate on 10.05.2011, but it was found false by the OPs, as Executive Officer of OPs visited the plot of complainant and found that there was no building, but only two room were existing there on the spot. The Assistant Trust Engineer and Junior Engineer, vide their report dated 30.11.2010 reported that two rooms were on the disputed plot in dilapidated condition and were not habitable and there was no electric and sewerage connection in the property in dispute whatsoever. This witness stated the validity of the non construction charges. Ex.R-2 is the letter dated 08.05.1987 to the complainant for allotment of the plot. Ex.R-3 is the letter dated 01.03.1988 for sanction of the building plan of the complainant. Ex.R-4 is the copy of letter dated 20.04.1999 regarding show cause notice for non construction. Ex.R-5 is copy of letter dated 14.12.2000 address to the complainant that he has not completed the construction over the allotted plot within three years. Ex.R-6 is the First Appeal No.1839 of 2011 11 copy of letter dated 12.09.2006 regarding non construction of building over the plot. Ex.R-7 is the copy of notification dated July, 2011 to amend the Punjab Town Improvement (Utilization of Land and allotment of plots)Rules, 1983. Ex. R-9 is the copy of notification dated 13.12.2005. The explanations of Rule 7(B) of this notification lays down that in case of residential buildings, the construction of one habitable room, kitchen, bath room and water-closet alongwith taking of connection of water supply and electricity shall be deemed to be a complete building. Ex.R-10 is the copy of resolution dated 14.07.2000 of the Trust. Ex.R-12 is copy of letter to Chairmen of Improvement Trust of Punjab regarding grant of extension of time limit for the construction of plots-charging of extension fee thereof. Ex.R-13 is the copy of letter dated 08.04.1997 to the Chairmen of Improvement Trust of Punjab regarding charging of non construction fee and extension of time limit. Ex.R-14 is copy of letter dated 16.07.1998 to Chairmen of Improvement Trust of Punjab, clarification regarding charging of non construction fee and extension of time limit. Ex.R-15 is the copy of letter dated 28.01.1999 regarding rates of non construction charges. Ex.R-16 to R-20 are the copies of letter in continuation of the same. Ex.R-21 is the copy of letter dated 27.11.2003 has also been examined by us. We have also examined the other documents on the record.
6. From perusal of above referred evidence on the record, we find that Punjab Government had been issuing the instructions to First Appeal No.1839 of 2011 12 the Chairmen of Improvement Trust of Punjab from time to time for levying non construction charges, where the allottees failed to raise the construction within three years period. The submission of counsel for the complainant, now respondent is that there is no provision in the allotment order under the Improvement Trust Act to levy the non construction charges. The counsel for the complainant, now respondent cited the decision of this Commission titled as "Improvement Trust Ludhiana Vs. Neeraj Chugh and others"
first appeal no.1278 of 2009 decided on 16.09.2013 and another decision in "Improvement Trust Ludhiana Vs. Nirmala Wati Loomba" first appeal no.1273 of 2009 decided on 04.04.2014 to contend that the demand raised for non construction charges is illegal. We find that matter has also been decided by our State Commission in "Improvement Trust Barnala & Anr. Vs. Meena Modi" reported in 2011(II)-123 wherein it has been held that Improvement Trust proved that house in that locality completed by other persons and they were given allotments. Respondent cannot avoid her liability of raising construction. Settled policy of Government that allottees to raise construction within stipulated period of 3 years from the date of allotment and if they failed to do so, they would be liable to pay non construction fee/extension fee. This authority is directly applicable to the fact situation of this case in hand vis-a-vis, the above referred cited cases of our own State Commission. It was held in this authority that the Improvement Trust First Appeal No.1839 of 2011 13 is competent to raise the non construction charges, if allottee has not raised the construction within stipulated period by our own State Commission.
7. From perusal of evidence on the record, we find that plot was allotted to the complainant on 18.05.1987, vide allotment letter no.IT(M)87/393. Clause no.7 of this allotment order mandated the complainant to raise the construction within three years from the date of issuance of allotment order after getting demarcation and after getting proposed building plan approved from Trust. The complainant deposited installments, vide Ex.C-2 to C-10 on the record. Vide letter Ex.C-11, the building plan was sanctioned on 01.03.1988. Vide Ex.C-13, the Chairmen of Improvement Trust of Punjab were directed by the Punjab Government to follow the uniform policy for non construction charges/extension fee. The rates have been set out in it for raising extension fee. Yogesh Goyal Chairman of OPs in his affidavit Ex.R-1, has specifically stated that the complainant submitted the completion certificate on 10.05.2011 and it was found to be false, because Executive Officer of OPs visited the spot and found that there was no building over the plot in dispute other than only two rooms that too in dilapidated condition without any sewerage or electricity connection therein. The complainant has not placed on record any evidence regarding any sewerage or electricity connection taken by him in the allotted plot, as per clause 7(b) of notification Ex.R-9 that the residential buildings, First Appeal No.1839 of 2011 14 the construction of one habitable room, kitchen, bathroom and water- closet alongwith taking of connection of water supply and electricity shall be deemed to be a complete building. Herein the complainant has not produced on record that he had taken the water, sewerage and electricity connection in allotted plot, if it would have been so, the complainant must have placed on record the evidence regarding water, sewerage and electricity connection in the allotted plot. There is no such evidence other than bare affidavit of complainant, which stood rebutted by the counter affidavit of Yogesh Goyal Chairman of OPs. We thus, conclude that the complainant has not proved that he has taken the electricity, sewerage and water connection in above said property at any time. Otherwise, he could have easily proved this fact on the record. It is essential to have electricity, sewerage and water connection, as per the definition of habitable building, as discussed above, as per above provision of notification. The sanctioning of the said plan to the complainant indicates that OPs completed the infrastructure of basic amenities in the allotted area and only thereafter sanctioned the proposed site plan to the complainant on 01.03.1988. Therefore, the complainant has not raised the construction thereafter in the plot in dispute. The complainant has failed to prove any electricity, sewerage and water connection, which is essential for raising construction in it, in the property in dispute. We do not find that the OPs have not provided the basic amenities to the complainant in the property in dispute and First Appeal No.1839 of 2011 15 on account of his own fault the complainant could not raise the construction in the prescribed period of time over the plot in dispute. The reliance of the complainant on judgment of this Commission of first appeal no.373 of 2011 decided on 13.10.2014 titled as "Ludhiana Improvement Trust Vs. Darshan Singh and Anr." is distinguishable, because in the cited case, the Improvement Trust have not provided the basic facilities. The Improvement Trust has provided the basic amenities in this case and hence there is no deficiency in service on the part of the OPs. The case in hand is thus covered by the judgment of the National Commission in revision petition no.2466 of 2013 decided on 05.05.2014 titled as "PUDA (now Greater Ludhiana Area Development Authority) Ludhiana Vs. Santosh Arora".
8. In view of our discussion as recorded above, the order passed by the District Forum Moga is not sustainable in this appeal. The order of the District Forum dated 08.11.2011 is ordered to be reversed in this appeal.
9. In the light of our above discussion, we accept the appeal of the appellant and by setting aside the order of District Forum Moga dated 08.11.2011, we hereby dismiss the complaint of the complainant.
10. Arguments in this appeal were heard on 15.05.2015 and the order was reserved. Now the order be communicated to the First Appeal No.1839 of 2011 16 parties. 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 (H.S.GURAM) MEMBER May 21, 2015.
(MM)