State Consumer Disputes Redressal Commission
Punjab Urban Planning & Development ... vs Rachhpal Kaur on 28 March, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.457 of 2007
Date of institution : 28.3.2007
Date of decision : 28 .3.2012
Punjab Urban Planning & Development Authority (PUDA), PUDA Complex,
Ferozepur Road, Rajguru Nagar, Ludhiana through its Estate Officer.
.......Appellants
Versus
Rachhpal Kaur wife of Sh. Tejwant Singh Advocate, Civil Courts, Amloh, District
Fatehgarh Sahib, previously District Patiala.
......Respondent
First Appeal against the order dated 12.12.2006 of
the District Consumer Disputes Redressal Forum,
Ludhiana.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mr. B.S. Sekhon, Member.
Present :-
For the appellants : Shri Balwinder Singh, Advocate. For the respondent : Shri Munish Goel, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
This order will dispose of three appeals, namely, First Appeal No.457 of 2007 (Punjab Urban Planning & Development Authority v. Rachhpal Kaur), First Appeal No.458 of 2007 (Punjab Urban Planning & Development Authority v. Neelam Kumari) and First Appeal No.459 of 2007 (Punjab Urban Planning & Development Authority v. Kanwarjyot Singh) as the questions of law and facts involved in all these appeals are identical. Facts are taken from F.A. No.457 of 2007 and the parties would be referred by their status in this appeal. VERSION OF THE RESPONDENT:
2. Rachhpal Kaur respondent had applied for a residential plot. She was allotted plot No.P-3887 measuring 400 square yards in Sector 32-A, Chandigarh Road, Ludhiana vide allotment letter dated 29.3.1993 by the appellants. In First Appeal No.457 of 2007. 2 compliance with the terms and conditions of the allotment letter, the respondent had deposited a sum of Rs.10,000/- with the appellants vide bank draft dated 19.4.1994. The balance amounts were also paid. She also deposited a sum of Rs.76,000/- as non-construction charges vide bank draft dated 22.11.2001 for which the appellants had issued the receipt dated 23.11.2001.
3. It was further pleaded that the appellants had failed to deliver the possession of the plot. Therefore the amount of Rs.76,000/- charged by the appellants from the respondent as non-construction charges was illegal. Since the possession was not delivered, the respondent was not in a position to raise construction over it. The respondent had been making requests to the appellant for delivery of possession and even notice dated 14.2.1996 was issued to them.
Originally plot No.3832 was allotted to the respondent and later on it was changed to 3887. High tension and electricity wires were crossing over plot No.3887. The appellants were requested to refund the amount of Rs.76,000/- charged illegally but they failed to do so. Hence the complaint for the refund of Rs.76,000/- charged illegally from the respondent by the appellants. Compensation, interest and costs were also demanded.
VERSION OF THE APPELLANTS:
4. The appellants filed the written reply. It was denied if the respondent was a consumer qua the appellants or if the District Forum had the jurisdiction to determine the issues involved in the case. It was, however, admitted that plot No.3887 measuring 400 square yard in Sector 32-A, Chandigarh Road, Ludhiana was allotted by the appellants to the respondent vide allotment letter dated 29.3.1993. It was denied if the respondent had deposited the installments in time.
Since the respondent had not raised the construction within the stipulated period, therefore, she was required by law to pay the extension fee for the period from 1.1.2000 to 31.12.2002 amounting to Rs.96,200/-.
5. It was further pleaded that a publication dated 9.3.1997 was published in the Daily Ajit (Punjabi Newspaper) by which it was clearly mentioned that the First Appeal No.457 of 2007. 3 applicants who were having plots between the area measuring 300 square yards to 500 square yards can get the demarcation of their respective plots and get the building plan sanctioned from the Estate Officer of the appellants. Therefore the respondent was at fault for not getting the possession or for not getting the building plans approved from the competent authority.
6. It was further pleaded that the respondent had applied for transfer of Plot No.3887 in Sector 32-A, Chandigarh Road, Ludhiana measuring 400 square yards in favour of Rajesh Kumar on 23.10.2001. She had also filed her sworn affidavit dated 20.11.2001 along with transfer application. Accordingly plot No.3887 was transferred in favour of Rajesh Kumar by the appellants vide re-allotment letter dated 25.3.2002. All these facts regarding the sale of plot no.3887 to Rajesh Kumar by the respondent are not disclosed by her in the complaint. Therefore the respondent has not come to the court with clean hands. The appellants were entitled to recover the extension fee for the period from 2000 to 2002 as the respondent had failed to raise construction on the plot within the stipulated period. Dismissal of the complaint was prayed.
PROCEEDINGS BEFORE THE DISTRICT FORUM:
7. Parties produced affidavits/documents in support of their respective versions.
8. Learned District Forum accepted the complaint vide impugned order dated 12.12.2006 and directed the appellants to charge non-construction fee in accordance with Rule 13 of the 1995 Rules and to refund the amount if charged in excess.
9. Hence the appeal.
FIRST APPEAL NO.458 OF 2007:
VERSION OF THE RESPONDENT:
10. Ashok Malhotra was the owner of residential plot No.2671 measuring 400 square yards situated in Phase-I, Urban Estate Dugri, Ludhiana. He sold this plot to the respondent after getting NOC dated 29.11.1994 from the appellants and First Appeal No.457 of 2007. 4 after completing all other legal formalities. The respondent also decided to dispose of the plot after obtaining NOC from the appellants.
11. It was further pleaded that the appellants vide letter dated 30.6.2004 asked the respondent to deposit a sum of Rs.2,66,350/- on account of extension fee/non- construction charges. The respondent had contested her liability vide letter dated 29.1.1988 but the respondent was informed by the appellants vide letter dated 18.2.1997 that she was required to pay extension fee/non-construction charges.
12. It was further pleaded that the respondent under a bona fide belief and also compelled by the circumstances deposited an amount of Rs.2,66,350/- vide pay order dated 30.6.2004 to the appellants. The appellants had issued the receipt dated 1.7.2004 for this amount and granted necessary permission to the respondent to sell the plot. However the charging of the amount of Rs.2,66,350/- by the appellants from the respondent was illegal. Hence the complaint for recovery of this amount of Rs.2,66,350/- along with compensation, interest and costs. VERSION OF THE APPELLANTS:
13. The appellants filed the written reply. It was pleaded that initially plot No.2671 measuring 400 square yards was allotted to Shri Sunil Kumar Mehta who got it transferred in favour of Ashok Malhotra vide letter dated 4.1.1990. The conveyance deed was executed in favour of Ashok Malhotra on 16.11.1994. Ashok Malhotra was also granted permission to sell the plot vide letter dated 29.11.1994 on which Ashok Malhotra sold the plot to the respondent.
14. It was denied if the respondent had purchased the plot for residential purposes. She had intentionally failed to raise construction over the plot as she had purchased it with an intention to sell for gaining profits. The respondent was asked to deposit an amount of Rs.2,66,350/- legally in accordance with law on account of non-construction charges. Therefore she was not entitled to its refund. Dismissal of the complaint was prayed.
15. The parties produced affidavits/documents in support of their respective versions.
First Appeal No.457 of 2007. 5
16. Learned District Forum vide impugned order dated 12.12.2006 accepted the complaint and directed the appellants to charge non-construction fee as per Rule 13 of 1995 Rules and to refund the money if charged in excess.
17. Hence the appeal.
FIRST APPEAL NO.459 OF 2007:
VERSION OF THE RESPONDENT:
18. The appellants had allotted plot No. 3187 measuring 500 sq. yards in favour of the respondent vide allotment letter dated 20.6.1981. The respondent had made the payment as stipulated in the allotment letter. In September, 1996 the respondent had applied for sanction of the building plan but the appellants asked the respondent to deposit a sum of Rs.40,000/- as extension fee. It was deposited by the respondent on 19.11.1996 and the building plans were sanctioned by the appellants on 3.12.1996.
19. It was further pleaded that in the year 2005 the respondent applied for 'no objection certificate' for taking possession and raising construction over the plot but the appellants vide letter dated 11.4.2005 asked the respondent to deposit a sum of Rs.4,36,820/- being extension fee and Rs.1,55,250/- because of delay in making the payment of installments. The appellants were not entitled to charge non-construction fee. Hence the complaint for setting aside the demand of Rs.4,36,820/- on account of extension fee and Rs.1,55,250/- on account of delayed payment of installments. Compensation, interest and costs were also prayed. VERSION OF THE APPELLANTS:
20. The appellants filed the written reply. It was admitted that plot No.3187 measuring 500 square yards was allotted by the appellants to the respondent vide allotment letter dated 20.6.1981. The possession of the plot was delivered to the respondent at the time of allotment. The building plans were sanctioned after the physical possession was transferred to the allottee. It was denied if the respondent was not delivered possession of the plot.
First Appeal No.457 of 2007. 6
21. It was further pleaded that the payment made by the respondent was legal and valid. It was denied if there was any deficiency in service on the part of the appellants. Dismissal of the complaint was prayed. PROCEEDINGS BEFORE THE DISTRICT FORUM:
22. The parties produced affidavits/documents in support of their respective versions.
23. Learned District Forum upheld the demand of Rs.1,55,250/- on account of delayed payment of installments by the respondent. However the appellants were directed to charge extension fee as per Rule 13 of the PUDA Act and the complaint was partly accepted vide impugned order dated 7.12.2006.
24. Hence the appeal.
DISCUSSION: (First Appeal No.457 of 2007)
25. The submission of the learned counsel for the appellants was that this appeal may be allowed and the impugned order passed by the learned District Forum be set aside.
26. On the other hand, the submission of the learned counsel for the respondent was that there was no merit in the present appeal and the same be dismissed.
27. Record has been perused. Submissions have been considered.
28. The facts are admitted between the parties that the appellants had charged certain amount from the respondents on account of non-construction fee which was deposited by the respondents and through the present complaints the respondents seek the refund of the amount alleging that the demand of non- construction fee was illegal and it was got deposited by the appellants illegally. Hence the complaints were filed for refund of the amounts charged illegally by the appellants from the respondents.
29. In this context reference can be made to the judgment dated 29.12.2011 passed by this Commission in First Appeal No.1475 of 2006 (The Sangrur Improvement Trust and another vs. Ashok Kumar) in which it was held as under:-
First Appeal No.457 of 2007. 7
"16. So far as the raising of construction is concerned for which non-construction fee has been charged the appellants had written letter dated 5.11.2003 Ex.R-9 to Ashok Kumar respondent that he was to raise construction over the plot upto 15.5.2004 but he had not yet completed the construction.
17. In this context, reference may be made to the judgment of the Hon'ble National Commission dated 27.5.2009 passed in Revision Petition No.2125 of 2006 (Narinder Singh Nanda v. PUDA) in which it was held as under : -
" Learned Counsel for the petitioner relying on the judgment of the Hon'ble Supreme Court of India in HUDA v. Sunita case, reported in (2005) 2 SCC 479, in which the Supreme Court upheld the Order passed by this Commission holding that the Consumer Fora did not have the jurisdiction to go into the correctness of the demand made by the Haryana Urban Development Authority (HUDA), contends that the Judgments of the Hon'ble High Court of Punjab and Haryana in Tehal Singh's and Sant Kaur Jabbi's cases (supra) are no longer good law. That since the Consumer Fora did not have the jurisdiction to entertain the complaints, the Appeal by the PUDA has to be accepted and the complaint be ordered to be dismissed. We do not find any substance in this submission. In Sunita's case (supra), HUDA was performing its statutory duties under the provisions of the Haryana First Appeal No.457 of 2007. 8 Urban Development Authority Act. It cannot be doubted that if an Order is passed by the Statutory Authority acting under and in accordance with the provisions of the Act and the Rules framed thereunder, the Consumer Foras would not be entitled to interfere but if the Authority is acting contrary to the provisions of the Act or is acting beyond the scope of the Act, then, certainly that would be a deficiency in service. In the present case, PUDA was charging extension fee at enhanced rates which it could not do in view of the two Judgments in Tehal Singh's and Sant Kaur Jabbi's cases (supra), meaning thereby that the PUDA was acting against the provisions of law as it was demanding extension fee under the instructions which had already been struck down by the High Court being ultra vires the provisions of the Act.
A consumer would certainly be entitled to file a complaint under the C.P. Act with a prayer to direct the Authority to act under the provisions of the Act and not beyond it or in any case which has already been struck down by the High Court. High Court of Punjab and Haryana is the highest Court insofar as the State of Punjab is concerned. Until and unless the Judgments passed by the High Court of Punjab and Haryana are set aside, the administrative First Appeal No.457 of 2007. 9 instructions issued on 15.01.1998 and the amended instructions issued on 08.10.2001 by the State of Punjab seeking to charge enhanced extension fee, cannot prevail and the PUDA, under those instructions, cannot charge the enhanced extension fee. The law declared by the High Court of Punjab and Haryana is binding in the State of Punjab. Special Leave Petitions filed against the said Judgments have already been dismissed by the Supreme Court. Under the instructions issued by the State of Punjab on 15.01.1998 and, subsequently, on 08.10.2001, the PUDA was not entitled to charge enhanced extension fee at enhanced rates. A fee, if any, can be charged only as per the Act and the Rules in terms of the Order passed by the High Court.
We agree with the view taken by the State Commission. The State Commission has rightly dismissed Appeal No.784 of 2006 filed by the PUDA.
Revision Petition No.2125 of 2006 In this case, PUDA, despite the striking down of the instructions issued by the State of Punjab on 15.01.1998, sought to charge the enhanced extension fee at enhanced rates. State Commission has awarded the interest on the deposited amount from the date of the filing of the complaint. The complaint was filed on 06.09.2004. The extension fee was deposited on First Appeal No.457 of 2007. 10 25.05.2004. The Judgment of in Tehal Singh's case (supra), declaring the administrative instructions ultra vires, insofar as it sought to charge enhanced rate of extension fee, was delivered on 04.05.1999. The subsequent administrative instructions issued by the State of Punjab on 08.10.2001 were also struck down in Sant Kaur Jabbi's case (supra) on 31.10.2002.
In spite of the striking down of the administrative instructions issued by the State of Punjab on 15.01.1998 and 08.10.2001, respectively, the PUDA charged enhanced extension fee from the complainant on 25.05.2004. The Judgment of the District Forum is dated 09.02.2006. The State Commission has awarded the interest to the complainant w.e.f. the date of passing of the Order of the District Forum, i.e., 09.02.2006. Since, the PUDA had charged extension fee illegally under the Government Notifications, which had been struck down prior to the date of deposit, the complainant is entitled to get the interest from the date of the deposit of the amount of extension fee.
Accordingly, the Revision Petition filed by the complainant is accepted and the Judgment of the State Commission is modified to the extent that the complainant would be entitled to the refund of the amount of extension First Appeal No.457 of 2007. 11 fee, i.e., Rs.3,26,134/- with interest @ 9% from the date of deposit."
30. Therefore in view of the facts of the case and the law laid down by the Hon'ble National Commission in the aforesaid judgment, there was no illegality in the impugned order dated 12.12.2006.
31. There is no merit in the present appeal and the same is dismissed.
32. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 28.3.2007. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to Rachhpal Kaur respondent by way of a crossed cheque/demand draft after the expiry of 60 days under intimation to the learned District Forum and to the appellants.
33. Remaining amount shall be paid by the appellants to the respondent immediately.
FIRST APPEAL NO.458 OF 2007:
34. For the reasons recorded in FA No.457 of 2007 above, this appeal is also dismissed.
35. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 28.3.2007. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to Neelam Kumari respondent by way of a crossed cheque/demand draft after the expiry of 60 days under intimation to the learned District Forum and to the appellants.
36. Remaining amount shall be paid by the appellants to the respondent immediately.
FIRST APPEAL NO.459 OF 2007:
37. For the reasons recorded in FA No.457 of 2007 above, this appeal is also dismissed.
First Appeal No.457 of 2007. 12
38. The arguments in these cases were heard on 26.3.2012 and the orders were reserved. Now, the orders be communicated to the parties.
39. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
March 28, 2012 (BALDEV SINGH SEKHON)
Bansal MEMBER