State Consumer Disputes Redressal Commission
Improvement Trust, Barnala vs Ram Ditta on 26 March, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1086 of 2007.
Date of Institution: 08.08.2007.
Date of Decision: 26.03.2012.
1. Improvement Trust, Barnala through its Chairman.
2. Improvement Trust, Barnala;
Both through Sh. Lal Singh Tiwana, Executive Officer, Improvement
Trust, Barnala.
.....Appellants.
Versus
Ram Ditta S/o Sh. Jugal Kishore C/o Sh. Darshan Kumar, Proprietor M/s D.G.
Garments, Band Gali, Barnala, Tehsil and District Barnala.
...Respondents.
First Appeal against the order dated
04.06.2007 of the District Consumer
Disputes Redressal Forum, Sangrur.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
Present:-
For the appellants : Sh. D.C. Kumar, Advocate for
Sh. D.P. Gupta, Advocate.
For the respondent : Sh. Tribhuwan Singla, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
Improvement Trust, Barnala through its Chairman and another, appellants (In short "the appellants") have filed this appeal against the order dated 04.06.2007 passed by the learned District Consumer Disputes Redressal Forum, Sangrur (in short "the District Forum").
2. Facts in brief are that Sh. Ram Ditta, respondent/complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellants, alleging that the respondent was allotted plot no.28, measuring 144 sq.yds. in '16 Acres Scheme' vide allotment letter dated 26.04.2005. The entire payment of the plot in question along with interest was deposited as per the First Appeal No.1086 of 2007 2 rules, including the expenses for providing water supply, sewerage, electricity, parks and metalled roads. The respondent approached a number of times to the appellants to get the possession and demarcation along with basic amenities i.e. water supply, sewerage, electricity, parks, street lights, metalled roads etc., but the appellants did not provide the same. The respondent applied for transfer of the said plot in the name of Sushil Kumar and his brother, residents of Barnala, but the appellants inspite of doing the needful, raised an illegal demand of Rs.45,792/- as non-construction fee. The respondent approached the appellants to withdraw the said demand, but no heed was paid to the request of the respondent and under compelling circumstances, he deposited Rs.45,792/- on 30.06.2006 under protest. Now the appellants have transferred the said plot. The respondent approached the appellants many times for refund of the said amount of non-construction fee, but ultimately they refused to refund the same on 15.12.2006 which amounts to deficiency in service and unfair trade practice on the part of the appellants. It was prayed that the appellants be directed to refund Rs.45,792/- along with interest @ 18% p.a. from the date of deposit till realization and pay Rs.10,000/- as litigation expenses and to refund the interest charged.
3. In the reply filed on behalf of the appellants, preliminary objections were taken that the complaint is not maintainable in the present form, as the respondent has no cause of action or locus standi to file the same. The respondent is not a consumer of the appellants, as the respondent has transferred the plot in question in the name of Munish Kumar and Babnish Kumar, sons of Lal Chand, residents of Barnala, vide transfer letter no.1083 dated 12.09.2006. The complaint is not verified.
4. On merits, it was admitted that the respondent was transferee of plot no.28 and the payment was deposited by Avtar Singh son of Jarnail Singh, who was the original allottee. It was admitted that the development charges have been charged from all the allottees, for providing water supply, sewerage, parks etc. The respondent never approached the appellants for First Appeal No.1086 of 2007 3 possession and for basic amenities, as the possession of the said plot was delivered to the original allottee Avtar Singh and the basic amenities have been provided at the spot, long time back. The demand of non-construction charges is legal and genuine, as the respondent failed to raise the construction within the prescribed limit. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
5. Parties led evidence in support of their respective contentions by way of affidavits and documents.
6. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the documents Ex.R-2 and Ex.R-3 show that the plot in question stands transferred in the name of Ram Ditta and respondent claims the refund of non-construction fee which pertains to the period when the plot in question was in his name and on 30.06.2006, he deposited the non- construction charges to the tune of Rs.45,792/- and the appellants cannot contend that the respondent is not a consumer, and allowed the complaint, directing the appellants to refund Rs.45,792/- @ Rs.9% p.a. from the date of deposit i.e. 30.06.2006 till realization and pay Rs.2,000/- as compensation and Rs.1000/- as litigation costs.
7. Aggrieved by the impugned order dated 04.06.2007, the appellants have come up in appeal.
8. We have gone through the pleadings of the parties and perused the record of the learned District Forum. We have also heard the arguments advanced by the learned counsel for the appellants and have gone through the written arguments filed on behalf of the respondent.
9. On behalf of the appellants, it was contended that vide allotment letter Ex.R-1 dated 26.04.1997, plot no.28 was allotted to Avtar Singh S/o Jarnail Singh, for Rs.1,34,640/-. As per affidavit Ex.R-2, the said plot was transferred in the name of the respondent vide transfer dated 26.04.2005. The respondent through this affidavit undertook to comply with the rules and First Appeal No.1086 of 2007 4 regulations of the Improvement Trust Act, 1922. Vide Ex.R-3 dated 12.09.2006, the said plot was transferred in the name of Munish Kumar and Babnish Kumar. The possession of the plot was already delivered to the original allottee and the basic amenities had already been provided. The respondent did not raise construction within the prescribed time and the demand of non-construction fee is legal and the respondent was liable to pay the same.
10. On behalf of the respondent, in the written arguments, it was submitted that the basic amenities were not provided and there is no document to prove that the possession was delivered to the respondent. The appellants failed to bring on record any evidence to prove that the basic amenities were provided and the possession was delivered. In Clause-8 of the allotment letter, it is nowhere provided that in the event of non- construction within the stipulated time, the non-construction fee will be charged. It has been held by the Hon'ble Apex Court as well as by this Commission that the non-construction fee cannot be charged till the basic amenities are provided. The order of the District Forum is legal and valid and the appeal deserves dismissal.
11. We have considered the submissions made by the learned counsel for the appellants as well as written submissions filed on behalf of the respondent and have thoroughly examined the entire record.
12. Originally, plot no.28 was allotted to Sh. Avtar Singh S/o Jarnail Singh in '16 Acres Scheme' on 25.11.1997 and as per the resolution, copy of which is Ex.R-6 of the appellants, it was resolved vide resolution no.197 that in '16 Acres Scheme', as per report of Engineering Branch, the facilities like water supply, sewerage, street lights, road, parks etc. were provided upto 31.12.2000 and as per the instructions of the Govt. vide letter dated 14.12.2000, the non-construction fee is to be charged after two years from providing of the basic facilities and that period comes to 31.12.2002 and non- construction fee shall be charged from 01.01.2003.
First Appeal No.1086 of 2007 5
13. Sh. Avtar Singh, original allottee, did not raise any construction within the prescribed period and he further got transferred the said plot no.28 in the name of the respondent on 26.04.2005 vide Ex.C-2. The respondent- Ram Ditta, being not the original allottee, purchased/got transferred the said plot no.28 in his name after seeing the plot in question and on the same terms and conditions which were prevalent at the time of allotment to original allottee Avtar Singh on 25.11.1997. The District Forum has altogether ignored the resolution no.197 of the appellants and has relied upon Clause-8 of the allotment letter dated 25.11.1997 in favour of Avtar Singh, wherein it was mentioned that the allottee has to complete the building on the plot allotted within three years from the date of issue of the allotment letter. The District Forum has observed that there was no condition that any non-construction fee shall be levied, but again ignored the Clause-12 of the said allotment wherein it is clearly mentioned that the allotment is subject to the provisions of Punjab Town Improvement Trust, 1922 and the Punjab Town Improvement (Utilization of Land and Allotment of Plots) Rules, 1983, as amended from time to time. Under the said provisions, the non-construction fee can be levied. Hon'ble National Commission in Revision Petition No.2125 of 2006 "Narinder Singh Nanda Vs PUDA", decided on 27.05.2009, exhaustedly dealt with the provisions of PUDA Act and the Rules as well as the various instructions issued by the State Govt., for charging the non-construction fee and concluded that the rates of extension fee fixed previously by the Punjab Housing Development Board stood superseded by the rates prescribed under Rule 13 of Rules, 1995. The Hon'ble National Commission also discussed the two judgments of the Hon'ble High Court i.e. Writ Petition. No.13648 of 1998 "Tehal Singh & Ors. Vs State of Punjab", decided on 04.05.1998 and Writ Petition No.18986 of 2001 "Sant Kaur Jabbi & Anr. Vs State of Punjab & Ors.", decided on 31.10.2002 and held that a fee, if any, can be charged only as per the Act and Rules in terms of the order passed by the Hon'ble High Court. The extension fee/non-construction fee, thus, can be charged First Appeal No.1086 of 2007 6 only as per Rule-13 of the Punjab Regional and Town Planning Development (General) Rules, 1995.
14. The District Forum has altogether ignored these facts and the law and has ordered the refund of the entire amount of extension fee i.e. Rs.45,792/- deposited by the appellant on 30.06.2006 and, as such, the order of the District Forum is required to be modified.
15. In view of above discussion and the law laid down by the Hon'ble National Commission, the appeal filed by the appellants is partly accepted and the impugned under appeal dated 04.06.2007 passed by the District Forum is modified to the extent that the appellants can levy the non- construction charges, as the respondent or the original allottee Avtar Singh failed to complete the construction within the specified period, under Rule 13 of the Punjab Regional and Town Planning Development (General) Rules, 1995. The appellants are entitled to retain the amount so calculated under the above rules and the excess amount shall be refunded to the respondent. Accordingly, the appeal is disposed of with the above modification.
16. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount 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.
17. The arguments in this appeal were heard on 14.03.2012 and the order was reserved. Now the order be communicated to the parties.
18. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Baldev Singh Sekhon) Member March 26, 2012.
(Gurmeet S)