State Consumer Disputes Redressal Commission
Ludhiana Improvement Trust vs Neelam Bhalla on 9 March, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
1. First Appeal No.1543 of 2009
Date of institution : 30.10.2009
Date of decision : 09.03.2017
Ludhiana Improvement Trust, Ludhiana through Shri Jatinder Singh
its Executive Officer.
.......Appellant-Opposite Party No.2
Versus
1. Neelam Bhalla w/o Shri H.D. Bhalla, President of 33-1,
Sarabha Nagar, Ludhiana.
......Respondent No.1-Complainant
2. The Atam Nagar Cooperative House Building Society Ltd.,
180-Atam Nagar, through its President.
.....Respondent No.2/Opposite Party No.1
2. First Appeal No.1544 of 2009
Date of institution : 30.10.2009
Date of decision : 09.03.2017
Ludhiana Improvement Trust, Ludhiana through Shri Jatinder Singh
its Executive Officer.
.......Appellant-Opposite Party No.2
Versus
1. Vivek Bhalla w/o Shri H.D. Bhalla, President of 33-1, Sarabha
Nagar, Ludhiana.
......Respondent No.1-Complainant
2. The Atam Nagar Cooperative House Building Society Ltd.,
180-Atam Nagar, through its President.
.....Respondent No.2/Opposite Party No.1
First Appeal No.1543 of 2009 2
First Appeals against the order dated
12.3.2009 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Shri Harcharan Singh Guram, Member
Present:-
For the appellant : Shri Rohit Goswami, Advocate for Shri D.P. Gupta, Advocate.
For respondent No.1: Shri A.S. Salar, Advocate. For respondent No.2: Shri Balwinder Singh, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
Both the above mentioned First Appeals are being decided by this common order, as common questions of law and facts, except some minor variations, here and there, are involved in these appeals. The facts are taken from First Appeal No.1543 of 2009.
2. It would be apposite to mention at the outset that hereinafter the parties will be referred as have been arrayed before the District Consumer Disputes Redressal Forum, Ludhiana (in short, "District Forum").
4. The appellant/opposite party No.2-Trust has preferred the instant appeals against the order dated 12.3.2009 passed by the District Forum, vide which the complaints filed by Neelam Bhalla and Vivek Bhalla, respondent No.1/complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") were allowed and opposite party No.2-Trust was directed to put both the complainants in possession of Plot No.990-D and 993-D, respectively, after demarcation of the allotted plots and in case no such plots in that very scheme of those dimensions were available, then to allot First Appeal No.1543 of 2009 3 alternative plots of the same scheme or any other equally developed scheme at the same size of which, original plot was allotted.
4. Succinctly the facts of the case are that one Dina Nath son of Shri Nand Lal was a Member of opposite party No.1-Atam Nagar Cooperative House Building Society Ltd. (in short, "the Society"), who was allotted plot No.990-D measuring 250 square yards under membership registration No.R480/567. On his death, the said plot was succeeded by Kulbhushan Nath and Smt. Savitri Sharma. Smt. Savitri Sharma surrendered her rights in the plot in favour of Shri Kulbhushan Nath, who became sole allottee of Plot No.990-D under membership No.1452 in the records of opposite party No.1-Society. Thereafter, Kulbhushan Nath transferred this plot in favour of the complainant, vide membership No.1452. Opposite party No.1- Society issued 'No Dues Certificate' to the complainant on 6.9.2007. The land of opposite party No.1-Society was acquired by appellant- opposite party No.2 i.e. Ludhiana Improvement Trust (in short, "the Trust"). Consequently, 50% of the acquired land was exempted by the State Government of Punjab, vide notification dated 21.9.1982. Thereafter opposite party No.2-Trust required opposite party No.1- Society to pay development charges and exemption fee, as mentioned in the letter and that the plots, list of which was appended with allotment letter No.11308 dated 3rd February 1983, were to be allotted by opposite party No.1-Society to its Members. Opposite party No.1-Society allotted plots to the Members including plot No.990-D, which was mentioned at serial No.55 of the list. The Society acted as intermediator between its Members and opposite First Appeal No.1543 of 2009 4 party No.2-Trust. Thereafter the complainant paid all the dues as demanded by opposite party No.1-Society and nothing was payable qua the plot in question to the Society. The complainant requested opposite party No.1-Society to give demarcation of the plot and to hand over vacant possession. However, no possession was delivered to the complainant. The matter was taken up with the Trust and the Society but to no effect. Hence the Trust and the Society have committed deficiency in service on which the present complaint has been filed seeking directions against them to hand over the possession of the allotted/alternative plot to him. Compensation and costs were also prayed.
5. Opposite party No.1-Society in its reply took preliminary objections that the complainant is not a 'consumer' and as such, the complaint is not maintainable. The complainant has no cause of action against opposite party No.1-Society. Plot in question was allotted by opposite party No.2-Trust and on the basis of the same, opposite party No.1-Society made further allotment to the complainant. Opposite party No.1-Society simply acted as intermediator and no liability can be fastened on it. Possession of the plot was to be delivered by opposite party No.2-Trust. The complainant has grievance of non-delivery of possession and demarcation of the plot since 1983. He slept over the matter for 24 years and as such, the complaint is time barred. Opposite party No.1-Society wrote many letters to opposite party No.2-Trust to give demarcation and possession of the balance plots, as allotted vide letter No.11308 dated 3.2.1983. Though majority of the plots have First Appeal No.1543 of 2009 5 been given by opposite party No.2-Trust, yet there are few plots, possession of which has not been handed over by opposite party No.2-Trust to opposite party No.1-Society. Development charges and exemption fee were paid by opposite party No.1-Society to opposite party No.2-Trust on the basis of allotment letter dated 3.2.1983. Possession of number of plots has not been delivered by opposite party No.2-Trust to opposite party No.1-Society. Opposite party No.1-Society is not in possession of any plot as the possession was to be delivered by the Trust, so it cannot deliver possession. Dismissal of the complaint qua the Society has been prayed for.
6. Opposite party No.2-Trust in its reply took preliminary objections that the complaint is barred by principle of res judicata as complaint qua these allegations of opposite party No.1 had already been dismissed by the District Forum on 14.9.2005. The complainant has suppressed material facts. The complainant has no cause of action to file the complaint. Allotment of plots to its members and to put them in possession or give demarcation is the internal matter of opposite party No.1-Society with which opposite party No.2-Trust has nothing to do. As the land measuring 102508 square yards was exempted by the State Government, so opposite party No.2-Trust never took possession of the said land. Ownership and possession of that land vested with opposite party No.1-Society. Opposite party No.2-Trust never paid compensation to opposite party No.1-Soceity for acquisition of the land. Hence there is no question of taking possession of the land. Opposite party No.2-Trust also raised the objections qua estopple and limitation. It has been First Appeal No.1543 of 2009 6 averred on merits that the complainant is not original allottee but has purchased the rights of the original allottee. No amount has been deposited by the complainant with opposite party No.2-Trust. So, he does not become consumer under it. Possession, if any, of the plot in question was to be given by opposite party No.1-Society and not by opposite party No.2-Trust. It is denied that opposite party No.1- Society simply acted as post office between the members of the Society and the Trust. The complaint is not maintainable in view of the decision in Civil Writ Petition No.9070 of 1996 decided on 19.11.1998 by the Hon'ble Punjab and Haryana High Court. Allotment of alternative plots in favour of the persons will not create a right in the complainant to claim equality. Opposite party No.2-Trust was only duty bound to develop the area and possession was to be made by opposite party No.1-Society. Denying any deficiency in service dismissal of the complaint has been prayed.
7. The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint, vide impugned order.
8. We have heard learned counsel for the parties and have carefully gone through the records of the case.
9. The submission of the learned counsel for opposite party No.2- Trust is that the complainant did not purchase any goods from the appellant-Trust and as such, he is not a consumer as defined under the Act. The said plea of the Trust has not been decided by the District Forum. It has further been submitted that District Forum First Appeal No.1543 of 2009 7 failed to appreciate that complainant is a member of opposite party No.1-Society and all rights and liabilities are with the said Society. The complainant has no direct rights with the present appellant- Trust. District Forum has failed to appreciate judgment Ex.R-4 passed by the Hon'ble High Court wherein it has clearly been held that liability of the appellant-Trust was to give land of the Society and not its members and that it is a dispute inter-se between the complainant and opposite party No.1-Society. District Forum has no jurisdiction after pronouncing of order on 12.3.2009 to change the words from same size to same price. Thus, it erred in passing the impugned order dated 16.7.2009. It also erred in holding that the complainant has continuous cause of action. It has been prayed that this appeal may be allowed and the impugned order may be set aside.
10. On the other hand, it has been submitted by the learned counsel for respondent No.1/complainant that Dina Nath son of Nand Lal was a Member of the Society and Plot No.990-D measuring 250 square yards was allotted to him. On his death, the plot in question was succeeded by Kulbhushan Nath and Smt. Savitri Sharma. Thereafter Smt. Savitri Sharma surrendered her rights in the plot in favour of Kulbhushan Nath and, as such, Kulbhushan Nath became sole allottee of Plot No.990-D. Said Kulbhushan Nath transferred the said plot to the complainant, vide membership No.1452 in the records of opposite party No.1-Society and as such, the complainant stepped into the shoes of Dina Nath, the original allottee. It has further been submitted that the complainant paid all First Appeal No.1543 of 2009 8 the dues as demanded by opposite party No.1-Society and nothing is payable qua the plot to the Society. However, opposite party No.1-Society neither gave demarcation nor handed over vacant possession of the plot. This act and conduct of the opposite parties amounts to deficiency in service. It has been further submitted that similar question between the similar situated parties already stand decided by this Commission, vide order dated 5.2.2008 and against that order revision petitions were filed by opposite party No.2-Trust. The said Revision Petitions also stand disposed of by the Hon'ble National Commission, vide order dated 4.7.2016. The facts of the present case are squarely covered by the aforesaid judgment. It has been prayed that there is no merit in the present appeal and the same be dismissed.
11. It has been submitted by the learned counsel for opposite party No.1-Society that the plot in question was allotted by opposite party No.2-Trust to opposite party No.1-Society and on the basis thereof, it made further allotment to the complainant. Opposite party No.1- Society simply acted as an intermediator and no liability can be fastened on it. Possession of plot is to be delivered by opposite party No.2-Trust. It has been so held by this Commission as well as by the Hon'ble National Commission in similar cases. It has been prayed that the appeal is not maintainable qua opposite party No.1- Society and the same may be dismissed accordingly.
12. We have given thoughtful considerations to the respective submissions made by the learned counsel for the parties. First Appeal No.1543 of 2009 9
13. The admitted facts are that the land of opposite party No.1- Society was acquired by opposite party No.2-Trust, for development purpose of Model Town Extension Part-II, Ludhiana. Area of 102508 square yards belonging to opposite party No.1-Society with other area, was acquired by opposite party No.2-Trust. On 21st of September 1982, the land belonging to opposite party No.1-Society was exempted from acquisition on certain terms and conditions by the order of the Government of Punjab and one of the major terms and conditions was that the area would be developed by opposite party No.2-Trust, on payment of some charges by opposite party No.1-Society including exemption fee. Opposite party No.2-Trust then called upon opposite party No.1-Society to submit list of eligible members. Opposite party No.1-Trust passed resolution on 29th January 1983 and resolved to allot 296 plots of different sizes measuring total of 50250 square yards to opposite party No.1- Society making up an area nearly 50% of the acquired land. The allotment of the plots given by opposite party No.2-Trust to opposite party No.1-Society was to be given to the individual members by opposite party No.1-Society. Government of Punjab subsequently vide notification dated 27th April 1983 raised percentage of the allotable area from 50% to 53%. Opposite party No.2-Trust passed a resolution dated 2.5.1983 resolving to allot 10 more plots measuring 300 square yards to opposite party No.1-Society for further allotment to original members. It was in this way that the plots qua which complaints are filed, stood allotted to predecessor in First Appeal No.1543 of 2009 10 interest of both the complainants, from whom, they purchased the membership as well as plots.
14. It is also not disputed that one Dina Nath son of Shri Nand Lal was Member of opposite party No.1-Society and was allotted Plot No.990-D measuring 250 square yards under membership registration No.R480/567. On his death the same was succeeded by Kulbhushan Nath and Smt. Savitri Sharma. Thereafter, Smt. Savitri Sharma surrendered her rights in the plot in favour of Kulbhushan Nath, who became sole allottee of Plot No.990-D under membership No.1349. Ultimately, Kulbhushan Nath transferred the said plot to the complainant, vide membership No.1452 in the records of opposite party No.1-Society. Plot No.990-D measuring 250 square yards was a part of 296 plots allotted vide their resolution No.651 dated 29.1.1983 (Ex.R-5) by the Trust to the Society for its Members. Subsequently it was allotted to the aforesaid Dina Nath son of Shri Nand Lal by the Society vide their letter dated 14.02.1983. It is also not disputed that the complainant had not got the possession of the said plot.
15. Both opposite party No.2-appellant i.e. the Trust and opposite party No.1 i.e. the Society have disputed if respondent No.1- complainant was a "consumer" as defined under the Act.
16. The admitted facts are that one Dina Nath son of Shri Nand Lal was Member of opposite party No.1-Society and was allotted Plot No.990-D measuring 250 square yards under membership registration No.R480/567. On his death the same was succeeded by Kulbhushan Nath and Smt. Savitri Sharma. Thereafter, Smt. Savitri First Appeal No.1543 of 2009 11 Sharma surrendered her rights in the plot in favour of Kulbhushan Nath, who became sole allottee of Plot No.990-D under membership No.1349. Ultimately, Kulbhushan Nath transferred the said plot to the complainant, vide membership No.1452 in the records of opposite party No.1-Society and as such, the complainant stepped into the shoes of the original allottee. The said Dina Nath son of Shri Nand Lal was allotted plot by the Trust vide letter No.11308 dated 03.02.1983 on the basis of Resolution No.651 dated 29.1.1983. On its basis, letter of allotment was also issued by the Society on 14.02.1983. As stated above, the plot in question has been transferred in favour of the complainant but he has not got the possession of the plot. Therefore, the complainant is a consumer and the beneficiary.
17. The living example is here. One Sudesh Kumari was also one of the Members of the Society. She was also allotted plot by the Trust and subsequent allotment letter was issued by the society. She had also failed to get possession of the plot on which she had filed the complaint. The said complaint was dismissed by the learned District Forum. It was accepted by the State Commission and the said judgment is reported as "Sudesh Kumari v. the Atam Nagar Cooperative Housing Society Ltd." 1998(2) CPC 439. In this judgment it was held by the State Commission that the complainant was a beneficiary and the consumer within the meaning of the Act. It was observed as under:-
"4. Viewed from another angle, in view of the argument, aforesaid, the complainant is a First Appeal No.1543 of 2009 12 beneficiary and is thus a consumer as defined under Section 2(1)(d) of the Consumer Protection Act. The case is fully covered by the ratio of the decision of this Commission in Swati Dhir's case (supra)."
This judgment was upheld by the Hon'ble National Commission vide judgment dated 2.8.2001 passed in Revision Petition No.294 of 1999 (Ludhiana Improvement Trust, Ludhiana v. Sudesh Kumari and anr.). The appellant-Trust had filed an appeal against this judgment in the Hon'ble Supreme Court. It was dismissed by the Hon'ble Supreme Court as withdrawn, vide judgment dated 5.11.2001 with liberty to file a review petition before the Hon'ble National Commission. Thereafter the appellant-Trust had filed review application against that judgment before the Hon'ble National Commission but the review application was dismissed by the Hon'ble National Commission vide judgment dated 16.08.2002. As a result thereof, this judgment has become final and the findings that respondent No.1/complainant was a consumer and beneficiary qua the Trust and qua the Society also became final.
18. Same question again came up for consideration before the State Commission in similar set of circumstances and this Commission vide judgment dated 24.1.2002 passed in Appeal No.242 of 2000 (the Atam Nagar Cooperative Housing Building Society Limited vs. Ram Parkash and another) reiterated the same view. Therefore, the question is no longer open for re-agitation that First Appeal No.1543 of 2009 13 respondent No.1/complainant is not a consumer and beneficiary qua the Trust and the Society.
19. All the points agitated in the complaints stand covered and answered by this Commission in First Appeal No.931 of 2007 decided on 5.12.2008 (Randhir Kalra v. Atam Nagar Coop. House Building Society etc.) and First Appeal No.407 of 2001 decided on 10.5.2006 (Mrs. Neetu Jain v. Ludhiana Improvement Trust & others), which was affirmed in Revision Petition No.1021 of 2001 decided on 17.4.2002 by the Hon'ble National Commission as also in Revision Petition No.717 of 2002 decided on 26.2.2003 (Ludhiana Improvement Trust v. Ram Parkash).
20. So far as the question as to who is responsible to put the allottee in possession is concerned, the matter corners around whether land of the plot ever came in possession of opposite party No.2-Trust or it was exempted land which never came in its possession. Answer to this query can be obtained from Ex.R-5 dated 29.1.1983 of opposite party No.2-Trust. Vide that resolution opposite party No.2-Trust resolved allotment of 296 plots out of 50% of the total land of opposite party No.1-Society, measuring 102508 square yards. In that list, plots of both the complainants were also included. So, it was proposed to opposite party No.1-Society to allot 296 plots equal to 50250 square yards. Sequel to the resolution, opposite party No.2-Trust vide allotment letter dated 3.2.1983 Ex.R-8 issued letter of allotment to opposite party No.1-Society. In that list, plots qua which dispute is before us bearing Nos.990- D and 993-D were also mentioned. So, this makes abundantly clear First Appeal No.1543 of 2009 14 that possession of the land qua allotted plots of the complainants, was with opposite party No.2-Trust, who consequently ordered allotment of those plots. Hence, it would be for opposite party No.2- Trust to demarcate and put the allottees in possession of allotted plots. Therefore, there appears no substance in the submission of opposite party No.2-Trust that it was not in possession of the land and it was for opposite party No.1-Society to demarcate and put the allottees in possession of the plot. Similar question came up for hearing before this Commission in Mrs. Neetu Jain's case (supra) as also in First Appeal No.900 of 2001 decided on 5.12.2008 (Dharamvir Bector v. The Atam Nagar Coop. House Building Society & Ors.). Therefore, the complainants in both the cases are entitled for possession after demarcation of the allotted plots from opposite party No.2-Trust and in case, no such plot in that very scheme of this dimension is available, for allotment of alternative plot and delivery of possession thereof, in lieu of plots of the complainants. Allotment of alternative plot may be in the same scheme or any other equally developed scheme at the same price at which, original plot was allotted.
21. The question of limitation has already been dealt with by this Commission in Dharamvir Bector's case supra and same principle would be applicable in this case also. Therefore, it is held that the complainant has continuing cause of action till the possession of the plot is delivered to him.
22. So far as the plea of opposite party No.2-Trust that the complaint is barred by principle of resjudicata is concerned, the First Appeal No.1543 of 2009 15 same is based upon a complaint filed by opposite party No.1- Society, which was dismissed by the District Forum vide order dated 14.9.2005, Ex.R-4. That complaint was filed by opposite party No.1- Society against opposite party No.2-Trust etc. However, the complainant was not a party to the same. The complaint was dismissed on the ground that opposite party No.1, being complainant, had not hired services of opposite party No.2-Trust, for allotment of plots and opposite party No.1-Society never paid development charges to opposite party No.2-Trust and there was no deficiency in service. Therefore, the principle of resjudicata is not at all attracted in this case. No other point has been raised before us.
23. A bunch of 7 similar complaints came up for hearing before this Commission and this Commission decided the same on 5.12.2008 by taking the facts in First Appeal No.1176 of 2000 (The Chairman, Improvement Trust, Ludhiana v. Hukam Chand and another). This Commission dismissed FA No.1176 of 2000 filed by opposite party No.2-Trust by holding that the Trust has failed to perform its duty by not delivering the possession of the plot even after allotting the same to the Members of opposite party No.1-Society and accepted First Appeal No.1027 of 2000 filed by opposite party No.1- Society absolving it from its liability of putting the complainants in possession of the plots. The other First Appeals filed by different complainants have been accepted. Opposite party No.2-Trust filed Revision Petitions No.3002 to 3008 and 3217 of 2009 against the aforesaid judgment which came up for hearing before the Hon'ble National Commission on 4.7.2016 and the same were disposed of by First Appeal No.1543 of 2009 16 directing the Trust to allot the plots mentioned in the said list, strictly according to the entitlement of each of the complainants within 6 weeks from the date of order on usual terms and conditions as applicable to similar allotments made in the past.
24. In view of our above discussion, we do not find any infirmity or illegality in the impugned order passed by the District Forum. The appeal (FA No.1543 of 2009) is dismissed accordingly. However, we may observe here that the plot be allotted to the complainant within 4 months by opposite party No.2-Trust and in case alternative plot is to be allotted in any other area, the same shall be allotted of same size and at the price which was fixed at the time of booking the plot in question originally. If the size is more the complainant will be required to pay the proportionate amount and if the size is less, then the proportionate amount be refunded to the complainant. FIRST APPEAL NO.1544 OF 2009:
25. In view of the discussion held in First Appeal No.1543 of 2009 (Ludhiana Improvement Trust v. Neelam Bhalla and another), this First Appeal is also dismissed.
26. The First Appeals could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER March 09, 2017 Bansal