State Consumer Disputes Redressal Commission
Punjab Urban Planning & Development ... vs Balwinder Singh S/O Late Harbans Singh on 7 February, 2013
1
First Appeal No. 928 of 2008
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHAN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 928 of 2008
Date of institution : 28.08.2008
Date of decision : 07.02.2013
Punjab Urban Planning & Development Authority, near BRS Nagar, Ferozepur
Road, Ludhiana through its Estate Officer.
.....OP/Appellant
Versus
Balwinder Singh s/o late Harbans Singh, Surinder Pal Kaur, Jawinder Kaur,
Bhupinder Kaur d/o late Harbans Singh s/o Jiwa Building, Anarkali Bazar
Jagraon, Ludhiana
.
.....Complainants/Respondents
First Appeal against the order dated 16.05.2008
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Before:-
Sardar Jagroop Singh Mahal,
Presiding Judicial Member
Shri Vinod Kumar Gupta, Member Argued by:-
For the appellants : Sh. Balwinder Singh, Advocate For the respondent : Sh. R.S.Kakkar, Advocate JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER This is OP's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 16.5.2008 passed by the learned District Consumer Disputes Redressal Forum, Ludhiana (in short the District Forum) vide which the complaint filed by Balwinder Singh was allowed and the demand of extension fee made by the OP/appellant was quashed. The OP/appellant was directed to charge the non-construction fee strictly as per provisions of the allotment letter Ex. R-1.2
First Appeal No. 928 of 2008
2. The present complaint was filed by Balwinder Singh and other complainants alleging that his father Harbans Singh had applied for a residential plot measuring 150 sq. yards which was allotted to him on 31.3.1993. However, by the time of allotment, Harbans Singh had already expired on 5.4.1991 and the OP/appellant was informed about his death. The OP/appellant vide its letter dated 4.7.1994 asked the Deputy Commissioner, Faridkot to issue a succession certificate but the same was not issued and in the mean time, complainants/respondents deposited the instalment of Rs. 18,168/- . The plot was then transferred in favour of the complainants on 20.7.2005. On the asking of the OP/appellant the complainants paid the non-construction charges and the penal interest on 10.8.2006. The contention of the complainants is that the allotment letter was issued in favour of a dead man, who could not raise construction and the plot was transferred in favour of the complainants on 20.7.2005, the OP/appellant therefore, could not charge non-construction fee for a period of 3 years from 20.7.2005. It was also alleged that the non-construction fee charged was in violation of the provisions of PUDA Act, 1995 and the rules made there under. The complainants therefore, prayed for a direction to the OP/appellant to refund the amount of Rs. 1,15,175/- charged from them illegally and to quash the said demand, to refund the said amount alongwith interest @ 18% per annum and to pay him Rs. 50,000/- as compensation.
3. The complaint was contested by the OP/appellant alleging that the complainants are not the consumers and that the District Forum has no jurisdiction to allow the relief claimed by them. It was admitted that the plot was allotted to Harbans Singh on 31.3.1993 because the complainants never informed the OP about the death of Harbans Singh prior to that. It was admitted that the complainants paid the non-construction charges and penal interest and that the plot was re-allotted to the complainants on 20.7.2005. It was admitted that the OPs demanded non-construction charges and penal interest for the period from 2000 to 2005 which was paid by the complainants. It was denied if 3 First Appeal No. 928 of 2008 the complainants are not liable to pay the same or they are entitled to the refund thereof.
4. Both the parties produced evidence in support of their contentions.
5. After hearing arguments of the learned counsel for the parties and perusing the record, the learned District Forum vide impugned order dated 16.5.2008 allowed the complaint in terms as stated above. The OP has challenged the same through the present appeal.
6. We have heard the arguments of the learned counsel for the parties and have perused the record.
7. The contention of the OP/appellant is that the allotment of the plot in question was made vide Ex. C-1 (and Ex. R-1) dated 31.3.1993 and in view of clause-9, the construction was to be completed within 3 years which period expired on 30.3.1996 and the allottee was therefore, liable to pay extension fee thereafter. This contention was not accepted by the learned District Forum. We are also of the view that the allotment letter Ex. C-1 (and Ex. R-1) was issued in favour of Harbans Singh who had since died. We are not convinced of the arguments advanced by the learned counsel for the OP/appellant because a dead man could not have commenced or completed the construction nor his legal representative had any right to start the same unless the plot was transferred in their favour. The complainants requested vide Ex. C-3 dated 28.4.1993 to transfer the plot in their favour but the matter was lingered on till 20.7.2005 when the plot was transferred in favour of the complainants vide letter Ex. C-6 (and Ex. R-3). We are, therefore, of the opinion that the period of three years for raising construction shall start from 20.7.2005 and the finding recorded by the learned District Forum in this respect requires modification. Needless to mention that when the plot was not allotted in favour of the complainants/respondents they had no right to raise construction or to complete the same within three years nor any building plan submitted by them could be 4 First Appeal No. 928 of 2008 passed by the OP and consequently they are not liable for the consequences if due to the delay on the part of the OP/appellant in transferring the plot in their favour, the construction was delayed. The impugned order passed by the learned District Forum that non-construction charges should be levied in accordance with the allotment letter dated 31.3.1993, therefore, cannot sustain, in fact these are to be levied in accordance with the letter dated 20.7.2005 read with the allotment letter dated 31.3.1993.
8. The learned counsel for the appellant has also argued that the authorities cited by the learned District Forum are not applicable in the present case, because in the case of Tehal Singh Vs. State of Punjab, CWP No. 13648 of 1998 decided by the Hon'ble Punjab & Haryana High Court on 4.5.1999 only a notice issued by the Punjab Housing Development Board was cancelled and the notification issued by the State of Punjab had not been set aside. It is also argued that in the case of Sant Kaur Jabbi and another Vs. State of Punjab and others CWP No.18996 of 2001 the Hon'ble High Court had set aside the retrospection application of the amended Rules and not the amendment itself. It was argued that the State of Punjab had amended the Rules but the same had neither been challenged nor the said amendment was quashed. The learned counsel argued that the OPs were entitled to charge fee in accordance with the Rules which were amended by notification dated 8.10.2001 and therefore, impugned order passed by the learned District Forum cannot sustain.
9. 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 5 First Appeal No. 928 of 2008 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 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 Fora 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.6
First Appeal No. 928 of 2008
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 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."
10. Clause-9 (iii) of the allotment letter Ex. C-1 specifies the rate at which the extension fee is to be charged from the complainants/respondents. However, 7 First Appeal No. 928 of 2008 clause-13 of the allotment letter provides that the allotment is subject to the provision of the Punjab Housing Development Board Act, 1972 and policies framed and as amended by the Board from time to time. The said Act has since been replaced by Punjab Regional and Town Planning and Development Act, 1995 and Rules have been framed there under which would be applicable to the present allotment. The direction given to the OP/appellant that the charges should be levied strictly in accordance with those mentioned in the allotment letter is upheld and the date from which the time for raising construction would start would be 20.7.2005 on which date the plot was transferred in favour of the complainants/respondents giving them a right to raise construction thereon. The extension fee can be recovered by the OP at the rates mentioned in Para-9 (iii) of the allotment letter Ex. R-1 or at the rate provided under Rule 13(3) of the Punjab Regional and Town Planning and Development (General) Rules, 1995 whichever is higher. In view of the law as it stands now, after the decision of the Hon'ble High Court in case Tehal Singh Vs. State of Punjab and Sant Kaur Jabbi Vs. State of Punjab (supra) and the decision of the Hon'ble National Commission in case Narinder Kaur Nanda (supra), the OPs are precluded from claiming extension fee in excess of the rates referred to above.
11. With the above mentioned modification, the appeal filed by the OPs/respondents is dismissed. Parties are left to bear their own costs.
Copies of the orders be supplied to the parties free of costs.
(JAGROOP SINGH MAHAL) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER February 07 , 2013 Kalyan