State Consumer Disputes Redressal Commission
Improvement Trust Barnala vs Naresh Kumar on 11 February, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.946 of 2010
Date of institution : 28.05.2010
Date of decision : 11.02.2014
Improvement Trust Barnala through its Executive Officer.
.......Appellant- Opposite Party
Versus
Naresh Kumar s/o Om Parkash, resident of Kothi No.187, 16 Acre
Scheme of Improvement Trust Barnala, Tehsil and District Barnala.
......Respondent-Complainant
First Appeal against the order dated
13.4.2010 of the District Consumer
Disputes Redressal Forum, Barnala.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Shri Baldev Singh Sekhon, Member.
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellant : Shri Rajiv Joshi, Advocate. For the respondent : Shri Gurpreet Singh, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/opposite party has preferred this appeal against the order dated 13.4.2010 passed by District Consumer Disputes Redressal Forum, Barnala (in short, "District Forum"), vide which the complaint filed by the respondent/complainant, Naresh Kumar, under Section 12 of the Consumer Protection Act, 1986, was allowed and the following directions were issued to the opposite party:-
a) to refund the non-construction fee of Rs.28,800/-, along with interest at the rate of 9% per annum from the date of deposit;
b) to pay Rs.2,000/- as compensation;First Appeal No.946 of 2010. 2
c) to pay Rs.2,000/- as litigation costs.
2. As per the averments made by the complainant, in his complaint, he was allotted plot No.187 in 16 Acres Scheme, vide allotment letter dated 25.11.1997 and he deposited all the instalments and other dues well in time. The development charges were charged from all the allottees for the said Scheme as per Punjab Improvement Trust Act and the Rules. They were to be provided water, sewerage facility, electricity, parks, metalled roads, parking facility etc. He approached the opposite party many a times to get possession and demarcation of his plot and for the supply of above said amenities but the same was not done. He applied for the approval of the map in the year 2006 in order to enable him to raise the construction, which was duly approved but the possession of the plot was given to him only in the month of January 2007. The basic amenities were not provided and it was assured that those would be provided after the completion of the construction work as the sewerage pipes had not been laid down. Believing that word of the opposite party, he raised the construction and asked it to provide the water supply and sewerage facility and instead of providing those facilities he was asked to deposit Rs.28,800/- as non-construction fee. No such construction fee could have been charged as there was no term and condition to that effect in the allotment letter. He deposited that amount, in addition to Rs.1047/-, on 20.12.2007 under protest. Thereafter the facility of water supply was provided and the sewerage facility was not provided. In the complaint he prayed for the issuance of directions to the opposite party to refund the First Appeal No.946 of 2010. 3 amounts so paid by him, along with interest at the rate of 18% per annum from the date of deposit till the realization thereof, to pay Rs.25,000/- as compensation for mental agony and harassment and Rs.11,000/- as litigation expenses.
3. The complaint was contested by the opposite party by filing written reply in which it was admitted that the complainant was allotted Plot No.187 in 16 Acre Scheme, vide allotment letter dated 25.11.1997 and that he applied for the approval of the map in the year 2006 and was asked to deposit Rs.28,800/- as non-construction fee for the year 2007 and that the said amount, along with Rs.1047/- as road cutting charges, was deposited by him on 20.12.2007. While denying the other averments made in the complaint, it pleaded that as per the terms and conditions of the allotment letter and the Agreement for Sale executed in respect of the plot in dispute, he was to raise the construction within three years from the date of allotment i.e. 25.11.1997 and in the event of non-construction thereof he was to pay non-construction fee as per the Government instructions. The providing of amenities/facilities were not part of the agreement for Sale or allotment letter. The possession and demarcation of the plot was given to the complainant on the day of allotment itself and all the basic amenities, except the roads, were provided in the year 2002. The road in front of the plot itself was provided in the year 2003. It was on account of the late providing of those amenities that non-construction fee was not charged from the complainant upto 31.12.2006. He is not entitled to any relief as asked for in the complaint and the same is not maintainable. As per condition No.15 First Appeal No.946 of 2010. 4 of the agreement, the matter in dispute is to be referred for arbitration and the District Forum has no jurisdiction to entertain and try the complaint. The complainant himself was at fault and he cannot take benefit of his own wrongs. He has not come to the District Forum with clean hands.
4. Both the sides 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 aforesaid order.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for the opposite party that no such evidence was produced before the District Forum for proving that the amenities, as mentioned in the complaint, were not provided in the Scheme. No doubt, the same were provided late and it was on that account that for three years after the providing of those amenities the non-construction fee was not levied. From the evidence produced on the record, it stands proved that the facility of water supply was provided in the year 1999 and that the sewerage facility was provided in the year 2001. The road was laid down in the year 2003 and after giving a concession of three years, the non- construction fee was levied with effect from 2007. The findings recorded by the District Forum are contrary to that evidence and, as such, cannot be sustained and are liable to be set aside.
7. On the other hand, it was submitted by the learned counsel for the complainant that correct findings were recorded by the District First Appeal No.946 of 2010. 5 Forum after properly scrutinizing the evidence produced by the parties. From the evidence produced by the complainant, it stands proved that the possession of the plot had not been delivered to the complainant till the year 2007 and the facilities had not been provided till the filing of the complaint. As per the terms of the allotment letter, he was to be allowed three years from the date of delivery of possession for raising construction in the plot. There was no condition in the allotment letter or the agreement stipulating the levy of the non-construction fee and, as such, the same could not have been levied by the opposite party.
8. The allotment letter, vide which the plot in dispute was allotted to the complainant, was proved on the record as Ex.C-2. As per clause 8 thereof, the complainant was to complete the building on the plot allotted to him within three years of the date of issue of the allotment order after getting demarcation and after getting the plan of proposed building approved from the opposite party. That condition was reiterated in the Agreement for Sale Ex.R-2, which was executed between the parties. There is no stipulation in either of these documents, vide which the complainant was required to pay non-construction fee in case of his failure to raise the construction within the said period. The complainant proved on record the bill Ex.C-6, which was issued by opposite party regarding the auction of the plots in the Scheme so mentioned in the complaint. The plots were auctioned as per the conditions mentioned therein. As per one of the terms and conditions, the water supply, sewerage, metalled road, streetlight and parks were to be made available by the First Appeal No.946 of 2010. 6 opposite party. There was no question of raising any construction by any of the allottee before the providing of those amenities/facilities. The opposite party was well aware of that fact and it was in pursuance thereof that it had been passing resolutions from time to time and two of those resolutions were proved on record as Ex.R7 and Ex.R8. The first resolution was passed on 19.2.2004, in which it was mentioned that the road was incomplete, streetlight was not proper and the sewerage/water supply was provided at the end of the year 2002 and, as such, the non-construction fee be charged from the allottees of the plots mentioned therein with effect from 31.12.2005. Plot No.187, which was so allotted to the complainant, was mentioned in that resolution. The second resolution was passed on 28.2.2006 and it was decided that in view of the order passed by the District Forum, Sangrur in favour of the allottee of Plot No.166, vide which it had been ordered that the non-construction fee be charged only after 31.12.2006, that the non-construction fee upto 31.12.2006 be exempted. It was only thereafter that the opposite party charged the non-construction fee from the complainant for the year 2007.
9. According to the complainant, the said facilities had not been provided even upto the date of filing of the complaint. To substantiate his contention, he proved on record his affidavit Ex.C-1 and he deposed therein that the facilities had not been provided till the date of swearing of the affidavit; which was sworn by him on 1.2.2010. This affidavit of the complainant was duly controverted by the affidavit of Z.R. Khan, Executive Officer, Ex.R-1, in which he First Appeal No.946 of 2010. 7 specifically deposed that all the basic amenities, except the road, were provided in the Scheme in front of plot in dispute in the year 2002 and the road was also provided in the year 2003. He being the Executive Officer of the opposite party had the best knowledge about the providing of those facilities. To inspire confidence in the truthfulness of that deposition, the opposite party annexed with the grounds of appeal the letter written by the SDO, Public Health to the Executive Officer on 18.12.2006, in which he specifically mentioned that facility of water supply was provided in the 16 Acres Scheme in the year 1999 and the sewerage facility was provided in the year 2001. Certificate of the Assistant Trust Engineer, Improvement Trust, Barnala, was also annexed with the grounds of appeal, in which it was certified that the streetlights were provided in the Scheme in the month of March, 1999 and the work of the roads was started in the month of March 1998. From the evidence so produced by the opposite party, it stands proved that the facilities, which were to be provided by the opposite party in the Scheme, were provided in the year 2001, 2002 and 2003. Thereafter a period of three years was to be allowed to the complainant to raise the construction and it was only for the year 2007 that the non- construction fee was charged from him.
10. We do not find any merit in the submission made by the learned counsel for the complainant that in the absence of any term and condition in the allotment letter and Agreement of Sale the non- construction fee could not have been levied. That non-construction fee is leviable by Rule 13 of the Punjab Regional and Town Planning First Appeal No.946 of 2010. 8 Development (General) Rules, 1995. In these circumstances, it cannot be said that the non-construction fee was wrongly charged from the complainant entitling him to the refund of the same or that there was any deficiency in service on the part of the opposite party. In these circumstances the findings recorded by the District Forum to the contrary are to be set aside.
11. In the result, this appeal is hereby allowed and the order of the District Forum is set aside and the complaint filed by the complainant is dismissed.
12. The sum of Rs.22,500/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellant-Improvement Trust by way of a crossed cheque/demand draft after the expiry of 45 days.
13. The arguments in this case were heard on 6.2.2014 and the order was reserved. Now, the order be communicated to the parties.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (MRS. SURINDER PAL KAUR) February 11, 2014 MEMBER Bansal First Appeal No.946 of 2010. 9