National Consumer Disputes Redressal
Narinder Singh Nanda vs P.U.D.A on 27 May, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2125 OF 2006 (From the Order dated 19.05.2006 in Appeal No. 668/06 of State Consumer Disputes Redressal Commission, Chandigarh, Punjab) NARINDER SINGH NANDA PETITIONER VERSUS P.U.D.A RESPONDENT WITH REVISION PETITION NO. 2568 OF 2004 (From the Order dated 26.05.2006 in Appeal No. 704/06 of State Consumer Disputes Redressal Commission, Chandigarh, Punjab) P.U.D.A. PETITIONER VERSUS NARINDER SINGH NANDA RESPONDENT BEFORE: - HONBLE MR. JUSTICE ASHOK BHAN, PRESIDENT HONBLE MR. B.K. TAIMNI, MEMBER FOR THE COMPLAINANT : MR. J.S. PURI, ADVOCATE FOR P.U.D.A. : MS. RACHNA JOSHI ISSAR, ADVOCATE WITH MR. SHAILENDER KUMAR, ADVOCATE. PRONOUNCED ON : 27.05.2009 O R D E R
ASHOK BHAN J., PRESIDENT Present Revision Petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 (herein after referred to as the C.P. Act for short) against the Order passed by the State Consumer Disputes Redressal Commission, Chandigarh, Punjab (hereinafter referred to as the State Commission for short) in F.A. No. 668 of 2006 decided on 19.05.2006. The State Commission by the impugned Order has affirmed the Order passed by the District Consumer Disputes Redressal Forum, Ludhiana, Punjab (hereinafter referred to as the District Forum for short) in Complaint No. 657 of 2004.
Briefly stated, the facts of the case are: -
Plot no. 2097, Phase-I, Urban Estate, Dugri Road Ludhiana was originally allotted to one Y.S. Khera on 12.05.1995 at a tentative cost of Rs.85,000/-. He failed to construct the house within 3 years. He deposited the amount of extension fee upto 31.12.1993 and, thereafter, sold the plot to Narinder Singh Nanda-complainant for a sum of Rs.97,335/-. Complainant also sold the said plot to one Sanjay Gupta and Amit Gupta. Complainant, according to the petitioner-Punjab Urban Development Authority (hereinafter referred to as PUDA for short), had not completed the construction within the period of 3 years, he was required to deposit Rs.3,26,134/- towards the non-construction fee, which the complainant deposited under protest. As per the agreement between the complainant/seller of the plot and Sanjay Gupta and Amit Gupta/buyers of the plot, in the event of refund of non-construction fee, i.e., Rs.3,26,134/-, the complainant will be entitled to get the same. Sanjay Gupta and Amit Gupta have filed their Affidavit that the non-construction fee deposited, if refunded, be paid to the complainant.
Facts stated in the complaint are that the complainant, after approval of the building plan, constructed the house in the year 1999-2000 and, since then, he had been paying the electricity, water and sewerage charges regularly. It was asserted that due to family circumstances, the complainant had to sell the house and, accordingly, he gave an application to PUDA for permission to sell the said house. PUDA deputed the concerned J.E. for inspection of the plot who inspected the site on 14.05.2004 and, in the Report submitted, it was stated that the construction was incomplete as the roof of the rooms was of chhadder. Alleging that the Report given by the J.E. was incorrect, the complainant deposited a sum of Rs.3,26,134/- towards the non-construction fee under protest, and then sold the house to Sanjay Gupta and Amit Gupta reserving his right to recover the amount of Rs.3,26,134/- illegally extracted from him.
Notice was issued, petitioner/PUDA put in appearance and controverted the assertions made in the complaint and contested the same. Some legal objections were also raised. It was pleaded that the Act known as the Punjab Regional and Town Planning Development (General) Rules, 1995 (hereinafter referred to as the Act of 1995 for short) and other allied Rules and Regulations, were enacted which stress the need for proper planning and development of urban areas to curb the unregulated and haphazard growth and development of urban colonies. Keeping this aspect in view, all Housing and Development Schemes of PUDA, including Urban Estates, are planned, sanctioned and developed for the upliftment of standard of general public. To achieve this object, the Rules and Regulations of PUDA Schemes were enacted in public interest. Consequently, on the allotted plots in urban estates, it is binding on the allottees to construct the houses on the allotted plots within 3 years from the date of issuance of allotment letters/conveyance deeds after getting the building plans approved from the concerned Estate Officer as per standard design. In case of inability to construct the house within the stipulated period of 3 years, for the reasons beyond the control of the allottee, he can get extension of time from the Estate Officer by depositing requisite fee under sub-Rule (2) of Rule 13 of the Act of 1995.
It was pleaded that depositing of non-construction fee is binding on all allottees as per prevailing Policy of PUDA with a view to complete the construction of schemes as early as possible so as to handover the fully developed area to the Local Authorities for further maintenance. The failure of the allottees to construct the houses as per approved plans within a period of 3 years or seeking extension time and again, creates number of problems to their neighbours as the vacant plots become dens for anti-social elements giving rise to criminal activities. The second avowed object of the Scheme is to discourage keeping of plots vacant which leads to speculation and inflationary trends in the real estate properties. It was necessary to enact punitive provisions in the public interest.
Transfer of property from Y.S. Khera to Narinder Singh Nanda/complainant and, thereafter, by the complainant to Sanjay Gupta and Amit Gupta was admitted. Deposit of Rs.3,26,134/- towards non-construction fee, under protest, was also admitted. It was submitted that the complaint deserves to be dismissed. That whatever construction has been put-up by the complainant was not inline with the sanctioned plan.
The District Forum relying upon the decision of the State Commission in Appeal No. 284 of 2005, PUDA v. Balbir Singh decided on 04.03.2005, held that PUDA was not entitled to charge the extension fee under the instructions issued because the said instructions had already been quashed by the Honble High Court of Punjab and Haryana. District Forum directed the petitioner/PUDA to return the sum of Rs.3,26,134/- to the complainant/respondent within one month from the date of its Order. No interest was awarded on the above sum of Rs.3,26,134/-.
Aggrieved by the Order passed by the District Forum, respondent/complainant filed First Appeal No. 686 of 2006 before the State Commission seeking interest on the amount awarded by the District Forum. Prayer made in the Appeal was that PUDA/respondent therein be directed to pay interest on the amount ordered to be refunded by the District Forum. The State Commission, by the impugned Order, disposed of the Appeal directing the PUDA/respondent to refund the amount as directed by the District Forum with interest @ 9% from the date of the passing of the Order by the District Forum.
PUDA also filed Appeal No. 704 of 2006 against the Order of the District Forum which has been dismissed by the State Commission by the impugned Order in terms of its earlier Order in Balbir Singhs case (supra).
Aggrieved against the separate Orders passed by the State Commission in the two separate Appeals, two Revision Petitions have been filed before this Commission. Revision Petition No. 2568 of 2006 has been filed by PUDA seeking reversal of the Order passed by the State Commission and the District Forum directing the PUDA/respondent to refund the amount deposited by the complainant towards extension fee and dismissal of the complaint in toto.
Revision Petition No. 2125 of 2006 has been filed by Narinder Singh Nanda/complainant seeking interest on the deposited amount from the date of its deposit.
This Order shall dispose of Revision Petition No.2125 of 2006 and Revision Petition No. 2568 of 2006 as the facts in both the Revision Petitions arise out of the same complaint.
The State Commission dismissed the Appeal filed by PUDA relying upon its own decision in Balbir Singhs case (supra). In the said case, the State Commission relying upon two Judgments of High Court of Punjab and Haryana in Civil Writ Petition No. 13648 of 1998, Tehal Singh and Others v. State of Punjab, decided on 04.05.1998. In these Judgments, the High Court had struck down the instructions issued by the State of Punjab on 15.01.1998 being ultra vires to the Rules of 1998. It was held that the PUDA cannot demand enhanced amount of extension fee from the writ petitioners by virtue of the instructions issued under the provisions of Rule 13 of 1995. The notices impugned in those Writ Petitions were quashed being illegal. The demand of enhanced extension fee, as in the present case, was declared to be ultra vires to the Provisions of the Act of 1995 read with Rules of 1995. The concerned Authorities of PUDA were directed to grant suitable extension in the time limit prescribed for construction of the building subject to payment of the fee specified under Rule 13 of the 1995 Rules and not under the administrative instructions issued on 15.01.1998 by the State of Punjab. Aggrieved against this Order, PUDA filed Special Leave Petition in the Honble Supreme Court of India which was dismissed.
Subsequent to the passing of the Order in Tehal Singhs case (supra) on 04.05.1998, a new set of administrative instructions were issued by the State of Punjab on 08.10.2001 to take away the basis of the Order passed by the High Court of Punjab and Haryana in Tehal Singhs case (supra). The subsequent administrative instructions issued on 08.10.2001 were again struck down by the High Court of Punjab and Haryana in Civil Writ Petition No. 18986 of 2001 decided on 31.10.2002, Sant Kaur Jabbi and Another v. State of Punjab and Others. Against this Judgment, Special Leave Petition was filed by the State of Punjab in the Honble Supreme Court of India which was dismissed.
The State Commission, relying upon the aforesaid two Judgments in Tehal Singhs and Sant Kaur Jabbis cases (supra), had rendered a detailed Judgment in Balbir Singhs case (supra). In the present case, the State Commission, relying upon its earlier decision in Balbir Singhs case (supra), dismissed Appeal No. 784 of 2006 filed by the PUDA and allowed the Appeal No. 668 of 2006 filed by Narinder Singh Nanda/complainant, directing the PUDA to pay interest @ 9% on the deposited amount from the date of Order of the District Forum.
It may be mentioned here only that in a subsequent Order passed by the Honble High Court of Punjab and Haryana allowing the Writ Petition, relying upon Tehal Singhs and Sant Kaur Jabbis cases (supra), PUDA had filed Special Leave Petition No. 3549 of 2006 in which Leave has been granted and the same is pending consideration with the Honble Supreme Court of India.
Judgments of High Court of Punjab and Haryana in Tehal Singhs and Sant Kaur Jabbis cases (supra) have attained finality as the Special Leave Petitions filed against them have already been dismissed.
Learned Counsel for the parties have been heard at length.
Allotment was made in favour of the respondent/complainant under Punjab Housing Development Board Act, 1972 (hereinafter referred to as the Act of 1972 for short). The allotments made under the Act of 1972 were subject to the provision of the Policy framed as amended by the Board from time to time. The State Government did not frame any Rules regarding the disposal of land and building by the Board under the Act of 1972. The allotments were regulated as per the Terms and Conditions contained in the allotment letter. This was superseded by the new Rules prescribed by the Government under Rule 13 of the Act of 1995 which was made by the State Government under Section 180 with the establishment of Punjab Urban Development Authority (PUDA) w.e.f. 01.07.1995. With the establishment of PUDA, w.e.f. 01.07.1995, the Punjab Development Board stood abolished with effect from that date. Similarly, the Act of 1972 also stood repealed with effect from that date subject to the savings contained in sub-Sections (3) and (4) of Section 183. By virtue of sub-Section (4) of Section 183 of the Act of 1995, the allotments of plots made before coming into force of the Act of 1995, under the Act of 1972 were deemed to have been made under the corresponding provisions (i.e. Section
43) of the Act of 1995. Section 180 of the Act of 1995 empowers the State Government to make Rules for carrying out the purposes of the Act. Clause (i) of sub-Section (2) of Section 180 of the Act of 1995 empowers the State Government to make Rules regarding the period of completion of building, extension of such period and fee to be paid under sub-Section (2) of Section 43. Under Section 180 of the Act of 1995, the State Government frame Rules of 1995. Rule 13 of the Rules of 1995 specifies the time within which the building is to be completed and the extension of time limit subject to payment of prescribed fees. The Rules of 1995 came into force w.e.f. 29.09.1995. The rates of extension fee fixed previously by the Punjab Housing Development Board stood superseded by the rates prescribed under Rule 13 of Rules of 1995. Despite the presence of Rule 13 of the Rules of 1995, administrative instructions were issued on 15.01.1998 fixing the enhanced rates of extension fee. The administrative instructions issued by on 15.01.1998 enhancing the rate of extension fee were struck down by the High Court of Punjab and Haryana in Tehal Singhs case (supra). The administrative instructions issued on 15.01.1998 were declared to be ultra vires of Rules of 1995 and the Act of 1995. Appeal against that Judgment has been dismissed by the Honble Supreme Court of India on 10.11.2005.
PUDA, thereafter, made another attempt to nullify the effect of the Judgment and issued another Notification on 08.10.2001, which was published in the Punjab Gazette on 28.10.2001. These subsequent instructions were also struck down by the High Court of Punjab and Haryana in Sant Kaur Jabbis case (supra).
Learned Counsel for the petitioner relying on the Judgment of the Honble 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 Honble High Court of Punjab and Haryana in Tehal Singhs and Sant Kaur Jabbis 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 Sunitas 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 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 Singhs and Sant Kaur Jabbis 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 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 25.05.2004. The Judgment of in Tehal Singhs 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 Jabbis 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 fee, i.e., Rs.3,26,134/-
with interest @ 9% from the date of deposit.
The two Revision Petitions are disposed of in the above terms leaving the parties to bear their own costs.
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(ASHOK BHAN J.) PRESIDENT .
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(B.K. TAIMNI) MEMBER REVISION PETITION NO.
2125 OF 2006 (From the Order dated 19.05.2006 in Appeal No. 668/06 of State Consumer Disputes Redressal Commission, Chandigarh, Punjab) NARINDER SINGH NANDA PETITIONER VERSUS P.U.D.A RESPONDENT WITH REVISION PETITION NO.
2568 OF 2004 (From the Order dated 26.05.2006 in Appeal No. 704/06 of State Consumer Disputes Redressal Commission, Chandigarh, Punjab) P.U.D.A. PETITIONER VERSUS NARINDER SINGH NANDA RESPONDENT Draft Order in the above matters is sent herewith for your kind perusal. If approved, the same may be listed for pronouncement.
(ASHOK BHAN J.) President 25.05.2009 Honble Mr. B.K. Taimni, Member