State Consumer Disputes Redressal Commission
The Improvement Trust Moga vs Narinder Nath on 22 March, 2013
2nd Addl. Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 764 of 2012
Date of Institution: 8.6.2012
Date of Decision : 22.3.2013
1. The Improvement Trust Moga through its Chairman.
2. Executive Officer, Improvement Trust, Moga.
.....Appellants
Versus
Narinder Nath s/o Sansar Chand s/o Kundal Lal, resident of Shop No. 121,
New Grain Market, Moga, District Moga.
.....Respondent
2nd Appeal
First Appeal No. 765 of 2012
Date of institution: 8.6.2012
1. The Improvement Trust Moga through its Chairman.
2. Executive Officer, Improvement Trust, Moga.
.....Appellants
Versus
Ravinder Nath s/o Sansar Chand s/o Kundal Lal, resident of Shop No. 121,
New Grain Market, Moga, District Moga.
.....Respondent
3rd Appeal
First Appeal No. 766 of 2012
Date of institution: 8.6.2012
1. The Improvement Trust Moga through its Chairman.
2. Executive Officer, Improvement Trust, Moga.
.....Appellants
Versus
Inder Mohan s/o Sansar Chand s/o Kundal Lal, resident of Shop No. 121,
New Grain Market, Moga, District Moga.
.....Respondent
First Appeal against the order dated 30.4.2012
passed by the District Consumer Disputes
Redressal Forum, Moga.
First Appeal No. 764 of 2012 2
Before:-
Shri Piare Lal Garg, Presiding Member
Shri Jasbir Singh Gill, Member Present in F.A. No. 764 of 2012:-
For the appellants : Sh. D.P. Gupta, Advocate
For the respondent : Ms. Anita Sharma, Advocate for
Sh. P.K. Kataria, Advocate
PIARE LAL GARG, PRESIDING MEMBER
This order will dispose of following three appeals:-
S. First Appeal Appellant's Name Respondent's Order No. No. Name
1. 764 of 2012 The Improvement Trust, Narinder Nath 30.4.2012 Moga
2. 765 of 2012 The Improvement Trust, Ravinder Nath 30.4.2012 Moga
3. 766 of 2012 The Improvement Trust, Inder Mohan 30.4.2012 Moga The above mentioned appeals are against the impugned orders dated 30.4.2012 passed by the District Consumer Disputes Redressal Forum, Moga(in short the "District Forum") and are disposed off by a single order as in all the appeals the facts, dispute and the questions of law involved are the same. The facts are taken from 'First Appeal No. 764 of 2012' and the parties would be referred by their status in this appeal.
2. Brief facts of the case are that the appellants developed a scheme known as 'Scheme No. 3' Truck Stand, Near G.T. Road, Moga on 26.6.1998. Vide letter dated 21.12.1998, Plot No. 3 was allotted to the respondent at the price of Rs. 6,65,000/-. It was further pleaded that the scheme floated for retiring room, truck drivers office, booking agencies and parking was also reserved for the parking of booking agencies etc. but lateron the site plan as well as scheme was illegally changed without the consent of the respondent and other allottees and the same was changed for common and commercial use i.e. SCO, SCF, Hotel/Restaurant and for First Appeal No. 764 of 2012 3 Regional Office of Education Board. Due to this illegal act of the appellants, the price of the plots was decreased and due to the illegal act of the appellants the respondent could not construct the plot for the purpose for which the same was purchased. The demand of non- construction charges of the appellants vide letter dated 10.12.2010 and 12.9.2011 was illegal, unwarranted and uncalled for. There was no condition for levying and recovery of non-construction charges in the terms and condition of the scheme and in the allotment letter. The respondent had already paid all the instalments with penal interest and penalty to appellant No.1. The site plan was also sanctioned by the appellants. Demand raised as non-construction charges vide notices dated 10.12.2010 and 12.9.2011 was liable to be quashed. No civil amenities such as roads, water supply and sewerage had been provided by the appellants to the respondent and other allottees. The appellants requested the respondents to allow him to raise construction over the plot without payment of non-construction charges but the appellants refused to allow the same. The sale deed of the plot was also not executed by the appellants in favour of the respondent despite repeated requests and representations of the respondent. The complaint was filed with the prayer that the appellants may be directed to execute the sale deed of the plot in favour of the respondent, to quash the illegal demand of non-construction charges, to pay Rs. 2 lac as compensation for mental tension and harassment and Rs. 20,000/- as litigation expenses with any other relief which the District Forum may deem fit and proper may be awarded in favour of the respondent.
3. Upon notice, the appellants filed reply by taking preliminary objections that there was no deficiency in service on the part of the appellants, the complaint was not maintainable and the respondent was trying to take benefit of his own wrong acts and omissions, the plot was First Appeal No. 764 of 2012 4 purchased for commercial purposes, as such, the complaint was also not maintainable as per law, the complaint was filed only to escape from the liability of non-construction fee. On merits, it was admitted that plot was allotted to the respondent but the respondent himself not got executed the sale deed in his favour. Terms and conditions were also read over to the allottees at the time of auction, which were signed by the respondent after admitting the same to be correct and as per Condition No. 7, the construction was to be raised within three years after approving the site plan from the appellants. If not constructed within three years then the time would be increased after depositing non-construction fee with the appellants. The respondent had not constructed the plot within three years. Only the name of the scheme was changed from 'Truck Stand' to 'Lal Bahadur Shashtri Complex'. 28 plots for booking agencies and 7 plots for service industry were also reserved in Scheme No. 3. The site allotted to Truck Union, Moga was resumed by the appellants as the 'Truck Union, Moga' was failed to deposit the requisite amount within time. The basic function of the appellants was to develop public beneficial schemes. It was not in the interest of the general public to allow the property to be wasted in the hands of Truck Union. Scheme No. 3 was fully developed. On 27.1.2011 the appellants also auctioned service industry plots No. 5, 6 & 7, which fetched a price more than Rs. 28 lacs each and plot in dispute is almost adjoining to the abovesaid plots and of same nature and size, which was allotted to the respondent for an amount of Rs. 6,65,000/- only. As such, the version of the respondent was not correct that the value of the plot was decreased due to change of the scheme. It was prayed that the complaint may be dismissed with costs.
First Appeal No. 765 of 2012
4. Vide letter dated 21.12.1998, Plot No. 2 was allotted to the respondent-Ravinder Nath for an amount of Rs. 7,26,000/- in the 'Scheme First Appeal No. 764 of 2012 5 No. 3' Truck Stand, Near G.T. Road, Moga. All other pleadings are same, which were raised in F.A. No. 764 of 2012 and the prayer made by the respondent was also same.
First Appeal No. 766 of 2012
5. Vide letter dated 21.12.1998, Plot No. 1 was allotted to the respondent for an amount of Rs. 8,91,000/- in the 'Scheme No. 3' Truck Stand, Near G.T. Road, Moga. All other pleadings are same, which were raised in F.A. No. 764 of 2012 and the prayer made by the respondent was also same.
6. Learned District Forum after hearing the learned counsel for the parties and going through the record, allowed the complaint and liberty was granted to the respondent to get the sale deed executed of the plot in question from the appellants without paying 'non construction charges' and building application fee.
7. Aggrieved by the said order, the appellants has filed an appeal on the grounds that the judgments referred by the District Forum are not applicable to the facts of the present case, District Forum failed to appreciate that the appellants are entitled to charge non-construction fee and building application fee, the order of the District Forum is against the well settled principles of law, as such, the same is liable to be set-aside.
8. There is no dispute between the parties that the plot was purchased by the respondent from the appellants on 26.6.1998 and allotment letter Ex. R-2 dated 21.12.1998 was issued by the appellants to the respondent. We have perused the allotment letter. There is no condition in the allotment letter to charge non-construction fee if the respondent/allottee did not raise the construction over the plot allotted to him within three years from the date of allotment. It was held by this Commission in Appeal No. 592 of 2005 decided on 16.1.2006 in appeal titled as "Improvement Trust Barnala Vs. Urmila Devi" as under:- First Appeal No. 764 of 2012 6
"Since the terms and conditions of allotment letter do not contain any provision to impose penalty for Non Construction Fee the appellant is not legally authorized to do so. We find merit in the contention of the learned counsel for the respondent. When there is no mention about the imposition of Non Construction Fee in the allotment letter the appellant can not legally do so."
9. Revision Petition No. 833 of 2006 against the order of the State Commission was preferred by the appellants before the Hon'ble National Commission, which was also dismissed by the Hon'ble National Commission vide its order dated 25.4.2006 and it was held as follows:-
"The order passed by the Punjab State Commission (Has) mentioned the Clause 8 of the allotment letter which is reproduced as under:-
"It does not show anywhere that there would be an imposition of Non Construction Fee. Both the District Forum and the State Commission returned the finding that when there is no mention about the imposition of Non Construction fee in that allotment letter, the petitioner (Improvement Trust) cannot legally do so."
It was also held by the Hon'ble National Commission in the above mentioned revision petition as under:-
"Appellant Improvement Trust raised demand of Rs. 27675/- from complainant/ respondent as penalty and extension fee for non construction of houses for 3 years - Demand was raised on the basis of instructions which were not in accordance with the provisions of the Act or Rules, Demand made by Improvement Trust held illegal amounting to deficiency in service."
10. No appeal against the said order was filed by the Improvement Trust, Barnala and, as such, the order of the Hon'ble National Commission has attained finality.
11. The counsel for the appellants also failed to show us any rule of the Punjab Town Improvement Act, 1922 vide which non-construction fee can be imposed if the allottee fails to construct the building over the plot within three years from the date of allotment.
12. We have also perused the notification Ex. R-8 dated 13.12.2005 and notification Ex. R-7 dated 28.7.2011 but these notifications are not applicable as the plot was allotted to the respondent on 21.12.1998 First Appeal No. 764 of 2012 7 i.e. before the issuance of the above notifications. These notifications were not made applicable with retrospective effect. It was also held by the Hon'ble Supreme Court on this point in case "State of Madhya Pradesh Vs. Yogendra Shrivastva", 2010 (1) SCT Page 434 held that:-
"Rights and benefits already earned or acquired under the un-amended rules can not be taken away by amending the rules with retrospective effect."
13. It was also held by the Hon'ble Punjab & Haryana High Court in case "Escorts Ltd. Vs. Union of India", 2010 (2) RCR (Civil) Page 60 that:-
"Constitution of India 1950, Article 14. Retrospective amendment in scheme withdrawing benefits earlier conferred - Whether allowed - Held, (No)- Government cannot withdraw any benefits with retrospective effect."
14. The appellants vide notice Ex. A-3 dated 12.9.2011 raised a demand of Rs. 9,61,220/- as non-construction fee so that the period for construction could be extended upto 12 years and if the respondent failed to deposit the same, his plot will be resumed/cancelled in favour of respondent No. 1 - Improvement Trust. Again notice Ex. A-2 dated 14.2.2012 was also issued to the respondent vide which a demand of Rs. 11,21,400/- was raised as non-construction fee.
15. The appellants had also not produced the calculations how the amount of Rs. 11,21,400/- was calculated as non-construction fee and under which rules.
16. Similar dispute was arosed between PUDA and its allottees. There is a Rule 13 under Punjab Regional and Town Planning and Development (General) Rules, 1995, which relates to the extension of time limit if the allottee fails to construct the building within three years from the date of issue of the allotment order. The State Government issued administrative instructions on 15.1.1998 by which rate of extension fee was enhanced. But the same were struck down by the Hon'ble High Court of First Appeal No. 764 of 2012 8 Punjab & Haryana in case Tehal Singh and others v. State of Punjab and the instructions issued on 15.1.1998 were declared ultra-vires of Rules, 1995 and the Act of 1995. The State Govt. filed appeal against the order of the Hon'ble High Court but the appeal was also dismissed by the Hon'ble Supreme Court on 10.11.2005. The Govt. again issued another notification on 8.10.2001 which was also struck down by the Hon'ble High Court of Punjab & Haryana in case Sant Kaur Jabbi and Another v. State of Punjab and Others.
17. It was held by the Hon'ble National Commission in Revision Petition No. 2568 of 2004 "P.U.D.A. versus Narinder Singh Nanda", decided on 27.5.2009 and the relevant para of the same is reproduced 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 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 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 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.
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 First Appeal No. 764 of 2012 9 State of Punjab is concerned. Until and unless the Judgments passed by the High Court of Punjab and Haryana are not set aside, the administrative instructions issued on 15.01.1998 and the amended instructions issued on 8.10.2001 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 15.1.1998 and, subsequently, on 8.10.2001, 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."
18. In the present case also there is no rule under the Act to charge non-construction fee from the allottees for non-construction of the building within three years from the date of allotment and only on the basis of notifications the demand of non-construction fee was raised by the appellants, which is illegal as held above by the Hon'ble National Commission. No demand regarding the non-construction fee can be raised if the Act and Rules not provides the same. The facts of the above judgment are fully applicable to the facts of the present dispute. In the present dispute, the demand of non-construction fee is also raised on the basis of the notifications.
19. As per the law laid down by the Hon'ble National Commission, even if the complaint of the respondent was not maintainable but the demand raised by the appellants is against the rules and act then the complaint is maintainable. The judgment and facts of the above mentioned Revision Petition is fully applicable upon the present dispute. The demand of Rs. 11,21,400/- vide letter Ex. A-2 was raised by the appellants while performing its statutory duties under the provisions of "The Punjab Town Improvement Act, 1922". The demand in dispute was raised by the appellants against the provisions of Act and the Rules framed First Appeal No. 764 of 2012 10 thereunder and acting beyond the scope of the Act is certainly deficiency in service and as such, the complaint of the respondent under the Consumer Protection Act, 1986 with the prayer for the direction to the appellants to act under the provisions of the Act and not beyond the same is maintainable.
20. It is admitted case of the appellants that the scheme known as Scheme No. 3 "Truck Stand" was developed by the appellants and plot No. 3 was also allotted to the respondent under the said scheme. The scheme was sanctioned for the Truck Driver's Retiring Room, Truck Driver's Office, Booking Agencies, Parking for Booking Agencies etc. but lateron the appellants had changed the scheme in dispute illegally without the consent of the allottees for common and commercial use i.e. SCO and SCF, Hotel/Restaurant and for Regional Office of Education Board. There is no pleadings of the appellants that before the change of scheme in dispute any notice was served upon the allottees for obtaining the objections, if they had any. It was also not denied by the appellants that Scheme No. 3 (Truck Stand) where the plot was allotted to the respondent was only for the retiring room etc. for the truck drivers and not for commercial purpose. The appellants had also not produced any evidence or order of the State Government regarding the change of scheme from Scheme No. 3 "Truck Stand" to "Lal Bahadur Shastri Complex". The act of the appellants for change of the scheme without the consent of the allottees is also deficiency in service and unfair trade practice on the part of the appellants.
21. We have also perused proceedings of the appellants Ex. R-12 and as per Resolution No. 18, it was decided that non construction fee for Scheme No. 3 "Truck Stand" may be charged from January, 2006 after obtaining the sanction/approval from the Government. But the appellants have not produced any approval order of the Government regarding the First Appeal No. 764 of 2012 11 charging of non-construction fee from the allottees of Scheme No. 3 "Truck Stand" and also not produced the rates regarding changing of non- construction fee from the allottees of Scheme No. 3 (Truck Stand).
22. We have also perused the allotment letters Ex. R-4, R-5 and R-6 dated 16.8.2011 which were issued to Hardeep Kumar, Avaneesh Thakur and Jagesh Thakur regarding the allotment of Plot Nos. 5, 6 and 7 to the above allottees (which were allotted after 13 years of the allotment of the respondent) tendered into evidence by the appellants. In the said allotment letters, there is a condition No. 5 if the allottees failed to construct the building after obtaining the demarcation and sanctioning of site plan from the Improvement Trust, Moga then they will be liable to pay the non-construction fee as per the directions of the Govt. But there was no such condition in the allotment letter dated 21.12.1999 issued to the respondent, as such, the respondent is also not liable to pay the non- construction fee as there was no such condition in the allotment letter issued to him.
23. The order of the District Forum is detailed one and there is no infirmity in the same. The appeal of the appellants is without any merits, as such, the same is dismissed without any order as to costs.
24. In view of the above discussions, Appeals No. 765 of 2012 and 766 of 2012 of the appellants are also dismissed.
25. The arguments in these appeals were heard on 11.3.2013 and the orders were reserved. Now the orders be communicated to the parties.
26. Photocopy of this order be placed on other two appeals i.e.:- First Appeal No. 765 of 2012 First Appeal No. 766 of 2012
(Piare Lal Garg) Presiding Member March 22, 2013. (Jasbir Singh Gill) as Member First Appeal No. 764 of 2012 12 First Appeal No. 764 of 2012 13