State Consumer Disputes Redressal Commission
Vijay Kumar Sondhi vs Town Improvement Trust on 4 June, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1029 of 2010
Date of institution : 10.06.2010
Date of decision : 04.06.2014
Vijay Kumar Sondhi son of Shri Gian Chand Sondhi, resident of 370,
Guru Hargobind Nagar, Phagwara.
.......Appellant-Complainant
Versus
1. Town Improvement Trust, Phagwara, through its Executive
Officer.
2. Town Improvement Trust, Phagwara, through its Chairman.
......Respondents- Opposite Parties
First Appeal against the order dated
6.5.2010 of the District Consumer
Disputes Redressal Forum, Kapurthala.
Quorum :-
Hon'ble Mr. Justice Gurdev Singh, President.
Mr. Vinod Kumar Gupta, Member
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellant : Shri Aman Dhir, Advocate.
For the respondents : None.
JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/complainant, Vijay Kumar Sondhi, has preferred this appeal against the order dated 6.5.2010 passed by District Consumer Disputes Redressal Forum, Kapurthala (in short, "District Forum"), vide which the complaint filed by him under Section 12 of the Consumer Protection Act, 1986, was not adjudicated upon and he was referred to the proper Forum for redressal of his grievances.
2. The complainant alleged in his complaint that he was allotted Plot No.370 in Scheme No.1 of the opposite parties-Improvement First Appeal No.1029 of 2010. 2 Trust and that Scheme was popularly known as Guru Hargobind Nagar, Phagwara. The plot was of the area of approximately 400 square yards and he paid a consideration of Rs.36,000/-. It was mentioned in the allotment letter itself that if there was some variation in the actual area and the allotted area, then he would not have any right to dispute the same, which itself shows that he was bound to accept the total area of the plot existing on the spot. However, if the area was less than the area so mentioned in the allotment letter, then he was to pay the consideration at the rate of Rs.90/- per square yard and similarly in case of excess area he was to pay the price for the excess area at that rate. He submitted the site plan to the Improvement Trust for sanction to construct the house over the plot in dispute, which was sanctioned on 25.8.1983. As per the sanctioned site plan, the total area of the plot was 3983 square feet. Vide Memo No.180 dated 5.2.1992 he was directed to pay the enhanced price of Rs.19,832.36P (at the rate of Rs.45.05/- per square yard) along with interest within 30 days. He deposited that amount within the requisite time. Though he was the owner in possession of the house, constructed in the said plot, yet the sale deed was not executed in his favour. In the year 2009, the Punjab Government issued notification that the allottees of the plots in colonies floated by the Improvement Trust had the chance of getting the sale deeds executed in their favour from the respective Improvement Trusts in the sum of the original sale price. In view of that notification, he was desirous of getting the sale deed executed but was told by the Trust officials that he had not deposited the cost First Appeal No.1029 of 2010. 3 of the excess area, as pointed out in Letter No.217 dated 23.1.1990; amounting to Rs.26,491/- and the sum of Rs.19,833/-, as the increase in the allotment price. He had already deposited those amounts but was not having the receipts with him. On 4.8.2009 he gave an undertaking, which was obtained by the Trust officials under duress, that he was ready to deposit the said amount and the sale deed be executed in his favour and his case be sent to the Government. In spite of the furnishing of that undertaking the officials kept on lingering the matter on flimsy grounds and they started claiming that he was to pay Rs.1,70,000/- per marla for the excess area of 32.43 square yards. In that regard he was served with Memo No.875 which was wrongly dated as 4.8.2009. He protested against that illegal demand and represented that in respect of the excess area he was liable to pay the price of the same at the original price of allotment plus enhancement of the allotment price. His request was not acceded to and having no other alternative and for getting the sale deed executed he deposited the sum of Rs.4,70,071/- on 17.8.2009, which included the enhanced price of Rs.19,833/-, which according to the Trust remained unpaid and Rs.41,847/-, as interest on that amount. Even thereafter the sale deed was not executed in his favour; which amounts to the adopting of the unfair trade practice by the opposite parties-Improvement Trust. Their officials forced him to furnish another undertaking dated 20.8.2009 that he would be bound by the decision taken by the State Government and he was also forced to give an indemnity bond on 26.8.2009. Even thereafter the sale deed was not executed in his First Appeal No.1029 of 2010. 4 favour and that amounts to deficiency in service on the part of the opposite parties, as after the payment of the total amount he was entitled to get the sale deed executed in his favour. It was on 27.8.2009 that the sale deed was executed in his favour regarding an area of 472.66 square yards. The opposite parties illegally charged Rs.5,05,961/- from him in excess, which was deposited under protest. Unfair trade practice was adopted by them by enforcing him to deposit that amount. He prayed for the refund of that amount, along with interest at the rate of 18% per annum from the date of actual payment till realization of that amount; Rs.1,00,000/-, as damages, for the physical and mental torture suffered by him on account of deficiency in service on the part of the opposite parties; and Rs.25,000/- as cost of the complaint.
3. The complaint was contested by the opposite parties, who filed joint written reply before the District Forum. In that written reply they admitted that Plot No.370 was allotted to the complainant at the rate of Rs.90/- per square yard. They also admitted that the memo so sent by them to the complainant and which find mentioned in the complaint. They also admitted that the site plans submitted by the complainant for the construction of the house was sanctioned in respect of an area of 3983 square feet. They also admitted the deposit of the amounts, as mentioned in the complaint, by the complainant, along with interest. While denying the other allegations made in the complaint, they pleaded that the plot was allotted for residential purposes and the house was to be constructed thereon within three years. It was also one of the condition of allotment that First Appeal No.1029 of 2010. 5 if the Land Acquisition Tribunal enhances the amount of the award or if the amount of acquisition is increased due to any other reasoning or auditing, then the allottee would be liable to pay the enhanced amount. All the terms and conditions of allotment were mentioned in the allotment letter dated 13.2.1980 and in the subsequent certificate dated 9.11.1983, which was duly issued by them. The complainant violated the terms and conditions of the allotment, as he made shop/commercial construction on the plot. On 20.10.2005 the Government issued instructions to charge the amount for the additional area at 1.1/2 more of the Collector's rate and that amount was to be deposited on 17.8.2009. They demanded the amount from the complainant for 32.43 square yards of the land encroached by him, vide Notice dated 23.1.1990 demanding Rs.26,490.85P but he neither deposited that amount nor gave any reply to that notice. The demand of Rs.19,832.36P was raised, vide notice dated 5.2.1992, as the Land Acquisition Tribunal had enhanced the amount of the award. Even that amount was not deposited by the complainant within the period of notice and the same was deposited only on 17.8.2009, along with interest at the rate of 12%. The Land Acquisition Tribunal, Kapurthala, has further enhanced the amount, vide judgment dated 16.3.2009 and as per the undertaking given by the complainant, he was bound to pay the enhanced price before the execution of the sale deed. The sum of Rs.7,070/- was the balance against the complainant on the day he raised the construction second time, after the previous was demolished by them. No illegal demand was ever made by them and the complainant was bound to First Appeal No.1029 of 2010. 6 pay for the excess area in his possession. As he failed to deposit the price of that excess area in time, so they had to follow the instructions of the Government dated 20.10.2005. They also pleaded that the complainant is not a consumer and the complaint filed by him is not maintainable. He has neither any cause of action nor any locus-standi to file the same and the District Forum has got no jurisdiction to entertain and decide it. The complainant has suppressed the material facts from the District Forum and has not come with clean hands. They prayed for the dismissal of the complaint with costs.
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 did not decide the complaint and relegated the complainant to the proper Forum, vide aforesaid order.
5. We have heard learned counsel for the appellant/complainant as no one appeared for the opposite parties. We have also gone through the records of the case.
6. It was submitted by the learned counsel for the complainant that the price for the excess area was charged from the complainant in excess as he was liable to pay the price for that excess area only at the rate the plot in dispute was allotted to him. He had duly deposited the amount so demanded for the excess area as well as the enhanced price of the original plot but had misplaced the receipts. In order to get the sale deed executed in his favour, he complied with the illegal demand of the opposite parties and First Appeal No.1029 of 2010. 7 deposited the amount so demanded from him and no such amount was payable; which was charged at one and a half time of the Collector's rate. Therefore, he is entitled to the refund of that amount and is also entitled to the compensation on account of the deficiency in service and unfair trade practice on the part of the opposite parties. He prayed that the order of the District Forum be set aside and the complaint be allowed.
7. Learned counsel for the complainant has not cared to go through the impugned order, as the merits of the case were never touched by the District Forum and for the reasons recorded therein the complainant was relegated to the proper Forum. The question to be decided is, whether the finding so recorded by the District Forum, in view of the averments of the parties and the evidence produced by them, is justified or not and whether the same can be sustained?
8. We will like to reproduce para no.9 of the impugned order which is the main basis for recording a finding against the complainant and relegating him to the Proper Forum:-
"9. The prayer of the complainant is that he should be allowed to deposit rates of the land which was prevalent at the site about 20 years ago. The opposite parties issued many notices to the complainant, but he kept on sleeping for a long time and he never contests all the notices issued to him by the opposite parties and suddenly after more than 20 years, he filed the present complaint in this Forum, where the First Appeal No.1029 of 2010. 8 complaints are disposed of in summary manner.
The old intricate and complicate matters cannot be decided in Consumer Forum. The Consumer Forum dispose of cases without going into lengthy procedure or without recording complicated evidence. Since the main object for Consumer Forum is to dispense equitable justice with speed simplicity and in an inexpensive manner. In this way, the present complaint cannot be adjudicated by this Consumer Forum. Consumer Forums were not bound by the strict rules of pleadings and it is incumbent upon them to provide complete justice to the parties on the basis of material evidence and documents already placed before them. So the present complaint cannot be adjudicated in a simple way because strict rules of pleadings are required to follow to decide such an intricate and complicated matters."
9. In order to draw support for making those observations the District Forum relied upon the following judgments:-
i) "Agnidhar Prasad vs. M.D. Bihar State Housing Board and another" 1994(1) CLT 419;
ii) "Indian Medical Association vs. V.P. Shantha and others" 1996(1) CLT 1;
iii) "Chaman Lal Grover vs. Area General Manager, New Bank of India" 1995(2) CLT 242 (NC). First Appeal No.1029 of 2010. 9
10. In all the judgments so relied upon by the District Forum it was held that where adjudication of the complaint requires elaborate evidence relating to the facts necessitating the recording of the statements of the witnesses, then the Consumer Forum is not the appropriate Forum for deciding the dispute. Where intricate and highly disputed questions of facts are involved, which require lengthy full scale trial and examination of numerous witnesses, then the proper Forum is the Civil Court.
11. In the complaint serious dispute has been raised by the complainant that after he received the notices from the opposite parties for the payment of Rs.26,491/- for the excess area and Rs.19,833/- as the increase in the allotment price, he deposited those amounts against receipts, which were misplaced by him. These facts, as pleaded in the complaint, were specifically denied by the opposite parties. The affidavit of the complainant in support of those facts was totally rebutted by the affidavit of R.L. Bhagat, Executive Officer.
12. The main issues to be decided for the disposal of the present complaint are whether the amounts so demanded from the complainant were deposited by him within the time as mentioned in the notices and he became entitled to the execution of the sale deed in respect of the total area (including the excess area) in his favour or whether he failed to deposit those amounts and, as such, became liable to pay; in view of the subsequent rules and regulations, for the excess area at 1.1/2 times the Collector's rate? For deciding these issues, elaborate evidence in the form of examination-in-chief and First Appeal No.1029 of 2010. 10 cross-examination of the witnesses and production of record is required, which will amount to the regular trial. It is not possible to decide such disputed questions of facts during summary proceedings. Therefore, the District Forum did not commit any illegality by not deciding the complaint and relegating the complainant to the proper Forum. There is no merit in this appeal and the same is hereby dismissed.
13. The arguments in this case were heard on 20.5.2014 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 (VINOD KUMAR GUPTA) MEMBER (MRS. SURINDER PAL KAUR) MEMBER June 04, 2014.
Bansal