State Consumer Disputes Redressal Commission
Ludhiana Improvement Trust vs Manmohan Lal on 8 June, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.952 of 2016
Date of Institution : 16.12.2016
Order Reserved on: 05.06.2017
Date of Decision : 08.06.2017
Ludhiana Improvement Trust, Feroze Gandhi Market, Ludhiana,
through its Chairman.
.....Appellant/opposite party
Versus
Manmohan Lal (wrongly mentioned as Manmohan Singh in the
impugned order) s/o Jagan Nath deceased through legal heirs: Vikas
Popli and Sanjeev Popli R/o 46-D, Dr Kitchlu Nagar, Ludhiana.
.....Respondents/complainants
First Appeal against order dated
27.09.2016 passed by the District
Consumer Disputes Redressal Forum,
Ludhiana.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Ms. Kavita Arora, Advocate
For the respondent : Sh. Munish Geol, Advocate
............................................ J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal is to order dated 27.09.2016 of District Consumer Disputes Redressal Forum Ludhiana (in short the 'District Forum) by appellant, allowing the complaint of the complainant. The appellant of this appeal is opposite party in the First Appeal No.952 of 2016 2 complaint before the District Forum and respondents of this appeal are the complainants therein and they be referred as such hereinafter for the sake of convenience.
2. Manmohan Lal (since deceased) filed complaint (now represented through legal heirs i.e. Vikas Popli and Sanjeev Popli, who are the sons of the complainant) U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OP on the averments that plot No.46-D measuring 166.66 sq. yards in Dr. Kitchlu Nagar (100 acre scheme) was allotted to him by OP after completion of formalities by him. Complainant paid the charges included compounding fee of Rs.600/-, vide receipt No.36506 dated 2.9.1983. Sale deed dated 6/1983 was executed by the OP in favour of complainant. Thereafter, OP charged Rs.16,670/-, vide receipt No.100 dated 12.03.1999 on account of enhancement of the price of allotted area. It was further averred that before execution of registered sale deed in August 2000 in his favour, the complainant complied with all the formalities. OP vide letter dated 25.11.2014 bearing memo No.10792 claimed Rs.40,596/-, being amount of instalment of second enhancement. The claim has been put forth by OP in pursuance of resolution no.4 of 25.5.1999. OP asked the complainant to get approval of the completion certificate for constructed house. Aggrieved by above referred demand of OP, the complainant asked OP the reason for raising such demand. OP disclosed that as per decision of Punjab and Haryana High Court Chandigarh in CWP 1599 of 1986 decided on 2.5.2006, the enhancement in the cost of the land had taken place, because First Appeal No.952 of 2016 3 enhanced compensation has to be paid to the land owners in lieu of their acquired land, where 'Kitchlu Nagar' area has been developed by OP. It was further averred that OP earlier vide memo No.5/384/98/2ss2/1856 dated 10/2/1999, Punjab Government informed the allottees through LIT of Kitchlu Nagar, that they were liable to pay Rs.34/- as a consequence of enhancement of compensation ordered by Land Acquisition Tribunal in 1985. Besides, the interest on the above said amount of Rs.34/- was also payable from 1986 to 1999. At that time, it was informed that Rs.98/- per sq. yards in lieu of enhancement of compensation was payable to the land owners, whose land was acquired. Earlier, Land Acquisition Tribunal fixed rate at Rs.39/- for Block A, but Rs.31/- for Block B and same was charged by OP. Amount of Rs.16,670/- was duly deposited on 12.03.1999 by the complainant with OP. Complainant was enjoying the peaceful possession of the allotted area since 1983 without any notice from the Hon'ble High Court or from OP qua the pendency of dispute qua enhancement of the payable compensation to the land owners. Complainant after paying Rs.16,670/- remained under impression that nothing else left due against him. It was further averred that Mr.R.P.Gosain, President of Dr.Kitchlu Nagar Welfare Association informed the complainant that the Hon'ble High Court had increased the rate of compensation from Rs.31/- to Rs.39/- i.e.Rs.8/- per sq. yards for block B only. OP issued notice in newspapers dated 12.12.2012 for calling upon the allottees of Kitchlu Nagar to pay enhanced amount of Rs.199/- per sq. yards. After going through the calculation of the said demand supplied by First Appeal No.952 of 2016 4 the President of Kitchlu Nagar Welfare Association, it appeared that demand put forth by OP through memo in question was based on imaginary and wrong calculation. Complainant got knowledge about the notice qua second enhancement of the price through President of Kitchlu Nagar Welfare Association on 25.08.2014 and from demand put forth by OP in September, 2014. OP instead of claiming enhancement of Rs.8/-, has claimed the enhancement of Rs.13/-, which is alleged to be an unfair trade practice. Demand of Rs.40,596/- was put forth after making calculation of Rs.199/-. The complainant alleged the demand to be arbitrary and illegal being put forth without assigning any cogent reason. The rate stood enhanced from Rs.99.32P to 199/- by calculating the interest upto 30.4.2009. The complainant submitted representation to OP qua wrong calculation by claiming that he is ready to deposit sum of Rs.64.20 per square yards, but OP refused to it by claiming that amount chargeable is Rs.199/- per square yards. OP pressurized the complainant to deposit the amount without protest, but the same was not acceptable to him. Complainant is not liable to pay any interest because the delay in accepting the amount after orders passed by the Hon'ble High Court has been caused by OP only. Besides, demand put forth by OP in 2014 is time barred as per law, because OP did not claim the amount within 3 years from the orders dated 2.5.2006 passed by the Hon'ble High Court of Punjab and Haryana. Complainant had not received any notice in writing from the OP calling upon him to pay the enhanced price, as per orders of Hon'ble High Court except issue of notice dated 25.11.2014. OP was required to inform every First Appeal No.952 of 2016 5 allottee in person in writing about its mind of charging the amount of compensation in pursuance of the resolution dated 25.05.2009. Such notice was not issued qua enhanced amount of compensation by OP. Chairman of Op issued direction for publication of public notice. Even vide letter dated 25.05.2009, directions were issued for initiating disciplinary action against the erring officials for not sending notices to the allottees. The allottees were burdened with interest in an illegal manner by OP. The complainant prayed for quashing the demand of Rs.40,596/- raised by OP vide memo No.10792 dated 25.11.2014. The complainant further prayed for compensation of Rs.35,000/- for mental harassment and Rs.5500/- as litigation expenses.
3. Upon notice, OP appeared and filed written reply by raising preliminary objections that complaint is not maintainable in the present form; complaint is barred by limitation; complainant is not a consumer. It was further averred that land of 100 acre of Dr.Kitchlu Nagar scheme was notified under Section 36 of The Punjab Town Improvement Act, 1922 on 01.08.1972, but notification u/s 42 of The Punjab Town Improvement Act, 1922 was issued on 18.09.1973 and thereafter, award of the scheme was commenced on 20.09.1974 by The Land Acquisition Collector. The said Collector assessed the rate at Rs.113/- viz. a viz. for belt A, but Rs.75/- viz. a viz. for belt B in addition to 50% solatium. In award dated 12.02.1986 passed by the Land Acquisition Tribunal, LIT Ludhiana, the amount was enhanced to Rs.39/- per square yard of the land, which was adjoining to Rajpura Road and Udham Singh Nagar, Ludhiana upto 16 Gathay, First Appeal No.952 of 2016 6 but in the belt B, the rate was enhanced to Rs.26/- per square yard plus solatium @30% and interest @9% per annum for one year from the date of taking possession and 15% thereafter. However, the Hon'ble High Court of Punjab & Haryana vide judgment dated 2.5.2006 passed in CWP filed by Isher Singh etc, assessed the flat rate of Rs.39/- per square yard for the whole of the land plus other benefits such as solatium and interest. The rate fixed earlier was @Rs.31/- per square yard, but same was enhanced to Rs.39/- per square yard. Demand of the amount was raised put forth by OP as per the decision of The Hon'ble High Court of Punjab and Haryana and as such, there is no question of adoption of unfair trade practice or rendering of deficient/negligent services by OP. Demand of enhanced amount was raised as per the terms and conditions of the allotment letter/sale agreement/sale deed. Allottee is bound to pay the enhanced amount of compensation as per terms of resolution No.4 dated 21.5.2009, vide which, recovery from the allottee of the plot in question was ordered @Rs.199/- per square yards. In pursuance to that resolution, allottees including the complainant were asked to deposit the enhanced compensation amount. The calculation was alleged to be correct. OP issued the public notice to the allottees as well about it through newspapers dated 12.12.2014. Complainant instead of depositing the amount, filed the present complaint on false averments. Rather, the complainant is liable to pay the amount along with interest as per the rules and regulations of the Trust. OP left 55% of the area for public utility such as roads, parks, community centre etc., as per the scheme. The enhanced First Appeal No.952 of 2016 7 amount has to be calculated for whole of the scheme area and the same is recoverable from the allottees, so as to make the payment to the land owners for enhanced compensation, whose land has been acquired. The other averments of the complaint were denied by claiming that as public notices through the newspapers had already been issued to all concerned and as such, No Due Certificate (NDC) can only be issued on payment of full amount and completion of all the formalities to boot.
4. The complainant tendered in evidence joint affidavit Ex.CA1 of Vikas Popli and Sanjeev Popli (legal heirs of original complainant) along with documents Ex.C1 to Ex.C10 and closed the evidence. As against it, OP tendered in evidence affidavit Ex.RW1 of Sh.Harinder Singh, E.O. of Ludhiana Improvement Trust, Ludhiana along with documents Ex.R-1 to Ex.R-9 and closed the evidence. On conclusion of evidence and arguments, the District Forum allowed the complaint of the complainant by quashing the demand put forth by OP vide memo in question with the observation that OP will have the right to re-fix the enhanced chargeable amount per square yards by keeping in view the enhanced compensation amount awarded by Land Acquisition Tribunal as well as by the Hon'ble Punjab and Haryana High Court, Chandigarh. Besides, OP will work out the details in writing for adjudging as to how much enhanced amount per square yard is recoverable. OP will work out the details of more recoverable amount as held by lower Forum within 60 days from the date of receipt of copy of this order. After working out these details, copy of those details will be sent by the OP to the complainant for First Appeal No.952 of 2016 8 giving right to complainant to submit the written reply. Final re- fixation of enhanced amount will be ordered after hearing the complainant. However, before effecting recovery on the basis of final adjudged enhanced recoverable amount by OP, a notice in writing will have to be issued by OP to the complainant, so that he may avail appropriate remedy before the appropriate Forum. Further compensation for mental harassment of Rs.10,000/-(Rupees Ten thousand only) and litigation expenses of Rs.5000/-(Rupees Five Thousand only) more was allowed in favour of the complainant by District Forum. Aggrieved by above order, OP now appellant has preferred this appeal against the same.
5. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The appellant challenged the validity of the order passed by the District Forum Ludhiana by filing this appeal. The order of the District Forum is with regard to refixing the enhanced chargeable amount per square yard, keeping in view the enhanced compensation as awarded by the Land Acquisition Tribunal as well as by the Hon'ble Punjab and Haryana High Court, Chandigarh and thereafter to send it to complainant for giving right to submit reply. The order of the District Forum has been challenged in this appeal by the appellant. It was submitted that no prior opportunity of hearing is required to be given to the allottees and allottees can only ascertain the correctness of price by inspecting the record. It was submitted by counsel for the appellant that the District Forum has not properly appreciated the controversy involved in this case. It was further First Appeal No.952 of 2016 9 urged by counsel for the appellant that as per agreement to sell dated 22.06.1983, the allottee is bound to pay the enhanced amount of compensation, if any ordered by the Tribunal or the High Court. The order passed by the District Forum with regard to giving an opportunity of hearing to complainant/allottee has been challenged in this appeal. As per clause 14 of the terms and conditions of the memorandum of agreement dated 29.10.1976, the dispute has to be referred to arbitration before the Secretary Local Government Punjab at Chandigarh and hence jurisdiction of Consumer Forum is excluded. As per condition no.16 of the terms and conditions of memorandum of agreement dated 29.10.1976, allottee has given an undertaking to pay the enhanced amount of compensation under Section 18 of Land Acquisition Act without issuance of any notice to him. It was further submitted that fixation of price of the plot is within the domain of Improvement Trust only and Court cannot substitute its own opinion and order of the District Forum is, thus, erroneous. On the other hand, counsel for the respondent in this appeal contended that the District forum appreciated the controversy and evidence properly and then passed the order under challenge in this appeal.
6. Evidence on the record has been referred to by us on the file. The controversy in this case is with regard to enhancement of the price due to enhancement of compensation by Land Acquisition Tribunal or the High Court. We have to settle this controversy as to whether the allottee is required to be heard at the time of fixing the price of allotted plot again or not due to enhanced compensation to First Appeal No.952 of 2016 10 land owners. Joint affidavit of complainant is Ex.C-A on the record. It is reiteration of his pleadings on oath in this case. Ex.C-1 is the letter sent to Mohan Lal since deceased complainant being original allottee to the effect that on the basis of resolution no.4, he was called upon to deposit the amount of Rs.40,596/-. Ex.C-2 is receipt for deposit of amount of Rs.660/- dated 02.09.1982. Ex.C-3 is the letter from OP to complainant. Ex.C-4 is the request slip from complainant to OP regarding issuance of no due certificate. Ex.C-5 is the receipt of Rs.16,670/-. Ex.C-6 is letter from OP to complainant. Sale deed is Ex.C-7 on the record. Death Certificate of Manmohan Lal Popli is Ex.C-9 on the record. The OP mainly relied upon affidavit of Harinder Singh, E.O. of OP Ex.RW-1 on the record. This affidavit is reiteration of the pleas, contained in written reply by OP. Notice issued under Section 36 of the Punjab Town Improvement Act, 1922 is Ex.R-1 on the record. Ex.R-2 is the notification of Local Govt. Department Improvement Trust, Punjab. Ex.R-3 is the copy of award no.5 of 1974. Ex.R-4 is the copy of order of Land Acquisition Tribunal, Ludhiana. Ex.R-5 is the copy of order passed in Civil Writ Petition no. 1599 of 1986. Ex.R-6 to R-8 are the public notices issued by OP. Ex.R-9 is the copy of office noting of OP.
7. We have come to this conclusion from appraisal of above referred evidence on the record that enhancement of compensation of the acquired land has been ordered by the Land Acquisition Tribunal and thereafter by the Hon'ble High Court in this case to land owners. The allottees are bound to pay the enhanced amount of the allotted plot due to enhancement of compensation to the oustee land First Appeal No.952 of 2016 11 owners, as per the order of Tribunal or the High Court. This point is, thus, decided by holding that OP is justified to refix the price of the allotted plot on account of enhancement of compensation, as ordered by the Land Acquisition Tribunal and the Hon'ble High Court. Keeping in view the enhanced compensation awarded by Land Acquisition Tribunal and the Hon'ble High Court, the District Forum passed the order that OP will workout the detail of more recoverable amount within 60 days from the date of receipt of copy of order and the judgment would be sent by OP to complainant and complainant can file representation thereto and final refixation of enhanced amount will be carried out by OP after hearing the complainant. The District Forum passed the order of issuing notice to the complainant for refixing the price of the land, as per the order of the enhancement of compensation to oustee land owners passed by the Courts. The OP is entitled to enhance the price of allotted land in case of enhancement of compensation under Land Acquisition Act. The counsel for the OP now appellant referred to law laid down by our own High Court passed in Civil Writ Petition No. 10462 of 1988, decided on 03.02.2000 titled as "Jan Kalyan Simiti (Regd.) Panipat and others Vs. Housing Board Haryana and others"
2003(2)RCR (Civil)-411, wherein it has been held that where the price of land is enhanced by the Courts awarding enhanced compensation to land owners, the payment is consequential from the allottees of plots. It does not require giving any hearing to the allottee for refixing of price of plots. The condition is applicable only where the Board itself wants to raise additional demand. Allottees are First Appeal No.952 of 2016 12 bound to pay the enhanced price on account of enhancement of land by the Court. As per this judgment of our own Hon'ble High Court, no such notice is required to be given to allottees on account of enhancement of land price of the allotted area. In view of this judgment of our own High Court, the order passed by the District Forum with regard to issue of notice to complainant and hear him at the time of refixing the price is not sustainable and is reversed in this appeal.
8. As a result of our above discussions, we accept the appeal of the appellant and set aside the order of the District Forum Ludhiana under challenge in this appeal. Resultantly, the complaint of the complainant stands dismissed.
9. The appellant had deposited an amount of Rs.7500/- in this Commission at the time of filing the appeal. This amount, alongwith interest, which accrued thereon, if any, be remitted by the registry to the appellant of this appeal by way of crossed cheques/demand drafts after expiry of period of 45 days from this order.
10. Arguments in this appeal were heard on 05.06.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR)
PRESIDING JUDICIAL MEMBER
June 08, 2017 (SURINDER PAL KAUR)
MM MEMBER