State Consumer Disputes Redressal Commission
The Chairman, Improvement Trust, ... vs Hukam Chand on 5 December, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No. 1176 of 2000
Date of institution : 16.10.2000
Date of decision : 5 .12.2008
The Chairman, Improvement Trust, Ludhiana.
....Appellants
Versus
1. Hukam Chand son of Mr. Jyoti Ram, Agarwal Store Lahori Gate, Gaushala
Road, Patiala.
2. The President, Atam Nagar Cooperative Housing Society Limited, C/o S.
Ajit Singh Mascow Industries, Factor Area-B, Ludhiana.
......Respondents
First Appeal against the order dated 10.8.2000 of
the District Consumer Disputes Redressal Forum,
Ludhiana.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Jasbir Kapoor, Member.
Lt. Col. Darshan Singh (Retd.), Member.
Present :-
For the appellants : Sh. Sandeep Khunger, Advocate. For respondent No.1 : Sh. Suresh Singla, Advocate. For respondent No.2 : Sh. K.S. Bhangu, Advocate for Sh. Sumeet Mahajan, Sr. Advocate.
JUSTICE S.N. AGGARWAL, PRESIDENT:
This judgment shall decide the following appeals as the questions of law and facts arising out of these appeals are identical:-
1. First Appeal No.1027 of 2000 "Atam Nagar Coop. Housing Society Ltd. v. Improvement Trust, Ludhiana and others".
2. First Appeal No. 1176 of 2000 "Improvement Trust, Ludhiana v.
Hukam Chand and another".
First Appeal No.1176 of 2000. 2
3. First Appeal No.900 of 2001 "D.V. Bector v. Atam Nagar Coop. Housing Society Ltd. and another".
4. First Appeal No.139 of 2006 "H.R. Mittal v. Atam Nagar Coop. Housing Society Ltd. and anr."
5. First Appeal No.546 of 2006 "Kusam Chadha v. Improvement Trust, Ludhiana and anr."
6. First Appeal No.547 of 2006 "Amit Lal Arora v. Improvement Trust, Ludhiana and anr."
7. First Appeal No.548 of 2006 "Rajesh Tuli v. Improvement Trust, Ludhiana and anr."
8. First Appeal No.817 of 2007 "Rajesh Birla v. Atam Nagar Coop. Housing Society Ltd. and anr."
9. First Appeal No.818 of 2007 "Raj Kumar v. Atam Nagar Coop. Housing Society Ltd. and anr."
2. Facts are taken from First Appeal No.1176 of 2000 and the parties would be referred by their status in this appeal.
3. Hukam Chand respondent No.1(in short 'the complainant') was a member of the Atam Nagar Coop. Housing Society Limited respondent No.2 (hereinafter to be referred to as "the Society"). He was allotted plot No.1305 in Atam Nagar by the Improvement Trust, Ludhiana appellants (in short "the Trust") vide their letter dated 3.2.1983 measuring 125 sq. yards for a total price of Rs.7,825/-. Respondent No.1 made the total payment of this plot on different dates. The terms and conditions of the allotment letter were complied with. However, the possession of the plot has not been delivered to him so far in spite of his repeated requests. The matter was taken up with the Trust and the Society but to no effect. Hence the Trust and the Society have committed deficiency in service on which he filed the complaint in the learned District Consumer Disputes Redressal Forum, Ludhiana (in short "District Forum") seeking directions against them to First Appeal No.1176 of 2000. 3 hand over the possession of the allotted/alternative plot to him. Compensation and costs were also prayed.
4. The Trust filed the written statement. Preliminary objections were pleaded that the complainant was not a consumer; no cause of action has accrued to him against the Trust; District Forum has no jurisdiction to entertain and try the present complaint; there was no deficiency in service on the part of the Trust; complaint is hopelessly barred by time. On merits, it was pleaded that the Trust had exempted 306 plots of various sizes in Model Town Extension Part-II, Ludhiana and this area was handed over to the Society vide office letter No.11308 dated 3.2.1983 with certain terms and conditions. The said Society was the owner of the land measuring 102508 sq. yards in Model Town Extension Part-II Scheme. Out of it, 2000 sq. yards land was under dispute. Therefore, this land was left out of consideration. The remaining land measuring 100508 sq. yards owned by the Society was exempted vide notification dated 21.9.1982 and subsequent notification dated 27.4.1983 with certain terms and conditions. It was denied if the complainant was allotted Plot No.1305 in Atam Nagar by the Trust. Moreover, the possession of the exempted land was never taken by the Trust. It was denied if any payment was made by the complainant to the Trust as price of the land. Since the Trust had never taken possession of the exempted land, therefore, it was not bound to deliver the possession of any plot to the complainant. It was the Society who was in possession of the exempted land and, therefore, the Society was to deliver the possession of the plot to the allottees. It was denied if the complainant was a consumer of the Trust or if the Trust were deficient in service. The Trust have no concern with the alleged allotment of plot in favour of the complainant nor it was bound upon them to deliver its possession to the complainant. Hence it was prayed that the complaint be dismissed with special costs. First Appeal No.1176 of 2000. 4
5. The Society also filed written statement. Preliminary objections were pleaded that the complainant was not a consumer within the meaning of the Consumer Protection Act, 1986 (in short "the Act"); there was no deficiency in service on the part of the Society; and that no cause of action has accrued to the complainant qua the Society. It was pleaded that plot in question was allotted to the complainant by the Trust vide their letter dated 3.2.1983 and on its basis the Society had made further allotment to the complainant vide their letter dated 14.2.1983. The Society had acted only as a post office and no liability can be fastened on the Society as the possession of the plot was to be delivered by the Trust. Therefore, the complaint deserves dismissal qua the Society. It was also pleaded that the complaint was hopelessly barred by time as the plots were allotted by the Trust vide resolution dated 29.1.1983 and consequent allotment letter dated 3.2.1983 and subsequent allotment of letter was issued by the Society on 14.2.1983. Since the cause of action has arisen to the complainant in the year 1983 but he slept over the matter for 11 years while the complaint was instituted by him on 25.2.1994. Therefore, the complaint was barred by limitation.
6. On merits, it was admitted by the Society that the Trust had allotted 296 plots vide their letter No.11308 dated 3.2.1983 and on its basis the Society had passed onward allotment letter to the complainant vide letter dated 14.2.1983. Therefore, the Society acted only like a post office. It was also pleaded that the Society had purchased the land. It was acquired by the Trust. The Society had filed Civil Writ Petition No.3577 of 1978 (The Atam Nagar Co-operative House Building Society Ltd. v. State of Punjab and others) in which the Society sought exemption of the acquired land from acquisition. In the said writ petition, the Hon'ble Punjab and Haryana High Court vide order dated 12.1.1979 had directed the Trust to exempt the land and allot plots to the Society. The Trust were further directed to refer First Appeal No.1176 of 2000. 5 the matter to the State Government for exemption of land. The Trust had filed an appeal against the said judgment. It was dismissed. They had also filed Special Leave Petition No.2734 of 1979 which was decided on 20.8.1979. Vide this order the Society was directed to apply to the Trust for allotment of plots. Consequently on the basis of these judgments the Trust referred the matter to the State Government on 12.3.1982. This land owned by the Society was accordingly exempted by the Punjab Government vide letter dated 21.9.1982. The Trust passed resolution No.651 dated 29.1.1983 vide which it resolved to allot 296 plots of different sizes with a total area of 50250 sq. yards to the Society for its Members which was 50% of the total area of the acquired land measuring 100508 sq. yards. In fact the land exempted was allotted in the shape of plots vide allotment letter No.11308 dated 3.2.1983 to the Society for further allotment to its members. The allotment of these plots was made by the Trust. Therefore, the possession and demarcation was also to be given by the Trust. The Society had allotted these numbers to its members in consequence of the allotment letter dated 3.2.1983 issued by the Trust. The complainant was also allotted the plot by the Trust. Where the possession of the original plots could not be given by the Trust, alternative plots were given.
7. It was further pleaded that the payments from the complainant and other members were paid to the Trust. The Society is not in a position to deliver possession of any plot as the possession was to be delivered by the Trust. Hence dismissal of the complaint qua the Society was prayed.
8. The parties produced affidavits/documents in support of their respective versions.
9. Learned District Forum considered the matter and accepted the complaint vide impugned order dated 10.8.2000. The Trust were directed to give demarcation of plot No.1305 which was allotted to respondent No.1 and the First Appeal No.1176 of 2000. 6 Society was directed to put respondent No.1 into the possession of the same.
10. Hence the appeal.
First Appeal No. 1027 of 2000:
11. This is a cross appeal filed by the Society against the same impugned judgment dated 10.8.2000.
First Appeal No.900 of 2001:
12. Dharamvir Bector complainant was a Member of the Society. He was allotted Plot No.986 measuring 250 sq. yards by the Society vide letter of allotment dated 14.2.1983 but its possession has not been delivered. The complainant had filed this complaint (Complaint No.8 of 2000) on 6.1.2000 in the learned District Forum praying for possession of the plot or for allotment of an alternative plot along with compensation, interest and costs.
13. The said complaint was contested by the Trust and by the Society.
14. Parties led evidence in support of their respective versions.
15. Learned District Forum considered the matter and dismissed the complaint vide impugned order dated 19.4.2001.
16. Hence the appellant filed this appeal against the said judgment. First Appeal No.139 of 2006:
17. The complainant was the registered member of the Society having registration No.R-684. He was allotted Plot No.985-D, measuring 250 sq. yards vide letter dated 5.1.2000 by the Society. Its possession was not delivered to the complainant even after various representations were made by him to the Society and to the Trust. Hence the complainant filed a complaint in the learned District Forum praying for possession of the plot or for allotment of an alternative plot along with compensation, interest and costs.
18. It was admitted by the Society in the written statement that the plot in question was allotted by the Trust vide their letter No.11308 dated 3.2.1983 First Appeal No.1176 of 2000. 7 and on its basis the Society had made further allotment to the complainant. Therefore, the Society had acted only as a post office and the possession was to be delivered by the Trust.
19. The Trust also filed written statement. The case was contested and dismissal of the complaint was prayed.
20. Hem Raj Mittal appellant filed his affidavit dated 9.3.2007. He also proved letter of allotment dated 5.1.2000 issued by the Society allotting plot No.985-D measuring 250 sq. yards in his favour as Ex.C1. He also proved documents Ex.C2 to Ex.C4. On the other hand, the Society filed the affidavit of Jiwan Sood, President of the Society dated 17.5.2004 and also proved documents Ex.R1 to Ex.R50.
21. The Trust did not lead any evidence.
22. The learned District Forum considered the matter and dismissed the complaint vide order dated 14.9.2005.
23. Hence, the appeal.
First Appeal No.546 of 2006:
24. Kusum Chadha filed complaint No.520 of 2004 with the allegation that Nirmala Devi wife of Madan Lal was a registered Member of the Society. She transferred her membership in favour of her son Anil Maheshwari, who was allotted Plot No.992-D measuring 250 sq. yards in Model Town Extension Part-II, Atam Nagar, Ludhiana. Thereafter, Anil Maheshwari transferred his rights in the said plot in favour of the complainant. The possession of the plot has not been delivered to the complainant. Hence she prayed for possession of the plot or for allotment of an alternative plot along with compensation, interest and costs.
25. The said complaint was contested by the Trust and by the Society.
26. Parties led evidence in support of their respective versions.
27. Learned District Forum considered the matter and dismissed the complaint vide impugned order dated 14.9.2005.
First Appeal No.1176 of 2000. 8
28. Hence the appellant filed this appeal against the said judgment. First Appeal No.547 of 2006:
29. Amrit Lal Arora appellant had filed this complaint (Complaint No.1334 of 2003) on 11.12.2003 in the learned District Forum with the allegations that he was a Member of the Society and he was allotted Plot No.1000-D measuring 250 sq. yards in Model Town Extension Part-II, Ludhiana vide allotment letter dated 3.2.1983 by the Trust but the possession of the said plot was not given to him. It was prayed that possession of the plot be given to him or an alternative plot may be allotted to him. He also prayed for compensation, interest and costs.
30. The said complaint was contested by the Trust and by the Society.
31. Parties led evidence in support of their respective versions.
32. Learned District Forum considered the matter and dismissed the complaint vide impugned order dated 14.9.2005.
33. Hence the appellant filed this appeal against the said judgment. First Appeal No.548 of 2006:
34. Rajesh Tuli appellant had filed this complaint (Complaint No.521 of 2004) on 16.7.2004 in the learned District Forum with the allegations that Sudarshan Kumar son of Shri Piara Lal was a Member of the Society. Later on he had transferred the membership in favour of his son Sulesh Kumar on 8.6.1990. He was allotted Plot No.994-D measuring 250 sq. yards in Model Town Extension Part-II, Ludhiana. Sulesh Kumar has transferred all his rights in the aforesaid plot in favour of the appellant Rajesh Tuli. It was pleaded that possession of the said plot was not delivered to him. It was prayed that possession of the plot be given to him or an alternative plot may be allotted to him. He also prayed for compensation, interest and costs.
35. The said complaint was contested by the Trust and by the Society.
36. Parties led evidence in support of their respective versions. First Appeal No.1176 of 2000. 9
37. Learned District Forum considered the matter and dismissed the complaint vide impugned order dated 14.9.2005.
38. Hence the appellant filed this appeal against the said judgment. First Appeal No.817 of 2007:
39. Rajesh Birla alias Pushpa Birla filed complaint No.881 on 3.12.2004 with the allegation that she was a Member of the Society. She was allotted plot No.1413-D measuring 125 sq. yards in Model Town Extension Part-II, Atam Nagar, Ludhiana. Rajesh Birla died on 29.7.2004 leaving behind her two sons, namely, Dinesh Birla and Jaideep Birla and one daughter, namely, Sunita Sukhija. The possession of the plot was not given to the LRs of the appellant or to the allottee. Hence they prayed for possession of the plot or for allotment of an alternative plot along with compensation, interest and costs.
40. The said complaint was contested by the Trust and by the Society.
41. Parties led evidence in support of their respective versions.
42. Learned District Forum considered the matter and dismissed the complaint vide impugned order dated 24.4.2007.
43. Hence the appellant filed this appeal against the said judgment. First Appeal No.818 of 2007:
44. Smt. Darshan Arora and others, legal heirs of Raj Kumar filed complaint No.880 on 3.12.2004 in the learned District Forum with the allegation that Raj Kumar was the Member of the Society. He was allotted plot No.1413 measuring 125 sq. yards in Model Town Extension Part-II, Atam Nagar, Ludhiana. Raj Kumar died on 24.4.1989. However, the possession of the said plot was not delivered to them. Hence they prayed for possession of the plot or for allotment of an alternative plot along with compensation, interest and costs.
45. The said complaint was contested by the Trust and by the Society.
46. Parties led evidence in support of their respective versions. First Appeal No.1176 of 2000. 10
47. Learned District Forum considered the matter and dismissed the complaint vide impugned order dated 24.4.2007
48. Hence the appellants filed this appeal against the said judgment.
49. Record has been perused. Submissions have been considered.
50. The undisputed facts are that the complainant along with certain other persons had constituted the Atam Nagar Cooperative Housing Society Ltd. respondent No.2, which has been referred to as the Society. The Society had purchased certain land to carve out the residential plots for its members. Before the process could be completed the Improvement Trust, Ludhiana ('the Trust') stepped in and acquired the land. As has been pleaded by the Society in its written statement litigation started between the Society and the Trust as the Society wanted exemption of the land owned by it from acquisition. Ultimately, the Society succeeded. The Society was the owner of 102508 sq. yards area and as per the notification dated 21.9.1982(Ex. R-1) exemption was granted to the Society by the Punjab Government with certain terms and conditions. Thereafter, the Trust vide their resolution dated 29.1.1983(Ex. R-7) decided that the Trust would apply 50% cut on the land which was owned by the Society. It was also considered that the land owned by the Society was 102508 sq. yards out of which ownership of the Society was disputed with regard to the 2000 sq. yards and the Society was the owner of the land measuring 100508 sq. yards. Therefore, it was decided vide resolution dated 29.1.1983(Ex. R-7) that 50250 sq. yards area would be given to the Society in the shape of 296 plots of different sizes for allotment by the Society to its Members.
51. It is also not disputed that the complainant was a Member of the Society. Plot No.1305 measuring 125 sq. yards was a part of 296 plots allotted vide their resolution No. 651 dated 29.1.983 (Ex. R-5) by the Trust to the Society for its Members. Subsequently it was allotted to the complainant by First Appeal No.1176 of 2000. 11 the Society vide their letter dated 14.2.1983. It is also not disputed that he had not got the possession of the said plot.
52. Both the appellants and the Society have disputed if respondent No.1 was a consumer.
53. The admitted facts are that the complainant became a Member of the Society by depositing certain subscription. He was allotted plot by the Trust vide letter No. 11368 dated 3.2.1983 on the basis of Resolution No. 651 dated 29.1.83. On its basis, letter of allotment was also issued by the Society on 14.2.1983 but he had not got the possession of the plot. Therefore, the complainant is a consumer and the beneficiary.
54. The living example is here. One Sudesh Kumari was also one of the Members of the Society. She was also allotted plot by the Trust and subsequent allotment letter was issued by the Society. She had also failed to get possession of the plot on which she had filed the complaint. The said complaint was dismissed by the learned District Forum. It was accepted by the State Commission and the said judgment is reported as "Sudesh Kumari v. the Atam Nagar Cooperative Housing Society Ltd." 1998(2) CPC 439. In this judgment it was held by the State Commission that the complainant was a beneficiary and a consumer within the meaning of the Act. It was observed as under:-
"4. Viewed from another angle, in view of the arrangement, aforesaid, the complainant is a beneficiary and is thus a consumer as defined under Section 2 (1)(d) of the Consumer Protection Act. The case is fully covered by the ratio of the decision of this Commission in Swati Dhir's case (supra)."
55. This judgment was upheld by the Hon'ble National Commission vide judgment dated 2.8.2001 passed in Revision Petition No.294 of 1999 (Ludhiana Improvement Trust, Ludhiana v. Sudesh Kumari and anr.) (Ex.C38 in First Appeal No.546 of 2006). The appellants had filed an First Appeal No.1176 of 2000. 12 appeal against this judgment in the Hon'ble Supreme Court. It was dismissed by the Hon'ble Supreme Court as withdrawn vide judgment dated 5.11.2001 (Ex.C39 in First Appeal No.546 of 2006) with liberty to file a review petition before the Hon'ble National Commission. Thereafter the appellants had filed review application against that judgment before the Hon'ble National Commission but the review application was dismissed by the Hon'ble National Commission vide judgment dated 16.8.2002 (Ex.C40 in First Appeal No.546 of 2006). As a result, therefore, this judgment has become final and also became final the findings that the respondent complainant was a consumer and beneficiary qua the Trust and qua the Society.
56. Same question again came up for consideration before the State Commission in similar set of circumstances and this Commission vide judgment dated 24.1.2002 passed in Appeal No.242 of 2000 (the Atam Nagar Cooperative House Building Society Limited v. Ram Parkash and another) reiterated the same view (Ex.C-47 in First Appeal No.546 of 2006). Therefore, this question is no longer open for re-agitation that respondent No.1 is not a consumer and beneficiary qua the Trust and the Society.
57. The Trust had raised a new point by filing an affidavit of Avtar Singh Azaad, Executive Officer dated 14.4.2008 in this Commission. It was deposed in this affidavit that undisputedly the Society was the owner of the land measuring 100508 sq. yards which comprised khasra numbers 70 min, 71 min, 72 min, 73 min 33, 3699/1/109 min, 61/1 min, 61/2 min, 64 to 67 min, 28, 31, 3575/56, 3576/56, 3577/56, 34 min, 77 min, 78 min, 79 min, 9 min, 7 min, 8 min, 14 min, 15 min, 12 min, 13 min, 39 min, 3482/95, 3480/94.
First Appeal No.1176 of 2000. 13
58. Out of these khasra numbers the Society was the co-sharer in khasra Nos.70, 71, 72 & 73 (1865/9840 share). The Society was also co-sharer with regard to Khasra No.14 to the extent of 42/450 share and it was co- sharer in khasra Nos. 39, 15, 12 and 13 to the extent of 376/3800 share with private owners. It was also co-sharer with private co-owners in khasra No. 7 & 8. It was also pleaded that the Society had not sought any partition or separate possession in these Khasra numbers in respect of their share from the private co-owners and, therefore, it had failed to deliver the possession of the land of their share in these Khasra numbers to the Trust. The area of these khasra numbers was to the following effect:-
1. Khasra No.70, 71, 72 & 73 = 14104 sq. yards
2. Khasra No.7 & 8 = 8167.5 sq. yards
3. Khasra Nos.12, 13, 14, 15 & 39 = 2926.5 sq. yards
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Total = 25198 sq. yards
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59. It was pleaded that out of 100508 sq. yards area which was owned by the Society, it had failed to deliver possession of 25198 sq. yards area to the Trust. In other words, instead of handing over the possession of 100508 sq. yards area to the Trust, the Society had delivered the possession of only 75310 sq. yards.
60. It was further deposed in the affidavit that as per the resolution dated 29.1.1983 the Trust was to deliver the possession of 50% of the area which was owned by the Society and which was exempted. The said percentage was increased by the State Government to 53%. Therefore, out of the area measuring 75310 sq. yards which was given by the Society, the Trust were required to deliver the possession of 39914 sq. yards in the shape of plots but in fact the Trust had delivered the possession of an area measuring 40708 sq. yards i.e. 794 sq. yards in excess of the area in the shape of plots. First Appeal No.1176 of 2000. 14
It was, therefore, submitted that the Trust have no obligation to deliver the possession of any more plot to the Society or to its Members or for that matter to the complainant.
61. In order to strengthen this plea, the Trust in the said affidavit dated 14.4.2008 also deposed that the private co-owners of the Society in khasra Nos.70, 71, 72 and 73 had filed Civil Writ Petition No.6361 of 1975 (Waryam Singh and others vs. the State of Punjab and others) in the Hon'ble High Court of Punjab and Haryana to challenge the acquisition of their land. Hon'ble High Court had directed the Trust vide order dated 2.2.1982 to reconsider this matter. The Trust had filed LPA No.640 of 1982 but without success. Ultimately the land owned by the co-owners was abandoned by the Trust from acquisition. Since the Society had failed to get its share partitioned from the private co-owners and since the share in the land owned by the private owners was also abandoned in pursuance of the judgments of the Hon'ble High Court/Supreme Court, therefore, the Society had failed to deliver the possession of the land of their share in these khasra numbers.
62. Some documents have been placed on the file in support of this plea.
63. It was further submitted that similar situation existed with regard to khasra Nos.7, 8, 12, 13, 14, 15 and 39. Some documents were filed in support of this plea except with regard to Khasra Nos. 7 & 8.
64. In the subsequent affidavit dated 24.5.2008 the Trust placed on the file the jamabandi and khasra girdawri with regard to khasra Nos.7, 8, 12, 13, 14, 15, 39, 70, 71, 72 and 73 to show that this land still continued to be shown in the revenue record to be the co-ownership of the Society with private co- owners.
65. It was, therefore, submitted by the learned counsel for the Trust that the land to the extent of 25198 sq. yards area owned by the Society in khasra Nos.70, 71, 72, 73, 7, 8, 12, 13, 14, 15 and 39 was never delivered by the First Appeal No.1176 of 2000. 15 Society to the Trust and, therefore, the Trust were required to return only an area measuring 39914 sq. yards area in the shape of plots while in fact it had delivered the area measuring 40708 sq. yards i.e. in excess of 53% which it was required to deliver to the Society.
66. The Trust filed the subsequent affidavit dated 18.8.2008 in which again the old position was reiterated. However, on 18.11.2008 the learned counsel for the Trust made the statement that so far khasra nos. 7 and 8 are concerned the possession of the land of the share of the Society in these khasra numbers was taken by the Trust. The area of these khasra numbers was 8167.5 sq. yards.
67. The Society also filed the affidavit of Tarlok Singh, office bearer of the Society dated 4.8.2008 in which these facts were rebutted. It was not denied by the Society that the possession of 40708 sq. yards area was given by the Trust to the Society but it was asserted that the Society had handed over the possession of the entire land owned by it measuring 100508 sq. yards area and the Trust were required to return more than 50250 sq. yards area which the Trust had failed to do so. After the arguments were heard, the Society also filed the affidavit of Sanjeev Jain(in First Appeal No. 547 of 2006) to the effect that the Trust had taken the possession of Khasra No. 70, 71, 72 & 73.
68. However, it deserves notice that the Society has not placed on the file any document to show if it had sought partition of its share from its co-owners or if the Society had got the possession from the private co-sharers of the land of their share relating to khasra numbers 70, 71, 72, 73, 12, 13, 14, 15 & 39.
69. No doubt, that on papers the Trust had delivered the possession of 50250 sq. yards area to the Society vide their resolution No. 651 dated 29.1.1983(Ex. R-5) and had allotted that area in the shape of 296 plots to the Society vide allotment letter No. 11308 dated 3.2.1983. Similarly the First Appeal No.1176 of 2000. 16 Society had also accepted it by making the payment of development charges and exemption fee of 296 plots and by issuing fresh allotment letters dated 14.2.1983 to its 296 Members of the area measuring 50250 sq. yards. At that time neither the Trust had taken the plea that since the possession of the land measuring 100508 sq. yards has not been given to them and since the possession was given of the land measuring 75310 sq. yards, therefore, it was returning the area measuring 39914 sq. yards only nor the Society had taken the plea that the possession of the land given to them was only 39914 sq. yards or 40708 sq. yards only and not 50250 sq. yards area. Those transactions remained paper transactions. It came to notice only when the area of some of those Khasra numbers was not found on the ground.
70. The Trust has admitted having received possession of Khasra No. 7 & 8 in their statement made in this Court on 18.11.2008. The area of these Khasra numbers admittedly was 8167.5 sq. yd.. Therefore, the Trust had taken the possession of land measuring 75,310 sq. yd. plus 8167.5 sq. yd., which comes to about 83477.5 sq. yd. from the Society. Therefore, if the Trust were to return 53% of the area to the Society for its Members then the Trust were bound to return 44243 sq. yards area. The Trust have admitted in this affidavit that they have handed over only 40708 sq. yards area. Therefore, the Trust are legally bound to deliver the possession of more area measuring 3535 sq. yards to the Society for its Members in the shape of plots even if the version of the Trust is accepted in toto.
71. It may be noticed that the Society had sent the list of 333 Members (Ex. R-
4) to the Trust on its demand after the Government of Punjab had decided to exempt the land of the Society from acquisition vide their notification No. 398-D SLG-III-82 dated 21.9.82(Ex. C-5 in First Appeal No. 546 of 2006). The names of the complainants are mentioned in this list as under:- First Appeal No.1176 of 2000. 17
S.No. Appeal No. Name Serial no.
1 First Appeal No. 1176 Hukan Chand s/o Jyoti 124
of 2000 Ram
2 First Appeal No. 900 Dharamvir Bector 63
of 2001
3 First Appeal No. 546 Kusam Chadha 68
of 2006 (She is the transferee
from Anil Maheshwari)
4 First Appeal No. 547 Amrit Lal Arora s/o Har 93
of 2006 Gopal Arora
5 First Appeal No. 817 Rajesh Birla w/o Prem 39
of 2007 Nath
6 First Appeal No. 818 Raj Kumar s/o Jagjit Pal 44
of 2007
72. Rajesh Tuli(appellant in First Appeal No. 548 of 2006) purchased the property from Sulesh Kumar. Since some names were not legible, therefore, the name of Sulesh Kumar could not be found out in this list. Similarly, the name of Hem Raj Mittal(appellant in First Appeal No. 139 of 2006) was legible at Serial No. 274 but his father name was not legible.
73. After the Trust passed resolution No. 651 dated 29.1.83, the details of the plots number, area etc. of 296 plots allotted by it to the complainants was given. The complainants claim to be the allottees of the following plot numbers:-
S. No. Appeal No. Name Plot No. Area 1 First Appeal No. Hukam Chand 1305 125 Sq. Yd. 1176 of 2000 2 First Appeal No. Dharamvir 986 250 Sq. Yd. 900 of 2001 Bector 3 First Appeal No. Hem Raj 985-D 250 Sq. Yd. 139 of 2006 Mittal 4 First Appeal No. Kusam Chadha 992-D 250 Sq. Yd. 546 of 2006 5 First Appeal No. Amrit Lal 1000 250 Sq. Yd. 547 of 2006 Arora 6 First Appeal No. Rajesh Tuli 994-D 250 Sq. Yd. 548 of 2006 7 First Appeal Rajesh Birla 1413 125 Sq. Yd. No.817 of 2007 8 First Appeal No. Raj Kumar 1414 125 Sq. Yd. 818 of 2007 First Appeal No.1176 of 2000. 18
74. All these plot numbers having the area mentioned above are a part of the 296 plot numbers allotted by the Trust to the Society for its Members vide resolution No. 651 dated 29.1.83(Ex. C-7 in First Appeal No. 546 of 2006) as communicated vide letter No. 11308 dated 3.2.83(Ex. C-8 in First Appeal No. 546 of 2006). Therefore, these persons are the real allottees and genuine complainant.
75. Moreover, after the allotment of these plots by the Trust to the Society for its Members, a list of 268 allottees was issued by the Society(Ex. C-9 in First Appeal No. 546 of 2006). In this list, the names of the complainants have been included as under:-
S. No. Appeal No. Name Serial no.
1 First Appeal No. 1176 Hukan Chand s/o Jyoti 201
of 2000 Ram
2 First Appeal No. 900 Dharamvir Bector 52
of 2001
3 First Appeal No. 546 Kusam Chadha 57
of 2006
4 First Appeal No. 547 Amrit Lal Arora s/o Har 65
of 2006 Gopal Arora
5 First Appeal No. 548 Rajesh Tuli 59
of 2006
6 First Appeal No. 817 Rajesh Birla w/o Prem 239
of 2007 Nath
7 First Appeal No. 818 Raj Kumar s/o Jagjit Pal 240
of 2007
76. Since this list is of 268 allottees only, against 296 plots allotted by letter dated 3.2.1983, the name of Hem Raj Mittal may be in the other list of 28 members.
77. Moreover, all these 8 plot numbers including that of Hem Raj Mittal have been included in the list of 52 plots for which a complaint has been filed by the Society against the Trust on account of non-delivery of the possession of these plots to the allottees. (A copy of the said complaint has been taken on record as FA-I).
78. The doubtful circumstances against Hem Raj Mittal could be that the letter of allotment issued to him is dated 20.1.2000 whereas the allotment letters First Appeal No.1176 of 2000. 19 to other members were issued immediately after 3.2.1983. Since other particulars of this complainant tally, his case cannot be isolated on the ground that the letter of allotment was issued to him very late.
79. It is, therefore, proved that the complainants are genuine allottees. The possession of these plots have not been given to them by the Trust. Since the Trust had allotted these plots, therefore, the Trust was to deliver the possession of those numbers to the complainants. Therefore, there is a deficiency in service on the part of the Trust.
80. The total area of these 8 plots comes to 1625 sq. yd. As observed in above paragraphs, the Trust is still liable to pay an area of 3535 sq. yd. Therefore, the Trust is under the legal obligation to deliver the possession of these plots to the complainants and in case these plots are not available, alternative plots of the same size be given in any nearby scheme.
81. Now the question would be what should be the rate on which the Trust are required to give the plot to the complainants?
82. No doubt the Trust is deficient in service in not delivering the possession of the plot to the complainant as per the letter of allotment issued by the Trust to the Society for allotment to its Members but at the same time, the complainant himself filed the complaint very late. As pleaded by the Society in the written statement the plot was allotted to the complainant on 3.2.1983 by the Trust and it was re-allotted by the Society to the complainant vide letter dated 14.2.1983. He filed the complaint for delivery of its possession on 25.2.1994 i.e. more than 11 years after the right had accrued to him.
83. Since non-delivery of possession of the plot is a continuing cause of action, therefore, the complaint cannot be termed as barred by limitation. First Appeal No.1176 of 2000. 20
84. At the same time the complainant cannot claim the allotment of the plot to him on the rates which were applicable at the time of the allotment of the plot. If he had initiated the legal proceedings against the Trust and the Society right at the proper time then the complainant had the right to claim that the plot should be allotted to him at the rate which was prevalent at the time of allotment. Since the complainant himself has initiated the legal proceedings after 11 years, therefore, the said benefit cannot be given to him. It could be considered that the complainant should be allotted the plot at the rate prevalent as on 25.2.1994 but in all these cases, the complainants have initiated the legal proceedings on different dates. Therefore, it would not be advisable that one complainant is held entitled to a plot on the reserved price as it was prevalent in 1994 and other complainant is entitled to the plot at the reserved price as it was prevalent in 2000 or in 2006. Therefore, in the interest of justice to introduce uniformity in the price, which would be payable by the complainants, the possession of allotted/alternative plots be given by the Trust to the complainants on the reserve price as it prevailed today i.e. on the date of judgment.
85. The Trust has failed to perform its duty by not delivering the possession of the plot even after allotting the same to the Members of the Society. Therefore, each complainant is awarded compensation to the tune of Rs. 50,000/- for the mental tension and physical harassment undergone by them. It also includes costs of proceeding. It shall be payable by the Trust.
86. The plot should be allotted to the complainants within a period of 4 months from today. Similarly, the amount of compensation should be paid within 4 months from today, failing which the Trust would be liable to pay interest on this amount @ 9% per annum w.e.f. today.
First Appeal No.1176 of 2000. 21
87. As a result of the discussion held above, First Appeal No.1176 of 2000(Improvement Trust, Ludhiana v. Hukam Chand and another) has been dismissed while First Appeal No. 1027 of 2000(Atam Nagar Coop. Housing Society Ltd. v. Improvement Trust, Ludhiana & others) filed by the Society has been accepted and the Society is absolved from its liability of putting the complainant in possession of the plot. First Appeal No.900 of 2001(D.V.Bector Vs. Atam Nagar Coop. Housing Society Ltd. and another), First Appeal No.139 of 2006(H.R.Mittal Vs. Atam Nagar Coop. Housing Society Ltd. and anr.), First Appeal No.546 of 2006(Kusam Chadha Vs. Improvement Trust,), First Appeal No.547 of 2006(Amit Lal Arora Vs. Improvement Trust, Ludhiana and anr.), First Appeal No.548 of 2006 (Rajesh Tuli v. Atam Nagar Coop. Housing Society Ltd. and anr.), First Appeal No. 817 of 2007(Rajesh Birla v. Atam Nagar Coop. Housing Society Ltd. and anr.) and First Appeal No. 818 of 2007(Raj Kumar v. Atam Nagar Coop. Housing Society Ltd. and anr.) stand accepted in terms stated above.
88. The arguments were heard in this case on 18.11.2008 and the order was reserved. Now, the order be communicated to the parties.
89. The appeals could not be decided within the statutory period because of heavy pendency and non-availability of the requisite Benches and infrastructure in the State Commission. The State Government has now sanctioned one additional Bench for the State Commission but it has not become functional for which the process is going on.
(JUSTICE S.N. AGGARWAL) PRESIDENT (MRS. JASBIR KAPOOR) MEMBER December 5, 2008 (LT. COL. DARSHAN SINGH [RETD.]) Bansal / as MEMBER First Appeal No.1176 of 2000. 22