State Consumer Disputes Redressal Commission
Ashok Singh Garcha vs Shaheed Bhagat Singh, Co-Operative ... on 21 February, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.712 of 2004.
Date of Institution: 21.06.2004.
Date of Decision: 21.02.2012.
Ashok Singh Garcha S/o Devinder Singh Garcha, R/o Gurdev Nagar,
Ludhiana.
.....Appellant.
Versus
Shaheed Bhagat Singh, Co-operative House Building Society Limited, 43-B,
Model Town, Ludhiana through its Secretary.
...Respondent.
First Appeal U/s 27-A of the Consumer
Protection Act, 1986 against the order
dated 20.04.2004 of the District
Consumer Disputes Redressal Forum,
Ludhiana.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellant : Sh. Sandeep Khunger, Advocate.
For the respondent : Sh. Vijay B. Verma, Advocate with
Sh. C.L. Verma, Advocate.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
Respondent-Shaheed Bhagat Singh, Co-operative House
Building Society Limited (hereinafter to be called as "Society") filed a Revision Petition No.1354 of 2006 titled as "Shaheed Bhagat Singh, Co-operative House Building Society Limited Vs Improvement Trust, Ludhiana & Ors.", against the order dated 03.05.2006 (date wrongly mentioned as '05.03.2006') passed in First Appeal No.712 of 2004 by this Commission and the said revision was decided on 18th May, 2011 and the Hon'ble National Commission held that the Revision Petition U/s 21(b) would be maintainable against the order passed u/s 27-A of the Act and further passed the following order:-
First Appeal No.712 of 2004 2
"Learned counsel appearing for the respondent has very fairly conceded before us that he would not be able to defend the order passed by the State Commission on merits. In view of the statement made by the learned counsel for the respondent, arguments on the merits on the finding recorded by the State Commission were not addressed. The impugned order is set aside and the case is remitted back to the State Commission to decide the same afresh in accordance with law without being influenced by any of the observations made in this order or the impugned order of the State Commission.
All contentions are left open".
2. After remand of the case by the Hon'ble National Commission, an application Under Order 1 Rule 10 CPC was filed on behalf of the appellant. Reply to that application was filed by the respondent and vide separate order of even date, that has been disposed of.
3. The facts in brief are that the respondent Society filed a complaint under section 12 the Consumer Protection Act, 1986(hereinafter called as "the Act"), for issuing a direction to the appellants to allot alternative 33 residential plots in view of the non-existing plots allotted by the appellant. It was pleaded that the Society purchased land measuring 16800 sq.yds. comprised in Khasra Nos.1,2 & 3 of village Dugri, Tehsil and District Ludhiana in the year 1968 which was acquired by the State Govt. In the year 1974, under Model Town Extension Scheme Part-II, Block-C, Ludhiana. The Society filed the writ petition in the Hon'ble High Court and the matter was compromised and the State of Punjab exempted the land of the Society on certain terms and conditions and the Society was to be allotted residential plots to the extent of 45% to 55% of the total land owned by it. All developments were to be done by the appellant and the Society was to deposit the requisite amount of exemption fee and development charges.
4. Revised Layout Plan was approved and the entire land of the Society was kept reserved as 'Reserved Special Area' and for 'open space', but no residential plots were carved out, out of the land of the Society in violation of the notification dated 25.06.1981 of the State Govt. The appellant First Appeal No.712 of 2004 3 carved out 58 plots, out of which 33 plots were not existing at the spot. The Society deposited a sum of Rs.3,69,475/- on account of development charges and a sum of Rs.12,000/- as exemption fee, but not a single penny has been spent by the appellant on the development of the Society. The Society filed an application on 02.12.1991 with the appellant to allot alternative plots in lieu of 33 plots allotted to the Society, but the appellant did not take any action and a prayer was made for directing the appellant to allot 33 vacant residential plots in lieu of 33 plots or in the alternative, the residential plots if available equivalent to said 33 plots in Model Town Extension, Part-II, Block- C, Ludhiana Scheme of the Trust or in any other scheme of the Trust.
5. The appellants filed the reply, admitting that the land of the Society was exempted with certain conditions after filing of the writ petition and the Society was bound to comply with the requirements and to deposit exemption fee and development charges. Revised Layout Plan was laid. The appellant has not taken the possession of land for the purpose of development, as the land was not vacant and it was under the occupation of 'jhuggi' dwellers. The Society did not deliver the vacant possession and the development could not be carried out, and prayed that the complaint may be dismissed.
6. The District Forum allowed the complaint vide order dated 05.02.1996 filed by the Society and directed the appellant to allot and deliver possession of 33 plots in some other adjacent, equally developed area of the same dimensions within a period of four months from the receipt of that order.
7. The appellant filed the appeal in this Commission against the said order and this Commission dismissed the appeal vide order dated October 17, 1996 and confirmed the directions given by the District Forum and further directed the appellant to comply with the same within three months from the communication of the order.
8. The appellant-Trust filed revision petition before the Hon'ble National Commission against the order passed by this Commission and the First Appeal No.712 of 2004 4 Hon'ble National Commission dismissed the revision petition with costs of Rs.10,000/- vide detailed order dated 28.05.2001 and concluded as follows:
"Another fact noticed is that the land acquired from the respondent Society is shown as 'open space' (in the Lay Out Plan (Map) of Model Town Extension which means that no construction can come up on this land, thus, literally depriving the Respondent Society of allotting plots to its members on their original piece of land. What was granted through exemption on the one hand was taken away by notifying the land as 'open space', hence ineligible for construction on the other hand. In fact, if any fraud has been committed, it is by the Petitioner Trust. What they seem to give with one hand is taken away by the other. It is the case of the petitioner that since exemption granted to the respondent society entitled them to make plots for use by its members, it was defeated by the Lay Out Plan Notified in 1988. Till date i.e. 2001, no action has been taken by the Improvement Trust to bring any change in the Lay Out Plan of Block-E where the land of the Respondent is situated and yet expecting the Respondent Society to carve out plots for its members, leads us to the inexorable conclusion that the Petitioner has not come with clean hands before us. The choices before the Trust were two fold- either to change the 'purpose' in the Lay-out Plan to Residential as against 'open space' with regard to the Society's land or to compensate them with alternative plots. The Trust, it seems decided to pursue the second option. It does not become of the Petitioner now to come before us with the plea of fraud on the part of the then Chairman. They could have cancelled/modified the Lay-out Plan; only then they could have come before us stating that the original piece of land of Society stands restored to them with the requisite conditions; only under these circumstances allotment of plots by the Trust in other locations would have appeared unwarranted. But this is not what the Petitioners have done. Having deprived the Respondent Society of the use of land for residential purposes, Petitioner Trust is obliged to allot alternative plots for the members of the Society".
S.L.P. filed by the appellant was dismissed by the Hon'ble Supreme Court vide order dated 28.05.2011.
9. The Society filed the application U/s 27 of the Act as Execution No.102 dated 05.07.2001 before the District Forum, Ludhiana and the same First Appeal No.712 of 2004 5 was decided vide order dated 20.04.2004, and while dismissing the objections filed by the appellant, it was observed as follows:-
"It is worth to mention that an application was filed by the complainant society for issuing direction to Sh. Ashok Singh Garcha who has been appointed as Chairman of the opposite party Trust to comply the order failing which the action under section 27 of the Act be taken against him. This execution was filed against Sh. M.M. Vyas, the then Chairman of the Improvement Trust. Thereafter, an administrator was appointed and accordingly, the State Government was impleaded as party vide order dated 25.10.2002. Now, Sh. Ashok Singh Garcha has been appointed as Chairman of the Improvement Trust and he has himself joined the proceedings by filing objection petition and as such the separate notice is not required in this execution petition. The compliance of the order dated 15.02.1996 is to be made by the opposite party. There is also no denying the fact that an appeal filed by the opposite party was dismissed by the Hon'ble State Commission vide order dated 17.10.1996 and even a revision filed was also dismissed vide order dated 28.05.2000 with cost of Rs.10,000/-. The SLP filed in the Hon'ble Supreme Court was also dismissed on 28.09.2000.
Accordingly, the opposite parties are directed to comply with the order failing which the action under section 27 of the Consumer Protection Act, shall be taken".
10. Against the above order dated 20.04.2004 passed by the District Forum, the appellant filed the appeal in this Commission, bearing First Appeal No.712 of 2004 which was decided on 03.05.2006 and the appeal filed by the appellant was accepted and the order passed by the District Forum dated 20.04.2004 was set aside and the execution application was dismissed.
11. The Society filed the revision against the said order, bearing no.1354 of 2006 which was decided by the Hon'ble National Commission on First Appeal No.712 of 2004 6 8th May, 2011 vide which, the case was remanded and the order passed by this Commission was set aside, as stated above.
12. We have heard the learned counsel for the parties at length and have scanned the file thoroughly.
13. The main thrust of the counsel for the appellant while arguing was on the point that the land of the Society was acquired, but after filing of the writ petition by the Society in the Hon'ble High Court, a compromise was effected and the land of the Society was exempted and the possession of the land owned by the Society remained with the Society and the Society was allotted its own land and it could further allot the plots to the members. Regarding development, it was argued that the Society filed the suit for refund of the development charges and extension fee and the same was decreed in favour of the Society and the refund of the entire amount has been made. The 33 plots have been given to the Society in their own land and, as such, the Society cannot claim any other site. The counsel for the appellant referred to Annexure-A-4 which is a petition filed by the Society under Article 226/227 of the Constitution of India, seeking direction to restrain the appellant from acquisition of the Society's land and from dispossessing the Society from the land. Annexure-A-5 is the Notification dated 25.06.1981 vide which the land of the Society was exempted. Annexure-A-6 is the report of patwari as per which the land of the Society falls in Khasra Nos.1, 2 & 3 and 34 plots fall in that. The learned counsel for the appellant also referred the order dated 15.02.1996 passed by the District Forum as per which, the appellant was ordered to allot alternative plots, either in the same area or some other adjacent equally developed area of the same dimensions, as those of 33 plots and gave the detail of the plot and also referred the order of the Hon'ble National Commission wherein the appellant was directed to allot alternative plots. Vide Annexure-A-17, the Chairman passed the order dated 27.11.2001 vide which, alternative plots were allotted, bearing no.798-A to 830-C falling in Model Town Extension Part-II Scheme, measuring 850 sq.yds. The counsel First Appeal No.712 of 2004 7 for the appellant has also referred to the affidavit of Executive Officer, Ludhiana Improvement Trust, Ludhiana, to show that the plots allotted to other societies out of the land of the Society, were cancelled and undertaking was given that no plot will be allotted by the appellant from the land owned by the Society in Khasra Nos.1, 2 & 3, exempted by the State Govt.
14. On the strength of these documents, it was vehemently argued that the compliance of the order of the District Forum has been made and the order of the District Forum passed in execution application was set aside by this Commission vide order dated 03.05.2006 and the execution was dismissed and since, the alternative plots have already been allotted to the Society, therefore, no further action is required to be taken by the appellant and the appeal may be accordingly decided.
15. The contentions of the counsel for the appellant have been vehemently opposed and it was argued that the land of the Society is not in possession of the Society. The State Commission vide order dated 17.10.1996 held that Improvement Trust is duty bound to allot 33 plots of the dimensions agreed upon and deliver possession to the Society/its members and the District Forum rightly gave the directions in the impugned order and there is no ground for interference. The Hon'ble National Commission in the order dated 28th May, 2001, observed that the land of the Society is shown as 'open space' and the Society is deprived of allotting the plots to its members and the fraud has been committed by the Trust and as detailed above, concluded that having deprived the respondent Society of the use of the land for residential purposes, the petitioner Trust is obliged to allot alternative plots for the members of the Society. The SLP against this order was dismissed.
16. It was also contended that the State Govt. was impleaded vide order dated 25.10.2002 and the change of name of the chairman of the Trust does not matter, because the Trust is under the State Govt. and both the Trust and the State are to comply with the orders. The land of the Society was acquired in the year 1974 and exempted thereafter vide notification dated First Appeal No.712 of 2004 8 25.06.1981 and since then, the respondent Society is running from pillar to post to get the plots allotted to its members, but the appellant has not done so and the order passed by the District Forum is legal, valid and the appeal being without any merits, may be dismissed.
17. We have considered the respective submissions advanced by both the learned counsel for the parties and have scanned the entire material placed on file thoroughly.
18. First question to be clarified, which has been decided earlier by this Commission as well as by the Hon'ble National Commission, is whether the respondent Society was allotted plots in its own land?
19. The District Forum vide its order dated 05.02.1996, directed the appellant to allot and deliver possession of 33 plots in some other adjacent, equally developed area of the same dimensions, within a period of four months from the receipt of that order. Appeal filed by the appellant against the said order of the District Forum, was dismissed by this Commission vide order dated 17th October, 1996 and the appellant was directed to comply with the order within three months from the communication of the order. The appellant Trust instead of complying with the order, filed the revision petition before the Hon'ble National Commission and, as discussed above in detail, the Hon'ble National Commission went to the extent of observing that the appellant Trust defeated the right of the respondent-Society to allot plots to its members from their Society, by laying out a plan notified in the year 1988, mentioning the said land as 'open space' and ultimately, holding that the Trust has not come to the court with clean hands and has deprived the respondent Society of the use of land for residential purposes and asked the appellant Trust to allot alternative plots for the members of the Society. The appellant Trust was still not satisfied and filed Special Leave Petition before the Hon'ble Supreme Court, against the order passed by the Hon'ble National Commission dated 28.05.2001 and the same was dismissed.
First Appeal No.712 of 2004 9
20. Thereafter, the respondent Society filed the execution application for executing the orders passed right from the District Forum to the Hon'ble Supreme Court, but again the appellant Trust instead of complying with the orders, filed objections and the same were dismissed and the appellant was directed to comply with the order, failing which the action u/s 27 of the Act was to be taken, but the appellant Trust again filed the appeal against the order and the said appeal was accepted by this Commission and, as discussed above in detail, the revision was field before the Hon'ble National Commission and the Hon'ble National Commission asked this Commission to decide the appeal afresh.
21. The District Forum dismissed the objections filed by the appellant. The chairman of Trust keep on changing, but that does not matter and does not confer any right on the Trust not to comply with the orders of the District Forum, State Commission or of the Hon'ble National Commission. The State Govt. was also impleaded party vide order dated 25.10.2002 but every time, the chairman is changed, he comes forward with his own objections which are not, at all, warranted. Let there be any chairman of the Improvement Trust, Ludhiana, the orders have been passed against the Improvement Trust, Ludhiana to allot alternative plots for the members of the Society.
22. In fact, the earlier orders were passed in the complaint filed by the Society, against the Improvement Trust. The first complaint filed by the Society was against the Improvement Trust, Ludhiana through its Chairman and Chairman, Improvement Trust, Ludhiana and both were the respondents. The appeal against the order passed by the District Forum was filed by the Improvement Trust, Ludhiana through its Chairman and Chairman, Improvement Trust, Ludhiana and both were the appellants against the Society and as discussed above in detail, the appeal filed by the above appellants was dismissed by this Commission on 17.10.1996. The revision filed by the Improvement Trust, Ludhiana against the Society was dismissed First Appeal No.712 of 2004 10 by the Hon'ble National Commission on 28.05.2001 and the Special Leave Petition was again filed by the Improvement Trust, Ludhiana in the Hon'ble Supreme Court and the same was dismissed on 28.09.2001.
23. Thus, the orders have been passed right from the District Forum upto the Hon'ble Supreme Court, against the Improvement Trust, Ludhiana and Chairman, Improvement Trust, Ludhiana.
24. The execution application U/s 27 of the Act was filed by the Society against the Chairman, Improvement Trust, Ludhiana; Trust Engineer, Improvement Trust, Ludhiana; Executive Officer, Improvement Trust, Ludhiana; another Executive Engineer, Improvement Trust, Ludhiana and Improvement Trust, Ludhiana through its Chairman. However, the perusal of the impugned order dated 20.04.2004 of the District Forum shows that Pawan Kumar Goyal, Executive Officer, Improvement Trust, Ludhiana, as well as Improvement Trust, Ludhiana through its Chairman were 'given up', as against their names, the said word is mentioned.
25. As stated above, the orders have been passed against the Improvement Trust, Ludhiana through its Chairman and Chairman, Improvement Trust, Ludhiana and we fail to understand how the Improvement Trust, Ludhiana through its Chairman was given up by the counsel for the Society and why the District Forum allowed the counsel to give up the main contestant, who was to comply with the order. For the fault of the District Forum or the fault of the counsel for the Society, the party (Society) cannot be allowed to suffer. At the cost of repetition, once the orders have been passed against the Improvement Trust, Ludhiana through its Chairman, upto the Hon'ble Supreme Court, then the mere statement of the counsel for the Society or the passing of the order by the District Forum as 'given up', has no meaning in the eyes of law and, because the orders have been passed against the Improvement Trust, Ludhiana through its Chairman and the Chairman, Improvement Trust, Ludhiana. The objections were filed by the Chairman which have already been dismissed by the District Forum and First Appeal No.712 of 2004 11 again the revision upto the Hon'ble National Commission was filed, but the Chairman did not succeed in his designs. Moreover, the Chairman in his personal capacity has nothing to do with the orders passed against the Trust. The Chairman is merely the functionary of the Trust and Chairman keep on changing, but that will not affect the orders passed by this Commission, Hon'ble National Commission and the Hon'ble Supreme Court. The orders passed by the above authorities are executable against the Improvement Trust, Ludhiana, let there be any Chairman.
26. The respondent Society filed the complaint in the year 1992 and almost 20 years have passed, but the appellant Trust is dilly dallying the matter on one pretext or the other and is filing appeals and revisions instead of complying with the orders. The appellant Trust has number of legal advisors and the legal assistants at their disposal and is misusing the process of law, knowing well about the facts and the law, but just with the intention to delay the matter. The legal advisors of the Trust must be aware that against the legal and valid orders, they are advising the authorities of the Trust, to file appeals and revisions again and again and against every order. This tendency on the part of legal advisors and the authorities of the appellant Trust is required to be curbed. We are of the opinion that exceptional costs are required to be imposed upon the appellant Trust, but as the case is quite old, we refrain from ordering the fixing of the responsibility on the officials of the Trust, as it will further delay the matter.
27. In view of above discussion, the appeal filed by the appellant, being without any merit, is dismissed with special costs of Rs.20,000/- (Rupees Twenty Thousand) and the order dated 20.04.2004 under appeal passed by the District Forum is affirmed and upheld. Payment of costs shall be paid by the appellant Trust to the respondent Society within two months of the receipt of copy of the order.
28. The arguments in this appeal were heard on 09.02.2012 and the order was reserved. Now the order be communicated to the parties. First Appeal No.712 of 2004 12
29. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member February 21, 2012.
(Gurmeet S)