State Consumer Disputes Redressal Commission
Meena vs Ludhiana Improvement Trust on 6 December, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.388 of 2017
Date of Institution : 23.05.2017
Order Reserved on: 04.12.2017
Date of Decision : 06.12.2017
Meena w/o Shri Ashok Kumar, resident of Mohalla Sethian, Faridkot,
through his General Power of Attorney Iqbal Singh s/o Teja Singh r/o
28, Flower Dale Barewal Road, Ludhiana.
.....Appellant/complainant
Versus
1. Ludhiana Improvement Trust, Ludhiana through its Chairman.
2. The Executive Officer of the Ludhiana Improvement Trust,
Ludhiana.
.....Respondents/opposite parties
First Appeal against order dated
30.01.2017 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 : Sh. S.S. Salar, Advocate
For the respondents : Ms. Maninder Kaur, Advocate
............................................ J.S. KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellant is to order dated 30.01.2017 of District Consumer Disputes Redressal Forum Ludhiana (in short the 'District Forum'), dismissing her complaint.
The appellant of this appeal is complainant in the complaint before the District Forum and respondents of this appeal are opposite parties (OPs) therein and they be referred as such hereinafter for the sake of convenience.
First Appeal No.388 of 2017 2
2. The complainant filed complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments that OP no.1 invited applications for allotment of residential plots in 475 Acres Development Scheme namely "Shaheed Bhagat Singh Nagar, Ludhiana" in 1982. She applied for allotment of plot measuring 125 Sq.yards in the above development scheme of 475 Acres namely as Shaheed Bhagat Singh Nagar, Ludhiana in 1982. Registration fee of Rs.950/- was paid to OP no.2 by complainant and her name was registered in the list for allotting the plots through draw of lots. Intimation about registration was given to her by OPs for attending the function of draw of lots of plots on 10.09.1999 at 10:00 AM. She attended the same and remained successful in the draw of lots and plot No.666-G, measuring 125 sq.yards was allotted to her by OPs in the above said scheme. Thereafter, she approached OPs for completion of formalities by way of deposit of price of the plot at the reserve price @ Rs.1455/- per square yard, but OPs put off the matter on one pretext or the other and failed to execute and register the sale deed by receiving the sale consideration. It was further averred that OPs took false pretext that her plot had fallen in new shopping complex scheme known as City Centre. The complainant alleged it to be illegal and arbitrary. City Centre scheme came into existence in pursuance of resolution No.130 dated 23.09.1999 of the Trust, but draw of lots in question took place on 10.09.1999, prior thereto. Rather, through resolution No.130, OPs requested in writing to Government for revised layout First Appeal No.388 of 2017 3 plan, vide LIT No.4 of 2000 dated 28.06.2000. Sanction was granted by the Government for alternative plots to the persons, whose plots fell in City Centre Scheme. Number of plots were lying vacant in 475 acres scheme, but OPs could not give the alternative plots to her. The complainant claimed that in case, the alleged plots are not available in 475 acres scheme, then another plot in equally developed scheme be allotted to her, as per terms and conditions at the same price, but to no effect. The alleged deficiency in service on the part of OPs for non allotment of the alternative plot to her has been pleaded in this case, which has caused mental and physical harassment to her. In case, OPs would have given the possession of the plot No.666-G in time to the complainant, then she would have been saved from the unnecessary harassment undergone by her. As per operative part of the case of Baljit Singh vs. The Secretary, Govt. of Punjab dated 31.10.2006, the Trust felt necessity for calling upon the Government to reconsider the resolution No.3 dated 31.01.2005 because of filing of Writ Petitions before the Hon'ble High Court by applicants. Vide resolution No.8, Resolution No.3 dated 31.01.2005 was reconsidered and approved. Matter was alleged to be finally decided by the Hon'ble High Court (DB) in Writ Petition No.578 of 2004 in case titled as Jaswant Singh Mehra and others vs. State of Punjab & Ludhiana Improvement Trust and others. Dayal Chand Garg submitted reply in the shape of affidavit for claiming that earlier the Ludhiana Improvement Trust vide its resolution No.56 dated 22.12.2003, it decided to refund the money with interest and the First Appeal No.388 of 2017 4 action of Ludhiana Improvement Trust was challenged. Even as per that affidavit of Dyal Chand Garg, Ludhiana Improvement Trust vide its resolution No.3 dated 31.01.2005, it decided to allot the alternative plots to the petitioners and all other persons similarly situated. It was further averred that this Forum has already decided the similar complaints and OPs was to hold a draw of lots for allotment of plots of those owners, whose land has been acquired for City Centre Scheme. Alternative plots, in the draw of lots was held on 12.06.2012 and were to be allotted. Complainant requested OPs to put her name in those draw of lots, but OPs refused to do so. The complainant prayed that OPs be directed to handover the possession of plot No.666-G, situated in 475 Acre Scheme also known as Shaheed Bhagat Singh Nagar, Ludhiana, to her and further to execute the sale deed of the said plot in her favour by receiving the reserve price at the rate of Rs.1455/- per square yard, besides to pay compensation of Rs.2 lakhs for mental and physical tension as well as financial loss and to pay Rs.20,000/- as costs of litigation. The complainant further prayed that in case, the plot is not available in 475 Acre scheme, then OPs be directed to allot a plot in another equally developed scheme on the same terms and conditions and on the same price by executing and registering the sale deed after receiving the full payment @1455/- per square yard from her.
3. Upon notice, OPs appeared and filed written reply by raising preliminary objections that the complaint is not maintainable, First Appeal No.388 of 2017 5 because the complainant is not a consumer within the meaning of Section 2 (i)(d) of the Consumer Protection Act, 1986. Non delivery of the plot is not an unfair trade practice. Mere application for getting the allotment of plot or being successful in the draw of lots does not confer any vested right or title in a person. There is no estoppel against law. Any wrong decision or order passed by OPs in favour of a particular party/person does not confer any right to claim benefit of inadvertent wrong decision. Legally, there can be no estoppel of any nature against the state in framing, changing, withdrawing and modifying the policies as per requirement and no policy can be freezed for ever and state has to keep the public need and interest as object of its policies. Complaint is alleged to be barred by limitation. Complicated question of facts and law are alleged to be involved in this case requiring elaborate evidence for adjudication, hence the matter can be decided by civil court of competent jurisdiction only. As per the policy of Government, it was decided to allot new plots to the applicants, who were earlier successful for the allotment of plots measuring 125 Sq.yards situated in Shaheed Bhagat Singh Nagar, Ludhiana scheme. These new plots were to be allotted to the persons, whose plots came under City Centre Scheme. Draw of lots were held on 17.09.2012 and 30.10.2012. The complainant was allotted a plot No.410-D, Shaheed Bhagat Singh Nagar, Ludhiana. OPs passed resolution No.59 dated 9.10.2013 and sent the same for approval to the Government. The same was approved by the State Government, vide memo No.44498 dated First Appeal No.388 of 2017 6 12.11.2014 with certain conditions. A letter bearing memo No.10746 dated 21.11.2014 was issued to the complainant for complying with the conditions, so that the allotment letter could be issued. That letter was received by the complainant, but she failed to comply with the conditions. It was admitted that plot No.666-G, S.B.S.Nagar, Ludhiana, measuring 125 Sq.yards was allotted to the complainant in a draw of plots, but no allotment letter thereof was issued by OPs in her favour. Mere allotment of the plot or success in the draw of lots, does not confer any vested right in favour of the complainant. Admittedly, intimation to complainant or to other applicants was sent regarding the draw of plots to be held on 10.09.1999. As no allotment letter was issued in favour of the complainant and as such, any allotment by draw of lots can be withdrawn/cancelled before the deposit of ¼th price of the plot and execution of agreement of sale. The allotment letters were not issued in favour of the complainant and other successful applicants because they framed a new commercial scheme known as City Centre Shaheed Bhagat Singh Nagar, Ludhiana. Plot in question along with other plots came in the City Centre Scheme, which was announced, vide resolution No.130 dated 23.09.1999. As per the policy of the Government, complainant along with others, who earlier remained successful for allotment of the plots measuring 125 Sq.yards situated in Shaheed Bhagat Singh Nagar, Ludhiana and whose land came under City Centre Scheme would be entitled to participate in the draw of lots to be held on 17.09.2012 and 30.10.2012. The complainant was allotted a plot First Appeal No.388 of 2017 7 No.410-D, Shaheed Bhagat Singh Nagar, Ludhiana. It was further averred that Resolution No.59 dated 09.10.2013 was passed by OPs and further sent to Government for its approval vide memo No.44498 dated 12.11.2014 with certain conditions. Letter was issued to the complainant to comply with those conditions, so that allotment letter could be issued. Even after receipt of the said letter, complainant failed to comply with conditions resulting in cancellation of the allotment of the plot. It was further pleaded that in view of the right available to the OPs to withdraw the allotment of the plots or the scheme and OPs acted within the statutory provisions of law, rules and regulations. Matter of revised layout plan No.4 of 2000 dated 28.06.2000 was known to everyone because the record in that respect was sent to the Government for allotment of alternative plots. The OPs denied this fact that many plots were lying vacant in 475 acre scheme. In case, the complainant wanted to raise construction of house on the plot, then she had to execute the instrument of general power of attorney in favour of Sh.Sukhdev Singh son of Sh.Dayal Singh through whom the complainant has filed the case. It was admitted that resolution No.56 dated 22.12.2003 and resolution No.3 dated 31.03.2005 were passed. Even resolution No.8 dated 21.02.2006 was passed. Memo No.7281 dated 08.09.2006 was received from the Department of Local Government, Government of Punjab, but the same did not create any right, title or interest in favour of the allottees. The OPs controverted the other averments of the complainant and prayed for dismissal of the complaint. First Appeal No.388 of 2017 8
4. The complainant tendered in evidence affidavit of Sh.Iqbal Singh, GPA of complainant Ex.C-A along with copies of documents Ex.C-1 to Ex.C-6 and Ex.J-1 to Ex.J-15 and closed the evidence. As against it, the OPs tendered in evidence affidavit of Sh.Harinder Singh Chahal, Executive Officer of Improvement Trust, Ludhiana Ex.R-A along with copies of documents Ex.R-1 to Ex.R-4 and closed the evidence. On conclusion of evidence and arguments, the District Forum dismissed the complaint of the complainant by virtue of impugned order. Aggrieved by above order, the complainant now appellant has directed this appeal against the same.
5. We have heard learned counsel for the parties and have also examined the record of the case. Evidence on the record has also been appraised by us with the able assistance of counsel for the parties. Meena complainant applied for allotment of plot measuring 125 square yards by depositing the requisite amount of Rs.950/-, vide receipt No.45278 dated 19.11.1982 with OPs. Draw of lots was held on 10.09.1999 and plot No.666-G, measuring 125 sq. yards was allotted to her in the above scheme @Rs.1455 per square yard. She requested OPs to allow her to deposit the sale price of said plot and to complete the other formalities, so that she could raise construction thereon. The above plot of complainant had fallen in the area of new proposed scheme of city centre shopping complex, the OPs illegally and arbitrarily revised the layout plan. The grievance of complainant is that alternative plot no.666-G was allotted to her by issuing allotment letter by OP. The next grievance of complainant is First Appeal No.388 of 2017 9 that price of above plot be charged from her as prevailing at the time of its draw of lots @1455/-. The prayer of the complainant is that the old price of @Rs.1455 per square yard be charged from her.
6. The OP's case, as projected, is that complainant's plot had come in the City Centre Scheme, which was not residential area and the layout plan was changed due to that supervening event. It was also projected by OPs that even complainant was only successful in the draw of lots and no allotment letter for plot no.666- G was issued to her and hence she has not become its allottee. The OPs are legally entitled to demand the prevailing price from complainant.
7. Affidavit of Iqbal Singh Attorney holder of complainant is Ex.C-A on the record in support of the averments of complainant. Ex.C-1 is the copy of letter in the name of Neelam Kumari bearing no.LIT/SB/11809 dated 04.11.1999 allotting her plot no.1056-G, measuring 125 square yards through draw of lots held on 10.09.1999. Ex.C-2 and C-3 are the other allotment letters issued by OPs to other persons allotting them plots in above scheme through draw of lots held on 10.09.1999. Ex.C-4 is copy of letter no.10746 dated 21.11.2014 addressed to complainant by OPs to comply with the terms and conditions of letter no.DSS-TSS-2014/44498 dated 12.11.2014, so that the allotment letter of plot no.410-D of 125 square yard be issued to her. Ex.J-1 to J-15 are copies of judgments. Ex.C-1 is the copy of request slip of Vijay Lakshmi. Ex.C-2 is sale deed allotting alternate plot to Vijay Lakshmi. Ex.C-3 First Appeal No.388 of 2017 10 to C-7 are the copies of letters from OPs to Vijay Lakshmi regarding presenting the electricity bills and water & sewerage bills other bills and maps in the office of OPs. Ex.P-5 is the copy of power of attorney executed by complainant in favour of Iqbal Singh. Ex.P-6 is copy of receipt of Rs.950/- issued by OP dated 19.11.1982. The OPs examined Harinder Singh Chahal, Executive Officer in their evidence. He tendered his affidavit Ex.R-A in support of the case of OPs. This witness stated that letter no.10746 was written to complainant to comply with the terms and conditions of letter no.44498 dated 12.11.2014 of Government so that allotment letter of plot no.410-D, measuring 125 square yards was issued to her, but she failed to comply with the same and above allotment was cancelled. Ex.R-1 is copy of resolution no.4 dated 06.11.2012 and resolution no.5 dated 06.11.2012. We have also examined other documents Ex.R-2 to R-4 on the record in the evidence of OPs.
8. From critical analysis of evidence on the record and hearing the respective submissions of counsel for the parties, we find that plot no.666-G was not allotted to the complainant by OPs. The name of the complainant came out as successful in the draw of lots and no allotment letter was issued to her therefor. The Apex Court has held in "Greater Mohali Area Development Authority & another Vs. Manju Jain & others" 2011(1)CPJ-(SC)-4 that mere draw of lots/allocation letter does not confer any right to allotment. Without acceptance, allotment is of no significance. In this view of law laid down by the Apex Court, mere draw of lots does not confer First Appeal No.388 of 2017 11 any right of allotment of plot no.666-G on complainant. So far as plot no.666-G is concerned, the complainant has not become an allottee of OPs by merely applying for allotment of plot and with the result of draw of lots simpliciter. District Forum relied upon law laid down by Division Bench Judgment of our own High Court in Civil Writ Petition No.25137 of 2014 titled as Avtar Kaur and others vs. State of Punjab wherein it has been specifically held that that conditions regarding allotment of another plot decided on 09.12.2014, alternative plots at the current collector rates is in accordance with law in view of earlier decided case of Haryana Urban Development Authority and others vs. Sandeep and others- LPA No.2096 of 2011, decided on 25.4.2012 by the Hon'ble Division Bench of Punjab & Haryana. So, virtually it was held that price prevailing on the date of allotment can be charged. Decision given by the Hon'ble High Court of Punjab and Haryana at Chandigarh directly pertains to the matters with respect to the allotment in CWP No.25137 of 2014 of alternative plots to the allottees, whose plots became part of City Centre developed by OP no.1. So, this decision of Hon'ble High Court of Punjab and Haryana directly pertains to the case in hand." The submission of counsel for the complainant before us is that some other persons have been allotted plots in City Centre Shopping Complex, whereas complainant has been singled out. We find no force in it because if a wrong has been committed, it cannot be allowed to perpetuated for all the time to come. The Division Bench of our own High Court has First Appeal No.388 of 2017 12 also held in "Chandigarh Vayu Barti Coop House Building Society Vs. Union of India" 1997(2) PLR-244 that there cannot be any estoppel of any nature against the State in framing, changing, withdrawing and modifying its policies according to the need of the time. The members or the societies cannot claim a mandamus to State to allot plots instead of flats and give them equal treatment nor the policy can be termed to be violative of Article 14 of the Constitution. Consequently, we are in agreement with the finding of the District Forum that complainant has not become allottee of original plot no.666-G on the basis of mere draw of lots result. The finding of the District Forum on this point is infallible and is affirmed in this appeal.
9. The next bone of contention in this case is as to whether OPs are justified in charging price at the prevailing rate of allotment of alternate plot no.410-D from complainant or OPs are bound to charge the price @Rs.1455/- per square yard, the original price when complainant became successful in the draw of lots on 10.09.1999 in 475 acres scheme qua plot no.666-G. Counsel for complainant relied upon many authorities on this point before us to the effect that charging excess price by OP is arbitrary. He referred to law laid down in "Avtar Krishan Sood Vs. State of Haryana and other" 1988 PLJ-503 by our own High Court that allotment letters withheld on the ground that litigation was going on about the plots. Subsequently Government offering alternate plots to the petitioner at the price then prevailing. The Government was directed to allot the First Appeal No.388 of 2017 13 plots to the petitioners in same Sector and on the same terms and price and reference was also made to law laid down by National Commission in "Haryana Urban Development Authority and another Vs. Satish Chander Sharma" 2010(2)CPJ(NC)-319 that development authority offering alternate plot due to impracticability of delivery of the original plot should give the alternate plot at the original price and not a higher price.
10. We find that mere draw of lots would not confer the right of allotment on complainant qua plot no.666-G. The name of complainant as successful qua plot no.666-G in the original scheme would not confer any right of allotment on the complainant as held by the Apex Court in "Greater Mohali Area Development Authority & another Vs. Manju Jain & others" (Supra). The complainant has not become the allottee qua plot no.666-G in the original scheme, whereunder he became successful in the draw of lots. The OPs allotted the alternate plot in Shaheed Bhagar Singh Nagar to complainant bearing no.410-D, but complainant failed to comply with the terms and conditions of letter no.44498 dated 12.11.2014 of Punjab Government and complainant insisted that the price prevailing when she applied for the draw of lots qua plot no.666-G in the original scheme be charged from him. Law is settled on this point that pricing is a factor, which is beyond the domain of Consumer Forum. There is no estoppel against the State as held by our own High Court Divisional Bench in "Chandigarh Vayu Barti Coop House Building Society Vs. Union of India" (Supra). The question First Appeal No.388 of 2017 14 of fixing of price is beyond the jurisdiction of Consumer Forum. On this point, we are supported by law laid down by the larger bench of the National Commission in "Gurinder Bedi Vs. Delhi Development Authority" 1993(3)CPJ-404. The larger bench of National Commission has held in this authority that matter regarding price is not cover under Consumer Forum jurisdiction as it does not constitute any deficiency in service. The Apex Court has also held in "Delhi Development Authority Vs. Ashok Kumar Behal and others" 2002(7)SCC-135 that price fixation- the matter of pricing of plots and flats by the housing agencies cannot be a subject of judicial review- the only ground to challenge and interference may be the enhancement being totally without any basis and failure to produce the relevant material on which the enhancement can be justified. The larger bench of National Commission has also held in "M.P. Housing Board and others Vs. Prahlad Kumar Jodhani and others" 1999(3) CPJ-37 that demand increase in price of plot allotted to complainant. The question of pricing cannot be raised before Consumer Forum. The parties may agitate the question of price and measurement of plot only before a Civil Court and not before Consumer Forum. This is the view of larger bench of National Commission on this point (supra). The counsel for complainant mainly relied upon judgment delivered in writ petitions by the Hon'ble High Court. Since, larger bench of the National Commission has held that pricing factor cannot be agitated before Consumer Forum and it can be agitated before Civil Court and as such complainant cannot First Appeal No.388 of 2017 15 derive any benefit of those authorities, which are distinguishable because pricing factor is not within the competence of Consumer Forum under law. Even otherwise, no allotment letter was issued to complainant qua plot no.666-G and no agreement of sale was executed between the parties, no possession of plot was given to complainant of that plot and hence OPs are not bound by the same as there is no estoppel against the State, as scheme can be varied and subsequently alternate plot can be allotted. Consequently, OPs are justified in demanding the price prevailing at the time of allotment of alternate plot no.410 D from complainant. We do not find any illegality in the finding of the District Forum on this point. The findings of District Forum are affirmed in this appeal by us.
11. As a corollary of our above discussion, we find no merit in the appeal and the same is hereby dismissed.
12. Arguments in this appeal were heard on 04.12.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER December 06, 2017 MM