State Consumer Disputes Redressal Commission
Parveen Kumar 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.377 of 2017
Date of Institution : 22.05.2017
Order Reserved on: 04.12.2017
Date of Decision : 06.12.2017
Parveen Kumar S/o Shri Dhari Lal, resident of 838/1, Durgapuri,
Haibowal Kalan, Ludhiana, through his General Power of Attorney
Jaspal Singh S/o Amarjit Singh, resident of Opposite Old DMC
Hospital, Civil Lines, Ludhiana.
.....Appellant/complainant
Versus
1. Ludhiana Improvement Trust, Ludhiana through its Chairman.
2. The Executive Officer of the Ludhiana Improvement Trust,
Ludhiana.
.....Respondent/opposite party
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 : Sh. K.K. Goel, 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 the complaint of the appellant. 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.377 of 2017 2
2. Short facts of the complaint are that complainant filed complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the 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. The complainant applied for a residential plot of 125 square yards by depositing the requisite amount of Rs.950/-, vide receipt No.48919 dated 30.11.1982, bearing registration No.1236. After expiry of more than 16 years, OPs held draw in its office on 10.9.1999 and complainant was successful therein. He was allotted plot No.644-G, measuring 125 sq. yards in the above scheme. He requested OPs to get the sale price of said plot deposited by completing other formalities, so that he might raise the construction, after getting the building plan approved. OPs orally informed the complainant that plot No.644-G measuring 125 sq. yards has fallen in the area of new proposed scheme of city centre shopping complex, due to which, sale price amount could not be got deposited from him. The above plot was allotted to him for residential purpose and OPs were not competent to convert land use of above plot for any other purpose after its allotment to him. Vide resolution No.130 dated 23.9.1999, OPs illegally and arbitrarily revised its layout plan for constructing city centre shopping complex on the land consisting of his above plot. Thereafter, OPs assured him to allot other alternative plot of same size in some other developed scheme, but OPs failed to allot the alternative plot of similar size to him. The First Appeal No.377 of 2017 3 complainant had filed a complaint, titled as Parveen Kumar vs. Ludhiana Improvement Trust, before District Forum Ludhiana for seeking directions to OPs to allot an alternative plot to him. Statements of parties were recorded on 30.04.2012, vide which, OPs assured for allotment of alternative plot to the complainant and other persons. Thereafter, an alternative plot No.144-D measuring 125 Sq.yards in 475 acres development scheme of Ludhiana Improvement Trust was allotted to him in lieu of the earlier plot No.644-G. It was further averred that after allotment of the alternative plot No.144-D in draw, the OPs failed to issue regular allotment letter to him for more than two years. Memo No.LIT/SB/2549 dated 21.05.2015 was issued by the OPs for calling upon him to deposit the amount of Rs.19,50,000/- (@ Rs.15,600/- per sq.yard) as sale price of alternate allotted plot. The OPs also demanded Rs.1,17,000/- as 6% cess charges. Complainant was further directed to deposit Rs.4,87,500/-, being 1/4 of the sale price along with above referred 6% cess charges plus Rs.500/- as security and Rs.100/- as sale agreement fee, Rs.50/- as site flat fee, totaling Rs.6,05,150/- within 30 days. The above demands were illegal, because complainant never refused to fulfill the terms and conditions of the allotment of original plot No.644-G. Even the complainant never refused to deposit the sale price of that original allotted plot No.644-G. Rather, OPs failed to issue the regular allotment letter to the complainant due to change in their scheme. Alternative plot is to be allotted on old rates, as per settled legal position. Original settled First Appeal No.377 of 2017 4 price was Rs.1455/- per square yard and as such, the complainant cannot be penalized for the wrong and illegal acts committed by the OPs. The demand of charging sale price @ Rs.15,600/- per square yard along with cess charges @6% is alleged to be illegal. It was further averred that OPs had charged Rs.1,81,875/- as sale price of plot No.716-G, measuring 125 square yard, @ Rs.1455/- per square yard by issuing allotment letter/memo No.LIT/SB/1540 dated 15.02.2000 and sale price @ Rs.1455/- per square yard alone was charged with respect to plot No.717-G. Statutory authorities are bound to deal with the cases of allottees on priority basis, but OPs failed to perform their duties, as such by not allotting the plot at the earliest or executing the sale deed and thereafter, demanded enhanced charges @ Rs.15,600/- per square yard. The complainant alleged deficiency in service on the part of OPs. The complainant prayed that OPs be directed to issue fresh allotment letter to him with respect to alternative plot No.144-D measuring 125 square yard in 475 Acres scheme @ Rs.1455/- per square yard instead of Rs.15,600/- per square yard and further not to charge 6% cess from him on the amount of sale price. The complainant further prayed for refund of amount of Rs.4,23,275/- (i.e. Rs.6,05,150/- minus Rs.1,81,875/-), because it is claimed that this amount was received in excess by OPs by issue of allotment letter dated 21.05.2015. The complainant further prayed that OPs be directed to pay interest @18% per annum on the excess charged amount of Rs.4,23,275/- First Appeal No.377 of 2017 5 and compensation Rs.1,00,000/- for mental harassment and Rs.11,000/- as litigation expenses to him.
3. Upon notice, OPs appeared and filed joint written reply by averring that no allotment letter was issued to the successful applicants in the draw held on 10.09.1999, because those plots came in the City Centre Scheme subsequently. The mere success in the allotment of the plots or act of filing of application for allotment of the plot does not create any vested right in favour of the concerned, unless and until the allotment letter is issued and sequentially 25% of the amount of total sale price is deposited. Complainant only deposited the earnest money along with application for allotment of plot. The Authority or Government can withdraw the allotment at any time and even can make changes or alternations in the scheme. Allotment letter bearing memo no.2549 dated 21.05.2015 was sent to the complainant and thereafter, as per instructions received from the Government, vide letter dated 12.11.2014, the complainant was required to comply with the same. Cases of persons in whose favour allotment letters were issued and who deposited the whole of the sale price stood on different footing from the case of the complainant, as he deposited only the earnest money. Hence, the terms and conditions of draw of lots, which was held on 10.09.1999 were not applicable in the case of complainant. After receipt of memo no.2549 dated 21.05.2015, the complainant deposited a sum of Rs.6,05,150/-, vide receipt No.102891 dated 08.06.2015 without any protest and as such, he accepted the terms and conditions of First Appeal No.377 of 2017 6 above memo. The complainant is estopped by his act and conduct from challenging the rate of plot. It was further averred that no wrong decision/order in favour of another confers benefit on the other like complainant. If a person is granted some benefit inadvertently or by mistake, then legal right is not conferred on the other to claim similar benefit, because there can be no estoppel against the statutory rules and regulations, particularly when the state has authority to frame, change, withdraw and modify the policy as per the need of the time by keeping in view the public demand or interest. Complicated question of facts and law are involved in this case, due to which, matter can be got adjudicated from Civil Court only. As per the policy of Government, new plots were to be allotted to those applicants, who earlier remained successful in the draw of lots with respect to plots measuring 125 sq. yards situated in Shaheed Bhagat Singh Nagar, Ludhiana. Draw of lots was held on 17.09.2012 and on 30.10.2012 and complainant was allotted plot No.144-D in Shaheed Bhagat Singh Nagar, Ludhiana scheme. Resolution No.59 dated 9.10.2013 passed by OPs was sent to the Government for approval, which was received vide memo No.44498 dated 12.11.2014 with certain conditions. Thereafter memo no.9587 dated 15.09.2014 was sent to the department of Local Government. The District Forum Ludhiana has no jurisdiction to decide the price of plots, because the same falls within the domain of State Government or the authorities concerned. The OPs controverted the other averments of the complainant and prayed for dismissal of the complaint. First Appeal No.377 of 2017 7
4. The complainant tendered in evidence affidavit of Sh.Jaspal Singh, General power of attorney of complainant Ex.CA along with copies of documents Ex.C-1 to Ex.C-13 and closed the evidence. As against it, OPs tendered in evidence affidavit Ex.R-A of Sh.Harinder Singh Chahal, Executive Officer of Improvement Trust, Ludhiana along with copies of documents Ex.R-1 to Ex.R-3 and closed the evidence. On conclusion of evidence and arguments, the District Forum dismissed the complaint of the complainant. 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. Parveen Kumar complainant applied for allotment of plot measuring 125 square yards by depositing the requisite amount of Rs.950/-, vide receipt No.48919 dated 30.11.1982, bearing registration No.1236. Draw of lots was held in the office of OP on 10.09.1999 and plot No.644-G, measuring 125 sq. yards was allotted to him in the above scheme @Rs.1455 per square yard. He requested OPs to allow him to deposit the sale price of said plot and to complete the other formalities, so that he could raise construction thereby getting the building plan sanctioned. 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 and allotted him alternative plot No.144-D measuring First Appeal No.377 of 2017 8 125 Sq. yards in 475 acre development scheme of Ludhiana Improvement Trust @ Rs.15,600/- per square yard in lieu of the earlier plot No.644-G. The OPs further demanded Rs.1,17,000/- as 6% cess charges and they directed complainant to deposit Rs.4,87,500/-, being 1/4 of the sale price along with above referred 6% cess charges plus Rs.500/- as security and Rs.100/- as sale agreement fee, Rs.50/- as site flat fee, totaling Rs.6,05,150/- within 30 days. The grievance of complainant is that only alternative plot no.144-D was allotted to him, instead of original plot no.644-G. The next grievance of complainant is that price of plot no.644-G as prevailing at the time of its draw of lots held by OP has to be charged by OPs in this case. The prayer of the complainant is that the old price of @Rs.1455/- per square yard be charged from him for alterative plot no.144-D in 475 acres scheme and OPs be directed not to charge 6% cess from him and to refund the amount of Rs.4,23,275/- received by OPs in excess.
6. The OP's case, as projected, is that complainant's plot had come in the City Centre Scheme later on, which was not residential area and the layout plan was changed and alternative plot no.144-D was allotted to complainant instead of plot no.644-G, which came in the City Shopping Scheme. It was also projected by OPs that even complainant was only successful in the draw of lots and no allotment letter for plot no.644-G was issued to him and hence he has not become its allottee in any way. The OPs are legally entitled First Appeal No.377 of 2017 9 to demand the prevailing price of alternate plot no.144-D from complainant.
7. Affidavit of Jaspal Singh is Ex.C-A on the record in support of the averments of complainant. Ex.C-1 is G.P.A. executed by Parveen Kumar complainant in favour of Jaspal Singh, who filed his affidavit on his behalf on the record. Ex.C-2 is the copy of receipt of Rs.950/- deposited by Parveen Kumar on 30.11.1982. Ex.C-3 is the letter to complainant dated 30.08.1999 informing that the plots will be allotted on the basis of draw of lots to be held on 10.09.1999. Ex.C-4 is the complaint filed by complainant before the District Forum Ludhiana. Ex.C-5 is the copy of letter dated 19.11.2014 from OPs to complainant to the effect that he was declared successful in the draw of lots of 125 square yards plots. Ex.C-6 is copy of letter dated 12.11.2014 addressed to Executive Officer of Improvement Trust with regard to instructions to be followed and affidavit of Jaspal Singh Attorney of complainant is Ex.C-7. Ex.C-8 is the copy of allotment letter allotting alternate plot no.144-D addressed to complainant on 21.05.2015. Ex.C-9 is representation of complainant to OPs regarding price claimed by OPs @Rs.15,600/- per square yard instead of price of Rs.1455/- per square yard for plot no.644-G. 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. Ex.R-1 is copy of letter dated 21.05.2015 for allotment of plot no.144-D to complainant.
First Appeal No.377 of 2017 10
8. From critical analysis of evidence on the record and hearing the respective submissions of counsel for the parties, we find that plot no.644-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 him 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 remained of no significance. In this view of law laid down by the Apex Court, mere draw of lots does not confer any right of allotment of plot no.644-G to complainant. So far as plot no.644-G is concerned, the complainant has not become an allottee of OPs by mere applying for allotment of plot and with the result of draw of lots only. The OPs has, thus, complete legal right to allot plot no.144-D to complainant on the basis of draw of lots. The District Forum has also elaborated this point in its order that "OPs are justified in allotting alternate plot no.144-D to complainant. The 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 and has specifically held that conditions regarding allotment of another 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 First Appeal No.377 of 2017 11 Hon'ble Division Bench of Punjab & Haryana. So, virtually it was held that price prevailing on the date of allotment, as per law laid down by High Court at Chandigarh 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 of CWP No.25137 of 2014 alternative plots to the allottees, whose plots became part of City Centre developed by OP1. 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. The Division Bench of our own High Court has 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 findings of the District Forum that complainant has not become allottee of original plot no.644-G on the basis of mere draw of lots result and as such OPs are justified in allotting alternate plot First Appeal No.377 of 2017 12 no.144-D to complainant. 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.144-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 10.08.1999 in 475 acre scheme qua plot no.644-G. Counsel for complainant relied upon the 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 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. The name of complainant as successful qua plot no.644-G in the original scheme would not confer any right First Appeal No.377 of 2017 13 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.644-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.144-D. The OPs demanded the prevailing price from the complainant, whereas complainant insisted that the price prevailing, when he applied for the draw of lots qua plot no.644-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 of fixing of price is beyond the pale of 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 covered under Consumer Forum jurisdiction, as it does not constitute 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 First Appeal No.377 of 2017 14 qua 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. 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 derive any benefit of those authorities, which are distinguishable because pricing factor is not within the competence of Consumer Forum, as held supra by the National Commission. The judgments by Hon'ble High Court were delivered in writ petitions and not in consumer disputes governed by Consumer Protection Act, 1986. Even otherwise, no allotment letter was issued to complainant qua plot no.644-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 to the applicant. Consequently, OPs are First Appeal No.377 of 2017 15 justified in demanding the price prevailing at the time of allotment of alternate plot no.144-D from complainant. We do not find any illegality or material infirmity in the findings of the District Forum on this point. The findings of District Forum are affirmed in this appeal by us.
11. As a result 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