State Consumer Disputes Redressal Commission
Improvement Trust, Moga vs Mukesh Bansal on 5 December, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.634 of 2011.
Date of Institution: 13.04.2011.
Date of Decision: 05.12.2013.
Improvement Trust, Moga, G.T.Road, Moga through Sh. Yogesh Goyal,
its Chairman.
.....Appellant.
Versus
1. Mukesh Bansal;
2. Pardeep Bansal;
Both sons of Sh. Pawan Kumar Bansal, R/o Bansal House,
Street No.3, Jawahar Nagar, Moga, Tehsil and District Moga.
...Respondents.
First Appeal against the order dated
15.03.2011 passed by the District
Consumer Disputes Redressal Forum,
Moga.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. D.P. Gupta, Advocate, counsel for the appellant.
Sh. Rajinder Singh, Advocate, counsel for the respondents.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
This order will dispose of the two (2) appeals i.e. F.A. No.634 of 2011 (Improvement Trust, Moga Vs Mukesh Bansal & Anr.) and F.A. No.635 of 2011 (Improvement Trust, Moga Vs Gurbax Singh) as the question of law and facts involved in both the appeals are similar and both the appeals are directed against the two similar orders First Appeal No.634 of 2011 2 dated 15.03.2011 passed by the learned District Consumer Disputes Redressal Forum, Moga (in short "the District Forum"). Facts are taken from F.A. No.634 of 2011 and the parties would be referred by their status in this appeal.
2. Facts in brief are that Sh. Mukesh Bansal and Sh. Pardeep Bansal, respondents/complainants (hereinafter called as "the respondents") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant, pleading that they purchased a plot No.24 from the appellant in open auction on 16.08.1999 for Rs.6.39 lacs and the same was approved vide resolution No.180 dated 19.09.1996 of the appellant. The respondents paid the full amount of the said plot. At the time of auction, the original site plan was sanctioned for 'Truck Stand' scheme i.e. the land will be used for the site initially reserved for truck drivers' retiring room, office, booking office, etc. Thereafter, the appellant changed the said site illegally and without the consent of the respondents as well as other allottees and it was changed for common and commercial use i.e. SCO and SCFs, Hotel/Restaurant and for regional office of Punjab Scholl Education Board, Chandigarh. The price of the plot has become zero due to the illegal act of the appellant and it is the fraud played by the appellant with the respondents and other allottees. Due to changing the nature of the site in question, the respondents could not construct the plot in question for which purpose they purchased it.
3. The appellant, instead of compensating the respondents, is demanding penalty/fee from the respondents for non-construction by sending a notice dated 10.12.2010 just to save its skin and to cover its illegal act. After receiving the said notice, the respondents approached the appellant, but no one listened, rather, they were threatened that in First Appeal No.634 of 2011 3 case the penalty/fee for non-construction is not paid, the appellant will take over the flat. The appellant is deficient in service and has caused lot of mental tension and harassment.
4. It was prayed that the appellant may be directed not to effect any recovery as alleged in the notice dated 10.12.2010 and to pay compensation of Rs.50,000/- and the respondents may be allowed to raise construction over the plot in question as per their requirements.
5. In the written version filed on behalf of the appellant, preliminary objections were raised that the complaint is not maintainable as there is no deficiency in service. The respondents have tried to take the benefit of their own wrongs and omissions. The plot in question was allotted to the respondents for commercial use. The appellant is levying the non-construction fee and in order to escape the liability, the respondents have filed the present complaint.
6. On merits, it was admitted that the respondents purchased the plot No.24 and paid Rs.6.39 lacs on 16.08.1996. It was also admitted that the respondents have made the full payment of the sale consideration. It was further submitted that at the time of auction, the respondents signed the conditions dated 16.08.1996 and as per that, the respondents were to raise the construction over the plot in dispute within a period of three years from the date of allotment. Vide letters dated 15.12.2005, 12.04.2006, 24.05.2007, 11.10.2007, 02.02.2009 and 10.12.2010, the respondents were requested to raise the required construction. The respondents were to deposit the requisite fee to get the site plan sanctioned/approved and thereafter, they could raise construction, but till date the site plan has not been got approved. The allottees of plots No.15, 32, 33 and 35 have got the site plans sanctioned and they have raised the construction. It was admitted that First Appeal No.634 of 2011 4 the scheme for 'Truck Stand' and the plot in question is part of scheme no.3 of Improvement Trust, Moga, known as 'Truck Stand' and thereafter, named as 'Lal Bahadur Shastri Complex'. Original use of the scheme has not been changed.
7. The site allotted to the 'Truck Union' was resumed by the appellant as the 'Truck Union', Moga did not deposit the requisite money within time. Vide notification dated 28.09.1998, the Govt. of Punjab allowed the appellant to reserve the said plots for Administrative Complex and the basic function of the appellant was to develop public beneficial schemes. It was not in the interest of general public to allow the property to be wasted in the hands of 'Truck Union'. Scheme No.3 is fully developed and on 27.01.2011, the appellant auctioned plots no.26, 27, 28 and 29 and said plots fetched the price of more than Rs.30.00 lacs and the plot allotted to the respondents was for Rs.6.39 lacs. The respondents cannot say that the scheme has failed or the value of the plot has become zero. The demand has been rightly raised. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
8. Parties led evidence in support of their respective contentions by way of affidavits and documents.
9. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the appellant has not produced any documents which contain any condition of payment of non-construction charges. The terms and conditions Ex.R-2 produced on the file simply contain the condition of raising construction within three years only, but it is nowhere provided to charge non-construction charges from the allottee. In the Utilization of Land and Allotment of Plots by First Appeal No.634 of 2011 5 Improvement Trust Rules, 1975 and Improvement Trust Land Disposal Rules, 1964, there is no condition of taking non-construction charges from the allottee. The appellant cannot claim non-construction charges. The complaint was allowed and the respondents were given liberty to construct the plot without paying the non-construction charges raised by the appellant vide letter dated 10.12.2010, but after approving of the site plan from the competent authority.
10. Aggrieved by the impugned order dated 15.03.2011, the appellant has come up in appeal.
11. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
12. The appeal was filed on the grounds that the District Forum has failed to appreciate that the plot in question was purchased in open auction and the respondents are not consumers. It was specifically provided that the time for residential construction could be got extended after three years, after depositing the requisite fee. Non-construction charges are not different than what is meant by the fee for extension of time for raising construction. The District Forum has erred in holding that under the relevant rules, there is no stipulation for taking said charges. Under these instructions and rules, the Govt. has issued instructions from time to time for charging of the said amount. The charges were demanded on the basis of instructions issued by the Govt. and the District forum has failed to appreciate the same. The order passed by the District Forum defeats the conditions of allotment and auction and the same is liable to be set aside.
13. Learned counsel for the appellant has contended that the appellant is well within its right to claim non-construction charges as First Appeal No.634 of 2011 6 Condition No.7 of Ex.R-2 provides that the allottee has to raise the construction within three years and said period of three years can be extended after depositing the specific fee. It has been argued that the order under appeal is illegal and the same may be set aside.
14. On the other hand, the counsel for the respondents has contended that the impugned order passed by the District Forum is legal and valid and there is no ground to interfere with the same. Earlier also, in a similar case, this Commission dismissed the appeal of the Improvement Trust, Moga and the Hon'ble National Commission upheld the order passed by this Commission in the Revision filed against that order. It was contended that the appeal may be dismissed.
15. We have considered the respective submissions advanced on behalf of the parties and have thoroughly scanned the entire record and other material placed on the file.
16. The main plank of the arguments of the counsel for the appellant is Condition No.7 of Ex.R-2 which are the conditions of auction. Condition No.7 provides that the purchaser of the plot has to raise construction after getting the building plan approved, within three years and in case, the construction is not completed within three years, then the period can be extended after deposit of specific fee.
17. The above condition provides for raising construction after getting the building plan approved from the appellant, within three years and the said period can be extended on deposit of specific fee. Neither this condition provides levying of any non-construction charges, nor under any of the conditions of the auction, the non-construction fee can be levied. Earlier, the appellant i.e. the Improvement Trust, Moga through its Chairman filed appeals i.e. Improvement Trust Moga & Anr. Vs Narinder Nath", 'Improvement Trust Moga & Anr. Vs First Appeal No.634 of 2011 7 Ravinder Nath' and "Improvement Trust Moga & Anr. Vs Inder Mohan", F.A. No.764 of 2012; F.A. No.765 of 2012 and F.A. No.766 of 2012 respectively, and the same were decided by this Commission on 22.03.2013 and the order of the District Forum was upheld. In Para No.21, it was observed as follows:-
"21. We have also perused proceedings of the appellants Ex.R12 and as per Resolution No.18, it was decided that non- construction fee for Scheme No.3 "Truck Stand" may be charged from January, 2006 after obtaining the sanction/approval from the Government. But the appellants have not produced any approval of the Government regarding the charging of non-construction fee from the allottees of Scheme No.3 "Trust Stand" and also not produced the rates regarding changing of non-construction fee from the allottee of Scheme No.3 (Truck Stand)."
18. In view of above discussion and the fact that the appellant has failed to bring on record any order of the Govt. of Punjab for charging of non-construction fee from the allottee of Scheme No.3 "Trust Stand", in such circumstances, there is no ground to interfere with the order under appeal.
19. Accordingly, the appeal filed by the appellant is dismissed and the impugned order under appeal dated 15.03.2011 passed by the District Forum is affirmed and upheld. No order as to costs. First Appeal No.635 of 2011:-
20. Similarly in F.A. No.635 of 2011 (Improvement Trust, Moga Vs Gurbax Singh), the respondent purchased a plot No.25 from the appellant in open auction on 16.08.1999 for Rs.6,71,000/- and the same was approved vide resolution No.180 dated 19.09.1996 of the First Appeal No.634 of 2011 8 appellant. The respondents paid the full amount of the said plot. At the time of auction, the original site plan was sanctioned for truck stand scheme i.e. the land will be used for the site initially reserved for truck drivers' retiring room, office, booking office, etc. Thereafter, the appellant changed the said site illegally and without the consent of the respondent and other allottees and it was changed for common and commercial use i.e. SCO and SCFs, Hotel/Restaurant and for regional office of Punjab Scholl Education Board, Chandigarh. The price of the plot has become zero due to the illegal act of the appellant and due to changing the nature of the site in question, the respondent could not construct the plot in question for which purpose they purchased it. The appellant, instead of compensating the respondent, is demanding penalty/fee from the respondent for non-construction by sending a notice dated 10.12.2010 just to save its skin and to cover its illegal act. After receiving the said notice, the respondent approached the appellant, but no one listened, rather he was threatened that in case the penalty/fee for non-construction will not be paid, the appellant will take over the flat. It was prayed that the appellant may be directed not to effect any recovery as alleged in the notice dated 10.12.2010 and to pay compensation of Rs.50,000/- and the respondent may be allowed to raise construction over the plot in question as per his requirements.
21. The appellant contested the complaint by filing similar written version as given in F.A. No.634 of 2011.
22. The District Forum on its similar findings as given in F.A. No.634 of 2011, allowed the complaint and the respondent was given liberty to construct the plot without paying the non-construction charges raised by the appellant vide letter dated 10.12.2010, but after approving the site plan from the competent authority.
First Appeal No.634 of 2011 9
23. In view of the reasons and discussion held in F.A. No.634 of 2011 (Improvement Trust, Moga Vs Mukesh Bansal & Anr.), the F.A. No.635 of 2011 (Improvement Trust, Moga Vs Gurbax Singh) is dismissed and the impugned order under appeal dated 15.03.2011 is affirmed and upheld. No order as to costs.
24. The arguments in both these appeals were heard on 28.11.2013 and the orders were reserved. Now the orders be communicated to the parties.
25. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases.
26. Copy of the order be placed in F.A. No.635 of 2011 (Improvement Trust, Moga Vs Gurbax Singh).
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member December 05, 2013.
(Gurmeet S)