State Consumer Disputes Redressal Commission
Sunita Sharma vs Ludhiana Improvement Trust on 31 January, 2013
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1293 of 2008.
Date of Institution: 12.11.2008.
Date of Decision: 31.01.2013.
Sunita Sharma D/o Sh. Dharam Pal Sharma, C/o Deptt. of Vety.
Pharmacology & Toxicology, College of Vety. Sciences, PAU, Ludhiana,
presently working in the office of Comptroller, Guru Angad Dev Veterinary &
Animal Sciences University, Ludhiana.
.....Appellant.
Versus
Ludhiana Improvement Trust, Feroze Gandhi Market, Ludhiana through its
Chairman.
...Respondent.
First Appeal against the order dated
29.09.2008 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Jasbir Singh Gill, Member.
...................................
Present:- None for the appellant.
Sh. B.S. Taunque, Advocate, counsel for the respondent.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
Ms Sunita Sharma, appellant/complainant (In short "the appellant") has filed this appeal against the order dated 29.09.2008 passed by the learned District Consumer Disputes Redressal Forum, Ludhiana (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondent/opposite party (hereafter called "the respondent"), pleading that she was re-allotted plot no.330-E in March, 1999 at Shaheed Bhagat First Appeal No.1293 of 2008 2 Singh Nagar, Ludhiana in lieu of her previous plot which was allotted to her in the year 1985, after a gap of more than 14 years. In the allotment letter, it was not mentioned that after a prescribed period for construction, the non- construction charges will be levied, nor any notice or information regarding the levying of the non-construction charges was ever served upon the appellant.
3. After the allotment of the plot in question, the possession was to be delivered to the appellant by the officials of the respondent and demarcation was also to be done and in this regard, the appellant wrote letters on 09.04.1999 and on 20.12.2001 and also made verbal requests, but instead of that, neither the possession was handed over nor the demarcation of the plot was made. The appellant was compelled to deposit the amount of Rs.1.20 lacs as non-construction charges before handing over of the possession and demarcation of the plot by the officials of the respondent. The appellant objected to the same, but no heed was paid. The respondents raised a demand of non-construction charges of Rs.1.20 lacs all of a sudden at the time of sanctioning of the building plan and under protest, the appellant deposited Rs.1.20 lacs on 03.03.2005 vide Pay Order No.818986 dated 28.04.2005 and a receipt was issued. Thereafter, on repeated requests and personal visits, the officials of the respondent demarcated the said plot on 14.10.2005 and handed over the possession of the same to the appellant and once the possession was handed over on 03.05.2005, how could the respondent charge the non-construction charges. The act of the respondent is illegal, arbitrary and amounts to unfair trade practice and there is deficiency in service on the part of the respondent. The appellant suffered a lot of mental tension and harassment.
4. It was prayed that the respondent may be directed to refund Rs.1.20 lacs charged as non-construction charges along with interest @ 24% p.a. p.a. and to pay Rs.50,000/- as compensation.
First Appeal No.1293 of 2008 3
5. In the written version filed on behalf of the respondent, preliminary objections were raised that the appellant is estopped by her own act and conduct to file the present complaint. The appellant herself deposited the non-construction charges and now she cannot claim the refund of the same. There is no deficiency in service on the part of the respondent. The demarcation was given to the allottee. When the sale deed is executed then it is presumed that the possession has already been delivered to the purchaser and all rights vest with the purchaser.
6. On merits, the allotment was admitted. As per conditions of the allotment letter, the allottee was to start the construction within three years. The alternative plot was allotted to the appellant on 31.03.1999. The amount of non-construction charges has been rightly received from the appellant. Other similar pleas were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
7. Parties led evidence in support of their respective contentions by way of affidavits and documents.
8. 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 was re-allotted the plot no.33-E in question in March, 1999, but she did not raise the construction as per the terms and conditions. She deposited Rs.1.20 lacs as non-construction charges at the time of sanction of the building plan on 28.04.2005. The appellant has failed to prove that the said charges were deposited under pressure or under protest. The appellant has failed to prove if there was any deficiency in service on the part of the respondent, and relegated the parties to the civil court, to get the matter decided by the court of competent jurisdiction.
9. Aggrieved by the impugned order dated 29.09.2008, the appellant has come up in appeal.
First Appeal No.1293 of 2008 4
10. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have perused the written arguments filed on behalf of the respondent.
11. Neither the counsel for the appellant nor anybody else on behalf of the appellant appeared at the time of arguments.
12. In the written arguments filed on behalf of the respondent, it was submitted that the respondent has pleaded that the District Forum has no jurisdiction to go into the correctness of the demand pertaining to the non- construction charges. The District Forum has rightly relied upon the authorities of the Hon'ble Supreme Court and the Hon'ble National Commission and the appeal being without any merit may be dismissed.
13. We have considered the written submissions submitted on behalf of the respondent and have minutely examined the entire record placed on the file.
14. The appellant was re-allotted plot no.330-E in March, 1999 at Shaheed Bhagat Singh Nagar, Ludhiana in lieu of her previous plot allotted in the year 1985. The original allotment letter Ex.R-1 has been produced on record. The respondent admitted in Para-2 of the reply that alternative plot was allotted to the appellant on 31.03.1999. The version of the respondent is that the non-construction charges of Rs.1.20 lacs have been charged as per the instructions of the Govt. and rightly and legally.
15. The respondent, except document Ex.R-1, has not placed on record any document regarding the re-allotment of the plot and the terms and conditions of the allotment letter. The appellant has placed on record the agreement for sale Ex.C-1 which is of the year 1985. The appellant wrote letter Ex.C-3 dated 09.04.1999 to the Chairman of the respondent, giving detail of the payments made and sought the intimation as to what was the remaining amount which she was to be deposit. She claimed that after 14 years even, the possession has not been given, whereas she has deposited every penny due towards her. She further stated that she will be constrained First Appeal No.1293 of 2008 5 to move the court if the possession of the plot is delayed further. She again wrote similar letter dated 20.12.2001 Ex.C-4. Another letter Ex.C-6 was written to the Chairman of the respondent regarding the demarcation of the plot in question and vide receipt Ex.C-5, the non-construction charges to the tune of Rs.1.20 lacs were got deposited on 03.05.2005. The Executive Officer of the respondent wrote to the appellant, a memo dated 09.09.2005, intimating that the non-construction fee has been got deposited under the Govt. instructions and now she can get the site plan approved and raise the construction.
16. From the above discussion, it is clear that till the year 2005, the demarcation was not given nor the site plan was approved, but the non- construction charges were levied. The respondent has not placed on file any document to show that the appellant was at fault or was directed to take possession of the plot but the appellant herself did not take the possession, whereas the appellant has been writing to the Chairman of the respondent to give the demarcation and the possession so that the construction could be raised. The respondent has not placed on file any document to show the detail as to how and under what rules, the non-construction charges were levied. The Hon'ble National Commission in Revision Petition No.2125 of 2006 "Narinder Singh Nanda Vs PUDA", decided on 27.05.2009, discussed in detail the provisions of the Punjab Regional and Town Planning Development (General) Rules, 1995, as well as the PUDA Act, including the judgment of the Hon'ble Supreme Court in case "HUDA Vs Sunita" (2005) 2 Supreme Court Cases-479 and held that when the statutory authorities go against the statue, then the Court/Forum has the jurisdiction and the extension fee, if any, can be demanded under rule 13 of 1995 rules. Hon'ble National Commission in the above revision petition, after detailed discussion of the cases including "HUDA Vs Sunita" (supra), observed at Page-9 (relevant portion) as follows:-
First Appeal No.1293 of 2008 6
"We do not find any substance in this submission. In Sunita's case (supra), HUDA was performing its statutory duties under the provisions of the Haryana Urban Development Authority Act. It cannot be doubted that if an Order is passed by the Statutory Authority acting under and in accordance with the provisions of the Act and the Rules framed thereunder, the Consumer Foras would not be entitled to interfere but if the Authority is acting contrary to the provisions of the Act or is acting beyond the scope of the Act, then, certainly that would be a deficiency in service. In the present case, HUDA was charging extension fee at enhanced rates which it could not do in view of the two judgments in Tehal Singh's and Sant Kaur Jabbi's cases (supra), meaning thereby that the PUDA was acting against the provisions of law as it was demanding extension fee under the instructions which had already been struck down by the High Court being ultra-vires the provisions of the Act".
17. From the above discussion, it is clear that neither the plot was demarcated nor the possession was delivered by the respondent to the appellant till 2005 and the construction could not be raised in the air by the appellant. Levying of non-construction fee was against the norms and the statutory provisions of the PUDA Act and the above rules and, as such, in such a situation, the Forum or this Commission has the jurisdiction to do the justice.
18. Accordingly, the appeal is accepted and the impugned order under appeal dated 29.09.2008 passed by the District Forum is set aside. Consequently, the complaint filed by the appellant/complainant is allowed and the demand of non-construction charges of Rs.1.20 lacs raised by the respondent is quashed and this amount shall be refunded to the appellant along with interest @ 7.5% p.a. from the date of deposit i.e. 03.05.2005 till realization, within 45 days of the receipt of copy of the order. However, if the appellant has not raised the construction within the stipulated period after First Appeal No.1293 of 2008 7 taking the possession, then the respondent shall be entitled to charge the non-construction charges under rule 13 of 1995 rules.
19. The arguments in this appeal were heard on 28.01.2013 and the order was reserved. Now the order be communicated to the parties.
20. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Jasbir Singh Gill) Member January 31, 2013.
(Gurmeet S)