Chandigarh

StateCommission

A/176/2022

FAZILKA IMPROVMENT TRUST & ANR - Complainant(s)

Versus

ANSHUL MONGA - Opp.Party(s)

SHUBHAM BHALLA AND YAJUR BHALLA AND VARUN PURI ADVOCATES

20 Mar 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	176 of 2022
Date of Institution	:	21.12.2022
Date of Decision	:	20.03.2023

 

 

 

 

 

1]       Fazilka Improvement Trust, through its Chairman-cum-Deputy Commissioner, Opposite Civil Hospital, Fazilka, Punjab.

2]       Fazilka Improvement Trust, through its Executive Officer, Fazilka.

…..Appellants/Opposite Parties No.2 & 3.

VERSUS

1]      Anshul Monga S/o Sh. Subhash Chander Monga R/o H.No.285, Sector 46-A, Chandigarh.

…..Respondent/Complainant.

2]       Government of Punjab through its Principal Secretary, Department of Local Bodies, Punjab Municipal Bhawan, Sector 35C, Chandigarh.

…..Respondent/Opposite Party No.1.

 

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                  MR. RAJESH K. ARYA, MEMBER

 

Argued By:-      

Sh. Varun Puri, Advocate alongwith Sh. Gurkamal S. Kandhola, Advocate for the appellants.

Sh. Parveen Gupta, Advocate for respondent No.1.

Respondent No.2 exparte vide order dated 27.01.2023.

PER  JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                    This appeal has been filed by the opposite parties No.2 & 3 (appellants herein) against order dated 30.08.2022 passed by District Consumer Disputes Redressal Commission-I, U.T., Chandigarh [in short ‘District Commission’], whereby consumer complaint No.1091 of 2019 has been partly allowed against following manner:-

“14.    In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OPs are directed as under :-

1. to refund the amount of ₹9,21,476/- to the complainant alongwith interest @9% per annum from the date of filing of this consumer complaint i.e. 29.11.2019 till realization.
2. to pay an amount of ₹1,00,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay ₹30,000/- to the complainant as costs of litigation.

15.    This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.”

2]                The main grouse of the appellants/opposite parties No.2 & 3 Fazilka Improvement Trust (in short ‘Trust’) is regarding the territorial jurisdiction of this Commission at Chandigarh. Undisputedly, a corner residential plot No.31(P) was allotted by the appellants vide letter dated 1.6.2015, under Seth Munshi Ram Aggarwal 16.38 acre development scheme of Improvement Trust, Fazilka (in short ‘Trust’) and respondent No.1/complainant deposited total sum of Rs.9,21,476/- for the same on different dates, details whereof have been given in the consumer complaint.

3]                It is the case of the complainant that no development took place at the site and therefore, he requested the opposite parties to refund the amount. However, despite various requests and service of legal notice to the opposite parties, they failed to refund the amount and hence, a complaint was filed before the Ld. District Commission.

4]                Opposite Parties No.1 & 2, in their joint reply filed before the Ld. District Commission, stated that the complaint is not maintainable in the present Forum; that allegations made in the complaint are false, vague, frivolous and vexatious and that the complainant has not come to the Court with clean hands. However, it was specifically stated in Para 4 of the preliminary submissions that plot in question is situated in Fazilka and therefore, the complainant has wrongfully filed the complaint in the wrong jurisdiction before the District Commission at Chandigarh. However, while contesting the complaint on merits, the Trust admitted that the complainant had applied for allotment of a plot, which was duly allotted to him on 01.05.2015. They also did not deny the payment of Rs.9,21,476/- by the complainant. However, they have denied, if there is no development at the spot.

5]                We have heard the Ld. Counsel for the parties and have gone through the material available on record.

6]                On behalf of the appellants, following two arguments have been raised:-

1. That the Ld. District Commission does not have the territorial jurisdiction and therefore, the complaint should be returned on this ground.

 

2. That there was development at the spot and, therefore, the complainant is not entitled for refund.

 

7]                We have given our thoughtful consideration to the rival contentions of the parties and carefully gone through the material available on record.

8]                So far as the objection regarding territorial jurisdiction is concerned, it may be stated here that the complaint has been filed against Government of Punjab, Department of Local Bodies having its office at Chandigarh. Besides this, a specific relief has been claimed jointly against the Government of Punjab, Department of Local Bodies & Fazilka Improvement Trust and the complaint has been allowed against all the opposite parties i.e. Improvement Trust (appellants herein) and Government of Punjab, Department of Local Bodies.

                   The Government of Punjab has administrative and financial control over the functions of the Trust under Chapter VII-A² of the Punjab Town Improvement Act, 1922 (in short the Act of 1922) and the State Government has been vested with the power to audit the records of the Trust under Section 72-A of the Act of 1922. Section 72-A - ‘Liability of trustees for surcharge’, being relevant, reads thus:-

          “72-A. Liability of trustees for surcharge. - (1) Every person shall be liable for the loss, waste or misapplication of any money or other property belonging to a trust, if such loss, waste or misapplication is reported by the Examiner of Local Fund Accounts, or other audit authority empowered by the State Government in this behalf to be a direct consequence of his neglect or misconduct in the performance of his duties while a trustee; and he may after being given an opportunity by notice served in the manner provided for the service of summonses in the Civil Procedure Code, to show cause by written or oral representation why he should not be required to make good the loss, be surcharged with the value of such property or the amount of such money by the Deputy Commissioner, and if the amount is not paid within fourteen days from the expiry of the period of appeal prescribed by sub-section (2), the Collector at the request of the Deputy Commissioner shall proceed forthwith to recover the amount as if it were an arrear of land revenue, and have it credited to the trust fund.

          (2) The persons against whom an order under sub-section (1) is made may, within thirty days of the notification of such order, appeal to the State Government who shall appoint an officer to hear the appeal; and the appellate authority shall have the power of confirming, modifying or disallowing the surcharge : Provided that no person shall be called upon to show cause under this section 38 The Punjab Town Improvement Act, 1922, Section 69-A 1. Inserted by Punjab Act 4 of 1976. 2. Chapter VII-A added by Punjab Act 7 of 1974. after the expiry of a period of four years from the occurrence of such loss, waste or misapplication or after the expiry of one year from the time of his ceasing to be a trustee, whichever period expires later : Provided further that nothing in this section shall be deemed to debar the aggrieved party from seeking a remedy in a civil court against an order made under sub-section (1).

          (3) Nothing in this section shall apply to a Government employee appointed as a trustee.”

9]                Further under Section 72-B of the Act of 1922, the State Government has been vested with the powers to suspend any resolution or order of trust and the Deputy Commissioner has a control over the functions of the State Government. Section 72-B is reproduced hereunder:-

“72-B. Power to suspend any resolution or order of trust. - The Deputy Commissioner may, by order in writing, suspend the execution of any resolution or order of a trust or prohibit the doing of any act which is about to be done, or is being done in pursuance of or under cover of this Act, or in pursuance of any sanction or permission granted by the trust in the exercise of its powers under the Act, if, in his opinion, the resolution, order or act is in excess of the powers conferred by law or contrary to the interests of the public or likely to cause waste or damage of trust funds or property, or the execution of the resolution or order, or the doing of the act, is likely to lead to a breach of the peace, to encourage lawlessness or to cause injury or annoyance to the public or to any class or body of persons.”

10]              Apart from it, under Section 72-C of the Act of 1922, the State Government has the power to provide for performance of duties in case of default of trust and in case, Deputy Commissioner, after due inquiry, is satisfied that a trust has made default in performing any duty imposed upon it by the Act, he may fix a period for the performance of that duty or may appoint some person to perform it. The provisions of Section 72-C reads thus:-

          “72-C. Power to provide for performance of duties in case of default of trust. - (1) When the Deputy Commissioner, after due inquiry, is satisfied that a trust has made default in performing any duty imposed upon it by this Act, or by any order or rule under this Act, he may, by order in writing, fix a period for the performance of that duty; and, should it not be performed within the period so fixed, he may appoint some person to perform it, and may direct that the expense thereof shall be paid by the trust within such time as he may fix.

          (2) Should the expense be not so paid, the Deputy Commissioner may make an order directing the person having the custody of the balance of the trust fund to pay the expense, or so much thereof as may from time to time be possible, from that balance in priority to all other charges against the same.”

11]    Further Sections 72-D and 72-E deals with ‘Action of Deputy Commissioner to be immediately reported’ and ‘Power of State Government and its officers over trusts’. Under the provisions of these Sections, when the Deputy Commissioner makes any order under section 72-B or section 72-C, he shall forthwith forward to the State Government a copy thereof, with a statement of reasons for making it, and with such explanation, if any, as the trust may wish to offer and the State Government may thereupon confirm, modify or rescind the order. Further, the Deputy Commissioners acting under the orders of the State Government are bound to require that the proceedings of trusts are in conformity with law.  

12]              Not only above, under Section 72-EA, the State Government has to inspect or examine any office of a trust or any service or work undertaken by the trust or by any of its authorities or any property belonging to the trust and to report.

13]              Further, under the provisions of Section 72-EB, the State Government has the power to issue directions where if it is of the opinion that (a) any duty imposed on the trust or any trust authority by or under this Act has not been performed or has been performed in an imperfect, insufficient or unsuitable manner; or (b) that adequate financial provision has not been made for the performance of any such duty. The State Government, in such a case, may direct the trust or the trust authority to make arrangements to its satisfaction for the proper performance of the duty or as the case may be, to make financial provision to its satisfaction for the performance of the duty within period specified by State Government.

14]              Further Section 72-EC empowers the State Government for enforcement of direction under section 72- EB, by making arrangements for taking of the action and may also direct that all expenses connected therewith shall be defrayed out of the trust funds.

15]              Further, the provisions of Section 72-F of the Act of 1922 empowers the State Government for suspension and supersession of trusts, if it opined that a trust is not competent to perform, or persistently makes default in the performance of the duties imposed on it.

16]              Bare perusal of aforesaid provisions of the Act of 1922 makes it abundantly clear that the Improvement Trust is directly under the control of the Government of Punjab. Thus, respondent No.2 is a necessary party and no efficacious relief can be granted in its absence. In these circumstances of the case, we are of the view that the Ld. District Commission has the territorial jurisdiction to entertain and decide the complaint. Therefore, this objection stands overruled.

17]              Now coming to the contention that there was development of the project at the spot and, therefore, the complainant is not entitled for refund, it may be stated here that the complainant has placed on record of Ld. District Commission, the photographs, Annexure C-7, which transpire that there is no development and it is only a barren land.

18]              The appellants - Fazilka Improvement Trust has launched a project i.e.     Seth Munshi Ram Aggarwal 16.38 acre development scheme. The Trust is a builder and Section 14(1) of CHAPTER II, under the heading “Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties”, of the Punjab Apartment and Property Regulation Act, 1995 (in short PAPRA 1995) says that the project proponent is duty bound to obtain occupation and completion certificates from the competent authority before offering possession of a unit/plot.  Further, Section 3 (2) (j) of the said Chapter of PAPRA 1995 provides that no person shall be allowed to enter into possession until an occupation certificate required is duly given by the appropriate authority and no person shall take possession of a unit until such occupation certificates are obtained.

19]              However, neither occupation nor completion certificate is available on record. Thus, it is very much clear that         Seth Munshi Ram Aggarwal 16.38 acre development scheme has not been developed, therefore, the complainant is entitled to get refund of the amount deposited by him.

20]              We are of the considered view that the impugned order does not suffer from any illegality or material irregularity, rather, the same is based upon proper appreciation of material available on record and the same does not require any interference of this Commission. The same is upheld.

21]              Resultantly, this appeal is devoid of merit and the same is dismissed with special cost of Rs.20,000/-, which shall be paid by the appellants to respondent No.1/complainant.

22]              Certified copies of this order be sent to the parties free of charge.

23]              File be consigned to Record Room after completion.

Pronounced

20.03.2023.

(RAJ SHEKHAR ATTRI)

PRESIDENT

 

 

(RAJESH K. ARYA)

MEMBER

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