Punjab

Ludhiana

CC/16/223

Ashutosh Gupta - Complainant(s)

Versus

Goyal Automotive Pvt.Ltd. - Opp.Party(s)

M.L.Arora adv.

26 Nov 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 223 dated 21.03.2017.                                                        Date of decision: 23.11.2021. 

Manjit Singh Bal aged about 80 years son of Shri Gurbachan Singh Bal, at present resident of 3385, Borodeaux Dr. El. Dorado ills, CA 95762 through Shri Hardip Singh Sandhu son of Shivdev Singh, resident of House No.141-B, Ranjit Avenue, Amritsar.                                                                                                                                                                                    ..…Complainant

                                                Versus

1. The Ludhiana Improvement Trust, Ludhiana through its Chairman

2. The Principal Secretary, Department of Local Bodies, Govt. of Punjab, Chandigarh.                                                                                                                                                                                …..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. K.K. KAREER, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Dharamveer Sharma, Advocate.

For OP1                         :         Sh. G.B.S. Naggar, Advocate.

For OP2                         :         Exparte.

ORDER

PER K.K. KAREER, PRESIDENT

1.                This complaint has been filed by the complainant through his attorney Sh. Hardip Singh Sandhu on the allegations that the complainant was allotted a plot No.705-I measuring 250 square yards under the scheme known as 550 Acre expansion scheme Opposite Milk Plant, Ferozepur Road, Ludhiana vide allotment No.7798 dated 14.09.1976. The possession was not delivered to the complainant. In the meanwhile, one Jaswinder Singh field a civil suit for specific performance against the complainant on 28.07.2007 impleading OP1 as party in the said suit which was dismissed by the court of Ms. Preeti Sukhija, the then Civil Judge (Junior Division), Ludhiana vide judgment and decree dated 14.08.2012. Jaswinder Singh filed an appeal against the judgment and decree dated 14.08.2012 which was dismissed by Sh. Harjit Singh, the then Addl. District Judge, Ludhiana on 28.11.2013. The Regular Second Appeal No.1489 of 2014 was filed by Jaswinder Singh before the Hon’ble Punjab and Haryana High Court and which was also dismissed on 19.08.2015. Jaswinder Singh has further filed a Special Leave Petition No.2951/2016 which was also dismissed by the Hon’ble Supreme Court of India on 08.02.2016.

2.                It is further alleged that after the conclusion of the legal battle with Jaswinder Singh, the complainant approached the OP Trust for execution of the agreement and sale deed in his favour. An agreement was also executed in the year 2006. However, the sale deed/transfer deed was not executed by the OP Trust. Instead a sum of rs.7,95,798/-  was demanded as non-construction charges. The complainant wrote a letter to OP2 on 21.09.2015agaisnt the demand of non-construction charges upon which OP2 sought comments of OP1. Thereafter, the complainant again approached OP1 and also wrote a letter dated 08.03.2016 requesting not to demand the non-construction charges, but to no avail. Finding no alternative, the complainant through his attorney Hardip Singh Sandhu deposited the amount vide draft No.538842 dated 26.04.2016 under protest vide application dated 28.04.2016 and asked for the physical possession of the plot which was given on 13.06.2016 by OP1. The demand of Rs.7,95,798/- was illegal, arbitrary, without jurisdiction and is liable to be refunded by the OPs as there was no stipulation in allotment letter No.7798 dated 14.09.1976 for payment of non-construction charges nor there is any such clause in The Punjab Town Improvement Act. The physical possession was given to the complainant only on 13.06.2016. Therefore, the question of raising construction by the complainant does not arise. Even otherwise, litigation was pending between Jaswinder Singh which went up to Hon’ble Supreme Court of India and culminated with the dismissal of the Special Leave Petition filed by Jaswinder Singh on 06.02.2016 only. Since the possession was not delivered to the complainant, the demand of non-construction charges is not tenable in the eyes of law. Moreover, OP1 passed a resolution No.307 dated 11.03.2016 to the effect that non-construction charges from 2007 to 2016 be waived off. The resolution was sent to OP2 for necessary approval. Under the circumstances and in the light of the resolution dated 11.03.2016, the OPs are liable to refund the amount of Rs.7,95,798/- with interest. Non-refund of the non-construction charges on the part of the OPs amounts to deficiency of service and has also caused harassment and mental pain and agony to the complainant. In the end, it has been requested that the OPs be directed to refund Rs.7,95,798/- along with interest along with compensation of 50,000/- and litigation expenses of Rs.5,500/-.  

2.                Upon notice, OP2 did not appear despite service and was proceeded against exparte.

3.                The complaint has been resisted by the OP1. In the written statement filed on behalf of OP1, it has been, inter alia, pleaded that there has been no deficiency of service on the part of OP1 and the complaint is nothing, but an abuse of process of law. On merits, it has been admitted that the plot No.705-I was allotted to the complainant vide allotment letter No.7798 dated 14.09.1976. It has also been admitted that a suit for specific performance was filed by Jaswinder Singh against the Trust which was decided in favour of the complainant up to Hon’ble Supreme Court where the SLP filed by Jaswinder Singh was dismissed on 08.02.2016. However, the dispute between the complainant and Jaswinder Singh had nothing to do with the OPs. Therefore, the non-construction charges amounting to Rs.7,95,798/- became due from 1984 to 2015 which has been rightly recovered by the OP Trust from the allottee at the time of registration of sale deed and further that the same cannot be refunded at the level of OP Trust though the case was sent to the Government after passing resolution No.307 dated 11.03.2016. It has also been pleaded that it was incumbent on the part of the complainant to have raised construction on the plot. Since no construction was raised by the complainant, it attracted imposition of non-construction charges/fine. The rest of the allegations made in the complaint have been denied as wrong and in the end, a prayer for dismissal of the complaint has also been made.

4.                In evidence, the general power of attorney holder of the complainant submitted his affidavit as Ex. CA along with documents Ex. C1 to Ex. C16 and closed the evidence.

5.                On the other hand, the counsel for OP1 tendered affidavit Ex. RA of Ms. Balbir Kaur, Senior Assistant in OP1 Trust along with documents Ex. R1 to Ex. R13 and closed the evidence.

6.                We have heard the counsel for the parties and have also gone through the record very carefully.

7.                During the course of arguments, the counsel for the complainant has argued that though the plot was allotted to the complainant on 14.09.1976 vide allotment letter Ex. C3, but Jaswinder Singh filed a civil suit against the complainant on 28.07.2007 which was dismissed by the court of Civil Judge (Junior Division), Ludhiana and thereafter, appeals filed by Jaswinder Singh before the Additional District Judge, Ludhiana and the Hon’ble High Court were also dismissed. A Special Leave Petition filed by Jaswinder Singh in the Hon’ble Supreme Court of India was also dismissed on 08.02.2016. Thereafter, the physical possession of the plot was given on 13.06.2016, but prior to that OP1 illegally imposed non-construction charges of Rs.7,95,798/-  which were deposited vide draft No.538842 dated 26.04.2016. The counsel for the complainant has further argued that since the physical possession was handed over to the complainant only on 13.06.2016, the question of raising any construction does not arise and therefore, no non-construction charges could be imposed or recovered from the complainant. The counsel for the complainant has further pointed out that vide resolution No.307 dated 11.03.2016, OP1 has already admitted that non-construction charges for the year 2007 to 2016 should be waived off. Therefore, OP1 is bound to refund the non-construction charges of Rs.7,95,798/- to the complainant as prayed for in the complaint. In support of his arguments, the counsel for the complainant has relied upon case title Ludhiana Improvement Trust Vs Mohan Singh Kundlas in First Appeal No.593 of 2011 decided by Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh on 17.09.2013 whereby it has been held that if the rules do not contain any provision for levy and recovery of non-construction charges, then the demand of non-construction charges is not justified. The counsel for the complainant has further relied upon Ludhiana Improvement Trust Vs Tirlok Gupta in First Appeal No.801 of 2011 decided by Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh on 25.09.2013 whereby it has been held that if there is a condition in the allotment letter that the construction will be raised within three years from the allotment, but there is no provision that non-construction charges will be levied in case the construction is not completed within three years, the construction charges cannot be recovered. The counsel for the complainant has further relied upon Punjab Urban Planning and Development Authority Vs Vidya Chetal in 2014 (22) RCR (Civil) 760 passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi whereby it has been held the allottee can make construction over plot allotted to her only after she gets possession. If after getting the possession, allottee fails to raise the construction within the prescribed period, then only extension fee/non-construction fee can be levied. It has further held that as per the allotment letter, respondent had to complete construction work within 3 years from the date of allotment letters. It was further held that demand of extension fee/non-construction fee for period when the respondent was not in possession of the plot is per se neither legal nor justified.  

8.                On the other hand, the counsel for OP1 has argued that the complaint is false, frivolous and is liable to be dismissed. The complainant has failed to raise any construction within time stipulated in the allotment letter and therefore, the imposition of non-construction charges/extension fee cannot be said to be illegal or arbitrary on any ground. The counsel for OP1 has further argued that the complainant himself took a long time for completing the formalities and the conditions mentioned in the allotment letter Ex. C3 and despite inordinate delay on the part of the complainant, he was allotted the plot, but subject to payment of non-c0onstruction charges which were duly paid by him and now the complainant cannot be allowed to say that the construction charges were not payable on any ground. The counsel for OP1 has further contended that even otherwise, the claim in the complaint is hopelessly barred by time and the complaint is, therefore, liable to be dismissed on this ground alone.

9.                We have weighed the contentions raised by the counsel for the parties and have also gone through the record carefully.

10.              In this case, the complainant was allotted the plot vide allotment letter dated 14.09.1976 which is Ex. C3 on the file. As per the terms and conditions of the allotment letter Ex. C3, the complainant was not entitled to sell the plot for a period of 10 years. Another condition of the allotment letter was that a sale agreement was to be executed on a stamp paper of Rs.3/- within one month and the complainant was supposed to raise construction over the plot within 3 years from the date of allotment after getting the site plan approved from the OP Trust and after getting the plot demarcated. The complaint is totally silent with regard to the fact that when the agreement of sale, as required in the allotment letter Ex. C3, was executed and what were the terms and conditions incorporated in the said sale agreement. The complainant has further not led any evidence as to when he made payments in respect of cost of the plot as per the allotment letter Ex. C3. So far as the litigation with regard to the plot is concerned, admittedly and as per the documents placed on record, the civil suit by Jaswinder Singh son of Sohan Singh was filed on 28.07.2007 as is evident from the copy of the judgment Ex. C4. There appears to be no justification as to why the necessary formalities were not completed by the complainant  between the time from the date of allotment i.e. 14.09.1976 till the suit was filed on 28.07.2007. This shows that the complainant kept sleeping for more than 30 years. Strangely enough, despite so much of delay, latches and negligence on the part of the complainant, OP1 gave physical possession of the plot to the complainant on 13.06.2016 as stated in para No.6 (ii) of the complaint. This fact has not even been specifically denied by OP Trust in the written statement and in para No.6(ii) of written statement, it has simply been stated that as per the condition of allotment letter dated 14.09.2016, it was the duty of the complainant/allottee that after getting the site plan and getting the demarcation of the plot, the construction was to be raised within a  period of 3 years. Therefore, considering the fact that the complainant himself kept sleeping for a period of more than 30 years, and despite that he was handed over the possession of the plot on 13.06.2016 subject to just payment of Rs.7,95,798/-  as non-construction charges/enhancement fee, the complainant cannot be heard harping that some injustice has been done to him or that he has been made to pay the non-construction charges/enhancement fee without any rhyme or reason.

11.              So far as the question of pendency of the litigation is concerned, in our considered view, the pendency of civil litigation qua the plot in question was totally irrelevant in the context of the present case. Firstly, as stated above also, the litigation, if at all, came into picture only in the year 2007 i.e. more than 30 years after the allotment of the plot. In the civil suit filed by Jaswinder Singh, it was claimed that the complainant had executed a sale agreement in respect of the allotted plot in favour of Jaswinder Singh and the suit was for the enforcement of the said sale agreement allegedly executed by the complainant. There is a stipulation in the allotment letter Ex. C3 that the plot could not be sold by the allottee for a period of 10 years. It has been held by the Hon’ble High Court in the judgment Ex. C8 that since the alleged sale agreement was in violation of the terms and conditions of the allotment, the agreement itself was bad in the eyes of law, being against the public policy. Therefore, the complainant cannot seek refuge under the plea of pendency of the civil litigation qua the plot in question from 2007 to 2015 as the said litigation was totally meaningless and irrelevant so far as the terms and condition of the allotment of the plot between the complainant and OP Trust are concerned.

12.              Secondly, there is absolutely no justification as to why the complainant kept sleeping for more than 30 years and thereafter, waited for the conclusion of the litigation up to the year 2015 to proceed further for taking steps to get the possession of the plot in question after complying with the necessary formalities and terms and conditions of the allotment letter Ex. C3. However, despite all this, eventually in the year 2016 he was allotted the plot through there has been inordinate and unexplainable delay on the part of the complainant. Here one cannot oblivious of the fact that the plot in question was allotted to the complainant in the year 1976 for a total just of Rs.12,500/- and by the time, the complainant obtained the possession of the plot in the year 2016 after a lapse of 40 years, the value of the plot must have been increased many fold as it is a matter of common knowledge that over the years the value of the immovable property increased many fold.

13.                 So far as the case law relied upon by the counsel for the complainant is concerned, we have gone through the cited cases and are of the considered view that the case law laid down in the cited cases cannot be applicable to the facts and circumstances of the instant case.  As pointed out in the foregoing para of this order, in this case, the complainant himself has been guilty of inordinate delay and latches and therefore, he is not entitled to any discretionary relief. In the case title Punjab Urban Planning and Development Authority Vs Vidya Chetal (Supra) it has been held by Hon’ble National Commission that demand of extension fee/construction charges for the period when the complainant was not in possession of the plot is neither legal nor justified. However, in the instant case, the complainant himself did not take any step to take the possession for more than 30 years. Therefore, the complainant is not in a position to claim that the extension fee/non-construction charges have been imposed illegally. In this regard, a reference can be made to the law laid down in 2014 AIR (SCW) 4485 in case title State of Punjab and others Vs Dhanjit Singh Sandhu relied upon by the counsel for OP1 whereby it has been held by Hon’ble Supreme Court of India that once an order has been passed, it is complied with, accepted by the other party and derived the benefit out of it, the said party cannot challenge the same on any ground. In the instant case also, the complainant has got the plot allotted after a period of about 40 years from the date of allotment on payment of charges of Rs.7,95,798/- and after the allotment of the plot, the complainant cannot justifiably challenge the payment of charges by way of which he had already been benefited.

14.              As a result of above discussion, the complaint fails and same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

15.              Due to rush of work and spread of COVID-19, the case could not be decided within statutory period.

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:23.11.2021.

Gobind Ram.