DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> <br /> <br /> C.C.No.35 of 30.01.2007<br /> Decided on : 23.04.2007 <br /> <br /> Gian Chand Puri S/o Sh. Bihari Lal, R/o Street No.6, Near Sita Ram Dairy, Parasram Nagar, Bathinda<br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> Improvement Trust, Bathinda through its Chairman<br /> ...... Opposite party<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh.Hira Lal Kumar, Member<br /> Dr.Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Rakesh Gupta, Advocate<br /> For the opposite parties : Sh. Karamjit Singh Gill, Advocate <br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Instant one is a complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) which has been preferred by the complainant seeking direction from this Forum to the opposite party to refund Rs.1,27,380/- alongwith interest, cancel the letter vide which he has been asked to pay non-construction fee; pay Rs.50,000/- as compensation, besides costs of the complaint.<br /> 2. Version of the complainant lies in the narrow compass as under :-<br /> He had applied to the opposite party for allotment of plot measuring 108 Sq. Yards in the scheme known as 49.50 Acres opposite Kamla Nehru Scheme, Bibiwala Road, Bathinda. Plot No. 395 was allotted to him in draw. Letter dated 19.2.99 regarding allotment of the plot @ Rs.1,300/- per Sq. Yard was issued. Another letter dated 14.6.99 was issued to him regarding the schedule of payment. He deposited the amount of all the instalments as per schedule. Last instalment was paid on 16.8.2001. Letter was written to the complainant by the opposite party about the proposal of shifting the Bus Stand. It was further intimated that plot No. 395 was coming in the proposed land of the Bus Stand. He was told to attend the meeting in the office of Deputy Commissioner, Bathinda on 12.10.99. Undertakings were taken from him and some other persons regarding re-allotment of new plots which could be available through lottery system. Letter dated 25.11.99 was issued by the opposite party conveying that re-allotment of the plots would be done in the office of Deputy Commissioner through draw on 7.12.99. Accordingly, he visited the office of Deputy Commissioner, Bathinda. Plot No. 218 was allotted to him in the draw. Thereafter, opposite party issued letter of allotment dated 4.4.2001 to him. Letter dated 24.4.2002 was issued by the opposite party conveying that there was 39 Sq. Yards excess area adjoining his plot and if he wanted to take it, he should give consent. It was specifically mentioned that the rate of the land would be @ 1.5 % of the reserve price. He gave his consent on 27.7.2005. He was forced to pay the rate @ 0.5% extra as the resumed price. Another letter was received from the opposite party for enhancement of cost of the plot @ Rs. 185/- per Sq. Yard. He expressed his willingness to deposit the price of the plot at the enhanced rate. On 13.3.2006, he received reply of the letter in which opposite party had apprised him that Rs.25,725/- be deposited as enhanced amount. In this manner, his request for allotment of excess area was considered. On 2.8.2006, he received letter that he was allotted excess area measuring 38.60 Sq. Yards @ Rs.5,250/- per Sq. Yard. As per direction of the opposite party, he deposited Rs. 2,02,650/- regarding allotment of excess area @ Rs. 5,250/- per Sq. Yard. Remaining enhanced amount i.e. Rs.33,871/- alongwith interest was deposited vide receipt No. 326 dated 4.9.2006. Had the possession of the excess area been given without delay i.e. on the date when he gave consent, he could complete the construction at less cost. On 28.11.2006, he had applied for possession of the excess area and the total plot. No reply was received from the opposite party. Thereafter, he submitted map on 18.12.2006 for construction on the plot. In response to it, opposite party sent letter dated 28.12.2006 received on 9.1.2007 intimating that he should deposit non-construction fee first and thereafter, matter would be proceeded further. He deposited the enhanced amount on 4.9.2006. Todate opposite party has not issued letter for delivery of possession. It is asserted by him that opposite party is not entitled for non-construction fee. Moreover, he had given consent for excess area on 27.7.2005, but opposite party allotted it after one year. Chairman of the opposite party can allot plot upto 50 Sq. Yards. He claims that he is entitled to the refund of extra amount of Rs. 1,27,380/- paid by him under compelled circumstances for excess area. He approached the opposite party many a times for refund of the extra amount and for canceling the letter regarding non construction fee, but it sent no reply. He alleges that due to the arbitrary and fraudulent act of the opposite party, he has undergone mental pain, agony, loss and harassment. <br /> 3. On being put to notice, opposite party filed reply taking legal objections that complainant has got no locus-standi to file the complaint; complaint is not maintainable in the present form; it is false and frivolous; no notice before filing the complaint has been served upon it and complainant is estopped from filing the complaint by his act and conduct. On merits, it admits that complainant had applied for plot measuring 108 Sq. Yards in the scheme of 49.50 Acres and plot No. 395 was allotted. Allotment letter dated 19.2.99 was issued. Schedule regarding the payment of the price of the plot was issued. Amount of the instalments as per payment schedule was paid. Proposal was conveyed to the complainant regarding shifting of the Bus Stand and the fact that plot No. 395 was falling in the proposed land of Bus Stand. Meeting was held in the office of Deputy Commissioner, Bathinda on 12.10.99. Undertaking was taken from the complainant and some other persons for re-allotment of new plots to them. Plot No. 218 was allotted to the complainant in re-allotment and allotment letter dated 4.4.2001 was issued. Letter dated 24.4.2002 was issued to the complainant regarding excess area. It had demanded price @ 1.5 times of reserve price for excess area. It admits that vide letter No. 957 dated 30.4.2004, it had asked the complainant to pay 25% price @ Rs. 185/- per Sq. Yard of enhanced compensation. Complainant had written letter about his willingness to deposit the enhanced price. Letter No. 743 dated 13.3.2006 was written by it regarding enhanced compensation. Letter No. 2283 dated 2.8.2006 was written by it to the complainant for depositing Rs. 2,02,650/- as enhanced compensation of excess area. It admits that complainant had written letter dated 28.11.2006 for issuing possession letter. On 18.12.2006 plan was given for sanction. Letter No. 3885 dated 28.12.2006 was issued to the complainant for depositing non-construction fee as per Government instructions so that action may be taken. According to condition No.7 of the allotment letter, allottee has to complete the building on the plot within three years from the date of issuance of the allotment letter after getting demarcation and after getting the plan of proposed building approved from the Trust. Trust office had prepared site plan of the plot. Demarcation was given to the allottee vide letter No. 1190 dated 24.4.2002 informing the complainant regarding extra 39 Sq. Yards land adjoining the plot. His consent was sought which was given by him through letter dated 27.7.2005 for taking the extra land. Allotment letter No. 395 was issued on 19.2.99. Second allotment letter No. 1255 dated 4.4.2001 was issued to change the number of the plot. Thereafter, allottee was given time upto 31.12.2005 to get the plan sanctioned for raising the construction. In this case non-construction fee has commenced in January, 2006. Complainant was given 4 years and 9 months after second letter dated 4.4.2001 by which plot number was changed. He gave building plan on 18.12.2006 for sanction. Hence, it is clear that demarcation and possession of the plot were given earlier and map was prepared and submitted accordingly. It avers that non construction fee for 2006 has been demanded as per rules and Government instructions. It denies that amount of Rs.1,27,380/- is refundable. According to it, amount of excess area of 38.60 Sq. Yards has been taken from the complainant with his consent. Remaining averments in the complaint stand refuted.<br /> 4. In support of his allegations and averments in the complaint, Gian Chand Puri complainant tendered into evidence his own affidavit (Ex.C.1), photocopy of Form B (Ex.C.2), photocopy of allotment letter dated 19.2.99 (Ex.C.3), photocopy of schedule of payment (Ex.C.4), photocopies of payment receipts (Ex.C.5 to Ex.C.10 & Ex.C.19) & photocopies of letters (Ex.C.11 to Ex.C.18 & Ex.C.20).<br /> 5. On behalf of the opposite party, reliance has been made on affidavit (Ex.R.1) of Sh. Jagmail Singh, Junior Assistant, photocopy of memo dated 20.10.2005 (Ex.R.2), photocopies of applications (Ex.R.2 & Ex.R.5) & photocopy of order (Ex.R.4).<br /> 6. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by the parties.<br /> 7. Some facts are undisputed in this case. They are that complainant had applied for plot measuring 108 Sq, Yards in the scheme of 49.50 Acres floated by the opposite party. Copy of the application is ex.C.2. Plot No. 395 was allotted vide allotment letter dated 19.2.99, copy of which is Ex.C.3. Payment schedule, copy of which is Ex.C.4, was issued. Complainant deposited the amount of instalments and last instalment was deposited on 16.8.2001. Copies of the receipts regarding payment are Ex.C.5 to Ex.C.10. There was proposal for shifting the Bus Stand. Plot No. 395 was falling in the proposed land of Bus Stand. Accordingly, opposite party wrote letter dated 8.10.99, copy of which is Ex.C.11, directing the complainant to attend the office of Deputy Commissioner, Bathinda for discussion. Complainant agreed to relinguish the plot allotted to him in case another plot was allotted to him in lieu of it in the draw. Another letter dated 25.11.99 was issued by the opposite party for coming to the office of Deputy Commissioner on 7.12.99. Plot No. 218 was allotted to the complainant in lieu of plot No. 395 vide letter No. 1255 dated 4.4.2001, copy of which is Ex.C.14. Letter dated 24.4.2006 was issued to the complainant by the opposite party intimating that there was an excess area of 39 Sq. Yards adjoining plot No. 218 and if he wanted to take this area @ 1.5 times of the reserve price, he should give consent. Copy of the letter is Ex.C.15. Complainant gave consent vide application dated 27.7.2005, copy of which is Ex.R.3. Excess area measuring 38.60 Sq. Yards was allotted @ Rs.5,250/- per Sq. Yard vide order dated 31.7.2006. He was directed to deposit Rs.2,02,650/- as is evident from Ex.C.18. Complainant deposited this amount through Bank Draft which was received in the office of opposite party on 25.8.2006. Copy of the application of the complainant in this regard is Ex.R.5. Complainant craves for refund of Rs.1,27,380/- out of the price of the excess area. Apart from this, he has assailed letter dated 28.12.2006, copy of which is Ex.C.20, vide which he has been directed to deposit non-construction fee for the year 2006.<br /> 8. Material points for adjudication are as to whether complainant is entitled for the refund of Rs.1,27,380/- and that he is not bound by the letter, copy of which is Ex.C.20, vide which he has been directed to deposit non-construction fee for the year 2006.<br /> 9. Arguments pressed into service by the learned counsel for the complainant regarding refund of Rs.1,27,380/- are that plot was allotted to the complainant @ Rs.1,300/- per Sq. Yard. Opposite party has charged Rs.5,250/- per Sq. Yard from the complainant for the excess area measuring 38.60 Sq. Yards which is illegal. Complainant was forced to pay the amount at this rate. According to him, there was an excess area adjoining plot No. 219 and opposite party has got deposited the price of the excess area adjoining that plot No. 219 @ Rs.2,400/- per Sq. Yards, whereas in the case of the complainant it has charged RS.5,250/- per Sq. Yard for the excess area of 38.60 Sq. Yards which is arbitrary. Had opposite party charged 1.5 times of the reserve price of Rs.1,300/-, it was entitled to receive Rs1,950/- per Sq. Yard instead of Rs.5,250/- per Sq. Yard. According to the learned counsel for the complainant proceedings of the meeting dated 13.7.2006 vide which reserve price has been fixed as RS.3,500/- per Sq. Yard is not binding upon the complainant as complainant had given the consent for getting excess area at 1.5 times of the reserve price on 27.7.2005 when reserve price was Rs.1,300/- per Sq. Yard.<br /> 10. Learned counsel for the opposite party countered the arguments of the learned counsel for the complainant by submitting that complainant is bound by the terms and conditions of the allotment letter, copy of which is Ex.C.3. This fact was made clear to him vide letter dated 4.4.2001 according to which plot No. 218 was allotted in lieu of plot No. 395. Complainant gave consent for allotment of excess area at 1.5 times of the reserve price vide application dated 27.7.2005, copy of which is Ex.R.3. Reserve price was revised to Rs.3,500/- per Sq. Yard in the proceedings of the meeting dated 13.7.2006, copy of which is Ex.R.4. Reserve price of the excess area with plot No. 219 is as per letter dated 4.12.2003 of the Government of Punjab, Department of Local Government according to which Collector's rate at the time of allotment of additional area would be reserve price. At that time, Collector's rate was Rs.2,400/- per Sq. Yard. In the case in hand, letter dated 20.10.2005 of Government of Punjab, Department of Local Government is applicable. Copy of the same is on the record. According to it, in future additional land would be allotted at 1.5 times of the market price prevailing at the time of allotment. Accordingly, rate from the complainant has been charged for the excess area adjoining plot No. 218.<br /> 11. We have considered respective arguments. First point regarding refund of Rs.1,27,380/- out of Rs.2,02,650/- is concerning price of the excess area adjoining plot No. 218. Question of pricing cannot be determined by the Consumer Fora. Even otherwise, if it is considered for arguments sake, even then complainant is not entitled to relief on this aspect of the case, particularly when he has deposited the price of the excess area with the opposite party without objection/protest. It being so, he is estopped from claiming the refund of Rs.1,27,380/-. According to Ex.C.2, complainant has declared that he has read and understood the terms and conditions on which the plot is to be alloted to him. He further undertook to abide by them. According to the letter of allotment, copy of which is Ex.C.3, the price of the plot was subject to variations with reference to actual measurement at the spot as well as in the case of enhancement of compensation by the Court or otherwise. It being so, if the price is otherwise enhanced, he is bound to pay the same. In response to letter dated 24.4.2002, copy of which is Ex.C.15, complainant moved application for the first time on 27.7.2005, copy of which is Ex.R.3, i.e. after more than three years. Hence, contention of the learned counsel for the opposite party that during this period there was increase in the price of the plots and as such, it does not lie in the mouth of the complainant that he is not liable to pay the price @ Rs.5,250/- per Sq. Yard, cannot be thrown to the winds. Complainant cannot derive any benefit from the fact that excess area to the allottee of plot No. 219 has been allotted @ RS.2,400/- per Sq. Yard, particularly when he was governed by the letter of the Government dated 4.12.2003, whereas in the case of the complainant, opposite party was to proceed as per letter dated 20.10.2005 of the Government. Reserve price was fixed as RS.3,500/- per Sq. Yard in the meeting dated 13.7.2006, copy of which is Ex.R.4. In view of the terms and conditions of the allotment letter, facts and circumstances and the fact that he gave the option for getting excess area on 27.7.2005 on the basis of the letter dated 24.4.2002, proceedings dated 13.7.2006, copy of which is Ex.R.4, cannot be said to be arbitrary and not binding upon the complainant. Accordingly, we hold no deficiency in service on the part of the opposite party for charging the price for excess area measuring 38.60 Sq. Yards @ Rs.5,250/- per Sq. Yard.<br /> 12. Opposite party directed the complainant to deposit non-construction fee for the year 2006 vide letter No. 3885 dated 28.12.2006, copy of which is Ex.C.20. Learned counsel for the opposite party argued that ultimately plot No. 218 was allotted to the complainant vide letter dated 4.4.2001, copy of which is Ex.C.14. Complainant was bound by the terms and conditions of the previous letter of allotment concerning plot No. 395, copy of which is Ex.C.3. He further submitted that as per its terms and conditions, complainant was bound to complete the building on the plot within three years from the date of issuance of allotment letter after getting the plan of the proposed building approved from the opposite party. He did not raise the construction within three years from 4.4.2001 onwards.<br /> 13. Learned counsel for the complainant urged that possession of plots No. 395, 218 and of excess area measuring 38.60 Sq. Yards has not been delivered to the complainant and as such, the question of raising construction by him on the plot did not arise. Hence, complainant is not bound to pay the non-construction fee demanded through impugned letter dated 28.12.2006. Complainant has reiterated his version in his affidavit Ex.C.1 saying that he had applied for possession of the total land of the plot, but no reply was received. Thereafter, he had submitted map for construction of the plot on 18.12.2006. Opposite party has not placed any document on the record to show that possession of plot No. 395 was ever delivered to the complainant. After allotment of plot No. 218, its possession was not given to the complainant. To the contrary on 24.4.2002 offer was given to the complainant to give option for allotment of the excess area @ 1.5 times of the reserve price. Ultimately, excess area was allotted to the complainant vide order of the Chairman of the opposite party dated 31.7.2006. In this manner, excess area adjoining plot No. 218 also becomes part of this plot. There is no record of the opposite party showing that possession of excess area was delivered. It was for the complainant to ponder as to whether he was to raise construction on the total area of the plot including the excess area or in the area less than the total area. There is nothing on the file to the effect that opposite party ever communicated to the complainant to take possession of the plot No. 218 and thereafter of excess area when it was allotted to him. No-doubt, as per clause No. 7 of the allotment letter complainant was to get demarcation and to get the plan of the proposed building approved from the opposite party, but this alone does not absolve the opposite party from its duty of delivering the possession to the complainant. Opposite party never gave any offer to the complainant to take possession. Until and unless the possession is/was given by the opposite party to the complainant, how could he be able to raise construction. Demarcation and approval to the plan for proposed building was/is to be given by the opposite party. It is not the case of the opposite party that it ever asked the complainant to get the demarcation and proposed plan of the building approved. From the wording of clause No. 7, it appears that opposite party has absolved itself from the responsibility of delivering possession of the plot to the allottee. On its basis alone, it cannot be said that possession was actually delivered or be deemed to have been delivered. Since, possession of the plot including the excess area has not been proved to have been delivered to the complainant, complainant is not liable to pay non-construction fee for the year 2006. Hence, he is not bound by the terms and conditions of the letter. Accordingly, there is deficiency in service on the part of the opposite party in demanding non-construction fee on the basis of the letter, copy of which is Ex.C.20, as it is illegal, null and void and not binding upon the complainant.<br /> 14. Now, question arises as to which relief should be accorded to the complainant in the given situation. In view of the discussion made above, direction deserves to be given to the opposite party not to recover the non-construction fee for the year 2006 from the complainant as possession of the plot No. 218 including excess area has not been delivered to him. Complainant is craving for compensation of Rs.50,000/-. Plot No. 395 was allotted to him on 19.2.99. Plot No. 218 in lieu of plot No. 395 was allotted on 4.4.2001. Excess area was allotted to him vide order dated 31.7.2006. Possession of the plot including excess area has not been proved to have been delivered so far. Despite this, opposite party is demanding non-construction fee. Act of the opposite party must have caused pain, agony and harassment to the complainant for which he is entitled to some compensation which we assess as RS.2,500/-. In this view of the matter, reference may be made to the authority Sharmila Devi Vs. Administrator, HUDA and Another-2006(2) JRC-244.<br /> 15. No other point was urged before us at the time of arguments.<br /> 16. In the result, complaint is partly allowed against the opposite party with costs of Rs.1,000/-. Opposite party is directed to do as under :-<br /> ( i ) Not to recover non-construction fee on the basis of letter No. 3885 dated 28.12.2006,from the complainant for the year 2006 concerning plot No. 218 and excess area allotted to him as this letter is illegal, null and void and not binding upon him.<br /> ( ii ) Pay Rs.2,500/- as compensation under section 14 (1)(d) of t he Act.<br /> ( iii ) Compliance with regard to payment of compensation and costs be made within 30 days from the date of receipt of copy of this order, failing which the amount of compensation would carry interest @ 9% P.A till payment.<br /> 17. Copy of this order be sent to the parties concerned free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 23.04.2007 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member<br /> <br /> 'bsg' <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />