The complainant Vikas Kuamr (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Improvement Trust Bathinda (here-in-after referred to as opposite party).
Briefly stated the case of the complainant that he is the owner and now in possession of plot No. 150 located at Rajeev Gandhi Nagar Bathinda.
It is alleged that on 4.10.2017 Sh. Ramesh Kumar, father of the complainant entered into agreement to purchase plot No. 150, 108 Sq. yards located at Rajiv Gandhi Nagar Bathinda and after entering into agreement an application dated 12.10.2017 was moved for getting information about the transfer of the above mentioned plot in his name, due amount and procedure to proceed further to get the property transferred in his name, but no response was given by opposite party. Thereafter father of complainant moved application under RTI Act for seeking above mentioned information. but opposite party totally failed to respond to the above RTI application. Accordingly various reminders were addressed to opposite party and even one more application dated 25.07.2018 was moved but to no result. The opposite party totally failed to provide information on the oral requests as well as on written requests and the record of the applications is already in possession of the opposite party.
It is also alleged that father of the complainant specifically mentioned in his application that the matter of transfer of the plot is lingering from opposite party's end and he will not be liable for any fine, Charges if any for non construction etc. It was also mentioned in the application that whole liability will be of the Department if they failed to provide the information.
The complainant alleged that in the month November 2019, father of complainant approached Executive Officer and requested to transfer the plot in his name and then officials of opposite party with malafied intention and for harassing the father of complainant forced to enter into fresh agreement with the allottee the reason given by opposite party was that previous agreement is too old and father of the complainant was forced to withdraw all the applications moved by him. It was assured by the opposite party that transfer will be done if a new agreement will be entered by any other family member but the condition of Non Construction charges will remain applicable on the plot in question. Father of complainant feeling helpless being senior citizen and fed up with the departmental harassment, given up idea of transferring the plot in his name and on the instructions of opposite party a fresh agreement of sell was entered in the name of complainant.
It is also alleged that at the time of entering into agreement, it was explained by the allottee that physical possession of the above mentioned plot was never delivered to him by the Department. The opposite party did not provide physical possession of the plot to him from the date of its allotment. It was further informed that no demarcation of the plot in question was done by opposite party. Although allottee Naresh Kumar requested many a itimes to the opposite party by personally visiting their offices and by addressing applications to opposite party for handing over the physical possession of the plot, but nothing was done by the opposite party. It was very hard to find out dimensions of the plot in open in thousands squares of land without getting it properly demarcated by the opposite parties but nothing was done by the opposite party and neither in possession of any documents in which they handing over the possession of the plot in question to the complainant and as well as to the allottee Naresh Kumar and the same was not done by the opposite party. The demarcation of the plot was not done by the opposite party before the allotment of the plot or after the allotment of the plot in question. This is the only reason why Naresh Kumar allottee sold the plot to complainant and it was explained that he was only owner/allottee of the plot vide allotment letter and the physical possession of the plot will be given by opposite party to complainant after its proper demarcation. No action was taken by the opposite party on the application, moved by the original allottee of the plot (Naresh Kumar) for handing over the possession of the plot in question after its allotment.
It is further alleged that thereafter complainant applied for transfer of the plot in his name vide application dated 20.12.2019 and on the same day opposite party officials forced complainant to deposit Non Construction Charges amounting to Rs.1,83,777/- from the period of 01.01.2013 to 31.12.2019 for processing the transfer. The above mentioned amount was charged from the complainant without providing physical possession or transferring the plot in question. The complainant deposited the amount under protest for transfer of plot. The opposite party was bound to transfer the plot within few days after receiving the above mentioned payment but opposite party for fetching or earning more and more money from public at large delayed the process of transfer and ultimately after a week complainant approached opposite party for taking transfer letter then came to know that opposite party prolonged the matter of transfer because they will get more non construction charges of the upcoming year of 2020. The opposite party again pressurized the complainant to deposit more non construction charges of the next year from 1.1.2020 to 30.6.2020 without providing transfer letter or physical possession of plot which is against the law and facts.
It is further alleged that complainant got prepared DD amounting to Rs.15,690/- and submitted the same with opposite party for proceeding with the transfer procedure. Both the demand drafts were deposited under protest along with applications. The plot was transferred vide letter number 258 dated 4/2/2020 with the delay of more than 40 days.
It is alleged that complainant moved application dated.09.03.2020 vide registered post and requested the opposite party for issuance NOC/NDC in favor of complainant after depositing the entire amount of NCF etc. The complainant approached opposite party regarding getting demarcation or NOC/NDC certificate then officials of the opposite party told that the demarcation will be done for handing over physical possession of the plot after sanction of the site plan and regarding NOC/NDC opposite party remained silent.
It is also alleged that thereafter complainant applied for sanctioning of the site plan and the same was sanctioned vide letter No.4 dated-6.03.2020 with the delay of more than 20 days from the date of its submission. After sanctioning the site plan, opposite party handed over the physical possession of the plot to complainant on 07.3.2020 after demarcation and thereafter complainant started construction work on his plot which was duly informed to opposite party vide letter dated 9.03.2020.
It is further alleged that during construction period, central government as well as Punjab government imposed lockdown or curfew due to the preventive measurements from the spread of epidemic Covide 19. On 22.03.2020 Punjab government imposed complete lockdown & Curfew which remained in force upto 16.05.2020 therefore it was obvious that construction work will take some more time for its completion. The opposite party again issued memo no.1121, dated.17.07.2020 for depositing the non construction charges of Rs.14,665/- from the period of 30.6.2020 to 31.12.2020 which is against the law & rules. The delay on the part of opposite party to transfer or Sanction the site plan and delay to handing over mortgage permission for getting loan from HDFC bank to the complainant effected the construction work and another side due to unavoidable circumstances of covid 19. The complainant also sent application dated 17.06.2020 for extension of time in construction vide registered post but without going through all facts, opposite party illegally, malafiedly, issued memo No. 1121 of remaining Non construction charges which is against the law and facts. and no action taken on the complainant letters and neither any action taken report in possession of the opposite party.
It is also alleged that as per the agreement or transfer letter there is no terms and conditions mentioned or accepted or admitted by complainant for paying non construction charges if construction not completed within time period.
The complainant alleged that he completed construction work and the completion plan with the forwarding letter duly submitted before the opposite party and requested opposite party to issue completion certificate in favor of the complainant but the opposite party remained deaf and dum. The complainant also got served legal notice in this regard, but to no effect.
On this backdrop of facts, the complainant has prayed for directions to the opposite party to :-
a) Withdraw letter dated 17-7-200 for deposting NCF Rs. 14,665/-
b) Refund Rs. 1,83,777/- and Rs. 15,690/- with interest @ 18%
c) Issue NOC/NDC in favour of complainant
d) Issue Completion Certificate
e) Not to charge further NCF
f) Pay Compensation to the tune of Rs. 2,00,000/- and Rs. 30,000/- as litigation expenses.
Upon notice, the opposite party appeared through counsel and contested the complaint by filing written version raising legal objections that the complainant has no locus standi or cause of action to file the present complaint; complainant is not a consumer; complaint is bad for non-joinder & mis-joinder of necessary party; the complainant is estopped from filling the present complaint; complicated questions of facts and law are involved in this case; there is no deficiency of service on the part of the opposite party and that the complaint is false and frivolous .
On merits, it has been pleaded that as per record of the opposite party, originally the plot No.150, having an area of 108 sq. Yds. was allotted to Naresh Kumar son of Madan Lal & the same was transferred in the name of complainant vide order dated 31.01.2020 & intimation was given to the complainant vide letter No.258 dated 04.02.2020.
It has also been pleaded that said Ramesh Kumar was neither allottee or transferee of plot No.150 & as such was not competent to seek any information regarding the property of third person. As per the provisions of RTI Act, no third party information can be given to him. Ramesh Kumar was informed accordingly by the opposite vide letter No.BIT/2249 dated 07.12.2017.
The opposite party also pleaded that possession of the plot was given by the opposite party to the original allottee Naresh Kumar at the time of allotment/agreement. Even other wise as per the clause 5 of the allotment letter No.BIT/577 dated 07.03.2006, possession was to be taken by the allottee within 30 days from the date of execution of sale agreement & in default it will presumed that the possession has been taken by the allottee. The agreement of sale was executed by the original allottee Naresh Goyal on 07.04.2006. As such the possession is presumed to had taken by him up to 07.05.2006. The original allottee Naresh Kumar had taken loan from ICICI Bank, Bathinda against mortgage of this plot & permission to mortgage was granted to him by the opposite party vide letter No.864 dated 30.03.2006.
It has been further pleaded that as per record of the opposite party, NCF etc. were deposited by the complainant of his own free will as per rules & Govt. instructions. The NCF were deposited on 22.01.2020 & the plot was transferred in the name of the complainant vide order dated 31.01.2020, without any inordinate delay, as alleged. The due intimation of transfer was given to the complainant vide letter No.258 dated 04.02.2020. The building plan was sanctioned vide Memo No.4 dated 06.03.2020. The original allottee never applied with the opposite party for sanctioning the building plan before transfer in the name of complainant. The complainant had raised the illegal & unauthorised construction & for which the opposite party issued notice No.734 dated 02.06.2020 to the complainant.
It has also been pleaded that notice was rightly issued on 17.07.2020 for depositing NCF w.e.f 01.07.2020 to 31.12.2020, as on the said date there was no exemption from payment of NCF. The notification of exemption for payment of NCF w.e.f 01.04.2020 to 30.09.2020 was issued by the Govt. of Punjab on 12.11.2020 & as such neither the complainant deposited any such amount nor the same was again demanded by the opposite party, rather it was decided by the opposite party that nothing remains due against the complaint on account of NCF for the year 2020, as he has already deposited the NCF for six months.
It is further added by the opposite party that as per clause 7 of the allotment letter No.BIT/577 dated 07.03.2006, the allottee/transferee was bound to raise construction as per building Bye Laws, after getting the building plan approved from the opposite party within a period of three years from the date of allotment, failing which allottee/transferee will be liable to deposit the NCF as per the rules and guide lines of the Govt.The said terms & conditions are applicable on the complainant as he has stepped in the shoes of original allottee Naresh Kumar. After controverting all other averments of the complainant, the opposite party prayed for dismissal of complaint.
In support of his complaint, the complainant has tendered into evidence three affidavits namely Naresh Goyal dated 21.10.2020 (Ex. C-24), Vikas Kumar dated 15-4-2021 (Ex. C-25), Ramesh Kumar dated 26-10-2021 (Ex. C-26) and documents (Ex.C-1 to Ex.C-23 and C-27 to Ex. C-43)
In order to rebut the evidence of complainant, opposite party tendered into evidence affidavit of Gora Lal dated 20.9.2021 (Ex.OP-1/9) and other documents (Ex. OP-1/1 to Ex. OP-1/8)
We have heard learned counsel for the parties and gone through the record.
The learned counsel for the complainant has argued that on 4-10-2017, father of the complainant entered into agreement to purchase plot No. 150 measuring 108 Sq. Yds. located at Rajiv Gandhi Nagar, Bathinda. After agreement, application dated 12-10-2017 was moved to the opposite party for obtaining information about transfer of the plot but the information was refused by the opposite party. In November, 2019, father of the complainant approached Executive Officer of the opposite party regarding transfer of plot but the opposite party compelled the father of the complainant to enter fresh agreement with the allottee with the execuse that old agreement is very old and promised to transfer the plot if new agreement is entered between some other family member. Father of the complainant, being helpless, senior citizen who was fed-up with departmental harassment, gave up idea of getting plot transferred and on the instructions of the opposite party, fresh agreement to sell was entered in the name of the complainant. It is further argued that when agreement was executed, original allottee had disclosed that possession of the flat was never delivered to him from the date of allotment. Even no demarcation was got conducted at the spot. It is also argued that it was not possible for the complainant to trace out his plot in thousands of sq. Yds. of land but inspite of number of applications, nor the demarcation nor actual physical possession was ever provided by the opposite party. It is pertinent to mention here that even original allottee had also sold plot due to the reason that demarcation and physical possession of the plot was not given by the opposite party. Father of the complainant had applied for transfer of plot vide application dated 20-12-2019 and thereafter opposite party forced the complainant to deposit Rs. 1,83,777/- on account of non-construction charges w.e.f. 1-1-2013 to 31-12-2019. The said amount was being charged from the complainant without giving demarcation and physical possession at the spot and without transfer of the plot in the name of the complainant. However, the said amount was deposited by the complainant. It is further argued that it was the duty of the opposite party to transfer the plot immediately but opposite party continued to delay the transfer process with ulterior motive to fetch more money from the complainant on the ground of non-construction charges and surprisingly opposite party demanded more money as non-construction charges w.e.f. 1-1-2020 to 30-6-2020. The amount of Rs. 15,690/- was deposited by the complainant and the said amounts were deposited under protest. The plot was thereafter transferred vide letter No. 258 dated 4-2-2020 after delay of 40 days and thereafter complainant made representations to the opposite party to deliver actual physical possession of the plot after demarcation but no action was taken by the opposite party. Even the complainant had moved application dated 9-3-2020 requesting the opposite party to give NOC/ NDC as the complainant had deposited the entire amount although under protest. It is further argued that when complainant repeatedly demanded NOC/NDC alongwith demarcation, then it was disclosed by the officials of the opposite party that demarcation will be done for handing over physical possession of the plot after sanction of site plan and no response was given for issuance of NOC and NDC. The complainant applied for sanctioning of site plan which was sanctioned vide letter dated 6-3-2020 after delay of 20 days and possession of the plot at the spot after demarcation was delivered by the opposite party on 7-3-2020 and only then the complainant could start construction work over the plot. It is also argued that during construction, lockdown was imposed in the entire country on 22-3-2020 but the opposite party again issued memo for depositing Rs. 14,665/- as non-construction charges w.e.f. 30-6-2020 to 31-12-2020 inspite of the fact that complainant had moved application for extention of time. Learned counsel for the complainant has relied upon number of judgements of Hon'ble National Commission and State Commission and has further argued that opposite party be directed to withdraw memo No. 1121 dated 17-7-2020 for depositing non-construction charges of Rs. 14,665/- and has further demanded refund of Rs. 1,83,777/- and Rs. 15,690/- which were deposited as non-construction charges and has further prayed that opposite party be directed to issue NOC and NDC and completion certificate and refrain from charging further NCF.
On the other hand, learned counsel for the opposite party argued that complainant is not original allottee and the original allottee Naresh Kumar was given possession of the plot at the time of allotment. It is further argued that as per Clause '5' of allotment letter dated 7-3-2006 possession was to be taken by the allottee within 30 days from the date of execution of sale agreement and in default, it will be presumed that possession has been taken by the allottee. The agreement was executed with original allottee on 7-4-2006 and possession is presumed to have been taken by him upto 7-5-2006. It is further argued that original allottee had taken loan from ICICI Bank, Bathinda, by mortgaging this plot and permission to mortgage was given on 30-6-2006. It is also argued that complainant had deposited NCF on 22-1-2020 voluntarily and plot was transferred in the name of complainant vide order dated 31-1-2020 without any delay. It is further argued that Rs. 15,690/- was deposited by the complainant as transfer fee. It is argued that since the plot has been transferred in the name of complainant, as such, there is no need for issuance of NOC and NDC as the possession of plot was presumed to be delivered to the original allottee Naresh Kumar in the year 2006. Learned counsel for the opposite party has further argued that there is no deficiency in service on the part of the opposite party and the complaint is false and is liable to be dismissed.
We have considered the rival contentions and have gone through the record carefully.
First of all, it is admitted fact that plot No. 150 located at Rajeev Gandhi Nagar, Bathinda, was originally allotted to one Naresh Kumar vide allotment letter dated 7-3-2006. It is also admitted fact that father of complainant moved an application for transfer of plot in his name after purchasing the same from original allottee vide agreement. It is further admitted fact that complainant became transferee of the plot No. 150 and the opposite party received Rs. 1,83,777/- from the complainant as non-construction charges for the period of 1-1-2013 to 31-12-2019. It is also admitted fact that opposite party received Rs. 14,665/- as non-construction charges w.e.f. 30-6-2020 to 31-12-2020.
The disputed question before this Commission in respect of which present complaint has been filed by the complainant is whether the opposite party was justified or could legally recover the amount of Rs. 1,83,777/- as non-construction charges w.e.f. 1-1-2013 to 31-12-2019 and further receiving Rs. 15,690/- as non-construction charges w.e.f. 1-1-2020 to 30-6-2020 and thereafter receiving Rs. 14,665/- as non-construction w.e.f. 30-6-2020 to 31-12-2020, without delivering actual physical possession of the plot after demarcation at the spot.
The learned counsel for the opposite party has mainly relied upon clause No. '5' of allotment letter Ex. C-42 as per which the allottee shall receive the possession of the plot within 30 days of the allotment and in case allottee fails to take possession within 30 days in that case, possession was deemed to have been delivered to the allottee. However, this Commission is of the view that Clause No. '5' is totally arbitrary and seems to have been imposed on the innocent allottees without any justification as Clause No. '7' of allotment letter Ex. C-42 further explains that allottee shall start construction within 3 years of the allotment after getting site plan sanctioned from the Trust and after demarcation and on failure, allottee shall be liable to deposit non-construction charges menaning thereby that Clause No. '5' of the allotment letter is contradictory to Clause No. '7' of the allotment letter and the plea of the opposite party that possession of the plot is deemed to have been delivered to the original allottee upto 7-5-2006 is itself falsified by Clause No. '7' of the allotment letter as from the perusal of record, it is established that opposite party never sanctioned any site plan in favour of the original allottee nor ever gave any demarcation to the original allottee meaning thereby that original allottee was never given actual physical possession of the plot at the spot. It is further established on record that original allottee had thereafter transferred the plot in favour of the complainant vide transfer letter dated 20-12-2019 (Ex. C-1). Therefore, this Commission is of the view that since original allottee was not in actual physical possession of the plot upto transfer i.e. 12-12-2019, as such receipt of non-construction charges w.e.f 1-1-2013 to 31-12-2019 i.e. 1,83,777/- is totally unjustified and illegal and seems to have been recovered from the complainant under pressure.
So far as amount of Rs. 15,690/- received by opposite party is concerned, the learned counsel for the opposite party has argued that amount of Rs. 15,690/- has not been received as non-construction charges w.e.f. 1-1-2020 to 30-6-2020 rather the said amount has been received on account of transfer fee from the complainant which has been deposited by the complainant out of his free will. However, a perusal of official noting (Ex. OP-1/1) shows that amount of Rs. 15,690/- was received as non-construction charges, as such, plea of the opposite party that said amount was received as transfer fee is itself falsified from document Ex. OP-1/1 produced by the opposite party.
The 3rd amount of Rs. 14,665/- which was received by the opposite party as non-construction charges w.e.f. 30-6-2020 to 31-12-2020 is concerned, this Commission is of the view that it is admitted fact that site plan was sanctioned vide letter No. 4 dated 6-3-2020 and possession was delivered to the complainant on 7-3-2020 after demarcation and as such, after receipt of possession, the complainant was under obligation to complete the construction within 3 years and as such, issuance of memo No. 1121 dated 17-7-2020 by way of which opposite party demanded Rs. 14.665/- from the complainant as non-construction charges w.e.f. 30-6-2020 to 31-12-2020 is also unjustified and illegal. Similarly, receipt of amount of Rs. 15,690/- is also unjustified.
A perusal of letter Ex. C-12 shows that amount of Rs. 1,83,777/- was deposited by the complainant under protest. Similarly amount of Rs. 15,690/- was also deposited by the complainant vide letter Ex. C-13 under protest and the opposite party had not made any efforts to reply said letters nor denied to have received the said letters. Further perusal of letter Ex. C-18 shows that complainant had moved an application to the opposite party to withdraw memo No. 1121 dated 17-7-2020 by way of which further amount was demanded. Similarly letters Ex. C-19 & Ex. C-20 were written and notice Ex. C-22 was got served by complainant but the opposite party did not make any endeavour to reply said letters or legal notice. The original allottee Naresh Goyal has also filed his affidavit Ex. C-24 wherein the said allottee has categorically stated that he was never given physical possession of the plot at the spot although he obtained loan from the bank but was unable to raise construction due to non-availability of possession after demarcation. The plea of the opposite party regarding delivery of possession to the original allottee on 7-5-2006 is also falsified from Memo No. 1233 dated 27-7-2020 which is exhibited as Ex. C-34 as per which the opposite party has demanded non-construction charges w.e.f. 1-7-2020 to 31-12-2020 and in the same memo, it has been very clearly written that the complainant failed to raise construction after sanction of site plan and thereafter delivery of possession on account of which complainant is liable to deposit non-construction charges. The above said memo falsified the claim of the opposite party that original allottee was given possesion of the plot meaning thereby that actual possession of the plot was given to the complainant on 7-3-2020 and the complainant was under obligation to raise construction within 3 years from 7-3-2020 and as such, it is held that receipt of amount of Rs. 1,83,777/- w.e.f 1-1-2013 to 31-12-2019; receipt of Rs. 15,690/- as non-construction charges w.e.f. 1-1-2020 to 30-6-2020 and demand of amount of Rs. 14,665.- w.e.f. 30-6-2020 to 31-12-2020 is totally illegal and unjustified.
In view of what has been discussed above, this complaint is partly allowed with following directions to the opposite party :-
1) To refund the amount of Rs. 1,83,777/- and Rs. 15,690/- received from the complainant on account of non-construction charges alongwith interest @9% p.a. from the date of filing of complaint till realization.
2) To issue NOC and NDC in favour of the complainant alongwith completion certificate.
3) Not to charge further NCF from the complainant.
