Punjab

Ludhiana

CC/15/611

Mool Chand - Complainant(s)

Versus

Improvement Trust Ludhiana - Opp.Party(s)

L.D.Gupta Adv.

06 Sep 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:611 dated 12.10.2015.                                                         Date of decision: 06.09.2022. 

 

Mool Chand S/o. Sh. Puran Chand previously resident of H. No.B-I-1107, Binderaban Road, Civil Lines, Ludhiana and now R/o. H. No.B-XX-2951, Gurdev Nagar, Ludhiana.                                                                                                                                                                  ..…Complainant

                                                Versus

1. Improvement Trust, Ludhiana through its Chairman/Executive Officer.
2. The Adarsh Colony Co-operative House Building Society, Ludhiana, 570/1, National Road, Near Bhaiwala Chowk, Ludhiana through its authorized signatory.                                                                                                                                                    …..Opposite parties 

          Complaint Under Section 12 of the Consumer Protection Act,               1986.

QUORUM:

SH. K.K. KAREER, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. L.D. Gupta, Advocate

For OP1                         :         Sh. Bhalinder Singh Gill, Advocate. 

For OP2                         :         Sh. Ravinder Kumar Sharma, Advocate.

 

ORDER

PER K.K. KAREER, PRESIDENT

1.                Briefly stated, the case of the complainant is that the complainant has been a member of OP2 Society vide membership No.1319. OP2 Society was framed in the year 1968 with a purpose of providing residential plots to its members and the Society purchased 39 acres of land in village Sunet which is now a part of Bhai Randhir Singh Nagar, Ludhiana, a residential colony developed by OP1 Trust. The land owned by OP2 Society was acquired by OP1 for development of the scheme known as Bhai Randhir Singh Nagar Scheme which was duly sanctioned by the Local Govt. Department, Punjab, Chandigarh. However, at the time of sanctioning of Bhai Randhir Singh Nagar Scheme, the land acquired from the Society was exempted by the Local Govt. Department Punjab on the basis of the proposal submitted by OP1 vide its memo No.LIT/TE/5769 dated 24.06.1976. According to the notification dated 09.02.1977 the members of OP2 were to be given plots by OP1 on the terms and conditions to the extent of net area under the residential plots out of the total area of the society acquired by OP1 Trust. However, no plots were allotted to the members of the Society by OP1 despite clear cut directions issued by the Punjab  Government. As a result, OP2 Society filed civil writ petition No.2659  of 1981 with the Hon’ble Punjab and Haryana High Court Chandigarh. OP1 Trust fearing that the writ petition would be decided against it, allotted 281 plots of various sizes to OP2 Society through different allotment letters at different rates for allotment to its members. Vide allotment letter No.LIT/SB/3744 dated 02.09.1983, plot No.207-G measuring 300 sq. yards in BRS Nagar, Ludhiana was allotted @ Rs.66/- per square yards. The detailed terms and conditions of the allotment were given in the OP Trust letter dated 30.01.1983. After the allotments were made by OP1 Trust, OP2 Society withdrew the writ petition.

2.                It is further alleged that plot No.207-G measuring 300 sq. yards was allotted by OP2 to Prem Sarita d/o. Bhim Sain Sharma, resident of Ludhiana @ Rs.66/- per sq. yards whose membership number of the society was 679. The allottee Prem Sarita paid the cost of the plot including development charges and amount of enhancement vide receipt No.398 dated 04.03.1995 (Rs.15,700/-) and receipt No.12 dated 09.03.1995 (Rs.3000/-). The allottee Prem Sarita further paid Rs.4500/- in the name of OP2 Society vide DD No.122606. In this manner, the allottee paid Rs.23,200/-  towards the total cost of Rs.19,800/- of the plot.

3.                It is further alleged that after long correspondence, membership was transferred in the name of the complainant by the Society with full rights and liabilities. As the complainant stepped into shoes of Prem Sarita, the letter of transfer dated 20.11.2002 was addressed to OP1 and no objection was ever raised by OP1 regarding the transfer of the plot in the name of the complainant who even paid a sum of Rs.4500/- to OP2 society as transfer fee of the plot vide receipt No.465 dated 20.11.2002. The allotment of the plots including the plot of the complainant was challenged in various courts and after protracted litigation, the allotment remained intact. However, due to litigation, OP1 did not give possession of the plots nor executed the sale deed and also did not sanction any building plans in respect of the plots including the plot of the complainant. It is further alleged that after the dust of the litigation settled down, OP1 started handing over the possession of the plot to OP2 Society and the Society vide circular No.1-1994-95 asked the allottee of the plot to take possession of the allotted plots. As a result, the possession of the plot was handed over in the year 1994. Due to the pending litigation, OP1 did not start any development work in the scheme and it was only after the end of the litigation, OP1 started   providing civil amenities in the scheme. At that time, the work such as roads, water supply, sewerage, parks and other civic amenities were provided in the Block-G where the plot of the complainant is situated were completed in the year 2003. Thereafter, the complainant started making representations and personal visit to OP1 for execution of the sale deed of the plot. On the asking of OP1, the complainant even obtained no objection certificate from OP2 Society on 28.04.2003 but despite that the sale deed was not executed. On 08.07.2003, the complainant submitted an application with required documents such as no due certificate, no objection certificate etc. However, vide letter dated 27.08.2003 OP1 raised certain objections and insisted that an affidavit be furnished that no case is pending in respect of the plot and development charges of Rs.47,922/- along with Rs.300/- as misc. expenses be also paid. The complainant filed the required affidavit. As regards the development charges, the complainant submitted that since OP2 Society has already paid the amount to the OP Trust, the Trust has no right to ask for the same for second time. After great persuasions, OP1 Trust agreed to recover the amount from OP2 Society. However, the sale deed was not executed in favour of the complainant.

4.                It is further alleged that on 09.06.2006, the complainant again filed representation with OP1 Trust for the execution of the sale deed but OP1 Trust neither executed the sale deed nor intimated the reasons for non-execution of the sale deed and intentionally kept the matter pending. Every time the complainant approached OP1Trust, the latter asked him for fresh NOC and other documents.

5.                It is further alleged that the complainant wanted to raise construction on the plot for which he intended to raise a housing loan from the HDFC Bank. The Bank insisted on a copy of sale deed. As a result, on 03.07.2015, the complainant again applied with the OP Trust for the execution of sale deed. The complainant was shocked to receive memo dated 06.08.2015 whereby OP1 raised a fresh objection that Smt. Prem Sarita be made to appear in person and a fresh NOC be also produced. In addition to that, non-construction fee from 1986  to 2010 amounting to Rs.8,57,067/-  and enhancement fee of Rs.39,672/- and due charges Rs.1,14,072/- in all an amount of Rs.10,10,811/- be deposited. After the allotment of the plot on 03.09.1983, OP1 raised the above objection for the first time after 32 years of the allotment. The objections are false and frivolous. After the notice dated 06.08.2015, the complainant pleaded with the OP Trust to withdraw the same but to no avail. The demand of Rs.8,57,067/- as non-construction fee is totally illegal and unwarranted. There is no provisions in the Punjab Town Improvement Act, 1922 or the rules framed there under for the recovery of non-construction fee nor anything was there in the allotment letter dated 02.09.1983 or in the letter dated 30/31.01.1983 in which terms and conditions of the allotment of the plot were mentioned. These charges were not payable and several superior courts have already quashed such like demand. Even otherwise the parties are bound by the terms and conditions of the allotment letter. There is no provision with regard to levy of non-construction fee in the Utilization of Land and Allotment of Plots by Improvement Trust Rules, 1975 or that of 1964. Even if the allottee fails to raise construction on the plot within 3 years, even then no non-construction fee can be recovered as there was no condition of charging any non-construction fee in the allotment letter. Moreover, the non-construction fee has been claimed with retrospective effect from 01.01.1986 to 30.06.2015 which is totally illegal. The OPs have not considered that the allotment of the plots were challenged before the different authorities and the litigation remained pending for a long period of time and due to the pending litigation, the OP Trust neither handed over the possession of the plot to the allottee nor executed the sale deed and also did not sanction the building plan. Apart from that the Local Government, Punjab vide circular No.5/110/00-2 LGII/4985 dated 22.04.1999 have directed all the Trusts in Punjab  not to charge any non-construction fee, interest or any other penal interest in respect of the plots which remained under stay or subject matter of litigation. It is further alleged that 39 acres of the land of the Society was acquired by OP1 Trust and in lieu of this acquired land, OP1 Trust allotted 16 acres of land in the shape of 281 developed plots of various sizes for allotment to its members. The remaining 16 acres of land was exempted vide Punjab Govt. notification No.5/227/2000-ILGII/18404 dated 26.10.2004. Therefore, the amount of Rs.8,57,067/- as non-construction fee which also includes amount of Rs.4,89,562/- as interest, compound interest and other penalties calculated from 01.01.986 to 30.06.2015 claimed for the first time on 06.08.2015 is illegal, arbitrary and unwarranted. Similarly, OP1 is demanding Rs.1,14,072/- as enhanced sale money of the plot which is also wrong and illegal. The plot of 300 sq. yards was allotted to the complainant @ Rs.66/- per square yards. Therefore, the total cost of the plot comes to Rs.19,800/- against which the complainant has deposited Rs.23,200/-  as cost of the plot. Therefore, the complainant is not liable to pay any more amount towards the cost of the plot. Moreover, the demand has been raised illegally after 32 years just to harass the complainant and as per the settled law, no amount on account of interest or penalty is recoverable from the complainant being allottee. The complainant submitted various representations and also made innumerable visits but the sale deed has not been executed in favour of the complainant even though he has paid the full and final cost and price of the plot. This amounts to deficiency of service on the part of the OPs and which resulted in escalation in the cost of the labour and construction material and other charges causing huge pain, agony and mental tension to the complainant for which he is entitled to get a compensation of Rs.2,00,000/- from the OPs. In the end, it has been requested that the OPs be directed to execute the sale deed in respect of the plot No.207-G, BRS Nagar, Ludhiana in favour of the complainant without recovering the amount of Rs.8,57,067/- as non-construction fee, Rs.39,672/- as amount of enhancement and Rs.1,14,072/- as development charges (total Rs.10,10,811/-). The memo dated 06.08.2015 vide which the aforesaid amounts have been demanded be also quashed and set aside and the complainant be awarded a compensation of Rs.2,00,000/- and litigation expenses of Rs.55,000/-.

6.                The complaint has been resisted by the OPs. In the written filed on behalf of OP1, it has been pleaded, inter alia, that the complaint is not maintainable. According to OP1, the complainant himself remained President of OP2 Society and the no objection certificate dated 20.11.2002 is signed by the complainant himself in the capacity of President of OP2 Society. The complainant being the president of OP2 was well aware that the OP Trust allotted the plots to OP2 Society as LDP (local displaced person) for further allotment to original bonafide/eligible members of OP2 which has not been done by the office bearers of OP2. Even the list of the original eligible members have not been produced on record along with record of further transfer of all plots by OP2 including the plot No.207-G. The complainant is liable to produce the record showing delivery of the plot because he himself has produced same documents of OP2 on the file. The complainant is further bound to place on record documents showing the delivery of possession of all the plots to the allottees including plot No.207-G  and the record pertaining to NCF, development charges etc. paid by the members of OP2 Society. Moreover, the plot No.207-G is not in the name of the complainant but the same is in the name of Prem Sarita. The complainant has sought transfer of the plot in his own name on the basis of self signed NOC. To transfer the plot certain formalities are required to be completed which includes the presence of transferee before the concerned official of OP1 Trust along with original identity proof and the transferee is to state that he/she has no objection against the transfer of the plot and further that all the dues of the plot are liable to be deposited by the transferor/transferee with the LIT before the transfer of the plot. In the instant case, the complainant requested for transfer of the plot in his name and on receipt of his request letter memo No.6403 dated 27.08.2003 and memo No.4598 dated 06.08.2015 were served upon the complainant but he failed to comply with the terms and conditions and has instead filed the present complaint which is not maintainable because the complainant has not deposited the said amount and has also not completed the formalities. Moreover, the complainant is not a consumer as the plot is still in name of Mrs. Prem Sarita. The OP Trust has further pleaded that the counsel for the complainant had remained the Executive officer of OP1 Trust and the resolution No.100 dated 19.09.1998 for recovery of development charges, exemption fee and non-construction fine from OP2 and its members was signed by none else than the counsel for the complainant. It has further been pleaded that the complainant is barred by limitation. The amount of development charges was charged vide resolution No.100 dated 19.09.1998. The complainant has produced on record memo No.6403 dated 27.08.2003 through which the complainant was requested to complete certain formalities for the transfer of the plot but he failed to comply with the letter dated 27.08.2003 and as such, the complaint is barred by time.

7.                On merits, it has been pleaded by OP1 that the complainant is not original bonafide member of OP2 Society and is not entitled to any plot as LDP from OP2. The plot No.207-G was allotted by OP2 to Prem Sarita against her membership No.679. OP1 is unaware of membership No.1319 referred to in the complaint. Moreover, the complainant is not a local displaced person and, therefore, is not entitled for the allotment of the plot. There is no privity of contract between the complainant and OP1. The plots were allotted by OP1 Trust to OP2 Society for further allotment to its bonafide members but it appears that the terms of the allotment were not complied by OP2 and the plots meant for local displaced persons have not been allotted to them and are being allotted to some other persons against the terms and conditions of the allotment of plots. The complainant was not original member of OP2 Society. OP1 has further pleaded that the complainant was not the original member of the Society and his membership was created for getting the plot on concessional rates from the LIT and, therefore, the complainant has no locus standi to file the present complaint. Besides, the original allottee Prem Sarita never made any complaint pointing any fault or deficiency on the part of OP1.

8.                OP1 has further pleaded in the written statement that the complainant has not produced any document to show that he was LDP and was entitled for the allotment of the plot in the capacity of LDP. No documents allegedly executed by Prem Sarita for the transfer of the plot in favour of the complainant has been produced on record nor Prem Sarita herself ever appeared before OP1 for the transfer of the plot from her name to the name of the complainant. Even the transfer of the plot from the name of Prem Sarita in the name of the complainant is not genuine. In fact, the powers of the office bearers of OP2 have been misused and the complainant cannot take benefit of his own wrong by not allotting the plot to the bonafide eligible member of the society. The complainant is bound to disclose as to whether he is the same person who signed the NOC himself in the capacity of OP2 or not. The counsel representing the complainant was himself the Executive Officer of OP1 Trust when the resolution No.100 dated 19.08.1999 was passed and now the counsel is stating something else in the complaint against resolution No.100 dated 19.08.1998 to which he himself has been a signatory. Moreover, NOC allegedly issued by OP2 in favour of the complainant is not binding upon OP1 and in the letter dated 28.04.2003, it is nowhere been mentioned that the OP Trust cannot charge non-construction fee, interest etc. from the allottee who is none else but the president of OP2 Society and he himself has been writing some letters to OP2 Society and is also replying the said letters to himself on behalf of OP2/ According to OP1, non-construction fee is liable to be paid  by all the persons who failed to raise construction after getting sanction the building plan of the plot from LIT within stipulated period of three years. The complainant never got sanctioned the building plan from the LIT within stipulated period and he also failed to raise construction on the said plot and as such, the allottee of the plot is liable to pay the amount due against this plot including non-construction charges. OP1 has further pleaded that LIT demanded Rs.4,60,542/-  in the letter Annexure C-16 and this amount has been referred in clause No.15 of the letter memo No.6403 dated 27.08.2003. The complainant has failed to deposit non-construction fine etc. with OP1 and has filed the present false complaint after a period of more than 15 years. Moreover, OP1 never agreed to recover the due amount against the plot from OP2 and it never agreed to execute sale deed of the plot without getting the due amount against the plot, without getting the due amount against the plot and without presence of the allottee Prem Sarita before the LIT along with required documents and no objection certificate regarding the transfer of the plot. The other allegations made in the complaint have been denied as incorrect and a prayer for dismissal of the complaint has also been made.

9.                In a separate written statement filed on behalf of OP2, all the facts mentioned in the complaint have been admitted. It has further been admitted that a fresh no objection certificate was issued to the complainant by OP2 on 28.04.2003 on the request of the complainant. It has also been admitted that the complainant has already paid the development charges to the society and further that the Improvement Trust has no right or authority to fix and recover the non-construction charges, development charges and enhancement charges from the members of the society because OP1 has already recovered development charges through the cost of the land from OP2. It has further been pleaded that there has been no negligence or deficiency of service on the part of OP2 and therefore, the complainant is not entitled to any relief as against OP2. In the end, prayer for dismissal of the complaint as against OP2 has been made.

10.              In evidence, the complainant submitted her affidavit as Ex. CA along with documents Ex. C1 to Ex. C28 and closed the evidence.

11.              On the other hand, learned counsel for the OP1 tendered affidavit Ex. RA of Sh. Paramjit Singh, Executive Officer of OP Trust along with documents Ex. R1 to Ex. R20 and closed the evidence. OP2 did not tender any evidence and submitted a statement in this regard. 

12.              We have heard the learned counsel for the parties and written arguments submitted by the complainant as well as OP1 and have also gone through records.

13.              During the course of arguments, the counsel for the complainant has contended that the plots were allotted to the Society in the year 1983 vide letter dated 31.01.1983 (Ex. C4). It has further been pointed out that as per condition No.3 the allottee would sell the plot or the building constructed on the plot after a period of 10 years from the date of allotment. The Plot No.207-G was allotted to Prem Sarita. She paid full consideration, development charges and amount of enhancement to the OP2 Society which further paid those amounts to the Trust. After expiry of 10 years, Prem Sarita sold the plot to the complainant who was a member of the Society. The Society charged transfer fee of Rs4500/- and allowed the transfer in the name of the complainant and vide letter dated 20.11.2002 the complainant asked the OP Trust to make necessary changes in its record of transfer. The counsel for the complainant has further pointed out that till 20.11.2002, the OP Trust never raised any objection nor pointed out any defect in the transfer and now after 15 years, the OP Trust has raised false and frivolous objection.

14.              It has further been contended by the counsel for the complainant that the allotment of the plot including the plot in question remained under litigation as is evident from Ex. C24 and Ex. C25 and, thereafter, the plots were re-allotted on 09.05.1993 and agreement dated 03.05.1994 Ex. R15 was executed regarding exemption fee and payment of development charges. The possession was also not handed over nor any civic amenities were provided. It was only after the settlement of the litigation that on 28.04.2003 the OP Society issued the NOC for execution of sale deed and, thereafter, the complainant requested the OP Trust to hand over the possession and execute the sale deed. In support of his arguments, the counsel for the complainant has relied upon Improvement Trust Ludhiana Vs Neeraj Chugh in First Appeal No.1278 of 2009 decided by the Hon’ble State Consumer Disputes Redressal Commission, Punjab on 16.09.2013 whereby it has been held that the complainant was not required to pay non-construction charges and the Trust was also directed to refund the non-construction charges of Rs.1,39,100/-, development charges of Rs.52,800/-which were held to be recoverable from the Society and not from the allottee. The counsel for the complainant has further relied upon 1999 (2) CPC 537 in Improvement Trust Barnala Vs Mrs. Shashi Kansal and others whereby it has been held by the Hon’ble State Consumer Disputes Redressal Commission, Punjab that the demand made by the Improvement Trust on account penalty  and extension fee for non-construction of house for 3 years was held to be illegal. The counsel for the complainant has further relied upon 2003(3) CLT 484 in Improvement Trust Ludhiana Vs Ram Parkash and another whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that non-existing plot handed over to the society which is a deficiency of service. The counsel for the complainant has also relied upon 2014(1) Law Herald (P&H) 546 (DB) in Haryana Urban Development Authority, Panchkula and another Vs Prem Singh whereby it has been held by the Hon’ble Punjab and Haryana High Court that the petitioners have stepped into shoes of their predecessor and they have all rights to get refund of excess amount which was paid by the predecessor. The counsel for the complainant has further relied upon  1994(1) PLR 268 in G.M. Worsted Spinning Mills (P) Ltd. Vs Haryana Urban Development Authority whereby it has been held by the Hon’ble Punjab and Haryana High Court that if there is no provision in the terms and conditions of sale that construction had to be completed by a particular date, show cause notice to resume  the plot because of non raising of construction by a particular date without affording a fair and reasonable opportunity, cannot be sustained. It has also been contended by the counsel for the complainant that since at the time of allotment of the plot in question, there was no provision/condition either in the allotment letter or in the relevant rules regarding imposition of non-construction charges, the same are not recoverable from the complainant even though the relevant rules have been subsequently amended. In support of these arguments, the counsel for the complainant has also relied upon State of Madhya Pradesh and others Vs Yogendra Shrivastava in Civil Appeal No.3156 of 2007 decided by the Hon’ble Supreme Court of India on 07.10.2009 whereby it has been held that right and benefits already earned or acquired under the un-amended rules cannot be taken away by amending the rules with retrospective effect.

15.              On the other hand, the counsel for OP1 has argued that the present complaint is totally false and frivolous considering the fact that the plot No.207-G was allotted to Prem Sarita in the capacity of LDP. The complainant being the President of OP2 society was under an obligation to produce the entire record relating to the plot in question but the complainant has not produced the record showing delivery of possession of all the plots including plot No.207-G to the bonafide members. The complainant was further liable to produce on record the record of payments of non-construction fee, development charges paid by the members of OP2 Society but the same has also not been done and on this account an adverse inference has to be drawn. The complainant has sought the transfer of plot No.207-G in his name but for the transfer, certain formalities are required to be completed. The presence of transferor and transferee along with identity proof is also required. The counsel for OP1 has further contended that on receipt of transfer request, the complainant vide letter dated 27.08.2003 and memo No.4598 dated 06.08.2015 was called upon to comply with the formalities but he has not done so nor has deposited the requisite amount. It has further been contended by the counsel for OP1 that even otherwise, the complaint is barred by limitation. The decision regarding development charges and non-construction fee was taken vide resolution dated 19.08.1999 whereas the present complaint has been filed in the year 2015. Moreover, the complainant is not a local displaced person and, therefore, is not entitled for allotment of any plot nor there is any privity of contract between the complainant and OP1 Trust. As a matter of fact, the complainant is misusing the powers being President of OP2 Society. It has also been contended by the counsel for OP1 that the alleged NOC Ex. C12 relied upon by the complainant is not binding upon the OP Trust. The counsel for OP1 has further contended that the Trust is entitled to charge non-construction fee from all those persons who failed to raise construction within stipulated period of three years. The complainant never got any plan sanctioned from the OP Trust within the stipulated time nor has raised any construction. 

16.              We have weighed the contentions raised by the counsel for the parties and have gone through the record.

17.              By way of this complaint, the complainant has sought the following reliefs:-

i.        Sale deed of the plot No.207-G, Bhai Randhir Singh Nagar,                       Ludhiana be executed n favour of the complainant.  

ii.       The demand of Rs.8,57,067/- on account of non-construction fee,               Rs.39,672/- on account of enhancement and Rs.1,14,072/- on                              account of development charges be quashed.

18.              As per the own case of the complainant, the plot were allotted by the OP Trust to the Society vide allotment letter Ex. C3 dated 02.09.1983 and the detailed terms and conditions of the allotment were incorporated in the letter Ex. C4 dated 30.01.1983 of the OP Trust. The complainant has further claimed that the plot in question bearing No.207-G was allotted to his predecessor-in-interest vide allotment letter Ex. C6. Surprisingly, no date of allotment is mentioned in Ex. C6. Ex. C4 is the terms and conditions of the allotment and condition No.4 of letter Ex. C4 shows that the construction of a house would be raised within period of three years from the date of allotment in accordance with the Trust rules and regulations. The complaint is totally silent as to exactly when the possession of the plot No.207-G was handed over to Prem Sarita. In the complaint in para No.10, it has been alleged that some circular Ex. C11 dated 08.07.1994 regarding possession was issued by OP2 Society on 08.07.1994 but there is no specific reference of any particular plot including plot No.207-G. The complainant has not produced on record any record of OP2 Society though he has been a President of the said Society to prove as to exactly when the possession of the plot No.207-G was given to Prem Sarita. If the plots were allotted by the Trust to the Society on 09.02.1983, the possession of the plots must have been given to the allottees within a reasonable time from 09.02.1983. However, no tangible evidence has been led by the complainant in this regard. As stated above, even the certificate Ex. C6 does not bear any date. It appears that the complainant is trying to obfuscate the whole issue especially with regard to the delivery of possession of the plot to Prem Sarita. It has also not been clarified as to exactly when the complainant purchased plot from Prem Sarita. In this regard, only no objection certificate Ex. C9 has been placed on record dated 20.11.2002 and the same has been signed by none else than the complainant himself in the capacity of President of OP2 Society. There is further no evidence that the allotment or the delivery of possession was withheld due to some litigation pending in respect of allotment of the plots between the Trust or the Society or any other institution. In this regard also, the complainant has not placed on record any document, copy of any court order whereby the allotment of the plots or delivery of possession might have been stayed by any authority of Court. The complainant, who has admittedly been a President of OP2 Society, must have been in possession of the entire record with regard to allotment of the plots of each member including plot No.207-G and also the delivery of possession but no such record has been placed on record. Rather the record has been purposely with-held and on this ground an adverse inference has to be drawn against the complainant.

19.              Once it has been admitted in the complaint itself that the allotment by the Trust to the Society was made on 02.09.1983, in the absence of any evidence with regard to allotment of plot and delivery of possession of plots to the allottees/members of OP2 Society, it has to be presumed that the allotment of the plots and delivery of possession must have been made within a reasonable time. If the allotment of the plot as made to the complainant within a reasonable time from 02.09.1983, admittedly, the original allottee Prem Sarita never raised any construction over the plot in question nor she applied for getting a site plan of the proposed construction approved from the OP Trust at any point of time. Though it has been claimed in para No.11 of the complaint that due to pending litigation, no development work of the scheme was started by OP1 in the end of the year 2003. The development works such as road, water supply, sewerage connection, parks and other civil amenities were provided by OP Trust in Block-G in the year 2003 only. However, in this regard, again no worthwhile evidence has been led that as a matter of fact, no development was  carried out by the OP Trust until 2003. Here again it needs to be observed that  OP2 Society must have been in possession of all the record as to when the development work was carried out by the OP Trust but again no such record has been produced. Therefore, it cannot be said that the development work took place or was completed in the year 2003 only. As stated earlier, the complainant has further not led any evidence as to when he purchased the lot from the original allottee Prem Sarita and on what terms and conditions. In this regard, no record of transfer of the plot purportedly executed by Prem Sarita in favour of the complainant has been placed on record. Prem Sarita has not been made a party in this case nor she has been examined as a witness. In the given circumstances, the OP Trust was fully justified in insisting upon the physical presence of Prem Sarita for the proposed transfer of the plot in favour of the complainant as the OP Trust is duty bound to verify the bonafides of each case for effecting the transfer and it has a bounded duty to discharge  that no fraudulent transfer takes place in the event of which the axe is going to fall upon the OP Trust.

20.              From the perusal of the record, it further transpires that Prem Sarita after the allotment of the plot in 1983 or any time subsequent thereto never raised any construction in utter disregard of the term and conditions of the allotment which clearly provides that the allottee was to raise construction within a period of three years. The complainant claims to have purchased the plot from the original allottee Prem Sarita and the letter of transfer relied upon by the complainant Ex. C9 is dated 20.11.2002. It has been claimed in the complaint in para no.11 that the OPs started handing over the possession of the plot in the year 1994 through the civil amenities were completed in the year 2003. However, in this regard, it has been stated above also that no evidence has been led. However, as per own admission of the complainant, the process of delivery of possession of the plot took place between 1994 and 2002. Neither the complainant nor the original allottee Prem Sarita raised any construction nor applied for sanctioning of any site plan with OP1 with the intention to raise any construction. After getting the plot allegedly transferred in his name vide transfer deed dated 20.11.2002 the complainant obtained no objection certificate from OP2 Society on 28.03.2003 and, thereafter, on 08.07.2003, the complainant filed an application for transfer of the plot in his name upon which the OP Trust raised  certain objections regarding the execution of the sale deed in respect of the plot in question of the complainant and also demanded development charges of Rs.47,922/- vide letter dated 27.08.2003, copy of which is Ex. C16. After the receipt of this letter, the complainant again went into hibernation and, thereafter, approached the OP Trust only on 09.06.2006 when he again filed a representation Ex. C17. However, even when no worthwhile action was taken by the OP Trust after the receipt of the representation Ex. C17 dated 09.06.2006, thereafter, the complainant approached the OPs on 03.07.2015 i.e. after a period of nine years and it was only in the year 2015 that the complainant revealed his intention to raise construction over the plot for the first time after availing a housing loan from HDFC Bank. Thereafter, the OP Trust issued letter dated 06.08.2015 stating that Prem Sarita be produced in person before the Trust and a fresh NOC be obtained from the society presumably on the ground that previous transfer  certificate submitted by the complainant carried the signatures of the complainant himself in the capacity of President of OP2 Society, to say the least that an office bearer, who cares even a little bit for any propriety, would not sign the certificate in his own name.

21.              We have thoughtfully considered the above contentions. It is evident from the record that the plot in question along with other plots was allotted in the year 1983. Even if it is admitted for the sake of arguments that the possession was delivered in 1984, the complainant or the original allottee was under an obligation to raise construction of a house within a period of three years but till date absolutely no construction has been raised at the plot in question even after a lapse of more than 35 years of the allotment. The Punjab Town Improvement (Utilization of Land and Allotment of Plot) Rules 1983 were introduced on 22.12.1983 and as per Regulation 10 of Utilization of land and Allotment of Plot by Improvement Trust Rules 1975 were repealed.

22.              Rule 13 of the Punjab Town Improvement (Utilization of Land and Allotment of Plot) Rules 1983 clearly provides that the allottee is supposed to take possession of the plot within period of three years or within a period of two years from the date of providing basic civic amenities. It further provides that if the construction is not raised within the stipulated period of two years or within an enhanced period of further two years, the Trust would be entitled to resume the plot. In this regard, a reference can be made to Form-D given at the end of 1983 rules which provides that if the construction is not raised within stipulated period, the allottee is required to deposit the prescribed non-construction fee with the Trust. Even if the amendment with regard to imposition of non-construction fee was introduced with regard to amendment in the year 2005 in 1983 rules, in our considered view, said clause would definitely apply upon the complainant or his predecessor in interest who despite having been allotted the plot in 80s or early 90s has neither raised any construction nor paid any non-construction charges. The letter of allotment Ex. C6 in the name of Prem Sarita does not bear any date but the receipts vide which the amounts of Rs.15,700/- dated 04.03.1995, Rs.3,000/- dated 09.03.1995 and Rs.4,500/- dated 28.06.1995 deposited with OP2 Society which are Ex. C7, Ex. C8 and Ex. C8A on the file. Therefore, the complainant being the successor in interest of Prem Sarita cannot escape from the mischief of the provisions of Punjab Town Improvement (Utilization of Land and Allotment of Plot) Rules 1983 when it stands established on the record that the allotment was made to Prem Sarita  after the year 1983. Therefore, the question of non-payment of non-construction fee due from 2005 onwards does not arise as despite the plot having been allotted more than 20-25 years ago no construction was raised. Similarly, the other amounts on account of enhancement and development charges of Rs.39,672/- and Rs.1,14,072/- are also payable as no worthwhile evidence has been led by the complainant that all amounts pertaining to enhancement or development charges had also been paid by OP2 Society to the OP Trust. It is noteworthy that OP2 Society has not chosen to contest the case and has been proceeded against exparte while the complainant himself has been the President of OP2 Society and despite that he  has not preferred to produce the record.  

23.              So far as the question of transferring the plot in the name of the complainant is concerned, OP1 is well within its right to insist upon the appearance in person of the original allottee Prem Sarita so as to ascertain whether the transfer by the original allottee in favour of the complainant is genuine or not. The complainant is bound to fulfill all the necessary formalities with regard to the transfer of the plot from the name of Prem Sarita especially when the complainant has not produced on record any worthwhile evidence except the NOC issued by OP2 Society which too has been signed by the complainant himself in the capacity of President of the Society. In these circumstances, in our considered view, it would be just and proper if the complainant is directed to pay the outstanding non-construction charges due from 2005 onwards, development charge and enhancement charges up to date upon which OP1 Trust shall transfer the plot in the name of the complainant in accordance with the rules subject to fulfillment of formalities of transfer, if any.

24.              As a result of the above discussion, the complaint is disposed of with an order that OP1 Trust shall ascertain and convey the outstanding non-construction fee/charges from 2005 onwards along with upto date development charges and enhancement fee, if any, to the complainant within a period of 30 days and after affording a reasonable time to the complainant to pay the same to OP1 Trust and, thereafter, OP1 Trust shall consider and transfer the plot in question to the complainant subject to completion of all formalities of transfer as per rules. However, there shall be no order as to costs. The complaint as against OP2 is dismissed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

25.              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:06.09.2022.

Gobind Ram.

Mool Chand Vs Ludhiana Improvement Trust                         CC/15/611

Present:       Sh. L.D. Gupta, Advocate for the complainant.  

                   Sh. Bhalinder Singh Advocate for the OP1.

                   Sh. Ravinder Sharma, Advocate for OP2.

                  

                   Arguments heard. Vide separate detailed order of today, the complaint is disposed of with an order that OP1 Trust shall ascertain and convey the outstanding non-construction fee/charges from 2005 onwards along with upto date development charges and enhancement fee, if any, to the complainant within a period of 30 days and after affording a reasonable time to the complainant to pay the same to OP1 Trust and, thereafter, OP1 Trust shall consider and transfer the plot in question to the complainant subject to completion of all formalities of transfer as per rules. However, there shall be no order as to costs. The complaint as against OP2 is dismissed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:06.09.2022.

Gobind Ram.