Before: Shri Paramjit Singh (President)

Shri Gulshan Prashar (Member)

Present: Shri Shri Mohit Kapoor counsel for the complainant

Shri Vikas Opal counsel for opposite party

ORDER

Gulshan Prashar (Member)

1. Brief facts of the case are that Nand Lal son of Mala Ram, R/o. 2496, HIG Flat, Urban Estate, Phase-II, Dugri Road, Ludhiana has filed the present complaint as attorney of complainant. The complainant was allotted Plot No. 5 in Rajiv Gandhi Enclave, Kapurthala vide letter bearing No. K.I.P. 2005/788 Dated 16.7.2005 for a total sum of Rs.3,18,840/- to be paid in installments.

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The complainant had paid all the installments to the opposite party and thereafter entered into an agreement with the opposite party and complainant vide her letters dated 31.10.2008 and 4.8.2009 has called upon the opposite party for sanctioning of the plan of the plot No. 5, but the opposite party failed to give any reply till date. On 17.8.2005, the complainant had applied with the opposite party for delivery of the actual physical possession which letter was duly received by the opposite party on 17.8.2008. Inspite of receipt of said letter, opposite party failed to deliver the physical possession of the plot, which is deficiency in service on the part of opposite party. Hence the present complaint. It is alleged that one Gian Singh had filed a civil suit against the opposite party impleading complainant as one of the parties and said civil suit is pending before Civil Judge, Kapurthala but no relief has been claimed against complainant.

2 Notice of the complaint was issued to the opposite parties who appeared through counsel and filed written statement raising as many as four preliminary objections by refuting all the allegations made in the complaint that the complainant is not consumer, the matter is of civil nature and a civil suit is already pending in the civil court, hence this Forum has no jurisdiction to try the present complaint, that the complainant has suppressed material facts from this Forum. On merits, this fact is denied that if Nand Lal is attorney of complainant. Gian Singh had filed a civil suit in which he had claimed decree for possession of the land measuring 4 kanals 4 marlas on the allegations that opposite party has illegally occupied his land. It is alleged that the stay application filed in that suit had

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been dismissed by the trial court vide its order dated 4.12.2006 and 12.2.2009 and the suit is now fixed for evidence. Gian Singh had also filed an appeal against that order dated 12.2.2009. The complainant is not suffering any sort of mental tension, torture and agony. There is no deficiency in service on the part of opposite party. All other allegations made in the complaint have been denied.

3. The counsel for the complainant has tendered into evidence affidavits Ex.CA and Ex. CB along with documents Ex.C1 to Ex.C12 and closed the evidence.

4. On the other hand the opposite parties tendered into evidence affidavit Ex.R1 along with document Ex.R2 and closed the evidence.

5. We have heard learned counsel for the parties. The counsel for the opposite party has challenged the special power of attorney issued by Ms. Bindiya Khatri in favour of her father Shri Nand Lal. The complainant has placed on the file copy of special power of attorney on the file and the same is Ex.P2 and there is no person to disbelieve this power of attorney executed by the complainant in favour of her father.

6. It is admitted fact of both the parties that the complainant Ms. Bindiya Khatri was allotted plot No. 8 in Rajiv Gandhi Enclave, Kapurthala by the office of Improvement Trust vide letter bearing No.K.I.P. 2005/788 Dated 16.7.2005 for a total sum of Rs.3,18,840/-and the complainant had already deposited the entire amount with the opposite party in installments. Vide Ex.P3 the complainant had applied for possession of plot No. 5 in Rajiv Gandhi Enclave, Kapurthala. Ex.C4 is the application for sanctioning of the

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plan. It is mentioned in this application that the complainant had paid all the installments and she wants to construct a house on the plot allotted to her, but due to some litigation Gian Singh and Improvement Trust, the same could not be allotted to the complainant. The counsel for both the parties admitted all these documents to be true. The main objection of the opposite party is that civil suit is pending in the civil court titled as Gian Singh Ahluwalia Vs. Improvement Trust and the Hon’ble District Judge, Kapurthala had passed an order dated 17.3.2009 directing the parties to maintain status quo on the land in question as it exists on this date. The counsel for the opposite party has also submitted that the present complainant is also a party in that suit. So the complainant is also barred by the provision of Section 10 of the Civil Procedure Code.

7. In this case, the counsel for the opposite party has admitted that the Improvement Trust allotted plot No. 5 in Rajiv Gandhi Enclave, Kapurthala to the complainant and the total price of this plot was mentioned in the allotment letter as Rs.3,18,840/- and the complainant had paid all the installments to the opposite party and she had applied for the possession of this plot vide Ex.C3 and had also requested the sanctioning of the side plan of this plot vide Ex.C4. The receipt of these documents in the office of opposite party is admitted by the counsel for the party.

8. After hearing both the counsel for the parties, we are of the view that the possession of Plot No. 5 in Rajiv Gandhi Enclave, Kapurthala cannot be handed over to the complainant till the

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decision of the appeal by the Hon’ble District Judge, Kapurthala. Hon’ble District Judge, Kapurthala. had also passed an order dated 17.3.2009 on the appeal of one Gian Singh Ahluwalia against the Improvement Trust and against the allottees including the complainant.

9. That if the complainant wants to get back her amount deposited with the Improvement Trust, Kapurthala, she can apply for the refund. So we accept the complaint with following directions to the opposite party Improvement Trust, Kapurthala -

a) The opposite party is directed to refund her amount of Rs.3,18,840/- within one month from the receipt of application in this behalf from the complainant with interest at the rate of 9% from different dates of deposit of installments.

b) In case the opposite party develops another site for the allotment of plots to General Public and the complainant wants to get a plot in the new locality, she will be allotted a plot in the new locality on priority basis preferably within six months from the allotment of first plot in that locality and she will be allotted a plot of the same size at the same costs on which previous plot was allotted to her.

c) The Improvement Trust allotted the plots in Rajiv Gandhi Enclave, Kapurthala to different persons without acquiring the land for allotment to different persons. As such, there is a deficiency in service on the part of the opposite party.

Besides the above directions, we also direct the opposite party to pay a sum of Rs.20,000/- as compensation on account of deficiency in service on the part of the opposite party. The opposite

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party is also directed to pay Rs.2,000/- to the complainant as costs of the complaint within two month from the receipt of copy of this order. Copy of the order be sent to the parties through registered post free of costs. File be consigned to the record room.

Dated: Gulshan Prashar Paramjit Singh

27.5.2010 Member President