DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> <br /> <br /> C.C. No. 199 of 17.7.2007<br /> Decided on : 26.9.2007 <br /> <br /> Deepak Kochhar S/o Sh. K.C Kochhar, House No. 681, Phase-1, Model Town, 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. S.K. Singla, Advocate<br /> For the opposite party : Sh. M.R Gupta, Advocate <br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Vide allotment letter No. 500/ITB dated 22.9.1999 plot No. 101-C/53-C (New) measuring 191 Sq. Yards of general category was allotted to the complainant by the opposite party out of 49.50 Acres Scheme of Improvement Trust, Bibi Wala Road, Bathinda for a consideration of Rs. 2,73,130/-. Terms and conditions of allotment have been mentioned in the allotment letter. Amount of all the instalments has been deposited by him against proper receipts. Letters dated 13.7.2004, 21.5.2005, 11.3.2006, 18.1.2007 and 10.4.2007 were sent by him to the opposite party with the request to handover actual and physical possession of the plot. He (complainant) and his father paid numerous visits to the officials of the opposite parties and made requests for delivering the possession. His oral as well as written requests proved futile. Opposite parties did not send reply of the letters. Instead of giving possession of the plot, opposite party vide its letter No. 788 dated 10.5.2007 directed him to deposit non-construction charges for the year 2006-07 alongwith interest thereon and also to deposit the enhanced price of Rs. 35,335/- alongwith interest thereon w.e.f. 30.4.2004. He alleges that since possession of the plot has not been given to him after demarcation, the question of claiming non-construction charges by the opposite party from him, does not arise. It cannot take benefit of its own wrong. So far as demand of Rs. 35,335/- is concerned, it was not raised prior to 10.5.2007. Hence, the question of claiming any interest on this amount w.e.f. 30.4.2004 does not arise. Demand of interest is illegal. He alleges deficiency in service and unfair trade practice on the part of opposite party. Accordingly, this complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred by the complainant seeking direction from this Forum to the opposite party that demand of non-construction charges alongwith interest thereon and of interest on amount of Rs. 35,335/- w.e.f. 30.4.2004 be declared null and void; Rs. 20,000/- be paid as compensation and Rs. 5,000/- as costs. <br /> 2. On being put to notice, opposite party filed reply of the complaint in the shape of written statement taking legal objections that complaint is not maintainable in its present form and complainant cannot take benefit of his own wrong. As per clause No. 14 of the agreement, he is liable to pay the enhanced compensation. According to para No. 5 of the allotment letter dated 22.2.99, he was bound to complete the formalities i.e. to execute agreement regarding the allotment of plot within 30 days, but he did not complete them. Letter No. 3253 dated 23.10.2001 was issued to him. On 19.11.2001 formalities were completed and agreement was executed. Vide letter No. 934 dated 30.4.2004 enhanced compensation was demanded which has not so far been deposited. Similarly, non construction fee has not been deposited. Letter dated 10.4.2007 was received by it from the complainant regarding possession certificate and actual possession. In response to it, non construction fee alongwith interest and amount of increased compensation was demanded from him which has not been deposited. As per clause No. 15 of the agreement, matter is liable to be referred to the Arbitrator. Complainant is estopped from filing the complaint by his act and conduct and he has not come to this Forum with clean hands. On merits, it admits that plot was allotted and complainant has deposited the amount of all the instalments. It denies the remaining averments in the complaint.<br /> 3. In support of his allegations and averments in the complaint, Sh. Deepak Kochhar complainant tendered into evidence his own affidavit (Ex.C.1), photocopy of agreement (Ex.C.2), photocopies of letters (Ex.C.3, Ex.C.7, Ex.C.14, Ex.C.16, Ex.C.18, Ex.C.20, Ex.C.22 & Ex.C.23 respectively), photocopy of envelope (Ex.C.4), photocopy of allotment letter dated 22.2.99 (Ex.C.5), photocopy of payment schedule (Ex.C.6), photocopies of payment receipts (Ex.C.8 to Ex.C.13) & photocopies of postal receipts (Ex.C.15, Ex.C.17, Ex.C.19 & Ex.C.21 respectively). <br /> 4. On behalf of opposite party, reliance has been placed on affidavit (Ex.R.1) of Sh. Gora Lal Jindal, Executive Officer, photocopy of letter dated 23.10.2001 (Ex.R.2), photocopies of pages No. 257 & 26 of the despatch register (Ex.R.3 & Ex. R-4) respectively.<br /> 5. 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 /> 6. Some are the undisputed facts. They are that plot No. 101-C/53-C (New) was allotted to the complainant vide allotment letter dated 22.2.99, copy of which is Ex.C.5, for a consideration of Rs.2,73,130/-. Entire amount of instalments has been paid by him as is evident from the admission on the part of the opposite party and copies of the payment receipts Ex.R.8 to Ex.R.13. Last instalment was deposited on 14.8.2001.<br /> 7. One of the objections of the opposite party is that as per clause No. 15 of the agreement, if any dispute or difference at any time arises between the parties, the same is liable to be referred to the Arbitrator. Learned counsel for the opposite party argued that this Forum has got no jurisdiction. <br /> 8. After giving our thoughtful consideration to this submission, we do not feel ourselves inclined to agree with the learned counsel for the opposite party. Provisions of the Act are in addition to and not in derogation of provisions of any other law for the time being in force. In other words, the remedy available under the Act is an additional one. Hence, clause No. 15 cannot stand as a bar to the jurisdiction of this Forum to entertain and try this complaint.<br /> 9. Contention of the learned counsel for the complainant is that demand of non construction charges alongwith interest for the years 2006 and 2007 on the basis of the letter dated 10.5.2007, copy of which is Ex. C.23, is illegal as possession of the plot has not been delivered to the complainant despite oral and written requests. He is also not liable to pay interest on the enhanced compensation of the plot on account of the fact that prior to 10.5.2007 demand for enhanced compensation of Rs. 35,335/- was not made from him.<br /> 10. Mr. Gupta, learned counsel for the opposite party argued that as per clause No. 14 of the agreement, complainant is liable to pay the enhanced compensation and the interest thereon. He did not raise construction within three years and on that account, he is liable to pay non construction charges for the years 2006 and 2007 alongwith interest thereon as demanded through impugned letter. <br /> 11. We have considered respective arguments. Clause No. 14 of the agreement dated 14.8.2001, copy of which is Ex.C.2, is reproduced as under:- <br /> “Enhancement of compensation of land:<br /> The intended vendee undertake that in the event of the present rate of land offered to the original owners being revised and enhanced by the competent authority as a result of reference made under section 18 of the Land Acquisition Act 1894, now pending before Land Acquisition Tribunal, Bathinda or filed thereafter, the vendee shall pay to the Trust such other amount as may be fixed by the Trust to meet the additional cost of land arising out of such adjudication. The intended vendee/allottee understands that the present reserved sale price of the land is tentative subject to fixation after the final assessment by the competent authority. The intended vendee/allottee, his legal heirs and successors shall be bound to pay the enhanced reserve price.” <br /> 12. Ex.C.5 is the copy of allotment letter. Its clause No. 3 also makes the position crystal clear regarding the payment of enhanced compensation. According to it, price of the plot is subject to variation with reference to the actual measurement of the plot at site as well as in case of enhancement of compensation by the court or otherwise, allottee has to pay the additional price of the plot, if any, determined by the Trust within 30 days from the date of demand. Admittedly, complainant had previously given his address as VPO Rania, Tehsil Nihal Singhwala, District Moga. Accordingly, letter No. 934 dated 30.4.2004 was issued to him at this address under postal certificate as is evident from Ex.C.4. Report was received on it that addressee(complainant) was not residing at this address. Even letter of allotment was issued to him at this address as per Ex.C.5. Complainant gave intimation of his new address to the opposite party as is clear from Ex.C.7. This letter is undated. Letter No. 1336 dated 15.6.2004 was accordingly issued by the opposite party raising demand of the enhanced compensation on the old as well as new address as is obvious from the copy of the letter Ex.C.3 and the copy of the entries (Ex.R.4) in the despatch register. What else could be expected from the opposite party for raising the demand of enhanced compensation alongwith interest. Land Acquisition Tribunal, Bathinda enhanced the compensation of the land. Opposite party in the interest of the public filed Writ Petitions in the Hon'ble High Court which were admitted subject to the condition of deposit of 25% of the enhanced compensation amount. Accordingly, 25% amount was deposited by the opposite party. Resolution No. 65 dated 15.12.2003 was passed by the opposite party for getting deposited this 25% amount from the concerned persons subject to final decision of the Hon'ble High Court as part payment. Since, amount has been deposited by the opposite party watching the interest of the allottees including the complainant, it can claim interest on the amount deposited and the amount alongwith interest by the complainant would be subject to the decision of the Hon'ble High Court. Hence, impugned letter dated 10.5.2007 is quite legal and valid to this extent. In other words, complainant is liable to deposit the amount of Rs. 35,335/- alongwith interest demanded from him.<br /> 13. Other grouse of the complainant is that opposite party is claiming non-construction charges from him illegally and arbitrary for the years 2006 and 2007. His this pea is tenable. Stance of the opposite party is that complainant did not complete the formalities till 19.11.2001, whereas complainant claims that formalities were completed on 14.8.2001 including the execution of the agreement for sale. Even if the plea of the opposite party is considered that requisite formalities were completed on 19.11.2001, even then, there could be no obstacle before the opposite party to handover the actual and physical possession of the plot to the complainant. As per clause No. 7 of the allotment letter, complainant was required to complete the building on the allotted plot within three years from the date of issuance of the allotment letter after getting demarcation and after getting plan of the proposed building approved. In the case in hand, there is nothing to establish that opposite party ever invited the complainant orally or in writing to take possession of the plot after getting demarcation done. To the contrary, complainant was running from pillar to post for getting possession. He wrote several letters to the opposite party, copies of which are Ex.C.14, Ex.C.16, Ex.C.18 and Ex.C.20. Postal receipts are Ex.C.15, Ex.C.17, Ex.C.19 and Ex.C.21. Building was to be erected on the plot in question, the possession of which was to be delivered by the opposite party. Since, its possession has not been delivered, the question of payment of non-construction fee by the complainant for the years 2006 and 2007, does not arise. Accordingly, letter dated 10.5.2007, copy of which is Ex.C.23, through which non construction charges have been demanded from him for the years 2006 & 2007 alongwith interest is illegal, null and void and is liable to be set-aside to this extent. Since, opposite party is arbitrarily demanding non construction charges alongwith interest, there is deficiency in service and unfair trade practice on its part.<br /> 14. Now question arises as to which relief should be accorded to the complainant. In view of our aforesaid discussion, direction deserves to be given to the opposite party not to recover the non construction fee for the years 2006 & 2007 from the complainant alongwith interest on the basis of the letter dated 10.5.2007. Admittedly, complainant has deposited the entire amount of instalments. Opposite party is using this amount to his detriment without anything given to him in return. Possession of the plot has not been delivered to him. All this must have caused him mental tension and unnecessary harassment. He has to knock the door of this Forum. For all this, he deserves some compensation which we assess in this case as Rs. 10,000/- in view of the authority J.Radhakrishnan Vs. A Basheera & Another-2001(2)CLT-225(M.P.) wherein it has been held that award of compensation always involves some sort of speculation and it is very difficult to quantify the amount of compensation on a rationale basis. Apart from this, facts and circumstances warrant that direction be given to the opposite party to deliver the actual and physical possession of the plot in question to the complainant.<br /> 15. In the result, complaint is partly accepted with costs of Rs.1,000/-. Opposite party is directed to do as under :-<br /> ( i ) Deliver actual and physical possession of plot No. 101-C/53-C (New) to the complainant within two months from the date of deposit of enhanced compensation alongwith interest.<br /> ( ii ) Not to recover non construction charges from the complainant for the years 2006 & 2007 alongwith interest.<br /> ( iii ) Pay Rs. 10,000/- to the complainant as compensation under section 14 (1)(d) of the Act.<br /> ( iv ) Compliance with regard to payment of costs and compensation be made within 30 days from the date of receipt of copy of this order, failing which amount of compensation would carry interest @ 9% P.A till payment.<br /> 16. Copy of this order be sent to the parties concerned free of cost. File be also consigned. <br /> <br /> Pronounced (Lakhbir Singh)<br /> 26.9.2007 President<br /> <br /> <br /> (Dr. Phulinder Preet) (Hira Lal Kumar)<br /> Member Member