<br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, <br /> LUDHIANA.<br /> <br /> Complaint No: 609 of 2006. Instituted On: 29.6.2006.<br /> Date of Service: 7.11.2006.<br /> Decided on: 5.2.2008.<br /> <br /> Mrs. Saravjit Kaur Mann w/o Dr. Sewa Singh Mann r/o 2825, Gurdev Nagar, Ludhiana.<br /> ....Complainant.<br /> Versus<br /> 1- Ludhiana Improvement Trust, through its Administrator, Feroze Gandhi Market, Ludhiana.<br /> <br /> 2- Executive Officer of Ludhiana Improvement Trust, Feroze Gandhi Market, Ludhiana.<br /> <br /> 3- Department of Local Bodies, Government of Punjab through its Secretary.(Given up).<br /> <br /> ….Opposite party.<br /> <br /> Complaint under section 12 of the <br /> Consumer Protection Act, 1986.<br /> <br /> Quorum: Sh. J.S. Chawla, President.<br /> <br /> Sh. Daljit Singh Bakshi, Member.<br /> <br /> Present:- Rana Harjasdeep Singh Advocate for the complainant.<br /> Sh. S.S. Grewal Advocate for OPs No.1 & 2.<br /> OP no.3 given up.<br /> <br /> J.S. CHAWLA, PRESIDENT:<br /> <br /> 1- Smt. Saravjit Kaur complainant has filed the present complaint under section 12 of the Consume Protection Act, 1986 (herein-after referred to as Act) against the opposite party-LIT through its Administrator and other opposite parties directing them to pay a sum of Rs.47,041/- as refund of non-construction charges along with interest @ 12% p.a. from the date of deposit i.e. 3.9.2002 till payment and also to pay Rs.20,000/- as compensation on account of mental pain and agony and Rs.20,000/- on account of deficiency in service.<br /> 2- Briefly stated, Smt. Saravjit Kaur complainant was allotted plot no.53-G(booth site) measuring 22.68 sq.yds. under 550 acres, BRS Nagar scheme situated at BRS Nagar, Ludhiana by the opposite party-LIT on 8.6.1989. That the complainant paid the balance installments agreed to be paid to the Trust by way of sale price of said land and the last installment was paid on 19.7.1991. That the complainant approached the Executive Officer and Chairman of the opposite parties-LIT for registration of sale deed in her favour but they postponed the matter on one pretext or the other. That ultimately, she was told to deposit non-construction charges due to failure to build the booth in the plot. That the complainant protested against this illegal demand of the opposite party-LIT because as per their policy of non-construction charges are to be linked with the completion of developmental works in the scheme. That the allottee is required to complete the construction on the said plot within two year of laying of basic infrastructure i.e. laying of water lines, sewerage lines and approachable roads. As per the policy of department of Local Government, Govt. of Punjab, delay in providing the above said civic services would entitle to waivar of the amount in favour of the allottee. That the period of two years for completion of construction should begin only after laying of basic infrastructure mentioned above. However, till date no basic infrastructure has been provided by the opposite party-LIT at the booth site/plot and its vicinity. That the opposite party-LIT clearly told the complainant that they would not execute the sale deed in her favour unless and until she deposited the non construction charges. As such, under threat, she deposited the non construction charges and site plan fees amounting to Rs.47,041 vide receipt no.16626 dated 3.9.2002 under protest. That thereafter, the complainant constructed the booth on the allotted plot as per site plan as approved by the opposite party-LIT. The letter dated 13.12.2002 regarding the construction of the booth at the plot allotted, was sent to the opposite party-LIT. Thereafter, the opposite party-LIT executed a sale deed of the booth site/plot in her favour on 2.1.2003. After that, the complainant visited the office of the opposite party-LIT several times and met higher officials including the Chairman and Executive Officer and demanded refund of the non construction charges, illegally charged from her, but to no effect. She even wrote various letters and reminders demanding the refund of non construction charges. The letters and reminders dated 10.6.2003 and 11.12.2003 were duly received by the opposite party-LIT along with another reminder dated 31.8.2005 which was sent through post. Finally, the claim of the complainant for refund was rejected by them vide letter dated 14.3.2006. That thereafter, the complainant applied for information regarding policy of non construction charges in respect to booth site under 500 Acres Scheme B.R.S. Nagar, Ludhiana under the Right to Information Act, 2005 vide application dated 21.7.2006, duly received by the opposite party-LIT vide receipt no.47126 dated 21.7.2006. The information sought by her was duly provided by them on 17.8.2006 after payment of copying fee vide receipt no.47547. Due to deficiency in rendering services on the part of the opposite party-LIT, the complainant suffered mental tension and harassment. Hence the present complaint.<br /> 3- The complainant gave up her complaint against opposite party no.3 as per statement made by the Ld. Counsel for the complainant on 7.11.2006. Notice of the complaint was given to the opposite party no.1 & 2 who appeared through Sh. S.S. Grewal Advocate and filed written reply taking plea that the property in question is a booth which is a commercial property and has been purchased in open auction. As such, the complainant does not come under the definition of ‘consumer’ as provided under the Consumer Protection Act, 1986. Since the booth was purchased by her through auction which tentamounts to outright sale of immoveable property and therefore, there is no arrangement of hiring of services for consideration between the parties and it has been held so by the Hon’ble National Commission. It is further averred that the complainant is stopped by her own act and conduct to file the present complaint. She herself deposited the non construction charges and even gave an affidavit that she would be responsible for any payment in future. The said amount has been got deposited by the complainant as per rules and as such, now she can not claim the refund of the same by filing this false and frivolous complaint. It was further averred that there is no deficiency in service on the part of the opposite party-LIT. This Hon’ble Forum has got no jurisdiction to decide the issue regarding the non construction charges as has been held by the Hon’ble Supreme Court. For this relief, he can approach the civil court. Moreover, the sale deed of the plot in question has already been executed and as such, there is no subsisting contract remained between the parties. It was further averred that the present complaint is barred by limitation and merits dismissal as the amount in question was deposited by the complainant on 3.9.2002. Her claim for refund was rejected and information was provided to her on 9.7.2003 vide memo no.5080. It was denied that till date, no basic infrastructure has been provided by the opposite party-LIT at the booth site/plot and its vicinity. It was further denied that under threats of the officials of the opposite party-LIT, the complainant deposited the non construction charges and site plan fee amounting to Rs.47,041/- under protest. No excess amount has been charged from her. It was further averred that since the property in question is a commercial property and as such, there is no provision for providing water and sewerage line to the booths. The approach road is already lying provided to the said property. On merit, the opposite party-LIT took up the same pleas as taken up in the preliminary objection. Hence it was prayed that the complaint filed by the complainant has no merit and it deserves to be dismissed.<br /> 4- In order to prove his case, the complainant tendered in evidence her affidavit Ex.CX, copy of sale deed Ex.C1, copy of form-A under Right to Information Act, 2005 Ex.C2, copy of receipt no.47126 dated 21.7.2006 Ex.C3, copy of receipt dated 17.8.2006 Ex.C4, copy of policy of the Govt. Ex.C5, copy of receipt of Rs.47,041/- Ex.C6, copy of letters written by the complainant to the Chairman, LIT Ex.C7 to Ex.C10, copy of postal receipts Ex.C11, copy of letter dated 14.3.2006 written by the opposite party-LIT to the complainant Ex.C12 and closed the evidence.<br /> 5- In order to rebut the evidence of the complainant, the opposite party-LIT tendered in evidence affidavit of Sh.D.C. Garg, Executive Officer of LIT, affidavit of Sh. Avtar Singh Azad, Executive officer of LIT Ex.RW1/A, copy of affidavit of the complainant Ex.R1, copy of memo no.5080 dated 9.7.2003 issued by the opposite party-LI to the complainant Ex.R2 and closed their evidence.<br /> 6- We have heard Rana Harjasdeep Singh ld. Counsel for the complainant, Sh. S.S. Grewal Ld. Counsel for the opposite party-LIT and have also gone through the record.<br /> 7- Rana Harjasdeep Singh ld. Counsel for the complainant has mainly argued that the opposite party-LIT was not entitled to non construction charges of Rs.47,041/- because they failed to provide the basic infrastructure as laying water lines, sewerage lines etc. This contention of the ld. Counsel for the complainant has no merit. Admittedly, Smt. Saravjit Kaur complainant had purchased booth no.53-G under 550 Acre Bhai Randhir Singh Nagar Scheme in an open auction on 8.6.1989 from the opposite party-LIT. She had paid the entire price of the booth to the opposite party-LIT but failed to raise the construction over it within a period of 2 years. As per terms and conditions of the sale, Smt. Saravjit Kaur complainant was required to raise the construction over the site/plot within 2 years failing which, she was liable to pay the non construction charges. As she failed to complete the construction within 2 years and therefore, the opposite party-LIT has imposed Rs.47,041/- as non construction charges.<br /> 8- The question for determination is as to whether Saravjit Kaur complainant is a ‘consumer’ within the definition of section 2(i)(d) of the Act. On this point, Sh. S.S. Grewal ld. Counsel for the opposite party-LIT has cited the authority titled as “HUDA Vs Sunita” reported in (2005)2 Supreme Court Cases-479, wherein it was held that:<br /> “Statutory obligations of HUDA and plot-holder under the provisions of the HUDA Act and the Regulations are not acts or omissions constituting “deficiency in service” within the meaning of the Consumer Protection Act.”<br /> <br /> 9- In the instant case, Smt. Saravjit Kaur complainant had alleged that the opposite party-LIT was not entitled to charge non construction charges because they have failed to provide basic infrastructure. But she has failed to lead cogent and convincing evidence to prove the same. Her mere allegations that she has not been provided with the amenities of laying of lines, sewerage and approach roads etc. are not sufficient to hold that the opposite-LIT had committed any deficiency in service. Violation of the terms and conditions of the sale, if any, are not sufficient to conclude any deficiency of service on the part of the opposite party-LIT because all acts and omissions of the opposite party-LIT are made under the Punjab Town Improvement Act, 1983. Therefore, the violation of the terms and conditions, if any, on the part of the opposite party-LIT are not sufficient to hold that the complainant is ‘consumer’ within the definition of section 2 (i) (d) of the Act. Relying upon the supra authority, we therefore, hold that the complainant has failed to prove that she is a ‘consumer’ within the purview of section 2 (i) (d) of the Act. On the other hand, the ruling ‘Mandeep Kang Vs Punjab Urban Planning and Development Authority & Anr”, reported in I(2006)CPJ-26 of the Hon’ble UT State Commission, Chandigarh, cited by the ld. Counsel for the complainant do not apply to the facts of the present case and is quite distinguishable. <br /> 10- On the other hand, the complainant, without any protest, had deposited Rs.47,041/- as non construction charges at the time of execution of the sale deed. Rather she filed an affidavit Ex.R1, wherein she had deposed that she is liable for the payment whatsoever have been paid to date and there is no pending payment against her. Thus, it shows that she had voluntarily deposited the non constructions charges amounting to Rs.47,041/- as per terms and conditions of the sale. Hence at a later stage, she can not claim the refund of the non construction charges already paid by her. In view of the aforesaid undertaking given by her, she is estopped by her act and conduct to claim the refund of aforesaid non construction charges.<br /> 11- Moreover, the present complaint filed by the complainant is time barred because earlier, she has been intimated by the opposite party-LIT vide letter dated 9.7.2003 Ex.R2 that as per rules, the non construction charges can not be refunded to her. Before and thereafter, she had been writing letters and reminders Ex.C7 to Ex.C10 to the opposite party-LIT for the refund of non construction charges and lastly, she was intimated vide letter Ex.C12 dated 14.3.2006 that her case was forwarded to the Govt. but the same had been rejected. This letter Ex.C12 dated 14.3.2006 would not enhance any limitation in her favour because the opposite party-LIT had already intimated her vide letter Ex.R2 dated 9.7.2003 that no refund of the non construction charges can be paid to her.<br /> 12- We, therefore hold that the complainant has failed to prove that she is entitled to the refund of non construction charges of Rs.47,041/-. Therefore, the opposite party-LIT have not committed any deficiency in service in rejecting her claim for the refund of non construction charges. <br /> 13- To prove the aforesaid assertions, the opposite party-LIT tendered into evidence affidavit of Sh.D.C. Garg, Executive Officer of LIT, affidavit of Sh. Avtar Singh Azad, Executive officer of LIT Ex.RW1/A, copy of affidavit of the complainant Ex.R1, copy of memo no.5080 dated 9.7.2003 issued by the opposite party-LI to the complainant Ex.R2 and we believe and rely upon the same. On the other hand, the affidavit of the complainant Ex.CX and documents i.e. of sale deed Ex.C1, copy of form-A under Right to Information Act, 2005 Ex.C2, copy of receipt no.47126 dated 21.7.2006 Ex.C3, copy of receipt dated 17.8.2006 Ex.C4, copy of policy of the Govt. Ex.C5, copy of receipt of Rs.47,041/- Ex.C6, copy of letters written by the complainant to the Chairman, LIT Ex.C7 to Ex.C10, copy of postal receipts Ex.C11, copy of letter dated 14.3.2006 written by the opposite party-LIT to the complainant Ex.C12, tendered by her can not be given any effect.<br /> 14- In view of the aforesaid facts and circumstances, the complaint filed by the complainant has no merit and the same is dismissed. In view of the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order shall be sent to both the parties free of cost and thereafter, file be consigned to the record room.<br /> <br /> (Daljit Singh Bakshi) Member (J.S. Chawla), President.<br /> Announced in Open Forum.<br /> Dated:5.2.2008.<br /> <br /> <br />