Punjab

Ludhiana

CC/19/236

Lueena Puri - Complainant(s)

Versus

Ludhiana Improvement Trust - Opp.Party(s)

L.D.Gupta Adv.

02 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:236 dated 17.05.2019.                                                         Date of decision: 02.02.2023.

 

Lueena Puri W/o. Sh. Anil Puri, R/o. 307-A, Rajeev Enclave, Shahid Bhagat Singh Nagar, Ludhiana.                                                                                                                                                                      .…Complainant

                                                Versus

1. Ludhiana Improvement Trust, Ludhiana through its Chairman.
2. Chairman, Ludhiana Improvement Trust, Ludhiana        .

                                                                                      ....Opposite parties 

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

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

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

For OPs                          :         Sh. Jaswinder Singh Sibbal, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the complaint are that the opposite party Trust (hereinafter called as Trust) developed a residential colony known as Shahid Bhagat Singh Nagar, Ludhiana and allotted plots of various sizes to the general public by draw of lots. One plot No.1066-G measuring 125 sq. yards in this scheme was allotted to Sh. Mehar Singh S/o. Sh. Bachittar Singh, P.O. Central State Farm, Ladowal, Distt. Ludhiana vide allotment letter No.LIT/SB/11786 dated 04.11.1999 for a total sale consideration of Rs.1,81,875/- to be recovered in 6 half yearly equated installments. The complainant stated that after receipt of entire sale consideration, the Trust executed agreement of sale on 16.02.2004. Thereafter, vide memo No.LIT/SB/2318 dated 04.08.2005, the Trust transferred this plot in the name of Sh. Satwinder Singh S/o. Sh. Kirpal Singh, R/o.5191, Anand Nagar, Haibwal Kalan, Ludhiana on the same terms and conditions on which this plot was allotted to the original allottee and after the transfer, the transferee stepped into the shoes of the original allottee. On 11.11.2005, the Trust executed sale deed of the plot in favour of Satwinder Singh on the same terms and conditions which have been incorporated in the agreement of sale of this plot. Satwinder Singh sold the plot to the complainant vide Vasika No.3982 dated 06.06.2011 and thus, she stepped into shoes of the original allottee. The complainant further stated that she along with her family is living in a rented accommodation by paying Rs.16,500/- as monthly rend to the landlord so she decided to raise construction on this plot but because of huge encroachment in the street, where the plot is located, more than half of the width of the street has been blocked. The complainant further stated that the width of the street of opposite plot No.1068-C is 30’ and thereafter the encroachment starts due to which the width of the street has been reduced from 30’ to only 8.6” in front of the plot of the complainant. Due to said encroachment, it was impossible for the complainant to construct her house because the building material could not be reached the construction site. The Trust has constructed the road only up to plot No.1068-C due to said encroachment and there is no road except katcha rasta after plot No.1068-G towards plot No.1064-G including plot No.1066-G of the complainant. As such, the complainant approached the Trust and requested for removal of huge encroachment and clearance of the street so that she could build her house on this plot. The complainant and her husband repeatedly and regularly visited the office of the Trust to get this encroachment removed but the Trust always postponed the matter on one or the other ground and asked her and her husband that needful will be done ‘net month’ but next month never came. Moreover, the officials of the Trust were highly infuriated, angry and agitated by her regular visits to the Trust. On 02.05.2018, the complainant got severest shock of her life when she received letter No.LIT/SB/81316 dated 02.05.2018 from the Trust asking her to pay an amount of Rs.3,84,375/- as non-construction fee for the period from the year 2006 to the year 2018 and Rs.24,912/- as enhancement having total amount of Rs.4,09,287/-. The complainant approached the Trust and requested the concerned official that this demand of Rs.4,09,287/- is totally illegal and contrary to the settled terms and conditions of the allotment letter, agreement of sale and also of the sale deed executed by the Trust and she prayed the authorities of the Trust to withdraw the letter of demand of Rs.4,09,287/-. She also prayed for removal of rthe encroachment and to clear the blocked passage of the street so that she may build her house on the plot but the Trust flatly refused to do so and directed her to pay this amount otherwise allotment of her plot will be cancelled. The complainant stated that the parties are bound by the terms and conditions of the allotment letter and there is no condition of charging any non-construction fee in it and as such, the Trust cannot levy and recover any amount of non-construction fee on this plot if the allottee fails to construct the house within 3 years. Even in the sale agreement there is no such condition of levy and recovery of any non-construction fee from the complainant. Even at the time of issuance of allotment letter no concept of non-construction fee was in existence as neither in Punjab Town Improvement Act, 1922 nor in the rules framed under this Act there was any provision which authorize the Trust o levy such non-construction fee. As such, the action of the Trust claiming this amount is bad in law, illegal, unwarranted and without jurisdiction. The complainant further stated that the Govt. of Punjab amended the rules and for the first time introduced the concept of non-construction fee. Since these amended rules came into force w.e.f. 15.12.2005 and the same are not applicable to the allotments made prior to 15.12.2005 as the plot was allotted on 11.11.1999. After amending these Rules of 1983, new conditions No.7, 7A and 7B were incorporated in the allotment letters which were issued to the allottees after 15.12.2005. Hence the allotment letter of complainant was issued on 11.11.1999, there was no condition of levy and recovery of non-construction fee so the same cannot be levied and recovered from the complainant. The Trust cannot amend, alter, add new of additional conditions at the back of the complainant and cannot demand this amount from the back date as it has not issued any notice from the year 2006 till 2018. The said demand is illegal and unwarranted as she could not raise the construction due to huge encroachment in the street which was never removed by the Trust and as such, the complainant cannot be held guilty for the fault of the Trust. Prior to 31.12.2018, the Trust never raised any demand of non-construction fee and the same is totally illegal and arbitrary as the demand of non-construction fee is time barred and has been raised only to harass the complainant who is not at fault. The complainant further stated that as precondition No.4 of the allotment letter, she is liable to pay the amount of increased compensation of the land awarded by the competent court on pro-rate basis and in this case an amount of Rs.6/- per sq. yards had been awarded as increased compensation so the complainant is liable to pay Rs.6/- x 125 Sq. yards total Rs.750/- and not Rs.24,912/- as demanded by the Trust. The said illegal and unwarranted demand raised by the Trust amounts to deficiency in service and unfair trade practice which has caused mental tension, torture and agony to the complainant for which she is entitled to compensation of Rs.2,00,000/-. In the end, the complainant has made the following prayer:-

(1) That demand of Non-Const. fee on this plot may kindly be quashed and set aside and demand raised vide letter No.LIT/SB/8316 dated 02.05.2018 issued by the OP-Trust vide which amount of Rs.3,84,275/- as Non-Const. fee and Rs.24912/- as enhancement has been demanded from the complainant may be set aside and quashed, and,

(2) That the OP-Trust be directed to remove the huge encroachment and to sanction the building plan of the complainant without recovering the amount of Non-Construction Fee and Enhancement (except the amount of Rs.725/), and,

(3) That Rs.2 Lacs may kindly be granted as compensation for causing harassment to the complainant for such a long period and for causing mental tension, torture and agony to the complainant.

(4) That Rs.55,000/- be awarded as litigation costs of this complaint.

2.                Upon notice, the opposite parties appeared and filed written statement by assailing the complaint on the ground of maintainability of the complaint, lack of cause of action, the compliant being based on false and frivolous grounds, concealment of material facts etc. The opposite parties alleged that in fact, there is no encroachment in front of the plot of the complainant as there is 30’ existing on the spot which can be verified from Drawing No.LIT/7/01 Block-G. The complainant had purchased the plot in question in the year 2011 and as per rules and norms of the LIT, the purchaser has to construct the house over the plot within 3 years from the date of its purchase but since the year 2011, till today neither the complainant has started construction nor paid even a single penny as non-construction fee with the opposite party. As per rules and norms of the LIT, opposite party served the notice to the complainant and requested her to pay the non-construction charges to which she is legally bound to pay the same.  The complainant in order to build up pressure upon the opposite party to avoid the payment of  non-construction charges. The said street is having 30’ width and is thoroughfare and the complainant can easily raise construction over her plot by bringing construction material in the street by paying the charges as per law. The opposite parties further alleged that the complainant has no intention to raise construction over her plot and she has filed the present complaint only to avoid the payment of non-construction charges which clearly shown from the conduct of the complainant as neither she has got approved the site plan of the house nor she made/deposited any requisite charges regarding the same with them.

                   On merits, the opposite parties reiterated the crux of averments made in the preliminary objections. The complainant has cooked up the false story in order to gain sympathy and relief from the court as no application or complaint has been filed by the complainant with them regarding any encroachment.  The opposite parties have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In support of her claim, the complainant tendered her affidavit Ex. CW1 in which she reiterated the allegations and the claim of compensation as stated in the complaint, affidavit Ex.  CW-2 of Sh. Prabhpreet Singh son of Sh. Karamjit Singh, Architect. The complainant also tendered documents Ex. C1 is the copy of allotment letter dated 04.11.1999, Ex. C2 is the copy of agreement for sale dated 16.02.2004,  Ex. C3 is the copy of transfer letter dated 04.08.2005 regarding transfer of plot No.1066-G in the name of Satwinder Singh, Ex. C4 is the copy of sale deed dated 11.11.2005 executed in the name of Satwinder Singh, Ex. C5 is the is the copy of sale deed dated 06.06.2011 executed by Harvinder Singh in the name of complainant Lueena Puri, Ex. C6 is the copy of letter dated 02.05.2018 issued by the Trust to the complainant, Ex. C7 is the copy of the notification dated 13.12.2005 issued by the Government of Punjab, Department of Local Government, Ex. C7/1 affidavit of Sh. Prabhpreet Singh, Ex. C1/8 to Ex. C1/10 are the photographs of the site in question, Ex. C2/1 is the location plan plot No.1066-G, Ex. C2/2 is the drawing of the scheme of the Trust and closed the evidence.

4.                On the other hand, counsel for opposite parties tendered affidavit Ex. RA of Sh. Rajeev Sabherwal, Sr. Assistant of the opposite party Trust along with documents Ex. R1 authority letter dated 11.05.2022 issued by the Trust in the name of Kuljeet Kaur, Executive Officer, Ex. R2 is the copy of allotment letter dated 04.11.1999, Ex. R3 is the copy of drawing of the scheme in question, Ex. R4 is the copy of letter dated 02.05.2018 issued by the Trust to the complainant and closed the evidence.

4.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties. We have also gone through the written arguments submitted by both the parties.

5.                Undisputably, one Mehar Singh was the original allottee of plot No.1066-G by virtue of allotment letter dated 04.11.1999 Ex. C1 and the sale agreement dated 16.02.2004 Ex. C2. Thereafter, the opposite parties transferred this plot in the name of Satwinder Singh on 04.08.2005 vide transfer deed Ex. C3 and a sale deed Ex. C4 dated 11.11.2015 was also executed in his favour. On 07.06.2011, Satwinder Singh sold the land to the complainant vide deed Ex. C5. Obviously, there was no change of terms and conditions during these transfers which remained the same as that of original allotment letter dated 04.11.1999 i.e. Ex. C1. Neither original allottee nor subsequent transferees including the complainant raised construction over the said plot which lead to the issuing of letter dated 02.05.2018 by the opposite parties whereby the opposite parties demanded a sum of Rs.3,84,375/- as non-construction charges with interest and penalty from the year 2006 to 31.12.2018 and further a demand of Rs.24,912/- as enhancement was also raised.

6.                Now the point of determination arises for consideration whether the opposite parties can levy and recover non-construction charges with interest and penalty retrospectively or not?

7.                The counsel for the complainant has drawn the attention of this Commission towards para No.4 of the preliminary objections of the written statement filed by the opposite parties where it has been recorded that since the complainant had purchased the plot in the year 2011, so as per rules and norms of LIT/opposite parties, the purchaser has right to construct the house on the plot within three years from the date of its purchase. It implies that as per own version of the opposite parties, the complainant was not liable to pay any non-construction charges till 07.06.2014 i.e. three years after the purchase w.e.f. 07.06.2011. The counsel for the complainant has drawn the attention of this Commission towards the cases titled as Ludhiana Improvement Trust Vs Neeraj Chugh passed in Revision Petition No.1876 of 2014 by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi vide its order dated 23.07.2014 and Improvement Trust, Barnala Vs Mrs. Shashi Kansal and others passed in Appeal No.326 of 1998 by the Hon’ble State Consumer Disputes Redressal Commission, Punjab vide its order dated 12.01.1999 in which it has been held that the question for consideration is as to whether on the basis of such instructions could the Improvement Trust recover penalty or extension fee for non-construction on the plots allotted in November 27, 1987.Copies of the allotment letters were produced before the District Forum annexure C1 and C2. Clause 7 thereof provided for completing the building on the plots allotted within three years from the date of allotment. Clause 11 of the allotment letter further provides that allotment is subject to the provisions of the Punjab Town Improvement Act and the Punjab Town Improvement (Utilisation of Land and Allotment of Plots) Rules, 1983 as amended from time to time. There is no provision in the allotment letters referred to above in the present case authorizing the Improvement Trust to charge penalty on account of non-construction on the plots in dispute. Even if the State Government had issued  such instructions annexures R-1 and R2 it was incumbent upon the Improvement Trust to incorporate such terms and conditions as part of the allotment letters. In the absence of that, Improvement Trust was not authorized legally to impose penalty for non-construction of buildings on the plots in dispute. The counsel for the complainant has also placed reliance on the Revision Petition No.541 of 1999 in the case titled as Improvement Trust, Barnala Vs Shashi Kansal decided by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi vide its order dated 05.09.2005 whereby it has been held that the State Commission rightly arrived at the conclusion that the Circular issued by the government is to be implemented as with retrospective effect from 1^st January, 1988 and the same is not applicable as the allotment letter dt. 27.11.1987 was issued to the respondent. Further there is no other provision under the Act to levy penalty in case of delay in making construction.

8.                By applying the ratio of the above cited cases, it is held that there is no condition in the allotment letter Ex. C1 with regard to levying and recovering of non-construction charges even if the construction is not raised within three years. So the complainant stepped into shoes of original allottee and the parties are bound by the terms and conditions of these documents. The concept of levying non-construction charges was introduced w.e.f. 15.12.2005 when the rules framed under Punjab Town Improvement Act, 1922 were suitably amended. Despite the amendment, these new conditions were not incorporated in the allotment letter or subsequent transfer documents by the opposite parties. The amended rules were to take effect prospectively. So as a sequel of the above discussion, the act of the opposite parties levying and recovering the non-construction charges of Rs.3,84,375/- along with interest vide letter dated 02.05.2018 cannot stand legal scrutiny and accordingly the demand letter dated 02.05.2018 is hereby quashed to that extent.

9.                The next issue raised by the complainant is that due to encroachment and non-construction of roads, sewerage and water supply, the complainant could not construct her house on the said plot. The complainant has also produced the evidence in the form of duly sworn affidavit of Sh. Prabhpreet Singh, Architect and also annexed the site plan Ex. C2/1 and Ex. C2/2. On the other hand, the opposite parties have specifically stated that the plot in question exists on a street having 30’ width and is a thoroughfare and the complainant can easily raise construction over the plot by bringing the construction material in the street.  This plea has been taken by the complainant just to justify the non-construction on the plot within the statutory period.        Perusal of the photographs Ex. C1/8 to Ex. C1/10 clearly shows that the allottees of the other houses have raised huge constructions and it cannot be said that the complainant was not able to construct the house due to existence of encroachment. Even otherwise, the complainant has not brought on record any complaint  or representation which she ever made to the opposite parties for removal of the alleged encroachment.

10.              The complainant has not produced any supporting documents to substantiate her claim that she is liable to pay the enhanced compensation to the tune of Rs.750/- only and not Rs.24,912/-. As such, this Commission is not inclined to quash this demand of Rs.24,912/- as enhancement. In view of the above facts and circumstances, this commission is of the view that it would be just and appropriate to quash the demand of levying and recovering the non-construction charges of Rs.3,84,375/- raised by the opposite parties vide letter dated 02.05.2018 along with its incidental or consequential charges and to pay composite compensation of Rs.20,000/- to the complainant. However, the other reliefs as claimed by the complainant with regard to recovery of enhancement fee of Rs.24,912/-, for removal of the encroachment and sanctioning of the building plan without recovering the enhancement fee of Rs.24,912/- are hereby declined.

11.              As a result of above discussion, the complaint is partly allowed with an order that the demand of levying and recovering the non-construction charges of Rs.3,84,375/- raised by the opposite parties vide letter dated 02.05.2018 along with its incidental or consequential charges is hereby quashed. The opposite parties shall pay composite compensation of  Rs.20,000/- (Rupees Twenty Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:02.02.2023.

Gobind Ram.

 

 

Lueena Puri Vs Ludhiana Improvement Trust                           CC/19/236

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

                   Sh. Jaswinder Singh Sibbal, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with an order that the demand of levying and recovering the non-construction charges of Rs.3,84,375/- raised by the opposite parties vide letter dated 02.05.2018 along with its incidental or consequential charges is hereby quashed. The opposite parties shall pay composite compensation of Rs.20,000/- (Rupees Twenty Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:02.02.2023.

Gobind Ram.