Punjab

Ludhiana

CC/15/6

Mohan Singh - Complainant(s)

Versus

Ludhiana Improvement Trust - Opp.Party(s)

M.S.Sethi

27 Sep 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 06 of 02.01.2015

Date of Decision            :   27.09.2016 

 

Mohan Singh aged 70 years s/o Bachan Singh r/o 172-C, Dr.Kitchlu Nagar, Ludhiana. 

….. Complainant

                                                         Versus

 

Ludhiana Improvement Trust, Feroze Gandhi Market, Ludhiana-141001 through its Chairperson.

…Opposite party

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT                                     

MRS.          VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :          Sh.M.S.Sethi, Advocate

For OP                           :          Sh.S.S.Grewal, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant Sh.Mohan Singh, filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) against OP by claiming that plot No.172-C measuring 200 sq. yards in Dr. Kitchlu Nagar (100 acre scheme) was allotted to him by OP after completion of formalities by him and after recovering of enhanced cost of the plot vide receipt dated 12.3.1999. Complainant paid     the compounding charges against the construction of Rs.2375/- on 7.4.2000. Sale deed in 8/2000 was executed by the OP in favour of complainant. Thereafter, the complainant got the plan sanctioned from concerned authorities and constructed the house and also installed the electricity connection in the said premises. It is further claimed that before execution of registered sale deed in August 2000, the complainant complied with all the formalities. However, OP vide letter dated 23.09.2014 bearing memo No.9827 claimed Rs.53,034/-,being amount of second enhancement. Aggrieved with above referred demand of OP, the complainant asked OP for the reason for such demand, on which, OP disclosed that as per decision given by the Hon’ble High Court of Punjab and Haryana in CWP 1599 of 1986 decided on 2.5.2006, the enhancement in the cost of the land had taken place because enhanced compensation to be paid to the land owners in lieu of their acquired land, where ‘Kitchlu Nagar’ area has been developed. By pleading adoption of unfair trade practice on the part of OP, it is further claimed that earlier vide memo No.5/384/98/2ss2/1856 dated 10/2/1999, Punjab Government informed allottees through LIT of Kitchlu Nagar as if they were liable to pay Rs.34/- as a consequence  of enhancement done by Land Acquisition Tribunal in 1985. Besides, interest on the above said amount of Rs.34/- was payable from 1986 to 1999. At that time, it was informed as if Rs.98/- per sq.yards in lieu of enhancement of compensation payable to the land owners, whose land stood acquired. Earlier, Land Acquisition Tribunal fixed rate at Rs.39/- for Block A, but Rs.31/- for Block B and same was charged by OP. Amount of Rs.20,000/- was duly deposited on 12.3.1999 by the complainant with OP. Complainant had been enjoying the peaceful possession since 2000 without any notice from the Hon’ble High Court or from OP qua the pendency of dispute qua enhancement of the payable compensation to the land owners. Complainant after paying Rs.20,000/- remained under impression as if nothing left due against him.

2.                Mr.R.P.Gosain, President of Dr.Kitchlu Nagar Welfare Association informed the complainant that the Hon’ble High Court had increased the rate from Rs.31/- to Rs.39/- i.e.Rs.8/- per sq.yards for block B only. OP issued notice in newspapers dated 12.12.2012 for calling upon the allottees of Kitchlu Nagar to pay Rs.199/- per sq. yards. After going through the calculation of the said demand supplied by the President of Kitchlu Nagar Welfare Association, it appears as if the demand put forth by OP through memo in question is based on imaginary and wrong calculations. Complainant got knowledge about the notice qua second enhancement of the price through President of Kitchlu Nagar Welfare Association on 25.8.2014 and demand put forth by OP in September, 2014. Op instead of claiming enhancement of Rs.8/-, has claimed the enhancement of Rs.13/-, which alleged to be an unfair trade practice. Demand of Rs.53,034/- put forth after making calculation of Rs.199/-. That demand alleged to be arbitrary and illegal, being put forth without assigning any cogent reason. The rate enhanced from Rs.99.32P to 199/- by calculating the interest upto 30.4.2009. The complainant submitted representation with OP qua wrong calculation by claiming that he is ready to deposit sum of Rs.64.20 per square yards, but OP refused by claiming that amount chargeable is Rs.199/- per square yards. Op pressurizing the complainant to deposit the amount without protest, but the same is not acceptable to the complainant. Complainant is not liable to pay any interest because the delay in accepting the amount after orders passed by the Hon’ble High Court caused by OP. Besides, demand put forth by OP in 2014 is time barred as per law because OP did not claim the amount within 3 years from the orders dated 2.5.2006 passed by the Hon’ble High Court of Punjab and Haryana. Complainant has not received any notice in writing from the OP for calling upon him to pay the enhanced price as per orders of Hon’ble High Court except issue of notice dated 23.09.2014. OP was required to inform every allottee in person in writing about its mind of charging the amount of compensation in pursuance of the resolution dated 21.5.2009. Such notice not issued qua enhanced amount of compensation. Chairman of Op issued direction for publication of public notice. Even vide letter dated 25.5.2009, directions were issued for initiating disciplinary action against the erring officials for not sending notices to the allottees. To the knowledge of complainant, no action even taken against the erring officials. Rather, allottees burdened with interest in an illegal way and as such, prayer made for quashing the demand of Rs.53,034/- put forth through memo No.9827 dated 23.09.2014. For the mental harassment, compensation of Rs.35,000/- and litigation expenses of Rs.5500/- even claimed by pleading that Op rendered deficient/negligent services.

3.                OP filed written statement, where-through claiming that the complaint is not maintainable in the present form; complaint is barred by limitation; complainant is not a consumer. Besides, it is claimed that land of 100 acre of Dr.Kitchlu Nagar scheme was notified under Section 36 of The Punjab Town Improvement Act, 1922 on 1.8.1972, but notification u/s 42 of The Punjab Town Improvement Act, 1922 was issued on 18.9.1973 and thereafter, award of the scheme was announced on   20.9.1974 by The Land Acquisition Collector. The said Collector assessed the rate at Rs.113/- per biswasis for belt A, but Rs.75/- per biswasis for belt B in addition to 50% solatium. In award dated 12.2.1986 passed by the Land Acquisition Tribunal, LIT, Ludhiana, the amount was enhanced to Rs.39/- per square yard of the land which was adjoining to Rajpura Road and Udham Singh Nagar, Ludhiana upto 16 Gathay, but in the belt B, the rate was enhanced to Rs.26/- per square yard plus solatium @30% and interest @9% per annum for one year from the date of taking possession and 15% thereafter. However, the Hon’ble High Court of Punjab & Haryana vide judgment dated 2.5.2006 passed in CWP filed by S/Sh.Isher Singh etc, assessed the flat rate of Rs.39/- per square yard for the whole of the land plus other benefits such as solatium and interest. The rate fixed earlier was @Rs.31/- per square yard, but same was enhanced  to Rs.39/- per square yard. Demand of the amount put forth by OP as per the decision of The Hon’ble High Court of Punjab and Haryana and as such, there is no question of adoption of unfair trade practice or rendering of deficient/negligent services by OP. Demand of enhanced amount raised as per the terms and conditions of the allotment letter/sale agreement/sale deed. Allottee is bound to pay the enhanced compensation as per term of resolution No.4 dated 21.5.2009, vide which, recovery from the allottee of the plot in question was ordered @Rs.199/- per square yards. In pursuance to that resolution, allottees including the complainant was asked to deposit the enhanced compensation amount. The calculation is alleged to be correct. OP has issued the public notice to the allottees through newspapers dated 12.12.2014. Complainant instead of depositing the amount, filed the present complaint on false averments. Rather, the complainant liable to pay the amount along with interest as per the rules and regulations of the Trust. OP left 55% of the area for public utility such as roads, parks, community centre etc., as per the scheme. The enhanced amount to be calculated for whole of the scheme area and the same is recoverable from the allottees, so as to make the payment to the land owners, whose land has been acquired. Each and every other averment of the complaint denied by claiming that as public notices through the newspapers has already been issued to all concerned and as such, NDC can only be issued on payment of full amount and completion of all the formalities.

4.                Counsel for the complainant in order to prove the case of complainant tendered in evidence affidavit Ex.CA1 of complainant Sh.Mohan Singh along with documents Ex.C1 to Ex.C17 and thereafter, closed the evidence on behalf of complainant.

5.                On the other hand, counsel for the OP tendered in evidence affidavit Ex.RA of Sh.Harinder Singh, E.O. of Ludhiana Improvement Trust, Ludhiana along with documents Ex.R1 to Ex.R9 and then closed the evidence.

6.                Synopsis of written arguments in one of the four cases decided today submitted.  Oral arguments heard and records gone through minutely. 

7.                Ex.C1 issued by OP to the complainant on 23.09.2014 for calling upon him to deposit Rs.53,034/-. This notice Ex.C1 is under challenge by claiming that notice issued without disclosing the details of calculation of the enhanced payable compensation amount. Earlier Rs.2375/- were deposited by the complainant on 7.4.2000 through receipt Ex.C3 in pursuance to the notice Ex.C2 and thereafter, the complainant was left with the impression as if no more amount is payable by him to the OP. Thereafter, notice Ex.C1 was received by the complainant from OP. Rs.20,000/- on account of enhancement of the compensation amount payable to land owners was deposited by the complainant on 12.3.1999 through receipt Ex.C4. Receipt on performa Ex.C2   was issued qua acknowledgment of amount of Rs.2375/- deposited through Ex.C3. Even if these receipts may have been placed on record, but despite that after going through sale deed Ex.C5 produced by the complainant himself, it is made out that complainant will be liable to pay more amount as sale price, if the compensation payable to the land owners, whose land acquired, enhanced by the Land Acquisition Tribunal or Collector. In view of this specific term of sale deed Ex.C5, certainly the complainant cannot escape from liability to pay the more amount as sale price, if the compensation amount payable to the land owners stood enhanced either by the Land Acquisition Tribunal or by the Appellate Authority i.e. The Hon’ble High Court of Punjab and Haryana, Chandigarh. Complainant cannot wriggle out of the terms of Ex.C5 in this respect.

8.                Even if complainant liable to pay more sale price in view of the enhancement ordered by The Land Acquisition Collector or by the Hon’ble Punjab and Haryana High Court, Chandigarh, despite that complainant is liable to know as to on what basis the enhanced claimed amount payable by him. Details in that respect has to be worked out by OP in writing and those needs be conveyed to the complainant before effecting recovery. Those details not shown to be worked out by OP properly as discussed hereinafter and as such, deficiency in service on the part of OP is to that extent alone. As complainant liable to pay the due assessed enhanced amount and as such, complainant has no right to claim the NDC until payment of the due assessed enhanced amount made. In case, recovery on the basis of enhanced amount to be effected by the OP, then the principles of natural justice requires that notice in writing must be issued by OP to the complainant, so that complainant may avail the appropriate remedy before the appropriate Forum further. Documents produced by OP do not justify the demand of Rs.199/- per square yards as claimed by OP through the submitted written statement.

9.                Contents of para no.4 of affidavit Ex.RA of Sh.Harinder Singh, Executive Officer is to the effect that in view of the resolution No.4 dated 21.5.2009 passed by OP, the allottees including the complainant liable to pay the increased amount of compensation @199/- per square yards. How that amount @ Rs.199/- per square yards worked out qua that offered explanation is that OP left 55% of the area for the public utility such as roads, parks, community centre etc., as per the scheme and that is why the enhanced amount to be calculated for whole of the scheme area by keeping in view these reservations for public utility services. Even if these assertions may be true, but despite that the complainant being consumer of OP bound to know as to how this amount @ of Rs.199/- per square yards assessed. Details of such assessment needs be provided through public notice or individual notice, but those are not provided at all and as such, deficiency in service on the part of OP is to this extent also.

10.              Ex.R1 is the notice qua intention of acquisition of land in pursuance of resolution No.26 passed by OP. In pursuance of this notice, the land was acquired   and thereafter, award, copy of which is produced on record as Ex.R3 was passed by The Land Acquisition Collector. That award of The Land Acquisition Collector was challenged before the Land Acquisition Tribunal, Ludhiana and award Ex.R4 was passed. Decision Ex.R3 of The Land Acquisition Collector as such merged in the decision of The Land Acquisition Tribunal Ex.R4. However, through Ex.R3, it was specifically held by the Land Acquisition Collector that the possession will be      taken at any time after payment of the compensation to the respective owners, whose land acquired. So, right of getting possession of acquired land was subject to the payment of compensation amount to the respective owners. If that be the position, then certainly OP has to prove as to when they paid or deposited the compensation amount or subsequently enhanced compensation amount for payments to the land owners as per terms of orders Ex.R4 passed by The Land Acquisition Tribunal, Ludhiana or by the Hon’ble Punjab and Haryana High Court, Chandigarh through orders Ex.R5. Orders Ex.R4 merged in the orders Ex.R5 passed by the Hon’ble Punjab and Haryana High Court, Chandigarh and as such, enhanced compensation amount payable at the flat rate of Rs.39/- per square yards for the entire land falling in 100 acres development scheme, on which, Dr, Kitchlu Nagar Area scheme developed. That enhanced amount of Rs.39/- per square yards payable along with Solatium amount and interest adjudged by the Hon’ble Punjab and Haryana High Court, Chandigarh. Land owners were held entitled to 30% solatium as already awarded by the Tribunal along with interest @9% per annum for the first year from the date of possession from the land owners, but @15% per annum thereafter. So, it was the responsibility of  OP to submit the details worked out by it, so as to clarify as to how much balance amount become due on account of enhancement of compensation amount and as to how much interest payable by it as per terms of judgment  Ex.R5 passed by the Hon’ble Punjab and Haryana High Court, Chandigarh. Details in that respect not worked out properly, even though office noting Ex.R9 has been produced on record.

11.              Perusal of last para of Ex.R9 reveals as if in the representation   submitted by the complainant and their association, the interest calculated upto the date of decision given by the Hon’ble Punjab and Haryana High Court, Chandigarh, on 2.5.2006, but in fact Trust calculated interest upto 31.7.2008. So, dispute remains as to upto what date, the interest payable by the complainant after enhancement done through judgment Ex.R5 passed by the Hon’ble Punjab and Haryana High Court, Chandigarh. As the enhanced amount of compensation liable to be recovered by the OP from the complainant and other allottees in view of the terms and conditions of the sale deed itself and as such, the said amount is due to the Trust from the complainant and other allottees.

12.              Section 92 of The Punjab Town Improvement Act, 1922 provides that where any amount is due to the Trust from any person, under this Act, such amount shall on a certificate being granted by the Chairman, in the prescribed form, be recoverable as arrears of land revenue by the Collector of the district in which the person from whom the amount is due resides or carries on business or own any property. Further sub section 92(2) of The Punjab Town Improvement Act, 1922 provides that before issuing a certificate referred to in sub-section (1), the Chairman shall make an application to the concerned Regional Deputy Director, Local Government, who shall by an order determine the amount due to the Trust after giving an opportunity of being heard to the person concerned and communicate the same to the Chairman. As right of hearing available to the complainant and other allottees in view of section 92(2) of The Punjab Town Improvement Act, 1922 and as such, OP must have given an opportunity of hearing to the complainant and other allottees  before issuing the notice/memo in question. The recovery on issue of certificate is not possible until approval from the concerned Regional Deputy Director obtained by disclosing as to on what basis calculations for enhanced compensation amount to be made and as to from what date, the interest is chargeable. Moreover, OP has not mentioned the date as and when payment of enhanced compensation amount in term of judgment Ex.R5 of Hon’ble Punjab and Haryana High Court, Chandigarh has been made by it to land owners. As certificate issued by the Chairman of the Improvement Trust under sub-section(1) is final and conclusive and not liable to be called in question before any authority of Court in view of Section 92(5) of The Punjab Town Improvement Act, 1922 and as such, Improvement Trust or its Chairman must disclose to the complainant or the allottees concerned the criteria worked out for claiming enhanced compensation amount. In case of dispute qua the date of charging of interest, OP can get the matter referred to the Regional Deputy Director of Local Government.

13.              In office noting Ex.R9 or in any other documents produced by the OP, it is not specified as to what amount of Solatium paid or as to what is the area reserved for public utility services or as to what is the amount of interest paid and as to between how many allottees, the enhanced compensation amount to be apportioned. So, office noting Ex.R9 though spells out the reasons for claiming enhanced amount from the allottees, but the same does not discloses the criteria, on the basis of which, rate of Rs.199/- per square yards is going to be charged. That is an act of unfair trade practice or deficiency in service, particularly when the representation submitted by the Welfare Association of Kitchlu Nagar scheme, disclosing different rate of Rs.64.50 N.P. As and when a representation submitted for disputing the claim of interest or of solatium amount or of calculation qua charging of particular rate, then the details of alleged chargeable amount of Rs.199/- per square yard must have been worked out , but that is not done by OP and as such, virtually recovery sought to be effected in violation of the principle of natural justice as well as without fixing any criteria, on the basis of which, enhanced amount of compensation of Rs.199/- per square yard is claimed.

14.              In newspaper clipping Ex.R6, which is the notice issued for information of general public, mention not made as to how Rs.199/- per square yard going to be charged. So, this notice Ex.R6 even do not spells out the reasons or details on the basis of which, enhanced compensation amount sought to be claimed from complainant.

15.              Hon’ble Supreme Court of India in a case titled as Tamil Nadu   Housing Board and others vs. Sea Shore Apartments Owners Welfare Association-2008(1)R.C.R.(Civil) 517 held that price fixation of housing construction/flats depends on several factors, due to which, normally it will not be appropriate to enter into adequacy of price. Keeping in view this proposition of law in mind and by keeping in view the above discussion as well as the factual legal position, it is fit and appropriate to direct OP to work out the details of the price chargeable from the complainant and other allottees. By divulging those details as to how calculation for enhanced charges made, further action alone can be taken. In view of the ratio of above cited law, certainly the complainant is consumer because he availed services of OP in getting the plot allotted after arriving at agreement and execution of the sale deed.

16.              As per law laid down in case of Vipul Rai Sharma vs. Ludhiana Improvement Trust, Ludhiana-1991(2)R.R.R.-590(Punjab & Haryana High Court), fixing of price of the plots allotted by the Improvement Trust is basically a matter for Authorities to consider and Courts cannot substitute their own opinion unless action is apparently arbitrary. That arbitrariness in the case before us found to the extent that OP did not work out the details or criteria as to how Rs.199/- per square yards payable by the allottees concerned. The plots in 100 acre scheme may even have been reserved for special category and as such, it is for the Improvement Trust to decide as to in what way the enhanced amount recoverable by divulging the details of such enhancement. In view of all this, submissions advanced by counsel for the complainant has force that OP should be directed to re-calculate the demand by keeping in view the legal position referred above, but within the specified period. In case of difference of opinion qua the date of charging of interest, then the matter can be got referred by the Chairman, Improvement Trust to Regional Deputy Director, Local Government in view of Section 92 referred above. However, enhanced amount sought without disclosing any criteria and without disclosing how much area under plots or as to how much area under public utility services and as such,              virtually by issuing notice/memo in question by OP to the complainant, the complainant stood mentally harassed, owing to which, he has filed this consumer complaint. For this mental harassment and on account of the recovery sought to be effected after long time by issue of public notice through newspapers alone, ends of justice warrant that amount of Rs.10,000/- should be allowed as compensation for mental harassment, but Rs.5000/- as litigation expenses.

17.              As a sequel of the above discussion, complaint allowed in terms that demand put forth through memo in question is quashed, but with the observations that OP will have the right to re-fix the enhanced chargeable amount per square yard by keeping in view the enhanced compensation amount awarded by Land Acquisition Tribunal as well as by the Hon’ble Punjab and Haryana High Court, Chandigarh. Besides, OP will work out the details in writing for adjudging as to how much enhanced amount per square yard recoverable. OP will work out the details of more recoverable amount as held above within 60 days from the date of receipt of copy of this order. After working out these details, copy of those details will be sent by the OP to the complainant for giving right to complainant to submit the written reply. Final re-fixation of enhanced amount will be done after hearing the complainant. However, before effecting recovery on the basis of final adjudged enhanced recoverable amount by OP, a notice in writing will have to be issued by OP to the complainant, so that he may avail appropriate remedy before the appropriate Forum further. Compensation for mental harassment of Rs.10,000/-(Rupees Ten thousand only) and litigation expenses of Rs.5000/-(Rupees Five Thousand only) more allowed in favour of the complainant and against Op. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of copy of this order. Copies of order be supplied to the parties free of costs as per rules.

18.                        File be indexed and consigned to record room.

 

                   (Vinod Bala)                                (G.K. Dhir)

          Member                                          President

Announced in Open Forum

Dated:27.09.2016

Gurpreet Sharma.