BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

                                                                   Complaint No.52 of 2023    

                                                                   Date of Inst. 17.02.2023

                                                                   Date of Decision: 02.07.2024

Sunit Sandhu aged about 58 years son of Sh. Sohan Singh Sandhu R/o H. No.88, New Jawahar Nagar, Jalandhar, Punjab.

..........Complainant

Versus

Ludhiana Improvement Trust, Ludhiana, through its Chairman.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:         Dr. Harveen Bhardwaj            (President)

 Smt. Jyotsna                           (Member)                                  Sh. Jaswant Singh Dhillon       (Member)

Present:        Sh. Sukrant Sharma, Adv. Counsel for the Complainant.

                    Sh. M. S. Sood, Adv. Counsel for OP. (Join Proceedings)

Order

Dr. Harveen Bhardwaj (President)

1.                    The instant complaint has been filed by the complainant, wherein it is alleged that the mother of the complainant namely Smt. Sukhjit Sandhu purchases the property/Plot No.7K situated at Scheme Kartar Singh Sarabha Nagar, Ludhiana from the OP and the OP issued the allotment letter No.2405 dated 25.07.1969 for the total consideration of Rs.30,400/-. The OP and the mother of complainant entered into the sale agreement which was executed on 01.01.1973 in which clause no.2 & 3 clearly mentioned that OP may impose non-construction charges of Rs.500/- which is kept by the OP as a surety from the mother of the complainant. The mother of the complainant requested to OP to execute the sale deed with regard to above said property in favour of mother of the complainant but the OP is lingering on the matter on one pretext or other. During that period mother of the complainant installed water and electricity connection in the said property. Instead of this, the mother of the complainant also approved the site plan of double storey building on dated 17.08.1981 from the OP. In fact, as per the condition there will be no fine can be imposed after two years on the said approved map but on the request of OP, the mother of the complainant also paid Rs.52,248/- vide receipt no.7482 dated 30.03.2016 to Municipal Corporation, Ludhiana for approval of site plan. The OP further imposed unlawfully non construction charges of Rs.1,51,270/- on the behalf of the resolution no.265 dated 11.07.1984 and OP forcefully compelled the mother of the complainant to deposit the above said charges of Rs.1,51,270/- and the same deposited by the mother of the complainant vide receipt no.115580 dated 26.03.2018 issued by the OP/Ludhiana Improvement Trust. The OP executed sale deed bearing document no.2018-19/101/1/10493 dated 29.03.2019 in the favour of mother of the complainant Smt. Sukhjit Sandhu wife of Sh. Sohan Singh Sandhu. Thereafter, mother of the complainant transfer the said property in the name of the complainant vide mutation no.36625 as per Fard Jamabandi for the year 2011-12 issued by the concerned Patwari. Mother of the complainant was approached several times to the higher authorities and OP for the refund of the said 2023 amount Rs.1,51,270/- and last letter was received on 21.11.2022 regarding this matter. The OP unlawfully imposed the non construction penalty of Rs.1,51,270/- from the mother of the complainant on behalf of resolution which was passed on 11.07.1984, which is purchased not applicable on the before the passing resolution and on property of said the sale agreement dated 01.01.1973. It is clearly mentioned that the OP can impose only Rs.500/- for non construction charges and OP has already received the said amount of Rs.500/- from the mother of the complainant. Thereafter the complainant requested many times to the OPs to refund the said amount along with interest @ 24% p.a. and compensation to him but they refused to accede the genuine request of the complainant. As such the OP is involved in unfair trade practices which amount to deficiency of services on the part of the OP and the OP has also committed unfair trade practices towards the complainant and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund/return the amount paid by the complainant Rs.1,51,270/- along with interest @24% p.a. and to pay Rs.5,00,000/- for causing mental tension, harassment, appreciation of the property and agony suffered by the complainant and to pay litigation expenses of Rs.55,000/-.

2.                Notice of the complaint was given to the OP, but despite service the OP failed to appear and ultimately, OP was proceeded against exparte vide order dated 17.03.2023. Thereafter, on the next date of hearing, the counsel for the OP filed an application for joining the proceedings and counsel for the complainant suffered a statement that he has no objection if the application be allowed. Thus, the application is allowed subject to condition that the OP will have only right to argue the case and will have no right to file written statement as well as leading the evidence.

3.                In order to prove his respective version, the counsel for the complainant has produced on the file his respective evidence.

4.                We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.

5.                The complainant has alleged that he was allotted the plot vide allotment letter No.2405 dated 25.07.1969 for the total consideration of Rs.30,400/-. The copy of allotment letter has been proved as Ex.C-1. The agreement to sell executed between the mother of the complainant with the OP was executed on 01.01.1973, which is the part of Ex.C-1. The site plan of double story building was approved on 17.08.1981 from the OP. It has been alleged that though as per condition, no fine could have been imposed, but at the request of the OP, the mother of the complainant paid Rs.52,248/- vide receipt on 30.03.2016 to the Municipal Corporation. The sale deed was executed on 29.03.2019 in favour of the mother of the complainant. The OP has illegally charged Rs.1,51,270/- on the basis of resolution dated 11.07.1984, the charges for non construction. The complainant has sought the refund of Rs.1,51,000/- charged by the OP though there was no condition in the allotment letter. The complainant has alleged that the resolution relied upon by the OP is not applicable to the complainant nor any circular alleged by the OP is applicable to the complainant as it cannot be implemented retrospectively. The complainant has submitted that because of the act and unfair trade practice of the OPs, the complainant has been knocking the door of the OP since the allotment of the plot and has made numerous representations to the OP on the ground that they cannot charge non-construction charges, but the proper services have not been rendered by the OP and these services are deficient.

6.                The OP was proceeded against exparte and vide order dated 14.08.2023, the OP has been allowed to join the proceedings. There is no written statement on the file, but the counsel for the OP has taken the objection while arguing that the present complaint is not maintainable as the same is time barred. He has submitted that the complainant has made number of complaints, representations to the department and has been making correspondence since long and all his complaints/representations have been considered and disposed of as per rules. The OP has produced on record the complete file of the plot in question and submitted that the representations and request of the complainant for refund of non-construction charges has been declined as the same were rightly charged as per rules and regulations. The complainant has failed to get registered the sale deed within the prescribed period and the delay was on the part of the complainant. The non-construction charges were taken as per the resolution dated 11.05.1984. There is no deficiency in service or unfair trade practice on the part of the OP. Request has been made to dismiss the complaint.

7.                The first objection taken by the OP is that the complaint is time barred. Admittedly, the plot was allotted to the mother of the complainant on 25.07.1969. It is also admitted that the agreement was executed on 01.01.1973. The sale deed was executed on 28.03.2019. The non-construction charges of Rs.1,51,270/- were paid by the complainant on 26.03.2018. Number of applications were sent to the OP, which has been, produced on record by the OP. As per submission of the complainant, the OP filed case on 22.12.2022, on the report of OP, and the case remained in process from 14.05.2018 to 20.12.2022. During this period, the personal hearing of the case was also given to the complainant. Thus, the cause of action in the present case is continuous cause of action as the complainant has been making correspondence and remained in touch with the OP since the day, the allotment was made, site plan was approved and non-construction charges were charged by the OP and thereafter, the complaints and applications of the complainant remained pending for refund of non-construction charges till 2022. As per Consumer Protection Act, the complainant has right to file a complaint within two years from the date of occurrence and the present complaint has been filed on 17.02.2023, which is well within the limitation. So, the present complaint is maintainable. 

8.                Ex.C-1 shows that the plot was allotted to the complainant on 25.07.1969 without there being any condition of non-construction charges except the one that the complainant should deposit Rs.500/- as surety and to abide by the conditions mentioned in the agreement. Perusal of the agreement shows that the complainant was to raise the construction within 36 calendar months from 25.07.1969. The next condition of the agreement is that the purchaser shall raise section fertilize elevation, designs as per the approved site plan and according to the approved site plan, the purchaser shall raise construction and for compliance of these conditions, Rs.500/- have been deposited as surety by the complainant and if the conditions are not fulfilled, the amount of Rs.500/- shall be forfeited. The entire agreement to sell nowhere finds mentioned this fact that in case the complainant fails to raise the construction within 36 calendar months, then the non-construction charges, if any or at what rate shall be charged, nothing has been mentioned in the agreement to sell nor there is any such condition. As per allotment letter, the complainant was to abide by the terms and conditions mentioned in the agreement to sell. As per the order relied upon by the OP, the amount of non-construction charges were received as per the resolution No.265 dated 11.07.1984. Perusal of the resolution dated 11.07.1984 shows that this resolution is applicable to the three allottees namely Sh. Kailash Verma plot No.427-C, Sh. Lajpat Rai bearing plot No.27-C and Sh. Gian Chand bearing plot No.425-B, but this resolutions nowhere finds mentioned the name of the complainant or his mother nor the plot number of the complainant has been mentioned anywhere. As per the submission of the OPs, the rules and policy guidelines have been followed. He has relied upon the policy guidelines of Govt. of Punjab dated 03.03.1988, wherein as per Annexure-A, the Govt. has decided to give extension in the construction period beyond three years with immediate effect. As per these guidelines, these were given in the year 1988, but it has nowhere been mentioned that these guidelines or the amendment, if any in rules is to be applied retrospectively. These guidelines were issued in the year 1988, whereas the present complainant has purchased the plot in the year 1969, agreement to sell was executed in the year 1973 and the decision of the Govt. to charge the non-construction charges is not applicable as it does not have retrospective effect. There is no provision under the rules of Improvement Trust to charge the non-construction charges from the date of allotment till 1986. The complainant has relied upon the judgment passed by the Hon’ble State Commission, titled as ‘Improvement Trust etc. Vs. Urmila Devi’ Appeal No.592 of 2005, wherein it has been held that there is no mentioned of the imposition of non-construction charges in the allotment letter, the appellant/LIT cannot legally do so. The complainant has further relied upon the judgment of the Hon’ble State Commission, tiled as ‘Improvement Trust Ludhiana Vs. Rajan Kumar etc.’ First Appeal No.1747 of 2010, wherein it has been held that where ‘there was no provision in the terms and conditions of allotment letter to charge non-construction charges, the Improvement Trust cannot legally do so and they are not entitled to charge any non-construction charges’. It has further been observed by the Hon’ble State Commission that ‘even the rules of the Improvement Trust nowhere show to charge the non-construction fee’. The Hon’ble State Commission has relied upon the judgments of the Hon’ble Supreme Court, titled as ‘State of M. P. Vs. Yogendra Shrivastva’, 2010(1) SCT Page 434 Supreme Court, ‘Escorts Ltd. Vs. Union of India’ 2010(2) RCR (Civil) 60 (Pb. & Hry. High Court), wherein it has been observed that ‘amendment in rules cannot be applied retrospectively and that in case any right has accrued to the other party the same cannot be taken away’. The Hon’ble State Commission has further relied upon the instructions which have been relied upon by the OP in the present case. It has been observed by the Hon’ble State Commission that the instructions were issued on 03.03.1988 and it was held in the judgments, titled as ‘Tehal Singh Vs. State of Punjab’ CWP No.13648 of 1998 decided on 04.05.1998 by DB  of Hon’ble Punjab & Haryana High Court, ‘Sant Kaur Pabbi Vs. State of Punjab, CWP No.18986 of 2001 decided on 31.10.2022 and again in the judgment ‘Harpreet Singh Vs. State of Punjab’, 2009(2) RCR (Civil) 771, it was again reiterated after relying upon the judgment of ‘Tehal Singh and others (supra) that the charging of NCF cannot be recovered on the basis of administrative instructions.’ The Hon’ble Supreme Court has further observed that on the basis of the administration instructions, the Improvement Trust cannot charge the non-construction charges.

9.                In the present case, there is no condition in the agreement for charging non-construction fee in case of failure in raising construction. The rules relied upon by the OP cannot have effect and cannot be applied retrospectively. Thus, after going through the allotment letter, the conditions mentioned in the agreement, the demand raised by the OP for non-construction charges is wrong, illegal, arbitrary and against the rules. Thus, there is clear cut deficiency in service by the OPs and the complainant is entitled for the relief.

10.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to refund the amount paid by the complainant Rs.1,51,270/- alongwith interest @ 9% per annum from the date of making deposits, till its realization. Further, OP is directed to pay a compensation of Rs.15,000/- for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

11.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

02.07.2024         Member                          Member             President