Punjab

Ludhiana

CC/19/125

Surjit Kaur - Complainant(s)

Versus

Ludhiana Improvement Trust - Opp.Party(s)

Sukhwinder Singh Rep.

05 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 125 dated 01.03.2019.       

                                                Date of decision: 05.01.2023. 

 

1. Surjit Kaur Rekhi widow of Late S. Manmohan Singh, Age 73 years, resident of 110, Block-J, Sarabha Nagar, Ludhiana.  
2. Sukhwinder Singh Rekhi S/o. Late S. Manmohan Singh, Age 51 years, resident of 110, Block-J, Sarabha Nagar, Ludhiana                                                                                                               ..…Complainants

                                                Versus

1. The Principal Secretary, Department of Local Government Punjab, Chandigarh.
2. The Executive Officer, Improvement Trust, Ludhiana.                                                                                          …..Opposite parties

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

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants            :         Complainant No.2 Sh. Sukhminder Singh                                                  Rekhi in person.

For OP1                         :         Exparte.

For OP2                         :         Sh. Bhalinder Singh Gill, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Succinctly, the facts of the case are that the complainants are the mother and son in relation and are the owners of Plot No.51G, measuring 100 sq. yards situated at Shaheed Bhagat Singh Nagar, 475 Acre Scheme of the Improvement Trust, Ludhiana having hud-bust No.159, Khewat No.1050. Complainant No.1 purchased the said plot from its original allottee of the opposite party No.2 (Trust) and specifically mentioned that the proper sale agreement was not executed by the Trust in favour of the original allottee before purchase of the said plot by the complainants. Even the possession was also not handed over to the original allottee neither the application for site plan was submitted nor the site plan could be sanctioned by the Trust in favour of the original allottee which is otherwise symbolic set practice about handing over possession of the allotted plot in favour of the plot holder/owner by the Trust. It is further submitted that complainant No.1 deposited the balance pending amount in respect of the plot standing against the original allottee as per the demand raised by the Trust and also complainant No.2 became general power of attorney of the original allottee vide registered Vasika No.57765 dated 22.03.1996 and thereafter, with lot of efforts and follow up by the complainants, proper sale agreement could be executed by the Trust on 20.04.1999 through general power of attorney/complainant No.2. It is further submitted that vide registered vasika No.7322 dated 16.08.2000, conveyance deed duly executed first time and directly by the then Chairman of the Trust in favour of complainant No.1 which symbolizes that the complainants stepped into the shoes of the allottee and be deemed to be original allottee in respect of the plot in question. After execution of conveyance deed by the Trust, complainant No.1 submitted application along with drawing of site plan with motive and clear intention for construction and to take the possession and to construct the residential house at the plot in question for which the Trust demanded/raised demand of non-construction fee of Rs.7500/- which was duly deposited by the complainants in office of the Trust vide their office report No.20316 dated 26.11.2002 but the Trust failed to hand over the possession of the plot rather put the application pending and issued letter to the complainants vide memo No.12120 dated 04.12.2003 mentioning that their application to approve the site pan has been put on hold/pending with remarks that “due to Jhuggiz in the plot the site plan application is put on PENDING”. Moreover, instead of approving the site plan as per application along with prescribed performa, fees and competition of other formalities for approval of site plan for construction, the Trust kept on pending the application without any plausible, justifiable and reasonable reason. Rather put the application on hold/pending in spite of repeated reminders and follow up but to no avail. The complainants sent numerous applications/reminders/request letters to the Trust for approval of site plan, which is reproduced as under:-

Sr. No.	Date of Reminder/Request letter submitted for approval of site plan	Enclosed as Annexure
1.	18.12.2002	C6
2.	21.05.2004	C7
3.	31.12.2004	C8
4.	21.06.2005	C9
5.	06.03.2006	C10
6.	18.08.2006	C11
7.	07.02.2007	C12
8.	11.10.2007	C13
9.	08.04.2008	C14
10.	22.07.2010	C15
11.	17.01.2011	C16
12.	18.09.2015	C17
13.	16.10.2018	C18
14.	18.12.2018	C19

Through the above said applications, the complainants repeatedly requested the Trust as under:-

1. To vacate the illegal possession of Jhuggi dwellers from the plot in question
2. To refund the non-construction charges
3. To sanction the site plan pending with the Trust.

The Trust replied only five letters by stating that ‘until encroachment from the plot is not removed, possession cannot be handed over whereas the work to vacate the illegal possession of jhuggi dwellers is in process by the Trust, flats by MCL situated at Giaspura for jhuggi dwellers shall be allotted, only thereafter possession will be handed over it then site plan approval application is being put on pending.’ The said replies justify the claim of the complainants and also proof of deficiency of services which the Trust was liable to deliver.

                   The complainants further submitted that in the year 2016, complainant No.1 transferred and conveyed the property/plot in question to her son i.e. complainant No.2 under love and affection without any consideration vide duly registered deed having Vasika No.10943 dated 20.12.2016 and mutation was also got entered in revenue record  vide Intekal No.36012. Again on 18.12.2018, request letter was submitted to the trust to change the needful correction in their record regarding present ownership and also requested to sanction the submitted site plan application which is pending since long and the same has neither been rejected till date by the Trust. But to the surprise of the complainants, the Trust issued letter bearing memo No.13622 dated 21.01.2019 and demanded non-construction fine of Rs.4,29,500/- for the period 2002 to 2018 is arbitrary, capricious and unjust and against the rules. The Trust is entitled to demand non-construction charges from the allottee/owner in case he fails to construct a house/building at the plot within stipulated period but it is due to the failure and negligence of the Trust that the complainants have failed to construct a house despite of their best efforts and sincere will. However, it is the complainants who are continuously waiting for approval of site plan by the Trust and have also performed their part by submitting application for approval of site plan and even have paid the non-construction fine of Rs.7500/- as demanded by the Trust with intentions for taking possession of the plot and to construct residential house. But it is the Trust who has not performed its part rather failed to sanction the site plan and give possession till date. The complainants submitted application under RTI and as per information provided by the Trust, it is revealed that the Trust has evacuated jhuggi dwellers and could procure possession in year 2016. The Trust allotted flats at Giaspura to jhuggi dwellers and procured possession of the plot and other adjoining land at Shaheed Bhagat Singh Nagar, Ludhiana. In this regard, the Trust should have issued intimation letter/notice to the complainants in reference to pending application for approval of site plan and should have sanction site plan application pending since long but the Trust did not offer courtesy to intimate and no intimation letter of any kind issued to the complainants for taking possession or sanction of site plan of pending application. Due to the above said illegal acts and omissions of the Trust, the complainant had to suffer huge loss and harassment as cost of construction has increased manifolds during this period. Has the Trust approved the site plan in the year 2002, the cost of construction would have much less, cheaper and the complainants could have enjoyed the comforts of the property purchased by them. The complainants have also sent a legal notice dated 26.12.2018 upon the opposite parties for withdrawal of illegal demand of non-construction charges and requested them to deliver the vacant possession of plot in question to them and also to approve application for site plan but with no fruitful result. Hence this complaint, whereby the complainants have sought the following reliefs:-

1. That the complaint of the complainants be accepted
2. That the opposite parties should be directed to sanction the pending application for site plan approval without any further cost and without any further delay with grace period for construction as per set rules as the application is pending since 2002 which has not been sanctioned/approved nor rejected till date by the opposite parties and for which prescribed fee and formalities has been already complied with by the complainants as per directions and rules of the opposite parties.
3. That the demand of non-construction charges of Rs.4,29,500/- as non-construction fine from year 2002 as demanded by the opposite parties be quashed and completely be waived off.
4. That refund orders be issued for refund of non-construction charges of Rs.7500/- with interest up to date as the opposite parties could not accept non-construction charges as per rules where there is any encroachment, whose possession cannot deliver by the authority to plot holders.
5. That the complainants shall be suitably compensated by this Hon’ble Forum by penalizing the opposite parties to provide equal amount of non-construction to the complainants i.e. Rs.4,24,500/-  which the opposite parties are demanding from the plot holders as non-construction from year 2002 onwards till date as per provisions of Article 14 of the Constitution of India as equality clause for misery, agony, harassment and escalating cost of construction which complainants shall have to bear now for construction in plot.

2.                Notice was sent to opposite party No.1 through registered post on 04.06.2019 but the same was not received back either served or unserved even after elapse of period of 30 days. As such, opposite party No.1 was proceeded against exparte vide order dated 04.10.2019.

3.                Upon notice, opposite party No.2 appeared and filed written statement by taking preliminary objections that the complainants have not come with clean hands and have suppressed the material facts. The complainants Are stopped from filing the present complaint by their own act, conduct and acquiescence. Opposite party No.2 further took preliminary objection that there is no deficiency in service on their part and the complaint is false, frivolous and vexatious.

                   On merits, opposite party No.2 submitted that the plot No.51-G, situated in 475 Acre scheme was allotted to Bachan Singh son of Sh. Shyam Singh vide allotment letter No.4842 dated 19.03.1985 and subsequently, this pot was transferred in the name of Surjit Kaur wife of Manmohan Singh vide memo No.3484 dated 25.04.2000.  According to the terms and conditions of the allotment, sale agreement of the plot, the said transfer of ownership is executed only after receiving the remaining dues of the plot and on the demand of the allottee, the site plan is sanctioned and possession of the plot was delivered. After the transfer of the plot, the remaining amount or non-construction fee is only deposited in the name of the transferee. Opposite party admitted the execution of sale deed in favour of Surjit Kaur wife of Sh. Manmohan Singh on 08.08.2000. According to opposite party No.2 it has demanded only due amount at that time. The possession of the plot was handed over to the complainants and at the time of delivering the possession of the plot, the plot was vacant at the spot and there was no jhuggi at the spot.  Moreover, all the rights were transferred in favour of the complainants and it was the duly of the complainants to look after the property and to keep it free from any tress passer or jhuggi dwellers. Opposite party No.2 admitted the fact of moving application by the complainants for change in the record of opposite party No.2 on 18.12.2018, but it could not be executed due to the non-payment of the non-construction charges regarding which a letter No.13006 dated 11.12.2018 was written to the complainants but they did not deposit this amount. Opposite party No.2 denied for having indulged in unfair trade practice or there was deficiency in service on its part and in the end, prayed for dismissal of the complaint.  

3.                The complainants filed replication to the written statement denying the allegations of the written statement and reiterated the allegations made in the complaint.

4.                The complainants did not formally tender any affidavit or documents in support of the complaint except one document Ex. C29 and closed evidence. However, at the time of filing the complaint, the complainants annexed documents i.e. Ex. C1 copy of general power of attorney dated 22.03.1996, Ex. C2 copy of general power of attorney dated 20.04.1999, Ex. C3 copy of conveyance deed dated 16.08.2000, Ex. C4 copy of receipt No.20316 dated 26.11.2022, Ex. C5 copy of letter dated 04.12.2003, Ex. C6 copy of letter dated 18.12.2002, Ex. C7 is copy of letter dated 21.05.2004, Ex. C8 is copy of letter dated 31.12.2004, Ex. C9 is copy of letter dated 21.06.2005, Ex. C10 is copy of letter dated 06.03.2006, Ex. C11 is copy of letter dated 18.08.2006, Ex. C12 is copy of letter dated 07.02.2007, Ex. C13 is copy of letter dated 11.10.2007, Ex. C14 is copy of letter dated 08.04.2008, Ex. C15 is copy of letter dated 22.07.2010, Ex. C16 is copy of letter dated 17.01.2011, Ex. C17 is copy of letter dated 18.09.2015, Ex. C18 is copy of letter dated 16.10.2018, Ex. C19 is copy of letter dated 18.12.2018, Ex. C20 is copy of memo No.9287 dated 31.08.2006, Ex. C21 is copy of memo No.2899 dated 09.07.2007, Ex. C22 is copy of memo No.1523 dated 17.03.2011, Ex. C23 is copy of memo No.7340 dated 31.12.2015, Ex. C24 is copy of registered deed dated 20.12.2016, Ex. C25 is copy of letter dated 21.01.2019, Ex. C26 is copy of  office noting sheet dated 29.11.2018, Ex. C27 is copy of letter dated 26.12.2018, Ex. C28 is the copy of news item and Ex. C29 is copy of memo No.2899 dated 09.07.2017.

5.                On the other hand, Sh. Vishal Sharma, Junior Assistant of opposite party No.2 tendered his affidavit as Ex. RA and closed the evidence.

6.                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 the complainant.

7.                Complainant No.1 is the mother of complainant No.2 and in the year 2016, complainant No.1 (original allottee) transferred and conveyed the above said plot to complainant No.2 under love and affection vide sale deed dated 20.12.2016 Ex. C24. On 16.08.2000, the opposite parties executed a conveyance deed Ex. C3 in favour of complainant No.1 and thereafter, complainant No.1 submitted an application along with drawing of site plan for taking the actual possession and construction of residential house on which the opposite parties raised a demand of Rs.7500/- as non-construction charges. The same was deposited by the complainants on 26.11.2002 vide Ex. C4. After a lapse of one year, vide letter Ex. C5 dated 04.12.2003, the opposite parties intimated that due to jhuggis in the plot, the site plan application has been put on hold. Thereafter, the complainants issued 14 reminders within the period of 18.12.2002 to 18.12.2018 i.e. Ex. C6 to Ex. C19 requesting the opposite parties to approve the site plan for construction but the opposite parties kept the matter pending on one pretext or the other and only responded through letter dated 04.12.2003 Ex. C5, Ex. C20 to Ex. C23 between the period of 31.08.2006 to 31.12.2015. In these replies, the opposite parties took the stand that until the encroachment by jhuggi dwellers on the plot is not removed, the possession cannot be handed over. It is only after the removal of encroachments, the possession will be handed over to the complainants and the site plan approval application will also be considered. However, on 21.01.2019, vide Ex. C19, the opposite parties demanded non-construction charges to the tune of Rs.4,29,500/- for the period of year 2002 to 2018.

8.                Now the question arises for consideration that whether the demand raised by the opposite parties for Rs.4,29,500/- is justified or not?

9.                Perusal of written statement shows that the opposite parties have denied the existence of jhuggis at the spot. Rather they have asserted that at the time of delivering the possession of the plot, the plot was vacant at the spot and the opposite parties were well within their right to demand non-construction charges. The pleadings of the opposite parties run contrary to the documents produced by the complainants and these documents are issued by the opposite parties themselves. The complainants had been running from pillar to post over the years and have been repeatedly visiting the office of the opposite parties and constantly making the representations Ex. C6 to Ex. C19 for issuance of approval of site plan for the purpose of construction of house but the opposite parties have failed to justify the non-approval of the site plan for construction. Due to the act and conduct of the opposite parties, the complainants have not only been harassed mentally and physically but they have also suffered financially as the rates of construction material and labour have gone up-rise during this period and the plot in question could not be put to use to the convenience of the complainants which certainly amounts to deficiency of service on the part of the opposite parties. As such, the demand of non construction charges of Rs.4,29,500/- along with its incidental or consequential charges is illegal and unjustified and is liable to be revoked.

10.              During the pendency of this complaint, the opposite parties issued another notice dated 22.11.2022 to the complainants asking them to deposit an amount of Rs.5,99,446/- till 31.12.2022. The complainants have deposited the said amount under protest and made statement on 25.11.2022 before this Commission in the presence of counsel for the opposite parties. The opposite parties have not denied the issuance of notice or receipt of the said amount. Since the demand of Rs.4,29,500/- along with its incidental or consequential charges has already been held to be unjustified and amount was deposited under protest, so the complainants are entitled for refund of an amount of Rs.5,99,446/- from the opposite parties. The complainant(s) will further submit a fresh application with the opposite parties for approval of site plan and the opposite parties are directed to consider and approve the site plan without any extra cost/charges. The complainant is also held entitled for composite cost of Rs.10,000/-.

11.              As a result of above discussion, the complaint is partly allowed with direction to the opposite parties to refund the amount of Rs.5,99,446/-to the complainants within 30 days from  the date of receipt of copy of order failing which the complainants shall be held entitled to interest @8% per annum from the date of order till date of actual payment. The complainants will duly submit a fresh application for approval of site plan with the opposite parties within 15 days from the date of receipt of copy of order and the opposite parties are directed to consider and approve the site plan without any extra charges within 15 days from the date of receipt of fresh application from the complainant. The opposite parties shall further pay a composite compensation of Rs.10,000/- (Rupees Ten Thousand only) to the complainants. Compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of order be supplied to 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:05.01.2023.

Gobind Ram.

 

 

Surjit Kaur Vs Improvement Trust Ludhiana                            CC/19/125

Present:       Complainant No.2 Sh. Sukhwinder Singh Rekhi in person.

                   OP1 exparte. 

                   Sh. Bhalinder Singh Gill, Advocate for OP2.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to the opposite parties to refund the amount of Rs.5,99,446/-to the complainants within 30 days from  the date of receipt of copy of order failing which the complainants shall be held entitled to interest @8% per annum from the date of order till date of actual payment. The complainants will duly submit a fresh application for approval of site plan with the opposite parties within 15 days from the date of receipt of copy of order and the opposite parties are directed to consider and approve the site plan without any extra charges within 15 days from the date of receipt of fresh application from the complainant. The opposite parties shall further pay a composite compensation of Rs.10,000/- (Rupees Ten Thousand only) to the complainants. Compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of order be supplied to 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:05.01.2023.

Gobind Ram.