Punjab

StateCommission

A/11/974

Ludhiana Improvement Trust - Complainant(s)

Versus

Mulkh Raj - Opp.Party(s)

Sandeep Khunger

25 Mar 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                                               PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.974 of 2011

 

                                                          Date of Institution: 23.06.2011  

                                                          Date of Decision:  25.03.2015

 

Ludhiana Improvement Trust, Ludhiana through its Chairman.                                                                                                                                                                                  …..Appellant/Opposite party no.1

         

                                      Versus

 

1.       Mulkh Raj Son of Shri. Tara Chand resident of House No.336-G,          Bhai   Randhir Singh Nagar, Ludhiana.

 

                                                          ..Respondent/Complainant

 

2.       Adarsh Colony Co-operative House Building Society Ludhiana,   570/1, National Road, Near Bhaiwala Chowk, Ludhiana through its          Authorized Signatory.

 

                                                          …..Respondent/Opposite Party No.2

 

         

First Appeal against order dated 04.05.2011 passed by the District Consumer Disputes Redressal Forum, Ludhiana

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Harcharan Singh Guram, Member

Present:-

 

          For the appellant                       :         Sh.Sandeep Kumar,Advocate.

          For the respondent No.1            :         Sh.Rajesh Gupta, Advocate

          For the respondent No.2            :         Ex-parte.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the opposite party no.1 in the complaint) has filed this appeal against respondent no.1 of this appeal (the  complainant in the complaint) and respondent no.2 of this appeal (the OP No.2 in the complaint), challenging  order dated 04.05.2011 of District Consumer Disputes Redressal Forum Ludhiana, accepting the complaint of the complainant partly by quashing the demand of non-construction charges, whereas dismissing the complaint of the complainant with regard to payment of enhanced charges and development charges with usual rate of interest.  The instant appeal has been preferred against the same by OP No.1, the present appellant in this appeal.

2.      The complainant Mulkh Raj has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he being member of OP No.2, vide membership No.1237 and was allotted plot No.336-G, measuring 450 sq. yards in Bhai Randhir Singh Nagar Ludhiana. The above plot was originally allotted to Sh. Raman Kumar son of Sh. Dharam Paul, vide his membership No. 728 and later on above Raman Kumar transferred this plot and membership to Dr. Manoj Salwan and after obtaining the No Objection Certificate of the transfer, it was further transferred to the complainant along with the membership. OP No.2 Adarsh Cooperative House Building Society Ludhiana was constituted in the year 1968 with the aim of providing plots for construction of residential houses and it purchased 39 acres of land in village Sunet now part of Bhai Randhir Singh Residential Colony. The Improvement Trust OP No.1 acquired this land owned by the above society OP No.2 at the time of sanctioning of above said scheme at Bhai Randhir Singh Nagar Ludhiana by Local Government Punjab. This land was exempted, vide notification no. 928-ICII-77/4702 dated 09.02.1977 on the basis of the proposal submitted by the OP No.2. OP No.2 Adarsh Cooperative Housing Building Society filed civil writ petition no.1981 in the Punjab & Haryana High Court, whereupon, OP No.1 allotted 281 plots of various sizes in the above society. Vide allotment letter No.LIT/3744 dated 2.09.1983, 129 plots including plot No.336-G at Bhai Randhir Singh Nagar Ludhiana measuring 500 sq. yards was allotted @ Rs.60/- sq. yards to OP No.2 for allotment to its members and OP No.2 further allotted plots to the original alloteee and complainant was allotted this plot, vide allotments letters in this regard, However the size of the plot was reduced to 450 sq. yards against the total cost of the plot of Rs.27,000/- , which was paid by the complainant to OP No.1. The complainant became full owner of the plot in dispute after paying the entire costs and other dues of the plot. The allotment of these plots were challenged in the courts and on account of pendency of the litigation, the plot of the complainant was cancelled by the Court, which was restored on 09.05.1993, vide letter No.1/1994-95 dated 08.07.1994. The possession was not given at least till the issuance of letter dated 08.07.1994 as referred to above. All development charges were to be incurred by the OP No.1, but due to pending litigation, OP No.1 did not execute any development work like construction of roads, water supply, sewage and other such civic amenities in the area till December 2003, which were essential for the construction of the residential houses. The possession was not handed over due to pending litigation by OP No.1 of the plots even to the complainant till 1998. The OP No.1 had not executed the sale deed of the plot in favour of the complainant in spite of completion of all formalities by the complainant including the payment of all the dues.  As per the provisions of the Punjab Town Improvement Act 1922, after completion of the scheme, it was transferred to Municipal Corporation Ludhiana and Local Body thereafter became responsible for its maintenance, vide circular dated 22.09.2003. The Improvement Trust is responsible till transfer of the scheme for all the maintenance and of providing civic amenities in the scheme. The scheme in which the plot of the complainant was transferred to Municipal Corporation Ludhiana on 1.8.1994, so the Municipal Corporation Ludhiana was only competent authority to enforce the building bye-laws. The Municipal Corporation found deviations in the construction of the houses and issued notices under Sections 269(1) and 270(1) of the Punjab Municipal Corporation Act 1976 to the complainant and it was compounded by paying the charges of Rs.25,000/- and Rs.12103/- by the complainant. The complainant made many representations to the OPs but no sale deed so far  was executed in favour of the complainant. 39 Acres of land of the society of OP No.2 was acquired by the OP No.1, which was later on exempted by the Local Government, Punjab, vide notification dated 09.02.1977 and hence no amount of enhancement can be recovered on the exempted land from the complainant by OP No.1 The OPs, instead, raised the demand of Rs.11,66,463/- as non-construction charges and Rs.131418/- as arrears and Rs.55343/- as enhancement fee being recoverable from the complainant. The complainant has filed the complaint against the OPs with the prayer that the above-referred demand raised by OPs be quashed and OPs be directed to execute the sale deed of the plot in favour of the complainant accordingly.

3.      Upon notice, OP No.1 contested the complaint of the complainant by raising preliminary objections in the written reply that complaint is not maintainable, being without cause of action. The complex question of facts and laws are involved in this case, which cannot be adjudicated in summary proceedings by the Consumer Fora. Original file of the OP No.1 being untraceable for the last three months and reply is being filed on the basis of the record submitted by the complainant. On merits, complaint was also contested by the OP primarily on the ground that letter dated 09.02.1977  is not notification and it is letter of the Government and this letter only 45% to 55% of the area was to be under the plots, as per condition no. d of this letter to the effect that no individual member could transfer or alienate the plot for a period of 10 years and not more than one plot was to be given to the member. It was admitted that OP No.1 allotted the plots to the society as per scheme of the area and OP No.2 was further allotted the plots to the members of the society. It was further averred that complainant was not the original member of the society and original member of the society was Sh. Raman Kumar, who was allotted the plot by the society. Sh. Raman Kumar sold the plot to Dr. Manoj Salwan and Dr. Manoj Salwan further transferred this plot to the complainant. The complainant was not even member of the Adarsh Society OP No.2, when the plots were allotted and plot No.336-G Bhai Randhir Singh Nagar  Ludhiana was not allotted to the complainant. The scheme of Bhai Randhir Singh Nagar was handed over to Municipal Corporation Ludhiana on 01.08.1994 after completion of the scheme. After handing over the scheme to Local Body by OP No.1 Improvement Trust, the site plan of the building is to be sanctioned by Municipal Corporation Ludhiana only, after taking No Objection Certificate from OP No.1. The possession of the plot is given by the local authority after demarcation, as all the lay out plans of the scheme are also handed over to the local authority of Municipal Corporation Ludhiana. It was further denied that complainant requested to OP No.1 to hand over the possession of the plot. The complainant has not disclosed this fact, if he has got his site plan sanctioned from Municipal Corporation Ludhiana or not. No Objection Certificate was ever obtained from OP No.1 by the complainant. The complainant was asked to deposit the amount of Rs.7,55,406/- as non-construction fee and Rs.95,113/- as enhancement and Rs.29,390/- as development charges up to 16.12.2004, besides interest on the execution of the sale deed. The complainant made request for execution of the sale deed on 16.03.2010, whereas, the demand, as referred above, issued by OP No.1 in the year 2004. The plot was transferred on 22.08.1998 in favour of the complainant as per Annexure C-3. The original allottee was liable to raise the construction within three years after allotment of the plot in his favour. OP No.1 is justified in raising the construction charges, development charges and enhancement charges with interest from the complainant before executing the sale deed in his favour. The period of three years is to be counted from the allotment of the plot to the original allottee, which was allotted in the year 1983. It was further averred by OP No.1 that neither original allottee nor the complainant ever applied to OP No.1 for sanction of the site plan or delivery of the possession. It was denied by OP No.1 that the plot of the complainant ever remained in litigation. It was admitted that the complainant alleged in para no.12 of the complaint that OP No.1 handed over the scheme to Municipal Corporation Ludhiana on 01.08.1994 after completion of the scheme. The complainant was in the knowledge of the facts, but he has not applied for sanction of the site plan with OP No.1 or the local authority. OP No.2 has not paid the enhancement fee to OP No.1, as claimed by the complainant and it prayed for dismissal of the complaint.

4.      OP No.2 was set exparte in this case, vide order dated 04.10.2010 of District Forum Ludhiana.

5.      The complainant tendered in evidence affidavit of complainant Ex.C-1/A, copy of Pan Card Ex.C-1, copy of letter of allotment issued by Adarsh Colony Co-operative House Building Society, copy of No Objection Certificate on Transfer Ex.C-3, copy of letter dated 22.08.1998 Ex.C-4, copy of letter addressed to the Chairman Improvement Trust Ludhiana Ex.C-5, copy of order Ex.C-6, copy of letter Ex.C-7, copy of circular dated 8.7.1994 Ex.C-8, copy of letter of Government of Punjab Ex.C-9, copies of receipts of Municipal Corporation Ludhiana Ex.C-10 to Ex.C-12, copy of receipt of electricity bill Ex.C-13, copy of memo dated 16.12.2004 Ex.C-13-A, copy of request slip Ex.C-13-B, copy of letter dated 19.3.2010 Ex.C-14, copy of letter dated 15.4.2010, copy of letter Ex.C-16, copy of order dated Ex.C-17, copy of order dated Ex.C-18, copy of memo dated 22.4.1999 Ex.C-19, copy of memo Ex.C-20, copy of memo dated 26.10.2004 Ex.C-20-A, copy of receipt no.1234 dated 10.10.99 Ex.C-21, copy of receipt dated 19.9.82 Ex.C-22, copy of receipt dated 10.10.93 Ex.C-22-A, copy of noting Ex.C-23 dated 5.8.08, copy of reply Ex.C-24.  As against it, OP tendered in evidence affidavit of Sh. M.M Vyas, Chariman Improvement Trust Ex.R-A, copy of letter dated 07.10.1982 Ex.R-1, copy of noting Ex.R-2, copy of memo no.3744 dated 2.9.83 Ex.R-3, copy of list Ex.R-4, copy of memo no.3572 dated 8.4.1997 Ex.R-5, copy of notification Ex.R-6, copy of order dated Ex.R-7, copy of order Ex.R-8. On conclusion of evidence and arguments, the District Forum Ludhiana,  accepted  the complaint of the complainant partly and quashed the non-construction charges only raised by OP No.1, whereas it upheld remaining charges as raised by OP No.1 from the complainant. Dissatisfied with the order of the District Forum, Ludhiana. The instant appeal has been preferred against the same by OP No.1 the present appellant.

6.      We have heard learned counsel for the parties and have also examined the record of the case.     

7.      The dispute between the parties boils down to this point as to whether OP No.1 is justified in legally  raising the enhancement charges and non construction charges and development charges from the complainant or not. So far as the charges of enhancement and the development charges are concerned, no appeal or counter appeal has been preferred against the same by the complainant against the order of the District Forum. We confine our self to this point in this appeal as to whether raising the demand of non-construction charges by OP No.1 from the complainant is legally  justified. We have to examine the evidence on the record coupled with pleadings and the affidavits of the parties in this case. Admittedly, the complainant is original allottee of the plot by OP No.2 Society. The plot in question was transferred in the name of the complainant from the original allottee Sh. Raman Kumar through Dr. Manoj Salwan. The complainant alleged that the non-construction charges by OP No.1 is illegal and could not be condition precedent to execute the sale of the plot in favour of the complainant. The OP No.1, the present appellant, justified the raising the demand of non-construction charges from the complainant, as condition precedent for execution of the sale deed. Affidavit of Mulkh Raj complainant Ex.C-1/A has been examined by us on the record in this case. Ex.C-1 is copy of pan number of the complainant  issued by the Income Tax Department. Ex.C-2 is letter of the allotment issued by OP No.2 with regard to Plot 489 sq. yards in the name of the original allottee Sh. Raman Kumar, Ex.C-3 is No Objection Certificate  on its transfer by Sh. Raman Kumar of this plot to Dr. Manoj Salwan,  copy of No Objection Certificate of Dr. Manoj Salwan in favour of the complainant is Ex.C-4 on the record, Ex.C-5 is copy of letter regarding exemption to the Chairman Improvement Trust Ludhiana from the Secretary to Government of Punjab. The development charges are to be paid by the society to the trust on the basis of the rates by the trust and development of the area exempted will be carried out by the Improvement Trust. The member will file undertaking that the plot will not be transferred or otherwise alienated for the period of 10 years and not more than one plot would be allotted to the member. Ex.C-6 is copy of order of the High Court in some writ petition, but we find that this order is not legible nor its original copy has been placed on the record. Ex.C-7 is copy of letter dated 02.09.1983 of the terms and conditions of the Improvement Trust with regard to provisional allotment of the plot to Adarsh Cooperative Society. 1/4th of the amount was required to be deposited within a period of 30 days, as has been mentioned in the letter. Ex.C-8 is the copy of circular dated 08.07.1994 of Adarsh Colony Cooperative Housing Building Society Ltd in favour of OP No.2 by OP No.1 regarding handing over the possession to the bonafide member of the scheme, without no construction fine. This letter is the basis of the complainant, which is Ex.C-8 is on the record. We gather from perusal of Ex.C-8 that the possession was handed over in favour of OP No.2 by Improvement Trust without any construction charges by virtue of this circular no. 1 1994-1995 dated 08.07.1994. This letter is addressed by OP No.2 and not by OP No.1 on the record so as to bind it. Ex.C-9 is letter dated 22.9.03 of Additional Secretary on behalf of Punjab Government for transfer of the scheme to Municipal Corporation.  From perusal of Ex.C-9, it is clear to the effect that scheme was transferred by Improvement Trust to Municipal Corporation, as per this direction of the Government of Punjab dated 22.09.2003, the complainant deposited the amount with Municipal Corporation with OP No.1. On 26.09.2005 Rs.25,000/-, vide Ex.C-10, on 28.7.2006 Rs.12,103/-, vide Ex.C-11 and Rs.600/-, vide Ex.C-12. Copy of letter of Improvement Trust Ludhiana as addressed to the complainant dated 16.12.2004 raising demand of con-construction charges  is Ex.C-13/A on the record. The application of the complainant is 16.03.2010 is Ex.C-13/B. The representation of the complainant to Chairman Improvement Trust Ludhiana dated 10.03.2010 is Ex.C-14 and legal notice served by the complainant to OP is Ex.C-15. Ex.C-16 is policy guidelines regarding grant of extension of time limit for the construction of late charging of extension fee etc. By virtue of this letter Ex.C-16, the government directed the Improvement Trust that previous construction charges rates stood superceded and they should take further action in the matter in the reply to the grant of extension fee for the construction of the plot and charging of extension fee thereof. Ex.C-17 is copy of  order dated 17.7.1984. Ex.C-19 is copy of letter dated 22.4.1999  issued by Joint Secretary with regard to charging of non-construction fee and other penal charges. It records that in case allotment of the plot has been stayed by the Government or the Courts, no penal fee or any construction fee will be charged from the allottee for such period during which stay order remained in force. Ex.C-20 policy regarding the construction of the charges. The rates were revised with effect from 1.1.1997. Ex.C-20-A is letter of Additional Secretary to the Executive Officer, Improvement Trust Patiala regarding not to charge non-construction charges from the person, whose land has been exempted by the trust in a given scheme. Ex.C-21 is copy of receipt regarding deposited the amount of Rs.33176/- by Mr. Raman Kumar with OP No.2 on 10.10.92 on the record. The complainant also relied upon the copy of the noting dated 5.08.2008 contending that this is report of Bhai Randhir Singh Nagar to the effect that case remained pending before the High Court, wherein Improvement Trust could not legally charge the non- construction fee on account of operation of stay. The submission of the counsel for the complainant is that the civic amenities could not be provided till 05.08.2008 in the area where the plot of the complainant is located. This is own admission of the OP through their officials that the civic amenities were not provided in Bhai Randhir Singh Nagar Ludhiana till September 2004, vide Ex.C-23 on the record.

8.      To counter the above evidence, the OP No.1 the present appellant tendered affidavit of Sh. M.M Viyas Chairman Improvement Trust Ludhiana Ex.R-A on the record. The gist of his affidavit is that complainant is not original allottee of the society. The Improvement Trust Ludhiana handed over the scheme to Municipal Corporation Ludhiana on 01.08.1994 after completion of the scheme. It was submitted by him in his affidavit that lay out plan of the scheme were completed and it was handed over to Municipal Corporation Ludhiana by the improvement trust. The complainant has not disclosed this point  as to when he got sanctioned his site plan from Municipal Corporation Ludhiana.  He further stated in his affidavit that no sale deed could be executed in favour of the complainant without completion of all formalities and deposit of all the charges by him. The original allottee of the plot never made any request for demarcation of the plot. OP also relied upon Ex.R-1 the allotment letter to Administration Improvement Trust Ludhiana  dated 07.10.1982, Ex.R-2 is proceeding of the Administrator Cooperative Trust, Ex.R-3 is letter No.3744 dated 02.09.1983 regarding provisional allotment. Ex.R-5 is policy regarding charging of non-construction fee and extension of time limit. In this letter, the rates were revised with effect from 1.01.1997 by the Government of Punjab. Ex.R-6 is notification dated 13.12.2005 in this regard. Similarly, OP relied upon copies of order Ex.R-7 and Ex.R-8 on the record.

9.      From conclusion of above referred evidence on the record and hearing the respective submissions of the counsel for the parties, we find that Ex.R-23, which is noting dated 05.08.2008 of the official of OP No.1 the present appellant, it has proved that in Bhai Randhir Singh Nagar Ludhiana water supply, sewage and roads were completed in September 2004 only and they could not be completed earlier due to operation of the stay issued by the Hon'ble High Court. The OP cannot back out of this document Ex.C-23 in any way. It has not been denied by counsel for OP No.1 now appellant that this noting is not by their officials. OP No.1 now appellant are bound by this document and it has established that the water supply, sewage and roads were not provided in Bhai Randhir Singh Nagar Ludhiana where plot in dispute is situated by OP No.1 due to operation of the stay issued by Hon'ble High Court till September 2004. We find that OP No.1, the present appellant, could not escape from this document, which is by their officials under any circumstances. There is nothing on the record by the OP, the present appellant, to counter Ex.C-23 or to prove it false. We can safely conclude from this document Ex.C-23 that the facilities like roads, water and sewage facilities were provided in the above scheme in September 2004 only. Prior to providing of the civic amenities by OP No.1, the present appellant, it does not behove the appellant to raise  non-construction charges from the complainant prior to September 2004 on account of incomplete civic amenities in the area of the plot. OP No.1 the present appellant is justified in demanding the non-construction charges from the complainant after September 2004 only, when the entire facilities were completed as per document Ex.C-23 on the record by giving due concession of the years of exemption from the construction of the plot.

10.    Undoubtedly, the Apex Court has held in case titled as Huda Vs. Sunita reported in 2005(2) SCC 479 that the jurisdiction of the Consumer Forum is excluded with regard to composition fee and extension fee. We  respectively go by this judgment of the Apex Court however we find that prior to completion of the civic amenities by OP No.1 till September 2004, the backwards act of the OP No.1 would be outside the purview of the basic structure of the statute where under they are claiming them. OP No.1 would be justified in raising the above charges after providing the complete amenities to complainant after duly accounting for the exempted years of construction. The complete facilities were provided in the above scheme in September 2004 only, vide Ex.C-23 on the record. Consequently, the act of the OP No.1 would be contravening the basic structure of Improvement Trust Act to claim the non-construction charges before completion of civic amenities by them in Bhai Randhir Singh Nagar as proved on the record.

11.    The counsel for the complainant also referred to law laid down by our State Commission in case titled as Estate Officer Vs. Harpreet Kaur, First Appeal No.200 of 2010 decided on 18.02.2014 wherein reliance has been placed by our Hon'ble National Commission in the judgment of Narinder Singh Nanda  Vs.  Puda, it was observed that where the act of the Improvement Trust or Development Authorities de-hors the provisions of the statute, the authority cannot take benefit of law laid down in Huda Vs. Sunita (supra) by the Apex Court. The authority must act within the purview of law for demanding non-construction charges. Consequently, we find that OP No.1 the present appellant, is fully justified in raising non-construction charges after September 2004 when the civic amenities were completed by it and that to after duly accounting for the exempted years of construction and only thereafter the act of OP No.1, the present appellant, would be fully justifiable by law laid down in Huda Vs. Sunita (supra).

12.    As a result of our above discussion, we modify the order of the District Forum Ludhiana by setting aside the order of the District Forum Ludhiana by partly accepting the complaint of the complainant and order that the demand of non-construction charges raised by OP No.1 now the present appellant prior to September 2004 would be illegall, liable to be set aside and is ordered accordingly.  OP No.1,  the present appellant, raising the demand of non-construction charges after September 2004 after duly accounting for the exempted years of construction would be fully justified .  We partly accept the appeal with regard to demand of non-construction charges raised after September 2004 after accounting for the exempted years of construction, if any,  whereas it is dismissed with regard to raising demand of non-construction charges prior to September 2004 and order of the District Forum is modified protanto.

 13.   Arguments in this appeal were heard on 20.03.2015 and the order was reserved. Now the order be communicated to the parties.

14.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                            PRESIDING JUDICIAL MEMBER

                       

                                                           (HARCHARAN SINGH GURAM)

                                                                          MEMBER

 

March  25  2015.                                                            

(ravi)