Haryana

Ambala

CC/69/2023

ASHOK KUMAR. - Complainant(s)

Versus

MUNICIPAL CORPORATION (IMPROVEMENT TRUST CELL),AMBALA. - Opp.Party(s)

AMAN BAWA.

01 Mar 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AMBALA

 

Complaint case no.	:	69 of 2023
Date of Institution	:	15.02.2023
Date of decision	:	01.03.2023

 

1.       Ashok Kumar aged about 63 years son of Shri Jai Pal.

2.       Parveen Kumar aged about 61 years sonof Shri Jai Pal, both R/o H. No.61,          Vikas Vihar, Ambala City, Haryana.

……. Complainants.

                                                Versus

Municipal Corporation (Improvement Trust Cell) Ambala through its Commissioner, (Ambala City).

….…. Opposite Party

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.     

 

Present:      Shri Aman Bawa, Advocate, counsel for the complainants.

 

Order:        Smt. Neena Sandhu, President.

1.                This complaint has been filed by complainants, under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To refund Rs.76,412/- charged illegally towards enhancement of additional price over and above than due on plot owned by complainants.
2. To pay interest @ 15% per annum on above amount from the date of payment to OP, till realization.
3. To pay Rs.15,000/-, as compensation for causing financial loss, mental agony to the complainants.
4. To pay Rs.5,000/-, as litigation costs.
382.  

          Grant any other relief which this Hon’ble Commission may deem      fit.        

2.           Brief facts of the case are that the complainants purchased plot bearing no.61, measuring 202.50 Square Meters situated at Vikas Vihar (also known as Scheme No.19) Ambala City, which was carved out as per Master plan by erstwhile Improvement Trust Ambala, after which, the same was approved by the State of Haryana and now by act of Government, the said Improvement Trust Ambala is merged with the OP. It is relevant to mention here that the father of the complainants had passed away on 27.12.2023. The complainants being the legal heir of the deceased had inherited the abovementioned plot after the death of their father. The plot owned by complainants was carrying tentative price and the condition of the then Improvement Trust Ambala regarding payment of additional price was agreed to by complainants in accordance with terms and conditions of allotment letter/conveyance deed. The complainants dated 18.05.2015 received a demand notice for the payment of Rs.1,13,643/- towards additional price pertaining to plot owned by complainants payable within 30 days and accordingly the complainants deposited the payment of Rs.1,18,685/-, alongwith interest vide receipt no.7888 dated 17.06.2015, receipt No.8471 dated 30.09.2015, receipt No.8788 dated 17.11.2015, receipt No.8960 dated 22.12.2015, receipt No.9136 dated 14.01.2016 and 17.05.2016. The said amount recovered by the OP was illegal and without any justification as a similar situated case has been filed by some of the resident of Vikas Vihar (same colony where complainants resides) vide consumer complaint No.14 of 2018 and this Commission had passed the order on 02.08.2019 in the favour of the residents by directing the OP to refund the amount which had been deposited by the residents, after the demand raised by the OP. After the passing of the judgment dated 02.08.2019, the complainants came to know about the fact that the OP was directed to refund the excess enhanced amount to the allottees as the said amount demanded by the OP was in excess. Thereafter, complainants contacted the OP to refund the excess amount paid by him in lieu of demand notice dated 18.05.2015, but it did not pay any heed towards the same and advised the complainants to file a complaint before this Hon’ble Commission. Feeling aggrieved by the inaction of the OP, complainants filed the present complaint before this Hon’ble Commission. It is apposite to mention here that the Hon’ble Apex Court vide order dated 10.01.2022 had excluded the time of limitation w.e.f 15.03.2020 to 28.02.2022. However, complainants is having a concurrent cause of action against the inaction of the OP, being the competent authority had charged the excess enhancement amount from him. The cause of action has accrued to the complainants firstly on 18.05.2015, when the OPs sent a demand letter. Further the cause of action had accrued on 02.08.2019, when this Hon’ble Commission had passed an order directing the OP to refund the excess amount charged by the OP, in the similar situated case. In the case of the complainants, the cause of action is concurrent in nature and continuing as the OP had not refunded the amount so deposited by the complainants till date. Thus, the present complaint is being filed within the period prescribed under the Act, therefore, is well within the period of limitation. The OP while spreading out award of Hon'ble High Court arising out of CWP 2815 of 1987 (decided on 19.12.2008) wrongly added following area as 'non saleable area' and accordingly charged the amount of enhancement pertaining to following area from plot holders of residential area and including complainants as under:-

(a) Area toward INCO side = 7835 S M

(b) Area towards Railway line =4080 S M

(c) Area under Sarai (Community Centre) - 2100 S M

The OP wrongly took area under shopping consisting of Shops under rent, SCFs, Booths as 3480 S M and not 6970 SM including parking in front of said shopping area. As a matter of fact, the total shopping area is 6970 S M in Scheme no.19. The award of enhancement passed by the Hon'ble High court in the above detailed CWP was on entire area consisting of 79515 square meter and not on limited area. The OP out of total calculated enhancement of Rs.2,29,19,354.93, charged a sum of Rs.46,25,021.17 towards interest illegally which is not payable being time barred as the OP did not issue demand notice to plot holders/assignees for more than 6 years (i.e. 77 months) and charged interest @ 15% on the amount of enhancement of price during that period, illegally. The OP under the threatened action as detailed in the notice dated 18.05.2015, is trying to recover the amount mentioned in the impugned notice and in case the total amount of Rs.2,29,19,354.93 is spread over the entire saleable area (excluding non saleable area falling underneath Roads, Parks, green belts etc. in residential area) and excluding excess amount of interest as mentioned above, the recoverable rate would come out to be Rs.208.76 per Square meter. The OP has committed deficiency in service. Hence, the present complaint.

3.           We have heard the learned counsel for the complainants and have also carefully gone through the case file.
4.           Learned counsel for the complainants has submitted that the complainants received the demand notice dated 18.05.2015 for payment of additional amount of Rs.1,13,643/-, pertaining to the plot owned by him, from the OP. Accordingly, complainants paid an amount of Rs.1,18,685/-, on 17.06.2015, 30.09.2015, 17.11.2015, 22.12.2015, 14.01.2016 and 17.05.2016, vide receipts No.7888, 8471, 8788, 8960 and 9136. The said amount was recovered by the OP illegally and without any justification and in a similar situated case, some of the resident of Vikas Vihar filed a consumer complaint No.14 of 2018 before this Hon’ble Commission, which was allowed and vide order dated 02.08.2019, this Hon’ble Commission directed the OP to refund the amount received from the said consumer. After coming to know about the said order passed by this Hon’ble Commission, complainants requested the OP for refund of the amount taken in excess from him, but it refused to refund the said amount. The cause of action firstly accrued to the complainants on 18.05.2015 and thereafter on 02.08.2019, when this Hon’ble Commission ordered the OP to refund the excess amount.

It may be stated here that OP raised the demand of Rs.1,13,643/- vide demand notice dated 18.05.2015. Complainants paid the amount of Rs.56,822/-, vide receipt No.7888 dated 17.06.2015, Rs.10,000/- vide receipt No.8471 dated 30.09.2015, Rs.10,000/- vide receipt No.8788 dated 17.11.2015, Rs.15000/-, vide receipt No.8960 dated 22.12.2015, Rs.10,000/- vide receipt No.9136 dated 14.01.2016 and Rs.16,863, vide receipt dated 17.05.2016, in total Rs.1,18,685/-, (the amount of Rs.1,13,643/- alongwith interest). Meaning thereby, cause of action has arisen to the complainants for redressal of his grievances, finally on the date when the complainants deposited the entire amount with the OP i.e 17.05.2016 and not from the order dated 02.08.2019, passed in CC No.14 of 2018, in the case of Viplove Kumar Vs. Municipal Corporation (Improvement Trust Cell). As per Section 69 of Consumer Protection Act, 2019, the complaint could be filed within the period of two years from the date of accrual of the cause of action. Since the cause of action arose to the complainants on 17.05.2016, therefore, as per Section 69 of CP Act, 2019, complainants could have filed the complaint upto 16.05.2018. Passing of order by this Commission in some other complaint case, referred to by the complainants, will not extend the period of limitation, in favour of the complainants. However, complainants have filed the present complaint on 15.02.2023, for redressal of his grievance i.e. after a delay of about four years, nine months approximately, from the date of accrual of cause of action. Therefore, the complaint filed by the complainants is hopelessly time barred and is liable to be dismissed in limine.

5.           In the case of State Bank Of India vs M/s. B.S. Agricultural Industries (I), CIVIL APPEAL No. 2067 of 2002, decided on 20 March, 2009,  the Hon’ble Supreme Court has held that:- provisions of Section 24-A of CP Act, 1986 is peremptory in nature and requires Consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of action. It is further held that “If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside”
6.           In view of the aforesaid discussion, the complaint filed by the complainants is dismissed in limine being barred by limitation.  Certified copy of this order be supplied to the complainants, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

 Announced on:- 01.03.2023.

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President