APPEARED AT THE TIME OF ARGUMENTS

(R.P. NO. 2522 OF 2017)     

ORDER

C. VISWANATH

1.          The present Revision Petitions are filed by the Petitioners under Section 21(b) of the Consumer Protection Act, 1986 against common Order passed by the State Consumer Disputes Redressal Commission, Punjab (hereinafter referred to as the “State Commission”) in Appeal No. 1543/2009 & 1544/2009 dated 09.03.2017.

2.          Smt. Neelam Bhalla, Complainant in Complaint No. 577 of 2009 stated  that one Shri Dina Nath son of Shri Nand Lal was member of Respondent No.2 Society/ Opposite Party No.1, who was allotted plot No. 990-D, measuring 250 sq. yds. After his death, he was succeeded by Shri Kulbhushan Nath and Smt. Savitri Sharma. Smt. Savitri Sharma surrendered her rights in the plot in favour of Shri Kulbhushan Nath, who then became sole allottee of plot No. 990-D, under membership No. 1349. Thereafter, Shri Kulbhshan Nath transferred the said plot to the Complainant, vide membership No. 1452, in the record of Respondent No.2, who also issued no due certificate on 06.09.2007. Hence the Complainant became a consumer under the Opposite Parties qua plot.  The land of Respondent No.2 i.e. Atam Nagar Cooperative House Building Society Ltd. was acquired by the Petitioner i.e. Ludhiana Improvement Trust. Subsequently, vide notification dated 21.09.1982, 50% of the acquired land was exempted by the State Govt. of Punjab. The Petitioner asked Respondent No.2 to pay development charges and exemption fee and then the plots, list of which was appended with allotment letter No. 11308 dated 03.02.1983, were to be allotted by Respondent No.2 to its members. Plot No. 990-D of the Complainant was at Serial No. 55.  Respondent No. 2 allotted plots to the members including plot No. 990-D. The society acted as intermediator between its members and the Petitioner. Respondent No.1 has since been depositing dues as demanded by Respondent No.2 and nothing was payable qua this plot to the Society. Respondent No.1 has been requesting Respondent No.2 Society to demarcate the plot and to hand over vacant possession, but in vain.  Other members of the society, who were allotted plots, were given possession.  No possession was delivered to Respondent No.1 by Respondent No.2. Respondent No.2 took the excuse that the plot was not in existence and therefore its inability to handover the possession. Wherever the Petitioner Trust could not deliver possession of the plots to the allottees, as mentioned vide letter No. 11308 dated 03.02.1983, the members were given alternate plots. No alternate plot was allotted to Respondent No.1.  Hence, the Complaint was filed.

3.          Shri Vivek Bhalla, Complainant in Complaint No. 588 of 2009 dated 25.09.2007, alleged that plot No. 993-D, measuring 250 sq. yds. was initially allotted by Respondent No. 2 to its member Shri Madan Lal s/o Sh. Payare Lal, vide membership registration no. 374.  Shri Madan Lal sold that plot and transferred to the Complainant, vide membership no. 1463, in the record of Respondent No. 2.  No due certificate was issued by Respondent No. 2 to the Complainant on 19.09.2007.  Hence the Complainant became consumer under the Opposite Party qua plot, having all rights which were available to original allottee Sh. Madan Lal.   The land of Respondent No. 2 was acquired by the Petitioner Trust.  Subsequently, 50% of the acquired land was exempted by the State Government of Punjab, vide notification dated 21.09.1982.  The Petitioner required Respondent No. 2 to pay the development charges and exemption fee, as mentioned in the letter and that the plots, list of which was appended with allotment letter no. 11308 dated 3^rd February, 1983, were to be allotted by Respondent No. 2 to its members.  At serial no. 58, was included plot No. 993-D of the Complainant.  All the other allegations in this Complaint were of the same nature and kind as that of Smt. Neelam Bhalla.

4.          Both the above stated Complaints were contested by Petitioner as well as Respondent No.2. The stand of both Petitioner as well as Respondent No.2 in the aforsaid Complaints are same. Therefore, below stated written Statement should be taken as defence qua both the Complaints.

5.          The Complaint was contested by Respondent No.2 wherein it was claimed that Respondent No.1 was not a Consumer.  The Complaint was, thus, not maintainable.  Respondent No.1 had no cause of action against Respondent No.2. It was pleaded that the plot in question was allotted by the Petitioner and Respondent No. 2 i.e. Society made further allotment to Respondent No.1. It was reiterated that Respondent No. 2 was only the intermediator and no liability could be fastened on them. Possession of the plot was to be delivered by the Petitioner. Hence, Complaint against them deserved to be dismissed. Complaint was claimed to be time barred, as grievance of Respondent No.1 for non-delivery of possession and demarcation of the plot was from 1983. He had slept over the matter for 24 years. Thus, there was no jurisdiction to decide the Complaint. Respondent No.2, vide letter No. 11308 dated 03.02.1983, wrote many letters to the Petitioner to give demarcation and possession of the balance plots allotted. Though majority of the plots had been given by the Petitioner, yet there were a few plots, possession of which was not handed over by the Petitioner to Respondent No.2. Respondent No.2 i.e. Society had also given a legal notice to the Petitioner. It was averred that the Petitioner only developed the colony. The plots had been allotted by the Petitioner in the shape of carved out developed colony. Development charges and exemption fee were paid by Respondent No. 2 to the Petitioner on the basis of their allotment letter. Possession of a number of plots had not been delivered by the Petitioner to Respondent No.2. There was no deficiency of service on their part. Complaint against them deserved to be dismissed.

6.          The Petitioner in his written statement accused Respondent No.1 of suppressing material facts and contended that the Complainant had no cause of action. Allotment of plots to its members, to put them in possession or give demarcation, was the internal matter of Respondent No.2, with which the Petitioner had nothing to do. As land measuring 102508 sq. yds. was exempted by the State Govt. , so Improvement Trust never took possession of the said land.  Ownership and possession of that land vested with Respondent No.2. Petitioner never paid compensation to Respondent No.2 for acquisition of land. Hence, there was no question of taking possession of the land. Thus, there was no deficiency in service on their part and Respondent No.1 was not their consumer. They raised objection qua estopple and limitation.   It was alleged that Respondent No.1 was not the original allottee as no amount had been deposited by Respondent No.1 with the Petitioner, so he did not become their Consumer. Possession, if any of the plot was to be given by Respondent No.2 and not by him. It was denied that Respondent No.2 simply acted as post office between the members of the Society and the Trust. The Complaint was not maintainable in view of the decision in Civil Writ Petition No. 9070 of 1996 decided on 19.11.1998 of the Hon’ble Punjab and Haryana High Court. Allotment of alternate plots in favour of persons, would not create a right in Respondent No.1, to claim equality. The alternate allotment of plot, if any made was against rules and public policy, so would not create any right in favour of Respondent No.1. The trust was only duty bound to develop the area and possession was to be made by Respondent No.2.    

7.          Both Complaints Nos. 577 and 588 were allowed by the District Forum, vide order dated 12.03.2009, “Opposite Party No. 2 Trust is directed to put both the Complainants Smt. Neelam Bhall and Sh. Vivek Bhalla in possession of plots No. 990-D and 993-D respectively, after demarcation of the allotted plots and in case, no such plots in that very scheme of those dimensions are available, then to allot alternative plots of the same scheme or any other equally developed scheme, at the same price of which, original plot was allotted.  Order be complied within 45 days of receipt of copy of order.  Parties to bear their own costs.”

8.          Aggrieved of the order passed by the District Forum, the Petitioner filed two Appeals before the State Commission. The State Commission, vide order dated 09.03.2017, dismissed the Appeals by a common order as common questions of law and facts, except some minor variations here and there, were involved in these appeals.  The facts were taken from First Appeal No. 1543 of 2009.  No infirmity or illegality was found in the order passed by the District Forum. FA No. 1543 of 2009 was dismissed accordingly.  However, it was observed that the plot was to be allotted to Respondent No.1 within 4 months by Respondent No. 2 and in case alternative plot was to be allotted in any other area, the same should be allotted of the same size and at the price fixed at the time of booking the plot in question originally. If the size was more, Respondent No.1 would be required to pay the proportionate amount and if the size is less, then the proportionate amount be refunded to Respondent No.1. In view of the order of passed in F.A. No. 1543 of 2009, F.A. No. 1544 of 2009 was also dismissed.

9.          Aggrieved by the orders passed by the State Commission, the Petitioner filed the present Revision Petitions before this Commission. 

10.        Heard the Learned Counsel for the Petitioner and Respondents. We have also carefully gone through the evidence placed on record.

11.        Respondents  placed on record judgement passed by this Commission in RP/3002-3008/2009 & RP/3217/2009, Ludhiana Improvement Trust Vs. Dharamvir Bector & Ors., where the orders passed by the State Commission were upheld. The Commission has directed the Trust to allot the plots mentioned in the said list strictly according to the entitlement of each of the Complainants within 6 weeks on the usual terms and conditions as applicable to similar allotments made in the past.  In the said case, this Commission held as under:-

“This bunch of 7 Revision Petitions, by the Trust, is directed against a common order dated 5.12.2008 passed by the State Consumer Disputes Redressal Commission, Punjab (for short “the State Commission”) in First Appeals No.546-548/2006, 817 & 818/2007, 1176/2000.  By the said order, while accepting the Complaints filed by the Respondents, the State Commission has directed the Trust to deliver possession of the plots of the size allotted to the Complainants in Atam Nagar Co-operative Housing Society Ltd.; and in case, these plots are not available, allot alternative plots of the same size in any nearby schemes.  While coming to the conclusion that the Trust is under legal obligation to deliver possession of these plots, the State Commission has relied upon a number of decisions rendered by this Commission, some of which, on challenge by the Trust, have been affirmed by the Hon’ble Supreme Court.

The main ground on which challenge is laid to the order is that the State Commission has failed to take into consideration the fact that the Complaints had been filed after a lapse of more than 11 years from the date when the right to allotment had accrued in favour of the Complainants and therefore, these were barred by limitation, as prescribed in Section 24A of the Consumer Protection Act, 1986 (for short “the Act”).

In our view, the bare fact that the entitlement of the Complainants to a plot of land, as displaced person under the Scheme in force at the relevant time, had been recognized by the Trust itself, the non-delivery of possession would be a continuing cause of action till actual physical possession of the allotted plots is delivered to them.  Hence, we are in complete agreement with the State Commission that the Complaints were not barred by limitation.

The other issue, which was raised during the course of hearing in these Revision Petitions was that the total area to be allotted to the 7 Complainants before us works out to 1375 sq. yd. but the total land available with the Trust in the aforesaid Scheme is only 1135 sq.yd. and thus, there being a shortfall of 265 sq.yd. of land, the order cannot be implemented.  Here again, the objection is misconceived, in as much as the Trust having decided to allot the plots to the Complainants in alternative Schemes, the stated shortfall, as a whole, loses relevance.  As a matter of fact, a list of seven unallotted plots, and stated to be available with the Trust, supplied by the Complainants to the learned Chairman, has been placed before us.  It is not disputed by the Officer present that the said plots are unallotted and are available with the Trust. That being so, we do not find any impediment in the Trust allotting the said plots to the Complainants according to the entitlement of each of the Complainants to the size of the plot, particularly when in a number of cases, similar allotments have been made under the orders of this Commission, which have stood scrutiny on dismissal of the Special Leave Petitions (SLPs), preferred by the Trust before the Hon’ble Supreme Court.  Accordingly, we reject the said objection as well and direct the Trust to allot the plots mentioned in the said list, strictly according to the entitlement of each of the Complainants within 6 weeks from today on usual terms and conditions as applicable to similar allotments made in the past.”

12.        It is to be noted that the aforesaid judgement was also relied by both the Fora below while deciding this matter. Both the Parties have led evidence and after carefully going through them, both fora below have rightly answered the issue of maintainability, limitation and resjudicata raised by the Opposite Parties.  Furthermore, this Commission under Section 21(b) of the Consumer Protection Act, 1986 has limited jurisdiction. It is not required to re-assess or re-appreciate the evidence and reach to its own independent conclusion, Hon’ble Supreme Court in Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011(3) Scale 654 has held as under:

“Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power cane be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same sets of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora”.

13.        There is a concurrent finding on the matter in both the fora below.  In view of the concurrent findings of the both the Fora, we see no illegality or infirmity in the impugned order. The Revision Petitions have no merit.  The same are dismissed.