ORDER

Gulshan Prashar (Member)

1. Brief facts of the case are that the complainant applied for allotment of residential plot of 400 square yards in Urban Estate, Kapurthala with opposite party through an application dated 19.11.2004 and according he was allotted plot No.1259-C by the opposite party by its letter of intent dated 28.2.2005 and Rs.9,57,425/- was total price of the said plot which was paid by the

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complainant and "No Due Certificate" in this behalf was issued by the opposite party.

2. That despite the payment of all the amount, the opposite party has not delivered physical possession of the aforesaid plot as there are two mango trees standing in the said plot regarding which he intimated the opposite party through letter dated 15.12.2008 and 27.11.2009 from time to time, but nothing has been done by the opposite party but till today physical possession of the said plot has not been delivered to the complainant. The opposite party has also sanctioned a site plan submitted by the complainant to raise the construction.

3. The opposite party sent letter through which they demanded Rs.43,856/- as non-construction charges/extension fee from the complainant which is totally illegal and the complainant paid the same under protest. This act of the opposite party in charges illegally non-construction charges/extension fee from the complainant is deficiency in service. Hence the present complaint.

4. Notice of the complaint was issued to the opposite party who appeared through counsel and filed written statement raising as many as seven preliminary objections by refuting all the allegations made in the complaint. It is admitted to the extent that opposite party allotted the plot No. 1259-C vide letter of intent which is Ex.C2 dated 4.3.2005 and not 28.2.2005 as mentioned in the complaint. It is also admitted that the complainant had paid all the sale consideration and building plan was approved vide letter dated 2.6.2008 Ex.C4. It is denied that the physical possession was not

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delivered to the complainant. The building plan was submitted by the complainant and the same was approved vide letter dated 2.6.2008 with certain conditions. No building plan can be submitted until physical possession of the plot is taken. As per clause-II of the allotment letter, the allottee shall submit the building plan within 60 days for approval by the competent authority in PUDA. It is denied that if there are two mango fruit trees are standing in the above said plot. It is pleaded that the opposite party was not responsible for any thing, and it was the responsibility of the complainant to get the plot leveled if it was uneven and he was to use the plot as required under the local laws. He was informed then and there to do the needful in the matter at his own level. The mangoes trees if any, were to be uprooted by the complainant as per the law of the land and the same can be got removed after getting the necessary permission from the competent authority of the Forest Department and the complainant was told about it. The conveyance deed of this plot stands executed and registered in favour of the complainant on 28.12.2009. There was no matter of shocking on the receipt of the letter regarding the payment of Rs.43,856/-. The legal charges have been levied as the Extension Charges as the complainant failed to complete the construction on the plot as per the requirement of the building bye laws of the PUDA and as per the terms and conditions of the allotment letter dated 26.5.2005 and letter dated 2.6.2008 Ex.C4, vide which the building plan of the complainant was approved. There is no deficiency in service on the part of opposite party and the complaint is liable to be dismissed.

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5. The counsel for the complainant has tendered into evidence affidavit Ex.CA along with documents ExC1 to Ex.C11 and closed the evidence.

6 The counsel for the opposite party has tendered into evidence affidavits Ex.OPA and Ex.OPB along with documents Ex.OP1 to Ex.OP2 and closed the evidence.

7. We have heard learned counsel for both the parties and have gone through the file. In this case, the complainant has prayed to quash the memo/letter vide which a demand of Rs.43,856/- was made by the opposite party and this amount has already been deposited by the complainant with the opposite party which may kindly be refunded to the complainant along with interest. The allotment of Plot No. 1259-C by the opposite party to the complainant on 28.3.2005 and issuing of intend letter on the same day is not disputed. The total cost of the plot Rs.9,57,425/- has also been admitted by both the parties. No due certificate was issued to the complainant which is Ex.C3. Ex.C4 is the permission to construct a house on thesaid plot with certain conditions. The counsel for the complainant argues that physical possession of the plot was not delivered to the complainant by the officials of the opposite party and the complainant moved an application on 15.12.2008 which was duly received by the opposite party and entered at Sr. No. 2462/8 in their register which is Ex.C6. Ex.C7 is another letter dated 27.11.2009 written by the complainant to the opposite party. Vide letter Ex.C7, the complainant had requested the

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opposite party to deliver him physical possession of the plot so that he can construct his house over this plot. The Authorities had sanctioned/approved the site plan and other requisite formalities for raising construction of a house on the said plot.

8. The main controversy between the parties is that two mangoes trees are standing in the plot which have not been uprooted by the opposite party. The counsel for the complainant argues that complainant can not remove these two trees himself and the removal of the mangoes trees can attract the provisions of a cognizable offence and complainant being a peace loving and law abiding citizen moved application to the opposite party to remove these mangoes trees. He further argues that the opposite parties did not remove the mangoes trees and the complainant was very much shocked when he received a letter Ex.C9 for the payment of Rs.43,856/- on account of the extension fee and non-construction charges and the complainant paid this amount under protest to avoid any future complication. The counsel for the complainant argues that the vacant possession of the plot was not delivered to the complainant and the two mangoes trees are still standing in the plot. So Non-construction charges and extension fee which the opposite party had charged from the complainant are illegal because the opposite party never deliver any vacant possession of the plot in question to the complainant. But the counsel for the opposite party argues that it is correct that building plan was approved vide letter dated 2.6.2008 with certain conditions and these conditions are binding on the complainant.

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They have already handed over physical possession of the plot to the complainant. The complainant cannot submit building plan until and unless physical possession of the plot is taken as per clause-11 of the allotment letter, the allottee shall submit the building plan within 60 days for approval by the competent authority in PUDA. Building plan was sanctioned on 2.6.2008. It is also admitted by the opposite party that the complainant had moved an application for the removal of two mango fruit trees which are standing in the above said plot. The counsel for opposite party argues that as per clause-10 of the allotment letter, the plot was offered for sale on as is where basis and the opposite party was not responsible for any thing, and it was the responsibility of the complainant to get the plot leveled if it was uneven and he was to deal with the plot as per local laws. He was informed then and there to do the needful in the matter at his own level. This is the duty of the complainant to level the plot.

9. It is admitted case of both the parties that two mangoes trees are standing in the plot No. 1259-C Urban Estate, Kapurthala. For removing these two trees, we direct the opposite parties to move an application to the Divisional Forest Officer, Kapurthala to assess the value of these two mangoes trees and after the assessment of the value of Mangoes trees by the Forest Officials, the officials of the opposite party then sell these two mangoes trees in the auction and the highest bidder will remove these trees with his own labour and the complainant will assist the opposite party in completing the whole

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process so that these two mangoes trees can be removed and the complainant can construct his house on his plot.

10. The counsel for the complainant argues that the complainant got the building plan approved from the opposite party on 2.6.2008 and he was ready to construct a house over this plot as the cost of construction of a house is raising day by day and there was a fear in the mind of the complainant that the opposite party will charge from him a non construction fee., but the complainant was not able to construct the house because vacant possession of the plot was not delivered to the complainant by the opposite party and until and unless vacant possession of the plot is not given to the complainant, he shall not be able to construct a house on the plot because he cannot remove these two mangoes trees standing in the plot in question due to fear of registration of a cognizable case against him by the Authority.

11. So we are of the view that the apprehension of the complainant is correct and the opposite party cannot charge Rs.43,856/- a non construction charges and extension fee because the vacant possession of the plot has not been delivered to the complainant by the opposite party till today.

12. So we quash the letter No. EO PUDA-JAL-S-2009/6418 dated 17.12.2009 Ex.C9 vide which a demand for the payment of Rs.43,856/- was made by the opposite party from the complainant and we direct the opposite party to refund this amount to the complainant which was paid by him vide Ex.C11 on 22.12.2009 vide receipt issued by the Punjab Urban Development Planning

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Authority, Jalandhar. The opposite party is also directed to pay Rs.2000/- as compensation on account of mental tension and harassment suffered by complainant, besides Rs.1000/- as costs of litigation to the complainant. The opposite party will complete this process within three months from the receipt of the copy of the certified copy of the order.

Copy of the order be sent to the parties through registered post free of costs. File be consigned to the record room.

Dated: Gulshan Prashar Paramjit Singh

21.4.2010 Member President