DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No 196 of 16-07-2007<br /> Decided on : 24-10-2007<br /> <br /> Neelam W/o Shri Vijay Kumar Monga, R/o House No. 5096, Gali Afim Wali, Post Office Bazar, Bathinda.<br /> ... Complainant<br /> Versus<br /> 1.Punjab Urban Development Authority, Bhagu Road, Bathinda, through its Additional Chief Administrator.<br /> 2.The Estate Officer, Punjab Urban Development Authority, Bhagu Road, Bathinda.<br /> ...Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection Act, 1986.<br /> <br /> QUORUM<br /> <br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr.Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Sandeep Baghla, Advocate. <br /> For the Opposite party : Sh. J.D. Nayyar, Advocate.<br /> <br /> O R D E R<br /> <br /> LAKHBIR SINGH, PRESIDENT<br /> 1. Residential plot bearing No. 1429 measuring 250 Sq. Yards situated at Urban Estate, Phase -III, Part-2 Bathinda was allotted to her vide allotment letter No. 2025 dated 18.11.2001 for a consideration of Rs. 3,81,250/- @ Rs. 1525/- per Sq. Yard. After completing 25% of the price, balance amount was payable in six installments. First installment was to commence on 18.4.02 and the last was payable upto 18.10.04. She continued depositing the amount of installments. Last installment was deposited vide draft No. 487870 dated 1.9.03 with covering letter dated 1.9.03 received vide receipt No. 9807. No due certificate was requested vide letter No. 58 dated 12.1.05. Same was issued confirming that entire price of the plot was paid. Notice vide memo No. 4459 dated 15.12.06 was received from the opposite parties vide which the demand of Rs. 38,500/- was raised as extension fee for construction of the plot. She assails this demand as illegal and arbitrary. Request was made to the opposite parties to set aside the demand, but they failed to accede to it. Reply dated 22.12.06 of the notice was submitted which was received by the opposite parties vide receipt No. 5556 dated 29.12.06 raising the objection concerning the charging of the amount and non-delivery of the possession of the plot. Opposite parties vide letter No. 483 dated 3.4.07 alleged that possession was to be taken by her. Infact possession was not delivered to her. Opposite parties with malafide intention further raised the demand of Rs. 64,438/- vide memo No. 483 dated 3.4.07. According to her the demand of Rs. 38,500/- and Rs. 64,438/- is illegal, null and void, nonest, against the statutory provisions and not binding upon her on the grounds that opposite parties have failed to deliver the possession of the plot in question till date despite her request; plot was not demarcated; she was not called for delivering the possession; letter dated 1.9.03 was also sent requesting the opposite parties to deliver the possession, but they failed to do so and letter dated 3.4.07 is against facts and not binding upon her. Charging of extension fee for non-construction is governed by Rule 13 of Punjab Regional and Town Planning & Development (General) Rules, 1995 (Here-in-after referred to as 'Rules 1995') which have been framed by the State Government in exercise of its powers under Section 180 of The Punjab Regional and Town Planning and Development Act, 1995 (Here-in-after referred to as 'Act 1995). Opposite parties cannot raise demand of extension fee beyond the rate mentioned in Rule 13(3)(a). They are demanding exorbitant amount of Rs. 64,438/- arbitrarily. No power has been given to them to determine the extension fees suo-motively. In the case of Tehal Singh & Others Vs. State of Punjab in Civil Writ Petition No. 13648, Hon'ble Punjab & Haryana High Court, Chandigarh had upheld Rule 13 and had quashed the non construction charges suo-motively demanded by the opposite parties. Even appeal preferred by PUDA against the order was dismissed by the Hon'ble Supreme Court and i.e. obiter dicta. Further more, even the notification dated 8.10.01 issued by Punjab Government published in the Gazettle dated 26.10.01 vide which opposite party No. 1 was authorised to notify and alter the structure of payment of extension fee prescribed in Rule 13(3) retrospectively was challenged in Writ Petition No. 18986 of 2001 in the case of Sant Kaur Jabbi & Others Vs. State of Punjab. Vide order dated 31.10.02 passed by the Hon'ble High Court, petition was allowed. Notification was held void. PUDA was directed to charge the extension fee as per the amended rule 13. The Special Leave Petition against the order of the Hon'ble High Court was dismissed in limine on 14.7.03. Accordingly, charging the impugned amount as per policy of opposite party No.1 has been held illegal and void. Opposite parties have failed to disclose the basis of impugned demand nor there is any disclosure about the rate, time period and description of the amount so demanded. There is deficiency in service and unfair trade practice on the part of the opposite parties. In these circumstances, complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act;) has been preferred by the complainant seeking direction from this Forum to the opposite parties to set aside the impugned demand of Rs. 38,500/- raised vide memo No. 4449 dated 15.12.06 and subsequent demand of Rs. 64,438/- raised vide memo No. 483 dated 3.4.07; deliver possession of the plot; pay Rs. 10,000/- for mental tension, agony and harassment besides cost of the complaint.<br /> 2. Opposite parties filed their version taking legal objections that complaint is not maintainable in the present from; complainant is not consumer; she has got no locus standi and cause of action to file this complaint and she is estopped from the filing the complaint by her act and conduct. Inter-alia their plea is that residential plot No. 1429 was allotted to her. As per rules and regulations, allottee is required to construct the house on the plot within three years from allotment. No construction was raised. Numerous letters were written to her to raise the construction or deposit the extension fee for non-construction. Despite this, she neither raised the construction nor deposited the extension fee. She has given an undertaking to the opposite parties that she is bound by the terms and conditions of the allotment letter and as per the allotment letter, she could not raise construction and the plot is liable to be resumed. Further that she could not raise the construction on the plot within the stipulated period due to the reasons beyond her control. They (opposite parties) as a goodwill gesture on the request of various allottees had agreed to grant further extension on their undertaking to raise construction within the extended period. Complainant further undertook that by taking the benefit of concession, she would pay extension fee as fixed by opposite party No. 1 as prevailing at the time of granting such extension in order to avoid the resumption qua the plot. Besides this, she has also undertaken that she would not indulge in any litigation against them regarding extension fee paid or payable by her. As per PUDA Act, allottee is given a period of three years for construction. If he/she does not construct building within three years, he/she can be granted further extension of five years against payment of extension fee as prescribed under Section 13 of the Act of 1995, If despite passing of 9 years, allottee failed to raise the construction, PUDA is empowered to resume the plot. Thereafter allottee is not entitled to any further extension. However, on representations from various allottees, PUDA has been allowing extension period subject to the allottees depositing requisite extension fee which was decided in the circulars and with a clear understanding that extension fee is not the right of the allottees. Since the extensions were allowed as per schemes and as such, PUDA is entitled to recover the amount of extension fee. The cases referred to by the complainant in the complaint were on different facts as in those cases parties had gone in for a case within the period of eight years. In this case, period of eight years has elapsed much earlier. Facts go to prove that extension fee has been charged as per rules. Complainant has deposited the same on the basis of undertaking given by her. Hence there is no deficiency in service nor unfair trade practice on their part. They do not deny the allotment of the plot, deposit of the amount of installments, issuance of No Due certificate and raising of the demand of the amount of Rs. 38,500/- and Rs. 64,438/-. They deny that the demand is illegal, null and void and nonest on the grounds mentioned in the complaint. Remaining averments in the complaint are denied.<br /> 3. In support of her averments contained in the complaint, complainant has produced in evidence her affidavit ( Ex. C-1), photocopy of allotment letter dated 18.11.01 (Ex. C-2), photocopy of notice dated 15.12.06 (Ex. C-3), photocopy of letter dated 1.9.03 (Ex. C-4), photocopy of letter dated 12.1.05 (Ex. C-5), photocopy of application dated 29.12.01 (Ex. C-6), photocopy of letter dated 3.4.07 (Ex. C-7) and photocopies of Judgements and orders (Ex. C-8 to Ex. C-12).<br /> 4. In rebuttal, on behalf of the opposite parties affidavit of Sh. Pirthi Singh, Estate Officer (Ex. R-1), photocopy of allotment letter dated 18.4.01 (Ex. R-2), photocopy of notice dated 15.12.06 (Ex. R-3) and photocopy of order dated 22.12.06 (Ex. R-4) have been tendered in evidence.<br /> 5. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of the opposite parties.<br /> 6. Some facts do not remain in dispute in this case. They are that plot No. 1429 measuring 250 Sq. yards was allotted to the complainant by opposite party No. 1 vide allotment letter No. 2025 dated 18.11.01, copy of which is Ex. C-2 for a consideration of Rs. 3,81,250/-. After completing 25% of the price, balance amount was to be paid under six installments. Last installment was to be paid upto 18.10.04. It was paid on 1.9.03 vide draft No. 487870. She had applied for No Due Certificate which was issued vide letter NO. 58 dated 12.1.05, copy of which is Ex. C-5. Vide letter dated 1.9.03, copy of which is Ex. C-4, complainant had applied for delivery of possession of plot to her. Opposite parties vide memo No. 449 dated 15.12.06 raised demand of Rs. 38,500/- from her towards extension fee for non-construction on the plot and copy of the same is Ex. C-3. Complainant submitted reply of this memo by issuing letter to opposite party No. 2 and copy of the same is Ex. C-6. Opposite parties issued another letter dated 3.4.07 to her to deposit Rs. 64,438/- as non-construction fee for the period 2005, 2006 & 2007.<br /> 7. Mr. Baghla, learned counsel for the complainant argued that opposite parties have failed to deliver possession of the plot to the complainant despite her request made through letter dated 1.9.03, copy of which is Ex. C-4. Hence, they are not entitled to any extension fee. Moreover extension fee sought through letters dated 15.12.06 to the tune of Rs. 38,500/- and dated 3.4.07 for Rs. 64,438/- is arbitrary, exorbitant and in violation of the Rules 1995. For this, he drew our attention to the copy of the Judgement Ex. C-8 in Civil Writ Petition No. 18986 of 2001 decided on 31.10.02 titled as Sant Kumar Jabbi and another Vs. State of Punjab and Others and Ex. C-9 in Civil Writ Petition No. 13648 of 1998 decided on 4.5.99 titled as Tehal Singh and Others Vs. State of Punjab and also to Ex C-12, copy of the order passed by the Hon'ble State Commission, Punjab, in Appeal No. 284 of 2005 decided on 4.3.05 titled as PUDA Vs. Balbir Singh. His next submission is that opposite parties are relying upon Ex. R-4 copy of Order dated 22.12.06 passed by the Hon'ble State Commission, Punjab, decided on 22.12.06 titled as Punjab Urban Development Authority and Others Vs. Upjeet Singh Brar and that this Judgement is not applicable to the facts of case in hand.<br /> 8. Mr. Nayyar, learned counsel for the opposite parties argued that allottee is required to construct the house on the plot within 3 years from the date of allotment. Numerous letters were written to her. Complainant did not raise any construction nor did she deposit the extension fee for non-construction. She had given an undertaking to the opposite parties that she is bound by the terms and conditions of the allotment letter and as per allotment letter, she could not raise construction and the plot is liable to be resumed on that ground. Further that she could not raise construction on the plot within the stipulated period due to the reasons beyond her control and also that PUDA as a goodwill gesture on the request of various allottees has agreed to grant further extension for construction of the building and undertook to raise construction within the extended period. She further undertook that by taking benefit of above said concession, she shall pay the extension fee as fixed by PUDA as prevailing at the time of granting such extension in order to avoid the resumption proceeding qua the plot. Besides this, she has also undertaken that she would not indulge in any litigation against PUDA regarding the extension fee paid or payable by her to it. He further argued that allottee is given three years for construction and if construction is not raised within this period, he/she can be granted further extension of another five years on payment of extension fee as prescribed under Section 13 of the PUDA Act. It despite passing of eight years, the allottee fails to raise construction then PUDA is empowered to resume the plot. Since the extensions have been allowed, PUDA is entitled to recover the extension fee. In this case, the period of eight years has elapsed much earlier. Hence, there is no deficiency in service or unfair trade practice on the part of the opposite parties.<br /> 9. We have given our thoughtful consideration to the rival arguments.<br /> 10. First material question for determination is as to whether possession of the plot in question has been delivered to the complainant and if so when ? No doubt in the allotment letter, copy of which is Ex. C-2 there is one Clause that allottee is to take possession of the site within 60 days from the date of its issuance. From this, it cannot be said that liability of the opposite parties is over for delivery of possession. The possession is to be delivered by the them. There is no evidence on record that opposite parties ever issued letter to the complainant within 60 days from the date of allotment to deliver possession. Stance of the opposite parties in reply of the complaint is that possession has been delivered to the complainant as per rules. Plea of the complainant that possession has not so far been delivered to her is not tenable in view of her reply to Memo No. 4459 dated 15.12.06 issued by the opposite parties in which she has admitted in so many words that possession of the plot has been delivered to her on 1.9.03 on the basis of her request and that period of three years be computed only w.e.f. from the date of delivery of possession of the plot to her. Accordingly, we hold that possession was to be delivered by the opposite parties and it has been taken by the complainant on 1.9.03.<br /> 11. Vide letter dated 15.12.06 copy of which is Ex. C-3, opposite parties are demanding Rs. 38,500/- for not raising construction on the plot within three years. Through letter dated 3.4.07, they have raised demand of Rs. 64,438/- as non-construction fee for the year 2005, 2006 and 2007. Complainant assails this demand as illegal, exorbitant, arbitrary and in violation of Rule 13 of the Rules of 1995. Opposite parties in the written arguments as well as in the arguments addressed by their counsel assert that complainant had given an undertaking. No such alleged undertaking has been placed and proved on record. So far as the case of Upjeet Singh Brar copy of whose order passed by the Hon'ble State Commission is Ex. R-4 is concerned, the same is not applicable to the case in hand. In that case, plot was allotted on 19.3.74. It was being transferred from one person to another before transferring it to the father of Sh. Upjeet Singh Brar on 18.1.94. After the death of his father, plot had been transferred in his name on 30.3.05. PUDA had decided to grant extension in construction period in various Urban Estates and for that purpose, it issued letter dated 21.3.05 to all Additional Chief Administrators, PUDA. An undertaking was given by Mr. Brar on 8.4.05. On the basis of the undertaking, he had deposited a sum of Rs. 2,79,500/- and on that account, extension period for construction stood extended upto 31.12.05. After enjoying the benefit Mr. Brar had filed complaint saying that in fact no construction fee could be charged from him as has been charged. Under the rules and regulations maximum extension could be granted was upto five years. It was a matter of concession that instead of resorting to resumption of plots on which construction was not raised within the stipulated/extended period, policy decision was taken which was conveyed vide letter dated 21.3.05 that the period for construction may be extended upto 31.12.05. Hon'ble State Commission held that Mr. Brar had undertaken to abide by the terms by his undertaking dated 8.4.05 and in fact he had deposited the requisite amount and as such, he cannot turn around and ask for the refund. It is not so in this case. In this case, plot was allotted to the complainant vide allotment letter dated 18.11.2001. Hence, it does not lie in the mouth of the opposite parties that eight years have elapsed after allotment of the plot. Since possession has been delivered to the complainant on 1.9.2003, period of three years for raising construction is to commence from that date onwards. In other words, she could raise construction upto 31.8.06. For the remaining period, opposite parties can claim non-construction fee/extension fee under the rules.<br /> 12. It was urged before us that opposite parties have charged non-construction fee on the basis of letter No. PUDA-PNC-98/193 dated 15.1.98 by which rates of extension fee in respect of residential and commercial plots were revised w.e.f. 1.1.98. State Government did not frame any rules regarding the disposal of land or building by the Board under Punjab Housing Board Development Act 1972 . New rates were prescribed for non-construction by the State Government under Rule 13 of the Rules of 1995 which were framed by it under Section 180 of the Act 1995. With the establishment of Punjab Urban Development Authority w.e.f. 1.7.1995, Punjab Housing Development Board stood abolished with effect from that date. Similarly the Act of 1972 i.e. Punjab Housing Board Development Act stood repealed with effect from that date subject to the savings contained in sub-section (3) and (4) of Section 183. Section 180 of the Act of 1995 empowers the State government to make Rules for carrying out the purposes of the Act. Clause (i) of the sub-section (2) of Section 180 of the Act of 1995 empowers the State Government to make rules regarding period of completion of building, extension of such period and fee to be paid under sub-section (2) of Section 43. Under Section 180 of the Act of 1995 State Government framed Rules of 1995. Rule 13 of Rules of 1995 specifies the time within which the building is to be completed and the extension of time limit subject to payment of fee prescribed therein. The 1995 Rules came into force on 29.9.1995. The rate of extension fee fixed previously by the Punjab Housing Development Board stood superseded by the rates prescribed under Rule 13 of 1995 Rules. Administrative instructions were issued on 15.1.98 fixing enhanced rate of extension fee without any authority of law. The extension fee as per instructions dated 15.1.98 is much higher than prescribed under Rule 13(3) of the Rule of 1995. Extension fee on the basis of administrative instructions issued by PUDA was declared illegal and ultra virus to the provisions of the Act, 1995 and Rules, 1995 by the Hon'ble Division Bench of Punjab & Haryana High Court in Civil Writ Petition No. 13648 of 1998 titled as Tehal Singh Vs. State of Punjab & Others decided on 4.5.99. Administrative instructions dated 15.1.98 were struck down as ultra virus 1995 Rules and the Act. Appeal preferred against the Judgement of the Hon'ble High Court was dismissed by their Lordships of the Apex Court on 10.11.2000 as modified vide order dated 12.2.2001. Thereafter PUDA again made attempt to nullify the effect of Judgement and issued another notification on 8.10.2001 published in the Punjab Government Gazette dated 26.10.2001 by making retrospective Rules to further amend Rule 13 of the Rules 1995. By this notification Rule 13 was amended retrospectively with effect from 22.8.1995. This notification was struck down by the Hon'ble Division Bench of the High Court of Punjab and Haryana in Civil Writ Petition No. 18986 of 2001 in the case of Sant Kaur Jabbi & Another Vs. State of Punjab & Others on 31.10.2002 and the amendment in the rules was held to be not a valid piece of legislation and the PUDA was directed to charge extension fee as per rates prescribed in the unamended Rules of 1995. Special Leave Petition was dismissed by their Lordships of the Hon'ble Supreme Court on 14.7.03 in limine. In our view these authorities are applicable to the case in hand on the basis of rule of stare decises. The construction of the building will have to be regulated by Rule 13 of the Rules of 1995. Complainant is liable to pay extension fee under Rule 13(3) of the Rules 1995 from 1.9.2006 onwards. Since the opposite parties are demanding non-construction fee/extension fee from 2005 onwards and that too at the excessive rate, there is deficiency in service on their part.<br /> 13. Now question arises as to which relief should be accorded to the complainant. As per our foregoing discussion, direction deserve to be given to the opposite parties to withdraw the demand of Rs. 38,500/- raised by them vide memo No. 4449 dated 15.12.06 and subsequent demand of Rs. 64,438/- raised by the opposite parties vide memo No. 483 dated 3.4.07 . Further direction which is warranted to the opposite parties is that they should calculate the amount of extension fee/non-construction fee as per Rule 13(3) of Punjab Regional & Town Planning and Development (General) Rule, 1995 for the period from 1.9.2006 onwards and thereafter to raise demand for extension fee/non-construction, if any. Complainant is craving for compensation of Rs. 10,000/- for mental tension, agony and harassment. There is no case to allow it as it is not the case where complainant is not liable to pay non-construction charges/extension fee at all. As far as possession is concerned, it stands proved that it was delivered on 1.9.03.<br /> 14. No other point was urged before us at the time of arguments.<br /> 15. In the premises written above, complaint is partly allowed against the opposite parties with cost of Rs. 1,000/-. Opposite parties are directed to do as under :<br /> (i) Withdraw demand of Rs. 38,500/- raised vide memo No. 4449 dated 15.12.06 and of Rs. 64,438/- raised vide memo No. 483 dated 3.4.07.<br /> (ii) Calculate the amount of extension fee/non-construction charges, if any,under Rule 13(3) of Punjab Regional & Town Planning and Development (General) Rules 1995 for the period from 01.09.2006 onwards and if there is any, claim the same from the complainant.<br /> Compliance of this order be made within 30 days from the date of receipt of its copy.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned to record room. <br /> Pronounced :<br /> 24-10--2007 <br /> (Lakhbir Singh )<br /> President <br /> <br /> <br /> (Dr.Phulinder Preet) (Hira Lal Kumar )<br /> Member Member<br /> <br /> <br /> <br /> <br /> <br /> <br />