DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.522 of 2018

                                               Date of institution:  11.05.2018                                             Date of decision   :  30.01.2019

Raj Joshi wife of Shri K.K. Joshi, # 1479, Sector 23-B, Chandigarh.

…….Complainant

Versus

Sant Shri Asa Ramji Ashram and Bhagat Kutir Samiti Vill. Soonk, Tehsil Kharar, District Ropar, presently District Mohali (Punjab) through Authorised person.

                                                        ……..Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri Sunil Kumar Mukhi, counsel for complainant.

                Shri Kamal K. Sharma, counsel for OP.

Order by :-  Shri G.K. Dhir, President.

Order

                Complainant deposited a sum of Rs.1,50,000/- for purchase of plot with OP and then plot No.226 was allotted to her. Rs.25,000/- were paid on 26.12.2000, but Rs.1,25,000/- on 12.02.2001. Plot is not in possession of complainant, but is joint property without conduct of any demarcation. Copy of allotment letter dated 12.03.2002 alleged to be annexed with the complaint. OP is not taking any action for resolution of grievance of complainant and nor it is refunding any amount and as such this complaint for seeking refund of Rs.1,50,000/- with interest @ 24% till date of payment. Compensation for mental harassment and agony of Rs.1.00 lakh and litigation expenses of Rs.25,000/- more claimed.

2.             In reply filed by OP, it is claimed that complaint is not maintainable; complaint is bad due to non joiner of necessary parties; complaint barred by limitation; complainant has concealed material facts from the Forum for misleading it and that complainant is not consumer within meaning of Consumer Protection Act. Moreover, it is claimed that complainant deposited subscription fee in 2000 and 2001, but this complaint filed in 2018 after gap of more than 17 years, is barred by limitation in view of Section 24-A of Consumer Protection Act. As per Clause-5 of letter of allotment, in case of any dispute between life member and Managing Committee, matter liable to be referred to the Chief Patron, but complainant has not approached him. Complainant has failed to prove her ownership of the plot. Earlier civil suit filed by life members in civil court at Kharar and same is alleged to be pending. Sant Shri Asa Ram Ji Ashram and Bhagat Kutir society constituted for charitable, humanitarian, religious and spiritual activities, as per memorandum of association of the society. Some persons did show expression of interest by submitting applications for becoming life members and even they never objected to abide by terms and conditions of the samiti. 484 persons became life members of the samiti by paying life membership fee and thereafter OP society purchased land in village Syoonk, Tehsil Kharar, District Mohali for construction of Ashram/Samiti at village Syoonk for doing sadhna (meditation & yoga) as per plan of the society. However, ownership of the land was to remain of the society and no transfer of the land was to take place in favour of life members. Many devotees became life members by paying subscription/life membership fee. Details of amounts received from life members were submitted with the income tax department by reflecting the same in income tax returns of the OP samiti. Nothing was kept concealed in that respect. Complainant was never allotted independent piece of land and as such question of handing over of possession to her does not arise. Samiti was never formed for establishing a residential colony or for allotment of plots to individuals. Samiti is neither a builder and nor service provider. Land was purchased by OP Samiti after verification of revenue records. No mention regarding land covered by provisions of Punjab Land Preservation Act, 1900 and Forest Conservation Act, 1980 was made in the revenue record. However, subsequently on cropping up of legal complications/hurdles, Hon’ble Supreme Court of India vide its orders directed that no commercial activity in this forest land is permissible. So no construction on the land was permissible. Even notification by Punjab Govt. was issued in that respect. Many life members have already received back their refund. As per allotment letter, no provision for refund of life membership fee and of the interest thereon exists. Life member was required to pay Rs.1,000/- annually as membership fee, failing which life membership to cease automatically. Even as per Regulation 17 (ii) of OP Samiti, life member to cease to be a member of the society or the Managing Committee in case he remains absent from attending three consecutive meetings without leave for such absence being obtained from the Managing Committee. Complainant has not attended the general body meetings for a long time consecutively and nor sought leave for absence and even she has not paid the annual membership fee for last about 16 years and as such, she automatically has ceased to be a member. OP society applied to the Govt. of Punjab for grant of CLU so as to carry on construction of Sadhna Kutirs, but the Govt. did not grant permission, due to which construction was to be stopped at the site. As the land of the samiti falls within forest area, and as such due to legal implications, managing committee of the Samiti decided vide resolution dated 19.09.2004 (approved by general house on 21.11.2004) for not carrying on construction of sadhna kutirs by its life members. Reference to judgment of Hon’ble Supreme Court of India and decision of Govt. of India made in extenso in the written statement, which need not be reproduced because discussion with respect to same will be held afterwards. Notice dated 13.03.2017 has been received by OP samiti from GMADA, Mohali in pursuance of orders passed by Hon’ble Punjab and Haryana High Court in CWP No.2893 of 2017 dated 08.03.2017; 30.03.2017 and 10.05.2017, calling upon OP to remove illegal structures/constructions and as such OP society could not carry on any construction activity and nor permit the same to its life members. Present complaint alleged to be filed as a pressure tactic for extracting money from OP samiti. Though provision for refund of membership does not exist in the rules and regulations of the samiti, but the managing committee in the meeting held on 19.09.2004; 21.11.2004 and 20.11.2005 has allowed refund. Even complainant was required through notice dated 21.11.2011, 05.02.2012 and 20.12.2013 to collect refund cheque of life membership fee, but she herself failed to collect the same. Most of members of the samiti had already taken their refund. Complainant being defaulter is estopped by her act and conduct from seeking refund alongwith interest. Other averments of the complaint denied.

3.             Though earlier case was posted for evidence of complainant, but today through joint recorded statement of counsel for complainant and counsel for OP they have represented that case may be decided on the basis of documents already produced with the complaint.

4.             Written arguments not submitted by the parties. Oral arguments heard and records gone through.

5.             It is not disputed that deposit of amount of Rs.1,50,000/- by complainant with OP has not been refunded till date and as such entitlement of complainant for refund of this amount alongwith interest, as may be assessed, is there. Annexure C-1 receipt shows as if complainant paid Rs.25,000/- by deposit of cheque dated 26.12.2000 with OP on 08.12.2000. Likewise receipt Annexure C-2 issued by OP shows as if amount of Rs.1,25,000/- deposited by complainant with OP through cheque dated 12.02.2001. Both these receipts Annexure C-1 and Annexure C-2 establishes deposit of Rs.1.50 lakh by complainant with OP through its authorised representative. Shri K.K. Joshi, husband of complainant submitted request for refund Annexure C-3 on 22.02.2018, but despite that amount has not been refunded and as such certainly fault lays with OP in that respect.

6.             Allotment letter Annexure C-4 was issued in favour of complainant on 12.03.2002 on deposit of Rs.1,50,000/- towards life membership fee and tentative development charges for enabling complainant to raise construction of sadhna kutir in plot No.226 having area of 200 sq. yards. Clause-7 of this allotment letter Annexure C-4 provides that members will abide by rules and regulations of the samiti (OP) from time to time. So, rules and regulations of OP samiti to govern the case regarding matter of actual handing over of possession of sadhna kutir, or the site underneath thereto to complainant.     

7.             It is vehemently contended by counsel for OP that as request for refund through Annexure C-3 was made on 22.02.2018, despite the fact that amount deposited on 08.12.2000 and 12.02.2001 and as such this complaint being filed on 11.05.2018 is barred by limitation, being filed after more than 17 years of deposits. As refund was sought after 17 years and as such it is vehemently contended that in view of Section 24-A of Consumer Protection Act, complaint is barred by limitation. That submission of counsel for OP has no force because as per case of OP himself put forth through written reply, land of Samiti fell in forest area and as such due to legal implications, managing committee of OP decided vide resolution dated 19.09.2004 to stop construction of sadhna kutirs on the land. Even thereafter general house through resolution Annexure O-6 approved action of non construction of sadhna kutirs. Copy of resolution dated 19.09.2004 enclosed as Annexure O-5 with the written reply. Thereafter matter remained pending in Hon’ble Supreme Court of India who vide orders dated 09.09.2005 passed in IA No.976 and 727 directed Ministry of Environment and Forests, Govt. of India to consider proposal of Govt. of Punjab contained in communication dated 04.07.2000. On such consideration, Ministry of Environment & Forests, Govt. of India was pleased to grant approval for delisting forest land falling in area of village Soonk, District Mohali. That de-listing of forest land was with respect to land owned by OP, is also the plea taken in the written reply. As land on which sadhna kutirs were to be constructed fell in forest area, and that is why OP samiti neither could have raised construction on said land and nor could have allowed anyone to raise construction thereon. Thereafter, Govt. of Punjab issued notification Annexure O-3 dated 24.08.2011 for delisting land in question with rider that land owned by OP can be utilized only for purpose of agriculture. It was on account of this that construction could not be carried out due to land being reserved as forest land and also subsequently due to imposition of restrictions regarding non raising of construction. It is the case of OP itself that Samiti through approval got from general house meeting dated 05.01.2014 took decision for refund of life membership fee and other charges. So force majeure circumstance of pending litigation was the cause due to which, the purpose for which land was allotted could not be utilized. Fault in that respect to OP cannot be attributed. In view of rule of parity and in view of pending litigation, complainant could not seek earlier refund of membership fee and as such delay, if any, in seeking refund deserves to be condoned because of sufficiency of cause for such condonation. Being so, complaint cannot be held to be barred by limitation.

8.             Copy of plaint of civil suit filed by Shri Subhash Khetrapal and others against OP Samiti and others in the court of ld. Civil Judge (Sr. Division), Kharar is produced on record as Annexure O-1 and as such it is obvious that matter remained pending in civil court also for some time for possession of land allotted to life members of OP for construction of sadhna kutirs. Annexure O-2 is copy of order dated 09.09.2005 passed by Hon’ble Supreme Court in IA No.976 and 727. Perusal of these orders reveals that Ministry of Environment and Forest was required to consider proposal of State of Punjab contained in communication dated 04.07.2000 in accordance with rules, procedure and guidelines laid down under the Forest Conservation Act within 8 weeks. So it is obvious that even after deposit of amount of Rs.1.50 lakhs by complainant with OP, matter was taken up with concerned authorities for delisting of forest land, so as to enable construction of sadhna kutirs. That effort could not succeed and that is why OP agreed for refund of amount deposited by its life members. That gave cause of action to complainant to file this complaint after getting knowledge of refund made to other similar life members and as such complaint is maintainable.

9.             In Consumer Complaint No.554 of 2015 decided on 21.09.2018 titled as Sushma Dhillon Vs. Sant Shri Asaramji Ashram and Bhagat Kutir Samiti and others, it has been held that management of OP Samiti took decision for refund of life membership, when feasibility of project of raising construction on the site allotted to complainant and other life members became nil. So fault in non development of project or non raising of construction cannot be attributed to OP because it has to abide by directions issued by Hon’ble Supreme Court and subsequent notification issued by Punjab govt.

10.            Rules and regulations of OP society are produced on record as Annexure O-4. As per rule 4 (d) any person, who is an ardent follower of Sant Shri Asaramji and has good character, may by way of subscription fee can become a life member. Further as per this Clause 4 (2) of the rules and regulations of OP society, life members will be given a privilege to construct  Sadhna Kutir  within the premises as per plan of the society, but from his/her own resources. So in view of this rule, it is obvious that complainant on becoming life member of OP society was to be provided site underneath the Sadhna Kutir, to be constructed by her with her own resources. Purpose of providing of this Sadhna Kutir   was for enabling complainant to do meditation. Memorandum of association of OP Samiti provides that the same formed with object of establishing, constructing and maintaining an Ashram and Bhagat Kutir for meditation and spiritual upliftment of Sadhaks of Sant Asaramji and public at large. These aims and objectives further provides for conveying the holy message of Sant Asaramji Bapu amongst the followers and to inspire the people spiritually for imparting spiritual education and for spreading spiritual message.  So, from all this  it is obvious that Sadhna Kutir  site was allotted to complainant on becoming member of OP Samiti for raising construction of Sadhna Kutir  therein, so that she as an ardent follower of Sant Asaramji, may meditate there and convey the holy message of Sant Asaramji. As the main object was to impart spiritual education and spread spiritual message and as such site of the Sadhna Kutir   was allotted to complainant not for earning any profit or for exclusive residential or business purposes. Rather the site was allotted to complainant for doing meditation so as to attain mental solace and even spread the message of spirituality. In view of these aims and objects of OP society, it is obvious that OP society agreed to provide accommodation not for exclusive use as owner by complainant, but the same was provided for limited purpose of doing meditation and spreading spiritual message. This life membership certainly to be inherited by the family members and as such limited right was conferred on complainant. Absolute ownership right regarding the site allotted to complainant, never granted and as such complainant to go by the traditions and usage of OP and its Chief Patron Sant Asaramji, as an ardent follower thereof. Being so, complainant cannot be allowed the same monetary benefits, as may be available due to deficiency in service to an ordinary consumer, having no motive of purchasing property for meditation purposes or for conveying message of spirituality. In view of limited interest of complainant, liability of OP should be fixed according to the extent of actual deficiency and not of hypothecated deficiency.

11.            As fault remains with OP in not refunding the membership fee to complainant despite passing of resolution and as such certainly complainant stood dragged in this litigation, due to which she is entitled to litigation expenses of Rs.10,000/-. However, mental agony and harassment,  if any, of complainant was not due to deficient services provided by OP, but same was due to restrictions imposed on OP by orders of Hon’ble Supreme Court or of the State Govt., as discussed in detail above and as such entitlement of complainant for refund of Rs.1,50,000/- with interest @ 12% per annum (simple) should be for period from 24.12.2014 till the date of filing of complaint namely 11.05.2018, more so when request for refund for the first time submitted by husband of complainant only in February, 2018, as referred above and not before that. Date 24.12.2014 is the date on which resolution was passed by management of OP for issuing refund of amount deposited by life members like complainant. In order to ensure that amounts of litigation expenses and of interest, paid at earliest, it is ordered that payment of these amounts must be made within 30 days from the date of receipt of certified copy of order by OP, otherwise complainant should be held entitled to have further interest on the above referred amounts @ 7% per annum from today till payment.

12.            No other worth mentioning point argued.

13.            As a sequel of above discussion, the complaint allowed with direction to OP to refund received amount of Rs.1,50,000/- (Rs. One Lakh Fifty Thousand) with interest @ 12% per annum (simple) for the period from 24.12.2014 till the date of filing of complaint namely 11.05.2018. Litigation expenses of Rs.10,000/- (Rs. Ten Thousand only)  more allowed in favour of complainant and against OP. Whosoever will be Incharge/President of OP, he/she will be liable to refund the principal amount of Rs.1,50,000/- alongwith granted interest amount and litigation expenses. No amount for mental agony and harassment allowed. Payment of above referred amounts be made within 30 days from the date of receipt of copy of the order, failing which complainant will be entitled to further interest on the above referred amounts @ 7% per annum from today till payment. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

January 30, 2019                                              (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member