BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.299 of 2014

Date of Instt. 27.08.2014

Date of Decision:15.11.2017

Devinder Singh, aged about years, son of Shri Surinder Singh, resident of H.No.148, Guru Tegh Bahadur Nagar, Jalandhar.

..........Complainant

Versus

The Jalandhar Improvement Trust, Jalandhar through its Chairman.

….… Opposite party

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Sh. Parminder Sharma (Member)

Present: Sh. SC Sood, Adv Counsel for the complainant.

Sh. Brijesh Bakshi, Adv Counsel for the OP.

Order

Karnail Singh (President)

1. This complaint is presented by the complainant, wherein alleged that the complainant is an owner in possession of the residential plot bearing No.1414 falling in 143.56 Acres Development Scheme and the OP is statutory body constituted under 'The Punjab Town Improvement Act' and dealing in development of residential colonies/township and other development works under the aegis of the Government of Punjab and accordingly, the OP is providing services to the citizens. Originally, the land pertains to one Maya Devi wife of Shri Sant Ram, whose property was acquired by the Improvement Trust, Jalandhar for its scheme known as J.P. Nagar. The said Maya Devi had moved an application for allotment of plot on 15.04.1990 being a local displaced person. That Subsequently, the OP passed resolution No.379 dated 26.04.1990 and as no plot was available in J.P. Nagar Scheme, after the consent of the said Maya Devi, the plot No.1414 was allotted in 143.56 Acres Development Scheme, Jalandhar vide allotment letter bearing reference No.JIT/987 dated 07.06.1990. Further an amount of Rs.18,055/- was also deposited as part payment. The said allotment was subsequently approved by the Jalandhar Improvement Trust, vide resolution No.416 dated 10.08.1990. However, after the allotment, the possession could not be delivered to the said Maya Devi for considerable period of time as the allotment plot was not in the possession of the OP itself and the same was under illegal occupation. Many representations were also written by said Maya Devi, but the OP miserably failed to handover the possession as it was a statutory as well as legal duty to handover the clean and vacant possession of the property to the plot holder. In the meantime, the plot had been transferred in favour of the complainant and the same has been duly reflected in the record of the OP also and the complainant has been compelled to file instant complaint on account of one demand letter dated 15.04.2014, issued by the OP for an amount of Rs.8,85,500/- bearing No.JIT/405 on account of non construction charges, sale money, interest. The said letter is totally illegal and capricious and liable to be set aside on the following grounds:-

(a). That the possession of the plot had never been handed over to the complainant or to the predecessor of the complainant (referred hereinafter as complainant) as late as 08.10.2011 and for all the period before 08.10.2011, the complainant did not remain in possession of the property as such, no question arises for imposing any non construction charges.

(b). That even as per the terms and conditions a period of three calendar years is granted to the plot holder for construction and no non construction charges could be levied for the said period. In the instant case, the possession of the plot had been taken on 08.10.2011 and even till the filing of the complaint, the said period of three years is sustaining and has not expired, however, in instance the site plan was prepared on 15.11.2011 bearing No.2925 dated 14.11.2011 immediately after the possession was taken by the complainant.

(c). That the amount has been levied/imposed unilaterally, as earlier the complainant had been asked to deposit an amount of Rs.51,151/- on 11.07.2012 being the outstanding price of the plot and on 13.07.2012, the plot was transferred to the name of the complainant. The OP had also received the transfer fees of Rs.60,700/- and also raised a boundary wall around the plot in question. All the amount had been received at the relevant time and now illegally the said demand letter has been issued, which is perverse.

(d). That earlier, only an amount of Rs.9,111/- has been calculated to the knowledge of the complainant as on 28.10.2013, as the complainant had been following up the process as 'No Due Certificate' was required. Thus from 28.10.2013 till 15.04.2014, the OP has multiplied the said amount manifold, which is totally illegal, unreasonable and not sustainable in the eyes of law.

(e). That in this intervening period, it has been informed to the complainant that only an amount of Rs.81,400/- was due as on 18.02.2014. However, there was no ground for enhancing the said amount from Rs.9,111/- to Rs.81,400/-. There was no ground for raising the above said amount without making any demand and this instant demand letter of Rs.8,85,495/- has been sent, which is totally inconsistent and without any basis.

(f). That the entire amount has been made in a clandestine manner under the frivolous garb of objection and silently the OP has been accepting the amount, which was due. ¼ price of the plot had been paid at the time of allotment and the balance amount was thereafter, paid in one go at the time when the possession was taken over by the allottee. No demand for non construction charges has ever been raised at an earlier point of time.

(g). That the OP cannot take advantage of their own wrong. The complainant is a bonafide purchaser of the plot and the period for calculating the non construction charges would start only when the possession of the plot is taken. In instant case, the OP themselves were admittedly not in possession of the plot and were in no possession to handover the possession. As a mater of fact, the possession itself was taken by the allottee on account of her own effort.

2. The letter is liable to be set aside as the same is illegal and the OP has miserably failed to provide effective service and are guilty of deficiency in service. Further the manner, in which the demand notice has been sent, it amounts to practice of unfair trade practice. The complainant has also served one legal notice dated 08.05.2014 to the OP, but the OP has refused to the withdraw the said complaint and accordingly, after filing of the complaint, the OP inspite of the matter being subjudice has been compelling the complainant and kept on resisting for the payment of Rs.9,00,000/-, which is illegal. The said payment has been made under protest by the complainant, vide letter dated 22.09.2014 through cheque bearing No.876283, drawn on Corporation Bank, GTB Nagar, Jalandhar. The said payment has been made under coercion and is liable to be refunded to the complainant. Thus, apart from declaration of the demand being illegal and void, the said payment is also liable to be refunded to the complainant and accordingly, the cause of action has also arisen to the complainant at the time of making payment of Rs.9,00,000/- and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and demand of Rs.8,85,500/- kindly be declared as null and void and the same is arbitrarily and unilaterally and further OP be directed to refund the amount of Rs.9,00,000/- and interest thereon @ 9% per annum from the date of filing complaint and further OP be directed to pay damages/compensation to the tune of Rs.40,000/- and also liable to pay litigation expenses of Rs.30,000/-.

3. Notice of the complaint was given to the OP, who filed a written reply and contested the complaint by taking preliminary objections that the instant complaint is not maintainable under the law against the respondent and further alleged that the instant complaint of the complainant is infructuous as the complainant has already paid the non construction charges on 24.09.2014 and NDC has been issued subsequent thereto and thereafter, the complainant has sold the plot in question and applied for the transfer of the same in the name of Rajinder Singh S/o Ajit Singh and thus, complainant has no interest or right left and therefore, the present complaint deserves to be dismissed. It is further alleged that the complainant is barred by his own act, conduct, laches and negligence from filing the present complaint and claiming the relief as prayed by him in the present complaint and further alleged that the claim of the complainant is time barrred and the present complaint is not maintainable on account of limitation for the non construction charges were levied as per Rules from the date of possession in the year 2005. It is further averred that the complainant has got no locus standi to file and pursue the present complaint against the OP. It is further averred that the complainant is guilty of concealment of material facts. The complainant has failed to deposit the due non construction charges/extension fee up to the date of filing the complaint and moreover, after the deposit of due charges during the pendency of this complaint, he has sold the plot in question and no construction has been raised over the plot in dispute till date and a sum of Rs.1,35,141/- is till due and recoverable on account of non construction charges up to the year 2015. On merits, the factum in regard to allotment of one plot to Maya Devi and further Maya Devi sold the said plot to the complainant is not denied by the OP and it is also admitted that a demand of non construction charges, interest and sale value was demanded from the complainant, vide letter dated 15.04.2014 and further alleged that the possession of the plot in question was delivered in the year 2005, after making a demarcation but thereafter, the complainant failed to raise construction over the plot within a statutory period nor he paid the non construction charges on account of non raising the construction within a period of three years from the date of possession. The remaining allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

4. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex. C1 to Ex.C3 and further tendered into evidence an other affidavit of the complainant Ex.CW1/A alongwith document Ex.C4 and then closed the evidence.

5. In order to rebut the evidence of the complainant, counsel for the OP tendered into evidence affidavit Ex.OA alongwith some documents Ex.O-1 to Ex.O-13 and then closed the evidence.

6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

7. Before imparting with the main issue in dispute, we like to discuss a legal lacuna, raised by learned counsel for the OP that this Forum has no pecuniary jurisdiction because the pecuniary jurisdiction of this Forum is upto Rs.20,00,000/-, but the amount claimed in the relief clause is more than Rs.20,00,000/- and make a request for dismissal of the complaint on this score only.

8. In order to analyze whether this Forum has pecuniary jurisdiction to entertain the present complaint or not, for that purpose, we have to go through the prayer clause, as per the prayer clause, the relief claimed by the complainant is that the demand of Rs.8,85,500/- kindly be declared as null and void, the same is arbitrarily and unilaterally and further prayed that the OP be directed to refund of Rs.9,00,000/- with interest @ 12% per annum from the date of filing complaint i.e. 27.08.2014 till realization and further demanded damages to the tune of Rs.40,000/- and litigation expenses of Rs.30,000/-.

9. The learned counsel for the complainant contended that the total amount claimed by the complainant in the prayer clause is less than Rs.20,00,000/- and also alleged that the interest, so claimed by the complainant is not to be calculated at this stage for determining the pecuniary jurisdiction. We find no substances in the plea of the counsel for the complainant that the interest, so claimed by the complainant in the prayer clause is not to be calculated in the amount for determining the pecuniary jurisdiction, but in view of the latest pronouncement of Hon'ble National Commission, cited in 2017(1) CPJ 1 (NC), title “Ambrish Kumar Shukla Vs. Ferrous Infrastructure Pvt. Ltd”, wherein held that pecuniary jurisdiction, interest has to be taken into account for the purpose of determining the pecuniary jurisdiction, so in view of the aforesaid judgment of the Hon'ble National Commission, if we calculate the amount, claimed by the complainant in the prayer clause, which comes to Rs.21,73,171/- including interest to the tune of Rs.3,47,671/-. So, accordingly, the total amount of the claim has gone more than Rs.20,00,000/-, therefore, this Forum has no pecuniary jurisdiction to entertain the present complaint. We like to make it clear that at the time of admission of this complaint, the instant judgment was not in existence because this latest judgment has come in the year 2017. The pecuniary jurisdiction of this Forum is ousted by way of including the interest as demanded by the party.

10. In the light of above detailed discussion, the complaint of the complainant is not maintainable before this Forum for want of pecuniary jurisdiction. Therefore, this complaint is ordered to be returned to the complainant with the liberty to file a fresh complaint/suit before the appropriate Forum/Court. The complaint could not be decided within stipulated time frame due to rush of work.

11. Copy of the order be supplied to the complainant free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Parminder Sharma Karnail Singh

15.11.2017 Member President