Per Justice Sham Sunder , President This appeal is directed against the order dated 10.9.2010, rendered by the District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (hereinafter to be referred as the District Forum only), vide which it allowed the complaint in the following manner ; “The Opposite Parties are directed to withdraw the demand of non construction charges/extension fee of Rs.67,825/- made from each of Complainant Nos.2 to 6, 11,18 and 19 vide Exs.C-7 to 13 and C-15; Rs.1,57,825/- made from Complainant No.13 vide notice Ex.C-6 and demand of Rs.2,80,867/- made from each of Complainant Nos.7,9 and 10 vide notices Exs.C-16 to 18 and demand of Rs.1,35,650/- made from Complainant No.16 vide notice Ex.C-19. They should also refund to Complainant No.17 the amount of Rs.67,825/- charged from him on 26.09.2007 with interest thereon @ 9% per annum from the date of deposit till the date of actual payment. It is made clear that in the notice Ex.C-7 scrutiny fee of Rs.203/-; in the notice Ex.C-8 compounding fee of Rs.1,470/-; in the notice Ex.C-9 compounding fee of Rs.6,360/-; in the notice Ex.C-11 compounding fee of Rs.8,177.40; in the notice Ex.C-12 compounding fee of Rs.10,020/- and in the notice Ex.C-15 compounding fee of Rs.4,335/- have been claimed. Their demand has not been assailed in the present complaint and otherwise also is not related to the main controversy and is based on violation of construction plan etc. To that extent these notices shall remain valid. In the circumstances of the case, no order is made as to costs. Demand of compensation was not allowed by the Hon’ble National Commission in Improvement Trust, Sangrur versus Poonam (supra) and, therefore, is declined.” 2. Complainant No.1(now respondent No.1) is a registered Cooperative House Building Society, which came into being in the year 1994-95, for the purpose of creating residential colony, for its members. The said society purchased 19 acres of land, in the area of village Sohana. The land was acquired by the Punjab Urban Development Authority (PUDA) now succeeded by the Greater Mohali Area Development Authority (GMADA) Opposite Party No.3 (now appellant No.3). On the request, made by Opposite Party No.1(now appellant No.1), PUDA agreed to return (re-allot) 14 acres of land, out of the aforesaid acquired land, and issued letter of re-allotment annexure C-1 of the said land in the new carved Sector 77, Mohali, on 12.02.2002. The possession of the re-allotted land was delivered by PUDA, to complainant No.1, on 20.01.2004. The remaining land was retained by PUDA, for its own use, by paying the compensation amount. 3. At the time of re-allotment of the area, it was uneven, contained water ponds, pits, trees and wild growth, due to which, large scale developmental activities were undertaken, by complainant No.1. PUDA also demanded external development charges, for providing connectivity to the residential colony to be set up by complainant No.1, on the re-allotted land, through approach roads, and other basic facilities/amenities such as sewerage, discharge of storm water, supply of drinking water, street lights etc. Complainant No.1 immediately deposited a sum of Rs.1,05,89,603/-, with PUDA, by way of external development charges, before the re-allotment letter C-1 was issued to it. 4. After taking possession of about 14 acres and 19 marlas of re-allotted land, complainant No.1, carried out internal development of the area, by spending crores of rupees, to make it habitable, and named the area as ‘Punjab Judges & Officers Enclave’ (hereinafter to be called as the ‘Enclave’ only). In the meantime, on the application of complainant No.1, PUDA granted approval to the lay out plan with 93 plots, and a community centre. Thereafter, development of the Enclave took place. Complainant No.1 allotted plots to its members. Without approval of the said lay out plan, internal development of the area by complainant No.1, and allotment of plots, no member of the complainant No.1 Society could raise construction, on any part of the area re-allotted by PUDA to it. Initially, the members desiring to raise construction, on the plots, allotted to them, by complainant No.1, submitted the requisite building plans to PUDA, which were duly approved. Later on, when some other members submitted their building plans, Opposite Parties No.1 and 2, started demanding non-construction charges and even recovered the same illegally, before the concerned building plans were approved. In this regard, one of the members of complainant No.1 Society namely Shri S.M.S. Mahal filed a complaint before the District Forum, SAS Nagar, Mohali, which was decided, during the pendency of this lis. 5. Similarly, Opposite Party No.1 demanded Rs.67,825/- from complainant No.17 (now respondent ), under verbal threat of non-issuance of the required completion certificate. Since, he had already completed construction, under compulsion, protest and reserving his right to seek refund, he (complainant No.17) deposited the aforesaid amount, with Opposite Party No.1, vide letter dated 25.09.2007 annexure C-2. 6. Complainant Nos.2 to 19, are members of complainant No.1, and allottees/transferees of plot Nos.86,77,50,51, 26, 36, 39, 41,53,60,93,11, 15, 65,29,40,84,74 and 5. After obtaining approval of their respective building plans, from PUDA, they raised construction over their respective plots. After the completion of construction, complainant Nos.5 and 13 applied to PUDA, for the issuance of requisite ‘completion certificate’ and accordingly completion certificates, copies whereof are annexures C-3 and C-4, were issued to them. However, later on, these completion certificates were unilaterally withdrawn by PUDA, without issuing any notice, or assigning any reason, and a penalty of Rs.67,825/- and Rs.1,57,825/- respectively was imposed on them vide letters issued by of Opposite Party No.3, which are annexures C-5 and C-6, dated 05.05.2008, and 06.05.2008 respectively. Opposite Parties No.1 & 2 got inspected the constructions raised, by Complainant Nos.2 to 19, on their plots, and thereafter raised illegal, unjust and arbitrary demand of non construction charges amounting to Rs.67,825/- each, from complainant Nos.2 to 6, 11, 18 and 19, vide letters annexures C-7 to C-13 and C-15 respectively . Opposite Party Nos.1& 2 also issued notices annexures C-16 to C-18 to complainant Nos.7, 9 and 10, demanding from them, illegal non-construction charges to the tune of Rs.2,80,867/- each. Similarly demand notice of Rs.1,35,650/- annexure C-19, was issued to complainant No.16. 7. It was stated that despite receiving the huge amount over Rs. One crore, as external development charges, from complainant No.1, for the Enclave, more than 8 years ago, the Opposite Parties did not provide the requisite basic facilities/amenities such as sewerage, discharge of storm water, supply of drinking water, street lights etc. Opposite Party No.3 even failed to provide an alternative/temporary sewage connection (or some pumping out arrangement for sewage outflow) from the Enclave, in question, thus causing continuous nuisance, around the same (Enclave), in which more than 50/60 Judicial Officers have been residing with their families, for the last 2-3 years. It was further stated that, in this view of the matter, the land re-allotted to complainant No.1, for the Enclave, in question, is still technically a non-feasible areaand, therefore, no non-construction charges could be levied, by the Opposite Parties, either on complainant No.1, or on its allottees. It was further stated that the demand made by the Opposite Parties, for non-construction charges, from the aforesaid complainants, was, therefore, illegal. It was further stated that even, otherwise, the Opposite Parties could not directly demand from complainant Nos.2 to 19, any non-construction charges, because Opposite Party No.3, or PUDA had not directly allotted plots to them, or any other member of complainant No.1. It was further stated that, as per para No.5 of the re-allotment letter C1/P1, re-allotted area was to be developed by complainant No.1 into a residential colony ‘in accordance with the same norms, as are applicable to a private colonizer’. It was further stated that as complainant Nos.2 to 19, had no privity of contract with PUDA or GMADA, therefore, the Opposite Parties had no right or authority to make any direct demand of non construction charges, from them. It was further stated that despite repeated requests, the illegal demand of non-construction charges, had not been withdrawn by the Opposite Parties, though, they admitted that the Enclave was still a non- feasible area. It was further stated that Opposite Party Nos.1 & 2, were adamant to recover the impugned non- construction charges, from various complainants, and were harassing them. Complainant No.3, applied for completion certificate, in November, 2007. Upon this, Opposite Party No.2 (now appellant No.2)demanded extension fee of Rs.2,80,867/- from 20.01.2007 to 31.12.2009, vide letter dated 22.10.2009 annexure C-20. On strong protest, Opposite Party No.2, withdrew this demand, vide letter dated 03.12.2009 Annexure C-21, but still persisted with an equally illegal and arbitrary demand of Rs.67,825/-, by way of non-construction charges. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter to be called as the Act only) was filed by them, for issuing directions, to the Opposite Parties, to withdraw the demand notices, relating to non construction charges from different complainants; to refund the amount of Rs.67,825/- charged from Complainant No.17; to issue completion certificates to the concerned complainants immediately ; and to pay Rs.50,000/- as compensation for harassment to each of the complainants for un-necessarily compelling them to file a complaint in the District Forum. 8 The Opposite Parties, in their joint written statement, pleaded that complainant Nos.2 to 19, were not consumers of Opposite Party No.3 and, therefore, the complaint by them, was not maintainable. It was further pleaded that the complaint was barred by time. It was stated that non- construction fee was charged/demanded from the complainants, due to their failure to raise construction, within the stipulated period, mentioned in annexure C1/P1,re-allotment letter, regarding the re-allotment of land. It was further stated, that in letter C1/P1 regarding the re-allotment of land to complainant No.1, it was made clear that the same was subject to the outcome of pending Writ Petition and vacation of stay order by the Hon’ble High Court, and at its (complainant No.1) risk and cost. It was further stated that the terms and conditions of re-allotment letter C1/OP1 were accepted by complainant No.1, with eyes wide open. It was further stated that, thus, the complainants were estopped from denying their liability to pay non-construction charges. It was further stated that the provision of facilities/amenities like sewerage, discharge of storm water, supply of drinking water, street lights etc. was not a condition precedent for payment of external development charges. It was further stated that the District Forum had no jurisdiction to entertain and decide the complaint in view of Section 172 of the Punjab Regional Town Planning and Development Act, 1995 (for short ‘the 1995 Act’). It was further stated that the construction work, in the case of complainant Nos.5 and 13 was not yet complete, at the site, and was not, as per the approved building plan and, that was why non-construction charges of Rs.67,825/- and Rs.1,57,825/- respectively were demanded from them. It was further stated that complainant No. 5, was asked to remove shortcomings, in the construction. It was further stated that, in case, they were aggrieved against the said demand, they could approach the Competent Authority under the 1995 Act, referred to above. It was further stated that the development of the Sector and provision of external amenities/facilities could be made only, after the stay was vacated, by the Hon’ble High Court. It was further stated that for the completion of roads, 9 months’ time was required, after vacation of stay. It was further stated that possession of the re-allotted area, was handed over to complainant No.1, on 20.01.2004. It was further stated that there was no legal impediment, and objection, in raising the construction over the plots, allotted to its members, by complainant No.1 within stipulated period provided in C1/P1. It was further stated that the internal development of the Enclave was to be done by complainant No.1 and was complete, as per the complainants. It was further stated that if the complainants did not raise construction within the stipulated period, provided in the re-allotment letter C1, they were liable to pay, non-construction charges, as per the terms of allotment letter and the provisions of the 1995 Act. It was further stated that the submission of building plans for sanction, to the Opposite Parties, by the complainants, indicated that they could earlier also raise construction over the plots, within the specified period, but had not raised the same deliberately and were un-necessarily raising the issue of non-provision of external development by Opposite Party No.3. It was denied that the area re-allotted to complainant No.1 was a non feasible area. It was further stated that the demand of extension fee of Rs.2,80,867/- for the period 20.01.2007 to 31.12.2009, from complainant No.3, vide letter dated 22.10.2009, annexure C-20, was based on wrong calculation, and was corrected to Rs.67,825/- for the year 2007 only, vide letter dated 03.12.2009 annexure C-21. It was further stated that without deposit of extension fee, by the concerned complainants, completion certificates, could not be issued to them. It was further stated that there was no deficiency in service, on the part of the Opposite Parties. The remaining averments, were denied, being wrong. 9. The parties led evidence, in support their case. 10. After hearing the Counsel for the parties , and, on going through the evidence and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 11. Feeling aggrieved, the instant appeal, was filed by the appellants/ Opposite Parties, before the State Consumer Disputes Redressal Commission, Punjab, Chandigarh. The appeal was, ultimately, transferred to this Commission, on the basis of order dated 5.4.2011 passed by the National Consumer Disputes Redressal Commission, New Delhi. 12. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 13. The Counsel for the appellants, submitted that, no doubt, the external development charges, in the sum of Rs.1,05,89,063/- were deposited by complainant No.1 with PUDA, before the re-allotment letter C1 of the land was issued in its favour. She further submitted that it was not a condition precedent, to provide the facilities/amenities, such as sewerage, discharge of storm water, supply of drinking water, street lights etc., by way of external development, before raising construction, over the land, allotted to complainant no.1. She further submitted that even in the re-allotment letter C1, it was made clear that the re-allotment was subject to the outcome of Writ Petition No.7050 of 2001 and vacation of stay therein, by the Hon’ble High Court. She further submitted that since the complainant did not raise construction, within the stipulated period, provided in the re-allotment letter annexure C1, the appellants were legally right, in issuing notices demanding non-construction charges. She further submitted that even a number of complainants, and other allottees, had raised construction over the plots allotted to them, by complainant No.1, in the re-allotted area, after getting the building plans approved, which showed that there was no legal impediment, in the way of the remaining members, to raise construction. She further submitted that the District Forum, without taking into consideration the terms and conditions of re-allotment letter C1, allowed the complaint. She further submitted that the complaint was barred by time. She further submitted that the order of the District Forum, being illegal, is liable to be set aside. 14. On the other hand, the Counsel for the respondents/complainants, submitted that, the construction could be raised, by the complainants, on the area re-allotted to complainant no.1 only after the external development by way of providing amenities/facilities, referred to above, for which, already a sum of Rs.1,05,89,063/- had been paid by it (complainant no.1). He further submitted that the mere fact that some of the allottees raised construction, without the provision of the aforesaid facilities by the appellants, by making improvised arrangement, did not mean that they (appellants) were entitled to non-construction charges or extension fee. He further submitted that a period of 3 years for construction, provided in annexure C1, re-allotment letter, could run only from the date of provision of the aforesaid facilities/amenities, by way of external development by the appellants, and not earlier to the same. He further submitted that, as such, the notices issued by the appellants, were rightly held to be illegal by the District Forum. He further submitted that the appellants/Opposite Parties were deficient, in rendering service, to the complainants, and, as such, the District Forum was right, in allowing the complaint. 15. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and, on going through the evidence and record of the case, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons, to be recorded hereinafter. Admittedly, the external development charges, in the sum of Rs.1,05,89,063/- were deposited by complainant No1, with PUDA (now GMADA), even before the issuance of re-allotment letter annexure C1. It means that PUDA(now GMADA) was legally bound to provide the facilities/amenities like sewerage, discharge of storm water, supply of drinking water, street lights etc., by way of external development, to complainant no.1, in the re-allotted area, before the construction could be undertaken therein, by the allottees. Any unilateral condition, stipulated in the re-allotment letter C1 that complainant no.1 or its member will have to complete the construction on the site, within three years, from the date of allotment, after getting the proposed building plan approved, from the Competent Authority, was not binding either upon the Society or its members/allottees. In case, PUDA(now GMADA) was not able to provide the facilities/amenities like sewerage, discharge of storm water, supply of drinking water, street lights etc., by way of external development, then why it charged a huge amount of Rs.1,05,89,063/- from complainant no.1,by way of external development charges, is not known. The Enclave is located within the urban area of SAS Nagar and is part of the area designated as Sector 77. Imposition of conditions like extension fee or non-construction charges by OP NO.3, as stated above, pre-supposes that it shall make external development in the shape of roads, through which, the material for construction could be transported; water supply required for raising construction; sewerage as well as the street lights. Admittedly such facilities have not so far been provided, by the Opposite Parties. No doubt, the reason mentioned, by the Opposite Parties, for non-provision of such facilities, was that, there was stay order granted by the Hon’ble High Court. Neither copy of the Writ Petition which was filed, nor the order passed therein, was produced by the Opposite Parties. In case, Opposite Party NO.3, was prohibited from providing external development, on account of any stay order, granted by the Hon’ble High Court in that Writ Petition, that in itself, was sufficient to debar it, from claiming non-construction charges and extension fee from the allottees, for want of provision of the facilities/amenities aforesaid, in the Enclave, till vacation of such stay order. The mere fact that 50 allottees have raised construction, on the plots, allotted to them, and are even residing therein, did not create any legal hitch, in their way, to challenge the notices issued for demanding non-construction/extension fee. The District Forum was, thus, right in coming to the conclusion, that most of the allottees of the Enclave, were working/retired Judicial Officers. They are used to a good standard of life. They could not be forced to live, in an area, where there was no provision either of municipal water supply or municipal sewerage and around which there was no road for approach , constructed by the Opposite Parties. By not providing the external development, by way of facilities/amenities such as sewerage, discharge of storm water, supply of drinking water, street lights etc., despite charging a huge sum of Rs.1,05,89,063/- even before the letter C1 regarding the re-allotment of land was issued, the Opposite Parties, could not legally claim non-construction/extension charges. It was held by the Punjab State Consumer Disputes Redressal Commission in Improvement Trust, Barnala vs. Dr. Narender Kumar, II (2007) CPJ 340, that where a municipal body fails to provide basic amenities, like water and sewerage to its residents, it has no right to demand non construction fee from them till the provision of those amenities. It was also held therein, that condition of completion of construction, within three years, would be reckoned only from the date, when the basic amenities were provided, and not from the date of allotment. In Improvement Trust, Sangrur versus Poonam, 2010 CTJ 528 (NC), the complainant was allotted a plot in the year 2001, and was asked to take over its possession. As per the terms and conditions of allotment, the allottee was to complete construction, on the plot, within 3 years from the date of issue of the allotment letter, after getting the building plan approved from the Improvement Trust, failing which, he was to become liable to pay non construction fee. The complainant, neither started construction, nor did she apply for the approval of building plan. The Improvement Trust issued letter/notice dated 07.10.2003,levying non-construction fee. The complainant approached the District Consumer Disputes Redressal Forum, inter alia, alleging that she did not start construction, because of non provision of basic amenities in the area. Her complaint was allowed. The appeal filed by the Improvement Trust, was dismissed, by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh, giving an opportunity to the Improvement Trust, to levy non-construction fee, from October, 2006 i.e. three years, after it had provided the promised basic amenities. The Revision Petition filed by the Improvement Trust, before the Hon’ble National Consumer Disputes Redressal Commission, was dismissed, holding that the Improvement Trust, could not demand non-construction fee, for the period, it had not provided the basic amenities, to the complainant, though, it set aside the directions of the State Commission with regard to the payment of compensation of Rs.70,000/- to the complainant. In Municipal Corporation, Chandigarh vs. Sushil Kumar Mahajan and others, SC & National Commission Consumer Law Cases (2005-2008) 83, it was held by the Hon’ble National Consumer Disputes Redressal Commission, that non provision of basic amenities, by the Municipal Corporation/Local Bodies amounted to deficiency, in service, on their part. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case. In the instant case, as stated above, facilities like sewerage, discharge of storm water, supply of drinking water,street lights etc. have not so far been provided to complainant No.1, and its members/allottees till date. Even, possession to complainant No.1 of the re-allotted area was given in 2004. In view of the principle of law, laid down, in the aforesaid cases, it is held that the Opposite Parties, could not demand extension fee/non-construction charges, before the expiry of a period of three years, from the date of provision of facilities like sewerage, discharge of storm water, supply of drinking water, street lights etc. By not providing these facilities and demanding non-construction/extension charges, the Opposite Parties were grossly deficiency, in rendering service. The findings of the District Forum, in this regard, being correct, are affirmed. 16. An objection, was taken by the Opposite Parties, in the written reply, that the complaint was barred by time, on the ground, that Opposite Party No.3 (GMADA) was not impleaded as a party, to the complaint filed on 25.03.2010, and it was impleaded, as a party, vide order dated 30.06.2010. It was also pleaded that even, originally the complaint was filed beyond the period of two years from the date of accrual of cause of action. The District Forum was right, in coming to the conclusion, that once GMADA was impleaded as a party, the complaint qua it, would relate back to the date,when the complaint was originally filed. Even otherwise, there was a continuous cause of action, in favour of the complainants, as the notices demanding non-construction/extension fee, were issued to them without providing the aforesaid basic amenities. They have already challenged these notices, before the Competent Authority, and still decision of the Competent Authority under the 1995 Act was awaited. Until and unless the facilities/amenities like sewerage, discharge of storm water, supply of drinking water, street lights etc. had been provided to the complainants, they have recurring cause of action to file the complaint. The District Forum was, thus, right in holding that the cause of action, in this case, being recurring and continuing, the complaint could not be said to be barred by limitation. The findings of the District Forum, in this regard, being correct, are affirmed. 17. No other point was urged, by the Counsel for the parties. 18. The order of the District Forum, being based on the correct appreciation of evidence and law on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission. 19. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with costs, quantified at Rs.5000/-. The impugned order is upheld. 20. Certified Copies of this order be sent to the parties, free of charge. 21. The file be consigned to the Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
