| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C.No. 16 of 16-10-2018 Decided on : 06 -07-2023 Gurbinder Pal Singh aged about 51 years son of Gurdev Singh, Assistant Trust Engineer, Improvement Trust, Abohar now resident of House No.10, Housefed Colony, Dabwali Road, Bathinda ........Complainant Versus Town Improvement Trust, Bathinda, through its chairman. Executive Officer, Town Improvement Trust, Bathinda
.......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Lalit Mohan Dogra, President Sh. Shivdev Singh, Member Present : For the complainant : Complainant in person For opposite parties : Sh. Rohit Goyal, Advocate. ORDER Lalit Mohan Dogra, President The complainant Gurbinder Pal Singh (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986, ( Now C.P. Act, 2019 here-in after referred to as 'Act') before this forum (Now Commission) against Town Improvement Trust & another (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that the opposite parties invited application for allotment of plots on dated 13.12.2007 through letter No.2809 on the order of administrator whereby all the employees of Improvement Trust, Bathinda were informed that as per resolution No.112 dated 30.12.05 of Town Improvement Trust, Bathinda, there are reserved plots for the employees of the Trust in the category of 191 sq yards one plot and two plots of 239 sq yards and that the draw will be held on 21.12.2007 at the office of Trust and Rs.73,535/- were to be deposited as earnest money for 191 sq yards plot and Rs.1,38,000/- were to be deposited for the plot of 239 sq yards before 20.12.2007. It is also conveyed that the employees will have to furnish affidavit in form B and C regarding their eligibility. It is alleged that the complainant was employed as Junior Engineer at Improvement Trust, Bathinda and he being entitled for allotment of plot, applied for the allotment of the plot through form No. 2560 and deposited Rs.73,535/- on dated 20.12.2007 through two drafts No.972444 and 399137 for Rs.46605/- and Rs.26930/- respectively and applied for allotment of the plot measuring 191 sq yards in 49.5 acres scheme and the same was received by the opposite party vide endorsement No. 290/7 dated 20.12.2007. Thereafter the opposite party through letter No. 1426 dated 08.06.2012 allotted the plot No.60 A measuring 191 sq yards under Trust Employees Quota in 49.5 Acres Scheme. It is further alleged that the complainant deposited all the five installments as per the allotment letter, under protest. As per the scheme in the year 2007 the rate of the plot was at the rate of Rs.3850/- per sq yards and the value of the plot comes to be Rs.7,35,350/- and cess was Rs.29,414/- and 25% earnest money comes to be Rs.1,83,838/- and all the 75% balance amount was to be paid in five instilments of Rs.5,51,512/- but in this case the complainant deposited extra Rs.2352/- per sq yards for reserve plot price and deposited extra sale price to the tune of Rs.4,49,232/ than the actual price and also paid Rs.17970/- extra as cess, Rs.1,12,308/- paid extra as 25% earnest money and also paid Rs.3,36,927/- paid extra remaining 75% in five installments. In this manner the complainant paid Rs.5,27,862/- as extra in total. The complainant alleged that opposite party vide resolution No.7 dated 03.01.2017, decided that the new allotment letter should be issued to the complainant as per reserved price of Rs.3850/- per sq yards, including cess and other charges which was also approved by the Govt. through their letter dated 08.03.2017. The opposite party passed resolution No.21 dated 28.06.2017 and ordered for the refund of Rs.5,09,892/- and further ordered to deduct Rs.1,41,340/ on account of enhanced value and ordered for Rs.3,68,552/- refund to the complainant. This order of the opposite parties is against law and facts and the complainant is entitled for refund of Rs.1,59,310/ as Rs.1,41,340/- as enhancement plus Rs.17,970/- cess amount alongwith up to date interest till realisation. It is further submitted that Rs.1,41,340/- deducted, is illegal, null and void. No enhancement ever took place in the year 2007 by the opposite parties. As such there is deficiency of service on the part of the opposite party. It is also alleged that complainant several times approached the opposite parties and requested them to handover the possession of the abovesaid plot to him, but the opposite parties have failed to deliver the possession, as such complainant is entitled to get actual and physical posession of the above said plot No. 60A, measuring 191 sq yards in the scheme known as 49.5 acres. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to handover actual physical possession of plot in question, refund Rs. 1,59,310/- and pay Rs.50,000/- as compensation on account of mental harassment and Rs. 11,000/- as litigation expenses. The complainant has also prayed for compensation to the tune of Rs. 8,00,000/- on account of increased value of construction material as compared to the material in the year 2007. Upon notice, opposite parties appeared through counsel and contested the complaint by filing written reply raising legal objections that the complainant has got no locus standi or cause of action to file the present complaint. The complainant has concealed material facts and has not come with clean hands. That since the complaint is himself posted as Junior Engineer in the opposite party office and as per the office order no.2 dated 20.01.2012 he was incharge of the scheme and was responsible to handover the possession to the people who applied for the plots then how can the complainant allege that he has not been handed over the possession of the plot in question. The complaint is false, frivolous and mischievous in nature to gain benefits from the opposite party. It has been pleaded that as per clause No. 14 of agreement to sale executed between Trust and complainant, the compiainant is liable to pay enhancement of compensation of land and complainant has undertook that in the event of enhancement or revised rates than the said rates on the date of execution of agreement to sell, he shall be liable to pay the enhanced value as may be fixed by the Trust to meet the additional cost. Clause No. 15 of the agreement to sale finds mention the arbitration clause vide which it has been agreed by the complainant that any dispute or difference arising at any time shall be referred to secretary of Govt. Punjab Local Govt. Department or an officer, appointed by him in its behalf and the decision of said officer shall be final and binding on the parties. Hence the complaint cannot be filed before this Commission rather the dispute should have been referred to the competent authority. It has been further pleaded that the complainant has produced allotment letter No. 1426 dated 08.06.2012 signed by the then Chairman Bathinda. Clause No. 5 of said allotment letter finds mention that complainant was liable to take the possession within 30 days from date of execution of agreement to sale. In case if the possession is not taken within 30 days then it would be deemed that the possession has been taken. On merits, opposite parties have pleaded that vide resolution No.21 dated 28.06.2017, it was decided that out of Rs.5,09,892/-, an amount of Rs.1,41,340/- shall be adjusted towards enhancement and Rs.3,68,552/- are liable to be refunded to the complainant. It was further ordered that in case, if any, competent officer or audit office orders to deposit any amount in the future then the complainant would be liable to pay the same. The said amount of Rs.1,41,340/- has been deducted for the enhanced amount of Rs.740/- per sq. yard which was duly intimated to the complainant vide letter No. 2323 dated 26.10.2012. Thus, there is no deficiency in service on the part of the opposite parties. After controverting all other averments of the complainant, the opposite parties prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 20.4.2018 (Ex. C-19) and documents (Ex.C-1 to Ex.C-18). In order to rebut the evidence of complainant, the opposite parties have tendered into evidence affidavit of Gora Lal, Executive Officer dated 24.4.2019 (Ex. OP-1/6) and documents (Ex.OP-1/1 to 1/5 & Ex.OP-1/7 to Ex. OP-1/41). The complainant in person has argued that he is employee of the opposite parties department and remained in their office upto July, 2014. The opposite parties invited applications for allotment of plots on 13-12-2007 whereby all the employees of the opposite parties were informed that as per resolution No. 112, there are reserved plot for the employees in the category of 191 Sq Yds one plot and two plots of 239 Sq. Yds and draw will be held on 21-12-2007 and Rs. 73,535/-were to be deposited as earnest money for 191 Sq. Yds plot. The complainant submitted that he applied for allotment of plot and deposited Rs. 73,535/- on 20-12-2007 and vide allotment letter No. 1426 dated 8-6-2012 plot No. 60A, measuring 191 Sq. Yds was allotted to the complainant. Since the price of the plot was increased from the already promised price, as such amount was deposited by the complainant under protest. As in the year 2007, rate of the plot was 3850/- per Sq Yd and value of the plot comes to Rs. 7,35,350/- and cess was Rs. 29,414/- and amount was to be deposited in installments and accordingly, complainant was compelled to deposit extra sale price to the tune of Rs. 4,49,232/- plus cess. As such, opposite parties received total extra amount of Rs. 5,27,862/-. Thereafter vide resolution dated 3-1-2017, it was decided by the opposite parties that new allotment letter should be issued to the complainant as per reserved price of Rs. 3850/- per Sq. Yd including cess and other charges and was approved by Government vide letter dated 8-3-2017. Thereafter opposite parties passed resolution No. 21 dated 28-6-2017 and ordered for refund of Rs. 5,09,892/- and further ordered to deduct Rs. 1,41,340/- on account of enhanced value and ordered refund of Rs. 3,68,552/- to the complainant. Order of the opposite parties is illegal, null and void. The complainant argued that he has time and again approached the opposite parties and requested for delivery of physical possession of plot in question but the opposite parties failed to do so. In the end, the complainant has made prayer for providing actual physical possession of plot No. 60A and has also claimed refund of Rs. 1,59,310/- alongwith interest and compensation from the opposite parties for deficiency in service. It is further argued that even in the end, possession ha been given with wrong dimensions. On the other hand, learned counsel for the opposite parties argued that complainant being himself posted as J.E. with the opposite parties and as per office order No. 2 dated 20-1-2012, complainant himself was Incharge of the scheme and was responsible to handover possession of the plot and as such, cannot raise any question for non-delivery of possession. It is further argued that as per Clause No. 14 of the agreement to sale, complainant is liable to pay enhancement of compensation of land and complainant has already given undertaking and as such, cannot wriggle out of his own undertaking. It is further argued that as per allotment letter placed on file by complainant himself, copy of which is Ex. C-3, as per Clause '5' complainant was to take possession within 30 days from the date of execution of allotment and in case possession has not been taken within 30 days, then it would be deemed that possession has been taken. The learned counsel for the opposite parties prayed that there is no deficiency in service on the part of the opposite parties and complaint is liable to be dismissed. The learned counsel for the opposite parties has also relied upon the Order of Hon'ble National Commission reported in 2016 (4) CPR 66; Judgement of Hon'ble Supreme Court reported in 1996 AIR (Supreme Court) 2508; Order of Haryana State Commission reported in 2017 (3) CLT 101; Order of Chandigarh State Commission, U.T. In case titled Dr. Yuvraj Shori & Ors Vs. M/s. Premium Acre Infratech Pvt. Ltd., & anr (CC No. 96 of 2015 D/d 3-8-2015); Judgements of Hon'ble Supreme Court of India report in 1975 AIR (Supreme Court) 1409, reported in 2009 (1) RCR 855 and reported in 2010 AIR (Supreme Court) 475. We have heard complainant in person and learned counsel for the opposite parties and also gone through the case law referred by complainant. It is admitted fact that complainant is employee of the opposite parties and remained with the office of the opposite parties from December, 2001 to July, 2014. It is further admitted fact that being employee of the opposite parties, complainant was allotted 191 Sq. Yds plot of the category of Trust Employee Scheme known as 49.5 acres. It is further admitted fact that said plot allotted bears No. 60A of 191 Sq. Yds vide Ex. C-3. It is also admitted fact that original price of the plot was increased to Rs. 11,84,582/- at the time of issuance of letter Ex. C-3. It is further admitted fact that vide resolution No. 21 dated 28-6-2017 Ex. OP-1/2, extra amount of Rs. 5,09,892/- was ordered to be refunded and out of the above amount Rs. 1,41,340/- was adjusted towards enhancement of the land and complainant was paid/refunded Rs. 3,68,552/-. It is further admitted fact that actual physical possession of the plot was given to the complainant on 14-10-2021 which was taken by the complainant at the spot under protest and objection. To prove his case, complainant has placed on file his own affidavit, copy of allotment letter, copy of receipts regarding deposit of excess amount. So far as first prayer of the complainant regarding delivery of possession is concerned, during the pendency of present complaint, actual physical possession of the plot in dispute has been delivered to the complainant vide letter No. 2079 dated 14-10-21. The only grouse of the complainant that dimension of the plot and location was changed by the opposite parties at the time of delivery of possession of the plot. However, this Commission is of the view that although the opposite parties have changed the dimension of the plot to complete the area allotted to the complainant i.e. 191 Sq. Yds, as such, no loss has been caused to the complainant due to change of dimension. As far as the 2nd prayer of the complainant is concerned, the same is regarding refund of Rs. 1,59,310/-. This Commission is of the view that complainant has himself given undertaking and it is specifically mentioned in the allotment letter Ex. C-3 that in case of increase in the price of compensation by court of law, in that case, complainant would be under obligation to deposit the same. The only grouse of the complainant is regarding deduction of amount on account of enhancement of compensation of Rs. 1,41,340/- is that the said enhancement is prior to year 2007 and not after 2007 and as such, complainant is not liable to pay the same, but this Commission is of the view that after acquisition of land by Government if the original land owner go in appeal before Higher Court for enhancement of compensation, in every such scheme, the allottees are liable to pay enhanced amount proportionately and as such, this Commission does not find anything wrong in recovery of amount of Rs. 1,41,340/- by the opposite parties. The next/third prayer of the complainant is for Rs. 50,000/- as compensation on account harassment suffered by the complainant . A perusal of record shows that said scheme was launched vide public notice Ex. C-1 on 13-12-2007 and the complainant had applied for the allotment of plot on 20-12-2007 vide form Ex. C-2 by depositing Rs. 73,535/- and thereafter plot in question was allotted to the complainant vide allotment letter dated 8-6-2012 Ex. C-3 i.e. after five years and actual physical possession of the plot was handed over to the complainant after changing dimension of the plot on 14-10-2021 i.e. after another nine years. The learned counsel for the opposite parties has not been able to explain any reason for such a long delay in allotment of plot and delivery of physical possession of plot to the complainant. The excuse of the opposite parties is only that the complainant was employee of the opposite parties and he himself was responsible for delivery of possession, but this Commission is of the view that if opposite parties can harass their own employees to such an extent for allotment of plot and thereafter delivery of possession, then what can be the extent of harassment to the general public/general allottees of plots. Accordingly, this Commission is of the view that complainant is definitely entitled to compensation of Rs. 50,000/- on account of mental tension, agony and harassment caused to the complainant by the opposite parties. Fourth relief claimed by the complainant is for compensation on account of increase in value of construction material, as compared to the material in the year 2007. This Commission is of the view that as discussed above, opposite parties have not been able to explain any reason/reasonable excuse for delay in allotment and thereafter delivery of possession of plot to the complainant and as such, cost of construction has definitely increased as compared to the year 2007 upto the filing of present complaint. Thus, complainant is also held entitled to the compensation of Rs. 50,000/- from the opposite parties on account of enhancement/increase in cost of construction material. In view of above discussions, the complainant is fully able to prove deficiency in service on the part of the opposite parties. Accordingly, this complaint is partly allowed and opposite parties are directed to pay compensation to the complainant to the tune of Rs. 50,000/- on account of harassment, mental tension and agony and cost of litigation and Rs. 50,000/- on account of increase in the cost of construction material, as compared to the year 2007. However, so far as other reliefs claimed by complainant i.e possession of plot, the same has already been delivered to the complainant during pendency of complaint and this Commission is of the view that complainant is not entitled to refund of the amount of Rs. 1,59,310/-. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of order. However, it is made clear that in case aforesaid amount of Rs. 1,00,000/- as assessed is not paid, within 45 days by the opposite parties after receipt of copy of this order, the amount shall carry interest @9% p.a. from the date of filing of this complaint till realization. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced:- 06-7-2023 - (Lalit Mohan Dogra)
President (Shivdev Singh) Member
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