DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

(I)

Complaint no.577 of 20.9.2007.

Date of Order 12.3.2009.



Neelam Bhalla w/o Sh. H.D. Bhalla r/o 33-1, Sarabha Nagar, Ludhiana.

….Complainant.

Versus



1- The Atam Nagar Coop. House Building Society Limited, 180, Atam Nagar, Ludhiana through its President.

2- Ludhiana Improvement Trust, Ludhiana through its Chairman/Administrator. ….Opposite parties.

(II)

Complaint No.588 of 25.9.2007.

Date of Order: 12.3.2009.



Vivek Bhalla s/o Sh. H.D. Bhalla r/o 33-I, Sarabha Nagar, Ludhiana.



….Complainant.
Versus



1- The Atam Nagar Coop. House Building Society Limited, 180, Atam Nagar, Ludhiana through its President.

2- Ludhiana Improvement Trust, Ludhiana through its Chairman/Administrator. ….Opposite parties.



COMPLAINTS UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

Quorum:

Sh. T.N. Vaidya, President.

Sh. Rajesh Kumar, Member.



Present: Sh. Dalip Garg Adv. for complainant.

Sh. Stevon Soni Adv. for opposite party no.1.

Sh. Arwinder K. Khalsa Adv. for opposite party no.2.



O R D E R



T.N. VAIDYA, PRESIDENT:

1- We intend to decide fate of above titled complaints, through this single order. Because common questions are involved therein.

2- First, we are taking facts or allegations levelled by Smt. Neelam Bhalla complainant. One Dina Nath son of Sh. Nand Lal was member of opposite party no.1-Society, who was allotted plot no.990-D, measuring 250 sq.yds. under membership registration no.R480/567. On his death, was succeeded by Sh. Kulbhushan Nath and Smt. Savitri Sharma, who succeeded allotment of Sh. Dina Nath. Smt. Savitri Sharma surrendered her rights in the plot in favour of Sh. Kulbhushan Nath, who became sole allottee of plot no.990-D, under membership no.1349. Sh. Kulbhushan Nath transferred the said plot to the complainant vide membership no.1452 in the record of opposite party no.1, who also issued no due certificate to the complainant on 6.9.2007. Hence, became consumer under the opposite party qua plot, having all rights which were available to the original allottee Sh. Dina Nath. The land of opposite party no.1 Atam Nagar Cooperative house Building Society Ltd. (hereinafter to be referred as “Society) was acquired by opposite party no.2 Ludhiana Improvement Trust (hereinafter to be referred as “Trust”). Consequently, 50% of the acquired land was exempted by the State Govt. of Punjab, vide notification dated 21.9.1982. Then opposite party no.2 required opposite party no.1, to pay development charges and exemption fee, as mentioned in the letter and that the plots, list of which was appended with allotment letter no.11308 dated 3rd February, 1983, were to be allotted by opposite party no.1, to its members. At serial no.55, was included plot no.990-D of the complainant. Opposite party then allotted plots to the members including plot no.990-D. The Society acted as intermediator between its members and the opposite party no.2-Trust. Complainant had been then depositing dues as demanded by opposite party no.1 Society and nothing is payable qua this plot to the Society. He had been requesting opposite party no.1 Society, to give demarcation of the plot and to hand over vacant possession, but without success. Other members of the society, who were allotted plots, have been given possession. But no possession was delivered to the complainant by opposite party. Such act on part of opposite party, is claimed deficiency of service by them. Opposite party has taken excuse that plot is not in existence, so showed inability to handover the possession. Whereas opposite party no.2 Trust could not deliver possession of the plots to the allottees, as mentioned in the letter no.11308 dated 3.2.1983 and the esteemed members were given alternative plots. In that way, 130 alternative plots were given by opposite party no.2 Trust, in lieu of the non existing plots. As per letter dated 28.12.1990 of opposite party no.2 to opposite party no.1 Society, qua certain plots of which, society wasn’t put in physical possession by opposite party no.2, other plots in exchange were given. In that way, possession of plot no.991-D which was not given to the allottee, was allotted in lieu of another plot no.850-D. This plot 990-D is adjoining to plotno.991-D. But to the complainant, no alternative plot was allotted. If possession of the land is not delivered by opposite party no.1, then alternative plot could not have been allotted by opposite party no.2. Hence, complainant is entitled for allotment of the plot of 250 sq.yds. from the opposite party and if no such plot is available, then entitled for allotment of alternative plot of the same size, dimension in some other equally developed colony, such as Model Town Extension Part-II, or some other colony and also entitled for compensation of Rs.5 lacs, due to escalation of the costs of construction.

3- In similar way, Sh. Vivek Bhalla complainant in complaint no.488 dated 25.9.2007, has alleged that plot no.993-D, measuring 250 sq.yds. was initially allotted by opposite party no.1 to its member Sh. Madan Lal s/o Sh. Payare Lal, vide membership registration no.374. Sh. Madan Lal sold that plot and transferred to the complainant vide membership no.1463 in the record of opposite party no.1-Society. Opposite party no.1 also issued no due certificate to the complainant on 19.9.2007. Hence, became consumer under the opposite party qua plot, having all rights which were available to original allottee Sh. Madan Lal. The land of opposite party no.1 Society was acquired by opposite party no.2 Trust. Consequently, 50% of the acquired land was exempted by the State Govt. of Punjab, vide notification dated 21.9.1982. Then opposite party no.2 required opposite party no.1, to pay development charges and exemption fee, as mentioned in the letter and that the plots, list of which was appended with allotment letter no.11308 dated 3rd February, 1983, were to be allotted by opposite party no.1 to its members. At serial no.58, was included plot no.993-D of the complainant. Rest all the allegations in this complaint are of the same nature and kind as that of Smt. Neelam Bhalla.

4- Both complaints were contested by opposite parties by filing separate written statements in both the complaints. But stand of both the opposite parties, in above titled complaints, is the same. Hence, we would refer stand in written statement of both the opposite parties, which shall be read as defence qua both the complaints.

5- Opposite party no.1 Society in reply claimed that complainant is not consumer, complaint is not maintainable. He has no cause of action against opposite party no.1. They pleaded that plot in question was allotted by opposite party no.2 and on the basis thereof, opposite party no.1 Society made further allotment to the complainant. They simply acted as intermediator and no liability can be fastened on them. Possession of the plot is to be delivered by opposite party no.2. Hence, complaint against them deserves dismissal. Complaint is claimed timed barred. As he has grievance of non delivery of possession and demarcation of the plot since 1983. He has slept over the matter for 24 hears. This Fora is claimed having no jurisdiction to decide the complaint. They have written many letters to opposite party no.2 Trust, to give demarcation and possession of the balance plots, as allotted under letter no.11308 dated 3.2.1983. Though majority of the plots have been given by opposite party no.2. Yet, there are few plots, possession of which has not been handed over by opposite party no.2 Trust to opposite party no.1 Society. The Society has also given legal notice to opposite party no.2. It is averred that opposite party no.1 only developed the colony. The plots have been allotted by opposite party no.2 Trust, in the shape of carved out developed colony. Development charges, exemption fee, were paid by opposite party no.1 to opposite party no.2, on the basis of allotment letter dated 3.2.1983. Possession of number of plots has not been delivered by opposite party no.2 to opposite party no.1. They are not in possession of any plot, so can not deliver possession. There is no deficiency of service on their part. Complaint against them deserves dismissal.

6- Opposite party no.2 Trust in their reply claimed that complaint is barred by principle of resjudicata, as complaint qua these allegations of opposite party no.1, was already dismissed by this Fora on 14.9.2005. They have accused complainant of suppressing material facts and that the complaint has no cause of action. Allotment of plots to its members, to put them in possession or give demarcation, is the internal matter of opposite party no.1 Society, with which opposite party no.2 Trust has nothing to do. As land measuring 1,20,508 sq.yds. was exempted by the State Govt., so Improvement Trust never took possession of the said land. Ownership and possession of that land vested with opposite party no.1. Opposite party no.2 never paid compensation to opposite party no.1 for acquisition of the land. Hence, there is no question of taking possession of the land. There is no deficiency in service on their part and that the complainant is not their consumer. They have raised objection qua estopple and limitation. Averred that complainant is not the original allottee, but has purchased the rights of the original allottee. No amount has been deposited by the complainant with opposite party no.2 Trust. So, he does not become consumer under them. Possession, if any, of the plot was to given by opposite party no.1 Society and not by them. It is denied that opposite party no.1 simply acted as post office between the members of the Society and the Trust. This complaint is not maintainable, in view of the decision in civil writ petition no.9070 of 1996 decided on 19.11.1998 of the Hon’ble Punjab & Haryana High Court. Allotment of alternative plots in favour of the persons, will not create a right in the complainant, to claim equality. The alternative allotment of plot, if any made, was against the rules and public policy, so will not create any right in favour of the complainant. The Trust was only duty bound to develop the area and possession was to be made by opposite party no.1.

7- The parties in both the complaints adduced evidence in support of their respective claims. We have heard the ld. counsel for parties and have scanned and other material placed on both the files.

8- Outrightly, we may say that the dispute which stands agitated in these complaints, have much equation to such like disputes, already settled by the Hon’ble State Commission or Hon’ble National Commission, pertaining to other members of the Society of opposite party no.1, of which both complainants of these cases, are also members. Though they acquired membership by way of purchase or transfer and resultantly became members of the Society, after purchasing plot of other members of the Society, which is not in dispute.

9- Before we venture to highlight points agitated in the complaints, may say that all those points stand covered and answered by the Hon’ble State Commission in Appeal No.931 of 2007 titled as Randhir Kalra Vs Atam Nagar Coop. House Building Society etc., decided on 5.12.2008; Mrs. Neetu Jain Vs Ludhiana Improvement Trust & Ors., appeal no.407 of 2001 decided on 10.5.2006 by the Hon’ble Punjab State Commission, which was affirmed in revision petition no.1021 of 2001 decided 17.4.2002 by the Hon’ble National Commission and case titled as Ludhiana Improvement Trust Vs Ram Parkash revision petition no.717 of 2002 decided on 26.2.2003 by the Hon’ble National Commission. In brevity, land of the Society of opposite party no.1 was acquired by the Ludhiana Improvement Trust, for development purpose of Model Town Extension Part-II, Ludhiana. Area of 102508 sq.yds. belonging to the Society with other area, was acquired by the Ludhiana Improvement Trust. On 21st September, 1982, by the order of the State Govt. of Punjab, land belonging to the Society was exempted from acquisition on certain terms and conditions. One of the major terms and conditions was that the area would be developed by the Trust, on payment of some charges by the Society of opposite party no.1 to the Trust of opposite party no.2, including exemption fee. The Trust then called upon opposite party Society to submit list of eligible members. They submitted list of 333 members to opposite party no.2 Trust. The Trust passed resolution on 29th January, 1983 and resolved to allot 296 plots of different sizes, measuring total of 50250 sq.yds. to the Society, making up an area nearly 50% of acquired land. The allotment of the plots given by the Trust to the Society to the individual members, was in fact was to be made by the Society to the original members. The Punjab Govt. subsequently vide notification dated 27th April, 1983, raised percentage of the allotable area from 50% to 53%. The Trust passed a resolution dated 2.5.1983 resolving to allot 10 more plots measuring 300 sq.yds. to the Society vide memo of same date, allotted 10 plots to the Society, for further allotment to original members. It was in this way that the plots qua which complaints are filed, stood allotted to predecessor in interest of both the complainants, from whom, they purchased the membership as well as plots.

10- It is in backdrop of these admitted and proved aspects that we are required to determine:-

(I) Whether it is duty of opposite party no.2 Trust, to demarcate and put the allotee in possession of the allotted plot?



(II) Whether complaint is within limitation?

(III) Whether complaint is barred by principle of resjudicata?

(IV) Whether complainant is entitled for compensation?

11- We shall now advert to the referred points.

12- POINT NO. (I):

Regarding first point as to who is responsible to put the allottee in possession, the matter corners around whether land of the plot ever came in possession of opposite party no.2 Trust or it was exempted land which never came in their possession. Answer to this query can be obtained from Ex.R5 dated 29.1.1983 of the Trust. Vide that resolution, opposite party no.2 Trust resolved allotment of 296 plots out of 50% of the total land of opposite party no.1 Society, measuring 102508 sq.yds. In that list, plots of both the complainants were also included. So, it was proposed to the Society to allot 296 plots equal to 50250 sq.yds. Sequel to the resolution, opposite party no.2 Trust, vide allotment letter Ex.R8, English translation of which is Ex.R7, dated 3.2.1983, issued letter of allotment to opposite party no.1. In that list, plots qua which dispute is before us bearing no.990-D and 993-D were also mentioned. So, this makes abundantly clear that possession of the land qua allotted plots of the complainants, was with opposite party no.2, who consequently ordered allotment of those plots. Hence, it would be for opposite party no.2 to demarcate and put the allottees in possession of allotted plots. So, there appears no substance in narration of opposite party no.2 Trust that they were not in possession of the land and it was for opposite party no.1 Society, to demarcate and put the allottee in possession of the plot.

Even this aspect stands discussed at length by the Hon’ble Punjab State Commission in Mrs. Neetu Jain Vs Improvement Trust, Ludhiana & Ors. Appeal No.407 of 2001, decided on 10.5.2006 and Dharamvir Bector Vs The Atam Nagar Coop. House Building Society & Ors. Appeal No.900 of 2001 decided on 5.12.2008 by the Punjab State Commission.

Complainants have placed on record, chart Ex.R12, giving details of 306 plots, including alternative plots allotted by opposite party no.2 in the Society of opposite party no.1. This list details possession of the plots delivered or alternative plots given in lieu of original plot as well as number of plots, possession of which was not delivered. Certain persons to whom, alternative plots were given by opposite party no.2 Trust, handed over receipts of possession to them, as evidenced from Ex.R14 to Ex.R16.

In view of these aspects, it is evident that both complainants are entitled for possession after demarcation of the allotted plots from opposite party no.2 Trust and in case, no such plot in that very scheme of this dimension is available, for allotment of alternative plot and delivery of possession thereof, in lieu of plots of the complainants. Allotment of alternative plot may be in the same scheme or any other equally developed scheme, at the same size of which, original plot was allotted.

13- POINT NO.(II) LIMITATION:-

This matter of limitation has been dealt by the Hon’ble Punjab State Commission in Dharamvir Bector Vs The Atam Nagar Coop. House Building Society & Ors. Appeal No.900 of 2001 decided on 5.12.2008. Same ratio would be applicable here. As non delivery of possession is a continuing cause in favour of the allottee. Simple allotment letter, without putting the allottee in possession, would be meaningless. Hence, as a continuing cause, complainants had been pursuing repeatedly by taking up matter with opposite party no.2. Consequently, we hold and conclude that complaints are within limitation.

14- POINT NO.(III) RESJUDICATA:-

Such plea of resjudicata is based upon a complaint filed by opposite party no.1 Society, which was dismissed by this Fora vide order dated 14.9.2005, copy of which is Ex.R4. That complaint was filed by opposite party no.1 against opposite party no.2 etc. But complainant was not a party thereto. The complaint was dismissed on the ground that opposite party no.1 being complainant, had not hired services of opposite party no.2 Improvement Trust, for allotment of plots. As the Society never paid development charges to opposite party no.2 Trust and there was no deficiency in service. Whereas, different questions are involved herein and complainants were not party to those proceedings, therefore, principle of resjudicata, in our view, is not at all attracted in this case.

15- POINT NO.(IV) COMPENSATION:-

Though in similar situated cases, Hon’ble State Commisison has awarded compensation to the complainants, for default and deficiency in service on part of opposite party, in not delivering possession of allotted plots. But we feel that criteria may not be attracted to the case in hand, as in both these cases, complainants are purchasers of the plots, which they purchased in the year 2007 or in its proximity. It was thereafter that they filed complaints for demarcation and putting them into possession. So, having regard to this aspect of peculiar nature, we deem it not proper to award any compensation to the complainant.

16- Sequel to above discussions, complaint is allowed and opposite party no.2 Trust is directed to put both the complainants Smt. Neelam Bhalla and Sh. Vivek Bhalla in possession of plots no.990-D and 993-D respectively, after demarcation of the allotted plots and in case, no such plots in that very scheme of those dimensions are available, then to allot alternative plots of the same scheme or any other equally developed scheme, at the same size of which, original plot was allotted. Order be complied within 45 days of receipt of copy of order. Parties to bear own costs. Copy of order be made available to the parties free of charge. File be consigned to record room.





Announced on 12.3.2009. T.N. Vaidya, President.