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Adarsh Colony Co-Operative House Building Society 
Submit Complaint..Satya Pal Jain son of Sh. Mela Ram resident of Atam Public School, Atam Nagar, Ludhiana.
(Complainant)
Vs.
1. Improvement Trust, Ludhiana through its Chairman.
2. The Adarsh Colony Co-Operative House Building Society,570/1, National Road, Near Bhaiwala Chowk, Ludhiana through its President/Secretary. (Opposite parties)
Complaint under section 12 of the Consumer Protection Act, 1986.
…………….
Quorum:
Sh. T.N. Vaidya, President.
Sh. Rajesh Bhagat, Member.
Present:
Sh. L.D. Gupta Advocate for the complainant.
Mrs. Avninder Kaur Khalsa Advocate for OP No.1
Sh. Alok Mohindra Advocate for OPNo.2-Society.
O R D E R
T.N. VAIDYA, PRESIDENT:
1. By way of present complaint under section 12 of the Consumer Protection Act, 1986, the complainant is seeking against the opposite parties, the following directions:
1. Order opposite party to execute the sale deed of plot no. 348-G, Bhai Randhir Singh, Nagar, Ludhiana
2. to declare demand of non construction charges of Rs. 5,43,958/- raised by opposite party no.1 to be unwarranted, illegal, against rules and regulations and instructions of the Punjab Government,
3. award compensation of Rs..2,50,000/- for escalation in cost of construction material,
4. damages of Rs.1,00,000/- for mental tension, torture and agony and
5. to order refund of Rs.24,500/and Rs.9835/- along with interest @18% per annum from the date f deposit till payment.
2. The case of the complainant is that Adarsh Colony Co-Operative House Building Society, Ludhiana (OP No.2) was formed in the year 1968. Purpose of Society was to provide plots for construction of residential house to its members. Society purchased 39 acres of land in village Sunet, which is now part of Bhai Randhir Singh Nagar, a residential colony developed by Improvement Trust, Ludhiana (OP No.1). The land of the Society-OP 2 was acquired by opposite party no.1 for developing scheme known as Bhai Randhir Singh Nagar. But subsequently, land of the Society-OP2 was exempted by the Punjab Government vide notification dated 9.2.1977. Hence, 39 acres land of Society-OP2 became surplus with Improvement Trust, Ludhiana-OP-1. Improvement Trust, Ludhiana then sold that land to Punjab Housing Development Board at exorbitant price, leading to filing of civil writ petition no. 2659 of 1981 and 1625 of 1981. Consequently, opposite party no.1 allotted 281 plots to the Society through different allotment letters at different rates for allotment to members of the Society. Thereunder plot no.348-G, Bhai Randhir Singh Nagar, Ludhiana measuring 250 Sq.Yds. @Rs.50/- per square yard was allotted to the complainant. Complainant paid the price of the plot to the Society, who ultimately paid the same to opposite party no.1. Subsequently, writ petitions were withdrawn due to allotment of plots by opposite party no.1. After making full payment of the plot no.348-G, Bhai Randhir Singh Nagar, Ludhiana (to be described hereinafter “allotted plot”), complainant became its full owner, consequently entitled to get possession and sale deed executed in his favour and get the building plan sanctioned for construction of house. On 18.12.2000, complainant requested to opposite party no.1 to execute the sale deed in his favour and also submitted No Objection Certificate, allotment letter and No Due Certificate but inspite of repeated letters and personal visits, opposite party no.1 neither executed the sale deed in his favour nor conveyed any reasons for not executing the sale deed. Complainant also submitted an affidavit to the effect that there is no dispute with OPNo.1 and nor any case is pending in the court of law and agreed to pay the amount, if any found due. Opposite party no.2-Society has no objection, if the sale deed of plot no.384-G is executed in favour of the complainant. But opposite party failed, despite his repeated visits, to clear to execute the sale deed. Hence, he was prevented from raising the construction on the allotted plot. Subsequently, on 13.2.2001complainant again moved opposite party no.1 with NOC, allotment letter and No Dues Certificate issued by opposite party no.2-Society for execution of the sale deed by opposite party no.1. But they again failed to initiate any action on his application. Subsequently, opposite party no.1 directed the complainant to pay amount of enhancement, interest and some arrears, though such amounts were to be paid by the Society-OP No.2. Complainant was compelled to pay the enhancement and interest. Under duress he deposited Rs.9835/-vide receipt dated 29.12.2000 and also paid Rs.24,500/-vide receipt dated 13.2.2001. He was forced to pay the amounts which were illegal, unwarranted and deserve to be refunded to him. Further case of the complainant is that he again applied to opposite party no.1 for execution of the sale deed vide acknowledgement dated 13.2.2001. Despite his repeated visits and reminders, sale deed not executed. Thereafter, again opposite party no.1 vide letter dated 23.4.2003 demanded NOC, No Dues Certificate and affidavit that he will complete 50% of construction on the plot. Letter was again complied by furnishing the desired documents. Complainant made representations on 10.10.2003, 8.1.2004 and 3.9.2005 and made personal visits to OP No.1 to get the sale deed executed and building plan sanctioned of the plot. But neither the sale deed has been executed nor the building plan sectioned due to which the complainant has been deprived to construct the house. He even got served a legal notice on 19.1.2006 but to no effect. During the pendency of the complaint, opposite party no.1 supplied information that an amount of Rs.5,43,540/- is due towards complainant as non construction charges along with interest. The said demand is illegal, unlawful, unauthorized and were never claimed from him. In this regard, opposite party failed to produce any demand notice or communication demanding non construction charges. Wrong calculations have been made. There is no provision of charging any compound interest on the amount of non construction charges. Even in the allotment letter, there is no mention of levy and recovery of these charges. Non construction charges have been claimed from the year 1986 till 31.12.2006. The plots, including the allotted plot remained under stay and litigation in various courts and departments and their allotments was finalized only in 1995-96 and consequently such charges could not have been claimed within three years of clearing the plot. 281 plots also remained under litigation; hence non construction charges could not have been claimed. They have no right to raise such demand which is arbitrary, unlawful and illegal. Because, there was no condition in the allotment letter of paying non construction charges. Neither there was any provision to realize such charges. Demand of Rs.13,755/- as enhancement and Rs.30,748/- as development charges, after a gap of more than 20 years is illegal, unlawful and unwarranted and has been raised to harass the complainant. No enhancement charges can be recovered from the land which was exempted by the Local Govt. Punjab vide notification dated 9.2.2007. An additional amount of Rs.3920/- as interest and penalty and Rs.6348/- as additional amount as interest on development charges is also wrongly and illegal. So, the demand of non construction charges and interest, penalty on development charges raised is null, void, illegal, arbitrary, deserves to be set aside.
3. Opposite party no.1 in their reply have pleaded that the complainant is estopped by his own act and conduct to file the complaint as he himself had undertaken to pay the outstanding amount against the said plot to the replying opposite party. There is no deficiency in service on their part. Complaint is barred by limitation. Further claimed that under rules of 1964 of Ludhiana Improvement Trust and as per terms and conditions of the sale agreement, sale deed of the plot can not be executed, without construction completed over the plot, as per sanctioned plan. As the complainant has not raised the construction, so, not entitled for execution of the sale deed of the allotted plot. Further claimed that Society-OP No.2 is defaulter and unless and until enhancement charges of the plot are deposited, plan of construction can not be sanctioned. Opposite party has justified raising claim of non construction charges of Rs.5,43,958/- from the complainant upto Jan.2008 and that he is legally bound to pay the same. Unless and until such charges are paid, no sale deed can be executed. Enhancement charges were deposited by the complainant himself, hence not entitled for its refund. Such charges were deposited in the year 2000-2001, so refund of the same is barred by limitation. Such charges were claimed from the complainant in view of the resolution no.100 dated 19.8.1999 of the Improvement Trust. Case of the complainant is not covered under the Consumer Protection Act, 1986. However, it is admitted that land of the opposite party no.2 was acquired by the Improvement Trust and subsequently it was exempted by order of the State Government and plots after filing of the writ petitions were allotted, leading to withdrawal of the writ petitions by the Society.
4. Opposite party no.2 vide separate reply has also blamed opposite party no.1 for causing harassment to the Society as well as to its members. They have accused opposite party no.1 of malafide by not executing the sale deed of the property in favour of the complainant. Improvement Trust-OP No.1 has failed to deliver the possession of the plots to the Society and consequently non construction fine could not have been claimed or levied. Society had taken the matter repeatedly with opposite party no.1 for delivery of the possession of the plots. Though honorary Secretary of the OP2-Society had furnished indemnity bond to the Trust. They have also , on merits, admitted claim of the complainant.
5. Parties led their evidence by way of affidavits and documents and stood heard through their respective counsels.
6. After hearing the parties and perusing the record, following aspects emerge for out determination:
(I). Whether non construction charges of Rs.5,43,540/- can legally be claimed by opposite party no.1 from the complainant?
(II) Whether complainant is entitled for direction against opposite party no.1 to execute the sale deed of the allotted plot?
(III) Whether complainant is entitled for refund of Rs.24,500/- and Rs.9835/- with interest?
(IV) Whether complainant is empowered for compensation, if so, to what extent?
7. Before we venture to come on the points raised for our determination, would like to high light certain admitted and undisputed aspects of the case.
8. Opposite party no.1 had allotted plots to opposite party no.2 vide letter Ex.C.2 dated 2.9.1983. At serial no.13 of the appended list plot no.348-G of 250Sq. Yds. @Rs.50/-per Sq. yds. was mentioned. This plot vide letter of allotment Ex. C.4 stood allotted by opposite party no.2-Society to the complainant. Not in dispute that price of the plot stand already paid by the complainant. To be stated that 39 acres of land of the Society-OP 2 was acquired by the Trust-OP No.1 and consequently opposite party no.2 compelled to file civil writ petitions before the Hon’ble High Court of Punjab & Haryana, Chandigarh, which were withdrawn as in the mean time Trust-OP No.1 had allotted 281 plots of various sizes to the Society after acquisition of 39 acres of land was exempted by the Punjab Govt. vide notification dated 9.2.1977.
9. It is thereafter that opposite party no.1-Trust for the first time issued letter dated 23.4.2003 Ex.C.11 requiring complainant to furnish affidavit that he will complete 50% construction upto 30.4.3004 and in casae of failure to do so, will pay fouble charges and NOC from opposite party no.1. It was for the first time, that during the pendency of the complaint, opposite party no.1 informed the complainant that an amount f Rs.5,43,540/- is due towards him on account of non construction charges and interest.
11. It is in the aforesaid scenario that are required to adjudge legality of demand of non construction charges raised by opposite party no.1.
12. Point No.1: Contention of the complainant is that plot was allotted in the year 1983 by opposite party no.1 to the Society, who then issued certificate of allotment in favour of the complainant. When the plot was allotted, there was no condition of raising construction on the plot within any period and on failure to raise construction, to pay non construction charges. Such charges were introduced by the opposite party no.1-Trust for the first time during the pendency of the complaint. Hence, such charges could not have been claimed from the complainant as there was no condition with the allotment letter to pay non construction charges, in case construction not raised. This submission is opposed by the ld. counsel for opposite party no.1 and submitted that they legitimately and legally can claim non construction charges.
We may state that State Government of Punjab, vide communication Ex.C.1 dated 9.2.1977 had exempted under section 56 of Punjab Town Improvement Act, 1922, land of the Society-OP 2, from 550 Acre Extension Scheme of Improvement Trust, Ludhiana on certain conditions. Subsequently, vide communication Ex. C20 dated 26.10.2004 of the Punjab Govt., it was clarified that non construction fee from land owners whose land had been abandoned/exempted by the Trust will not be charged. As land of Society-OP 2 was exempted under section 56 of the Punjab Town Improvement Act,1922, so, such charges under such head of non construction could not have been claimed by the opposite party. Even otherwise, there was no condition in the allotment order to pay non construction charges which for the first time were introduced in the year 1988.
Aforesaid proposition came to be considered by the Hon’ble State Commission in case Improvement Trust Barnala Vs. Shashi Kansal 1999 (2) CLT 651. In that case also the plot was allotted to the consumer/complainant in the year 1987. There was no condition to charge extension fee in terms and conditions of the allotment. Govt. had issued instruction in the year 1988 imposing charges from Jan.1988, demand was raised against the complainant/consumer. So, it was held that Trust was not entitled to claim the amount as plot was allotted in the year 1987 prior to issuance of instructions in the year 1988. That order of the Hon’ble State Commission was up held by the Hon’ble National Commission in appeal no.326/1988 decided on 5.9.2005. So, it is apparent that when the plot was allotted to the complainant in the year 1983, there was no condition in the allotment order to charge non construction charges, which for the first time was introduced from Jan. 1988. Hence, in view of the law, enhancement charges can not be claimed legally by opposite party no.1 from the complainant.
Even otherwise, opposite party no.1 had not delivered possession of the plot to the complainant despite his repeated demands, requests and undertakings, consequently he could not have raised the construction as the building plan submitted by him was not passed by opposite party no.2 nor he was permitted by them to raise the construction. In such like situation Hon’ble Punjab State Commission in case Jalandhar Improvement Trust Vs. Jasvir Singh 2006 (1) CLT 329 has set aside the demand of interest, penal interest on the instalments from the complainant raised prior to putting the complainant in possession of the plot.
Hon’ble Supreme Court in case Haryana Urban Development Authority Vs. Shanti Devi 2005 (1) CLT 496 has also held that where the Development Authority was not in a position to deliver the possession, they can not charge interest on delayed payment till they offer possession of the plot. Similarly, opposite party no.1 could not have asked for enhancement charges/non construction charges, when they themselves have not put the complainant in possession of the plot nor sanctioned his plan. Hence, for such reasons, demand so raised is arbitrary, against the rules and regulations, so deserves to beset aside.
On behalf of the opposite party no.1, it was contended that complainant was to raise the construction on the plot within three years from the date of allotment, but failed to do so, so, would be bound to pay extension fee. In support reliance was placed on a case titled as Punjab Urban Development Authority and another Vs. Upjeet Singh Brar, 2007 (2) CLT, 178 (Hon’ble Punjab State Commission). However, facts of the case referred by opposite party no.1 are distinct, so, authority would have no application to the case in hand. In that case, allotment letter contained condition that plot was to be constructed within three years from the date of allotment. Allottee had sought extension from PUDA for raising the construction. It was in such circumstances and in view of the undertaking of the complainant that was held liable to pay the extension fee. No such undertaking was given by the complainant; neither any condition was imposed in the letter of allotment. So, the authority will have no application.
Second authority referred by the complainant is reported 2002 (3) CLT, page 580, titled as Mahesh Kumar Vs. Improvement Trust, Patiala & others (Hon’ble Punjab State Commission) In that case also there was a condition in the allotment letter to raise the construction within three years from the date of allotment of the plot. In the instant case, there was no such condition. So, this authority in our view would be of no help to the case of opposite party no.1.
13. Point No.II: Cost of the plot stand paid and nothing is due from the complainant. Execution of the sale deed was delayed simply because the complainant had failed to pay non construction charges. Claim of such charges, as discussed above, was arbitrary and illegal. Therefore, resistance offered by opposite party no.1 to execute the sale deed on that ground is unmaintainable. Hence, direction deserves to be passed in favour of the complainant and against the opposite party no.1 requiring them to execute the sale deed in favour of the complainant, qua the allotted plot.
14. Point No.III : Such claim was not pressed by the complainant. Even otherwise, refund so sought is time barred before this Fora as development charges, which the complainant deposited in the year 2000 and 2001 could not have been claimed by the complainant by filing this complaint in the year 2006. Even otherwise, opposite party no.1 was entitled to recover development charges from the complainant which he had paid, hence, not entitled for its refund.
15. Point No. IV: Factual history of the case, which we have high lighted in brevity in earlier part of the judgement, clearly reflects that complainant had left no stone unturned, to get sale deed of the plot executed from the opposite party no.1. He repeatedly for such purpose approached the opposite party no.1, made submissions, submitted documents, but nothing was done. Rather, they had been evading his requests on one pretext or the other and consequently to defeat the claim raised untenable demand of non construction fee. Such act of opposite party must have humiliated the complainant and caused him lot of harassment. For such harassment, we feel that complainant actually deserves to be awarded compensation, keeping in view that cost of construction must have enhanced since then. We, therefore, feel that amount of Rs.15,000/- would be just and appropriate award under that head.
16. Relief: In view of above discussions, we allow this complaint and consequently quash the demand of Rs.5,43,540/- raised by the opposite party no.1 against the complainant under head ‘non construction charges’ and require opposite party no.1 to execute the sale deed of the allotted plot in favour of the complainant within 45 days of the receipt of copy of the order and to pay him compensation of Rs.15,000/-(Rs. Fifteen Thousands only) and litigation costs assessed at Rs.2000/-(Rs.Two Thousands only).
