Harpreet Kaur wife of Sh. Mandhir Singh, resident of 22-GF. Raj Guru Nagar, Ferozepur Road, Ludhiana.

(Complainant)

Vs.



Ludhiana Improvement Trust, Ludhiana through Chairman/ Administrator.

(Opposite party)






O R D E R



1. Complainant applied by depositing earnest money of Rs.46,000/- with the opposite party, for a three bed room flat under semi self financing scheme of the opposite party. Consequently was allotted three bed room flat no.22 vide letter dated 28.2.1992 of the opposite party. Cost of the flat mentioned was Rs.4,80,000/- payable in five half yearly instalments. In case of delay in payment of instalments as mentioned, opposite party conveyed charging default interest. Subsequently, opposite party enhanced cost of the flat from Rs.4,80,000/- to Rs.5,70,000/- by demanding vide letter dated 3.2.1994 a sum of Rs.90,000/-.


Complainant paid total price of Rs.5,70,000/- in instalments. Complainant in order to arrange finance wanted to enter into tripartite agreement with LIC. For such purpose wrote letter dated 31.5.1994 to the opposite party for consent and issuance of NOC to enter into tripartite agreement to raise loan. Opposite party vide their reply to the letter of the complainant dated 15.6.1994 consented for execution of tripartite agreement disclosing pending dues of Rs.3,06,000/- only, as addressed by them to LIC.


Then complainant vide his letter dated 17.8.1994 intimated to opposite party that LIC offered her loan of Rs.2,50,000/- against her application dated 9.8.1994 and then requested opposite party to receive balance amount of Rs.3,06,000/- and to sign tripartite agreement. Offer was accepted and the opposite party executed tripartite agreement dated 19.8.1994 with the complainant and LIC. Thereafter, sale agreement proposal was accepted by the opposite party vide their order dated 4.10.1994, leading to sale agreement dated 5.10.1994. Sale agreement was executed by the opposite party after receiving full and final consideration of Rs.5,70,000/-. Thereafter, complainant was put in physical and actual possession of the flat. Complainant vide letter dated 16.7.2008 applied for No Dues Certificate, in response opposite party demanded Rs.9,80,989/- vide their letter dated 30.10.2008 on account of amount due of instalments as well as enhancement.


This action of opposite party demanding Rs.9,80,989/- for issuance of No Dues Certificate is assailed to be null, void, illegal and claimed barred by limitation. Because, complainant claimed that opposite party itself had waived penal interest after giving consent and No Objection Certificate for Rs.3,06,000/-, which was paid on 14.9.1994. Therefore, they are not entitled to raise such a claim. By demanding the amount, opposite party resorted to unfair trade practice. She has prayed for quashing the demand by declaring the same to be illegal with direction to opposite party to issue No Dues Certificate in her favour and to award litigation cost of Rs.25,000/-.

2. Opposite party in reply pleaded that there is no deficiency in service and complainant is estopped by her act and conduct to file the same. However, allotment of flat on application of the complainant is admitted to be correct. But averred that she is bound by terms and conditions of the allotment letter. She contravened terms and conditions of the letter of allotment by not paying the instalments as per payment schedule. Therefore, she is liable to pay the demanded amount along with future interest. In addition, complainant is also liable to pay interest on enhanced amount, which she paid late. Therefore, complainant is liable to pay late payment interest on the said amount.


She never deposited any interest. Therefore, complaint is not maintainable and deserves dismissal. It is denied that sale agreement was executed in favour of the complainant after receiving full and final consideration or that Rs.5,70,000/- paid by the complainant was in full and final sale consideration of the flat. Opposite party never waived interest while giving consent and executing the tripartite agreement. They are entitled to receive interest on the late payment of instalments under the terms and conditions of the allotment letter. Demand is justified and legal, so, the complaint deserves dismissal.

3. Parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

4. We have heard the arguments addressed by the ld. counsel for the parties and have gone through the file, scanned the documents and other material on the record.

5. Admittedly, complainant was allotted flat by opposite party vide allotment letter Ex.C.1 dated 28.2.1992. Cost of the flat mentioned was Rs.4,80,000/-. Complainant had paid earnest money of Rs.46,000/- while applying for the flat. Balance sale consideration was payable as under:



(1) Rs.74,000/- within 30 days of issuance of allotment letter.

(2) 1st instalment Rs.72,000/- on 27.9.1992.



(3) 2nd instalment Rs.72,000/- on 27.3.1993.



(4) 3rd instalment Rs.72,000/- on 27.9.1993.



(5) 4th instalment Rs.72,000/- on 27.3.1994.



(6) 5th instalment Rs.72,000/- on 27.9.1994.



6. Clause 6 of the allotment letter Ex.C.1 provided for payment of interest in case of default in payment of instalments as aforesaid. For the first month default interest chargeable was 18.6% per annum; for two months default interest chargeable @20% per annum; for three months default interest chargeable @30% per annum, and for fourth month of default interest chargeable is 36% per annum.

7. It is not in dispute that the instalments as referred in allotment letter Ex.C.1 were not paid by the complainant well within time and consequently under this condition no.6 of the allotment letter, empowering opposite party to charge interest due to default in payment of instalments who claimed that a sum of Rs.9,80,989/- by way of interest +interest on enhanced cost of the flat is due from the complainant. Unless and until same is paid, No Dues Certificate can not be issued in her favour. For the sake of brevity, we may at this stage say that against initial price of the flat of Rs.4,80,000/- as communicated to the complainant under allotment letter Ex.C.1, which was enhanced to Rs.5,70,000/- vide communication Ex.C.2 dated 3.2.1994 of the opposite party, complainant was conveyed to pay Rs.5,70,000/- in place of Rs.4,80,000/- and interest on this amount of Rs.90,000/- is also claimed by opposite party due to late payment.

8. It is not denied or disputed that entire amount of Rs.5,70,000/- as demanded by opposite party being price of the allotted flat has been paid by the complainant. But according to the opposite party, payment was received late, so are entitled for interest, which has been demanded by them under the impugned letter, assailed by the complainant in this complaint.

9. In aforesaid scenario, it was contended by Sh. M.S. Sethi Advocate, ld. counsel for the complainant that demand of opposite party is not only unjustified but arbitrary and illegal as well. Because complainant in order to raise loan from LIC, requested opposite party to enter into tripartite agreement and sought No Dues Certificate as well as amount due to them. In response, opposite party conveyed amount of Rs.3,06,000/- as due, which she deposited and thereafter tripartite agreement between complainant, opposite party and LIC was entered, leading to sale agreement between complainant and opposite party and putting her in possession of the flat. Such conduct of the opposite party clearly spells that interest on delayed payment was waived by them and now they are estopped from claiming interest on delayed payment amounting to Rs.9,80,989/-.

10. Whereas, Sh. S.S. Grewal, ld. counsel for the opposite party pointed that no waiver of interest was ever given to the complainant and she would be bound under terms and conditions of the agreement contained in allotment letter Ex.C.1 to pay interest on the delayed payment. No communication was addressed to the complainant qua amount due and only for loan purpose opposite party communicated to LIC that only Rs.3,06,000/- was due qua the flat. Such communication was never sent to the complainant, therefore, it will not amount to waiving of interest on delayed payment by the complainant.

11. We have considered rival contentions of the parties and gone through the record.

12. Complainant vide letter Ex.C.10 dated 31.5.1994 conveyed to opposite party that wanted to enter into tripartite agreement with the opposite party and for raising loan qua flat from LIC and for such purpose LIC need consent and NOC from the opposite party. Request was made to issue consent and NOC so that may apply for loan and deposit it with opposite party at the earliest.

13. We have nothing on the record whether opposite party sent reply to the communication Ex.C.10 of the complainant. But there is letter Ex.C.11 dated 15.6.1994 from opposite party addressed to LIC. Under that letter Ex.C.11, opposite party conveyed to LIC that they are ready to executed tripartite agreement and that a sum of Rs.3,06,000/- only is pending against the flat of the complainant. They conveyed permission to mortgage above flat as per tripartite agreement.

14. Complainant then sent communication Ex.C.12 dated 17.8.1994 to the opposite party conveying them that LIC has sanctioned loan of Rs.2,50,000/- against her flat and that out of Rs.3,06,000/- she herself has arranged Rs.56,000/- and requested them to receive the balance payment of the flat and execute tripartite agreement. Thereupon, complainant, opposite party and LIC executed tripartite agreement on 12.8.1994, copy of which is Ex.C.3. Opposite party then for execution of agreement of sale issued and filled format Ex.C.13 dated 5.10.1994. In column no.8 of the format, it was mentioned that nothing qua price was due regarding flat of the complainant. This sale agreement, copy of which is Ex.C.4, was executed regarding this flat between complainant and opposite party on 4.10.1994. Complainant had deposited Rs.3,06,000/- with the opposite party on 14.9.1994 vide receipt Ex.C.9. It was the same amount which the opposite party vide their communication Ex.C.11 had conveyed to LIC , as due against flat of the complainant.

15. Subsequently, when the complainant applied for No Dues Certificate, opposite party vide letter dated 30.10.2008 Ex.C.14 claimed a sum of Rs.9,80,989/- due from the complainant and required her to pay the same before No Dues Certificate is issued in her favour. It is this letter, which is assailed before us.

16. sequence of events as discusses shows that way back in May,1994, complainant sought consent of the opposite party and NOC from them to enter into tripartite agreement with LIC for raising loan against the flat. It was in response that vide letter dated 15.6.1994 Ex.C.11 opposite party conveyed to LIC that only Rs.3,06,000/- was due against the flat and gave permission to mortgage the same. This very amount of Rs.3,06,000/- was paid by the complainant under receipt Ex.C.9 with the opposite party. Thereafter, sale agreement was executed by the opposite party in favour of the complainant and put her in possession of the allotted flat.


In these circumstances, it is apparent that had opposite party applied and insisted to implement clause no.6 of the allotment letter Ex.C1 pertaining to payment of interest in case of delayed payment of instalments, then the amount claimed as due to the tune of Rs.3,06,000/- could have increased substantially as opposite party could have calculated interest as per allotment letter on account of delayed payment of instalments by the complainant. But they did not calculate and include that amount of interest, while conveying due amount to LIC for purpose of mortgaging the flat and execution of tripartite agreement. This means, they themselves waived of interest. Now by their conduct would be estopped from claiming interest on delayed payment from the complainant.

17. For coming to such conclusion, we would prefer to refer two decisions of the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh. In case Jalandhar Improvement Trust Vs. Jasbir Singh, reported in 2006 (1) CLT 329, appellant/ Trust had required complainant/respondent to take possession of the allotted plot in the year 2002. Subsequently, the Trust raised demand for interest, penal interest on the instalments which had fallen due prior to asking the complainant to take possession of the plot. Demand was held unjustified. Hon’ble State Commission consequently held that no payment of interest, penal interest is levi able on the instalments which had fallen due prior to date of admission.

18. In another authority titled as Punjab State Electricity Board Vs. Shingara Singh reported in 2004 (1) CPC, 659 (Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh), demand notice for tubewell connection was issued to the complainant/respondent. Subsequently connection was refused on certain circulars. So, it was concluded that once demand notice was issued, it may be presumed that appellant/opposite party had waived condition laid down in the circular. Hence, demand notice can not be taken back.

19. Similarly, in the instant case, opposite party had showed a sum of Rs.3,06,000/- due from the complainant which she paid. Now they can not change and shift their stand to claim that complainant was liable to pay interest on delayed payment of instalments. Hence, the amount demanded under the impugned letter is legally not payable by her.

20. In view of the aforesaid discussions, we are clear in our view that stand of the opposite party is wholly unjustified, untenable in circumstances of the case. Now they can not be permitted to shift their stand. Therefore, the demand of Rs. 9,80,989/ raised by the opposite party under Ex.C.14 is arbitrary and illegal. Therefore, same is set aside, as a result opposite party directed to issue No Dues Certificate qua this flat in favour of the complainant within 30 days of the receipt of copy of the order. In peculiar circumstances of the case, we pass no order as to compensation. But order opposite party to pay litigation cost of Rs.2000/- to the complainant. Compliance of the order be made within 45 days of receipt of copy of the order, which be made available to the parties free of costs. File be completed and consigned to record.

Jagan Nath Radhey Shyam (HUF) through Shri Radhey Shyam, Karta, 16-A, Udham Singh Nagar, Ludhiana.

(Complainant)

Vs.



Administrator, Ludhiana Improvement Trust, Ludhiana.

(Opposite party)









O R D E R


1. Plot no.16-A, Udham Singh Nagar, Ludhiana, was purchased from original allottees Sh. Kailash Chand and Rajinder Kumar by the complainant on 19.9.1969. This they did after paying transfer fee of Rs.20/- vide receipt dated 19./9.1969 to opposite party, who vide letter no.3902 dated 8.10.1969 confirmed ownership rights of the complainant over the said plot. The plot was transferred in the name of the complainant along with security of Rs.500/-.

2. Case of the complainant in this complaint is that he constructed the plot in the year 1991 and also obtained electric and water connection. Thereafter applied for No Objection/No Due Certificate in October, 2007. But in reply, opposite party vide letter no. 9610 dated 13.12.2007 intimated of excess coverage, requiring the same to be demolished, but made no reference of non construction charges. Then on 17.12.2007, met Executive Officer of opposite party and sent letter dated 2.1.2008 requesting for No Objection/No Dues Certificate assuring that extra coverage would be compounded from Ludhiana Municipal Corporation. Opposite party then vide letter no.5213 dated 14.8.2008 required him to pay Rs.780/- towards cost of the plot and Rs.4,36,532/- as non construction charges upto Feb.1991. Complainant replied the letter, enclosing therewith circulars dated 4.4.1995 and 8.4.1997 of the Punjab Government pertaining to charges of non construction fee and extension of time limit thereof.


He requested opposite party to levy non construction fee in accordance to the circulars w.e.f. 1988. But no action thereon was taken by the opposite party nor sent any reply. Such act of opposite party is claimed amounting to deficiency in service. Hence, this complaint under section 12 of the Consumer Protection Act, 1986, wherein complainant prayed for direction to the opposite party to issue No Objection/No Dues Certificate after accepting the non construction fee in conformity with circular dated 8.4.1997; to prepare conveyance deed of the plot at the value of Rs.17,920/- and to pay him compensation for delaying the matter.

3. Opposite party in reply claimed that there is no deficiency in service on their part. It is admitted that plot was purchased by the complainant and got transferred in his name with their permission. But denied that he had constructed the plot in the year 1991. Construction so raised was not in conformity with sanctioned plan and sale agreement. Complainant failed to submit the completion plan. Without submission thereof, sale deed can not be executed in favour of the complainant. Complainant never applied for No Objection/No Dues Certificate. Non construction charges are chargeable under resolution 265 dated 11.7.1984 of the OP-Trust. Such charges have been claimed as per rules and circulars. No Dues Certificate can be issued after clearing all the dues. Also claimed that complaint is beyond limitation.

4. In order to prove their respective versions, both the parties led their evidence by way of affidavits and documents.

5. We have heard the arguments addressed by the ld. counsel for the parties, gone through the file, scanned the documents and other material on record.

6. It is admitted that complainant with approval/consent of opposite party purchased plot in question from previous allottees Sh. Kailash Chand and Rajinder Kumar. However, in support of such plea complainant has simply filed his own affidavit Ex.CW1/A and no other document. Agreement (Ex.R.1) for sale qua this plot no.16-A shows that initially it was allotted by the opposite party to Sh. Balwant Rai son of Sh. Bogha Mal. But complainant claimed having purchased the same from Sh. Kailash Chand and Rajinder Kumar in the year 1969. So, we have to take that Sh. Balwant Rai might have sold this plot to Sh. Kailash Chand and Rajinder Kumar from whom complainant purchased the same. If it is so, then complainant would also be bound by the terms and conditions of the sale agreement Ex.R1 dated 29.1.1965.

7. Condition no.7 of the sale agreement make it incumbent upon the allotee to construct the building on the allotted plot in compliance with the provisions of the agreement, rules, laws and regulations governing the construction over the plot. There is an admission of the complainant in para 7 of the complaint that when took up matter with the opposite party, they intimated covering excess area, which should be demolished. He then informed the opposite party that extra coverage would be compounded with Municipal Corporation, Ludhiana. It means that the construction was not made by him in conformity with sanctioned plan of the house. Resultantly intimated to opposite party to compound the same with the Municipal Corporation, Ludhiana.

8. Therefore, it means he would be entitled for completion certificate from the Municipal Corporation, Ludhiana after he compounds as per terms and conditions of the Municipal Corporation regarding excess coverage then sanctioned, under house construction plan. Until he make available to opposite party completion plan, won’t entitle himself for registration of the plot in his name.

9. The next issue raised by the complainant is pertaining to issuance of No Objection /No Dues Certificate after accepting the amount in accordance with circular dated 8.4.1997. Issuance of such circular dated 8.4.1997 as alleged by the complainant in para 10 of the complaint has not been disputed or denied by the opposite party. So, we take that under such circular dated 8.4.1997, opposite party was empowered to charge non construction charges w.e.f. 1.1.1998. Complainant had constructed the building in the year 1991 when obtained the electric and water connection. It means that he is liable under that circular dated 8.4.1997 to pay non construction fee w.e.f. 1.1.1988 till construction of the house in the year 1991, maximum for three years.

10. Therefore, we direct the opposite party after realising non construction fee from the complainant in conformity with circular dated 8.4.1997 to issue No Objection/No Dues certificate to him. In circumstance of the case we feel that complainant is not entitled for any further relief or compensation. Copy of the order, be made available to the parties free of costs. File be completed and consigned to record.

Sham Singh s/o Sh. Dyal Singh s/o late Sh. Chanda Singh, r/o B-I-803, Bindraban Road, Prem Nagar, Civil Lines, Ludhiana.



…..Complainant.

Versus



Ludhiana Improvement Trust, Ludhiana, Feroze Gandhi Market, Ludhiana, through its Chairman/Executive Officer.



…..Opposite party.








O R D E R







1- Sh. Dyal Singh late father of the complainant, who had expired on 27.9.1982, was allotted a plot measuring 500 sq.yds., under local displaced person, by opposite party, vide their letter no.10332 dated 11.3.1983, in 256 Acre Scheme, known as “Rishi Balmik Nagar, Rajpura Road, Ludhiana”. As complainant remained busy in avocation of his agriculture/farming at village Birmi, where he used to live, so could not know qua allotment of plot in favour of his father, who was bed-ridden since 1975, due to paralytic stroke. Neither his father had ever informed him qua allotment of the plot. Nor he was intimated by anybody regarding such allotment of plot in favour of his father, as he had filed criminal complaint u/s 420, 467,468, 120-B IPC against ex-chairman and other officers of the Ludhiana Improvement Trust. However, in January, 2006, complainant through a property dealer, who contacted him, came to know qua allotment of plot to his father.


Then immediately, moved application to the opposite party, to deliver him vacant possession of plot no.48-D of 500 sq.yds. and visited time and again opposite party, for the purposes, but all in vain. On 10.2.2009, opposite party was approached for the purpose, but without any satisfactory response. Such act on part of opposite party, claimed amounting to deficiency in service. Hence, this complaint u/s 12 of the Consumer Protection Act, 1986, to direct opposite party, to put him in vacant possession of plot no.48-D, measuring 500 sq.yds. in 256 Acre Scheme, known as Rishi Balmik Nagar, Ludhiana, @ Rs.98/- per sq.yd. at which, it was allotted or in the alternative, to allot him any other plot of the same size at the same rate in the same scheme, with compensation of Rs.50,000/- and litigation costs of Rs.25,000/-.

2- Opposite party took defence that claim is barred by limitation, there is no deficiency of service, complainant is not a consumer under them and consequently, complaint deserves dismissal. Complainant has not produced legal heir certificate of his father, nor disclosed details of all legal heirs of Sh. Dyal Singh. However, it is admitted that father of the complainant, Sh. Dyal Singh was allotted, vide allotment letter dated 11.3.1983, plot of 500 sq.yds. in 256 Acre Scheme. Further conceded that Sh. Dyal Singh had expired on 27.9.1982.


Rest of the allegations of the complainant that he remained busy in his agriculture pursuit, are denied. Also denied that he has been living in village Birmi and could not know about allotment of the plot. For want of knowledge, denied that father of the complainant was bed-ridden and he never informed the complainant about the allotment. In fact, allotment letter and notices dated 10.12.1984, 4.4.1985, 29.7.1985 were sent under registered post qua allotment of plot. But no reply was sent to the said letters and notices. Hence, there is no fault on part of the opposite party. Complainant remained silent for 26 years and never cared for the same and as such, is now estopped by his act and conduct, to file this complaint.


Allotment of plot stands automatically cancelled. Because the allottee or his representative never complied with the allotment letter and notices issued. Consequently, denied that complainant came to know about such allotment in January, 2006 through a property dealer. Further pleaded that said plot no.48-D is not now available at the spot with the opposite party, so they are not in a position to give possession of the plot. They have prayed for dismissal of the complaint.

3- In order to prove their respective claims, both parties led evidence in the shape of affidavits and documents.

4- We have heard both the ld. counsel for the parties and minutely scanned the entire material placed on the file.

5- It is admitted case that Sh. Dyal Singh father of the complainant, was allotted, being a local displaced person, a plot measuring 500 sq.yds., vide letter dated 11.3.1983 of the opposite party, in 256 Acre Scheme, known as Rishi Balmik Nagar, Rajpura Road, Ludhiana. Therefore, we need not venture qua such allotment of plot in favour of his father. Resultantly straight away, we would prefer to come to the points in dispute.

6- Complainant has placed on the record, copy of one registered letter Ex.C1 dated 4.4.1985 issued by opposite party in the name of Sh. Dyal Singh. Vide that letter, the addressee Sh. Dyal Singh was given final opportunity, to deposit outstanding amount within 15 days qua the allotted plot no.48-D in 256 Acre Scheme. But the letter was addressed by opposite party, to father of the complainant, who had already died on 17.10.1982, as recorded in death certificate Ex.C2. Though complainant in para no.1, has stated that his father expired on 27.9.1982, which has been admitted to be correct by opposite party.


Therefore, it appears that either in September, 1982 or October, 1982, father of the complainant, was already dead. Hence, communication Ex.C1 was sent by opposite party to a dead person. Therefore, requiring Sh. Dyal Singh deceased, to pay outstanding dues qua allotted plot, would be of no relevance, as it was addressed to a person, who was dead.

7- Then complainant vide registered notice Ex.C4 dated 23.1.2006, required opposite party, to put him in possession of the plot no. 48-D, allotted in favour of his father. Proceeding of opposite party, copy of which is Ex.C6, goes to show that opposite party had not cancelled allotment of plot, due to non payment of requisite amount by late Sh. Dyal Singh qua allotted plot, despite issuance of letters and notices and in January, 2006, they considered notice of complainant, for putting him into possession of the plot in question, but they kept the matter pending for consideration. This means right of the complainant, to obtain possession of the allotted plot, was not doubted or controverted by opposite party at any stage. Rather, they considered the same.


But deferred taking final decision thereon. Whereas, opposite party in support of the defence, have relied on affidavit Ex.RW1/A of Sh. A.K. Juneja, its chairman. Alongwith, is filed copy of letter dated 29.8.1985 Ex.R1, letter Ex.R2 ((also tendered by the complainant as Ex.C1) and also another letter Ex.R3 dated 10.12.1984. Under these communications, Sh. Dyal Singh was required to deposit allotment amount. But all these communications Ex.R1 to Ex.R3 were sent by opposite party in the name of Sh. Dyal Singh, after his death. No communication to his LRs was issued.

8- In these circumstances of the case, we have no hesitation to believe affidavit Ex.CA of the complainant that qua allotment of the plot in question in favour of his father Sh. Dyal Singh, came to know for the first time in January, 2006, from a property dealer and earlier, had no knowledge about such allotment.

9- It is argued on behalf of opposite party that allotment of the plot vide letter dated 11.3.1984, is void. As per case of complainant, his father had died on 27.9.1982. Therefore, allotment in favour of a dead person, is a nullity. This letter of allotment probably was issued in ignorance of death of father of the complainant by the opposite party. But right of the person to whom, plot was allotted or his legal representatives, qua such plot would not be snatched on account of the death.


Complainant claimed himself legal heir of Sh. Dyal Singh. Though no legal heir certificate is appended alongwith the complaint, except Ex.C3 copy of jamabandi for the year 1984-85 of village Noor Bhaini. Column no.12 of the jamabandi shows that mutation of inheritance of Sh. Dyal Singh was sanctioned in favour of Sh.Sham Singh, being son. Therefore, prima facie appears that Sh. Sham Singh is legal heir of Sh. Dyal Singh.

10- Though allotment was made in ignorance by opposite party, in favour of Sh. Dyal Singh, who was dead. Whereas, should have been in favour of his legal representative(s). Right of legal representative of Sh. Dyal Singh, can not be affected by his death. Because the right to inherit property was inheritable.

11- Complainant being son of the original allottee, consequently, would be deemed to have succeeded to the plot, alongwith other legal heirs, if any. Though, we have no proof on the record that in addition to the complainant, there is also any other legal heir of late Sh. Dyal Singh. From the date of knowledge qua allotment, this complaint is within limitation. As title of the allotted plot stands vested in the complainant, so would be entitled to have its possession, subject to payment of dues, if any, payable qua the cost of the plot to the opposite party.

12- Sequel to the discussions, we allow this complaint and as a result, direct opposite party, to put complainant in possession of plotno.48-D, measuring 500 sq.yds. @ Rs.98/-per sq.yd. in 256 Acre Scheme, known as Rishi Balmik Nagar, Rajpura Road, Ludhiana, and in case, they are unable to deliver physical possession of the allotted plot to the complainant, for any reasons beyond their control, then to put him in possession of another plot of 500 sq.yds. in the same 256 Acre Scheme, at the same rate of Rs.98/- per sq. Complainant shall be liable to pay balance price of allotted plot to the opposite party and he shall be deemed to have been put in possession of the allotted plot on behalf of entire body of legal heirs of late Sh. Dyal Singh, if there is or are any such legal heir or heirs. Opposite party to comply with the order, within 45 days of receipt of copy of order. In peculiar circumstances of the case, we pass no order as to cost or compensation. Copy of order be provided to the parties free of charge. File be completed and consigned to record room.

Santosh Shori w/o Sh. Ghanshyam Dass Shori now r/o H.No.712, Sector 11-B, Chandigarh.



…..Complainant.

Versus



1- Improvement Trust, Ludhiana through its Administrator/Chairman.

2- Department of Local Government, Punjab through its Principal Secretary, SCO No.131-132, Juneja Building, Sector 17-C, Chandigarh.

3- The Adarsh Colony Co-op. House Building Society, Ludhiana 570/1, National Road, near Bhaiwala Chowk, Ludhiana through its Authorized Signatory.



…..Opposite parties.









O R D E R







1- Complainant alongwith others became member of Adarsh Colony Co-op. Housing Building Society, Ludhiana (opposite party no.3), in the year 1968. The Society opposite party no.3 purchased 39 acres of land in village Sunet, which is

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now part of Bhai Randhir Singh Nagar, a residential colony, developed by Improvement Trust, Ludhiana (opposite party no.1). Land of the Society opposite party no.3 was acquired by opposite party no.1 under its development scheme known as “Bhai Randhir Singh Nagar”. But the State of Punjab while sanctioning the scheme of Bhai Randhir Singh Nagar, exempted land of the Society opposite party no.3 from acquisition, vide notification dated 9.2.1977. So, 39 acres land became surplus with opposite party no.1. This land vide notification of the Govt., was to be allotted as plots to the members of the Society. The Society opposite party no.3 filed CWP no.2659 of 1981 in the Hon’ble Punjab & Haryana High Court and fearing adverse verdict, opposite party no.1 allotted 281 plots of various sizes to the Society through different allotment letters at different rates. Hence, Society withdrew the writ petition. Vide allotment letter dated 31.1.1983, 90 plots including plot no. 104-D, BRS Nagar, Ludhiana, measuring 250 sq.yds. were allotted @ Rs.50/- per sq.yd. to Rs.66/- per sq.yd. to opposite party no.3 Society.


Opposite party no.3 Society allotted plot no.104-D to the complainant. Cost of the plot and other plots, was paid by the allottees including the complainant to opposite party no.1 through Society opposite party no.3. Consequently, complainant became full owner of the allotted plot and entitled to get sale deed executed in her favour. Allotment of plots came to be challenged in various courts and then fresh allotments were made on 9.5.1993. Due to such reason, opposite party no.1 could not deliver possession of the allotted plot, nor execute sale deeds. After settlement of dispute and fresh allotment on 9.5.1993,

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opposite party no.1 started executing sale deeds and handing over possession of the plots to the allottees. Thereafter, complainant approached opposite party no.1, made many representations for executing sale deed, which they evaded. Then on 18.10.1993, applied to opposite party no.1 for sanction of her building plan and submitted site plan alongwith necessary documents, paid building application fee of Rs.600/- vide receipt dated 18.10.1993.


Opposite party then directed complainant to get her building plan sanctioned from Municipal Corporation, Ludhiana, as area of BRS Nagar had already been transferred to the Municipal Corporation. Resultantly, complainant approached Municipal Corporation, Ludhiana, for sanction of building plan, who forwarded the same to opposite party no.1, vide letter dated 5.10.1994. It was clearly mentioned that if no objections regarding the sanctioning of the building plan, received within 10 days, then it will be presumed that opposite party no.1 had no objection in sanctioning the building plan. But no objections were filed by opposite party no.1, then Municipal Corporation on 17.1.1995, sanctioned her building plan.


After getting the plan sanctioned from Municipal Corporation, Ludhiana, complainant obtained water supply, sewerage, electric connections and constructed the building on the allotted plot. While construction was in progress, Municipal Corporation raised some objections by issuing show-cause notice dated 22.9.1994 to the complainant and complainant by submitting application, compounded the case, by paying composition fee of Rs.14,777/- on 8.1.1995. Despite all these things, opposite party no.1 failed to execute sale deed of this plot in her favour despite repeated visits and demands.

-4-

Instead opposite party no.1 vide memo dated 18.1.2005, required complainant to deposit Rs.1,17,013/- as non construction fine, Rs.48,020/- as development charges, Rs.200/- as LR charges and Rs.16,275/- as enhancement, total Rs.1,81,508/-. Complainant then approached oposite party no.1, intimating that house has been constructed within 3 years, the permitted period and so, not liable to pay any charges. Subsequently, opposite party no.1 vide memo dated 7.4.2005, reduced non construction fine from Rs.1,17,013/- to Rs.59,690/- and increased demand of enhancement from Rs.16,275/- to Rs.16,485/- and also increased demand of development charges from Rs.48,020/- to Rs.50,125/-. But no reasons of increase and decrease were mentioned in the communication. Hence, complainant sought separate details year-wise from opposite party no.1. But instead of giving intimation, opposite party no.1 sent letter dated 19.2.2008, increasing non construction fine from Rs.59,690/- to Rs.3,16,100/-, amount of enhancement was increased from Rs.16,485/- to Rs.18,270/- and also raised demand of arrears of Rs.55,815/- for the first time qua the plot allotted in 1983.


Subsequently, opposite party no.1 dropped demand of development charges of Rs.50,125/-. In these circumstances, complainant claiming deficiency in service on part of opposite party no.1, instituted this complaint u/s 12 of the Consumer Protection Act, 1986, to direct opposite party to execute sale deed of her plot, allotted to her in 1983 and demand of non construction fine/charges, arrears, enhancement, being illegal, unwarranted, arbitrary, be qushed and award him



-5-

compensation of Rs.1 lac for tension, harassment alongwith Rs.15000/- as litigation expenses.

2- Opposite party no.1 in reply, claimed that there is no deficiency in service on their part, complaint is barred by time. Averred that sale deed can not be executed in favour of the complainant, without construction of building over the plot, as per sanctioned plan. Complainant has not raised construction over the plot as per terms and condition of the sale agreement and unless and until, it is done, not entitled for execution of the sale deed. Further claimed that complainant is liable to pay enhancement charges, non construction charges and other dues, as per resolution no.100 dated 19.8.1999 passed by the Improvement Trust. The Adarsh Co-op. House Building Society is a defaulter and the Society has given indemnity bond to opposite party no.1, undertaking to pay non construction charges and enhancement charges of the plot.


Therefore, complainant being allottee of the Society, is liable to pay the same. Complainant is not a consumer under them. In such scenario, they have not denied that land of Society opposite party no.3, was exempted by State of Punjab and that Punjab Govt. had directed to allot 16 acres in the shape of plots to the Society. The Trust opposite party no.1 then allotted plots to the Society, vide allotment letter dated 31.1.1983 and the plot of the complainant is also part of that allotment letter. They have prayed dismissal of the complaint.

3- Opposite party no.2 did not appear despite service and as such, is being proceeded exparte. Opposite party no.3 initially appeared through counsel, but

-6-

subsequently, they failed to file written reply or appear in the Fora, and as such, were being proceeded exparte.

4- Complainant and opposite party no.1 adduced evidence in suport of their claims and stood heard through their respective counsels.

5- After hearing the parties, it appears that dispute between the parties, is on three points namely:-

(I) Non Construction Fine.

(II) Enhancement Charges qua the land.

(III) Cost of the land.



POINT NO.(I) NON CONSTRUCTION FINE.



6- 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 in the year 1988. 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



-7-

opposed by the ld. counsel for opposite party no.1 and submitted that they legitimately and legally can claim non construction charges.

7- We may state that State Government of Punjab, vide communication Ex.C2 dated 9.2.1977 had exempted under section 56 of Punjab Town Improvement Act, 1922, land of the Society opposite party no.3, from 550 Acre Extension Scheme of Improvement Trust, Ludhiana on certain conditions. Subsequently, vide communication Ex. C32 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 opposite parties no.3, 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.

8- 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

-8-

Commission was upheld 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, non construction charges can not be claimed legally by opposite party no.1 from the complainant.



POINT NO.(II) ENHANCEMENT CHARGES QUA THE LAND

& POINT NO.(III) COST OF LAND:-

9- Answer to these disputes can be obtained from resolution of opposite party no.1, copy of which is Ex.R5. As per resolution, cost of 90 plots was Rs.11,87,350/- and against it, opposite party no.3 Society had paid Rs.12,51,431.80 to opposite party no.1. Total cost of 90 plots was payable as under-

Date of Payment Payable Amount (Rs.)

28.2.1983 2,96,838/-

28.8.1983 1,71,741.60

28.2.1984 1,65,380.80

28.8.1984 1,59,020/-

28.2.1985 1,52,659/-

28.8.1985 1,40,208.40

28.2.1986 1,39,937.60

28.8.1980 1,33,576.80



As per this resolution, Society had deposited entire costs of 90 plots as under:-

-9-

Date of Payment Payable Amount (Rs.)

9.2.1983 2,96,838/-

12.10.1983 1,71,741.60

19.5.1984 1,65,380.80

22.9.1986 5,72,471.40

9.2.1983 45,000/-

Total Rs.12,51,431.80



10- Thus, it is apparent from resolution that against total cost of the land of 90 plots, amounting to Rs.11,87,350/-, the Society had paid Rs.12,51,431.80. No doubt, installments of cost were not paid as per stipulated dates referred in the resolution. Probably, it appears that it was for such reason that extra cost amount was deposited by the Society, may be on account of delayed payment. Therefore, whatever was due from Society to complainant regarding cost of land, the same was paid by the Society.

11- Complainant qua her allotted plot, paid cost vide receipt Ex.C33 dated 18.6.1984 of Rs.8125/-, Ex.C34 dated 6.10.1986 for Rs.10,000/-, Ex.C35 dated 23.8.1983 for Rs.2250 + Rs.250=2500/- and Ex.C37 dated 19.4.1993 for Rs.25,000/-. Therefore, it appears that complainant has already paid cost of her plot. Consequently, there would have arisen no question of remaining cost of land or enhancement cost qua land from the complainant. However, ld. counsel for the opposite party from Ex.R5 resolution, pointed that cost of land is still payable by the Society. But that may

-10-

be payable qua other plots and not 90 plots out of which, one plot was allotted by opposite party no.3 Society to the complainant. This resolution in addition to 90 plots, also pertained to 13, 49 other plots of the Society. Therefore, if anything is due qua cost of the land, such has nothing to do with 90 plots out of which, one stands allotted to the complainant.

12- In such scenario, it was contended by ld. counsel for opposite party that under Clause-7 of agreement Ex.R1, unless and until complainant procures and produces completion certificate of the building on the allotted plot, sale deed can not be executed in her favour. But we are hardly convinced by this contention of opposite party no.1. Because it is not in dispute that complainant had submitted building plan for sanction to opposite party no.1-Trust, who sent it to Municipal Corporation, Ludhiana, for the reason that land of Bhai Randhir Singh Nagar, came within jurisdiction of the corporation.


The corporation then issued letter to opposite party no.1, intimating them to file objections qua sanction of building plan, within 10 days failing which, conveyed that it shall be deemed that they have no objection to sanction the plan. Thereafter, Municipal Corporation sanctioned plan of the complainant, who then raised construction. But Municipal Corporation objected to the construction and the same was compounded by the complainant, by paying composition fee accordingly. Now at this stage, after so many years of construction of the building, it would be exercise in futility, to desire and express, requiring complainant to procure completion plan, to enable Ludhiana Improvement Trust, to execute sale deed of the

-11-

building in her favour. Rather, this stipulation no.7 of the agreement Ex.R1 appears to be out of context. Because sale deed was to be executed on allotment of plot and receipt of full price, which has already been paid by the complainant. Completion of the building and submission of completion plan, has nothing to do with registration of the plot. It would be too late in the day to expect and direct complainant for getting sale deed executed, to obtain such completion plan. Because it will further delay the matter which is hanging afire since many years. For us, there appears no nexus between procuring completion plan and issuance of direction to opposite party no.1, to execute the sale deed. Title in the allotted plot stands vested in the complainant and this deed should have been registered long back by the opposite party. But by not doing so, certainly they would be guilty of harassing its own consumer.

13- Sequel to the discussions, the non construction fee of Rs.3,16,100/- demanded by opposite party no.1 from the complainant, being illegal, arbitrary, unjustified and against rules and regulations, is set aside. Opposite party restrained from enforcing such demand against the complainant. Further ordered that complainant is not liable to pay any enhancement charges qua land or cost of land to opposite party no.1, because she has already paid the same. So, demand raised under such head, being illegal, unlawful, is set aside and opposite party prohibited from enforcing the same. Opposite party directed to execute sale deed of the allotted plot in favour of the complainant within 45 days of receipt of copy of order and to pay compensation of Rs.15,000/- and litigation costs assessed at Rs.2000/-.

Harpreet Kaur wife of Sh. Mandhir Singh, resident of 22-GF. Raj Guru Nagar, Ferozepur Road, Ludhiana.

(Complainant)

Vs.



Ludhiana Improvement Trust, Ludhiana through Chairman/ Administrator.

(Opposite party)







O R D E R



1. Complainant applied by depositing earnest money of Rs.46,000/- with the opposite party, for a three bed room flat under semi self financing scheme of the opposite party. Consequently was allotted three bed room flat no.22 vide letter dated 28.2.1992 of the opposite party. Cost of the flat mentioned was Rs.4,80,000/- payable in five half yearly instalments. In case of delay in payment of instalments as mentioned, opposite party conveyed charging default interest. Subsequently, opposite party enhanced cost of the flat from Rs.4,80,000/- to Rs.5,70,000/- by demanding vide letter dated 3.2.1994 a sum of Rs.90,000/-. Complainant paid total price of Rs.5,70,000/- in instalments.


Complainant in order to arrange finance wanted to enter into tripartite agreement with LIC. For such purpose wrote letter dated 31.5.1994 to the opposite party for consent and issuance of NOC to enter into tripartite agreement to raise loan. Opposite party vide their reply to the letter of the complainant dated 15.6.1994 consented for execution of tripartite agreement disclosing pending dues of Rs.3,06,000/- only, as addressed by them to LIC. Then complainant vide his letter dated 17.8.1994 intimated to opposite party that LIC offered her loan of Rs.2,50,000/- against her application dated 9.8.1994 and then requested opposite party to receive balance amount of Rs.3,06,000/- and to sign tripartite agreement.


Offer was accepted and the opposite party executed tripartite agreement dated 19.8.1994 with the complainant and LIC. Thereafter, sale agreement proposal was accepted by the opposite party vide their order dated 4.10.1994, leading to sale agreement dated 5.10.1994. Sale agreement was executed by the opposite party after receiving full and final consideration of Rs.5,70,000/-. Thereafter, complainant was put in physical and actual possession of the flat. Complainant vide letter dated 16.7.2008 applied for No Dues Certificate, in response opposite party demanded Rs.9,80,989/- vide their letter dated 30.10.2008 on account of amount due of instalments as well as enhancement.


This action of opposite party demanding Rs.9,80,989/- for issuance of No Dues Certificate is assailed to be null, void, illegal and claimed barred by limitation. Because, complainant claimed that opposite party itself had waived penal interest after giving consent and No Objection Certificate for Rs.3,06,000/-, which was paid on 14.9.1994. Therefore, they are not entitled to raise such a claim. By demanding the amount, opposite party resorted to unfair trade practice. She has prayed for quashing the demand by declaring the same to be illegal with direction to opposite party to issue No Dues Certificate in her favour and to award litigation cost of Rs.25,000/-.

2. Opposite party in reply pleaded that there is no deficiency in service and complainant is estopped by her act and conduct to file the same. However, allotment of flat on application of the complainant is admitted to be correct. But averred that she is bound by terms and conditions of the allotment letter. She contravened terms and conditions of the letter of allotment by not paying the instalments as per payment schedule. Therefore, she is liable to pay the demanded amount along with future interest. In addition, complainant is also liable to pay interest on enhanced amount, which she paid late. Therefore, complainant is liable to pay late payment interest on the said amount.


She never deposited any interest. Therefore, complaint is not maintainable and deserves dismissal. It is denied that sale agreement was executed in favour of the complainant after receiving full and final consideration or that Rs.5,70,000/- paid by the complainant was in full and final sale consideration of the flat. Opposite party never waived interest while giving consent and executing the tripartite agreement. They are entitled to receive interest on the late payment of instalments under the terms and conditions of the allotment letter. Demand is justified and legal, so, the complaint deserves dismissal.

3. Parties adduced their evidence by way of affidavits and documents in support of their respective contentions.

4. We have heard the arguments addressed by the ld. counsel for the parties and have gone through the file, scanned the documents and other material on the record.

5. Admittedly, complainant was allotted flat by opposite party vide allotment letter Ex.C.1 dated 28.2.1992. Cost of the flat mentioned was Rs.4,80,000/-. Complainant had paid earnest money of Rs.46,000/- while applying for the flat. Balance sale consideration was payable as under:



(1) Rs.74,000/- within 30 days of issuance of allotment letter.

(2) 1st instalment Rs.72,000/- on 27.9.1992.



(3) 2nd instalment Rs.72,000/- on 27.3.1993.



(4) 3rd instalment Rs.72,000/- on 27.9.1993.



(5) 4th instalment Rs.72,000/- on 27.3.1994.



(6) 5th instalment Rs.72,000/- on 27.9.1994.



6. Clause 6 of the allotment letter Ex.C.1 provided for payment of interest in case of default in payment of instalments as aforesaid. For the first month default interest chargeable was 18.6% per annum; for two months default interest chargeable @20% per annum; for three months default interest chargeable @30% per annum, and for fourth month of default interest chargeable is 36% per annum.

7. It is not in dispute that the instalments as referred in allotment letter Ex.C.1 were not paid by the complainant well within time and consequently under this condition no.6 of the allotment letter, empowering opposite party to charge interest due to default in payment of instalments who claimed that a sum of Rs.9,80,989/- by way of interest +interest on enhanced cost of the flat is due from the complainant. Unless and until same is paid, No Dues Certificate can not be issued in her favour. For the sake of brevity, we may at this stage say that against initial price of the flat of Rs.4,80,000/- as communicated to the complainant under allotment letter Ex.C.1, which was enhanced to Rs.5,70,000/- vide communication Ex.C.2 dated 3.2.1994 of the opposite party, complainant was conveyed to pay Rs.5,70,000/- in place of Rs.4,80,000/- and interest on this amount of Rs.90,000/- is also claimed by opposite party due to late payment.

8. It is not denied or disputed that entire amount of Rs.5,70,000/- as demanded by opposite party being price of the allotted flat has been paid by the complainant. But according to the opposite party, payment was received late, so are entitled for interest, which has been demanded by them under the impugned letter, assailed by the complainant in this complaint.

9. In aforesaid scenario, it was contended by Sh. M.S. Sethi Advocate, ld. counsel for the complainant that demand of opposite party is not only unjustified but arbitrary and illegal as well. Because complainant in order to raise loan from LIC, requested opposite party to enter into tripartite agreement and sought No Dues Certificate as well as amount due to them. In response, opposite party conveyed amount of Rs.3,06,000/- as due, which she deposited and thereafter tripartite agreement between complainant, opposite party and LIC was entered, leading to sale agreement between complainant and opposite party and putting her in possession of the flat. Such conduct of the opposite party clearly spells that interest on delayed payment was waived by them and now they are estopped from claiming interest on delayed payment amounting to Rs.9,80,989/-.

10. Whereas, Sh. S.S. Grewal, ld. counsel for the opposite party pointed that no waiver of interest was ever given to the complainant and she would be bound under terms and conditions of the agreement contained in allotment letter Ex.C.1 to pay interest on the delayed payment. No communication was addressed to the complainant qua amount due and only for loan purpose opposite party communicated to LIC that only Rs.3,06,000/- was due qua the flat. Such communication was never sent to the complainant, therefore, it will not amount to waiving of interest on delayed payment by the complainant.

11. We have considered rival contentions of the parties and gone through the record.

12. Complainant vide letter Ex.C.10 dated 31.5.1994 conveyed to opposite party that wanted to enter into tripartite agreement with the opposite party and for raising loan qua flat from LIC and for such purpose LIC need consent and NOC from the opposite party. Request was made to issue consent and NOC so that may apply for loan and deposit it with opposite party at the earliest.

13. We have nothing on the record whether opposite party sent reply to the communication Ex.C.10 of the complainant. But there is letter Ex.C.11 dated 15.6.1994 from opposite party addressed to LIC. Under that letter Ex.C.11, opposite party conveyed to LIC that they are ready to executed tripartite agreement and that a sum of Rs.3,06,000/- only is pending against the flat of the complainant. They conveyed permission to mortgage above flat as per tripartite agreement.

14. Complainant then sent communication Ex.C.12 dated 17.8.1994 to the opposite party conveying them that LIC has sanctioned loan of Rs.2,50,000/- against her flat and that out of Rs.3,06,000/- she herself has arranged Rs.56,000/- and requested them to receive the balance payment of the flat and execute tripartite agreement. Thereupon, complainant, opposite party and LIC executed tripartite agreement on 12.8.1994, copy of which is Ex.C.3.


Opposite party then for execution of agreement of sale issued and filled format Ex.C.13 dated 5.10.1994. In column no.8 of the format, it was mentioned that nothing qua price was due regarding flat of the complainant. This sale agreement, copy of which is Ex.C.4, was executed regarding this flat between complainant and opposite party on 4.10.1994. Complainant had deposited Rs.3,06,000/- with the opposite party on 14.9.1994 vide receipt Ex.C.9. It was the same amount which the opposite party vide their communication Ex.C.11 had conveyed to LIC , as due against flat of the complainant.

15. Subsequently, when the complainant applied for No Dues Certificate, opposite party vide letter dated 30.10.2008 Ex.C.14 claimed a sum of Rs.9,80,989/- due from the complainant and required her to pay the same before No Dues Certificate is issued in her favour. It is this letter, which is assailed before us.

16. sequence of events as discusses shows that way back in May,1994, complainant sought consent of the opposite party and NOC from them to enter into tripartite agreement with LIC for raising loan against the flat. It was in response that vide letter dated 15.6.1994 Ex.C.11 opposite party conveyed to LIC that only Rs.3,06,000/- was due against the flat and gave permission to mortgage the same. This very amount of Rs.3,06,000/- was paid by the complainant under receipt Ex.C.9 with the opposite party. Thereafter, sale agreement was executed by the opposite party in favour of the complainant and put her in possession of the allotted flat.


In these circumstances, it is apparent that had opposite party applied and insisted to implement clause no.6 of the allotment letter Ex.C1 pertaining to payment of interest in case of delayed payment of instalments, then the amount claimed as due to the tune of Rs.3,06,000/- could have increased substantially as opposite party could have calculated interest as per allotment letter on account of delayed payment of instalments by the complainant. But they did not calculate and include that amount of interest, while conveying due amount to LIC for purpose of mortgaging the flat and execution of tripartite agreement. This means, they themselves waived of interest. Now by their conduct would be estopped from claiming interest on delayed payment from the complainant.

17. For coming to such conclusion, we would prefer to refer two decisions of the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh. In case Jalandhar Improvement Trust Vs. Jasbir Singh, reported in 2006 (1) CLT 329, appellant/ Trust had required complainant/respondent to take possession of the allotted plot in the year 2002. Subsequently, the Trust raised demand for interest, penal interest on the instalments which had fallen due prior to asking the complainant to take possession of the plot. Demand was held unjustified. Hon’ble State Commission consequently held that no payment of interest, penal interest is levi able on the instalments which had fallen due prior to date of admission.

18. In another authority titled as Punjab State Electricity Board Vs. Shingara Singh reported in 2004 (1) CPC, 659 (Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh), demand notice for tubewell connection was issued to the complainant/respondent. Subsequently connection was refused on certain circulars. So, it was concluded that once demand notice was issued, it may be presumed that appellant/opposite party had waived condition laid down in the circular. Hence, demand notice can not be taken back.

19. Similarly, in the instant case, opposite party had showed a sum of Rs.3,06,000/- due from the complainant which she paid. Now they can not change and shift their stand to claim that complainant was liable to pay interest on delayed payment of instalments. Hence, the amount demanded under the impugned letter is legally not payable by her.

Jagan Nath Radhey Shyam (HUF) through Shri Radhey Shyam, Karta, 16-A, Udham Singh Nagar, Ludhiana.

(Complainant)

Vs.



Administrator, Ludhiana Improvement Trust, Ludhiana.

(Opposite party)








O R D E R




1. Plot no.16-A, Udham Singh Nagar, Ludhiana, was purchased from original allottees Sh. Kailash Chand and Rajinder Kumar by the complainant on 19.9.1969. This they did after paying transfer fee of Rs.20/- vide receipt dated 19./9.1969 to opposite party, who vide letter no.3902 dated 8.10.1969 confirmed ownership rights of the complainant over the said plot. The plot was transferred in the name of the complainant along with security of Rs.500/-.

2. Case of the complainant in this complaint is that he constructed the plot in the year 1991 and also obtained electric and water connection. Thereafter applied for No Objection/No Due Certificate in October, 2007. But in reply, opposite party vide letter no. 9610 dated 13.12.2007 intimated of excess coverage, requiring the same to be demolished, but made no reference of non construction charges.


Then on 17.12.2007, met Executive Officer of opposite party and sent letter dated 2.1.2008 requesting for No Objection/No Dues Certificate assuring that extra coverage would be compounded from Ludhiana Municipal Corporation. Opposite party then vide letter no.5213 dated 14.8.2008 required him to pay Rs.780/- towards cost of the plot and Rs.4,36,532/- as non construction charges upto Feb.1991. Complainant replied the letter, enclosing therewith circulars dated 4.4.1995 and 8.4.1997 of the Punjab Government pertaining to charges of non construction fee and extension of time limit thereof. He requested opposite party to levy non construction fee in accordance to the circulars w.e.f. 1988.


But no action thereon was taken by the opposite party nor sent any reply. Such act of opposite party is claimed amounting to deficiency in service. Hence, this complaint under section 12 of the Consumer Protection Act, 1986, wherein complainant prayed for direction to the opposite party to issue No Objection/No Dues Certificate after accepting the non construction fee in conformity with circular dated 8.4.1997; to prepare conveyance deed of the plot at the value of Rs.17,920/- and to pay him compensation for delaying the matter.

3. Opposite party in reply claimed that there is no deficiency in service on their part. It is admitted that plot was purchased by the complainant and got transferred in his name with their permission. But denied that he had constructed the plot in the year 1991. Construction so raised was not in conformity with sanctioned plan and sale agreement. Complainant failed to submit the completion plan. Without submission thereof, sale deed can not be executed in favour of the complainant. Complainant never applied for No Objection/No Dues Certificate. Non construction charges are chargeable under resolution 265 dated 11.7.1984 of the OP-Trust. Such charges have been claimed as per rules and circulars. No Dues Certificate can be issued after clearing all the dues. Also claimed that complaint is beyond limitation.

4. In order to prove their respective versions, both the parties led their evidence by way of affidavits and documents.

5. We have heard the arguments addressed by the ld. counsel for the parties, gone through the file, scanned the documents and other material on record.

6. It is admitted that complainant with approval/consent of opposite party purchased plot in question from previous allottees Sh. Kailash Chand and Rajinder Kumar. However, in support of such plea complainant has simply filed his own affidavit Ex.CW1/A and no other document. Agreement (Ex.R.1) for sale qua this plot no.16-A shows that initially it was allotted by the opposite party to Sh. Balwant Rai son of Sh. Bogha Mal. But complainant claimed having purchased the same from Sh. Kailash Chand and Rajinder Kumar in the year 1969. So, we have to take that Sh. Balwant Rai might have sold this plot to Sh. Kailash Chand and Rajinder Kumar from whom complainant purchased the same. If it is so, then complainant would also be bound by the terms and conditions of the sale agreement Ex.R1 dated 29.1.1965.

7. Condition no.7 of the sale agreement make it incumbent upon the allotee to construct the building on the allotted plot in compliance with the provisions of the agreement, rules, laws and regulations governing the construction over the plot. There is an admission of the complainant in para 7 of the complaint that when took up matter with the opposite party, they intimated covering excess area, which should be demolished. He then informed the opposite party that extra coverage would be compounded with Municipal Corporation, Ludhiana. It means that the construction was not made by him in conformity with sanctioned plan of the house. Resultantly intimated to opposite party to compound the same with the Municipal Corporation, Ludhiana.

8. Therefore, it means he would be entitled for completion certificate from the Municipal Corporation, Ludhiana after he compounds as per terms and conditions of the Municipal Corporation regarding excess coverage then sanctioned, under house construction plan. Until he make available to opposite party completion plan, won’t entitle himself for registration of the plot in his name.

9. The next issue raised by the complainant is pertaining to issuance of No Objection /No Dues Certificate after accepting the amount in accordance with circular dated 8.4.1997. Issuance of such circular dated 8.4.1997 as alleged by the complainant in para 10 of the complaint has not been disputed or denied by the opposite party. So, we take that under such circular dated 8.4.1997, opposite party was empowered to charge non construction charges w.e.f. 1.1.1998.


Complainant had constructed the building in the year 1991 when obtained the electric and water connection. It means that he is liable under that circular dated 8.4.1997 to pay non construction fee w.e.f. 1.1.1988 till construction of the house in the year 1991, maximum for three years.

Sham Singh s/o Sh. Dyal Singh s/o late Sh. Chanda Singh, r/o B-I-803, Bindraban Road, Prem Nagar, Civil Lines, Ludhiana.



…..Complainant.

Versus



Ludhiana Improvement Trust, Ludhiana, Feroze Gandhi Market, Ludhiana, through its Chairman/Executive Officer.



…..Opposite party.









O R D E R









1- Sh. Dyal Singh late father of the complainant, who had expired on 27.9.1982, was allotted a plot measuring 500 sq.yds., under local displaced person, by opposite party, vide their letter no.10332 dated 11.3.1983, in 256 Acre Scheme, known as “Rishi Balmik Nagar, Rajpura Road, Ludhiana”. As complainant remained busy in avocation of his agriculture/farming at village Birmi, where he used to live, so could not know qua allotment of plot in favour of his father, who was bed-ridden since 1975, due to paralytic stroke.


Neither his father had ever informed him qua allotment of the plot. Nor he was intimated by anybody regarding such allotment of plot in favour of his father, as he had filed criminal complaint u/s 420, 467,468, 120-B IPC against ex-chairman and other officers of the Ludhiana Improvement Trust. However, in January, 2006, complainant through a property dealer, who contacted him, came to know qua allotment of plot to his father. Then immediately, moved application to the opposite party, to deliver him vacant possession of plot no.48-D of 500 sq.yds. and visited time and again opposite party, for the purposes, but all in vain. On 10.2.2009, opposite party was approached for the purpose, but without any satisfactory response.


Such act on part of opposite party, claimed amounting to deficiency in service. Hence, this complaint u/s 12 of the Consumer Protection Act, 1986, to direct opposite party, to put him in vacant possession of plot no.48-D, measuring 500 sq.yds. in 256 Acre Scheme, known as Rishi Balmik Nagar, Ludhiana, @ Rs.98/- per sq.yd. at which, it was allotted or in the alternative, to allot him any other plot of the same size at the same rate in the same scheme, with compensation of Rs.50,000/- and litigation costs of Rs.25,000/-.

2- Opposite party took defence that claim is barred by limitation, there is no deficiency of service, complainant is not a consumer under them and consequently, complaint deserves dismissal. Complainant has not produced legal heir certificate of his father, nor disclosed details of all legal heirs of Sh. Dyal Singh. However, it is admitted that father of the complainant, Sh. Dyal Singh was allotted, vide allotment letter dated 11.3.1983, plot of 500 sq.yds. in 256 Acre Scheme. Further conceded that Sh. Dyal Singh had expired on 27.9.1982.


Rest of the allegations of the complainant that he remained busy in his agriculture pursuit, are denied. Also denied that he has been living in village Birmi and could not know about allotment of the plot. For want of knowledge, denied that father of the complainant was bed-ridden and he never informed the complainant about the allotment. In fact, allotment letter and notices dated 10.12.1984, 4.4.1985, 29.7.1985 were sent under registered post qua allotment of plot. But no reply was sent to the said letters and notices. Hence, there is no fault on part of the opposite party.


Complainant remained silent for 26 years and never cared for the same and as such, is now estopped by his act and conduct, to file this complaint. Allotment of plot stands automatically cancelled. Because the allottee or his representative never complied with the allotment letter and notices issued. Consequently, denied that complainant came to know about such allotment in January, 2006 through a property dealer. Further pleaded that said plot no.48-D is not now available at the spot with the opposite party, so they are not in a position to give possession of the plot. They have prayed for dismissal of the complaint.

3- In order to prove their respective claims, both parties led evidence in the shape of affidavits and documents.

4- We have heard both the ld. counsel for the parties and minutely scanned the entire material placed on the file.

5- It is admitted case that Sh. Dyal Singh father of the complainant, was allotted, being a local displaced person, a plot measuring 500 sq.yds., vide letter dated 11.3.1983 of the opposite party, in 256 Acre Scheme, known as Rishi Balmik Nagar, Rajpura Road, Ludhiana. Therefore, we need not venture qua such allotment of plot in favour of his father. Resultantly straight away, we would prefer to come to the points in dispute.

6- Complainant has placed on the record, copy of one registered letter Ex.C1 dated 4.4.1985 issued by opposite party in the name of Sh. Dyal Singh. Vide that letter, the addressee Sh. Dyal Singh was given final opportunity, to deposit outstanding amount within 15 days qua the allotted plot no.48-D in 256 Acre Scheme. But the letter was addressed by opposite party, to father of the complainant, who had already died on 17.10.1982, as recorded in death certificate Ex.C2.


Though complainant in para no.1, has stated that his father expired on 27.9.1982, which has been admitted to be correct by opposite party. Therefore, it appears that either in September, 1982 or October, 1982, father of the complainant, was already dead. Hence, communication Ex.C1 was sent by opposite party to a dead person. Therefore, requiring Sh. Dyal Singh deceased, to pay outstanding dues qua allotted plot, would be of no relevance, as it was addressed to a person, who was dead.

7- Then complainant vide registered notice Ex.C4 dated 23.1.2006, required opposite party, to put him in possession of the plot no. 48-D, allotted in favour of his father. Proceeding of opposite party, copy of which is Ex.C6, goes to show that opposite party had not cancelled allotment of plot, due to non payment of requisite amount by late Sh. Dyal Singh qua allotted plot, despite issuance of letters and notices and in January, 2006, they considered notice of complainant, for putting him into possession of the plot in question, but they kept the matter pending for consideration. This means right of the complainant, to obtain possession of the allotted plot, was not doubted or controverted by opposite party at any stage. Rather, they considered the same.


But deferred taking final decision thereon. Whereas, opposite party in support of the defence, have relied on affidavit Ex.RW1/A of Sh. A.K. Juneja, its chairman. Alongwith, is filed copy of letter dated 29.8.1985 Ex.R1, letter Ex.R2 ((also tendered by the complainant as Ex.C1) and also another letter Ex.R3 dated 10.12.1984. Under these communications, Sh. Dyal Singh was required to deposit allotment amount. But all these communications Ex.R1 to Ex.R3 were sent by opposite party in the name of Sh. Dyal Singh, after his death. No communication to his LRs was issued.

8- In these circumstances of the case, we have no hesitation to believe affidavit Ex.CA of the complainant that qua allotment of the plot in question in favour of his father Sh. Dyal Singh, came to know for the first time in January, 2006, from a property dealer and earlier, had no knowledge about such allotment.

9- It is argued on behalf of opposite party that allotment of the plot vide letter dated 11.3.1984, is void. As per case of complainant, his father had died on 27.9.1982. Therefore, allotment in favour of a dead person, is a nullity. This letter of allotment probably was issued in ignorance of death of father of the complainant by the opposite party. But right of the person to whom, plot was allotted or his legal representatives, qua such plot would not be snatched on account of the death. Complainant claimed himself legal heir of Sh. Dyal Singh.


Though no legal heir certificate is appended alongwith the complaint, except Ex.C3 copy of jamabandi for the year 1984-85 of village Noor Bhaini. Column no.12 of the jamabandi shows that mutation of inheritance of Sh. Dyal Singh was sanctioned in favour of Sh.Sham Singh, being son. Therefore, prima facie appears that Sh. Sham Singh is legal heir of Sh. Dyal Singh.

10- Though allotment was made in ignorance by opposite party, in favour of Sh. Dyal Singh, who was dead. Whereas, should have been in favour of his legal representative(s). Right of legal representative of Sh. Dyal Singh, can not be affected by his death. Because the right to inherit property was inheritable.

11- Complainant being son of the original allottee, consequently, would be deemed to have succeeded to the plot, alongwith other legal heirs, if any. Though, we have no proof on the record that in addition to the complainant, there is also any other legal heir of late Sh. Dyal Singh. From the date of knowledge qua allotment, this complaint is within limitation. As title of the allotted plot stands vested in the complainant, so would be entitled to have its possession, subject to payment of dues, if any, payable qua the cost of the plot to the opposite party.

Lt. Col. C.K. Ghai (Retd.),205-B, Model Town Extn. Ludhiana -2,

(Complainant)

Vs.



Improvement Trust, Ludhiana through its Chairman (LIT)

(Opposite party)







O R D E R



1. Complainant purchased plot no.205-B in Model Town Extension, Ludhiana, from opposite party. After registration of conveyance deed on 19.11.1992 constructed house, obtained water, sewerage and electric connection in 1993. After execution of conveyance deed, there was no enhancement of land acquisition rates nor such rates can be recovered. But in order to harass the complainant and extract amount illegally, opposite party raised demand of Rs.1,15,776/- to the complainant. When contacted opposite party, none was ready to explain illegal demand. So, he has sought direction in this complaint to direct opposite party to show account balance sheet of outstanding liability, to cancel unfair demand and compensate by awarding compensation of Rs.10,000/- with costs.

2. Opposite party in reply pleaded that complaint is not maintainable, there is no deficiency in service and the complainant by his own act and conduct is estopped to file the complaint. However, conceded that complainant was allotted plot, which he constructed. Rest all the allegations have been denied. Averred that he failed to pay enhanced amount of compensation on due dates, so, liable to pay interest and penalty. Letter dated 28.7.1987 was sent to the complainant demanding enhanced compensation, but he failed to pay enhanced charges on due dates. Therefore, the complaint being frivolous deserves rejection.

3. In order to prove their respective assertions, both the parties led their evidence by way of affidavits and documents in support of their respective contentions.

4. We have gone through written arguments submitted by the complaint, heard Sh. S.S. Grewal Advocate, ld. counsel for opposite party, scanned the documents and other material on record.

5. It appears from defence of the opposite party that the charges qua which grouse is raised by the complainant were claimed from him on account of enhancement of land acquisition compensation and such enhanced compensation was not paid by the complainant by due date. So, by way of penalty liable to pay the amount so demanded. Such aspect is controverted to be wrong by the complainant.

6. We have perused the record.

7. Ex.C4 is the letter dated 12.1.2009 vide which a sum of Rs. 1,15,776/- was claimed from the complainant. This letter mentions amount claimed from the complainant as under:





Original Amount


Interest


Penalty



8,400/-


35,028/-


1,680/-

15,600/-


51,948/-


3,120/-

Total Amount Rs.1,15,776/-





7. It appears that enhanced land compensation of Rs.8400/- and Rs.15,600/- was demanded due to delayed payment and along with penalty and interest, total amount of Rs.1,15,776/- was claimed from him.

8. Opposite party to justify the demand has placed on the record letter Ex.R2 dated 28.5.1987 under which enhanced compensation of Rs.8400/- was demanded and required of the complainant to deposit the same within 15 days. Further mentioned therein in the communication that in case of failure, would be liable to pay penalty and interest. But the letter does not specify the amount of interest or penalty chargeable due to delayed payment.

9. Further, opposite party has also brought on record Ex.R.3, copy of the statement pertaining to payments made by the complainant. This statement shows that complainant had paid enhanced compensation of Rs.8400/- as well as Rs.15,600/-. But it does not mention the details on which account enhanced compensation was deposited by the complainant. In the end of the statement mentioned that an amount of Rs.57,682/- is recoverable from the complainant.


Whereas notice dated 12.1.2009 (Ex.C4) was sent to him claiming Rs. 1,15,776/-. Statement Ex. R.3 bears endorsement of the official of the opposite party of September,2009. It means in September,2009, a sum of Rs.57,682/- was reflected due from the complainant whereas vide letter Ex.C.4 dated 12.1.2009 had claimed Rs.1,15,776/- which is challenged by the complainant to be illegal.

6. Even none of the parties have placed on the record letter vide which enhanced compensation of Rs.1,15,776/- was demanded from the complainant. They simply relied on demand letter Ex.R.2 of opposite party for Rs.8400/-. But has not specified the date on which the amount was deposited by the complainant. Under terms and conditions of letter Ex.R.2, opposite party was entitled for interest, as well as penalty, rates of which were not specified therein.


In these circumstances, we have no hesitation to allow the complaint as the opposite party has blown hot and cold in one breath at different times. In statement Ex.R.3, bearing date 5.9.09 shown an amount of Rs.57,682/- due from the complainant, but demanded in notice dated 12.1.2009 (Ex.C.4) a sum of Rs.1,15,776/-.