| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA CC No.12 of 12-01-2021 Decided on 16-5-2023 Smt. Sukhvinder Kaur W/o Late Sh. Birinderdeep Singh R/o House No.778, Phase-3B1, Sector 60, Mohali. ........Complainant Versus The Bathinda Improvement Trust, Bathinda, through its Chairman. Executive Officer, The Bathinda Improvement Trust, Bathinda.
.......Opposite parties
Complaint under Section 35 of the Consumer Protection Act, 2019 QUORUM Sh.Lalit Mohan Dogra, President Sh. Shivdev Singh, Member Present For the complainant : Sh. Rajesh Bansal, Advocate. For opposite parties : Sh. Anil Gupta, Advocate. ORDER Lalit Mohan Dogra, President The complainant Sukhvinder Kaur (here-in-after referred to as complainant) has filed this complaint U/s 35 of Consumer Protection Act, 2019 (here-in after referred to as 'Act') before this Commission against The Bathinda Improvement Trust and another (here-in-after referred to as opposite parties). Briefly stated the case of the complainant is that the opposite parties got published an advertisement in Punjabi language, for the allotment of plots in Rajeev Gandhi, Nagar Scheme and husband of the complainant Birinderdeep Singh had applied for plot of 258 square yard in said scheme. He deposited earnest money and submitted application and plot No.44 (corner) area 258 square yards was allotted. Allotment letter No.540 dated 07.03.2006 was issued in favour of husband of the complainant namely Birinderdeep Singh. The husband of complainant died on 12.12.2016 and after his death, the complainant applied in the office of opposite parties, for transfer of ownership of plot No.44 of 258 square yards, by way of inheritance in her favour and then opposite parties vide letter No.577 dated, 18.03.2020 transferred the ownership of plot No.44 area 258 sq. yards in favour of complainant. It is alleged that at the time of transfer of ownership of plot by way of inheritance neither the opposite parties demanded any amount regarding non construction charges nor issued any notice to complainant or her husband Birinderdeep Singh, prior to transfer of ownership regarding raising any demand of amount of non construction charges. All of sudden, the opposite parties sent letter No. 685 dated 21.05.2020 to complainant and raised demand of Rs. 6,13,203/- including interest although opposite parties have not provided any demarcation and possession of the plot to the complainant, so that complainant could be able to raise the construction in her plot. It is alleged that the officials opposite parties conveyed to complainant, in case of non-payment of penalty, NOC for selling/ construction cannot be issued to complainant, so complainant had to deposit the amount of Rs.4,32,550/- regarding non construction charges. The complainant deposited the said amount, vide receipt No.417 dated 15.10.2020, under protest. The complainant also filed an application with the opposite parties on 22.10.2020 requesting them to refund the amount of Rs.4,32,550/- The complainant also filed an application for seeking permission to sell her plot No.44 of 258 square yards and requested opposite parties to issue "NOC", but the opposite parties did not take any action. The complainant also got served legal notice upon the opposite parties on 04.12.2020 in this regard, but to no effect. Due to the above said act on the part of the opposite parties, the complainant is suffering from mental tension, agony, botheration harassment, humiliation and financial loss for which he claims compensation to the tune of Rs.2,00,000/-. On this backdrop of facts, the complainant has prayed for issuing directions to the opposite parties to issue 'NOC' in her favour; refund the amount of Rs. 4,32,550/- and pay Rs. 2,00,000/- as compensation in addition to Rs.22,000/- as litigation expenses. Upon notice, the opposite parties appeared through counsel and contested the complaint by filing written version raising preliminary objections that the complainant has no locus standi or cause of action ; complainant is not a consumer; complaint is not maintainable; this Commission has no jurisdiction to try and decide the present complaint; complaint is bad for non joinder and mis joinder of necessary parties; complainant is estopped from filling the present complaint; complicated questions of facts and law are involved in this case; there is no deficiency of service or negligence on the part of the opposite parties and that the present complaint is false, frivolous and vaxatious to the knowledge of the complainant. On merits, the opposite parties have pleaded that as per clause 7 of the allotment letter No.540 dated 07.03.2006, the allottee was bound to raise the construction over the plot within three years of the date of allotment, after getting the building plan sanctioned from the opposite parties. Further in case of default by the allottee in raising the construction within the stipulated period of three years, the allottee is bound to pay the non construction charges as per instructions and rules of the Govt. circulated from time to time. In case the allottee failed to raise the construction even after taking two years more period, then the opposite parties have the right to resume the plot. As per instructions and rules of the Govt. an amount of Rs.6,13,203/- was due and recoverable from the complainant on account of non construction charges, but the Govt. in order to give relief to the defaulters, issued notification dated 21.04.2020, vide which interest on defaulted amount was waived for the allottees who will deposit the principal amount by 20-10-2020. Intimation cum notice No. 685 dated 21.05.2020 was issued to the complainant to avail the said relief. As per clause 5 of the allotment letter, it is the responsibility of the allottee to get the possession after entering into agreement within 30 days from the date of allotment failing which it will be presumed that the possession has been delivered to the allottees. It has also been pleaded that the complainant of her own freewill deposited the non construction charges vide Receipt No.417 dated 15.10.2020, after availing the relief given by the Govt. vide notification dated 20.04.2020, within the stipulated period. It is added that due to the initiation legal proceedings by the complainant, the process of sale permission has been stalled. As per clause 3 of the allotment letter dated 07.03.2006, in case the area of the plot is increased or decreased at the site, then the allottee will be bound to deposit the price of the area of the plot, as per site. After controverting all other averments of the complainant, the opposite parties prayed for dismissal of complaint. In support of her complaint, the complainant has tendered into evidence her affidavit dated 4.1.2021 (Ex. C-1) and documents (Ex.C-2 to Ex.C-10). In order to rebut the evidence of complainant, opposite parties tendered into evidence affidavit of Gora Lal dated 15-7-2021 (Ex. OP-1/1) and the documents (Ex. OP-1/2 to Ex. OP-2/5). We have heard learned counsel for the parties and gone through the record. The learned counsel for the complainant has argued that husband of the complainant was allotted plot No. 44 measuring 258 Sq. Yds at Rajiv Gandhi Nagar, Bathinda vide letter of allotment Ex. C-2. It is further argued that after death of husband of complainant, on application being moved by complainant, the plot No. 44 was transferred in the name of complainant vide letter Ex. C-3, but after transfer of plot in the name of complainant, the opposite parties raised demand of Rs. 6,13,203/- including interest from the complainant on account of non-construction charges and under compelled circumstances, the complainant had deposited amount of Rs. 4,32,550/- as the complainant was interested in obtaining NOC for selling the plot. Immediately thereafter, complainant had also moved application Ex. C-5 for refund of Rs. 4,32,550/- and requested the opposite parties to give NOC vide application Ex. C-7, but inspite of receipt of legal notice Ex. C-8, the opposite parties have failed to give NOC and to refund the received amount and has committed deficiency in service on the part of the opposite parties. On the other hand, the learned counsel for the opposite parties has argued that as per clause '7' of the allotment letter No. 540 (Ex. C-2), the allottee was bound to raise construction over the plot within 3 years of the date of allotment after getting building plan sanctioned from the opposite parties and in default in raising construction within 3 years, the allottee is bound to pay non-construction charges and in the event of failure to raise construction even after taking two more years, the opposite parties have right to resume the plot. It is further argued that amount of Rs. 6,13,203/- was recoverable from the complainant on account of non-construction charges. The Government had given relief to the defaulters vide notification dated 21-4-2020 and complainant was intimated to deposit principal amount by 20-10-2020. The complainant voluntarily and without any objection deposited the amount of Rs. 4,32,550/- with the opposite parties and NOC could not be issued to the complainant as the complainant initiated legal proceedings before this Commission and as such, there is no deficiency in service on the part of the opposite parties. We have heard learned counsel for the parties and have gone through the file. First of all, it is admitted fact that husband of the complainant was allotted plot No. 44 vide letter of allotment Ex. C-2 and on account of death of Sh. Birinderdeep Singh, the plot was transferred in the name of complainant vide Ex. C-3. It is further admitted fact that demand notice of Rs. 6,13,203/- was issued to the complainant which is Ex. C-4 on record and complainant had deposited Rs. 4,32,550/- vide receipt Ex. C-6 on relief having been given to the defaulters and non-construction charges. The amount of Rs. 4,32,550/- was deposited by the complainant on 15-10-2020 and application for obtaining NOC for sale of the plot was also submitted with the opposite parties on 15-10-2020 which is Ex. C-7. The opposite parties have not been able to explain that when the complainant had also deposited the required amount vide Ex. C-6 and application for NOC was also submitted on the same date, then why and for what reason, the opposite parties withheld the permission to sell the plot. Interestingly after receiving the application Ex. C-7, the opposite parties carried out some office work as per Ex. OP-1/4 and obtained reports from the department and spot report regarding the plot being vacant is of 2-12-2020. The present complaint has been filed on 12-01-2021 meaning thereby that the complaint was filed after more than two months when the opposite parties failed to give permission to complainant. The opposite parties have not taken any further action after obtaining spot report on 2-12-2020 and has also not assigned any reason for not issuing NOC. The only plea that litigation was initiated by the complainant, is not justified as this Commission is of the view that right to initiate legal proceedings is a constitutional right and the initiation of legal proceedings does not bar the opposite parties in providing permission to the complainant. So far as plea of the complainant for refund of amount of Rs. 4,32,550/- is concerned, this Commission is of the view that since the complainant has voluntarily deposited the said amount without any protest, as such, complainant is not entitled to receive the refund of amount of Rs. 4,32,550/-. In view of above discussion and evidence on record, the present complaint is partly allowed with following directions to the opposite parties :- 1) To issue NOC to the complainant without charging any further amount from complainant. 2) The opposite parties shall pay Rs. 5,000/- to complainant on account of mental tension, harassment and cost of litigation. The compliance of this order be made within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced : 16-5-2023 ( Lalit Mohan Dogra) President (Shivdev Singh) Member
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