State Consumer Disputes Redressal CommissionG.S. Oberoi vs Improvement Trust, Rup Nagar on 20 December, 20122nd Bench

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
         SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.


                           First Appeal No.1617 of 2011.

                                         Date of Institution:   08.11.2011.
                                         Date of Decision:      20.12.2012.


G.S. Oberoi S/o Sh. Sardari Lal, Resident of House No.2669, Phool Chakar,
Rup Nagar Tehsil, District Rup Nagar, now resident of House No.394,
Dashmesh Nagar, Rup Nagar, Tehsil and District Rup Nagar.
                                                         .....Appellant.
                         Versus

1.    Improvement Trust, Rup Nagar, Tehsil and District Rup Nagar, through
      its Chairman.

2.    Executive Officer, Improvement Trust, Rup Nagar.

                                                                ...Respondents.

                                  First Appeal against the order dated
                                  26.09.2011 of the District Consumer
                                  Disputes Redressal Forum, Ropar.
Before:-

             Shri Inderjit Kaushik, Presiding Member.Shri Baldev Singh Sekhon, Member....................................Present:-    Sh. G.S. Oberoi, appellant in person.Sh. Vishwajit Bedi, Advocate, counsel for the respondents.----------------------------------------INDERJIT KAUSHIK, PRESIDING MEMBER:-Sh. G.S. Oberoi, appellant (In short "the appellant") has filed this

appeal against the order dated 26.09.2011 passed by the learned District

Consumer Disputes Redressal Forum, Ropar (in short "the District Forum").2.           Facts in brief are that the appellant filed a complaint undersection 12of the Consumer Protection Act, 1986 (in short, "the Act") against

the respondents, narrating that he purchased vacant plot no.394, situated in

the area of Dashmesh Nagar, Ropar in resale and it was transferred in his

name vide memo no.909 dated 26.06.2000 by the respondents. The site plan

was approved vide memo no.1335 dated 24.08.2000 and the constructionFirst Appeal No.1617 of 2011                                                 2was to be completed by 23.08.2001. The appellant deposited Rs.1500/- with

the respondent as non-construction fee on 27.11.2000 and applied for water

and sewerage connections which were released on 22.12.2000            and 'No

Objection Certificate' was issued by respondent no.2 on 08.12.2000.3.            The appellant raised the construction over the plot well before

the permitted period as given vide permission dated 22.12.2000. The

appellant applied for release of electric connection with Punjab State

Electricity Board (PSEB), Ropar vide receipt dated 30.10.2000 and PSEB

released the connection on 28.02.2001.4.            The appellant was forced to deposit Rs.45,225/- with the

respondents as non-construction fee at the time of execution of conveyance

deed of the plot in question, which was deposited vide receipt no.5792 dated

27.05.2009 and thereafter only, the respondent executed the conveyance

deed of the plot in question in favour of the appellant. The non-construction

fee was charged on the ground that the electric connection was released on

28.01.2001 after the permitted date of 31.12.2000, but there was no such

condition in the transfer letter dated 26.06.2000 and the letter of approval of

site plan dated 24.08.2000. The PSEB took four months in releasing the

electric connection which was confirmed vide letter dated 15.05.2009. The

said amount of non-construction fee was got deposited illegally and the

appellant is entitled to the refund of the same. The appellant requested the

respondents to refund the same, but they refused. The appellant was

mentally and physically harassed.5.            It was prayed that the respondents may be directed to refund

Rs.45,225/- and to pay Rs.30,000/- as compensation along with interest @

18% p.a. w.e.f. 27.05.2009 till realization and costs.6.            In the written reply filed on behalf of the respondents, the

preliminary objections were taken that the present complaint is not

maintainable in the present form and the Forum has no jurisdiction, as the

matter relates to composition fee.First Appeal No.1617 of 2011                                                  37.           On merits, it was admitted that the appellant purchased the plot

in question and the same was transferred in his name on 26.06.2000. It was

also admitted that the site plan for raising the construction over the said plot

was approved vide letter no.1335 dated 24.08.2000. In the said letter, only

the term of the site plan was stated as one year from the date of sanction.

The construction over the plot no.394 was to be completed according to Govt.

letter no.12049 dated 09.09.1999. It was specifically mentioned in the original

allotment letter no.2865 dated 29.11.1989     and the sale agreement that the

construction of the plot in question be completed within the stipulated period

of three years from the date of allotment. It was also admitted that the

appellant deposited Rs.15,000/- as non-construction fee on 27.11.2000. It

was also admitted that the appellant applied for water and sewerage

connection and the same were released on 22.12.2000 with 'No Objection

Certificate' issued by respondent no.2 on 08.12.2000. It was clearly

mentioned in the memo no.1335 dated 24.08.2000 that after the completion

of the construction, the completion certificate has to be obtained from the

Trust office and the same was received by the appellant from the respondents

on 29.05.2000. The construction was to be considered to be completed if the

allottee has constructed the habitable dwelling unit, comprising at least one

living room, a kitchen, a bathroom with sewerage, water and electricity

connection and a boundary wall. In the present case, the electricity

connection was released by the PSEB on 28.02.2001. The non-construction

fee has been charged for the year 2001 as per the Govt. instructions issued

vide memo no.2020 dated 06.02.2001. It was also admitted that the appellant

applied for the electricity connection vide receipt dated 30.10.2000 and the

PSEB released the connection on 28.02.2001. The non-construction fee of

Rs.45,225/- has been recovered from the appellant as per the Govt.

instructions. The appellant furnished an indemnity bond/affidavit vide which

gave an undertaking to pay any kind of dues regarding the plot in question.

The appellant is not entitled to get the refund of the non-construction fee.First Appeal No.1617 of 2011                                                    4Other allegations were denied and it was prayed that the complaint may be

dismissed with costs.8.             Parties led evidence in support of their respective contentions

by way of affidavits and documents.9.             After going through the documents and material placed on file

and after hearing the learned counsel for the parties, the learned District

Forum observed that there is no evidence that the appellant has raised even

25% construction on his plot upto 30.06.2001 and he was not entitled to 50%

of the concession given by the Govt. Realization of non-construction fee

cannot be termed as deficiency in service, nor the respondents have adopted

any unfair trade practice, and dismissed the complaint.10.            Aggrieved by the impugned order dated 26.09.2011, the

appellant has come up in appeal.11.            We have gone through the pleadings of the parties, perused the

record of the learned District Forum and have heard the arguments advanced

by appellant, who was present in person, and the counsel for the

respondents.12.            The appellant purchased the plot in question from Smt. Amarjit

Kaur and the same was transferred in his name vide memo no.909 dated

26.06.2000 Ex.C-2 and the appellant was made aware through this letter that

he will be bound by the terms and conditions of the allotment letter dated

29.11.1989 and the sale agreement dated 08.11.1990. It was further stated

that if the appellant will not complete the construction till 31.12.2000, then the

action will be taken as per the law. Vide Ex.C-3, the site plan was approved

for a year from the date of approval. Ex.C-4 is the receipt for charging

Rs.1500/- as non-construction fee. Vide Ex.C-5 dated 08.12.2000, the Trust

gave 'No Objection' for releasing of water and sewerage connection. Vide

Ex.C-9, the amount of Rs.45,225/- was paid as non-construction charges and

Ex.C-10 is the request for refund made by the appellant to the respondents.

Another request Ex.C-11 was made for refund of the said amount.First Appeal No.1617 of 2011                                                  513.          To rebut the above evidence, the respondents filed affidavit of

its Executive Officer Ex.R-1, letter Ex.R-2 giving approval of site plan. Ex.R-3

are the instructions of the Govt. for charging the non-construction fee. Ex.R-4

is the letter written to original allottee Smt. Amarjit Kaur. Ex.R-5 is the

agreement of sale in favour of the original allottee Amarjit Kaur. Ex.R-8 are

the Govt. instructions regarding the fixing of rates of non-construction fee for

the year 2001 and how the non-construction fee was calculated, its detail was

given in the reply filed on behalf of the respondents to the application dated

12.07.2001. As per this, the respondents charged the non-construction fee

@ Rs.75/- per sq.yds. and it was calculated to the tune of Rs.22,500/- and

interest from January, 2001 to 30.05.2009 was calculated @ 12% to the tune

of Rs.22,725/- and the total sum was charged as Rs.45,225/-.14.          The pertinent question to be decided is as to when the appellant

completed the construction?15.          As per the transfer letter no.909 dated 26.06.2000, the

respondents directed the appellant to complete the construction till

31.12.2000 and thereafter, the proceeding were to be adopted as per the

Govt. instructions. Vide letter Ex.C-5 dated 08.12.2000, the water and

sewerage connections were allowed to be given to the appellant by the E.O.

of the respondents. As per letter Ex.R-3 dated 9th September, 1999 regarding

the charging of non-construction fee, it was clarified that 1/4th of the

construction would be considered to be completed only if the allottee has

constructed a habitual dwelling unit, comprising of at least one living room, a

kitchen, a bathroom with sewerage, water and electricity connection and a

boundary wall. The Govt. of Punjab vide Ex.R-8 dated 06.02.2001 issued the

instructions for fixing of rates of non-construction fee for the year 2001. The

respondents by giving 'No Objection' vide letter dated 08.12.2000 for

sewerage and water supply connection, have themselves proved that the

requisite construction was raised by the appellant well before the date fixed in

the transfer letter and only the electric connection was released late, for noFirst Appeal No.1617 of 2011                                                  6fault of the appellant, because as per letter Ex.C-8, PSEB informed the

appellant that as per the office record, the electric connection was applied on

30.10.2000 and was issued on 28.02.2001. From this, it is clear that the

appellant on his part has done everything to get the water and sewerage

connection as well as to get the electric connection and if the officials of the

PSEB have delayed the releasing of the electric connection to the appellant,

for that, the appellant cannot be penalized nor the respondents can take any

undue benefit of the same. The order of the District Forum is not in

accordance with the facts and evidence brought on record by the appellant

and, as such, is not sustainable.16.           In view of above discussion, the appeal is accepted and the

impugned order under appeal dated 26.09.2011 passed by the District Forum

is set aside. Consequently, the complaint filed by the appellant/complainant is

allowed and the respondents are directed to refund Rs.45,225/- to the

appellant, charged illegally as non-construction fee and to pay Rs.10,000/- as

compensation and Rs.5,000/- as litigation expenses.17.           Compliance of the order shall be made by the respondents

within 45 days of the receipt of copy of the order.18.           The arguments in this appeal were heard on 10.12.2012 and the

order was reserved. Now the order be communicated to the parties.19.           The appeal could not be decided within the stipulated timeframe

due to heavy pendency of court cases.(Inderjit Kaushik)
                                                        Presiding Member


                                                      (Baldev Singh Sekhon)
                                                             Member
December 20, 2012.(Gurmeet S)