NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 1287 of 2011
(From the order dated 10.01.2011 of the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur in First Appeal no. 766 of 2010)
D K Lalwani Son of Late Kotumal Lalwani Resident of MIG 2/131 HUDCO Bhilai, Tehsil and District Durg (Chhattisgarh)
Petitioner
Versus
1. Bhilai Steel Plant Steel Authority of India Limited Through its Managing Director Ispat Bhavan, P O Bhilai Tehsil and District Durg (C G)
2. Union of India, Ministry of Steel Through Director (SAIL –CIP) Udyog Bhavan New Delhi – 110 001
3. Steel Authority of India Limited Through Chairman, Ispat Bhavan Lodhi Road, New Delhi – 110003
4. Government of Chhattisgarh Through The Chief Secretary Mantralaya, D K S Bhavan P O Raipur (C G)
5. The Collector Durg District P O Durg (C G)
6. District Registrar Stamps and Registration P O Durg (C G)
Respondent (s)
BEFORE:
HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA MEMBER
For the Petitioner : NEMO For the Respondent : Mr Sharat Kapoor, Advocate with Mr. Mohd Aaqil Advocate for R 1 & 3 Nemo for R 2, 4 and 6
Pronounced on 1 st March 2013
ORDER
REKHA GUPTA
This revision petition arises out of the order dated 10.01.2011 in appeal no. 766 of 2010 passed by the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur (in short, ‘the State Commission’) which was filed by the petitioner against the order dated 13.12.2010 of the District Consumer Disputes Redressal Forum, Durg (in short, ‘the District Forum’) in complaint case no. 210 of 2009.
2. Petitioner/complainant filed a complaint against respondent nos. 1 to 6 regarding allotment of house under Amdi Housing Scheme no. MIG II/ 131. The case of the petitioner is that he was employed with respondent no. 1. During the year 1986-87 vide order no. 11M/HUDCO/P II/87/635 dated 09.04.1987 under Amdi Housing Scheme, respondent no. 1 allotted to him house no. MIG 2/131. On 31.01.1990 the petitioner took voluntary retirement. Respondent no. 1 recovered all dues in respect of the allotted house from the petitioner. The petitioner became full owner of the house. Under the non-company housing scheme, the petitioner was given said house on lease for 99 years upon which annual rent @ 1% was payable. As per terms of the agreement, upon payment of full dues, the sale deed was required to be executed in favour of the petitioner. The petitioner several times made requests to the respondent nos. 1 to 3 for the execution of registered sale deed. The respondent nos. 1, 2 & 3 by making extraordinary delay, did not execute registered deed in favour of the petitioner. Upto the year 1998 registration of only 24 houses was got done. During the course of time, the respondent nos. 4, 5 & 6 imposed ban on the registration of other houses at HUDCO colony.
3. In 2008 the land measuring 70.14 hectares and the houses built thereon, including service roads infrastructure such as sewerage and water supply system, street lighting etc., all facilities were transferred to Chhattisgarh Government on “as is where is basis’ and on the condition that the State Administration shall undertake repair and maintenance of the assets and provide civic services to the residents hither to provide by BSP. In this respect, the Hon’ble High Court of Chhattisgarh in Writ Petition no. 2585 vide order dated 21.12.2005 directed the State Government of Chhattisgarh to give registration of the houses at HUDCO Colony to the residents according to rules and also maintain roads, electricity, water facilities continuously. During the course of time, Writ Petition bearing no. 3573 of 2000 was also presented before the Hon’ble Court. This petition was withdrawn on the assurance by the respondents that all matters would be amicably solved. After this respondent nos. 1, 2 and 3 did not execute the sale deed for petitioner’s house. The respondent nos. 1, 2 and 3 have received lease premium of Rs.10,340/- from the petitioner which is lying with them. Respondents nos. 4, 5 & 6 for grant of patta on 19.08.2008 again recovered from petitioner Rs.2066/-. On 15.07.2008 entire land at HUDCO colony was transferred by Bhilai Steel Plant to the State of Chhattisgarh. Respondent no. 1 said that an agreement was executed between them and the petitioner on 10.02.1987. Thereafter for 11 years the petitioner did not pursue the matter for registration as he did not have money for the same. Thereafter the Government imposed a ban on execution of lease deed. The petitioner filed a complaint after 31 years and hence that is time barred. In compliance with the order of the High Court the registration of lease deed between the Government and the petitioner have been executed. The petitioner did not raise any voice at the time of registration.
4. Respondents nos. 4, 5 & 6 also answered that accepting the orders of High Court, nazul patta granted beyond Nagarnigam have been registered in accordance with the law and stamp duty and registration charges have been recovered as per Stamp Act, 1899. The petitioner did not make any objection at the time of registration.
5. The District Forum dismissed the complaint on the ground that the petitioner is neither a consumer nor is falling under the jurisdiction of consumer dispute. Further, the petitioner filed a Writ Petition against the respondents in the High Court. The Writ Petition was withdrawn by the petitioner and the respondents settled the disputes amicably, hence, it is evident that the disputed matter must have been closed before the High Court of Chhattisgarh, Bilaspurbetween the parties. Therefore, taking the disputed matter before the Consumer Forum, Durg is not justified. It is evident that the complainant “does not fall in the category of consumer nor it is a consumer dispute”. The District Forum has also came to the conclusion that if the “non-applicant have made any deficiencies of service, the fact is not evident. Hence, deficiencies in services is also not proved. Hence, the complaint was dismissed.
6. Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission which also came to the conclusion that the appeal has got no substance and is liable to be dismissed in limine at motion hearing stage without notice to the respondents and the same was dismissed. The reasons given for dismissal were as under:
“The Complaint Case No.210/2009 of the appellant herein, has been dismissed by the District Consumer Disputes Redressal Forum, Durg (C.G) (hereinafter called “District Forum” for short) vide order dated 13/12/2010, holding that he does not come under the category of “consumer‟ as defined in Section 2(1) (d) of the Consumer Protection Act, 1986 and the District Forum, does not enjoy any jurisdiction to entertain the complaint. It has also been held that matter in this regard, is pending before Chhattisgarh High Court and earlier also a Writ Petition was decided by the Chhattisgarh High Court.
On similar facts, earlier Mr. M.S. Bhaskaran, has also filed a consumer Complaint Case No.42/2009 before the District Forum, Durg and this Commission while deciding Appeal No.158/2010 vide order dated 28/07/2010 has already expressed opinion that “since the dispute involved in the appeal in hand as well as that in the Writ Petition is based on similar facts and the questions involved would have far reaching effects, we are of considered view that the same cannot be decided in summary proceedings before the consumer fora” .
Considering the facts and circumstances of the case it appears that facts of that case are beyond the scope of summary trial under the provisions of the Consumer Protection Act, 1986 and therefore, that appeal was dismissed. We still have the same view. There are very much complicated questions of facts and law involved in the matter i.e. question of issuance of notification of acquisition in respect of land in question as well as right of the State Government, right of the Union Government and BhilaiSteel Plant, which is an authority under the Government of India, different orders issued by State Government, B.S.P. Union of India at different point of time and their consideration and expression of opinion on those orders, will be of far reaching effects.
As this Commission already considered the aforesaid points in appeal No.158/2010 Steel Authority of India Ltd. Bhilai Steel Plant V. M.S. Bhaskaran & Anr. and videorder dated 28/07/2010 allowed the appeal of Steel Authority of India Ltd., Bhilai Steel Plant and dismissed the complaint of complainant Shri M.S. Bhaskaran on the ground that Writ Petition for considerations of the same questions is pending before the High Court and therefore, the same cannot be decided in summary proceedings before Consumer Fora.
In view of this, we do not find any ground to admit this matter for final hearing. The appeal has got no substance and is liable to dismissed in limine at Motion Hearing Stage without notice to the respondents and the same is dismissed. No order as to the cost of this appeal”.
7. Hence, this revision petition.
8. In the revision petition, the grounds given by the revision petitioner are as follows:
a. The State Commission have exercised the jurisdiction not vested in it by law and have also miserably failed to exercise the jurisdiction vested in it and also have acted in exercise of its jurisdiction with material irregularity and illegally. b. The dispute involved in the said appeal and in the Writ Petition of other individuals before the High Court are of not similar in nature; c. No complicated questions of law and facts are involved as is erroneously held. d. In M S Bhaskaran’s appeal no. 158/2010 (SAIL BSP vs M S Bhaskaran) order dated 28.07.2010 of Chhattisgarh State Consumer Disputes RedressalCommission, Raipur have already determined the issues raised and held him consumer but restricted itself from quantifying compensation only. e. The District Forum based its decision that the petitioner is not a consumer on flawed logic and thus orders passed by the District Forum and the State Commission have resulted in miscarriage of justice. It is prayed that the issue may be determined on merit by the National Consumer Disputes RedressalCommission (in short, ‘the National Commission’). The orders of the Fora below be also set aside.
9. Petitioner’s son Shri Jai K Lalwani vide his letter dated 12.02.2013 has stated that his father Shri D K Lalwani is suffering from Oesophagus Cancer and is not able to walk on his own and hence, he desires that as the petitioner has completed and closed his side of the case, he forgos the personal hearing right further and prays for final orders on merit.
10. We have heard the learned counsel for the respondents and have gone through the records placed on record. Counsel for the respondents argued that as the said land has been transferred back to the State Government and all further action regarding execution of the sale deed would have to be taken up with the State Government. A similar issue was decided by the Chhattisgarh State Consumer Disputes Redressal Commission, Raipur in Appeal no. 158 of 2010 in “Steel Authority of India Ltd., Bhilai Steel Plant vs M S Bhaskaran and Anr”. In the said order it has stated as follows:
“ 12. Recently Hon.ble National Commission in its decision, in the case of Mangilal Soni Vs. T. Marappa & ors., II (2011) CPJ 95 (NC), having identical facts, which was a consumer complaint filed directly before Hon’ ble National Commission and in that case also, there was an agreement of sell of property and part consideration was paid, but the vendor has failed to fulfil its obligation under the agreement so the consumer complaint was filed, has observed that : -
Taking the averments and allegations on their face value, we are of the considered opinion that opposite parties cannot be said to have rendered any service to the complainant, for the deficiency of which, the complaint can be filed before a Consumer Fora. It appears to be a case of non-performance of its obligation by a vendor under an agreement to sell for which the complainant would have been advised to file civil suit either for specific performance of the agreement to sell or any other alternative relief in accordance with law. In our opinion, the complaint before this Commission is wholly misconceived and is dismissed as such, however, with liberty to the complainant to work out his remedy before a competent Court in accordance with law.
Thus, as the question has been decided finally by Hon’ ble National Commission, in the aforesaid reported case and if there is only a case of non-performance of its obligation by the vendor under an agreement to sell, then for the purpose of getting relief, consumer complaint does not lie and the appropriate remedy is of filing Civil Suit either for specific performance of agreement of sell or any other alternative remedy, in accordance with law. Applying the principle in the facts of the present case, we find that in the facts of the present case also the remedy available to the complainant was that of filing a Civil Suit for specific performance of a contract of sell of the disputed House and lease-deed of the disputed land therein or to avail any other appropriate remedy before any other Forum.
13. Similar question has also been dealt with by this Commission in appeal Nos.406/11(Sheikh Sultan & anr. Vs. Smt. Preeti Dawda & anr.), 407/11(Sheikh Sultan & anr. Vs. Shri Rajesh Sanghani & anr.) and 408/11(Sheikh Sultan & anr. Vs. Smt. Preeti Dawda & anr.), decided by order dated 04.01.2012 and similar view has been expressed in the light of aforesaid mandate given by Hon’ ble National Commission.
14. It has also been argued by counsel for the appellant that the disputed execution of sale-deed and lease-deed has now become impossible to be performed on account of subsequent events of transfer of the same land related to Amdinagar Non Company Housing Scheme (NCHS-1) including service infrastructure (sewerage & water supply system, roads, streetlights etc.) to the Government of Chhattisgarh and later on, on instructions of the Government of Chhattisgarh and decision to the effect that the lease-deed will be executed by the Government and not by the Bhilai Steel Plant. In this regard our attention has been drawn towards order of the State Government dated 11.07.08, Ex..1. By this order, under certain conditions, permission was granted in respect of allottees of BSP to execute lease deeds by the Government to the allottees. It has been instructed to the Bhilai Steel Plant that the land which was transferred by the State Government in favour of Government of India / Bhilai Steel Plant was transferred for specific purposes and if the same has been utilized or is to be utilized for some other purpose than the purpose for which the land was transferred, then the same can only be done after seeking permission from the State Government and unless the State Government permits the land can neither be utilized nor transferred by the Bhilai Steel Plant. Thereafter, on 15.07.08, the Bhilai Steel Plant by letter Ex.D7 has informed the Collector that the Steel Authority of India Limited by resolution in the meeting of its Board, held on 29.01.2007 and after receipt of .No Objection. of the Government of India, for the transfer of land measuring 70.14 hectares including service infrastructure, relating to Amdi Nagar, Non-company Housing Scheme, free of cost to Chhattisgarh State Administration on .as is where is. basis and on the condition that the State Administration shall undertake repairs and maintenance of the assets and provide civic services to the residents hitherto provided by Bhilai Steel Plant, the advance possession of the said land is formally being given.
15. This document shows that, it was decided between the Government of India, State Government of Chhattisgarh and the Steel Authority of India Ltd. that as Non-company Housing Scheme was formulated and was executed on the land, so the land be transferred back to the State Government and the State Government has also restrained Bhilai Steel Plant for transferring the land or for utilizing the same for any other purposes than the purposes for which it was granted to the Steel Authority of India Ltd.
16. In these circumstances now it has become impossible for the appellant to fulfil its promise under the agreement and up to some extent the doctrine of frustration of contract applies. Section 56 of the Contract Act 1872 says as under : -
56. Agreement to do impossible act. . An agreement to do an act impossible in itself is void.
Contract to do act afterwards becoming impossible or unlawful : - A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.
Compensation for loss through non-performance of act known to be impossible or unlawful: - Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non- performance of the promise.
17. In the facts of the present case, on account of subsequent developments now it has become impossible for the appellant to perform its part of the agreement of executing lease-deed of the land and of sale-deed of the house in favour of the complainant / respondent No.1. This appears to be a complicated question and needs full dress trial, as to when and under which circumstance the land had to be transferred back by the Steel Authority of India Ltd. to the Government of Chhattisgarh and whether even after transfer of the land, any document can be executed by the appellant in favour of respondent No.1 / complainant. This question cannot be decided in a summary trial by Consumer Forum and that is why Hon.ble National Commission in the case of Mangilal Soni (supra) has held that it is not a consumer dispute and the remedy to the complainant lies in filing Civil Suit for specific performance or any other relief in accordance with law.
11. From the records it is evident that there are many complicated questions of facts and law involved in the matter, i.e. question of issuance of notification of acquisition in respect of the land in question as well as the rights of the State Government, the rights of the Union Government and Bhilai Steel Plant, which is an authority under the Government of India, the different orders issued by State Government, Bhilai Steel Plant and Union of India at different points of time. The decisions taken on this issue and expressions of opinion on the said orders would have far reaching effects.
12. The petitioner has filed this complaint after 31 years and hence, it is time barred. In compliance with the orders of the Hon’ble High Court, registration of lease deed between the Government and the petitioner had been executed. The petitioner did not protest at the time of registration, hence, the petitioner’s conduct amounts to acceptance in silence. Petitioner should have filed this case and got the same adjudicated in a Civil Court and not in a Consumer Forum.
13. Hence, in the light of the above observations, we find no infirmity or illegality in the impugned order of the State Commission. The present revision petition being without any merit and having no legal basis is dismissed with no order as to costs. ..………………………………
[ V B Gupta, J.]
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[Rekha Gupta]
Satish NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.3862 OF 2012 (From the order dated 6.09.2012 in First Appeal No.1698/2010 of the M.P. State Consumer Disputes Redressal Commission, Bhopal)
Mr. Dinesh Kumar Namdeo S/o Sh. Badri Prasad Namdeo R/o Akashwani Colony Katanga, Jabalpur (MP) ..…. PETITIONER
Versus M.P. Housing Board C/o The Estate Manager/Estate Officer MP Housing Board Rewa, Distt. Rewa (MP) ..... RESPONDENT
BEFORE: HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER For the Petitioner : In person PRONOUNCED ON: 4 th April , 2013 ORDER PER SURESH CHANDRA, MEMBER
This revision petition has been filed by the petitioner/complainant challenging the order dated 6.9.2012 passed by the M.P. State Consumer Disputes Redressal Commission, Bhopal (‘State Commission’ for short) in F.A. No.1698 of 2010 by which the State Commission accepted the appeal of the respondent/opposite party and set aside the order dated 30.4.2010 passed by the District Forum, Rewa in consumer complaint No.247 of 2009. By its order in question, the District Forum had allowed the complaint of the petitioner in terms of the following directions:-
“ 1. The respondent is ordered to return an amount of Rs.1,60,000/- which was illegally received by raising the cost of the house from Rs.7,26,000/- to Rs.8,86,000/-within 30 days. The respondent should also pay the interest of 12% on the said amount from 17.12.2009 till the date is returned. The respondent also pay an amount of Rs.10,000/- as financial lose, mental and physical harassment during the mentioned period separately.
2. The respondent should bear the self expenses and also the suit expenses of appellant and will pay Rs.1,000/- as the cost of the case.”
2. The factual matrix of this case in brief are that the respondent Board had advertised and invited offers for Junior HIG houses of estimated price of Rs.7,26,000/-. It had been clarified by the respondent Board that the actual cost will be assessed after construction of the house. The houses were completed in 2010 and on completion, the price calculated came to Rs.8,86,000/-. The entire amount was paid by the petitioner and he was allotted a house on 3.9.2009 and the sale deed was also executed on 7.5.2010. After occupying the house, the petitioner filed a complaint before the District Forum for refund of Rs.1,60,000/- which was the difference between the amount charged by the Board and the estimated price indicated in the advertisement. The District Forum allowed the complaint vide its order reproduced above. The State Commission while reversing the order of the District Forum has recorded the following finding in support of the impugned order:-
“The perusal of the advertisement shows that it was made clear at the inceptive stage that the cost of the house was estimated cost and the allottee will pay the final cost after completion of the house. It is not a case where escalation is being demanded but the case where final cost of the house is being charged. Under these circumstances, we are of the view that the allottee was not entitled to refund of difference between the two amounts namely estimated amount and the final cost.”
3. We have heard the petitioner who has himself pleaded his case. The basic facts of this case are not in dispute and the State Commission has passed the impugned order non-suiting the claim of the petitioner based on the admitted factual position and conditions of allotment which were already known to the petitioner. He has not produced anything which would persuade us to take a different view. The impugned order of the State Commission being a fair and just order, we do not see any reason to differ with it. The revision petition, therefore, is dismissed in limine with no order as to costs.
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(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
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(SURESH CHANDRA) SS/ MEMBER NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4502 OF 2012
(From the order dated 5.07.2012 in Appeal No. 813/2011 & 925/2011 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai)
D. Thiruvateeswaran L 13 A, Sarvamangala Colony Ashoknagar, Chennai 600083
… Petitioner/Complainant
Versus The Chief Executive Officer Central Govt. Employees’ Welfare Housing 6th Floor, “A’ Wing”, Janpath Bhawan, New Delhi – 110001
… /Opp. Party (OP)
REVISION PETITION NO. 4941 OF 2012 (From the order dated 5.07.2012 in Appeal No. 813/2011 & 925/2011 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai)
The Chief Executive Officer Central Govt. Employees’ Welfare Housing Organization 6th Floor, “A’ Wing”, Janpath Bhawan, New Delhi – 110001
… Petitioner/Opp. Party (OP)
Versus D. Thiruvatteeswaran L – 13-A, Sarvamangala Colony Ashok Nagar, Chennai – 600083 (Tamil Nadu)
… Respondent/Complainant
REVISION PETITION NO. 4942 OF 2012 (From the order dated 5.07.2012 in Appeal No. 925/2011 of the Tamil Nadu State Consumer Disputes Redressal Commission, Chennai)
The Chief Executive Officer Central Govt. Employees’ Welfare Housing Organization 6th Floor, “A’ Wing”, Janpath Bhawan, New Delhi – 110001 … Petitioner/Opp. Party (OP)
Versus D. Thiruvatteeswaran L – 13-A, Sarvamangala Colony Ashok Nagar, Chennai – 600083 (Tamil Nadu)
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners : Mr. S. Thiruvatteeswaran, Petitioner in person
in R.P. No.4502/2012
Mr. Abhhijeet Sinha, Advocate
in R.P. Nos. 4941 & 4942/2012
For the Respondents : Mr. Abhhijeet Sinha, Advocate
in R.P. Nos. 4502/2012
Mr. S. Thiruvatteeswaran, Respondent in person
In R.P. Nos. 4941 & 4942/2012.
PRONOUNCED ON 4 th April , 2013
O R D E R PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
All these revision petitions arise out of a common order of learned State Commission and; hence, decided by a common order.
2. These revision petitions have been filed by the parties against the impugned order dated 5.7.2012 passed by learned State Commission in Appeal No. 813/2011 – The Chief Executive Officer Vs. D. Thiruvatteeswaran and Appeal No. 925/2011 - D. Thiruvatteeswaran Vs. The Chief Executive Officer by which, while allowing appeals partly, order of District Forum was modified.
3. Brief facts of the case are that complainant petitioner was allotted a “D’” Type flat in Paruttippattu in Poothamamallee - Avadi High Road by the opposite party on 24.2.2006. Complainant was to pay Rs.15,65,000/- as tentative cost of the flat in five instalments. OP was to commence construction in December, 2006 and was to be completed within 30 months. Complainant paid first 4 instalments by March, 2009 as per schedule and further paid Rs.3,46,100/- being 50% of the estimated escalation cost, under protest. On inquiry, OP projected that construction will be completed by May, 2010 and later on apprised that it would be completed by March, 2011. Complainant has paid Rs.16,00,000/-, but still waiting delivery of the possession of the flat. Alleging deficiency on the part of OP, complainant filed complaint before the District Forum and claimed rent @ Rs.16,000/- per month for 20 months, Rs.90,000/- as compensation for mental agony, Rs.70,000/- as interest on paid instalments and Rs.19,000/- as cost of litigation. OP filed written statement and submitted that OP is an autonomous body under the Ministry of Urban Development and Poverty Alleviation, Government of India and works on “no profit no loss basis”. OP renders free service to the Central Government Employees and complainant does not fall within the purview of consumer. It was further alleged that tentative 30 months period for construction was given. It was further submitted that complainant invested money for commercial purpose; hence, complaint be dismissed. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay a sum of Rs.50,000/- as compensation within one month, failing which, the said amount shall carry interest @ 12% p.a. till payment. Both the parties filed appeal before learned State Commission and the learned State Commission vide impugned order allowed both the appeals partly and directed OP to handover possession of completed flat within 8 weeks and reduced amount of compensation from Rs.50,000/- to Rs.20,000/- and further directed to pay Rs.5,000/- as legal expenses against which, these revision petitions have been filed by the complainant and OP.
3. Heard the complainant in person and learned Counsel for the OP at admission stage and perused record. 4. Learned petitioner submitted that learned State Commission has committed error in reducing amount of compensation, rather State Commission should have allowed appeal and enhanced amount of compensation; hence, order of learned State Commission be set aside and amount of compensation be enhanced. On the other hand, learned Counsel for the OP submitted that learned State Commission has committed error in upholding compensation of Rs.20,000/-, as OP works on “no profit no loss basis”; hence, revision petition be allowed and order directing payment of compensation be set aside.
5. Parties apprised that OP has handed over possession of the flat to the complainant on 13.3.2013. Thus, it becomes clear that order of State Commission directing OP to handover possession has been complied with, though, with a delay of about 6 months. Complainant had not prayed for delivery of possession in the complaint and District Forum had also not directed OP to handover possession, but State Commission directed to handover possession of flat and in consequence to that order, possession has already been handed over to the complainant.
6. Now, the question to be decided is; whether the amount of compensation is to be enhanced or reduced or, as ordered by State Commission is to be upheld. Learned District Forum has observed in its order that complainant has not filed any receipt regarding payment of rent and in such circumstances, instead of granting compensation towards rent, granted lump sum compensation of Rs.50,000/-, which has been reduced to Rs.20,000/- by learned State Commission. Learned Counsel for OP submitted that OP runs on “no profit no loss basis” and in such circumstances, learned State Commission ought not to have granted Rs.20,000/- as compensation to the complainant, whereas learned complainant submitted that instead of reducing amount of compensation, it should have been enhanced. As OP is rendering service on “no profit no loss basis”, as a welfare measure to provide houses to the Central Government employees, we are of the view that compensation awarded by the learned State Commission is reasonable and it need not be enhanced and in such circumstances, Revision Petition No. 4502 of 2012 filed by the complainant/petitioner is liable to be dismissed.
7. As far as reduction of compensation awarded by the State Commission is concerned, we do not feel it proper to reduce this amount of compensation because possession of flat has been given to the complainant after 8 months of the impugned order, whereas possession was to be given after 8 weeks. In such circumstances, Revision Petition No. 4941 of 2012 and Revision Petition No.4942 of 2012 filed by the petitioner/OP are liable to be dismissed.
8. Consequently, Revision Petition No. 4502 of 2012 filed by the complainant/petitioner and Revision Petition Nos. 4941 & 4942 of 2012 filed by the OP/petitioner against the impugned order are dismissed at admission stage with no order as to cost.
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( K.S. CHAUDHARI, J)
PRESIDING MEMBER
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( DR. B.C. GUPTA )
MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4328 of 2012
(From the order dated 25.07.2012 in Appeal No. 16/2011 Rajasthan State Consumer Disputes Redressal Commission (Circuit Bench at Bikaner)
With IA/1/2012
Urban Improvement Trust, Bikaner Through Secretary, Public Park, Bikaner, (Rajasthan) … Petitioner/Opposite Party (OP)
Versus Harish Kumar S/o Late Sh. Kanhaiya Lal Khatri, R/o Gangashahar Road, Bikaner (Rajasthan) … Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner : Mr.H.D. Thanvi, Advocate
PRONOUNCED ON 8 th April , 2013
O R D E R PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/OP against the impugned order dated 25.7.2012 passed by the Rajasthan State Consumer DisputesRedressal Commission, (Circuit Bench at Bikaner) (in short, ‘the State Commission’) in Appeal No. 16 of 2011 – Urban Improvement Trust, Bikaner Vs. Harish Kumar by which, while dismissing appeal, order of District Forum allowing complaint was affirmed. 2. Brief facts of the case are that the complainant/respondent participated in auction conducted by the OP/petitioner on 17.12.1997 and purchased a plot for Rs.6,41,618/- and deposited 1/4th amount on the same day. Officer conducting auction made an endorsement on the auction sheet that rest 3/4th amount will be payable only after high tension line passing over the plot is removed. Complainant further submitted that on 29.4.2002, OP passed Resolution to the fact that rest 3/4thamount may be taken from the allottees without any interest and penalty, and intimation to the concerned Engineer of Electricity Department be given for removal of high tension line. Complainant further submitted that in 2007, he came to know that high tension line had been removed. The complainant moved an application to the OP for depositing rest 3/4th amount, but OP asked him to deposit amount along with interest and penalty, whereas OP accepted money from some allottees without interest and penalty. Alleging deficiency on the part of OP, complainant filed complaint. OP resisted complaint and submitted that OP gave many reminders to the complainant to deposit 3/4th amount, but he has not deposited, so OP is entitled to claim interest and penalty and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed the complaint and directed OP to get deposited 3/4th amount without interest and penalty and to execute lease deed of the plot in favour of the complainant and handover him possession of the plot along with compensation of Rs.2,000/- and litigation expenses of Rs.500/-. Appeal filed by the OP/petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed. 3. Heard learned Counsel for the petitioner at admission stage and perused record. 4. Learned Counsel for the petitioner submitted that there was no condition attached with the auction that 3/4th amount will be payable only after removal of high tension line and, as the complainant withheld the money for almost 10 years, petitioner was entitled to receive money along with interest and penalty and learned State Commission has committed error in dismissing appeal; hence, revision petition be admitted. 5. Perusal of record reveals that at the time of auction, officer conducting auction on behalf of the petitioner/OP mentioned in the auction sheet that 3/4th amount will be payable only after removing of high tension line. This endorsement is binding on OP and OP cannot disown this endorsement. Complainant has also mentioned in the complaint that OP passed Resolution on 29.4.2002 to receive rest of the 3/4th amount without interest and penalty, which further shows that rest of the 3/4th amount was payable without interest and penalty only after removal of high tension line. Learned Counsel for the petitioner submitted that high tension line was removed in the year 2002, but admitted this fact that no intimation was given to the complainant that high tension line has been removed. Petitioner has failed to prove any documentary evidence to the fact that any intimation was given by petitioner to the respondent regarding removal of high tension line passing over the auctioned plot, and in such circumstances, the petitioner was not entitled to recover interest and penalty from the complainant/respondent. Learned State Commission has not committed any error in dismissing appeal and learned District Forum has not committed any error in allowing complaint and directing OP to receive 3/4th amount without interest and penalty. We do not find any illegality, infirmity or jurisdictional error in the impugned order, which calls for any interference and revision petition is liable to be dismissed at admission stage.
6. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.
..………………Sd/-…………… ( K.S. CHAUDHARI, J) PRESIDING MEMBER
..……………Sd/-……………… ( DR. B.C. GUPTA ) MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2168 OF 2012
(From the order dated 05.1.2012 in First Appeal No. 980/2011 & FA/986/2011 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow)
WITH
I.A. NO. 682 OF 2013
(PLACING ADDITIONAL DOCUMENTS)
Director, Rajya Krishi Utpadan Mandi Parishad, Gomti Nagar, Lucknow
... Petitioner
Versus
1. Smt. Madhu Shukla, Wife of Sri Dinesh Chandra Shukla, Resident of 11 A.P. Sen Road, Lucknow
2. Secretary to Govt. of U.P., Agriculture Department, Civil Secretariat, Lucknow
…. Respondent(s)
REVISION PETITION NO. 2421 OF 2012
(From the order dated 05.1.2012 in First Appeal No. 980/2011 & FA/986/2011
of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow)
Director, Rajya Krishi Utpadan Mandi Parishad, Gomti Nagar, Lucknow
... Petitioner
Versus
1. Smt. Madhu Shukla, Wife of Sri Dinesh Chandra Shukla, Resident of 11 A.P. Sen Road, Lucknow
2. Secretary to Govt. of U.P., Agriculture Department, Civil Secretariat, Lucknow
…. Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
Appeared on 19.03.2013 at the time of arguments,
For the Petitioner Mr. Amit Kumar Sharma, Advocate
For the Respondent (s) Mr. Rakesh Chadha, Advocate Mr. Nikhil Jain, Advocate
PRONOUNCED ON : 10 th APRIL, 2013
O R D E R PER DR. B.C. GUPTA, MEMBER
These Revision Petitions have been filed under Section 21 of the Consumer Protection Act, 1986 against the order dated 05.01.2012 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (hereinafter referred to as ‘State Commission’) in Appeal No. 986 of 2011, vide which the State Commission has directed that the possession of the shop in question may be handed over to the complainant/respondent within a period of two months and also she should be given interest @ 9% on the amount, which is lying in deposit with the petitioner/Rajya Krishi Utpadan Mandi Parishad, Lucknow. 2. This single order shall dispose of both the petitions in question and a copy of the same may be placed on each file. 3. Briefly stated, the facts of the case are that the petitioner/opposite party No.1- Rajya Krishi Utpadan Mandi Parishad, Gomti Nagar,Lucknow invited applications for registration for construction of shops in ‘Apna Bazar’ Fruit, Flower and Vegetables Market Scheme (Phase-III) in Gomti Nagar, Lucknow from 01.01.1997 to 31.01.1997. The complainant/respondent No.1-Madhu Shukla made application for the allotment of a shop in Super Bazar under the Scheme and deposited a sum of Rs. 43,075/- as registration money. She was informed vide letter of opposite party dated 30.4.1997 that the registration had been affected and the allotment money of Rs. 43,670/- should be deposited. The said amount was deposited by the complainant and further vide letter dated 29.07.1997 from the opposite party, allotment of shop No. 96 was made to her. The complainant deposited a sum of Rs. 1,72,802/- with the opposite party against the total cost of construction of the aforesaid shop i.e. Rs. 1,72,300/-. However, the possession of the shop in question was never given to the complainant on the ground that due to various reasons, the construction of shop No. 96 in the Scheme had not been possible. The opposite party allotted another shop No.53 in the same market to the complainant, but she refused to accept the said allotment saying that shop No. 53 was smaller in size as compared to shop No. 96. Another question then arose that one of the shops from shop No. 80 to 91 could be allotted to the complainant, but the opposite party took the stand that these twelve shops had been earmarked for Government functionaries. A consumer complaint was filed by the complainant against the opposite party in the District Forum, which passed an order on 19.4.2011 saying that the possession of shop should be given to the complainant within thirty days at the old prescribed rates and a sum of Rs. 10,000/- to take care of mental agony and Rs. 2,000/- as litigation expenses should also be given to her. 4. An appeal was filed by the opposite party/present petitioner before the state Commission, which vide impugned order, directed that the possession of the shop may be handed over to the complainant within two months. It is against this order that the present petitions have been made by the opposite party. 5. At the time of hearing before us, the learned counsel for the petitioner stated that shop No. 53, in place of shop no. 96 had already been allotted to the complainant and a letter to this effect had also been issued on 01.08.2011. However, the complainant had refused to accept the allotment of said shop. Further, shops No. 80-91 had been kept reserved for Government Departments and could not be allotted to the complainant. Out of these twelve shops No. 80-91, 10 shops had been reserved for the Rural Developemnt Department under ‘Swarn JyantiGram Vikas Swarojgar Yojna’ and two shops had been kept by the petitioner Department themselves. It is clear therefore that these shops had been reserved keeping in view the public interest. Moreover, the value of these shops had also risen sharply during the past few years and one of these shops was sold to the complainant at old rates, it shall put the Department to huge financial loss. The learned counsel for the petitioner, referring to the delay of 37 days in filing the petition stated that the impugned order was passed on 05.01.2012 and at that time, General Elections had been declared in the State and the staff of the Department had been put on election duty. The Director of the Department had also been made an Election Observer. 6. On the other hand, the learned counsel for the respondent stated that there is no valid ground for the condonation of delay in the present case. None of the staff from the petitioner Department had been put on election duty. Moreover, the election in Lucknow had been held on 16.02.2012 but the petitioners were sitting idle and did not take any action in the present case. In the second petition, there was a delay of 69 days in filing the petition. 7. It has further been stated on behalf of the respondent No.1 that the respondent/complainant was a valid allottee of the shop under the Scheme and the money deposited by her had been lying pending with the Department for a number of years. She was therefore, entitled to get the shop under the Scheme and hence it was clear that the orders passed by the State Commission and District Forum were valid in the eyes of law. 8. We have examined the entire material on record and given our thoughtful consideration to the arguments advanced before us. In Revision Petition No. 2168 of 2012, there has been a delay of 37 days in filing the petition, whereas in revision petition No. 2421of 2012, there is a delay of 69 days. The petitioners have tried to give explanation for delay by saying that the State machinery was busy with the elections being held in the State and hence they could not take timely action for filing the petitions. However, the plea does not seem to be based on any sound reasoning and these petitions deserves to be dismissed on this ground alone. 9. Now coming to the merits of the case, it is an admitted fact that Smt. Madhu Shukla gave an application for the allotment of a shop under the said Scheme and deposited the amounts in question as demanded by the petitioner from time to time and the said money has been lying deposited with the petitioner for a long time. She was also given allotment of shop No. 96 but due to the non-availability of proper site or other reasons, it was not possible for the petitioner to construct the said shop. The petitioner also made allotment of an alternative shop, but the same was smaller in size as compared to the one already allotted. The complainant refused to accept the allotment of the said shop. As per the current situation, however, it is very clear that the twelve shops with numbers 80 to 91 are lying constructed under the Scheme and they are stated to be reserved for Government Departments by the petitioner. The petitioner has stated that ten of these shops are meant for the Rural Development Department under some National Scheme and two of these shops are for the petitioner Department. However, looking at the entire circumstances of the case and the mental agony and harassment suffered by the complainant, we find it appropriate that one of these shops should be allotted to the complainant and the Government Departments could bear with the remaining eleven shops. The District Forum as well as the State Commission have also ordered that one of the shops should be given within the prescribed time. The State Commission has also ordered that interest of 9% should be paid on the amount lying in deposit with the petitioner. We do not find anything wrong with this part of the order as well. 9. Based on the discussions above, we find that the impugned order does not suffer from any illegality or infirmity from any standard. The same is therefore upheld and the present revision petitions are ordered to be dismissed with no order as to costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER SB/4 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2472 OF 2012
(From the order dated 06.02.2012 in First Appeal No. 1062/2011 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)
1. Urban Improvement Trust, Alwar Through Secretary
2. Chairman, Urban Improvement Trust, Alwar
... Petitioner (s)
Versus
Phool Singh Vijay, Son of Gokul Chand Vijay, Resident of 5 B 39, Pratap Nagar, Manumarg Housing Board, Alwar, Rajasthan
…. Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
Appeared on 15.04.2013 at the time of arguments,
For the Petitioner(s) Ms. Archana Pathak Dave, Advocate
Mr. Ram Awadh Yadav, Advocate
For the Respondent (s) Mr. Manindra Dubey, Advocate
PRONOUNCED ON : 25 th APRIL, 2013
O R D E R PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the order dated 06.02.2012 passed by the Rajasthan State Consumer Disputes Redressal Commission, Jaipur (hereinafter referred to as “State Commission”) in First Appeal No. 1062 of 2011 filed by the present petitioners against the order dated 28.02.2011 passed by the District Consumer DisputesRedressal Forum, Alwar in complaint case no. 370/2009 filed by the present respondent alleging deficiency in service on the part of the petitioner in charging certain amount of penalty for not constructing the house in time on the plot allotted by the petitioner to the complainant/respondent. 2. Briefly stated, the facts of the case are that the complainant/respondent purchased a plot on 10.03.2003, bearing number 108 under Shiv Complex Scheme of the petitioner for a sum of Rs. 3,77,837/- and allotment letter dated 01.4.2003 was issued in favour of the complainant. It has been alleged that the possession of the said plot or the site plan was not given to the complainant for a long time. The complainant filed an application on 31.03.2008 for the purpose of execution of the lease deed in favour of the complainant, but it was not executed. The petitioner demanded a sum of Rs. 17,274/- as a penalty for non-construction of the house for a long time. The complainant filed a consumer complaint before the District Forum, Alwar and, vide order passed on 28.02.2011, the District Forum ordered that sum ofRs. 17,274/- towards penalty for not carrying out construction should be returned to the complainant with interest of 6% per annum within one month. In addition, a sum of Rs. 3,000/- was also allowed as compensation for mental agony, harassment and cost of litigation incurred by the complainant. An appeal filed before the State Commission against this order was dismissed by the said Commission on 06.02.2012. It is against this order that the present petition has been made. 3. Heard the learned counsel for the parties and examined the record. 4. The learned counsel for the petitioner has drawn our attention to the order passed by the State Commission, saying that the said order is sketchy and no reasons have been given by the State Commission for agreeing with the findings of the District Forum. It was obligatory on the State Commission to have examined the entire facts of the case and then given detailed reasons for coming to their conclusion, but it was not done. The learned counsel further stated that the District Forum had no jurisdiction to hear the complaint, because an auction-purchaser is not a consumer in the eyes of law. The learned counsel pointed out our attention to the judgement given by the Hon’ble Apex Court in UT Chandigarh Administration & Ors. Vs. Amarjeet Singh & Ors. as reported in AIR 2009 SC 1607. In the revision petition also, the petitioners have taken the main ground that the complainant in the present case, being auction- purchaser was not a consumer. 5. The learned counsel for the respondent however, maintained that the orders passed by the fora below were based on a correct appreciation of facts and legal principles. 6. We have examined the entire material on record and given our thoughtful consideration to the arguments advanced before us. A perusal of the order passed by the learned State Commission in Appeal against the order passed by the District Forum indicates that the State Commission have not given any reasons for agreeing with the order of the District Forum. They have not discussed the merits of the case at all, rather they have simply observed that the District Forum have passed their order on the facts and circumstances applying its mind and there was no necessity to interfere with the same. 7. The facts of the case make it clear that the crucial issue to be decided in the present case is whether there was delay in delivering the possession and if it was so, whether the petitioner was at fault or to what extent? It has been stated by the petitioner in their written statement filed before the District Forum that the complainant has deposited the entire amount of the plot on 05.05.2003, but he did not appear before them for the execution of the lease deed and get possession letter, even after being informed by the petitioner on 31.05.2003. The complainant appeared for the first time on 20.4.2008 on which the petitioner demanded a sum of Rs. 41,579/- towards municipal tax and Rs. 17,274/- towards penalty for not carrying out construction and some other charges. When the said amounts were paid, the possession was delivered to the complainant. Based on this assertion of the petitioner, it is necessary to go into this question whether the late delivery of possession was due to the fault of the petitioner, or because of the non-appearance of the complainant. 8. In view of above discussion, we are inclined to accept this revision petition and set aside the order of the State Commission and remit the case back to the State Commission with the direction that the parties should be heard again and detailed appraisal of the facts and circumstances of the case may be made and then the appeal decided, giving reasons for coming to the conclusion. We, therefore, order accordingly with no order as to costs. 9. Parties are directed to appear before the learned State Commission on 24.05.2013.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER SB/4 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 186 of 2008 (From the order dated 10.07.2007 in Appeal No. 1385/2007 of Haryana State Consumer Disputes Redressal Commission, Panchkula)
Lakhpat Rai S/o Sh. Jaimal Singh R/o 1281, Sector 6, Urban Estate Karnal Haryana. … Petitioner/Complainant
Versus 1. The Estate Officer, Haryana Urban Development Authority, Panipat
2. The Chief Administrator, Haryana Urban Development Authority Sector 6, Panchkula
…Respondent/Opposite Party (OP
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner : In person
For the Respondents : Mr. Ashish Kumar, Advocate
PRONOUNCED ON 25 th April, 2013
O R D E R PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/Complainant against the impugned order dated 10.07.2007 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 1385 of 2007 – Lakhpat Rai Vs. HUDA by which, appeal filed by the petitioner was dismissed. 2. Brief facts of the case are that petitioner/complainant’s complaint was allowed by learned District Forum by order dated 25.7.2005 and OP/respondent was directed to give the petitioner benefit of interest on his deposits from the date of their respective deposits till 22.6.1999. Aggrieved by this order, OP preferred Appeal No. 1555/2005, which was dismissed by learned State Commission vide order dated 3.2.2006. Later on, petitioner filed Execution Application before the District Forum, which was dismissed by learned District Forum vide order dated 4.1.2007. Appeal filed by the petitioner against the aforesaid order was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed. 3. Heard learned petitioner in person and learned Counsel for the respondents and perused record. 4. Petitioner submitted that as per his calculation, respondent may be directed to make payment of a sum of Rs.98,250/- which has been calculated @ 15% p.a. On the other hand, learned Counsel for the respondents submitted that respondent has already been paid/adjusted interest to the tune of Rs.64,175/- and balance Rs.311/- has been paid on 9.4.2013; hence, revision petition be dismissed. 5. Perusal of order of District Forum reveals that no interest rate has been disclosed by District Forum and in such circumstances, petitioner is not entitled to get interest @ 15%. Respondent has already made payment @ 10% interest p.a., though no rate of interest has been mentioned in the order. Learned District Forum has not committed any error in dismissing Execution Application as satisfied and learned State Commission has also not committed any error in passing impugned order. Petitioner is not entitled to get interest @ 15% p.a. without order in the complaint. We do not find any infirmity, irregularity or jurisdiction error in the impugned order and revision petition is liable to be dismissed. 6. Consequently, revision petition filed by the petitioner is dismissed with no order as to costs. ..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 08 OF 2012 (Against the order dated 08.11.2011 in Appeal No. 436/2011 & 410/2011 of the State Commission Chhattisgarh, Raipur)
Anupam Pandey s/o Shri D.K.Pandey r/o D-154, Sector-1 Devendra Nagar, Raipur District Raipur ...... Petitioner Vs. 1. Chhattisgarh Housing Board Shankar Nagar, Raipur (Chhattisgarh) 2. Chhattisgarh Housing Board Through : Estate Officer, Old Division No.1 New Division No.4, Shankar Nagar Raipur, District. Raipur
...... Respondents
REVISION PETITION NO. 1800 OF 2012 (Against the order dated 08.11.2011 in Appeal No. 410/2011 & 436/2011 of the State Commission Chhattisgarh, Raipur)
Chhattisgarh Housing Board Shankar Nagar, Raipur (Chhattisgarh) 2. Chhattisgarh Housing Board Through : Estate Officer, Old Division No.1 New Division No.4, Shankar Nagar Raipur, District. Raipur ...... Petitioner Vs. Anupam Pandey s/o Shri D.K.Pandey r/o D-154, Sector-1 Devendra Nagar, Raipur District Raipur ...... Respondent
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER For Anupam Pandey : Mr.Mohd. Anis, Advocate For Housing Board : Mr.Rekha Aggarwal, Advocate PRONOUNCED ON 29 th APRIL, 2013 ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
The complainant Anupam Pandey as well as Opposite Party Chhattisgarh Housing Board, Shankar Nagar, Raipur being aggrieved by the impugned order dated 08.11.2011 of the State Commission have preferred the above noted revision petitions.
2. Briefly put the facts relevant for disposal of above noted revision petitions are that complainant booked a MIG Deluxe House at Saddu Raipur with Opposite Party under self financescheme. The complainant was duly informed about allotment of house no. 84 vide opposite party’s letter dated 06.07.2006. As per the allotment letter, price of the house was Rs.9,48,000/-. The complainant deposited a sum of Rs.1,42,000/- at the time of registration besides he deposited two instalments of Rs.2,01,000/- each within time. The balance final instalment of Rs.2,03,000/- was required to be paid at the time of delivery of possession. Before delivery of possession, the opposite party raised a demand of additional sum of Rs.2,10,000/- on the premise that final price of the house in question was worked out to be 11,89,000/-. As per the allegation in the complaint, the complainant was always prepared to pay the last instalment of Rs.2,03,000/- at the time of delivery of possession and that the demand of the opposite party for escalated cost was not justified. Complainant thus filed a complaint against the opposite party claiming compensation of Rs.4,00,000/- on account of deficiency in service in failure of the opposite party to deliver possession of the house within reasonable time besides the complainant claimed interest @ 18% p.a. on the amount deposited by him with the opposite party.
3. The opposite party contested the allegations in the complaint on the ground that Rs.9,48,000/- was only the estimated cost of house and final cost was to be calculated after the completion of construction. That on final calculation, the price of the house was worked out to be Rs.11,89,000/-, so the notice of demand was sent to the complainant calling upon him to pay the last instalment alongwith escalated price. Besides the opposite party took the objection that the consumer forum has no jurisdiction to decide the matter relating to the cost of construction. It was also alleged that the complainant is not entitled to interest on the amount paid by him.
4. The District Forum on consideration of the submissions made by the parties and evidence on record partly allowed the complaint and directed the opposite party to pay to the complainant interest @ 6% on the amount paid by the complainant from the date of deposit of registration amount and the subsequent instalments respectively till the date of delivery of possession of house complete in all respects to the complainant. The District Forum also awarded compensation of Rs.5000/- for mental agony suffered by the complainant besides cost of litigation of Rs.1000/-
5. Complainant as also the opposite party both being aggrieved of the order of the District Forum preferred respective appeals before the State Commission. The State Commission vide impugned order disposed of the appeals with following observation:
“The District Forum had directed payment of interest from the dates of respective payment of installments. We do not find the said direction to be proper, hence it is set aside. It is noted that the installments were required to be paid on quarterly basis and third installment was paid by the complainant on 28.3.2007. Even after generously allowing a period one year for completion of house the complainant is entitled to get interest @ 9% from 28.3.2008 over the amount of Rs.7,45,000/- deposited by him. Besides this the complainant is also entitled to Rs.50,000/- towards compensation for physical inconvenience and mental harassment due to non construction of direct approach road and Rs.3,000/- towards cost of proceedings throughout from the OPs. Appeal No.410/11 & 436/11 are hereby disposed off in aforementioned terms.”
6. Learned Shri Mohd. Anis, Advocate, appearing for the complainant has contended that the impugned order of the State Commission suffers from grave error. It is argued that the State Commission was not justified in awarding interest on the deposits made by the petitioner w.e.f. 28.03.2008 instead of respective dates of deposit of instalment. Learned counsel further contended that the State Commission instead of awarding 9% interest on the deposits ought to have awarded 18% interest and besides this, the compensation of Rs.50,000/- for delay in handing over the possession of the house is too meagre and disproportionate to the harassment and mental torture caused to the complainant. 7. We do not find merit in the above contention. On perusal of the impugned order, we find that the State Commission while agreeing that there was deficiency in service on the part of the opposite party - Housing Board, modified the order of the District Forum by awarding the interest on the deposits made by the complainant w.e.f. 28.03.2008 till the date of delivery of possession on the premise that the complainant had booked the house on self finance basis and after the payment of instalments made by the complainant, certain time was supposed to be taken by the opposite party for completing the construction of the house. The State Commission has thus given a grace of one year for completion of the house in order to fix the date from which the interest is to be paid. We do not find any infirmity in the aforesaid approach adopted by the State Commission. 8. As regards the compensation of Rs.50,000/- for physical inconvenience and mental harassment due to non construction of approach road, learned counsel for the complainant has contended that aforesaid compensation is highly disproportionate to the inconvenience and harassment caused to the petitioner. On the contrary, learned counsel for the opposite party has contended that there is no justification for awarding compensation of Rs.50,000/- due to non construction of direct approach road for the reason that the opposite party was prevented from constructing the approach road because of the stay order of the Hon’ble High Court. Learned counsel for the opposite party has contended that since approach road could not be constructed because of the stay order of the High Court, the opposite party cannot be held to be deficient in service sofaras construction of approach road is concerned. We are in agreement with the above contention of the learned counsel for the opposite party. Thus, we do not find any justification in the plea of the complainant for enhancement of compensation amount of Rs.50,000/-. On the contrary we are of the view that there is no justification for awarding compensation on account of non construction of direct approach road as the Housing Board (O.P) was prevented from constructing the approach road because of the stay order of the Hon’ble High Court. 9. In view of the discussion above, we do not find any merit in the revision petition filed by the complainant Anupam Pandey. It is accordingly dismissed. Revision petition filed by opposite party – Housing Board is partly allowed and while maintaining the remaining order of the State Commission, we set aside the order granting compensation of Rs.50,000/- to the complainant on account of physical inconvenience and mental harassment due to non construction of direct approach road. The revision petitions are disposed of accordingly. Signed copy of the order beplaced in both the files.
……………………………………… (AJIT BHARIHOKE, J) ( PRESIDING MEMBER)
……………………………………… (SURESH CHANDRA) MEMBER Am/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 3095 of 2012
(From the order dated 20.04.2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in First Appeal no. 1837 of 2010)
Housing Board Haryana Through its Secretary Sector 6, Panchkula Haryana Petitioner
Versus
Shri Kuldeep Anand Son of Late Shri P C Anand R/o 5D/ 58 NIT Faridabad Haryana Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA MEMBER
For the Petitioner Mr Salil Paul, Advocate
For the Respondent Mr D S Chadha, Advocate
Pronounced on 29 th April 2013
ORDER REKHA GUPTA
Revision petition no. 3095 of 2012 has been filed against the order dated 20.04.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula(‘the State Commission’) in First Appeal no. 1837 of 2010.
The facts of the case as per the respondent/complainant are as follows:
On 01.05.1998 the Housing Board Haryana invited applications for allotment of LIG houses by way of draw and accordingly the respondent/complainant applied for the allotment of the said flat vide his application form no. 004200 dated 26.05.1998 along with a Bank draft of Rs.10,000/- bearing no. 0000440 dated 25.05.1998 issued by the Bank of India in favour of Housing Board Haryana and the Housing Board Haryana issued the receipt of the same to the complainant on 26.05.1998.
The application of respondent/complainant was registered vide registration no. 2577 LIG/Gen and the said draw was held on 14.07.1999 at Sector 6 Panchkula. In the said draw no house was allotted to the respondent/ complainant and the amount of Rs.10,000/- remained deposited with the petitioner/ respondents. The respondent/complainant many a times requested the petitioner to refund the amount of Rs.10,000/- but every time the petitioner kept on saying that another draw of waiting list is to be commenced and they had kept his money for the draw.
On 07.04.2003 the respondent finally wrote to the petitioner no. 1 to refund the deposited amount. The petitioner no. 1 instead of refunding the deposited amount sent a letter no. HBH/CRO-A/2003/12769 dated 16.10.2003, after a span of three months, informing the respondent that the name of respondent has been kept in waiting list and will be considered in the second draw of lots of houses. The second draw was held on 03.11.2003 at 10.00 a m in Sector 6, Panchkula Housing Board Office, Panchkula.
In the second draw the respondent was allotted tenement no. 2309 A in general scheme at Sector 55, Faridabad vide allotment letter no. 10326 dated 24.11.2003 which was received by petitioner on 02.12.2003, wherein apart from cost of the said house petitioners have calculated the interest of Rs.34,235/- from 26.05.1998.
As per the respondent since he has been allotted the said house only on 03.11.2003 in the second draw and the allotment letter was issued on 24.11.2003 which was received by the respondent on 02.12.2003, the respondent is not at all liable to pay the interest of Rs.34,235/- from May 1998, the respondent was not allotted any house in the first draw and on the other hand the respondent is entitled to receive interest @ 18% per annum on Rs.10,000/- from 26.05.1998 till 03.11.2003, when in the second draw the respondent has been allotted the said house. The respondent stated that he was ready and willing to deposit the balance sale price of Rs.17,510/- or any other legal dues to the housing board.
The respondent/complainant sent a letter dated 08.12.2003 to the petitioner no. 2 asking why the respondent was being charged with such an exaggerated interest of Rs.34,325/- on the LIG flat without any cogent reasons. After getting no reply, the respondent sent another letter dated 23.12.2003, to the petitioner no. 2. In reply to the above stated letter, the petitioner no.2 intimated to the respondent that his case has been sent to the Head Office vide letter no. 11341 dated 30.12.2003 for necessary action.
Thereafter, to the utter surprise of the respondent instead of receiving any concession, the respondent received a letter no. HBH/EB/2001/11361 dated 30.12.2003 stating that since the respondent had failed to execute the Hire Purchase Tenancy Agreement and to take possession of the house he had acted in contravention of the regulations of the petitioner. Petitioner no. 2 further gave the date of 15.01.2004 to show cause and tender evidence as to why the allotment should not be cancelled.
In reply to the letter dated 30.12.2003 of the petitioner no. 2, respondent vide letter dated 15.01.2004 explained the reason for non-deposit of amount and further asked the petitioner to explain the reason, why the interest is being charged from him. In response the petitioner/ OP no. 1 while accepting the facts as mentioned by the respondent have submitted that the respondent has no locus standi to file the present complaint against the petitioner.
The respondent has no cause of action to file the present complaint against the petitioner. The complaint is liable to be dismissed for not exhausting the remedies available under Section 72 A and 72 B of the Haryana Housing Board Act, 1971 and it is settled law that when remedies under special Act like the Haryana Housing Board Act, 197 has been provided by the above said act then the general remedies of filing complaint in present form is barred.
The facts of the case as given by the complaint were admitted. However, it was further submitted that interest of Rs.34,235/- has been demanded legally and as per policy of the board. The Board has charged Rs.34,235/- as interest amount from the petitioner upon the principal amount of Rs.91,700/- w.e.f May 2001 to December 2004 as per policy of the Board. Thus the Board had correctly and legally demanded the amount in question from the petitioner.
The Consumer Disputes Redressal Forum, Faridabad (‘the District Forum’) after hearing the counsel for the parties and going through the records of complaint no. 119 of 2004 made their order dated 10.11.2010 stated as follows:
“When asked during the course of argument as to why the Board had demanded interest on the cost of the house from the respondent/complainant in the letter of allotment dated 24.11.2003, the Estate Officer who was present in person, explained that since the construction of the house had been completed in the year 2001 at the cost of Rs.91,700/- as shown in the allotment letter and it was allotted to the respondent/complainant when the first allottee failed to take possession of the same, the interest was added on the cost of the house which was actually allotted to the respondent/complainant on 24.11.2003 because the respondent had raised loan for constructing the house from the bank and they (respondents) were also paying interest to the bank on the loan amount. But this explanation was furnished by the Estate Officer for the first time during the course of arguments. No such explanation was given by the respondents in their written statement nor they submitted any such explanation in reply to the letters written by the complainant time and again asking the respondents as to how and on what basis the interest was added on the cost of the house. The respondents issued show cause notice to the complainant as to why the allotment of house made in his favour be not cancelled when he had deposited the cost of the house along with interest and had not obtained the possession thereof but the respondent never tried to explain as to under what condition of allotment or the rules of the Housing Board, the interest was being charged from him on the cost of the house when the allotment letter of the house was issued to him for the first time on 24.11.2003. A brochure of the Housing Board Haryana was shown at the time of arguments by the counsel for the complainant. Condition no. 7 of the brochure reads that the Housing Board Haryana reserved the right to demand any amount before allotment over and above the amount payable after draw of lots in case of escalation of cost. Condition no. 3 of the allotment letter also provides that the amount of monthly instalment, rate of interest to be charged and the total cost of the house can be increased at any time without assigning any reason. In view of these conditions of allotment the respondents were within their rights to ask for escalation of the cost, if any, of the house allotted to the complainant but they had no right to ask for payment of interest on the cost of the house in the letter of allotment itself and that too without replying the letters of the complainant as to how the interest was added and calculated on the cost of the house.
The response for non-deposit of the cost of house by the complainant was that he wrote letters to the respondents time and again asking them as to how and why the interest was added on the cost of the house in the letter of allotment but they failed to reply any of his letters and to furnish any explanation for charging of interest. Since the complainant did not receive any reply of his letters he did not deposit the total amount demanded from him towards the price of the house. In these circumstances, there was no justification for cancellation of the allotment of the house made to the complainant. The order of cancellation of house dated 01.03.2004, is therefore, not legally sustainable in the eyes of law.
Resultantly, the cancellation order dated 01.03.2004 passed by respondent no. 1 for cancellation of the allotment of house no. 2309 A in Housing Board Colony, Sector 55, Faridabad, is held to be illegal and not binding upon the complainant. This house shall not be allotted to any other person till a fresh order is passed by the competent authority of the respondents in respect of the allotment of the said house after affording a reasonable opportunity of hearing to the complainant. The respondents are also ordered to pay Rs.10,000/- as cost of litigation and mental harassment to the complainant”.
Aggrieved by the order of the District Forum, the petitioner filed an appeal in the State Commission. The State Commission after hearing the learned counsels in their order dated 20.04.2010 stated as follows:
“The complainant applied for flat on 26.05.1998 pursuance to the advertisement dated 01.05.1998 and deposited the requisite amount. The draw was to be held on 14.07.1999 in the said draw, the complainant was not found successful. On being enquired into it transpired that the name of unsuccessful applicants had been kept in the waiting list to be considered in the future draw. The amount deposited kept lying with the OPs. Subsequent draw being held and complainant being successful, complainant deposited the amount, however, since OPs demanded interest on the cost of the flat, the complainant challenged the same and in the meanwhile, OPs also cancelled the flat. The District Forum allowed the complaint of the complainant. Since the amount deposited by the complainant kept with the OPs, the liability was of OPs. To pay interest on the amount and not vice versa. Despite OPs could not ask interest from complainant and that by itself an unfair trade practice. Therefore, District Forum had taken into consideration at the aspects rightly and allowed the complaint of the complainant. No ground to interfere in the impugned order.
Hence this appeal is dismissed”.
Aggrieved by order of the State Commission, the Haryana Housing Board has filed this present revision petition. The main grounds in the revision petition are that:
- the State Commission, Haryana and the District Forum Faridabad gravely erred in passing the orders/judgments against the petitioner, Housing Board Haryana without appreciating the fact that 1st draw of lot for houses were made on 14.07.1999 and the 2nd draw of lots for houses were made on 03.11.2003 and thus there was a gap of 3 years and four months. The petitioner, Housing Board Haryana is entitled to the interest on cost. The two Fora below failed to appreciate that the house given to the applicants/ persons in the years 1999 at the price of Rs.91,700/- cannot be same for the applicants/ persons in the year 2003 i.e., after a gap of three years and four months. Increasing the cost of the house after three years and four months by Rs.34,235/- on account of interest on cost by the petitioner, Housing Board Haryana is not wrong demand but is a justified reason and legal. This is the policy of the petitioner Housing Board.
- the State Commission, Haryana and the District Forum Faridabad gravely erred in passing the orders/ judgments against the petitioner, Housing Board Haryana without appreciating the fact that the cost of the flat has to be increased as Rs.1,28,005/- which includes the original price of the house as Rs.91,700/-. Enhanced land compensation as Rs.2070/- and interest on cost as Rs.34,235/-. It be stated that interest on cost as Rs.34,325/- means interest from May 2001 to December 2003 @ 14% per annum.
- the State Commission, Haryana and the District Forum, Faridabad gravely erred in passing the orders/ judgments against the petitioner, Housing Board Haryana without appreciating the fact that the interest on cost as Rs.34,235/- means interest from May 2001 to December 2003 @ 14% per annum. The houses are made by the petitioner, Housing Board Haryana and the money is spent on in the year 1999-2000-2001 and the successful applicants of 1st draw of lots of houses are given houses. In the 1st draw of lot on 14.07.1999 some of the successful applicant cancelled/ withdraw/ surrendered their name and so those houses were put in the second list of draw of houses whose name were in the waiting list like the respondent/complainant – applicant. After three and half years, 2nd draw of lots of houses are performed and the houses are given to the applicants who are in the waiting list of the 1st draw of lots and are successful applicants in the 2nd list of draw of houses. The price of the house cannot be same for the persons getting house in the 1st draw of lots of houses and the persons getting house in the 2nd draw of lots after a gap of 3 and half year. This is the policy of the petitioner Housing Board Haryana.
- the State Commission, Haryana and the District Forum, Faridabad gravely erred in passing the orders/ judgments against the petitioner, Housing Board Haryana without appreciating the fact that in the present case the fault is of the respondent/ complainants himself as he was not deposited the money as per the allotment letter.
- the State Commission, Haryana and the District Forum, Faridabad gravely erred in passing the orders/ judgments against the petitioner, Housing Board Haryana, without appreciating the fact that the respondent/ complainant – applicant after the receipt of the allotment letter dated 24.11.2003 regarding House no. 2309 A/LIG/FF, in Sector 55, Housing Board Colony, Faridabad, Haryana has been allotted to him, neither respond to it nor did pay the amount as stipulated in the said allotment letter and so as per the so as per the above stated Housing Board, Haryana (Allotment, Management and Sale of Tenements) Regulations, 1972, allotment letter, rules and regulations and the terms and conditions of the Housing Board Haryana, ultimately the petitioner/ OP Housing Board Haryana as per the policy vide letter dated 30.12.2003 issued Show Cause Notice to the respondent/ complainant – applicant and finding no positive respondent cancelled the house allotted to him and paid 50% of the Registration amount.
We have heard the learned counsels for both the petitioner as well as the respondent and have carefully gone through the records of the case.
We asked the Counsel for the petitioner whether the respondent had asked for a refund after he was not allotted the flat in the draw held on 14.07.1999. The counsel categorically stated that the respondent had not ask for the refund. In paragraph 3 and 4 of the complaint of the respondent before the District Forum he has stated as follows:
- the application of complainant was registered vide registration no. 2577 LIG/Gen and the said draw was held on 14.07.1999 at Sector 6 Panchkula. In the said draw no house was allotted to the complainant and the amount of Rs.10,000/- remained deposited with the respondents. The complainant many time requested the respondents to refund the amount of Rs.10,000/- but every time respondents kept on saying that an another draw of waiting list is to be commenced and we had kept your money for the draw.
- that on 07.04.2003 the complainant finally wrote down the respondent no. 1 to refund the deposited amount. The respondent no. 1 instead of refunding the deposited amount sent a letter no. HBH/CRO – A/2003/12769 dated 16.10.2003 after a span of three months informing the complainant that the name of complainant has been kept in waiting list and will be considered in the second draw of lots of houses, which was held on 03.11.2003 at 10.00 a m Sector 6, Panchkula Housing Board Office, Panchkula. Respondent no. 1 in their written statement before the District Forum had admitted the facts contained in paragraphs 3 and 4 only denying that it would be wrong to say that the complainant many times requested the answering respondent to refund the amount of Rs.10,000/-. Counsel for the petitioner has hence, tried to mislead the Bench on this score.
In paragraph IV of the grounds for the revision petition it is that respondent/complainant after the receipt of the allotment letter dated 24.11.2003 regarding house no. 2309 A/LIG/FF in Sector 55, Housing Board Colony, Faridabad, Haryana has been allotted him, neither responded to it nor did he pay the amount as stipulated in the allotment letter.
However, we note that in paragraph 8 of the complaint the respondent has stated as under:
“The complainant sent a letter dated 08.12.2003 to the respondent no. 2 asking why the complainant be charged with such an exaggerated interest of Rs.34,235/- on the LIG Flat without any cogent reason. After getting no reply, the complainant sent an another letter dated 23.12.2003 to the respondent no. 2. In reply to the above stated letter, the respondent no. 2 intimated the complainant that his case has been sent to the Head Office vide letter no. 11341 dated 30.12.2003 for necessary action”. We also noted that the petitioner in their written statements have admitted the facts as mentioned by the complainant. Hence, it is apparent that the petitioner has also tried to mislead the court in the revision petition.
Counsel for the petitioner drew the attention of the Bench to the allotment letter dated 24.11.2003 which is reproduced below:
“Housing Board Haryana Housing Board Colony Sector 55 Station Faridabad No. 10326 Dated 24.11.2003
Shri Kuldeep Anand Son of Shri P C Anand House no. 5 D – 58 NIT Faridabad Reference: Your application registered at Registration no. 1952/174
1. LIG General Scheme Tenement no. 2309 A area 1423 sq mtr in the Housing Board colony at Sector 55 Faridabad is allotted to you on hire-purchase basis on aallotment/final price noted below: (i) Price of House (normal area) Rs.9,17,000/- (ii) ELC Rs. 2,070/- (iii) Additional Charges for preferential NIL (Corner) House (iv) Interest on cost Rs. 34,235/- TOTAL Rs.1,28,005/-
2. The details of the amount deposited by you as per your application etc., is given below:
(a) Registration deposit Rs.10,000/- (b) Amount deposited after draw of lots ------(c) ------TOTAL Rs.10,000/-
3. You are requested to deposit the following amount and take possession of the house within 30 days from the date of issue of this letter
(1) Cost of additional land NIL (2) ELC Rs. 2,070/- (3) Allotment money Rs.17,510/- (4) Cost of H P T A Rs. 5/- (5) Interest on Cost Rs.34,235/- (6) Two monthly Installments Rs. 1,796/- TOTAL Rs.5,616/-
4. The balance price of the house is payable in monthly instalments of Rs.898/- per month each over a period of 13 years”.
It is apparent from the allotment letter that the price of the house is still shown as Rs.91,700/-. ELC has shown as Rs.2070/- and item no. 4 interest on cost which is written in hand is shown as Rs.34,235/- with the total coming to Rs.1,28,005/-. He has been asked to deposit Rs.55,616/- and take possession of the house within 30 days. There is no explanation in the allotment letter regarding interest on cost and the amount of Rs.17,510/-. The respondent has stated in his complaint that in reply to the letter dated 30.12.2003 of respondent no. 2, he had again asked an explanation on why interest being charged. The petitioners have even admitted this fact. The explanation for the ‘interest on cost’ was given for the first time before the District Forum. The District Forum in their order had rightly recorded that: “In view of the conditions of allotment the respondent were within their rights to ask for escalation of the cost, if any, of the house allotted to the complainant but they have no right to ask for payment of interest on the cost of the house in the letter of allotment itself and that too without replying to the letters of the complainant as to how the interest was added and calculated on the cost of the house”. The State Commission in their order also came to the same conclusion that: “ Since OPs demanded interest on the cost of the flat, the complainant challenged the same and in he meanwhile, OPs also cancelled the flat. The District Forum allowed the complaint of the complainant. Since the amount deposited by the complainant kept with the OPs, the liability was of OPs, to pay interest on the amount and not vice versa. Despite OPs could not ask interest from complainant and that by itself an unfair trade practice”.
When the Bench asked the Counsel for the petitioner that was it not a fair request by the respondent that the petitioner clarify the position with regard to interest being charged to the respondent, the Counsel said that “the petitioner was a Government body and was not bound to give explanation or information”.
Counsel for the respondent drew our attention to clause 5.2 of the Housing Board Haryana (Allotment, Management and Sale of Tenements) Regulations, 1972, as amended upto 29th February 2004, which is reproduced below:
“Application for tenements – (1) Any person desiring to purchase a tenement in any building by way of sale or hire-purchase may, in pursuance of the notice published under Regulation 4 make an application to the Board in the form prescribed by the Board.
(2) No application shall be accepted by the Board unless it is received on or before the date specified in the notice or the date extended from time to time and the applicant pays the amount with the application at the time of registration as provided in the notice published under Regulation 4. The applicant shall not be entitled to any interest on the amount paid with the application at the time of registration where the Board allots him a house within a period of two years from the closing date of registration or where the applicant chooses to withdraw his application within the period of two years which will be governed by the provisions of regulations 12. In other cases, where the Board fails to allot houses within a period of two years from the closing date of registration, interest on amount paid within the application at the time of registration shall be payable for the period after the expiry of two years from the closing date off registration to the date of allotment or date of refund, whichever is earlier, at the rate application in the case of saving back accounts of the nationalized banks:
Provided that if the Board is satisfied that the delay in submission of an application was on account of good and sufficient reasons, it may condone the delay”. A reading of the same would clearly indicate that the petitioner was bound to pay interest on Rs.10,000/- after the expiry of two years from the closing date of the registration to the date of allotment whichever is earlier at the rate applicable in the case of savings bank accounts of the nationalized bank as petitioner were claiming 14%, they should have paid interest at the same rate.
Clause 10.3 of the same regulations states as under:
“Allotment letter, conditions of allotment etc:
(3) Notwithstanding anything contained in the notice inviting applications, if after receipt of final bills for the construction of tenements or payment of interest on the amount of loans taken for the constructions of such tenement or for expenditure incurred, for supervision, the Board considers it necessary to revise the price already specified in the notice, it may do so and determine the final price payable on allotment and all allottees in relation to the tenements aforesaid shall be bound by such determination and they shall pay difference, if any, between the final price so determined and the price paid by them including price paid in lump sum. Premium may also be charged for more advantageously situated tenements in the discretion of the Board as determined from time to time”.
We are of the view that the petitioner was well within their rights to revise the cost of the flat at the time of second draw on 03.11.2003 but the letter dated 16.10.2003 informing the respondent of the draw to be held on 03.11.2003 should have been clearly indicated the revised cost of the said flat so that he could have withdrawn from the draw if he so decided. The allotment letter should have also indicated the revised cost. The genuine doubt was caused by including the element of ‘interest on costs’ and by the petitioner to give an explanation to the petitioner. It is quite clear that he thought he was being charged interest for not paying the cost of the house in 1998. He has stated that:
“Hence, the respondent is not all liable to pay interest on Rs.34,235/- since the amount of Rs.10,000/- was paid in May 1998 and the complainant was not allotted any house in the first draw held on 14.07.1999. Further, the respondent had categorically stated that he is ready and willing to deposit the balance sale price of Rs.17,510/- or any other legal due to the Housing Board”.
Had the Housing Board explained the total cost by giving a detailed break-up of the amount due instead of arbitrarily cancelling the allotment, the respondent would have not have been denied the said flat for a period of over 9 years.
The counsel for the respondent have cited the case of Mohinder Singh Gill and Another vs The Chief Election Commissioner, new Delhi and Ors. – AIR 1978 Supreme Court 851. Counsel for the respondent has drawn our attention to paragraph 8 of the said order which reads as under: “The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order had in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observation of Bose J Gordhandas Bhanji (AIR 1952 SC 16).
Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself”.
The petitioner erred in failing to revise the cost of the tenements put up for allotment in the second draw held on 03.11.2003 and informing the public and more particularly those on the wait list. The petitioner, a public authority set up to provide affordable housing to the public, further failed to clarify a genuine doubt of an allottee with regard to the interest being charged and thereafter to compound their callous and indifferent attitude to the public and their allottees, unilaterally cancelled the allotment on grounds that would not stand to independent scrutiny. Further, the petitioner and their counsel have deliberately sought to mislead the Bench.
We feel that the District Forum and State Commission have rightly come to the conclusion that the petitioner has acted in an arbitrary manner and there was no justification for cancellation of the allotment of the house made to the respondent.
In the case of Ramrameshwari Devi and Ors. vs Nirmala Devi and Ors in Civil Appeal nos. 4912- 4913 of 2011 decided on 4th July 2011 the Hon’ble Supreme Court has held that:
“Pleadings are foundation of the claims of parties. Civil litigation is largely based on documents. It is the bounden duty and obligation of the trial judge to carefully scrutinize, check and verify the pleadings and the documents filed by the parties. This must be done immediately after civil suits are filed.
The court should resort to discovery and production of documents and interrogatories at the earliest according to the object of the Act. If this exercise is carefully carried out, it would focus the controversies involved in the case and help the court in arriving at truth of the matter and doing substantial justice.
Imposition of actual, realistic or proper costs and or ordering prosecution would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases the courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.
While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contests and defend the litigation in various courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts. The appellants have also wasted judicial time of the various courts for the last 40 years.”
In view of the foregoing reasons, we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is accordingly dismissed with cost of Rs.50,000/- (Rupees fifty thousand only).
Petitioner is directed to pay Rs.25,000/- to the respondent directly by way of demand draft and the balance amount of Rs.25,000/- be deposited by way of demand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, within four weeks from today. In case the petitioner fails to deposit the said amount within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.
List on 31st May 2013 for compliance.
Sd/- ..……………………………… [ V B Gupta, J.]
Sd/- ……………………………….. [Rekha Gupta]
Satish NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1159 OF 2013
(Against the order dated 22.11.2012 in FA No.679/2008 of the State Commission, Punjab)
Jagdev Singh, Son of Shri S.Balwant Singh, Resident of 20, Kewal Vihar, Jalandhar
……….Petitioner
Versus
Ludhiana Improvement Trust, Ludhiana through its Chairman/ Administrator
...... Respondent
BEFORE HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER For the Petitioner : Mr. Siddharth Mittal, Advocate PRONOUNCED ON: 30 April 2013 ORDER
PER MR.VINAY KUMAR, PRESIDING MEMBER Complainant Jagdev Singh has filed this revision petition against OP/Ludhiana Improvement Trust (hereinafter referred to as the LIT), challenging the order of the Punjab State Consumer Disputes Redressal Commission in FA No.679 of 2008. The District Forum had dismissed his complaint against the LIT and his appeal has been dismissed by the State Commission in the impugned order.
2. Facts, in very brief, are that the Complainant, while working as a Major in the Indian Army, had applied for allotment of a plot in 1985. As seen from the record, he was allotted a plot on 28.4.1998. But, the allotment was cancelled allegedly for non- compliance with the conditions of the allotment. In the meanwhile, he had retired from the Army as Lt. Colonel and had moved to Canada in 1997. In response to his subsequent representation to the LIT and Government of Punjab, his allotment was restored on 15.9.2006. He paid the sale consideration including interest and penal interest and was put in possession.
3. After restoration of his allotment on 15.9.2006 he filed a consumer complaint before District Consumer Disputes Redressal Forum, Ludhiana on 17.11.2006 with a prayer that, “the respondents be directed to issue the allotment letter to the complainant without charging any interest or Penal interest for the plot No.804- F Shaheed Bhagat Singh Nagar Scheme Ludhiana and to execute the sale deed of the said plot in favour of the complainant.” 4. The District Forum, as already noted, dismissed his complaint. It held that—
“ The complainant has admitted that he could not deposit the sale consideration as per the terms of the said letter and on his request Ex.P2 and Ex.P3 addressed to OP-LIT, and on its recommendation, Principal Secy. Punjab Govt. vide its memo dated 21.09.2006 gave approval to the OP-LIT to get deposited the balance instalments along with interest and penal interest which is within the provisions of the said allotment letter and the complainant deposited the entire amount in compliance to the letter of OP-LIT dated 21.11.2006 as admitted in written arguments. There is no evidence that the complainant has deposited the said amount under protest. Since the complainant has deposited the entire pending dues including interest and penal interest in compliance to the Ex.P4 and letter dated 21.11.2006 of the OP-LIT, so this complaint becomes infructuous.”
5. His appeal was dismissed by the State Commission, which observed that –
“16. As per the above discussion, it is proved that the appellant was himself at fault by not intimating the respondent regarding his address after his retirement. As such, the allotment letter was sent to him at the address which was mentioned in the application and the appellant had himself not collected the allotment letter from the office of the respondent and not taken the possession of the plot and was negligent. The Principal Secretary had taken very lenient view to his request and restored the allotment of his plot on the old rates when the rates were very high when the plot was restored.
17. No appeal against the order of the Principal Secretary, Department of Local Bodies, Punjab was filed by the appellant before the appropriate authority and accepted the same without any protest.
18. During the pendency of the complaint, the appellant had already deposited the amount as per the order of the Principal Secretary, Department of Local Bodies, Punjab and had obtained the possession of the plot. There is also no version of the appellant that the amount is paid by the appellant under protest.”
6. I have heard Mr. Sidharth Mittal, Advocate at length on behalf of the revision petitioner and have also considered the records submitted by the petitioner. Learned counsel has argued that the plot was allotted to the Complainant on 28.4.1998, but the letter of appointment was sent to him c/o 99 APO, while he had already retired from the Army in 1997. Learned counsel emphatically argued that his application of 1985 had given not only his official postal address as 554 ASC Bn. C/o 56 APO, but also his residential address in Jalandhar. Therefore, notice should have been sent to his residential address. The counsel was specifically asked to inform whether the Complainant was even posted in 99 APO. However, he chose not to give any specific answer and merely claimed that he had no instruction from the client in this behalf. Learned counsel only stressed that the letter of allotment could not have been served as the letter was redirected to respondent /LIT.
7. The factual position is very obvious and clear, despite inability of the counsel to answer questions. Admittedly, the Complainant retired from Army service in 1997. Therefore, there was no way that the letter of allotment of 28.4.1998, being subsequent to his retirement, could have been served through 99 APO. This explains the observation of the State Commission in para 16 of the impugned order that the Complainant himself was at fault for not intimating his post retirement address to the respondent/LIT.
8. In his pleadings before the District Forum as well as in the revision petition, it is claimed that he was periodically in touch with the LIT to ascertain the fate of his application. However, the evidence produced in support of this claim is limited to the two letters address in 2005, the first on 18.5.2005 and the second on 20.6.2005. These two letters are not denied and in fact admitted by the LIT in his written statement before the District Forum. They also provide the necessary backdrop to restoration of his allotment, little later on 15.9.2006. However, more significantly, it is equally clear that the Complainant has failed to make out any case in support of his claim in so far as the period from his retirement in 1997 to the correspondence in 2005, is concerned.
9. The District Forum as well as State Commission have both held that the complainant has not only paid the sale consideration fixed in the allotment order of 15.9.2006, but has also paid it without any protest. There is nothing on record to point to the contrary. In this background, his claim for relief does not merit consideration and has rightly been rejected by the fora below.
10. For the reasons detailed above, the revision petition is held to be totally devoid of any merit and is dismissed as such. No order as to costs.
.……………Sd/-…………… (VINAY KUMAR) PRESIDING MEMBER s./- NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2007 OF 2012
(From the order dated 12.12.2011 in First Appeal No. 2025/2006
of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow)
Kanpur Development Authority through its Vice-Chairman, Motijheel, Kanpur Uttar Pradesh
... Petitioner (s)
Versus
Yogendra Nath Bhatt, 117/L-239, H-1, Market Naveen Nagar, P.S. Kakadev, District Kanpur, Uttar Pradesh
…. Respondent(s)
BEFORE
HON’BLE DR. B.C. GUPTA, PRESIDING MEMBER
Appeared on 18.04.2013 at the time of arguments,
For the Petitioner(s) Mr. Abhishek Chaudhary, Advocate
along with Mr. Rishi Jain, Advocate
For the Respondent (s) Mr. Niraj Gupta, Advocate
PRONOUNCED ON : 30 th APRIL, 2013
O R D E R This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the order dated 12.12.2011 passed by the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (hereinafter referred to as “State Commission”) in First Appeal No. 2025 of 2006 according to which, the appeal filed by the present petitioner against the order dated 25.11.2005 passed by the District Consumer Disputes Redressal Forum, Kanpur Nagar was ordered to be dismissed. The District Forum vide their order dated 25.11.2005 had allowed the consumer complaint No.1166 of 2003 filed by the complainant / present respondent. 2. The main issue involved in the present case is regarding the price to be charged for the additional area of land allotted to the complainant / respondent allottee of the petitioner. The complainant wants to pay the same price for the additional area at which the original plot was allotted to him, but the petitioner wants to charge higher rate for the additional area. 3. The brief facts are that the complainant / respondent was allotted plot No. M-13, M.I.G. Jarauli by the petitioner vide letter No. D/638/J.S. (111) 98-99 dated 22.07.1998. The complainant deposited the full value of the plot i.e. Rs. 1,30,000/-. He also deposited Rs. 15,600/- as lease rent and Rs. 320/- for stamps etc. However, the complainant was made to run from pillar to post for execution of the register deed, but it was not done. The complainant received a letter from the petitioner on 25.04.2003 saying that the area of the plot allotted was 180 sq. meter, but it had now become 342.38 sq. meter after increase, the total price of which was Rs. 3,67,604/- and in addition, the freehold fees of Rs. 44,424/- was to be charged. The complainant sought relief through his complaint, saying that the registration of the plot should be done by the petitioner in his name and that he should be paid interest @ 24% on the amount deposited with the petitioner and a sum of Rs. 2,00,000/- as compensation for mental harassment and Rs. 5,100/- as advocate fee and Rs. 300/- as cost of the case. The District Forum ordered that the additional land area of 162.38 sq. meter should be given to the complainant at the rates previously charged for original allotment. The registration of the plot should be got done within a period of sixty days, otherwise the complainant shall be entitled to get 12% interest on his deposit with the petitioner. The State Commission dismissed the appeal against this order, saying that the petitioner- Authority did not incur any additional expenditure on developing the additional land; hence there was no justification for them to charge the increased amount. 4. At the time of arguments before me, the learned counsel for the petitioner has drawn my attention to the application filed forcondonation of delay, saying that the delay had occurred because of certain official formalities and heavy work within the office of the petitioner and should be condoned. On merits, he stated that it was made very clear in the allotment letter issued in the year 1998 that the area of the plot could increase or decrease. As a result of certain alteration in the site plan of the scheme, the area of plot in question had become 342.38 sq. meter against previous area of 180 sq. meter. The complainant / respondent was asked to give his consent for getting the increased area vide letter issued by the Authority on 06.03.2003. Vide another letter dated 25.04.2003, it was intimated to the respondent about the price of the additional land i.e. Rs. 3,67,604/- and 12% free hold fees i.e. Rs. 44,424/-. Another letter was sent on 29.08.2003 to the respondent, saying that he should give his consent within three days, otherwise the Authority could consider giving the increased area to some other plot-holder. The complainant / respondent however, wrote to the Authority saying that he wanted to take the remaining portion of the plot at the previous rate of the area allotted. The learned counsel pleaded that the Authority should be allowed to charge increased price for the additional area. 5. The learned counsel for respondent argued that the respondent had already deposited the entire amount of the plot with the Authority in time. Moreover, the respondent had been successful in the District Forum as well as the State Commission and the same order should be maintained. He pointed out my attention to the advertisement issued by the petitioner Authority in which it was stated in the ‘General conditions” that the area and number of plots could increase or decrease. According to the learned counsel, the insertion of this clause makes it quite clear that the area of a plot could increase and hence the allottee shall be liable for paying the price at the previous rates only for increased area. He stated that the division of the plot as per the new site plan was not possible. He further argued that in the eventuality of decrease in area, the Authority would have paid him on the original price of plot and not at increased price. It is a natural corollary therefore, that the Authority should charge at the same price at which the original allotment was made. 6. I have examined the entire material on record and given thoughtful consideration to the arguments advanced before me. There is a delay of 39 days in filing the present petition, but an application for condonation of delay has been filed, saying that due to excess work, the concerned staff could not handle the case properly, resulting in delay in filing the petition. The application has been considered and the delay in filing the petition is condoned, keeping in view the interest of justice. 7. On merits of the case, it is very clear that as a result of the alteration of the site plan, there was increase in the area allotted to the respondent from 180 sq. meter to 342.38 sq. meter. It is a matter of general practice that at the time of giving physical possession of plot to an allottee, when the actual demarcation takes place, the area in question is bound to increase or decrease. In the instant case, however, there has been a large increase of 162.38 sq. meter. On behalf of the petitioner, no cogent reason has been advanced to indicate as to why they are asking the respondent to give higher price for the increased area. I do not find any reason to differ with the well- reasoned order passed by the District Forum and the State Commission. The State Commission have taken the right stand that the Authority has not incurred any additional expenditure on developing the additional land allotted to the petitioner. In the light of these facts, I do not find any justification in making any alteration in the orders passed by the State Commission and the District Forum and these orders are sustained as they do not suffer from any illegality or irregularity. 8. The petition is therefore ordered to be dismissed with no order as to costs. ..……………………………
(DR. B.C. GUPTA)
PRESIDING MEMBER SB/4 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1506 OF 2012 with I.As. No.1 & 2 of 2012 (From the order dated 12.1.2012 Appeal No.879/2006 of the State Commission, Haryana, Panchkula)
Indu Bala Satija W/o Shri Dharamvir Satija, R/o 443, Dr. Mukherji Nagar, Near M.C., Primary School, Delhi
.. .Petitioner
Versus
Haryana Urban Development Authority Through its Chief Administrator, Sector-12, Faridabad Through Estate Officer, HUDA, Faridabad
….Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mr. Venkat Subramoniam T.R., Advocate
Pronounced on : 1 st May, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
By way of present revision petition, petitioner/complainant has challenged the impugned order dated 12.1.2012, passed in (First Appeal No.879 of 2006) by the State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, ‘State Commission’).
2. Petitioner filed a complaint under Section 12 of the Consumer Protection Act, 1986 (for short, ‘Act’) stating that she was allotted Plot No.2551 in Sector-65, Faridabad, vide allotment letter dated 5.11.2001 at a tentative price of Rs.4,66,250/- She deposited Rs.46,625/- alongwith the application and further deposited Rs.69,938/- within 30 days from the issue of the allotment letter. Thus, in all the petitioner deposited Rs.1,16,563/- with the respondent. Thereafter, respondent/opposite party demanded enhanced price of the plot but petitioner shown her inability to pay the enhanced price and by application dated 28.10.2002, she surrendered the plot and sought refund of the deposited amount. However, thereafter petitioner moved another application on 10.12.2002 whereby she requested the respondent for withdrawal of her earlier application dated 28.10.2002. Respondent vide memo No.8821 dated 25.3.2003 refunded a sum of Rs.33,973/- and deducted Rs.82,590/- out of the total deposit. Alleging it as deficiency in service, petitioner invoked the jurisdiction of District Consumer Disputes Redressal Forum, Faridabad (for short, ‘District Forum ‘) with the prayer to allot a plot at new rates or alternatively to refund her the deducted amount of Rs.82,590/- alongwith interest@ 24% per annum from the date of deposit till actual realization.
3. Respondent contested the complaint and filed an affidavit stating that complaint under the provisions of Act is not maintainable since petitioner has surrendered the plot and she is no more owner of the plot. The amount has already been refunded to her as per respondent’s surrender policy. After taking refund, petitioner is no more a ‘consumer’ of the respondent and the complaint is liable to be dismissed.
4. District Forum, vide order dated 20.2.2006 allowed the complaint and passed the following directions;
“ i) The Respondent is ordered to allot the same plot to the complainant on the similar price on which it was originally allotted and in case the same is not found vacant and un-allotted then allot some other plot to the complainant in the same sector on the similar price.
ii) It is the option of the complainant that in case she does not want some plot to be allotted to her as ordered above, then she has the alternate option to get recover the deducted amount alongwith interest @ 12% per annum payable from the date of its deduction till its realization.
iii) The Respondents are further ordered to pay Rs.50,000/- on account of mental agony and harassment and further Rs.5,000/- on account of litigation expenses.”
5. Being aggrieved, respondent filed appeal before the State Commission which allowed the same, vide its impugned order and dismissed the complaint of the petitioner.
6. Hence, petitioner has filed the present revision petition. Alongwith it, petitioner has also filed an application seeking permission to raise additional grounds and produce documents.
7. We have heard the learned counsel for the petitioner and gone through the record.
8. It has been contended by learned counsel for the petitioner that State Commission wrongly observed that document dated 10.12.2012 has not been proved by the petitioner. In fact, copy of the letter has been placed on record. It is further contended as per information received under the Right to Information Act, respondent has received letter dated 10.12.2012 from the petitioner. It is also contended by the counsel that petitioner immediately on acceptance of the cheque wrote back to the respondent protesting as to how it has deducted the amount from the deposit made by her. Moreover, petitioner in her surrender letter has stated that she is ready to continue with the allotment if the enhanced amount is reduced. Respondent despite reducing the enhanced amount did not intimate the petitioner and cancelled her allotment.
9. In support, counsel for petitioner has relied upon the decision of Supreme Court in “Bhagwati Prasad Pawan Kumar versus Union of India (2006) 5 Supreme Court Cases 311”
10. State Commission, while accepting the appeal of the respondent in its impugned order has observed;
“On behalf of the appellant-opposite party it is argued that the complainant had voluntarily surrendered the plot vide his application dated 28.10.2002 as she was not in a position to pay the enhanced price of the plot. In support of his argument learned counsel for the appellant has drawn our attention towards the application dated 28.10.20102 annexed at page 31 of the appeal the relevant part of which is reproduced as under;
“ TO,
THE ESTATE OFFICER
H.U.D.A
SECTOR-12, FARIDABAD - 121 007.
SUB: SURRENDER OF PLOT NO.2551, SECTOR-65, FARIDABAD
RESPECTED SIR,
AS ALREADY INFORMED BY ME TO YOU ON 16-10-02 I AM UNABLE TO PAY THE ENHANCED PAYMENT WHICH WAS DEMANDED BY YOU @ 1421.99 PER SQ. MTR. AS PER YOUR LETTER NO.A-65/38584 DT. 4/10/02.
SIR YOU ALREADY KNOW THAT I PAID RS.46,625/- (On 29-1-01) and RS.69,938/- (On 23-11-01), WHICH CONSTITUTE 25% OF THE SAID PLOT.
PLEASE REFUND ME BY ORIGINAL MONEY I.E. RS.1,16,563/- (Rupees One lakh sixteen thousand five hundred sixty three only) AS I HEREWITH SURRENDER THE ORIGINAL ALLOTMENT LETTER VIDE MEMO NO.3103 DT.05-11-01.
THANKING YOU,
P.S. IF YOU WITHDRAW THIS ENHANCEMENT, THEN I READY TO ACCEPT YOUR OFFER.
ENCL: ORIGINAL ALLOTMENT.
YOURS FAITHFULLY,
SD/-
(INDU BALA SATIJA)
443, DR. MUKHERJI NAGAR, NEAR
M.C. PRIMARY SCHOOL, DELHI
110009. ”
Admittedly, the request of the complainant was accepted and she was refunded Rs.33,973/- vide Memo No.8821 dated 25.3.2003, after deducting 10% of the consideration amount as per HUDA policy.
Learned counsel appearing on behalf of respondent- complainant has argued that the complainant had withdrawn her earlier application vide second application dated 10.12.2002 but the request of the complainant was not considered by the opposite party.
In our view the contention raised on behalf of complainant is without legs. Complainant has failed to prove her application dated 10.12.2002 by summoning HUDA record despite the fact that the onus to prove the same was upon the complainant. The complainant has failed to establish the alleged application dated 10.12.2002 submitted by her to the opposite party, by leading any cogent and convincing evidence and for that reason the photocopy of the alleged application produced before us cannot be taken into consideration.
The other aspect of the case is that the complainant had accepted the refund of Rs.33,973/- without any protest through cheque and therefore, once the complainant had encashed the cheque, she was no more ‘consumer’ of the opposite party. Firstly, the complainant ceased to be a ‘consumer’ of the opposite party on the date she surrendered the plot on 28.10.2002 and thereafter when she encashed the cheque.
The other aspect of the case is that admittedly the complainant has already received the refund of Rs.33,973/- vide Memo No.8821 dated 25.3.2003 through cheque which was encashed by her without protest. It is well settled law that once the cheque already issued in favour of the complainant has beenencashed, no further cause of action exists in favour of the complainant. Inference in this regard is made to case law cited as Bhagwati Prasad Pawan Kumar versus Union of India (2006-3) PLR 76 (SC), wherein it was concluded that the encashment of the cheques amounted to acceptance of the amount in full and final settlement of the claim. It was further laid down by the Hon'ble Apex Court that the protest and non-acceptance must be conveyed before the chequeswere encashed and if the cheques were encashed without protest, then it must be held that the offer stood unequivocally accepted and offeree cannot be permitted to change his mind after unequivocable acceptance of the offer. The fact of the instant case are attracted to Bhagwati Prasad Pawan Kumar’s case (supra) because the complainant had encashed the cheque without any protest.
As a sequel to our aforesaid discussions we are of the view that the complainant is not entitled for any relief. Once the complainant has surrendered the plot and received the refund without any protest, she is no more ‘consumer’ of the opposite party. District Consumer Forum has failed to appreciate the facts of the case in its true perspective. Hence, the impugned order cannot be allowed to sustain.
Accordingly, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.”
11. Firstly, we shall deal with the application seeking permission to raise additional documents which petitioner now wants to place on record. These additional documents now petitioner wants to place on record have been obtained under Right to Information Act, 2012, Thus, the same have been obtained after the decision of both the fora below. Underthese circumstances, at this revision stage we cannot take note of such documents which were not before the fora below.
12. It is petitioner’s own case that she surrendered the plot in question and got the refund, as early as in the year 2003. Once petitioner surrendered the plot at her own, without there being any force, pressure or coercion, then she ceases to be a ‘consumer’. Moreover, petitioner has already taken the refund in the year 2003, now the clock cannot be reversed back by merely filing a complaint before the District Forum on the ground that the rate of the plot has been reduced. It was with open eyes that petitioner submitted the surrender letter and took the refund.
13. In Bhagwati Prasad Pawan Kumar (supra), Apex Court has laid down;
“ 18.Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal. In the instant case, the Railway made an offer to the appellant laying down the conditions that if the offer was not acceptable the cheque should be returned forthwith, failing which it would be deemed that the appellant accepted the offer in full and final satisfaction of its claim. This was further clarified by providing that the retention of the cheque and/or encashment thereof will automatically amount to satisfaction in full and final settlement of the claim. Thus, if the appellant accepted the cheques and encashed them without anything more, it would amount to an acceptance of the offer made in the letters of the Railways dated 7-4-1993. The offer prescribed the mode of acceptance, and by conduct the appellant must be held to have accepted the offer and, therefore, could not make a claim later. However, if the appellant had not encashed the cheques and protested to the Railways calling upon them to pay the balance amount, and expressed its inability to accept the cheques remitted to it, the controversy would have acquired a differed complexion. In that event, in view of the express non-acceptance of the offer, the appellant could not be presumed to have accepted the offer. What, however is significant is that the protest and non-acceptance must be conveyed before the cheques are encashed. If the cheques are encashed without protest, then it must be held that the offer stood unequivocally accepted. An “offeree” cannot be permitted to change his mind after the unequivocal acceptance of the offer.
19. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its own facts. The courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the “offeree” was such as amounted to an unequivocal acceptance of the offer made. If the fact of the case disclose that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by the conduct. On the other hand, if the evidence discloses that the “offeree” had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act”.
14. In the present case, there is nothing on record to show that petitioner was compelled by the respondent at any stage either to surrender the plot or take the refund.
15. Interestingly, petitioner having received the refund amount in the year 2003 i.e. more than 10 years ago and after enjoying that money and after surrendering the plot, now wants to have the ‘cake and eat it too’, This clearly shows malafide intention of the petitioner in filing the consumer complaint. Once, petitioner received the amount unconditionally and got thecheque encashed, under these circumstances, petitioner ceases to be a ‘consumer’ as per the Act. The privity of contract or relationship of consumer and service provider between the parties, if any, comes to an end the moment petitioner accepted the refund amount and got the cheque encashed.
16. Under section 21 (b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. 17. There is nothing on record to show that impugned order passed by State Commission is erroneous, or there is any illegality in the impugned order. Present petition being without any legal basis is meritless and the same is hereby dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only). 18. Petitioner is directed to deposit the cost by way of demand draft in the name of “Consumer Welfare Fund” as per Rule 10A of the Consumer Protection Rules, 1987, within eight weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then she shall be liable to pay interest @ 9% p.a. till realization.
19. List for compliance on 5.7.2013.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
…..…………………………
(REKHA GUPTA)
MEMBER Sg.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1506 OF 2012 with I.As. No.1 & 2 of 2012 (From the order dated 12.1.2012 Appeal No.879/2006 of the State Commission, Haryana, Panchkula)
Indu Bala Satija W/o Shri Dharamvir Satija, R/o 443, Dr. Mukherji Nagar, Near M.C., Primary School, Delhi
.. .Petitioner
Versus Haryana Urban Development Authority Through its Chief Administrator, Sector-12,
Faridabad Through Estate Officer, HUDA, Faridabad ….Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mr. Venkat Subramoniam T.R., Advocate
Pronounced on : 1 st May, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
By way of present revision petition, petitioner/complainant has challenged the impugned order dated 12.1.2012, passed in (First Appeal No.879 of 2006) by the State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, ‘State
Commission’).
2. Petitioner filed a complaint under Section 12 of the Consumer Protection Act, 1986 (for short, ‘Act’) stating that she was allotted Plot No.2551 in Sector-65, Faridabad, vide allotment letter dated 5.11.2001 at a tentative price of Rs.4,66,250/- She deposited Rs.46,625/- alongwith the application and further deposited Rs.69,938/- within 30 days from the issue of the allotment letter. Thus, in all the petitioner deposited Rs.1,16,563/- with the respondent. Thereafter, respondent/opposite party demanded enhanced price of the plot but petitioner shown her inability to pay the enhanced price and by application dated 28.10.2002, she surrendered the plot and sought refund of the deposited amount. However, thereafter petitioner moved another application on 10.12.2002 whereby she requested the respondent for withdrawal of her earlier application dated 28.10.2002. Respondent vide memo No.8821 dated 25.3.2003 refunded a sum of Rs.33,973/- and deducted Rs.82,590/- out of the total deposit. Alleging it as deficiency in service, petitioner invoked the jurisdiction of District Consumer Disputes Redressal Forum, Faridabad (for short, ‘District Forum ‘) with the prayer to allot a plot at new rates or alternatively to refund her the deducted amount of Rs.82,590/- alongwith interest@ 24% per annum from the date of deposit till actual realization.
3. Respondent contested the complaint and filed an affidavit stating that complaint under the provisions of Act is not maintainable since petitioner has surrendered the plot and she is no more owner of the plot. The amount has already been refunded to her as per respondent’s surrender policy. After taking refund, petitioner is no more a ‘consumer’ of the respondent and the complaint is liable to be dismissed.
4. District Forum, vide order dated 20.2.2006 allowed the complaint and passed the following directions;
“ i) The Respondent is ordered to allot the same plot to the complainant on the similar price on which it was originally allotted and in case the same is not found vacant and un-allotted then allot some other plot to the complainant in the same sector on the similar price.
ii) It is the option of the complainant that in case she does not want some plot to be allotted to her as ordered above, then she has the alternate option to get recover the deducted amount alongwith interest @ 12% per annum payable from the date of its deduction till its realization.
iii) The Respondents are further ordered to pay Rs.50,000/- on account of mental agony and harassment and further Rs.5,000/- on account of litigation expenses.”
5. Being aggrieved, respondent filed appeal before the State Commission which allowed the same, vide its impugned order and dismissed the complaint of the petitioner. 6. Hence, petitioner has filed the present revision petition. Alongwith it, petitioner has also filed an application seeking permission to raise additional grounds and produce documents.
7. We have heard the learned counsel for the petitioner and gone through the record.
8. It has been contended by learned counsel for the petitioner that State Commission wrongly observed that document dated 10.12.2012 has not been proved by the petitioner. In fact, copy of the letter has been placed on record. It is further contended as per information received under the Right to Information Act, respondent has received letter dated 10.12.2012 from the petitioner. It is also contended by the counsel that petitioner immediately on acceptance of the cheque wrote back to the respondent protesting as to how it has deducted the amount from the deposit made by her. Moreover, petitioner in her surrender letter has stated that she is ready to continue with the allotment if the enhanced amount is reduced. Respondent despite reducing the enhanced amount did not intimate the petitioner and cancelled her allotment.
9. In support, counsel for petitioner has relied upon the decision of Supreme Court in “Bhagwati Prasad Pawan Kumar versus Union of India (2006) 5 Supreme Court Cases 311”
10. State Commission, while accepting the appeal of the respondent in its impugned order has observed;
“ On behalf of the appellant-opposite party it is argued that the complainant had voluntarily surrendered the plot vide his application dated 28.10.2002 as she was not in a position to pay the enhanced price of the plot. In support of his argument learned counsel for the appellant has drawn our attention towards the application dated 28.10.20102 annexed at page 31 of the appeal the relevant part of which is reproduced as under;
“ TO, THE ESTATE OFFICER H.U.D.A
SECTOR-12, FARIDABAD - 121 007.
SUB: SURRENDER OF PLOT NO.2551, SECTOR-65, FARIDABAD
RESPECTED SIR, AS ALREADY INFORMED BY ME TO YOU ON 16-10-02 I AM UNABLE TO PAY THE ENHANCED PAYMENT WHICH WAS DEMANDED BY YOU @ 1421.99 PER SQ. MTR. AS PER YOUR LETTER NO.A-65/38584 DT. 4/10/02.
SIR YOU ALREADY KNOW THAT I PAID RS.46,625/- (On 29-1-01) and RS.69,938/- (On 23-11-01), WHICH CONSTITUTE 25% OF THE SAID PLOT.
PLEASE REFUND ME BY ORIGINAL MONEY I.E. RS.1,16,563/-
(Rupees One lakh sixteen thousand five hundred sixty three only) AS I HEREWITH SURRENDER THE ORIGINAL ALLOTMENT LETTER VIDE MEMO NO.3103 DT.05-11-01.
THANKING YOU,
P.S. IF YOU WITHDRAW THIS ENHANCEMENT, THEN I READY TO ACCEPT YOUR OFFER.
ENCL: ORIGINAL ALLOTMENT.
YOURS FAITHFULLY,
SD/-
(INDU BALA SATIJA)
443, DR. MUKHERJI NAGAR, NEAR
M.C. PRIMARY SCHOOL, DELHI
110009. ”
Admittedly, the request of the complainant was accepted and she was refunded Rs.33,973/- vide Memo No.8821 dated 25.3.2003, after deducting 10% of the consideration amount as per HUDA policy.
Learned counsel appearing on behalf of respondent-complainant has argued that the complainant had withdrawn her earlier application vide second application dated 10.12.2002 but the request of the complainant was not considered by the opposite party.
In our view the contention raised on behalf of complainant is without legs. Complainant has failed to prove her application dated 10.12.2002 by summoning HUDA record despite the fact that the onus to prove the same was upon the complainant. The complainant has failed to establish the alleged application dated 10.12.2002 submitted by her to the opposite party, by leading any cogent and convincing evidence and for that reason the photocopy of the alleged application produced before us cannot be taken into consideration.
The other aspect of the case is that the complainant had accepted the refund of Rs.33,973/- without any protest through cheque and therefore, once the complainant had encashed the cheque, she was no more ‘consumer’ of the opposite party. Firstly, the complainant ceased to be a ‘consumer’ of the opposite party on the date she surrendered the plot on 28.10.2002 and thereafter when she encashed the cheque.
The other aspect of the case is that admittedly the complainant has already received the refund of Rs.33,973/- vide Memo No.8821 dated 25.3.2003 through cheque which was encashed by her without protest. It is well settled law that once the cheque already issued in favour of the complainant has beenencashed, no further cause of action exists in favour of the complainant. Inference in this regard is made to case law cited as Bhagwati Prasad Pawan Kumar versus Union of India (2006-3) PLR 76 (SC), wherein it was concluded that the encashment of the cheques amounted to acceptance of the amount in full and final settlement of the claim. It was further laid down by the Hon'ble Apex Court that the protest and non-acceptance must be conveyed before the chequeswere encashed and if the cheques were encashed without protest, then it must be held that the offer stood unequivocally accepted and offeree cannot be permitted to change his mind after unequivocable acceptance of the offer. The fact of the instant case are attracted to Bhagwati Prasad Pawan Kumar’s case (supra) because the complainant had encashed the cheque without any protest.
As a sequel to our aforesaid discussions we are of the view that the complainant is not entitled for any relief. Once the complainant has surrendered the plot and received the refund without any protest, she is no more ‘consumer’ of the opposite party. District Consumer Forum has failed to appreciate the facts of the case in its true perspective. Hence, the impugned order cannot be allowed to sustain.
Accordingly, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.”
11. Firstly, we shall deal with the application seeking permission to raise additional documents which petitioner now wants to place on record. These additional documents now petitioner wants to place on record have been obtained under Right to Information Act, 2012, Thus, the same have been obtained after the decision of both the fora below. Underthese circumstances, at this revision stage we cannot take note of such documents which were not before the fora below.
12. It is petitioner’s own case that she surrendered the plot in question and got the refund, as early as in the year 2003. Once petitioner surrendered the plot at her own, without there being any force, pressure or coercion, then she ceases to be a ‘consumer’. Moreover, petitioner has already taken the refund in the year 2003, now the clock cannot be reversed back by merely filing a complaint before the District Forum on the ground that the rate of the plot has been reduced. It was with open eyes that petitioner submitted the surrender letter and took the refund.
13. In Bhagwati Prasad Pawan Kumar (supra), Apex Court has laid down; “ 18.Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal. In the instant case, the Railway made an offer to the appellant laying down the conditions that if the offer was not acceptable the cheque should be returned forthwith, failing which it would be deemed that the appellant accepted the offer in full and final satisfaction of its claim. This was further clarified by providing that the retention of the cheque and/or encashment thereof will automatically amount to satisfaction in full and final settlement of the claim. Thus, if the appellant accepted the cheques and encashed them without anything more, it would amount to an acceptance of the offer made in the letters of the Railways dated 7-4-1993. The offer prescribed the mode of acceptance, and by conduct the appellant must be held to have accepted the offer and, therefore, could not make a claim later. However, if the appellant had not encashed the cheques and protested to the Railways calling upon them to pay the balance amount, and expressed its inability to accept the cheques remitted to it, the controversy would have acquired a differed complexion. In that event, in view of the express non-acceptance of the offer, the appellant could not be presumed to have accepted the offer. What, however is significant is that the protest and non-acceptance must be conveyed before the cheques are encashed. If the cheques are encashed without protest, then it must be held that the offer stood unequivocally accepted. An “offeree” cannot be permitted to change his mind after the unequivocal acceptance of the offer. 19. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its own facts. The courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the “offeree” was such as amounted to an unequivocal acceptance of the offer made. If the fact of the case disclose that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by the conduct. On the other hand, if the evidence discloses that the “offeree” had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act”.
14. In the present case, there is nothing on record to show that petitioner was compelled by the respondent at any stage either to surrender the plot or take the refund.
15. Interestingly, petitioner having received the refund amount in the year 2003 i.e. more than 10 years ago and after enjoying that money and after surrendering the plot, now wants to have the ‘cake and eat it too’, This clearly shows malafide intention of the petitioner in filing the consumer complaint. Once, petitioner received the amount unconditionally and got thecheque encashed, under these circumstances, petitioner ceases to be a ‘consumer’ as per the Act. The privity of contract or relationship of consumer and service provider between the parties, if any, comes to an end the moment petitioner accepted the refund amount and got the cheque encashed.
16. Under section 21 (b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity. 17. There is nothing on record to show that impugned order passed by State Commission is erroneous, or there is any illegality in the impugned order. Present petition being without any legal basis is meritless and the same is hereby dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).
18. Petitioner is directed to deposit the cost by way of demand draft in the name of “Consumer Welfare Fund” as per Rule 10A of the Consumer Protection Rules, 1987, within eight weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then she shall be liable to pay interest @ 9% p.a. till realization.
19. List for compliance on 5.7.2013.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
…..…………………………
(REKHA GUPTA)
Sg. MEMBER NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
FIRST APPEAL NO. 44 OF 2009 (Against the order dated 22.08.2008 in CC No. C-55/2000 of the Delhi State Consumer Disputes Redressal Commission)
Delhi Development Authority Vikas Sadan, INA New Delhi … Appellant
Versus
Mr. Vas Dev S/o Shri Sidhu Ram R/o 43, Madan Park East Punjabi Bagh New Delhi- 110026 … Respondent
BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT HON'BLE MRS. VINEETA RAI, MEMBER
For Appellant : Ms. Girija Wadhwa, Advocate For Respondent : Mr. Bharat Sachdeva, Advocate
Pronounced on 7 th May, 2013
ORDER
PER VINEETA RAI, MEMBER
1. This first appeal has been filed by Delhi Development Authority (DDA), Appellants herein and Opposite Party before the Delhi State Consumer Disputes Redressal
Commission (hereinafter referred to as the State Commission) being aggrieved by the order of the State Commission which had allowed the complaint of Vas Dev,
Respondent herein and Original Complainant before the State Commission.
2. FACTS:
Respondent had contended that he registered for a Middle Income Group (MIG) flat under the Appellant’s New Pattern Housing Registration Scheme, 1979 and deposited a sum of Rs.4500/- for this purpose. Since he was transferred to Suva, Fiji for a period of 3 years on a Government of India assignment, he informed Appellant about the same vide letter dated 21.12.1983 and also furnished the fresh address with the request that further correspondence be made at this address. He was allotted
Priority No. 26269 under the scheme. After waiting for about 10 years, during which time no allotment of an MIG flat to him materialized, Respondent came to know in 1989 that Appellant had a provision for the registrants under the 1979 Scheme for conversion of their registration from MIG to Self-Financing Scheme (SFS) and he, therefore, requested the Appellant for change of registration to the SFS. Appellant agreed to his request and as directed by the Appellant he deposited Rs.500/- as processing fees for conversion from MIG to SFS and also complied with other formalities, including sending the required documents alongwith a letter dated 15.05.1989. Vide letter dated
13.09.1989 Respondent was informed that his request for conversion had been accepted and the transfer/adjustment of registration money from MIG to SFS would be worked out by the concerned office in due course. When Respondent contacted
Appellant’s office he was initially informed that his file had been misplaced and, therefore, he provided documents to help in its reconstruction. Thereafter, he was informed that the original file had been traced and according to it he was not considered for registration under SFS since he did not pay the stipulated amount of
Rs.11,326/-. Respondent was shocked since he did not receive any communication in this respect and he, therefore, made a number of representations, including to the Vice
Chairman, DDA. He was thereafter advised by a telegram, which he received on 03.07.1995, that he could apply under a new 8th SFS, the last date being the next day i.e. 04.07.1995 when the scheme closed. He subsequently received another communication informing him that the closing date had been extended to
29.07.1995. He thereafter vide his letter dated 10.07.1995 informed the Appellant that he would accept the offer provided the cost of the flat is charged at the rate prevalent for the same size flat in 1989. Since he did not receive any communication for the same and he was informed during a personal meeting that it may not be possible to allot him a
SFS flat since conversion proceedings were never completed, he again requested for consideration for an MIG flat with the same priority number as he had in 1989, which was declined by the Appellant vide letter dated 22.08.1995. Being aggrieved by the gross deficiency in service on the part of Appellant in not handing over possession of the MIG flat for which registration had been made in 1979 and thereafter not agreeing to the conversion from MIG to SFS category and finally rejecting his request for reversion for allotment of a MIG category flat, Respondent filed a complaint before the State
Commission and sought the following reliefs :- “ (i) To allot a flat to and in the name of the complainant under SFS scheme against his registration No. 551 under HUDCO 1979 and to pay the complainant the damages to the tune of Rs.5,00,000/-. (ii) Or in the alternative, to direct the OP to pay to the complainant the difference of the cost of the flat prevailing in the market in comparison to the price in 1989 along with refund of the amount deposited by the complainant with interest and to pay to the complainant the damages to the tune of Rs.50,000/-.”
3. Appellant on being served filed a written rejoinder stating that it was not possible to immediately allot the MIG flat to the Respondent, for which he was registered in
1979, because over a lakh of people had applied under the scheme and the construction of the flats was being done in stages. Respondent’s Priority No. 26269 was quite low in the list of registrants. Thereafter he changed his mind and requested for allotment of a flat under SFS category. Respondent never paid the differential amount of Rs.11,326/- for changing his registration from MIG to SFS. Respondent’s contention that he did not receive the letter dated 06.03.1990 because it was sent to a wrong address is not correct since the said letter was never returned undelivered by the postal authorities. Appellant also denied that they had misplaced the original file of the
Respondent. In fact, even though Respondent did not deposit the amount of
Rs.11,326/-, following his representations, his case was processed and he was given another chance to apply for allotment of SFS flat under the 8 th SFS and it was mentioned in the telegram that the last date was 04.07.1995. However, when the date was extended to 29.07.1995, Respondent was again sent a letter on 14.07.1995 clearly stating this fact. Respondent did not apply for the SFS under the 8th SFS and requested for reverting his registration again from SFS to MIG which was declined as there was no such provision available under Appellant’s Housing Schemes or under the terms and conditions of the allotment/brochure etc. Thus, there was no deficiency in service.
4. The State Commission after hearing the parties and on the basis of evidence produced before it, allowed the complaint and directed the Appellant to pay the
Respondent a lump sum compensation of Rs.2 Lakhs by observing as follows: “12. In our view there is no documentary evidence produced by the OP to show as to how much difference of payment he was required to make. According to the OP the complainant was informed that he had to make payment of Rs. 11,362/- but he never made the payment and as consequence the allotment was cancelled.
13. Be that as it may the fact remains that the complainant who was abroad was not only made to wait for ten long years from 1979 to 1989 after his request for conversion of MIG to SFS category was acceded to but at the same time the OP was guilty of not informing the complainant as to the difference of amount which he was to make as the alleged telegram never reached the complainant.
14. The objection that the complaint is barred by limitation has no substance as cause of action in such like cases is of continuing and subsisting nature and continues till the grievance is redressed by the service provider through written communication.
15. Now the situation is that there is no flat available nor priority of the complaint either in the MIG or in the SFS category is available as the priority expired in the year 1999. The grievance of the complainant is that demand letter dated 6th March 1990 was depatched at the wrong address and was never received by him whereby the OP had demanded payment of Rs. 11,326/-.
16. Taking overall view of the matter and holding the OP guilty for deficiency in service in not sending the communication at the appropriate address available on record which was a changed address and also not intimating the complainant about the difference of payment to be made, we deem that lump sum compensation of Rs. 2 lacs shall meet the ends of justice for the loss suffered by the complainant.”
5. Being aggrieved by the above order, the present first appeal has been filed.
6. Learned counsel for both parties made oral submissions.
7. Counsel for the Appellant reiterated that allotments of MIG flats under the 1979 scheme were being made as per the priority list and it was under these circumstances that the Respondent whose Priority Number was quite low did not get this flat early and in the meantime he opted for conversion of registration from MIG to SFS which was agreed to. A letter was sent at the address given by the Respondent to pay sum of
Rs.11,326/- which he failed to do. Even when he was given a second chance vide letter dated 14.07.1995 to apply for the 8th SFS, he did not pay any heed to the said advice and asked for conversion of the registration from SFS to MIG which was rightly declined since there was no such provision under any of the terms and conditions of allotment or under the Housing Scheme. It was further contended that since the Respondent had not paid any amount towards registration of the flat, he was not a ‘consumer’ as defined under the provisions of the Consumer Protection Act, 1986. Under the circumstances, the State Commission erred in allowing the complaint and awarding the compensation of Rs.2 Lakhs.
8. Counsel for the Respondent on the other hand stated that did the Respondent did not receive the letter dated 06.03.1990 from the Appellant informing him to pay Rs.11,326/- since as is evident from the letter on record (page 35 of the paper-book) that the Appellant had sent it to a blatantly incomplete address where even the house number was not mentioned. Since Appellant was responsible for this lapse, which ultimately resulted in the Appellant not agreeing to the request for conversion of the registration from MIG to SFS at the 1989 rate and also not agreeing subsequently to reconsider his request for MIG flat as per his priority number in 1979, the Appellant was grossly negligent and guilty of deficiency in service and the State Commission had rightly awarded him compensation for the same.
9. We have considered the submissions made by learned counsels for the parties and gone through the evidence on record. Respondent’s applying under the Appellant’s scheme of 1979 for allotment of an MIG flat and his not being able to get the same for several years is not in dispute. It is also an admitted fact that he made a request for conversion of his registration from MIG to SFS and this was agreed to by the Appellant on his paying the processing fees. It is also an admitted fact that the Appellant subsequently did not consider Respondent under the scheme stating that he did not pay the sum of Rs.11,326/- which was necessary for the conversion of his registration from
MIG to SFS. Respondent has explained this by stating that he did not receive the letter sent by the Appellant as it was not sent to the correct address. We find substance in this contention of the Respondent because from the evidence on file, namely, the letter from the Appellant dated 06.03.1990, wherein the demand for Rs.11,326/- had been raised, the address is blatantly incomplete. It is addressed to
“VasDev, Poorvi Punjabi Bagh, New Delhi-110026”. Punjabi Bagh is a huge colony and in the absence of writing the house number, namely, “43, Madan Park”, it was virtually impossible for the letter to have reached the Respondent. Appellant’s contention that it should be deemed to be served since it was not received back under the circumstances is not acceptable. Thereafter, while it is a fact that Respondent’s request for conversion to SFS was refused following several personal meetings and representations, we note that the telegram sent to him with the advice to apply for the 8 th SFS was received only a day prior to the closure of the scheme, because of which it was not reasonable for
Appellant to expect him to respond within less than 24 hours. Of course the last date for applying under the 8th SFS was later extended to 29.07.1995. However, since it was a new scheme Respondent sought some clarification/confirmation whether he would be charged as per the rates application for the earlier scheme from the Appellant, to which he did not receive any response. It was under these circumstances that he requested for restoration of his application for allotment of an MIG flat as per his priority number, which, we note, also not agreed to by the Appellant.
10. From the above facts, it is apparent that the Appellant had been both negligent and tardy in dealing with this case on number of occasions, including in not sending the important letter dated 06.03.1990 demanding Rs.11,326/- from the Respondent for conversion from MIG to SFS to his actual address, thereafter misplacing Respondent’s file and subsequently giving him very little time to consider the option for applying under the new scheme i.e. 8th SFS and also not giving him the required clarification because of which he had no option but to seek reversion to the MIG scheme. The State
Commission after considering all these facts had rightly arrived at the finding that the
Appellant was responsible for making the Respondent wait for several years and thereafter since no flat was now available either in the MIG category or in the SFS category as the priority expired in 1989, there was need to adequately compensate the
Respondent. We agree with the finding of the State Commission, including the compensation of Rs.2 Lakhs awarded to the Respondent which is reasonable and justified.
11. We, therefore, uphold the order of the State Commission and dismiss the present
First Appeal. Appellant is directed to pay the Respondent the sum of Rs.2 Lakhs within one month from the date of this order. No costs.
Sd/- (ASHOK BHAN, J.) PRESIDENT
Sd/- (VINEETA RAI) MEMBER
Mukesh NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 2698 of 2011
(From the order dated 18.02.2011 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in Appeal no. 230 of 2010)
C K Mohanasundaran Village Officer A R Nagar Village Office P O A R Nagar Tirurangadi Taluk Kerala State
Petitioner
Versus
K U Gopalakrishnan Nair S/o Ramunni Nambiar ‘Smithas’, P O Pantharangadi Via Tirurangadi Malapuram – 676306 Kerala State
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA MEMBER
For the Petitioner Mr Shyam Padman, Advocate
For the Respondent Ex parte
Pronounced on 7 th May 2013
ORDER REKHA GUPTA
Revision petition no. 2698 of 2011 has been filed against the order dated 18.02.2011in Appeal no. 230 of 2010 filed before the Kerala State Consumer Disputes R edressalCommission, Vazhuthacaud, Thiruvananathapuram (‘the State Commission’).
The respondent/complainant had approached the District Forum against the refusal of the petitioner/ opposite party to issue possession certificate of plot nos. 127/2 and 140/2 Tirurangadi Village and Thrikkulam Desam,for availing the benefits from the Agriculture Department. Even though, the same have been issued in 2003 and 2006 regarding RS no. 127/2. The only reason for the same according to the respondent was non-payment of Rs.200/- demanded by the petitioner/opposite party. As a result, the complainant did not get the benefits from the Agriculture Department on account of non- receipt of possession certificate.
The petitioner in his defence has stated that “the possession certificate was issued in 2003-2006 it would have been issued only after due verification of the property by the concerned official. The allegation that the application dated 13.03.2008 is rejected and is incorrect. Except for the property for which there was difference in the survey number, the possession certificate is issued. For the property regarding which doubts arose, inspection is necessary and the complainant was requested to show the property in the afternoon of 13.03.2008. The complainant objected to the same and stated that the property regarding which doubts where there could be excluded and possession certificate regarding the other property need alone be furnished. The allegation that Rs.200/- was demanded as bribe is false. The same is stated for the purpose of the above complaint”.
District Consumer Disputes Redressal Forum, Mallapuram (‘the District Forum’) were of the view that “the redressal of one consumer complaint like the present one will not only be a remedy to the complainant, but will serve as a message to the public servants to improve their quality of service and be more consumer sensitive. Consumers seldom come forward to voice for their rights fearing, the time and money taken for the cumbersome process of litigation. Public servants rendering public service are expected to be service oriented and behave in a civilised manner with fellow citizens particularly senior citizens. The nation honors the senior citizens by allowing them various benefits and privileges. It is rather shameful that a senior citizen like the complainant had to suffer such ordeal at the hands of a public servant. We consider that an amount of Rs.8,000/- together with costs of Rs.1,500/- would meet the ends of justice.
In the result, we allow the complaint and order that opposite party shall pay to the complainants an amount of Rs.8,000/- as compensation along with costs of Rs.1,500/- within one month from the date of receipt of copy of this order”.
Aggrieved by the order, the petitioner had filed an appeal before the State Commission. The State Commission had dismissed his appeal. Hence, the present revision petition.
We have heard the learned counsel for the petitioner. The respondent is already ex parte.
The revision petition has been filed with a delay of 54 days. The State Commission passed its order on 18.02.2011 and the revision petition was filed on 10.08.2011. The application for condonation of delay only states as follows:
“ For the reasons stated in the accompanying affidavit it is prayed that the Hon’ble National Commission be pleased to condone the delay of 50 days in filing the above revision petition”.
In the affidavit dated 24.02.2012 submitted by the petitioner he has given the following reasons:
“In the revision petition filed I had stated that the certified copy of the impugned judgment was received by me on 12.06.2011, and that the above revision petition is being filed within the period of limitation. The certified copy of the order was forwarded to me by the Advocate clerk attached to the office of my counsel, Trivandrum. As the registry has raised a query regarding limitation, I had made enquiries with my counsel and it is now learnt that the certified copy of the impugned order was served on the counsel on 23.03.2011, and the same entrusted to the advocate clerk to be sent to me. The advocate clerk on account of an inadvertent oversight omitted to forward the said order in time and the same was sent to me later and I had received it on 12.06.2011. On being contacted he said he was under the impression that a copy of the impugned order would be forwarded to me directly from the State Commission as was the normal procedure. Thereafter, I had applied for and obtained a certificate from the Hon’ble State Commission regarding the service of the certified copy of the impugned judgment and a certificate dated 14.02.2012 issued to me. The above revision petition ought to have filed on or before 21.06.2011 as the copy of the impugned order was served on the counsel on 23.03.2011. As per the normal procedure it is known that the copy of the order ought to have been served to the parties directly. The above revision petition was filed only on 10.08.2011 under the bonafidebelief that the same need only be filed within 90 days of 12.06.2011. Thus there occurred a delay of 50 days in filing the above revision petition. The said delay is not wilful or deliberate, but was caused and occasioned on account of the circumstances aforementioned. I have very serious contentions in the above matter. If the said delay of 50 days in filing the above revision petition is not condoned and an opportunity afforded to me to submit my case and contentions in the above matter. I will be put to irreparable loss, injury and hardship, besides the ends of justice would also be defeated.
It is apparent from the affidavit as also the certificate given by the Secretary and Registrar of the State Commission that the judgment copy dated 08.12.2011 had been served to Ms Renu, counsel for the appellant on 23.03.2011. In his affidavit, the petitioner has admitted that “as the registry has raised a query regarding limitation, I had made enquiries with my counsel and it is now learnt that the certified copy of the impugned order was served on the counsel on 23.03.2011, and the same entrusted to the advocate clerk to be sent to me. The advocate clerk on account of an inadvertent oversight omitted to forward the said order in time and the same was sent to me later and I had received it on 12.06.2011”.
As per the office report, there is a delay of 54 days. The petitioner has failed to give detailed justification to constitute “sufficient cause” for the delay. He has not explained his failure to follow-up the matter after the order was passed on 18.02.2011. Even after receiving the said order on 12.06.2011, the revision petition was filed on 10th August 2011 after almost two months.
It is well settled that ‘sufficient cause’ for condoning the delay in each case is a question of fact.
The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that: “ It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.
Recently, Hon’ble Supreme Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held;
“ After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;
“It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.”
The Court further observed;
“ It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.
In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.
In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.
In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs”.
Observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case.
Even, after getting two adverse findings, petitioners have chosen not to settle the claim of the respondent but have dragged him to the highest Fora under the Act.
It is not that every order passed by Fora below is to be challenged by a litigant even when the same are based on sound reasoning.
It is a well-known fact that Courts across the country are saddled with large number of cases. Public Sector Undertakings indulgences further burden them. Time and again, Courts have been expressing their displeasure at the Government/Public Sector Undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Sector Undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so.
Public Sector Undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public Sector Undertakings are possibly an apt example of being penny wise, pound- foolish. Rise in frivolous litigation is also due to the fact that Public Sector Undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.
In view of the foregoing, the application for condonation of delay is rejected and the revision petition is dismissed as barred by limitation with no order as to cost.
Sd/- ..………………………………
[ V B Gupta, J.]
Sd/-
………………………………..
[Rekha Gupta]
Satish NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 266 of 2012 (From the order dated 8.6.2009 in Appeal No. 605/2007 of Haryana State Consumer Disputes Redressal Commission, Panchkula)
1. Haryana Urban Development Authority Through its Chief Administrator Sector – 6, Panchkula
2. Haryana Urban Development Authority Through its Estate Officer, Kurukshetra
` … Petitioners/Opp. Parties (OP)
Versus Sheela Devi W/o Sh. Dhoom Singh, C/o Dua Dental Clinic, Near Old Bus Stand, Brahman Dharamshala, Kurukshetra
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners : Ms. Anubha Agrawal, Advocate
PRONOUNCED ON 8 th May , 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioners/Opposite parties against the impugned order dated 8.6.2009 passed by the Haryana State Consumer
Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in
Appeal No. 605 of 2007 – HUDA & Anr. Vs. Sheela Devi by which, while dismissing appeal, order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that complainant/respondent applied for allotment of residential plot of 10 Marlas in Sector 8, Urban
Estate, Kurukshetra under ousteesscheme and deposited 10% earnest money on
28.3.2003 along with application form with petitioner-OP. OP accepted application and complainant was held entitled for residential plot under oustees quota, but later on, application of the complainant for allotment of plot was rejected by OP on the ground that she had not submitted no objection certificate from other co-sharers. Alleging deficiency on the part of the OP, complainant filed complaint before District Forum. OP contested complaint and submitted that, as complainant failed to furnish no objection certificate from other co-sharers, application was rightly rejected and prayed for dismissal of the complaint. Learned District forum after hearing both the parties, allowed complaint and directed OP to issue allotment letter without raising any demand of affidavits regarding no objection. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed. Petitioner also filed application for condonation of delay along with revision petition.
3. Heard learned Counsel for the petitioner on application for condonation of delay and perused record.
4. Petitioner along with revision petition filed application for condonation of delay in which, it was submitted that time was consumed in seeking necessary approvals for filing revision petition and collecting relevant documents. It was not mentioned that how many days delay was to be condoned. Later on, filed affidavit of Mr. SatbirSingh after almost 7 months in which, it was submitted that in the light of impugned judgment by letter dated 27.7.2009, indemnity bond was demanded from the complainant.
Complainant instead of submitting indemnity bond, filed execution application and show cause notice was received from District Forum on 3.11.2011. Then, case was again examined and headquarter vide letter dated 9.12.2011 directed to file revision petition. It was further submitted that Counsel prepared revision petition which was sent for approval of the competent authority on 28.12.2011 and office of the petitioner sent revision petition on 30.12.2011 for approval of Administrator, HUDA. Administrator
HUDA approved revision petition on 11.1.2012 and revision petition was filed on
23.1.2012. Learned Counsel for the petitioner has also drawn our attention towards noting of the office of petitioner, which reveals that on 17.7.2009, it was recommended that revision petition may not be filed and plot may be allotted after obtaining indemnity bond.
5. Learned Counsel for the petitioner submitted that, as petitioner decided not to file revision petition and allot plot after obtaining indemnity bond, revision petition was not filed in time, but as the respondent filed execution petition and notice was received by the petitioner on 3.11.2011, this revision petition was prepared and filed; hence, delay of
854 days in filing revision petition may be condoned.
6. To our utter surprise, when petitioner decided not to file revision petition, why this revision petition has been filed, is not clear. Petitioner instead of demanding indemnity bond from the complainant should have complied with the order of District Forum regarding allotment of plot without raising any demand of affidavits regarding no objection. Merely because execution petition was filed by the complainant, there was no occasion for the petitioner to file revision petition; though, earlier decided not to file revision petition and allot the plot. Apparently, there is no reasonable explanation for condonation of inordinate delay of 854 days.
7. Perusal of affidavit of Satbir Singh also reveals that revision petition was prepared by Counsel and was received by competent authority for approval on 28.12.2011. Even then, revision petition was filed on 23.1.2012 meaning thereby filed after 25 days after receiving draft of revision petition for approval. As there had already been delay of about 830 days, petitioner should have filed revision petition immediately after petitioner received draft revision petition for approval.
8. As there is inordinate delay of 854 days, this delay cannot be condoned in the light of the judgment passed by the Hon’ble Apex Court and the National Commission in (1) (2010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Anr.; (2) (2012) 3 SCC 563 – Office of The Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State Commission) – Anshul AggarwalVs. New Okhla Industrial Development Authority. 9. As revision petition has been filed along with inordinate delay of 854 days, we do not deem it proper to condone inordinate delay of 854 days and in such circumstances, application for condonation of delay is liable to be dismissed resulting in dismissal of revision as time barred.
10. Consequently, revision petition is dismissed as time barred with no order as to costs. ..………………Sd/-…………… ( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-………………… ( DR. B.C. GUPTA )
MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 761 OF 2011 (From the order dated 10.11.2010 Appeal No.543/2007 of the State Commission, Haryana, Panchkula)
Iqbal Singh S/o Talay Ram, Resident of House No.626P, HUDA Colony, Sector-20, Part-II, Sirsa, Haryana ....Petitioner
Versus
1. Haryana Urban Development Authority, Panchkula, through its Chief Administrator
2. The Estate Officer Haryana Urban Development Authority Sirsa, (Haryana) ….Respondents
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mr. Pardeep Kumar, Advocate
Pronounced on : 15 th May, 2013 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
In this revision petition filed by the Petitioner/complainant, there is challenge to order dated 10.11.2010, passed by State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, ‘State Commission’). 2. Brief facts are that respondents/O.Ps have allotted a plot bearing No.626-P Sector-20 Part-II measuring 14 marlas vide allotment No.126 dated 7.1.2003. The possession of the plot was delivered to the petitioner vide letter dated 28.4.2003. As per the version of the petitioner, there is a sewerage line passing in front of his plot at a distance of one feet and due to existence of said sewerage line and manhole, he could not construct his house properly as he could not utilize the entire area of the plot. Further, there was foul smell due to the sewerage line as well as manhole. Therefore, petitioner approached respondents and requested them to remove the sewerage line and manhole but in vain. Thus, alleging it a case of deficiency of service and unfair trade practice, petitioner invoked jurisdiction of the District Consumer Disputes Redressal Forum, Sirsa (for short, ‘District Forum’). 3. Respondents in their written statement took the plea that complaint was not maintainable, having been filed beyond the period of limitation. They further took the plea that the sewerage line and the manhole was not part of the plot in question and same are within the area of street-road. It is denied that the due to existence of sewerage line and manhole, petitioner could not construct his house properly. In fact, there is no leakage in the sewerage line/pipe. Denying any kind of deficiency in service, it prayed that complaint be dismissed.
4. District Forum, vide order dated 19.1.2007, allowed the complaint and passed following directions; “Keeping in view the facts and circumstances of the case we are of the considered opinion that the respondent-HUDA gross negligence and deficient in service towards the complainant. Hence, we held the respondent guilty under Section 2(1)(g) and 1(1)(o) of the Consumer Protection Act, 1986 (in short the Act). We find that the OPs constructed the manhole in front of the gate and inside the plot of the complainant and due to this reason the complainant could not construct his house properly and he could not utilize the entire area of the plot due to the existence of sewerage line as well as moisture, the front portion of the house including the front portion of the Varandah, open space, paints and marbel damaged badly and have left its space due to the moisture. Hence, we direct the respondent- HUDA to remove the manhole from the front portion of the house of the complainant i.e. from the front gate of the complainant. We further direct the respondents to pay a sum of Rs.one lac to the complainant in lumpsum on account of damages caused to the house of the complainant. We further direct the respondents to pay the aforesaid amount and also remove the manhole and sewerage line within a period of one month from the date of the present order failing which the complainant shall be entitled to compensation of Rs.5,000/- on account of physical and mental harassment, pain and agony with costs of proceedings to the tune of Rs.2,500/-. We order accordingly.” 5. Being aggrieved, respondents filed appeal before the State Commission. None had put in appearance on behalf of the petitioner before the State Commission at the time of arguments. After hearing the learned counsel for the respondent, State Commission allowed the appeal. 6. Being aggrieved by the impugned order, petitioner filed this revision and has also placed on record its written version. 7. It has been contended by learned counsel for the petitioner that act of the respondent is a continuous wrong and provide continuous cause of action and consequently there is no question of statutory limitation of two years. In support, petitioner’s counsel relied upon the following judgments; (i) Transport Corporation of India Ltd. Vs. Veljan Hydrair Ltd. ((2007) 3 SCR 1082 and
(ii) Balakrishna Savlram Pujari Waghmare Vs. Shree Dhyaneshwar Mahajaj Sansthan 1959 Supp (2) SCR 476.
8. State Commission in its impugned order held; “At the very outset the question for consideration in this appeal is
as to whether the complaint of the complainant is within limitation as prescribed under Section 24A of the Consumer Protection Act, 1986. Admittedly the complainant was allotted the plot in question vide allotment letter No.126 dated 7.1.2003 and possession of the same was delivered to him on 28.4.2003 whereas the complainant has filed the present complaint on 06.07.2005 i.e. beyond the prescribed period of two years as provided under Section 24-A of the Consumer Protection Act, 1986. It is well settled principle of law that no complaint can be entertained by the Consumer Forum if it is not filed within two years from the date of cause of action. Reliance is placed on the case titled as Kandimalla Raghavaiah
& Co. versus National Insurance Company Ltd. and another , 2009 CTJ 2009 (Supreme Court)(CP) wherein para No.12 of the said judgment it has been held by Hon'ble Apex Court; “ 12. Recently, in State Bank of India Vs. M/s. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held as under;
“ 8. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.” The present case is fully covered by the case law cited supra. Under the facts and circumstances of the case as well as the case law
cited supra we are of the view that the District Forum has not considered the factual position on record and committed great error in allowing the complaint and as such the impugned order under challenge, is not sustainable in the eyes of law. For the reasons recorded above, this appeal is accepted,
the order is set aside and complaint is dismissed.” 9. As per averments made in the complaint, possession of the plot in question was delivered to the petitioner on 28.4.2003. It has been alleged in the complaint that during the course of construction of the house, it came to the light that the main sewerage line is in existence through the plot of the petitioner. 10. In the entire complaint, it is nowhere stated as to on which date cause of action arose. However, in para no.10 of the complaint it is stated that about three months back when petitioner started to reside in the newly constructed house the fact of damage to his house due to leakage in sewerage line came to his knowledge. Thus, as per petitioner’s own case, the existence of sewerage line which was going through the plot of the petitioner came to his knowledge during construction of the house. 11. The complaint was filed before the District Forum on 6.7.2005 which is admittedly beyond the prescribed period of two years as provided under Section 24A of the Act. Interestingly, in its written version, petitioner has put forward another story stating that he came to know about deficiency of service on the part of respondents only in the month of June, 2003. Thereafter, legal notice was sent and finally complaint was filed on 6.7.2005. 12. On 9.5.2012 at the time of admission hearing, counsel for petitioner undertook to file copies of relevant Building Regulation of HUDA which specify the parameter of laying underground main sewerage line as well as house connection therewith. Petitioner was directed to do the needful within eight weeks. Consequently, operation of impugned order was stayed. Thereafter, petitioner sought number of opportunities to file such guidelines but lastly on 4.12.2012, counsel for petitioner stated that there is no such rule dealing with sewerage line. This shows the conduct of the petitioner who after obtaining ex parte stay had been delaying the matter. 13. Since, complaint filed by the petitioner before the District Forum was barred by limitation, various judgments cited by learned counsel for the petitioner, are not applicable to the facts of the present case. 14. Thus, we hold that there is nothing on record to show that impugned order passed by State Commission is erroneous or there is any illegality in the same. Hence, the present revision petition being without any legal basis and is meritless stand dismissed. 15. No order as to cost. …..…………………………J (V.B. GUPTA) PRESIDING MEMBER
…..………………………… (REKHA GUPTA) MEMBER Sg. NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2099 OF 2008 (Against the order dated 07.03.2008 in Appeal No.179/2005/(Pb)/RBT/103/2008 of the State Commission, UT, Chandigarh)
Punjab Urban Planning & Development Authority (PUDA) Through its Estate Officer SCO-41, Opposite Tehsil Complex Ladowali Road, Jalandhar City
...... Petitioner
Versus Gulshan Rai S/o Shri Ram Prakash R/o Old Tehsil Road, Phillaur, District Jalandhar
…... Respondent
REVISION PETITION NO. 2100 OF 2008 (Against the order dated 07.03.2008 in Appeal No.187/2005/(Pb)/RBT/844/2007 of the State Commission, UT, Chandigarh)
Punjab Urban Planning & Development Authority (PUDA) Through its Estate Officer SCO-41, Opposite Tehsil Complex Ladowali Road, Jalandhar City
...... Petitioner
Versus Inderjit Bansal S/o Shri Shadi Ram R/o Grain Market, Phillaur, District Jalandhar
…... Respondent
REVISION PETITION NO. 2101 OF 2008 (Against the order dated 07.03.2008 in Appeal No.188/2005/(Pb)/RBT/846/2008 of the State Commission, UT, Chandigarh)
Punjab Urban Planning & Development Authority (PUDA) Through its Estate Officer SCO-41, Opposite Tehsil Complex Ladowali Road, Jalandhar City
...... Petitioner
Versus 1. Sahib Chand S/o Shri Ram Prakash R/o Old Tehsil Road Phillaur, Distt. Jalandhar
2. Rajiv Makkar S/o Shri Sahib Chand R/o Old Tehsil Road Phillaur, Distt. Jalandhar …... Respondents
REVISION PETITION NO. 2102 OF 2008 (Against the order dated 07.03.2008 in Appeal No.189/2005/(Pb)/RBT/845/2008 of the State Commission, UT, Chandigarh)
Punjab Urban Planning & Development Authority (PUDA) Through its Estate Officer SCO-41, Opposite Tehsil Complex Ladowali Road, Jalandhar City
...... Petitioner
Versus 1. Rajiv Makkar S/o Shri Sahib Chand R/o Old Tehsil Road Phillaur, Distt. Jalandhar 2. Sahib Chand S/o Shri Ram Prakash R/o Old Tehsil Road Phillaur, Distt. Jalandhar …... Respondents
BEFORE:
HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioners : Mrs. Rachana Joshi Issar, Advocate
For the Respondent : Mr. Munish Goel, Advocate
Pronounced on : May, 2013
ORDER
REKHA GUPTA
Revision Petition No.2099 of 2008 (PUDA Vs. Gulshan Rai), Revision Petition No.2100 of 2008 (PUDA Vs. Inderjit Bansal), Revision Petition No.2101 of 2008 (PUDA Vs. Sahib Chand & Anr.) & Revision Petition No.2102 of 2008 (PUDA Vs. Rajiv Makkar & Anr.) have been filed under section 21 (b) of the Consumer Protection Act, 1986 (short, ‘Act’) against the orders dated 7.3.2008 passed by State Consumer Disputes Redressal Commission, UT, Chandigarh (short, “State Commission”) in Appeal No.179/2005/(Pb)/ RBT/103/2008 ; Appeal No.187/2005/(Pb)/RBT/844/2007 ; Appeal No.188/ 2005/(Pb)/RBT/846/2008 and Appeal No.189/2005/ (Pb)/RBT/845/2008. The Revision Petitions involve common points of law, though the orders are passed separately in each case. Hence, we propose to pass a common order. The facts of the case have been taken from RP No.2099 of 2008, i.e., the case of Gulshan Rai.
Brief facts of the complaint are that in the year 2001, the petitioner/ opposite party (PUDA) had launched a scheme for setting up residential and commercial plots at Old Police Academy, Phillaur through its advertisements in the newspaper for auction on 7.2.2001 at Phillaur, District Jalandhar. In response to the said advertisement the respondent/complainant had purchased residential plot No.11, near Veterinary Hospital, Phillaur 400 sq.yds. at the Old Police Academy, Phillaur in an open auction held on 7.2.2001 for Rs.15,00,000/- from the petitioner.
At the time of the auction, the respondent was informed that the petitioner will develop the said scheme by laying out sewerage, water supply, street lights, parks and roads at the site. On this assurance, the respondent deposited an amount of Rs.1,50,000/- being 10% of the sale price vide receipt No.68, Book No.1334 issued by the PUDA on 7.2.2001 and the remaining amount of Rs.2,25,000/-,15% of the total amount was deposited vide draft No.839634 dated 5.3.2001 issued by the State Bank of India, Phillaur in favour of the petitioner. The balance amount of Rs.11,25,000/-, 75% of the price of the plot is to be paid in three equated half yearly installments along with interest of @ 15% per annum on reducing basis is paid in lump-sum and without interest if the remaining sale price is paid within 60 days from the date of auction and in that event a rebate of 5% will be given on the balance amount of 75%.
According to para 12 of the allotment letter memo No.2001/EO/PUDA-JAL/3790 dated 15.6.2001, the possession of the site was to be given within 30 days from the issue of allotment letter by the PUDA, whereas the petitioner failed to deliver the possession to the respondent in terms and conditions of allotment letter. The respondent had deposited the balance amount of Rs.10,68,750/- vide receipt No.53, book No.873 dated 2.8.2001 to the petitioner and it was mentioned in the receipt that it was in full and final payment. The respondent had written a letter to the Estate Officer, PUDA on 13.7.2001 that the respondent had deposited 25% of the price of the plot as per terms and conditions of the allotment order, but the petitioner had failed to perform its terms of contract as mentioned in para 12 of the allotment order dated 15.6.2001 and the possession of the plot was not delivered.
As per terms and conditions of allotment order, the possession of the plot was to be delivered, within a period of 30 days on the issue of allotment order and the development works were also to have been completed by the petitioner (PUDA) before the delivery of possession of the plot and no interest on installments were to be charged till all facilities are provided to the plot holder. According to para 16 of the allotment order dated 15.6.2001, the building shall be completed within 3 years from the date of issue of letter after getting proposed building plan approved from the petitioner. In case of non-construction of the plot, on the request of the allottee, the extension in time may be allowed by the petitioner for construction of the building on deposit of extension fee to be determined by the petitioner.
The respondent had requested the petitioner vide letter dated 2.8.2001 that the possession of the Plot No.11 was to be delivered to the respondent within 30 days from the date of issue of the allotment order dated 15.6.2001.
The respondent had waited for a period of 5 months, but no such letter was received by him nor possession of the plot was delivered. The respondent then had written a letter dated 13.7.2001 to the petitioner for handing over the physical possession of the plot with necessary amenities as committed by the petitioner. The said letter was acknowledged by the petitioner vide receipt No.1207 dated 13.7.2001. Despite this letter, no action was taken on the request of the respondent. Then again on 1.8.2001, the respondent visited the office of the petitioner and personally requested them to hand over the physical possession of the plot. A letter was also given on the same date, which was acknowledged vide receipt No.1354 dated 1.8.2001 by the petitioner. The possession of the plot was delivered on paper on 1.8.2001, not at the site of the plot, but in the office of PUDA at Jalandhar. Actually, no physical possession, by taking measurement or actual demarcation of the plot, was delivered at the spot to the respondent. This could not possibly be done as the Zoning Plan had not sanctioned by the Competent Authority.
It is important to mention here that auction of the Plot took place on 7.2.2001 and the allotment order was issued on 15.6.2001. In the said allotment letter, the details of installments payable by the respondent with interest are given as under :-
Installment Due Date Amount ofInterest Total amount Installment payable
1. 7.8.2001 3,75,000/- 84,375/- 4,59,375/-
2. 7.2.2002 3,75,000/- 56,250/- 4,31,250/-
3. 7.8.2002 3,75,000/- 28,125/- 4,03,125/-
11,25,000/- 1,68,750/- 12,93,750/-
The petitioner – PUDA had wrongly and illegally claimed an interest of Rs.84,375/-
on the first installment of Rs.3,75,000/- though the respondent had deposited the balance amount of Rs.10,68,750/- vide receipt No.53, Book No.873, dated 2.8.2001 and it was specifically mentioned by the petitioner in the receipt itself that it was full and final payment of the plot. This amount was claimed arbitrarily and against the principle of natural justice, equity and fair play. The respondent had applied for “No Due Certificate” of Plot No.11 allotted to him on 28.5.2002, but the petitioner had wrongly and illegally made a demand of Rs.1,15,772/- vide letter ED-PUDA-JAL/S-5/2000/4841 dated 12.6.2002 by charging compound interest on the illegal demand of interest of Rs.84,375/-. The respondent had written a letter on 26.6.2002 to the petitioner, which was acknowledged vide receipt No.1243 dated 26.6.2002 requesting him to give the details of the demanded amount. It was also mentioned therein that the respondent had already deposited the balance amount of sale price of the plot vide Receipt No.53, Book No.873 dated 2.8.2001 and the petitioner had also mentioned in the Receipt itself it was a full and final payment in respect of the plot allotted to the respondent. The respondent had again issued a reminder letter dated 8.11.2002 acknowledged by the petitioner, vide receipt No.2223 dated 8.11.2002 again requesting for the of “No Due Certificate”. The respondent further clarified that he is not liable for any interest etc. as full and final payment had already been made to the petitioner.
The petitioner had issued another letter No. ED-PUDA-JAL/S-5/2000/10185 dated 20.11.2002 asking for the deposit of Rs.1,23,342/- without giving its details for the issue of “No Demand Certificate” as requested by the respondent.
The respondent had issued a legal notice dated 13.1.2003 through his lawyer indicating that the petitioner had not provided the facilities/amenities as undertaken by him within the stipulated period and had withheld the payment illegally without providing the necessary amenities/ development works etc. but the petitioner had not given any satisfactory reply to this notice. In the said reply of the notice the petitioner vide Memo No. ED-PUDA-JAL/S-5/2000/1464 dated 27.2.2003 had written to respondent’s lawyer to direct his client (respondent) to submit the building plan as early as possible, so that physical/demarcation of the plot could be given. This clearly proves that physical possession of the plot had not been delivered till the reply of the notice dated 27.2.2003. Respondent further stated that the building plan of Plot No.11 has already been submitted on 16.12.2002 to the petitioner.
The respondent had represented the matter to the Chief Administrator, PUDA, SCO No.64, Sector-17, Chandigarh on 6.3.2003 indicating clearly that basic amenities/facilities had not been provided by the PUDA so far. Besides this, the Zoning Plan of the area in question had not been approved by the Competent Authorities, in the absence of which no physical possession of the plot could be delivered nor the site plan of the plot can be sanctioned by the petitioner. The house cannot be built within the stipulated period of 3 years according to the condition mentioned in the allotment order. Therefore, the claim of interest with further compounded interest is illegal, unjust, unfair and against the principle of natural justice. The copy of the said letter was handed over to the petitioner on 6.3.2003, which was acknowledged vide receipt No.1036 dated 6.3.2003. However, no reply was received by the respondent from the petitioner. In order to avoid harassment and mental torture, the respondent had deposited an amount of Rs.80,000/- 26.8.2003 vide Receipt No.082, Book No.41 dated 26.8.2003 to the petitioner under protest with the hope that the petitioner shall refund the excess amount after necessary calculations. Without considering the conditions of allotment order and the assurance given by the petitioner to provide the basic amenities/development works, the petitioner had issued another letter ED-PUDA-JAL/S- 5/2000/9975 dated 9.10.2003 enhancing the demand of Rs.1,14,668/-, which is totally illegal, unjustified and the same is not borne out from the record of the petitioner.
The respondent had applied for the sanction of the plan of Plot No.11 on
16.12.2002 after depositing the requisite fee with the petitioner. The site plans of Plot No.11 along with other plans were returned by District Town Planner, Jalandhar replying vide Letter No.146-DTP-J-4B-1(J) dated 21.1.2003 that the Zoning Plan of the site of Police Academy, Phillaurhad not been approved by the Chief Town Planner, Punjab, Chandigarh and the Chief Administrator, PUDA, Chandigarh. In the absence of the approval of the Zoning Plan of the said site, the plan of Plot No.11 and other plots could not be approved and therefore, the site plan submitted by the respondent were returned in original to the Estate Officer, PUDA, Jalandhar. This fact also proves that physical possession of the plot cannot be delivered nor the facilities/amenities were provided. Since, the respondent had deposited the entire remaining price of the plot amounting to Rs.10,68,750/- other than the money deposited at the time of auction of the Plot and remaining 15% within 30 days with the petitioner, so the respondent is entitled to interest on this amount due to non-development works. The respondent is entitled to an interest @ 18% p.a. on the balance amount of Rs.10,68,750/- deposited on 2.8.2001 with the petitioner. He is also entitled to the refund of Rs.80,000/- with interest, which was got deposited under pressure on 26.8.2003.
The Zoning Plan is the back bone of the scheme and indicates the width of the roads, width of open space to be left by the allottee in front, rear portion of the plot, height of the building, location of the main gate, width of green belt etc. Thus, there are so many factors for the finalization of the scheme depending upon the Zoning Plan. The Zoning Plan for this site was not approved by the Competent Authority till March 2003 in the absence of which, physical possession of the Plot could not be given to the respondent. Actual possession by demarcation is necessary to know where the allottee is expected to raise the construction. The site Plan cannot be sanctioned by the petitioner till the Zoning Plan is approved. The petitioner has delivered the physical possession of the Plot No.11 in the month of May, 2003. Petitioner – PUDA, in their reply to the complaint have raised some preliminary objections and giving the following facts ;
“ That even as per the Section 8 of the Arbitration and Conciliation Act, 1996, this forum has no jurisdiction to entertain, try and decide the present complaint being the dispute based on Arbitral Agreement.
That as per terms and conditions laid down in Annexure – I which is the “invitation to Offer” in case of the dispute relating to the terms and conditions or legal dispute relating to the Allotment Letter, the decisions of the Chief Administrator would be final and the parties would be bound by the same. The complainant had participated in the auction by accepting such condition. The respondent had not approached the Chief Administrator, PUDA in respect of hisdispute, as such the present complaint is barred under the law because the efficacious remedy known to the complainant was available under the law.
That the present complaint is hopelessly barred by limitation because as per the Annexure V attached with the complaint, the complainant on 1.8.2001had confirmed for having received the possession of the said plot. The present complaint has been filed now on 27.11.2003 i.e., after the gap of 2 years. Even the Annexure VIII is also the proof of the fact that the complainant had acknowledged on 1.8.2001 that he had taken the possession. As such, the complaint it to be dismissed out-rightly.
That the complainant has tried to mislead this forum by claiming the interest on the ground that the possession has not been delivered, whereas the Annexure VII belies the stand of the complainant, wherein he has acknowledged on 1.8.2001 for having taken the possession simpliciter fact stated in the Annexure VIII that possession was taken under protest does not extend the period of limitation because once the possession was taken whether willingly or under protest, the limitation for filing the complaint will not stop running.
That the complainant is not entitled to the rebate of 5% because as per Annexure – V of the complaint, the complainant could have claimed the rebate, had he deposited the amount within 60 days from the date of auction. Admittedly, the auction took place on 7.2.2001 and the such benefit of the rebate cold be taken uptil 6.4.2001 but the complainant has stated to have deposited Rs.10,68,750/- on 2.8.2001 vide two drafts of Rs.5,00,000/- and Rs.5,68,750/-. The plea taken by the complainant that the benefit of 5% was to be given not from the date of auction but from the date of the delivery of possession is not available to the complainant because the complainant is admittedly a consenting party to the terms and conditions mentioned in the Annexure V. even the plea guidelines of the Punjab Govt. to charge penal interest and penalty to be chargeable from the date of delivery of the possession to the purchaser is also not available to the complainant, as the guidelines so stated are in contradiction to the Annexure – V. The guidelines, if any, cannot be enforced. They are to be made applicable where the terms and conditions are silent. Here, the terms and conditions in Annexure – V clearly specified that the interest is to be calculated from the date of auction.
That the amount of the interest of Rs.84,375/- as mentioned in the Annexure IX is legal and valid. The complainant was bound to pay the interest so demanded.
That since the complainant did not pay the interest of Rs.84,375/- as mentioned in the Annexure-IV, the subsequent interest continued and as such the demand vide Annexure-XII for Rs.1,15.72/- and the demand vide Annexure-XV for Rs.1,23,542/- is legal and valid.
On Merits
That in reply to this para No.6 of the complaint, it is submitted that it is not disputed that the complainant had deposited Rs.10,68,750/- but such amount was not full and final because the complainant was also bound to pay the interest. The writing of the letter dated 13.7.2001 is not disputed but it is wrong to say that the possession of the plot was not delivered or that the PUDA failed to perform its terms and conditions of the contract as mentioned in the paraNo.12 of the Allotment Order dated 15.6.2001. The contents of the above said para of the reply may be read as the part of this para.
That in reply to this para No.10 of the complaint, it is submitted that the writing of the letter dated 2.8.2001 is not disputed, however the possession was deemed given as per the Allotment Letter within 60 days. The date on the letter of possession is not to taken as the date of possession.
That the contents of para No.15 of the complaint are wrong and hence denied. The complainant was bound to pay the interest of Rs.84,375/- because the benefit of the lower interest or 5% rebate interest could be availed only if the lump sum payment of balance principal amount had been made within the period of 60 days from the date of auction, i.e., 7.2.2001. Had the payment been made uptill 7.4.2001, then the matter would have been different. The answering respondent has rightly and legally claimed the interest of Rs.84,375/-.
That the contents of this para of the complaint are denied for the want of knowledge. The Chief Administrator has not been arrayed as a party in the present complaint and the contents of this para of the complaint are related to the Chief Administrator, PUDA. However, the copy of the letter so mentioned in this para was received by this office.”
The District Consumer Disputes Redressal Forum, Jalandhar (short, “District
Forum”) vide order dated 12.10.2004, after hearing counsel for the parties and going through the record came to the following conclusion ;
“After hearing the rival contentions of the counsel for the parties, we agree with the contention raised by the counsel for the complainant that remedy and rights under Consumer Protection Act are additional remedies and even Arbitration clause could not prevent to the jurisdiction of the Consumer Forum. Therefore, this objection of the counsel for the respondent is without any basis and is rejected as such.
Counsel for the respondent has also argued that according to clause of the allotment letter, the complainant was bound to refer the dispute to Chief Administrator, PUDA whose decision was final between the parties and he alleged that complaint under the Consumer Court was not maintainable. This objection of the respondent is without any force as complainant has referred the matter to Chief Administrator, PUDA according to para No.20 of the complaint but no reply has been sent by the Chief Administrator, PUDA even the copy of the letter was handed over to the respondent on 6.3.2003 and this fact is admitted by the respondent on 6.3.2003 and this fact is admitted by the respondent in his reply in para No.20. Therefore, if the Chief Administrator has not decided the matter of 8 months then respondent cannot take the objection that the complainant has not availed the opportunity provided under the Act for making request to Chief Administrator, PUDA. Therefore, this objection of the respondent also failed and the same is rejected.
After considering the rival contention of the counsel for the parties, it is clear that claimant had made last payment on 26.8.2003 of Rs.80,000/- and the respondents are raising further demand of Rs.1,31,000/- as late as on 23.9.2003 according to para No.20 of written statement. Therefore, it is proved that the complainant has a continued cause of action because respondents are demanding extra amount as late as on 23.9.2002 according to para No.20 of the written statement and complainant is still claiming that no amenities have been provided so far even after filing written statement. Therefore, the complaint is well within time.
Counsel for the complainant argued that in this case necessary facilities and amenities have not been provided so far by the respondent for which the complainant is demanding back the excess amount charged from him and he is also claiming interest on it as the amount has been used by the respondent. He also argued that respondent has not approved the Zoning Plan which was back bone of the scheme and was necessary for location of the plots and other necessary building location like Green Belt, Main Gate and road and said Zoning Plan was not approved by the respondent as late as March, 2003 and in the absence of which physical possession could not be given. He argued that allegation in para No.20 of the complaint was not denied.
The stand of the respondent in para No.27 of the written statement is ridiculous. On the one hand, they have taken the plea that complainant was bound to make construction within 3 years from the issuance of the allotment letter and or the same time they have mentioned that the construction can only be made after getting building plan approved from the Competent Authority. In this case, the respondent had written letter Ex-C-20 dated 21.1.2003 in which they have mentioned the Zoning Plan has not been sent for sanctioning to Chief Town Planner, Chandigarh and unless and until such sanction is received of Zoning Plan, the maps given by the parties cannot be approved and they have sent back the maps to the party. Therefore, letter Ex.C-20 clearly shows that they were guilty of negligence and deficiency as they have not approved the Zoning Plan upto 21.1.2003 while they have received the full and final payment from the parties as late as 2.8.2001 and the respondent was not able to give paper possession what to talk of physical possession as they have returned the maps 21.1.2003 vide letter Ex.C-20. Therefore, respondent could not demand the extra amount or interest even upto 21.1.2003. They have not mentioned in the reply that the Zoning plan has been sanctioned with the site plan of the parties for making construction. Therefore, respondent has failed to show that they were able to deliver the possession even after filing the present written statement.
Therefore, in the present circumstances, it clear that the demand of the respondent who claimed interest upto 21.1.2003 was unjustified even the respondent was not ready to deliver the possession.
In this case the complainant had made the full and final payment by 2.8.2001 after the letter of allotment. Therefore, respondent cannot contend that such payment should have been made within 60 days from the date of auction only when they are not doing any duty of their part even after filing the written reply in the year 2003. Therefore, the full and final payment made by the complainant on 2.8.2001 had exonerated the complainant from making further payment of interest.
As such complainant is entitled for compensation for not developing area upto even filing of the written statement and he suffered loss due to escalation of the prices and he has right to refund back of Rs.80,000/- and also compensation of Rs.20,000/- per year from the date of final payment i.e., 2.8.2001 upto the period when actual possession is to be delivered to the complainant and amenities are to be provided by the opposite party. Opposite party is also directed to give the possession and provide amenities as soon as possible. Complainant is also awarded Rs.2,000/- as costs of litigation. Compliance of the order be made within one month from the receipt of the copy of this order. Copies of the order be sent to the parties fee of costs under the rules. File be consigned to the record room.”
Aggrieved by order of the District Forum, petitioner as well as respondent filed appeals before the State Commission. After hearing counsels for the parties and having carefully gone through the record, State Commission gave the following order ;
“It is an admitted fact that residential plot No. 11, near Veterinary Hospital, Phillaur at old police Academy, Phillaur was purchased by Sh. Gulshan Rai, Complainant in open auction on 7.2.2001 for Rs.15,00,000/-. He had deposited Rs.1,50,000/- being 10% of the sale price vide receipt No.61 dated 7.2.2001 and the balance amount of Rs.2,25,000/- on 5.3.2001 so, as to make 25% vide demand draft dated 5.3.2001 issued by State Bank of India, Phillaur in favour of PUDA. Ex.C.-1 is the pamphlet issued by PUDA for the auction which was to be held on 7.2.2001. According to it, possession was to be delivered to the successful purchasers on depositing of 25% of the amount and they would be authorized to make construction after getting site plan sanctioned. Ex. C.- 2 is the receipt dated 7.2.2001 vide which Rs.1.50.000/- were deposited. Ex. C.3 is the receipt dated 5.3.2001 vide which an amount of Rs. 2,25,000/- was deposited, so, as to make 25% Ex. C.- 4 is the allotment letter dated 19.6.2001 according to which an amount of Rs.3,75,000/- i.e. 25% was deposited earlier and the balance amount of Rs.11,25,000/- i.e. 75% was to be deposited within 60 days from the date of auction, so, as to claim rebate of 5%. According to clause-16 of the allotment letter, construction on the plot was to be made within three years from the date of issuance of allotment letter, after getting iste plan of the building sanctioned. Ex.C.-5 is receipt dated 2.8.2001 vide which Rs.10,68,750/- were deposited and this amount was accepted as full and final. i.e it was got deposited after giving rebate of 5%. It is true that according to allotment letter, balance amount after deducting 5% as rebate was to be deposited within 60 days from the date of auction. In that way the amount was deposited late but since it was accepted as full and final payment vide ex. C. –5, so, PUDA cannot go against the said receipt. It means that PUDA after waiving condition NO.5 accepted the payment as full and final payment. There was a reason for it because allotment was issued on 19.6.2001 i.e. more than after 4 months of auction. Since, complainant came to know late of the terms of allotment letter, so, 5% rebate was allowed on deposits within 60 days from issue of allotment letter. Therefore, we hold that the full amount had been paid.
A perusal of the letter Ex.C.–7 dated 1.8.2001 issued by complainant shows that he had written to Estate Officer, PUDA, Jalandhar that the development had not taken place as necessary amenities like water supply, electricity, storm water and park had not been provided. There is also another letter Ex. C.-8 on file. On the other hand vide letter dated 20.11.2002 Ex. C.-12 PUDA had demanded Rs.1,23,542/- as balance amount. Vide receipt Ex. C.- 15 dated 26.8.2003 complainant had deposited Rs.80,000/- regarding balance amount.
PUDA has not led any evidence that it had provided electricity, roads, sewerage, water supply etc. On the other hand, it had stated that the water supply and sewerage were to be provided by the Municipal Corporation. Primarily is was duty of PUDA to make arrangement to provide amenities at the earliest. It is not mentioned in the written reply as to when the amount was deposited with Municipal Corporation to provide these facilities. It is stated in the written reply that the possession was delivered to the complainant on 1.8.2001 and otherwise also under the auction letter the complainant was bound to take possession within 30 days. Taking of possession within 30 days from the date of issue of allotment letter or on 1.8.2001 was meaningless because no amenities were provided and further complainant could not make an application for getting site plan sanctioned because so far zoning plan had not been approved.
There is letter Ex. C.-18 dated 21.1.2003 bearing memo No. 146 which shows that zoning plan had not been approved with respect to sanctioning of the site plan of Plots No. 10,11,12, and 13 of old police Academy, Phillaur. Since, zoning plan had not been approved by the Chief Town Planner and also by the Chief Administrator, PUDA, so, site plan could not be sanctioned. Thus, recovery of Rs.84,375/- as interest could not be held valid because no interest could be recovered as the site plan was not sanctioned as zoning plan was not got approved and further amenities had not been provided. Therefore, demand of PUDA for interest vide letter dated 21.1.2003 was not justified. Since, amenities had not been provided and the zoning plan had not been approved, so, District Consumer Forum had rightly ordered refund of Rs.80.000/- which was deposited in excess. It had further awarded compensation of Rs.20,000/- per year from the date of final payment upto the period when actual possession was to be delivered and amenities were to be provided and zoning plan was sanctioned.
No basis has been laid for awarding compensation of Rs.20,000/- per year. We think it will be appropriate if compensation by way to interest on the amount deposited by complainant is awarded till the amenities are provided and site plan is sanctioned. We further think it appropriate if interest @ 18% p.a. is awarded. It will also care of escalation in cost of construction as well as mental agony etc. Thus, instead of compensation of Rs.20,000/- per year, we award interest @18% p.a. from the date of respective deposits till amenities are provided and site plan is sanctioned. The Hon’ble Supreme Court in Ghaziabad Development Authority Vs Balbir Singh (2004) 5 Supreme Court Cases 65 has awarded interest @ 15% to p.a. by way of compensation for escalation in cost of construction etc.
Counsel for respondent also contended that the matter should have been referred to the arbitrator and further to the Chief Administrator as per terms and conditions. However, contention of the learned counsel is not tenable because under Section-3 of the Consumer Protection Act, the provisions of the C.P.Actare in addition to and not in derogation of the provisions of any other law for the time being in force and inspite of provisions of arbitration, complaint can be filed under the C.P.Act. Thus, with some modification as above, both appeals are dismissed.
Copies of this order be communicated to the parties, free of charge.”
Hence, the revision petition.
The instant revision petition seeks to raise the following questions of law germane to the jurisdiction of consumer Fora under the Act ;
I. Whether the statutory mandate of Section 24-A of the Consumer Protection Act, 1986 in the present case can be legitimately ignored contrary to the ratio of the Hon’bleSupreme Court’s judgment in Kerala Agro Machinery Corpn. Ltd. Vs. Bijoy Kumar Roy (2002) 3 SCC 165 and in Harayana Urban Development Authority Vs. B.K.Sood(2006) 1 SCC, 164 ? II. Whether an allottee of valuable residential plot, is not legally bound to avail the benefit of the said residential plot only in consonance with the agreed terms of allotment made on “as is where is” basis following an open auction to which, as held by the Hon’ble Supreme Court in Ahmedabad Municipal Corporation Vs. Haji Abdul 1971 Supp. (1) SCR 63, the principle of caveat emptor is applicable ? III. Whether a defaulting allottee of a public housing authority can legally be permitted by the consumer fora to lay the consequences of his own action/inaction at the door of the public housing authority contrary to the ratio of the Hon’ble Supreme Court’s judgment, inter alia, in Prashant Kumar Shahi Vs. Ghaziabad Development Authority (2000) 4 SCC 120 ; Ghaziabad Development Authority VS. Balbir Singh (2005) 9 SCC 573 and Bangalore Development Authority Vs. Syndicate Bank (2007) 6 SCC 711 ? IV. Whether the consumer for a below were justified in erroneously assuming deficiency of service on the part of the petitioner authority in the present case contrary to the ratio of the Hon’ble Supreme Court’s judgment in Ravneet Singh Bagga (2000) 1 SCC 66, wherein Lordships were pleased to hold, inter alia, as under : “ The deficiency of service cannot be alleged without attributing fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be performed by person in pursuance of a contract or otherwise in relation to any service.”
V. It is not beyond the jurisdiction of the consumer fora to assume deficiency of service on the part of the opposite party inspite of the complainant’s failure to carry out the onus to prove any such deficiency ? We have heard learned counsels for the parties and carefully gone through the records.
Counsel for petitioner stated that the respondent had been allotted the said plot through public auction and hence, could not be a “consumer” under the C.P.Act. In support, she has relied upon the judgment “UT Chandigarh Administration and Another Vs. Amarjeet Singh and Others (2009) 4 SCC 660” and do specific attention to para 14 to 21. We are of the view that the said citation does not apply to the facts of the present case. Counsel for petitioner further stated that the District Forum and State Commission are guilty of “twisting the facts of the case”. We, however, find after going through the records that it is the counsel for the petitioner who has tried to mislead the Bench. Counsel for petitioner repeatedly drew the attention of the Bench to the Extracts from auction notice published in newspaper and more specifically para 2, which is reproduced as follows :-
“Successful bidder will deposit 10% of the amount after the end of bid in the form of Bank Draft at the same day of Auction and 15% of the amount will be deposited in 30 days from the date of auction. For property mentioned at S.No.1 – the balance 75% amount shall be deposited within 90 days. For property mentioned at S. No.2 & 3 balance 75% amount (in the shape of reducing balance) may be deposited at the rate of 15% per annum in the shape of 3 equal half yearly installments. If the bidder deposits the 75% amount lump sum within 60 days from the date of Auction 5% rebate will be granted.”
We drew her attention to the allotment letter dated 15.6.2001 which had been received by the respondent on 19.6.2001. The said allotment letter had been issued four months after the date of auction which was held on 7.2.2001 and hence, we are of the view that the 60 days limit could not justifiably be counted from the date of auction as the allotment letter itself has been issued after four months of the auction. Counsel for the petitioner then drew our attention to para 27-D of the respondent’s complaint wherein he has stated that he has received physical possession of Plot No.11 in the month of May, 2003 and para 13 which reads as follows :-
“ 13. That despite this letter, no action was taken on the request of the respondent, then again on 1.8.2001, the respondent visited the office of the petitioner and requested personally to hand over the physical possession of the plot. A letter was also given on the same date, which was acknowledged vide receipt No.1354 dated 1.8.2001 by the petitioner. The possession of the plot was delivered on papers on 1.8.2001 and at the site of the plot, but in the office of PUDA at Jalandhar. Actually, no physical possession by taking measurement or actual demarcation of the plot was delivered at the spot to the respondent. This could possibly be not done at the Zoning Plan was not sanctioned by the Competent Authority”.
This para confirms the facts given in para 27-D of the complaint that physical possession was not given on 1.8.2001.
Counsel for respondent drew our attention to Office Order dated 24.6.2008 of Chief Administrator, PUDA, Mohali to the petitioner, which is reproduced below :-
“ This matter was considered in item no.54.07 of 54th meeting of finance and accounts committee of PUDA held on 10.6.2008 and after consideration it was decided that the prior to 1.2.2005 the plot/house/commercial sites sold through auction in which the delay made in issuing allotment letter theallottee/applicants who have challenged the condition of rebate in court, in those cases who have made payment of 75% in lump sum were given 5% rebate for payment within 60 days not from the date of auction but from the date of allotment letter.”
Hence, it is apparent from the above-mentioned order that in case of plot/house/commercial sites sold through auction prior to 1.2.2005 through auction in which there delay was in issuing allotment letters and the allottee/ applicants had challenged the condition of rebate in court, and in those cases where payment of 75% had been made in lumpsum they were to be given 5% rebate for payment within 60 days not from the date of auction but from the date of their allotment letters. Thus, the Office Order fully covered the case of the respondent and this fact had also been mentioned in his affidavit dated 11.5.2009.
Counsel for petitioner then admitted that she had not been aware of the said policy order and if it exists and if the respondent is entitled to be covered under the same, she would admit his entitlement for the rebate of 5%. It is indeed unbelievable that the counsel for the petitioner was not aware of such an important policy order and nor had she been suitably briefed by the petitioner. The said policy order should have been produced by the petitioner as it is their document and not been left for the respondent to obtain and place on record. The petitioner and their counsel were seeking to deny the legitimate claim of the respondent, i.e., the 5% rebate, by repeatedly agitating the matter before different fora and further hurting his interest by claiming penal interest.
PUDA had vide receipt No.53 dated 28.8.2001 received Rs.10,68,750/- from the respondent on account of full and final payment and hence PUDA’s coercive and aggressive actions against the respondent in repeatedly demanding further money on account of interest is unacceptable, particularly as PUDA is a Public body set up to work for the welfare and benefit of the people.
In their written statement, PUDA has recorded that as per terms and conditions of
Annex.-I, ‘invitation of Offer’, the respondent had not approached the Chief Administrator, PUDA in respect of its dispute and as such, the respondent’s complaint is barred under the law because the efficacious remedy known to the complainant was available under the law. Even, on this count PUDA has sought to deliberately mislead as the respondent had written to the Chief Administrator on 6.3.2003 and copy of that letter had been sent to PUDA. In their written statement in para 20, it has been admitted that copy of letter had been received by PUDA.
Counsel for the petitioner repeatedly stated that possession had been given to the
respondent on 1.8.2001. The said possession was given on paper in the office of PUDA. On the same date, respondent had written to Estate Officer, PUDA asking for possession of the said plot so he could raise construction. Counsel for respondent drew our attention to letter no.EC-PUDA-JAL/S-5/2000/4841 dated 12.6.2002.
This would belie the averments of counsel for the petitioner that not only had the
physical possession of the said plot been given on 1.8.2001 but his plans have been approved and yet the respondent had failed to construct. Hence, he could not claim any relief.
The case of the other respondents in Revision Petition No.2100 of 2008
(PUDA Vs. Inderjit Bansal), Revision Petition No.2101 of 2008 (PUDA Vs. Sahib Chand & Anr.) & Revision Petition No.2102 of 2008 (PUDA Vs. Rajiv Makkar & Anr.) are similar in facts. The particulars are given below :-
In RP No. 2100 of 2008 (Appeal no. 187 of 2005/ (PB)/ RBT/844/ 2007) – PUDA vs. Inderjit Bansal, in which Shri Bansal had purchased a residential plot no. 4 of 400 sq. yds.from PUDA for Rs.15,20,000/-. The facts of this case are also almost identical to the case pertaining to PUDA vs. Gulshan Rai and the District Forum had passed the following order on 21.12.2004:
“ Complainant is entitled for compensation not developing area upto even filing of the written statement and he suffered loss due to escalation of the price and he has right to refund back of Rs.1,20,000/- and also compensation of Rs.20,000/- per year from the date of final payment i.e, on 02.08.2001 upto the period when actual possession is to be delivered to the complainant and amenities are to be provided by the opposite party. Opposite party is also directed to give the possession and provide amenities as soon as possible. Complainant is also awarded Rs.2000/- as cost of litigation”.
The State Commission in appeal no. 187 of 2005 upheld the order of the District
Forum , but instead of compensation of Rs.20,000/- per year awarded by the District Forum, awarded interest @ 18% per annum from the date of respective deposits till amenities are provided and site plan is sanctioned.
In RP no. 2101 of 2008 (Appeal no. 188 of 2005/(PB)/RBT/846 of 2008) – PUDA vs. Sahib Chand and Anr., in which Shri Sahib Chand had purchased a residential plot no. 9 of 350 sq. yds. from PUDA for Rs.15,20,000/. The facts of this case are also almost identical to the case pertaining to PUDA vs Gulshan Rai and the District Forum had passed the following order on 21.12.2004:
“ Complainant is entitled for compensation not developing area upto even filing of the written statement and he suffered loss due to escalation of the price and he has right to refund back of Rs.80,000/- and also compensation of Rs.20,000/- per year from the date of final payment i.e, on 02.08.2001 upto the period when actual possession is to be delivered to the complainant and amenities are to be provided by the opposite party. Opposite party is also directed to give the possession and provide amenities as soon as possible. Complainant is also awarded Rs.2000/- as cost of litigation”.
The State Commission in Appeal no. 188 of 2005 upheld the order of the District Forum , but instead of compensation of Rs.20,000/- per year awarded by the District Forum, awarded interest @ 18% per annum from the date of respective deposits till amenities are provided and site plan is sanctioned.
In RP no. 2102 of 2008 (Appeal no. 189 of 2005/(PB)/RBT/845 of 2008) – PUDA vs. Rajiv Makkar and Anr., in which Shri Rajiv Makkar had purchased a residential plot no. 10 of 400 sq. yds. from PUDA for Rs.15,00,000/-. The facts of this case are also almost identical to the case pertaining to PUDA vs. Gulshan Rai and the District Forum had passed the following order on 21.12.2004:
“ Complainant is entitled for compensation not developing area upto even filing of the written statement and he suffered loss due to escalation of the price and he has right to refund back of Rs.80,000/- and also compensation of Rs.20,000/- per year from the date of final payment i.e., on 02.08.2001 upto the period when actual possession is to be delivered to the complainant and amenities are to be provided by the opposite party. Opposite party is also directed to give the possession and provide amenities as soon as possible. Complainant is also awarded Rs.2000/- as cost of litigation”.
The State Commission in Appeal no. 189 of 2005 upheld the order of the District Forum, but instead of compensation of Rs.20,000/- per year awarded by the District Forum, awarded interest @ 18% per annum from the date of respective deposits till amenities are provided and site plan is sanctioned.
In view of the above facts, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, two Forabelow have given detailed and reasoned orders which do not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petitions are hereby, dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only) in each case.
Petitioner is directed to deposit the cost of Rs.10,000/- in each case, by way of demand draft in the name of “Consumer Legal
Aid Account” of this Commission, within eight weeks. In case, petitioner fails to deposit the said cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.
List on 26.7.2013 for compliance. …………………..………J (V.B. GUPTA)
(PRESIDING MEMBER)
…………………...………. (REKHA GUPTA)
(MEMBER)
Sonia/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2470 of 2008 (From the order dated 1.2.2008 in Appeal No.2934/1998 of U.P. State Consumer Disputes Redressal Commission, Lucknow)
Km. Ponnamma K.K., Daughter of Sri Krishnan C/o Senor Matron K.G.M.U. Hospital Chowk, Lucknow
… Petitioner/Complainant
Versus Lucknow Development Authority Pradhikaran Bhawan, Vipin Khand, Gomtinagar, Lucknow – 226010
… Respondent/ Opp. Party
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner : Mr. Om Prakash Jalan, Advocate
For the Respondent : Mr. Shakil Ahmad Syed, Advocate
Mr. Shuaib-Uddin, Advocate
PRONOUNCED ON 20 th May , 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/complainant against the impugned order dated 1.2.2008 passed by the U.P. State Consumer
DisputesRedressal Commission, Lucknow (in short, ‘the State Commission’) in Appeal
No. 2934 of 1998 – LDA Vs. Km. Ponnamma K.K. by which, while disposing appeal, order of District Forum allowing complaint was modified.
2. Brief facts of the case are that complainant/petitioner was allotted Plot No. 3/157 in a draw dated 31.12.1984 at the estimated cost of Rs.46,501/- by
OP/Respondent. Complainant earlier deposited Rs.12,100/- and deposited Rs.34,401/- on 28.5.1985 instead of 31.3.1985. She was asked to deposit money on different dates in different heads and she deposited some amount according to Rules of
L.D.A. Complainant was entitled to get 4% p.a. interest on money deposited, but as interest has not been paid to her and OP was delaying registration, complainant filed complaint with a prayer that OP may be directed to get sale deed registered. OP filed written statement and submitted that complainant is required to deposit interest as per rules and he has not supplied stamp papers; hence, registration could not be done and prayed for dismissal of complaint. Learned District forum after hearing both the parties allowed complaint and directed OP to return excess interest received from complainant along with 18% p.a. interest and further directed OP to inform complainant, as to the value of the stamp papers to be deposited and other formalities required to be completed for registration of sale deed. Appeal filed by the OP/respondent was partly allowed by learned State Commission vide impugned order and order of District forum was modified against which, this revision petition has been filed.
3. Heard learned Counsel for the parties and perused record.
4. Learned State Commission has observed in impugned order that complainant has not deposited freehold charges, sewer charges, etc. as per rules and has not given stamp papers and in such circumstances, it would not be possible to handover possession of the plot after carrying out registration.
5. During course of arguments, both the parties apprised that sale deed of plot measuring 348 sq. mt. has been executed by respondent in favour of petitioner on
10.10.2002, whereas learned State Commission has observed in its order dated
1.2.2008 that complainant has neither deposited money nor supplied stamp papers for registration, which is apparently against the record. Perusal of impugned order does not reveal what modification has been made in the order passed by District forum. 6. During course of arguments, it was observed that allotment letter does not contain area of the plot and now dispute between the parties is in respect of excess area of the plot being the corner plot. Learned Counsel for the petitioner submitted that petitioner does not want to have excess area of land and wants to take possession of the land comprising sale deed, whereas learned Counsel for the respondent submitted that petitioner is bound to make payment of excess area as per demand notice. These facts are not part of complaint or written statement; hence, cannot be decided in this revision petition.
7. As impugned order is contrary to facts admitted by the parties regarding payment towards freehold charges, sewer charges and supply of stamp paper and registration of the sale deed, we deem it proper to set aside the impugned order and remand to the State Commission for deciding it afresh after considering admitted facts.
8. Consequently, revision petition filed by the petitioner against respondent is allowed and impugned order dated 1.2.2008 passed by learned State Commission in Appeal No. 2934/1998 - LDA Vs. Km. Ponnamma K.K. is set aside and matter is remanded to the learned State Commission to decide it afresh preferably within 3 months after giving an opportunity of being heard to both the parties.
9. Parties are directed to appear before the learned State Commission, U.P. on
8th July, 2013. ..………………Sd/-…………… ( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-……………… ( DR. B.C. GUPTA )
MEMBER K NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2251 of 2011 (From the order dated 7.3.2011 in Appeal No.973/2005 of State Consumer Disputes Redressal Commission, Punjab, Chandigarh)
Punjab Urban Planning & Development Authority through the Estate Officer Opposite Tehsil Complex Jalandhar City
… Petitioner/Opp. Party
Versus Puneet Gupta S/o Sh. Rabinder Parshad Gupta, R/o 305-WE, Ali Mohalla, Jalandhar City.
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner : Mrs. Rachna Joshi Issar, Advocate
Ms. Ambreen Rasool, Advocate For the Respondent : Mr. Ravinder Gupta Power of Attorney of
Respondent
PRONOUNCED ON 20 th May , 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/OP against the impugned order dated 7.3.2011 passed by the State Consumer Disputes RedressalCommission,
Punjab, Chandigarh (in short, ‘the State Commission’) in Appeal No. 973 of
2005 – Puneet Gupta Vs. Punjab Urban Planning and Dev. Authority by which, while allowing appeal, order passed by District Forum was set aside.
2. Brief facts of the case are that OP/Petitioner invited applications for allotment of plot by way of draw. Complainant/respondent deposited Rs.27,750/- and in a draw, plot
No.155 measuring 300 sq. yds. in Urban Estate, Kapurthala was allotted to the complainant vide allotment letter dated 18.1.2001. Complainant deposited Rs.1,38,750/- being 25% price of the plot allotted. It was alleged that complainant wrote many letters to the OP for handing over physical possession, but physical possession was not delivered to him. It was further alleged that OP vide letter dated 23.10.2001 asked complainant to meet Shri Harjit Singh, J.E. to take physical possession on 7.11.2001, but as the aforesaid letter was received in the evening of 7.11.2001, the complainant could not meet Harjit Singh that date and afterwards complainant visited site on next three consecutive Wednesdays, but Harjit Singh was not available at site and physical possession of the plot and demarcation could not be given to him. Alleging deficiency on the part of OP, complainant filed complaint with a prayer to amend/revise the allotment letter dated 18.1.2001 and deliver physical possession with complete demarcation, etc. OP contested complaint and submitted that complainant has not made payments as per schedule and complainant did not come for taking possession within stipulated period. It was further pleaded that actual physical possession/demarcation of the plot can be given to the complainant only after submission of building plan for approval and complainant has so far not submitted plans for approval. Therefore, actual demarcation of the plot could not be given to the complainant and prayed for dismissal of the complaint. Learned District Forum after hearing both the parties allowed complaint to the limited extent and directed complainant to submit building plan within one month and OP was directed to give physical possession and demarcation of plot within one month from receipt of building plan from the complainant. Complainant was further directed to make payments of remaining balance price. Appeal filed by the complainant was allowed by learned State
Commission vide impugned order by which, while setting aside order of District Forum, petitioner was directed to deliver possession of the plot within one month on payment of balance price of plot without any interest or penalty and further directed to pay
Rs.10,000/- as special cost, Rs.20,000/- as compensation and Rs.5,000/- as litigation expenses against which, this revision petition has been filed.
3. Heard learned Counsel for the petitioner and authorised representative of the respondent.
4. Learned Counsel for the petitioner submitted that as per terms and conditions of allotment letter, symbolic possession was to be delivered only after approval of building plan and learned District Forum rightly directed complainant to submit building plan and directed petitioner to give physical possession along with demarcation within one month, but learned State Commission has committed error in directing petitioner to deliver possession of the plot after receiving balance price without interest or penalty; hence, revision petition be allowed and impugned order be set aside. On the other hand, authorised representative of respondent submitted that building plan can be submitted only after getting physical possession and demarcation of the allotted plot and order passed by learned State Commission is in accordance with law, which does not call for any interference; hence, revision petition be dismissed.
5. Perusal of record reveals that petitioner allotted plot No. 155 measuring 300 sq. yds. to respondent vide allotment letter dated 18.1.2001. Petitioner vide letter dated
23.10.2001 asked respondent to take physical possession of plot from Shri Harjit Singh,
J.E. on Wednesday. As per complaint, respondent could not take physical possession of plot from Shri Harjit Singh. As per allegation in the complaint, respondent went to the site on three consecutive Wednesdays, but Harjit Singh, J.E. was not available and it appears that vide possession certificate dated 9.4.2002, possession was given to the respondent by handing over possession certificate.
6. Admittedly, possession certificate reveals number of plot and dimension 36’ x 75’ measuring 300 sq. yds. This possession certificate does not contain sketch of allotted plot by which East, West, North, South sites length and width can be ascertained as well number of adjoining plots and location can be ascertained. Without these specifications, building plan cannot be prepared by an architect and in such circumstances, the arguments of learned Counsel for the petitioner is devoid of force that physical possession was to be delivered only after approval of building plan.
7. It is admitted case of the parties that petitioner has informed respondent vide its letter dated 23.10.2001 to take physical possession of plot meaning thereby physical possession was to be taken only on the site and not in the office of the petitioner. Possession certificate issued by petitioner also contains para second as under: “ The allotee/representative was requested to take possession on spot on ____but the allottee/representative did not come on that day to take possession. The date of possession may be considered with effect from___”.
This para has been crossed by petitioner, as respondent did not reach on the site on that day meaning thereby necessary possession was to be given by the petitioner to respondent only on the site after measurements as per clause 2 of allotment letter and not in the office. As per clause 11 of the allotment letter, respondent was required to take possession of plot within 60 days from the date of issue of allotment letter. It nowhere contains that symbolic possession was to be given in the office. As per clause
12 of the allotment letter, construction was to be completed by respondent within 3 years after getting the plans of the proposed building approved from the Estate
Officer. In such circumstances, learned State Commission has not committed any error in directing petitioner to deliver possession of the plot to the respondent.
8. Ld. State Commission further directed that possession is to be given on payment of the balance price of the plot in question without adding any interest or penalty. It is admitted case of the parties that respondent has paid only 25% price of the allotted plot and rest of the payment was to be made by the respondent as per clause 6 or 7 of the allotment letter. As respondent has not made payment, he is bound to make payment as per terms and conditions of allotment letter and Ld. State Commission has committed error in directing petitioner to receive balance price of the plot in question without any interest or penalty.
9. As far extension fee is concerned, extension fees will be payable only if construction is not completed within period of 3 years from the date of receiving actual physical possession.
10. Consequently, revision petition filed by the petitioner against respondent is partly allowed and impugned order dated 7.3.2011 passed by learned State Commission in
Appeal No. 973 of 2005 – Puneet Gupta Vs. Punjab Urban Planning and Dev. Authority is partly set aside and modified. Petitioner is directed to deliver possession of plot in question to the respondent within one month from the receipt of this order subject to payment of balance price of the plot along with interest and penalty as per terms and conditions of allotment. Rest of the order passed by learned State Commission is upheld. ..………………Sd/-…………… ( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-……………… ( DR. B.C. GUPTA )
MEMBER k NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1738 OF 2007
(From the order dated 25.04.2007 in Appeal Case No. 996/2000 of UT CHANDIGARH State Consumer Disputes Redressal Commission)
1. Haryana Urban Development Authority, through its Chief Administrator, Panchkula
2. The Estate Officer, Haryana Urban Development Authority, Sonepat ... Petitioner( s)
Versus
Anil Diwan s/o Puran Chand Diwan r/o 1073, Sector 19-B, Chandigarh
…. Respondent(s)
REVISION PETITION NO. 1739 OF 2007
(From the order dated 20.10.2006 in Appeal Case No. 833/2000 of UT CHANDIGARH State Consumer Disputes Redressal Commission)
1. Haryana Urban Development Authority, through its Chief Administrator, Panchkula
2. The Estate Officer, Haryana Urban Development Authority, Sonepat ... Petitioner(s)
Versus
Arun Goel s/o Prem Kumar r/o 2048, Sector 27-C, Chandigarh
…. Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For the Petitioner(s) Mr. Sanjay Kumar, Advocate
For the Respondent(s) Mr. J.S. Chhabra, Advocate
PRONOUNCED ON : 23 rd MAY 2013 O R D E R
PER DR. B.C. GUPTA, MEMBER
These two revision petitions as described in the headnote have been filed under section 21(b) of the Consumer Protection Act, 1986 and are being disposed of through this single order and a copy of the same may be placed on each file.
2. The State Consumer Disputes Redressal Commission, Union Territory Chandigarh
(hereinafter referred to as ‘State Commission’) has passed two orders dated 20.10.2006 and 25.04.2007 in the instant case. The order dated 20.10.2006 has been passed in three Appeal cases, i.e., Appeal Case No. 834 of 2000 (Haryana)/RBT No. 367/2006
“Arun Goel versus Haryana Urban Development Authority (HUDA) & Anr.”, Appeal Case
No. 833 of 2000 (Haryana)/RBT No. 368/2006 “Anil Dewan versus Haryana Urban
Development Authority (HUDA) & Anr.” and Appeal Case No. 997 of 2000
(Haryana)/RBT No. 369/2006 “Haryana Urban Development Authority (HUDA)
& Anr. versus Arun Goel”. The order dated 25.04.2007 has been passed by the State
Commission in Appeal Case No. 996 of 2000 (Haryana)/RBT No. 173/2007 “Haryana
Urban Development Authority & Anr. versus Anil Dewan.”
3. Both these orders of the State Commission have been passed against single order dated 08.05.2000 passed by the District Forum,Panchkula vide which complaints filed by the complainants Anil Dewan and Arun Goel were allowed. Revision Petition No.
1738/2007, “HUDA & Anr. versus Anil Dewan” has been filed against both the orders dated 20.10.2006 and 25.04.2007 of the State Commission whereas Revision Petition
No. 1739/2007, “HUDA & Anr. versus Arun Goel” has been filed against the order dated
20.10.2006 of the State Commission.
4. The brief facts of the case are that both the complainants,
Anil Dewan and Arun Goel were allotted plots by HUDA in Urban Estate Sector
23, Sonepat plot no. 2316 and 1593 on 13.08.1991 and 07.08.1991 respectively. The complainants deposited 10% of the value of the plot along with the application and another 15% of the value on allotment, making a total of 25% as tentative cost of the plots, in question. This was strictly in accordance with the scheme formulated by HUDA for allotment of these plots. As per the Scheme, the balance 75% of the value of the plots was to be paid either in lump-sum without interest within 60 days from the date of issue of allotment letter or in six half-yearly annual instalments. The first instalment was to fall due after the expiry of one year from the date of issue of the allotment letter. Each instalment was recoverable together with interest on the balance price at the rate of 10% of the remaining amount. However, the interest was to accrue from the date of offer of possession of plots. It is also stipulated that interest @18% will be charged on the delayed payment. The possession was to be offered on completion of development works in the area. It is the case of the HUDA that the complainants did not deposit even a single instalment after the initial deposit of 25% and hence notices were sent to them under section 17 of the HUDA Act many times, but the respondents neither deposited instalments, nor appeared in person despite service of notices. Consequently, the allotted plots were resumed by Estate Officer, Sonepat,
HUDA by his order dated 16.08.95 in the case of Anil Dewan & order dated 07.08.95 in the case ofArun Goel. According to HUDA, the complainants did not file any appeal against the said orders of resumption before the competent appellate authority of the
HUDA. According to HUDA, the complainants lost the status of ‘consumer’ by not filing the appeal before the higher authorities. However, the complainants on the other hand, have taken the plea that they waited for a long period, hoping to get the possession of the allotted plots and visited the office of OP many times, but they were told that the development work in the area would take long time and possession could not be offered in near future. The complainants wrote letters also to the office of HUDA regarding the delivery of possession but without any result. The area had not been developed on the date of making complaint dated 15.12.98, although more than seven years had passed from the date of the allotment of the plots. HUDA had, therefore, indulged in unfair trade practice, vis-à-vis the complainants. The complainants filed consumer complaints before the District Forum and the said forum vide order dated 8.5.2000 in both the cases ordered that the physical possession of the plots, in question, should be handed over to the complainants immediately and they should be further paid a sum of
Rs.5,000/- as compensation for mental agony and harassment and Rs.1,000/- should be paid in each case for cost of litigation. Against this order, appeals were filed before the State Commission and as stated above, the State Commission vide order dated
25.04.2007 in the case of “Anil Dewan” dismissed the appeal of HUDA. Vide order dated 20.10.2006 appeal filed by HUDA against ‘Arun Goel’ and two appeals filed by the complainants against HUDA were decided. As per this order, the award of compensation of Rs.5,000/- by the District Forum to the complainants for mental agony / harassment was increased to Rs.40,000/-. The appeal filed by HUDA was ordered to be dismissed.
5. Heard the learned counsel for the parties and examined the records. In both these cases, written arguments have also been filed on behalf of the HUDA and they are placed on file.
6. It was argued by the learned counsel for the petitioner that the Estate Officer,
HUDA vide his order dated 16.08.1995 in Anil Dewan case and order dated 07.08.2005 in Arun Goel case, has made it very clear that show-cause notices were sent to these two complainants under section 17(1), 17(2), 17 (3) & 17(4) at different intervals through registered letters, but they neither deposited the amount, in question, nor appeared before the Estate Officer to explain the reasons for not depositing the amount. The
Estate Officer, therefore, held that there was a breach of terms and conditions of the allotment and there was a wilful default for non-payment of the requisite amount. The
Estate Officer, exercising power under section 17(4) of the HUDA Act, 1977 ordered the resumption of the aforesaid plots and also forfeiture of the amount of Rs.57,525/- in both the cases. In case, the complainants were aggrieved against this order, it was open for them to challenge the same before the appellate authority, but they had not done so, meaning thereby that they had accepted this order as final, and also lost the status of ‘consumer’ after the said cancellation. The complaint, in question, was filed on
15.12.98 and hence it was a time-barred complaint as per section 24(A) of the
Consumer Protection Act, 1986.
7. The learned counsel, however, admitted that this plea had not been taken by the petitioners in the grounds of revision petition or in the written arguments filed in the cases. In the memo of appeal filed before the State Commission also, this point had not been touched upon.
8. On the other hand, learned counsel for the respondents vehemently argued that
HUDA had given them non-existence plots and they had not developed the said sites, even after a long lapse of time. Because of their failure to meet the commitment of development of the site, they had no right to resume the plots in question. Learned counsel stated that before passing the resumption order in question, neither notice had been issued, nor the order of the Estate Officer was communicated to him. Regarding the complaint being time-barred, learned counsel argued that since the possession had not been offered/delivered, there was a continuing cause of action available to the complainants and hence the complaints were not time barred. Learned counsel reiterated that since the development had not taken place on the site, HUDA had no right to resume these plots.
9. A careful examination of the record of the case available on file and the oral arguments before us reveals that the complainant demanded in his complaint dated
15.12.98 that the deposited amount of Rs.57,525/- with HUDA should be refunded along with interest @18% p.a. from the date of deposit till realisation, OR in the alternative, HUDA should be directed to deliver physical possession of developed plot immediately and a compensation of Rs.25,000/- should be given by HUDA for unfair trade practice and Rs.3 lakh would be given as escalation commission.
10. The orders for resumption of plots were passed by the Estate Officer,
HUDA, Sonepat on 16.08.95 and 07.08.95. The primary issue involved in these cases revolves around the fact, whether the resumption order is legally correct or not. It has been claimed by HUDA that notices were sent under section 17(1), 17(2), 17 (3) & 17(4) of the HUDA Act through registered post to the complainant, before passing the resumption order. On this issue learned State Commission has observed as follows:- “ The case of Haryana Urban Development Authority is that plots were resumed vide order dated 07.08.95 as the complainants did not pay balance amount of 75% from 7.5.93 to 7.8.95. It was further stated that notices were served upon them under the HUDA Act on 7.5.93, 3.7.93, 27.8.93, 27.4.94, 10.1.95, 22.5.95 and 7.8.95. None of the notices mentioned in the written reply had been placed on the file of District Consumer Forum. However, during arguments photocopies of some of notices had been placed on file. One does not know whether the notices were sent under registered cover or otherwise because the postal receipts have not been placed on file. Photocopies of the despatch register as well as of the parcel branch had been placed on file to show that the said notices were sent but it is not known whether the same had been received by the complainants or not.”
11. It is clear from a plain reading of the above observation of the State Commission that the issue of sending of proper notices and their service upon the complainants has not been gone into in depth by the State Commission or the District Forum. It was their duty to call for the record of the case and ascertain whether proper procedure was adopted before passing the order of resumption.
12. In accordance with the terms and conditions of allotment letter, the allottee is supposed to make payment to the OP as per the schedule laid down wherein it has been clearly stated that interest will not be charged till the possession is offered to the allottee. In so far as delay in developing the site and late delivery of possession is concerned, an allottee has every right to agitate upon this issue and demand adequate compensation from the developer and that can be decided by the competent authority based on the facts and circumstances of the case. It is, however, not open for the allottee to withhold, on its own, the payment of instalments, which was supposed to be paid without interest to the developer.
13. It may be mentioned here that the Hon’ble Apex Court in their judgement in
“Municipal Corporation of Chandigarh versus ShantikunjInvestment (P) Ltd.” [2006 (iv)
SCC 109], stated that providing of amenities by a developer cannot be made a condition precedent for payment of premium, ground rent etc. The omission on the part of the administration to provide the statutory amenities would not enable the allotteesto get rid of their obligation to pay the instalments. In the present case, therefore, even if HUDA has not been able to develop the land in question within a reasonable time, the allottees cannot refuse to make payment of the instalments as per the payment schedule, more so, when the said instalments do not carry any interest portion as it has been made clear that liability to pay interest shall start from the date of offer of possession only. This, however, does not mean that the developer is at liberty to take abnormally long time in developing the area in question. It is open to the allottees to seek redressal of their grievance by asking for payment of interest etc. on the deposited amount by the HUDA and the appropriate authority can take decision to that effect, looking at the facts and circumstances of the case.
14. In the light of above discussion, we are inclined to accept these revision petitions and direct the State Commission to call for the record of the case and evidence on the subject to find out whether proper procedure was followed by HUDA before passing the order of resumption. It is also clear that the allottees did not file any appeal before the statutory authorities against the said order of resumption which they should have done. The State Commission after examining the legal aspects of the resumption order may then go on to the question of late development of the area and determine whether the allottees are entitled for any relief on that account or not.
15. With the above observations, these petitions are accepted, the orders passed by the State Commission are set aside and cases are remanded back to the State Commission for giving an opportunity to the parties to lead their evidence afresh and then take decision as per law. No order is being passed as to costs. ..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBER RS/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1105 OF 2012 (Against the order dated 05.12.2011 in Appeal No.2025/2004 of the State Commission Haryana, Panchkula)
Madhu Sharma W/o Shri Parveen Sharma R/o 402/4, Guru Nanak Pura (East) Near Hari Mandir, Jalandhar – 144009
...... Petitioner
Versus
Haryana Urban Development Authority Through its Chairman/Estate Officer, Faridabad (Haryana) …... Respondent
BEFORE:
HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON'BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mr. Praveen Sharma, Attorney holder
Pronounced on : 24 th May, 2013
ORDER
REKHA GUPTA
Revision Petition No.1105 of 2012 has been filed against the order dated 5.12.2011, passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (short, “State Commission”) in First Appeal No.2025 of 2004.
The brief facts as given in the complaint by petitioner/complainant are that the respondent/opposite party as per the auction of 29.1.1991, allotted her by sale a commercial Kiosk bearing No.45 in Sector 15-A-II at Faridabad against the price of Rs.99,300/- measuring 6’-9’’ x 12’-1½”. The petitioner as per terms and conditions on several occasions, deposited the sum of Rs.1,33,500/- against the price of Rs.99,300/-.
As per letter dated 17.3.1997, and the Account Statement dated 13.3.1997, the respondent had demanded a payment of Rs.65,926/- from the petitioner, whereas this demand of Rs.65,926/- of the respondent is illegal, arbitrary and against the terms and conditions of the said allotment letter. The respondent illegally and arbitrarily charged interest against the terms and conditions of the allotment letter. The respondent in spite of the payment of more than 25% of the price has failed to deliver possession of the said Kiosk to the petitioner against the terms and conditions of allotment letter.
Respondent - HUDA has taken the following preliminary objections in its written statement:-
The Kiosk in question was purchased in auction and as per terms and conditions, the present case does not come within the ambit of the provisions of the Consumer Protection Act, 1986. Similar observations were made in National Disputes Redressal Commission in F.A.O. No.80 of 1992 titled “Ramesh Chand Vs. HUDA”. As such, the present petition/complaint is not maintainable before the District Forum.
Since the petitioner has not availed of the remedy of filing an appeal before the Administrator, HUDA, Faridabad exercising the power of Chief Administration, HUDA and as such, the present petition is liable to be dismissed.
The jurisdiction of the District Forum is barred under Section 50 of the HUDA Act to entertain and try the present complaint.
The present complaint relates to immoveable property and as such, does not come within the definition of Goods under the “Sales of Goods Act” and as such, the complaint desires dismissal on this score alone.
The site in question being immovable property and a commercial site and as such, the present complaint cannot be launched under the provisions of the Consumer Protection Act, 1986.
The present complaint is not maintainable as the site in question was purchased in auction.
The petition deserves to be dismissed as the complainant has contravened the terms and conditions of allotment by not depositing the amount due neither within the stipulated period nor till today.
Further, that the petitioner has failed to adhere to the terms and conditions of allotment and has not deposited the amount due from and payable by her in respect of the Kiosk in question and an amount of Rs.65,926/- was due from the petitioner and she was duly informed by the answering respondent vide Memo No.568 dated 17.3.1997 but she failed to do so. Even, the copy of the statement of account was sent to her. She was again requested to deposit the amount due vide office Memo No.1068 dated 26.5.1997. She was also intimated that in case of non-deposit of the amount due, resumption proceedings will be started. It was admitted they had raised a demand of Rs.65,926/-.
Interest has been charged as per the terms and conditions of allotment. As a matter of fact, as per terms and conditions of allotment, the amount of remaining 75%, i.e., after depositing 25% price of the Kiosk, was either payable in lump sum within 60 days from the date of allotment or in installments alongwith interest at the rate of 10% per annum. It was also mentioned on the last page of the allotment letter that in case of delayed payment, 10% per annum interest was chargeable.
It was clearly mentioned in the letter of allotment that after the deposit of 25% of the price of the Kiosk, as per clause 5 of the letter of allotment, the petitioner was at liberty to take possession of the Kiosk in question.
District Consumer Disputes Redressal Forum, Faridabad (for short, “District Forum”) vide their order dated 29.6.2009 came to the following conclusions;
“ From the perusal of the pleadings of the parties, evidence adduced by both the parties and after hearing the arguments of the parties, the Forum is of the opinion that the dispute is in between the parties is regarding statement of account. The second issue is regarding handing over and taking over the possession of the Kiosk in question. The complainant has claimed that she has deposited the draft of Rs.25,000/- with the respondent, which has not been reflected in her account. The complainant has also claimed that the account has not been prepared in accordance with the terms and conditions of the letter of allotment. The Forum in these circumstances, is of the opinion that the respondent has failed to give complete details of account by making a bifurcation of the same. This is a big negligence on the part of the respondent. The Forum has also made up an opinion that it was fault on the part of the complainant that she has not applied for the possession of the Kiosk in question after depositing of the amount to the extent of 25% of the total sale price. To satisfy the grouse of the complainant following order is passed :-
The respondent is ordered to supply the complete statement of account of the complainant regarding this Kiosk in question to the complainant, after considering that the complainant has not applied for possession of the Kiosk after 25% deposit of the sale price. However, there is no order as to costs in the peculiar circumstances of the case. It is also ordered that in case there remains some dispute regarding statement of account of the parties, then either party can file Execution petition under section 27 of Consumer Protection Act for the compliance of this order of the Forum.”
Not satisfied with the order of District Forum, the petitioner filed an appeal before the State Commission. The State Commission vide their order dated 5.12.2011, concluded that ;
“ Undisputedly, the complainants had purchased the booth in question in an ‘Open Auction’ held by the opposite party being the highest bidder on as and where is basis and no assurance was given by the opposite party as service provider. Thus, the present case is covered by Amarjeet Singh’s case (supra), wherein it has been made clear that any grievance of the purchaser/lessee, who purchases the site in an open auction, cannot be termed the “Consumer Dispute” and the Consumer Fora have no jurisdiction to entertain and decide any complaint.”
Hence, this revision petition.
The main ground of the revision petition are as follows ;
The order of the State Commission holding that the case of the petitioner does not fall within the provisions of Consumer Protection Act is wrong. The State Commission has wrongly held that the Consumer Forum have no jurisdiction to entertain and decide the complaint. State Commission wrongly held that the Booth purchased by the petitioner in open auction facing a Booth (Kiosk) and as such, the dispute between the parties would not fall within the purview of consumer dispute. The State Commission and the District Forum under the C.P. Act did not appreciate the fact that the petitioner for the purpose of her own use for herself employment purchased the Booth (Kiosk) in Sector 15 A-II, Faridabad.
The respondent instead of delivering the possession of the Booth refunded the amount of Rs.1,09,687/-. Since, the petitioner is a poor lady and as such, the amount was accepted by her under protest without prejudice to her right to take delivery of the possession.
We have heard Authorized Representative of the petitioner and have also gone through the record carefully. It is also an indisputed fact admitted by the petitioner in the revision petition that the respondent had refunded the amount of Rs.1,09,687/- and the petitioner has accepted the same. Once she has accepted the money, she ceases to be a “Consumer” even if for argument sake she was earlier. The State Commission had in a very well-reasoned order come to the conclusion that the petitioner had purchased the Kiosk in question in an open auction held by the respondent. Thus, the present case was covered by “UT Chandigarh Administration & Anr. Vs. Amarjeet Singh & Ors. (2009) 4 SCC 660”, wherein, it has been made clear that any grievance of the purchaser/lessee, who purchases the site in an open auction cannot be termed the “Consumer Dispute” and the Consumer Fora have no jurisdiction to entertain and decide any complaint. Hence, the petitioner’s appeal to the extent of seeking prayer for compensation of Rs.3 lakhs was dismissed without touching the relief already allowed by the District Forum.
In the revision petition, petitioner has for the first time pleaded that said Kiosk was purchased for the purpose of her own use for self-employment. Such a plea has not been made in her complaint before the District Forum and as such, cannot be entertained now.
In the above circumstances, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. Since, State Commission has given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petition is hereby, dismissed with cost of Rs.5,000/- (Rupees Five Thousand only).
Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10A of
Consumer Protection Rules, 1987, within four weeks from today. In case, petitioner fails to deposit the said cost within the prescribed period, then she shall also be liable to pay interest @ 9% p.a., till realization.
27. List on 23.8.2013 for compliance. …………………..………..J
(V.B. GUPTA)
PRESIDING MEMBER
…………………..………..
(REKHA GUPTA)
MEMBER
Sonia/ NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 173 OF 2008 (Against the order dated 07.03.2008 in Complaint Case No. 100/2000 (Hry.)/RBT/18/07 of the State Consumer Disputes Redressal Commission, UT Chandigarh)
Mohit Bindal S/o Shri Harish Bindal R/o H.No. 946/545, Kath Mandi Hisar … Appellant
Versus
1. Haryana Urban Development Authority Through its Chief Administrator Panchkula, Haryana
2. Administrator, HUDA Gurgaon
3. Estate Officer, HUDA Gurgaon … Respondents
BEFORE: HON'BLE MR. JUSTICE ASHOK BHAN, PRESIDENT
HON'BLE MRS. VINEETA RAI, MEMBER For the Appellant : Mr. Vivek Srivastava, Adv. For the Respondents : Mr. Suhaas Joshi, Advocate
Pronounced 28 th May, 2013
ORDER
PER VINEETA RAI, MEMBER
1. This appeal has been filed by Mohit Bindal, Original Complainant before the State
Consumer Disputes Redressal Commission, U.T. Chandigarh (hereinafter referred to as the State Commission) and Appellant herein challenging the order of that Commission which had dismissed his complaint of deficiency in service against Haryana Urban
Development Authority (HUDA), Opposite Party before the State Commission and
Respondent herein.
2. FACTS :
In the complaint filed by the Appellant (through his father since he was a minor), it was stated that he was initially allotted plot no. 279 in Sector-55, measuring 450 square meters at Gurgaon by the Respondent (HUDA) and subsequently this allotment was changed and he was allotted another plot i.e. plot no. 272 in the same sector vide allotment memo no.11154 dated 17.08.1999, of which he is now the owner. Appellant-
Complainant had paid the entire amount of Rs.4,81,140/- towards the cost of the aforesaid plot and Rs.9549/- as interest on delayed payment. Later the price of the plot was enhanced by Rs.3,45,993/- vide letter dated 24.09.1997 and Appellant-
Complainant deposited a sum of Rs.3,11,393.70 as principal amount and Rs.88,322.40 as interest, thus totaling Rs.3,99,716.10. In this way, he paid total sum of Rs.8,90,403/- i.e. Rs.7,92,533.70 as principal amount and a sum of Rs.97,869.40 as interest. Since
Respondent had received the entire amount of payment from the Appellant-
Complainant, including interest, and had failed to hand over the possession of the plot for over 8 years because of which Appellant-Complainant could not construct his house and Respondent had probably used this amount for their commercial purpose,
Appellant-Complainant filed a complaint before the State Commission on grounds of deficiency in service and requested that the Respondent be directed to (i) immediately deliver the possession of the plot no. 272, Sector-55 at Gurgaon; (ii) pay interest @
18% per annum from the date of deposit of the amount including interest till the filing of this complaint @ Rs.6,02,087.81 and thereafter to pay interest @ 24% till the date of possession of the plot; and (iii) waive interest of Rs.97,869.40 already paid and adjust the same towards the enhanced cost of the land. Damages on account of harassment and litigation costs were also sought.
3. Respondent on being served filed a written reply contesting the complaint and denied the allegation that the plot was not fully developed. In fact, Appellant-
Complainant had taken possession of the plot on 10.10.2001 vide letter dated
3288. The enhanced amount was sought by the Respondent from Appellant-
Complainant because a case was filed by the land owners against the Respondent seeking more compensation before the Hon’ble Supreme Court, which is presently pending. It was also stated that the Appellant-Complainant was not entitled to approach the State Commission directly and he should have availed of the arbitration proceedings as provided under the HUDA Act, 1977.
4. The State Commission after hearing the parties and on the basis of evidence produced before it partly allowed the complaint by observing as follows: “ 12. A perusal of detailed statement of payment annexure-3 and annexure-5 shows that the complainant had paid the original principal amount as well as enhanced amount upto 9.5.2000 i.e. before the delivery of the possession on 10.10.2001. The complainant had also paid Rs.97869.40 as interest. This amount was not recoverable from the complainant in view of clause-6 of the terms and conditions of the allotment letter as possession had not been handed over for a period of more than 9 years. It is true that out of the enhanced amount of Rs.345993/- vide letter dated 24.9.97, complainant had paid Rs.311393.70 and in this way Rs.34599.30 were paid as less but he had paid Rs.97869.40 as interest in excess which he was not liable to pay. Therefore, complainant is entitled to refund of the amount of Rs.63270.40 after deducting a sum of Rs.34599/-.”
The State Commission, therefore, disposed of the complaint in the following manner : “ Hence, complaint is partly accepted with costs of Rs.10,000/- and respondents are directed to refund the amount of Rs.63,270.40 alongwith interest @ 12% p.a. from the date of deposit till payment. However, if the SLP filed by land owners is dismissed then respondents would be bound to refund excess amount charged to the complainant on account of enhancement of compensation.”
5. Being aggrieved by the order of the State Commission, which had declined
Appellant-Complainant’s request to grant 18% interest on the entire amount of
Rs.8,90,403/- from the date of deposit till the filing of the complaint and thereafter 24% from the date of the complaint till delivery of possession of the plot as also compensation for the mental agony and harassment, the present first appeal has been filed.
6. Learned Counsel for both parties made oral submissions.
7. Learned Counsel for the Appellant-Complainant contended that the State
Commission erred in not granting interest @ 18% and also compensation whereas admittedly there was inordinate delay in handing over possession of the plot even though the Appellant-Complainant had paid the entire amount and interest, including on the enhanced amount. The State Commission ought to have taken note of the fact that no reasons were given for the delay in handing over possession of the plot by the
Respondent except for its bald statement that the delay occurred due to development of the land. Under the circumstances, the State Commission should have granted both interest and compensation. In support Counsel for the Appellant-Complainant cited a judgment of the Hon’ble Supreme Court in Bangalore Development Authority Vs.
Syndicate Bank [(2007) 6 SCC 741], wherein the Hon’ble Apex Court had ruled as follows : “ (d) Though the relationship between Development Authority and an applicant for allotment is that of a seller and buyer, and therefore governed by law of contracts (which does not recognize mental agony and suffering as a head of damages for breach), compensation can be awarded to the consumer under the head of mental agony and suffering, by applying the principle of Administrative Law, where the seller being a statutory authority acts negligently, arbitrarily or capriciously.”
Further, in HUDA Vs. Darsh Kumar [(2005) 9 SCC 449] the Hon’ble Supreme
Court had ruled as follows : “ In this case, considering the very long period during which no possession was given, on an ad hoc basis, we direct that for mental agony/harassment and for increase in costs of construction, compensation at the rate of 12% from the date of deposit till date of possession be awarded.”
In the instant case, both the above rulings are very much applicable since there was inordinate and unjustified delay in handing over possession of the plot which resulted in significant increase in the cost of construction, and also a case for compensation by applying the principle of administrative law as ruled by the Hon’bleSupreme Court in Bangalore Development Authority (supra) since the statutory authority here i.e. HUDA had acted negligently, arbitrarily and capriciously in delaying the handing over of possession of the plot despite having received the entire payment for the same.
8. Counsel for the Respondent on the other hand pointed out that there was no breach of any provisions of the agreement or malafide on the part of the Respondent because no time limit was stipulated within which the possession of the allotted plot had to be handed over. While it is a fact that the allotment letter was issued in 1994 and possession of land was handed over in 2001, this delay occurred because of the time taken in the development of the area. Further, Appellant-Complainant did not seek to rescind the contract during this period and also accepted the offer made to take over the possession, after 8 years. Under these circumstances, Appellant-Complainant cannot now claim both interest and compensation for the amount paid to the
Respondent. Counsel for the Respondent also cited the judgment inBangalore
Development Authority (supra), wherein the Hon’ble Supreme Court had held that where the delay in delivering possession of the allotted plot is for justifiable reasons, the allottee will not be entitled to interest. In the instant case, the delay was for justifiable reasons i.e. because of the time taken in the development of the area and, therefore, no interest or compensation was warranted. 9. We have heard learned counsel for both parties and have carefully gone through the evidence on record. The undisputed facts are that the Appellant-Complainant was allotted a plot for which he made a payment of Rs.4,81,140/- in December,
1994. Following the change of allotment of his plot and on Respondent’s demand for an enhanced amount, Appellant-Complainant paid the additional amount of Rs.3,45,993/- in the year 1997. These two amounts alongwith interest comes to Rs.8,90,403/- and despite having taken this entire amount, admittedly Respondent did not hand over the plot till October, 2001. Even though no time per se may have been stipulated for handing over the possession of the plot by the Respondent, there is no doubt that a delay of over 8 years in handing over the same after taking the entire money from
Appellant-Complainant alongwith interest is totally unreasonable and unjustified. We had specifically asked Counsel for the Respondent if there were any genuine and insurmountable reasons beyond their control for the delay in development of the area e.g. pending litigation etc., to which Counsel for the Respondent confirmed that the delay was only because of the time taken in development in the area and no other reason. This, in our view, is not justified or reasonable explanation for the inordinate delay in handing over possession of the plot to the Appellant-Complainant. It is expected that all development agencies, particularly those which are a part of the
Government, would make allotments after developing the area so that possession can be handed over to an allottee within a reasonable period which is usually within 2 years or at the most 3 years. Under the circumstances, we are unable to accept the
Respondent’s explanation regarding delay of over 8 years in handing over possession of the plot to Appellant-Complainant and on the other hand directing him to pay not only the cost of the plot, including the enhanced cost, but also interest on the same. Respondent has cited a judgment of the Hon’ble Supreme Court in Bangalore
Development Authority (supra) in support of its case, wherein the Hon’ble Apex Court had ruled that an allottee will not be entitled to any interest or compensation if there are justifiable reasons for the inordinate delay in handing over possession of the plot. In the instant case, as stated above, there was no justifiable reason for the inordinate delay in handing over possession of the plot and, therefore, the above ruling of the Hon’ble Apex Court is not applicable in this case and some interest is justified in the instant case. We are, however, of the view that interest @ 18% per annum requested for by Appellant-
Complainant is too high and interest @ 9% per annum would be fair and reasonable. Appellant-Complainant is, therefore, entitled to interest @ 9% per annum on the amount of Rs.4,81,140/- paid by him in 1994 upto 10th of October, 2001 when he took over possession of the plot. Regarding the compensation sought by the Appellant-
Complainant, since the plot has been given to him at the old rates and interest has also been awarded for late delivery of the plot, no separate compensation as requested is warranted.
10. To sum up, the present first appeal is partly allowed and the order of the State
Commission is modified to the extent that Respondent is directed to pay interest @ 9% per annum on the sum of Rs.4,81,140/- deposited by the Appellant-Complainant in respect of the plot allotted to him on 1st of December, 1994 till 10th of October, 2001 when Appellant-Complainant was handed over the possession of the plot by the
Respondent. Rest of the order of the State Commission is upheld pertaining to the refund of Rs.63270/- with interest @ 12% per annum from the date of deposit till payment as also litigation costs of Rs.10,000. Further, if the SLP filed by the land owners is dismissed by the Hon’ble Supreme Court, then the Respondent would be bound to refund the excess amount charged to the Appellant-Complainant on account of enhancement of compensation.
11. The present first appeal stands disposed of on the above terms.
Sd/- (ASHOK BHAN, J.) PRESIDENT
Sd/- (VINEETA RAI) MEMBER Mukesh NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3791 OF 2012 (From the order dated 10.07.2012 in First Appeal No. 196 of 2011 of the State Consumer Disputes Redressal Commission, Delhi)
Delhi Development Authority Through its Vice Chairman Vikas Sadan, I.N.A. Market, New Delhi-110023 … Petitioner
Versus Shri Surinder Singh, S/o Late Shri Prem Singh, R/o WZ-14/2, Gali No.17, Sant garh, Tilak Nagar, New Delhi
… Respondent
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner : Ms. Arti Bansal, Advocate
Mr. Vishal Tyagi, Advocate
For the Respondent : Mr. M.S. Bakshi, Advocate
Pronounced on…… May, 2013 ORDER
PER DR. S.M. KANTIKAR
1. This Revision Petition challenges the order passed by State Consumer Dispute Redressal Commission, Delhi (in short “State Commission”) in an appeal FA No. 196 of 2011 on 10/07/2012 dismissed the appeal on the ground of deficiency in service by the petitioner.
2. BRIEF FACTS in this case:
The respondent/complainant registered DDA –LIG flat under higher purchase
scheme, the New Pattern Registration Scheme NPRS -1979 floated by DDA.
That on 31.7.2002 draw held and the turn of the priority number, the complainant
was allotted a LIG Flat No. 157, Sector 17, Pocket-2, Block-C, Ground Floor at
Rohini, Delhi and the demand cum allotment letter was sent to the complainant
by post in the Block period of 26.09.02 and 01.10.02. The complainant on 1.2.2003 sent a letter to OP requesting for the change of allotment to other place
on medical ground and requested for change of address for correspondence, that
the Petitioner had considered a request of the complainant and informed the
complainant that the request for the change of flat was turned down. Accordingly
sent a letter dated 13.03.2003 at his changed address i.e. WZ-14/2 Gali No. 17
Sant Garh, Tilak Nagar, New Delhi-18. In the same letter petitioner requested the
complainant to pay the demanded amount and submit the required document as
per the demand letter. However the complainant failed to do so, but complainant
sent many reminders to DDA on 30.11.2003, 3.1.2004, 12.12.2005 & 2.2.2006.
The DDA informed the Complainant On 24.04.2006 that this request for the
change of flat was turned down. The complainant further asked to furnish the
documents for refund of registration amount deposited by him with the OP. The
Complainant also approached the Joint Director of the DDA who assured him
that due change of the site would be provided to him, but the DDA has not
informed him about the developments. However, the DDA has cancelled the
allotment without sending any show cause notice, which is illegal, unlawful and
arbitrary act of the DDA. Hence, a complaint No. 249/2007 was filed before The
Consumer Disputes Redressal Forum II, Government of NCT of Delhi (in short as
“District Forum”). The District Forum allowed the complaint. Hence, against the
said order the petitioner preferred First Appeal No.196/2011 in State
Commission.
3. The State Commission heard the counsels of both parties and perused the
records and evidence on file .The learned counsel for the appellant has argued
that since the amount has not been deposited, therefore, there is no question for
the allotment of another flat to the complainant/respondent and has placed the
reliance on Skyline Directors Pvt. Ltd & Anr. Vs. State of U.P. (2008) 8 SC page
265. In this case, it has been held by Hon’ble Supreme Court that since the
amount has not been deposited by the allottee of the flat allotted by the NOIDA
authority, the flat cannot be allotted. But the State Commission held that the facts of this case are quite different as the controversy is that the allotment-cum-
demand letter has not reached the complainant so as to deposit the amount
mentioned in allotment-cum-demand letter. The counsel for the appellant has
also placed reliance on another case Poonam Verma and others Vs. Delhi
Development Authority (2007) 13, Supreme Court cases page 154. In this case it
has been held that if the scheme is closed, there is no question of any allotment.
But State Commission observed that in the case before us there is no averment
on the part of the OP/appellant that the scheme under which the allotment of the
flat is made to the complainant/respondent is closed. In this connection no
evidence has been filed. Therefore, the State Commission dismissed the appeal and upheld the order of District forum as to allot a LIG flat to the complainant in same area, if lying vacant, or in area nearby, at its old rate of prices. OP is also directed to pay a sum of Rs.50000/- for causing mental agony and harassment to complainant since 2003 to till date and Rs.5000/- more as litigation charges to the complainant.
4. Aggrieved by the order of State Commission this Revision Petition was filed in this commission. We heard the both counsels who argued vehemently and perused the entire documents and evidence on record.
5. We have noticed the submissions of the appellant that Complainant vide its letter dated 01.02.2003 had requested for change of the allotment but his plea was turned down and a regular letter was sent on 13.3.2003 to the new address of complainant. The contents of same letter as follows:
“Sir, Kindly refer to your letter dated 26/2/03 on the subject cited above. In this connection, I am directed to request for change of flat has been examined in detail but the same cannot acceded to as per existing Policy of DDA and requested to pay the demand amount and submit the required documents as per demand letter.”
Therefore, a show cause notice was sent to him on 28.07.2003 with request to furnish the bank challans towards the deposited amount within 15 days from the date of issue of this notice failing which allotment would be cancelled and thereafter, he was liable to apply for refund by furnishing the requisite documents. However, the Complainant failed to deposit the demanded amount. Therefore, the allotment was cancelled vide letter dated 09.10.2003.
6. As per the complainant’s submission it is noted that both the letters cited above dated 28.07.2003 and 9.10.2003 were sent to the old address of complainant which have never been received. But, no doubt Complainant himself was being a retired MCD (Municipal Corporation Delhi) worker and appears to be a prudent one. Hence he should have complied with the demands as per allotment letter and made payment of installments as per schedule in time to the DDA. It is pertinent to note that the complainant never bothered to remit the installment amount as per demand letter. Instead of paying a single installment he kept sending many reminders to DDA on 30.11.2003, 3.1.2004, 12.12.2005 & 2.2.2006. This is negligence of complainant himself.
7. The petitioner on 25.04.2006 sent a reply for the last representation of the Complaint dated 2.2.2006; that the matter was duly examined in detail by the competent authority but the request of the complainant could not be acceded to. And made a request to apply for refund of deposited amount by furnishing the original documents. 8. The case of the Complainant was examined in detail but could not be acceded to as he failed to deposit the cost of the flat within the stipulated period and despite issue of show cause notice.
9. Therefore in our opinion that State commission grossly erred in observing that the allotment cum demand letter was sent to the Respondent/Complainant at his old address and the same amounts to deficiency of service. Therefore, the question of the deposit of the amount mentioned in allotment-cum-demand letter does not arise in as much as the allotment-cum-demand letter has not reached the Complainant/ Respondent. On the contrary the respondent himself has filed the demand cum allotment letter along with the Complaint which was issued on 26.09.2002-01.10.2002. As per demand letter the flat No. 157, Sector 17, Block LIG Flat was allotted to the Respondent.
10. On perusal of the clause 28 of the brochure of the Petitioner the terms and conditions of the brochure is as under:- “ In case a registered person gets a flat in any locality once or the flat is surrendered/cancelled due to non-compliance of the requirements DDA’s obligation to allot the flat to him will be deemed to have been discharged.”
As per the clause the Respondent was aware that due to non-payment of the installment resulted the cancellation of flat. The Respondent did not deposit the monthly stipulated installment even after the deferred dates.
11. Therefore, the Respondent is not entitled to any relief. The Apex Court in the Judgment Sky Line Contractor Private Limited Vs. State of UP reported in 2008(8)SCC 264 wherein the Hon’ble Supreme Court of India held that non- deposit of amount in stipulated period or unilateral deposit of demanded amount the Respondent was not entitled for allotment of the possession.
12. As the Complainant contented that at time of booking he was 35 years old and now at the time of allotment he is more than 60 years and not in a good health. To substantiate his contention he has not produce any health certificate or any evidence for the same. As such the brochure of petitioner did not show any such special provisions under which complainant’s request to be considered.
13. Therefore, considering the entire evidence and foregoing discussion we did not find the Petitioner has acted in an illegal manner therefore, we allow this Revision Petition by setting aside the order of the State Commission. With No costs.
..…………………..………J
(J.M. MALIK)
PRESIDING MEMBER
……………….……………
(S.M. KANTIKAR)
MEMBER
Mss