State Consumer Disputes Redressal Commission
1. Haryana Urban Development ... vs Ram Singh Son Of Shri Jai Narayan Through ... on 3 September, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.1249 of 2005 Date of Institution: 13.07.2005 Date of Decision: 03.09.2012 1. Haryana Urban Development Authority, Sector 12, Faridabad through its Estate Officer/Administrator. 2. Chief Administrator, Haryana Urban Development Authority, Sector 6, Panchkula. Appellants (Ops) Versus Ram Singh son of Shri Jai Narayan through GPA Yad Ram son of Shri Jai Parkash, resident of House No.337, Sector 21-C, Faridabad. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri A.K. Kansal, Advocate for appellants. Respondents exparte. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 28.03.2005 passed by District Consumer Forum, Faridabad whereby complaint filed by the respondent-complainant was accepted by granting following relief:-
The complaint of the complainant therefore succeeds and to satisfy the grouse of the complainant, the following order is passed:-
i) The respondents are ordered to allot plot No.3, Sector-46, Faridabad to the complainant in lieu of plot No.1114 Sector-46, Faridabad and further alternate plot No.750, Sector-45, Faridabad on the similar price, on which the plot No.1114 Sector-46, Faridabad was allotted.
ii) The respondents are further ordered to deliver the physical possession of this plot to the complainant.
iii) The respondents are further ordered to charge the price towards the alternate plot on the similar price for the increased area, if any, which was charged for originally allotted plot.
iv) The respondents are also ordered to pay interest @ 12% p.a. to the complainant on the amount deposited against the plot originally allotted to the complainant w.e.f. its deposits till the delivery of the physical possession of the plot now ordered to be allotted to the complainant.
v) The respondents are also ordered not to charge any kind of interest, panel interest, compound interest, extension fee from the complainant up to the period, till the physical possession of the plot now ordered to be allotted is delivered.
vi) The respondents are also ordered to pay Rs.50,000/- on account of mental agony, escalation of prices of construction material. The respondents are also ordered to pay Rs.2000/- on account of litigation expenses.
The respondents are ordered to comply with the order of the Forum within 30 days after receiving the copy of the present order.
The brief facts of the present case as emerged from the record are that Ram Singh was allotted plot No.1114 in Sector 46-II, Faridabad vide allotment letter bearing memo No.863 dated 6.2.1991 but due to the litigation the possession of the said plot could not be delivered to the complainant Ram Singh and accordingly the opposite parties allotted an alternative plot bearing No.750 Sector-45, Faridabad in lieu of plot No.1114 Sector-46, Faridabad but Instead of taking the possession of the alternative plot the complainant filed complaint before the District Consumer Forum with the plea that the opposite parties were bound to deliver the possession of the original plot within 90 days from the date of original allotment but they failed to develop the land as the facilities of shopping centre, High School, Dispensary, Post Office, Telephone exchange etc were not provided. Complainant further stated that the alternative plot No.750 Sector-45, Faridabad was allotted to him without his consent and that too without any development as the facilities of school, shopping centre, telephone exchange, post office etc were not available in the said sector. The complainant prayed that he be allowed the alternative plot out of the plots Nos.252 and 248 in Sector 46, Faridabad which were lying vacant.
Upon notice, the opposite parties appeared and contested the complaint by filing written statement stating therein that the complaint was hopelessly barred by time as the plot was allotted in the year 1999 and the complaint was filed on 24.01.2005. It was further stated that the alternative plot was allotted to the complainant as per HUDA policy and prior to the allotment of the plot the consent of the complainant was sought but he had not given any response to the opposite parties. They further stated that the water, electricity, sewerage and roads were essential amenities for development sector and the facilities as stated by the complainant were not required for development of the sector. It was prayed that the complaint merited dismissal.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Forum accepted complaint and issued direction to the opposite parties as noticed in the opening para of this order.
Aggrieved against the order of the District Forum, the opposite parties have come up in appeal.
Heard.
There is delay of 77 days in re-filing of the instant appeal the condonation of which has been sought by moving an application under. It is stated that originally the appeal was filed on 27.04.2005 but the same was returned with the objection that Demand Draft and affidavit were not filed with the appeal. The delay has occurred as the file was misplaced/tagged with some decided cases in the office of the counsel for the appellants.
While dealing with the application for condonation of delay, it is not disputed that the delay cannot be condoned on the ground of equity and generosity, but at the same time it is to be taken into consideration that in case of any legal infirmity is committed by the District Consumer Forum while passing the impugned order which is apparent on record, the same cannot be allowed to continue as it would amount to no order in the eyes of law. Reference is made to the observation made by the Honble Supreme wherein it has been held that when the substantial justice and technical approach are pitted against each other, the former has to be performed. It has further been held that the words Sufficient Cause have to be interpreted to advance the cause of justice. The Honble Apex Court in case cited as State of Nagaland Vs. Lipok A.O. and others, 2005(3) SCC 752 has held as under:-
11.What constitutes sufficient cause cannot be held down by hard and fast rules. In New India Assurance Co. Ltd. Vs. Shanti Misra (1975)(2) SCC (840) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression sufficient cause should receive a liberal construction. In Brij Inder Singh Vs. Kanshi Ram (ILR) (1918) 45 Cal. 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari (AIR 1969 SC 575) a Bench of three-Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
In the instant case the District Consumer Forum has passed the impugned order without appreciating the facts of the case and therefore, we think it a fit case to condone the delay. Hence, the delay of 77 days in re-filing of the present appeal is condoned.
Learned counsel for the appellants has assailed the order of the District Forum on the following grounds:-
i) The complaint is hopelessly barred by time in view of the provision of Section 24A of the Consumer Protection Act, 1986.
ii) The complaint filed through G.P.A. is not maintainable in view of the law settled by Honble Supreme Court of India.
iii) That specific plot cannot be given to the complainant.
iv) School, Shopping Centre, Telephone Exchange, Post Office are not the essential amenities for development of sector by HUDA.
In our view the contention raised on behalf of the appellants is forceful in view of following observation.
As per Section 24A of the Consumer Protection Act, 1986 a period of two years has been prescribed for filing complaint from the date of cause of action. Admittedly, in the instant case the alternative plot was allotted to the complainant vide allotment letter No.1733 dated 2.4.1999 but the complaint was filed on 24.01.2005 by taking the plea that the plot was allotted without his consent and that there was no development in the area where the alternative plot is situated. This plea could have been taken by the complainant within two years from the date of allotment of the alternative plot but the complainant failed to do so. Hence, the complaint filed by the complainant was not maintainable in view of the law settled by Honble Apex Court of India in State Bank of India v.
B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) =JT 2009(4) SC 191, wherein it has been held that:-
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.
In V.N. Shrikhande (Dr.) Versus Anita Sena Fernandes 2011 CTJ 1 (SUPREME COURT) (CP) Honble Supreme Court has held that:-
Section 24A (1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums to not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A (2), the consumer forums will have no option but to dismiss the same.
The instant case is fully covered by the authoritative pronouncements in State Bank of India v.
B.S. Agricultural Industries (Supra) and V.N. Shrikhande (Dr.) Versus Anita Sena Fernandes (Supra). Thus, the District Consumer Forum committed error in entertaining and deciding the complaint which was hopelessly barred by time.
The other aspect of the case is that the complaint was filed by the complainant through G.P.A. Learned counsel for the appellants has argued that in fact the plot was sold by the complainant to the G.P.A. who is a proper dealer and the complainant himself was not willing to retain the plot and the complaint through G.P.A. was not maintainable. To decide such a controversy the Honble Apex Court in Special Leave Petition (C ) No.13917 of 2009 titled as Suraj Lamp & Industries Pvt. Ltd. Versus State of Haryana and another decided on 11.10.2011 has held as under:-
III-Effects of SA/GPA/WILL transactions
3. The earlier order dated 15.5.2009, noted the ill-effects of such SA/GPA/WILL transactions (that is generation of black money, growth of land mafia and criminalization of civil disputes) as under:
& quot; Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons: (a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.
(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.
(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin.
Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption.
This kind of transactions has disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such `power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of musclemen to `sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions & quot;
It also makes title verification and certification of title, which is an integral part of orderly conduct of transactions relating to immovable property, difficult, if not impossible, giving nightmares to bonafide purchasers wanting to own a property with an assurance of good and marketable title.
The facts of the instant case are fully attracted to Suraj Lamp & Industries Pvt. Ltd. versus State of Haryana and another case (Supra). Thus, the complaint filed by the complainant through G.P.A. is not maintainable which is against the statutory provision of the Consumer Protection Act.
It has also been settled in catena of judgments that specific plot of the choice of the claimant-allottee cannot be allotted and therefore the order passed by the District Forum to this extent cannot be maintained.
As per settled principle of law School, Shopping Centre, Telephone Exchange, Post Office are not the essential amenities for development of sector by HUDA and the essential amenities are sewerage, water, electricity and roads which had already been provided in the Sector 45 Faridabad where the alternative plot was allotted to the complainant. All these aspect have not been appreciate by the District Forum while deciding the complaint.
As a sequel to our aforesaid discussions, it established on the record that impugned order passed by the District Forum is not sustainable in the eyes of law due to the complaint barred by limitation, G.P.A. cannot be termed as consumer; School, Shopping Centre, Telephone Exchange, Post Office are not the essential amenities for development of sector by HUDA and that any specific plot cannot be allotted to the complainant.
For the reasons recorded above, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.25,000/-
deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
Announced: Justice R.S. Madan 03.09.2012 President B.M. Bedi Judicial Member