National Consumer Disputes Redressal
Smt. Jyoti Sharma vs Haryana Urban Development Authority, on 27 April, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.3309 OF 2011 alongwith I.A. No.01 of 2011 (Against the order dated 5.7.2011 Appeal No. 864/2011 of the State Commission, Haryana, Panchkula) Smt. Jyoti Sharma D/o Shri Ramesh Kumar Sharma, Now Mrs. Jyoti Sethi, R/o H. No. 37, Rajpur Road, Gwalior House, Delhi. ........ Petitioner Vs. 1. Haryana Urban Development Authority, Through its Estate Officer, Rewari, Haryana 2. Haryana Urban Development Authority, Through its Administrator, Gurgaon, Haryana 3. Haryana Urban Development Authority, Through its Chief Administrator, Panchkula, Haryana .Respondents BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Petitioners : Mr. S.C. Dhanda, Advocate with Ms. Sagari Dhanda, Advocate Pronounced on 27th April , 2012 ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER Aggrieved by order dated 5.7.2011, passed by State Consumer Disputes Redressal Commission, Punchkula (for short as State Commission) petitioner has filed the present revision petition under Section 21(b) of Consumer Protection Act, 1986 (for short as Act).
2. Brief facts are that plot no.801, Sector-6, Part -1, Urban Estate, Dharuhera, was allotted to petitioner/complainant by respondents, vide allotment letter dated 27.1.1989. Petitioner had deposited 15% amount at the time of allotment on 24.2.1989. She also made payment of various instalments upto 18.10.1995, when physical possession was offered and given to her. Thereafter, petitioner failed to make payment of different instalments. Respondent no.1, vide order dated. 15.7.2002, resumed the plot.
3. Petitioner filed an appeal before respondent no.2, but her appeal was dismissed on 18.3.2010.
4. Thereafter, petitioner challenged the legality and validity of order dated 18.3.2010, before the Financial Commissioner, by way of revision, which was also dismissed, vide order dated 8.12.2011.
5. Petitioner thereafter, invoked the jurisdiction of the District Forum by filing complaint seeking restoration of her plot.
6. District Forum, vide order dated 11.3.2011, allowed the complaint and passed the following order;
Resultantly, this complaint is hereby allowed. Impugned resumption order dated 15.7.2002 and order for rejection of appeal by the Administrator dated 18.3.2010, are hereby set aside. The allotment of the plot to the complainant is hereby allowed to be restored on payment/deposit of all the outstanding instalments with due interest upto the date of resumption dt. 15.2.2002 and from today till payment/deposit. No interest for the period from 15.2.2002 till today. The complainant is also allowed compensation of Rs.10,000/- and litigation expenses of Rs.1100/-.
7. Order of District Forum was challenged by the respondents before the State Commission, which vide impugned order, accepted the appeal and observed;
The question for consideration in this appeal is whether after availing opportunity of filing appeal before the Chief Administrator, HUDA, Panchkula and revision before the Financial Commissioner and Principal Secretary to the Government of Haryana, the complainant can be filed under the Consumer Protection Act, 1986? The answer to this question is in negative.
It is well settled law that once the complainant has adopted a certain route for redressal of her grievance, then the complainant should go to the said route to its logical end. Reference in this regard is made to case law cited as SURINDER MOHAN v. MUNICIPAL CORPORATION & ANR. III (2006) CPJ 136 (NC). The relevant observation made in para No.6 of the above mentioned case is as under:-
There is no doubt that Section 3 of the Consumer Protection Act, 1986 provides additional remedy for redressal of grievance of a consumer. But it does not envisage and this Commission has not been supporting forum-hopping by a consumer. If a certain route has been adopted, of their own volition, by a consumer, then he has to pursue his remedy to the end from that agency. In this case admittedly, the order of the cancellation and lack of amenities was agitated before the Chief Administrator, U.T. Chandigarh who dismissed the appeal. Revision Petition was filed against that order which also contained relief with regard to lack of amenities, which has also been dismissed. This Commission is not a revisional appellate authority against the order passed by the Advisor to the Chief Administration, U.T. Chandigarh.
The facts of the instant case are fully attracted to SURINDER MOHANs case (Supra). As the complainant has already availed the remedy of filing appeal before the Chief Administrator, HDUA, Panchkula and revision before the Financial Commissioner and Principal Secretary to the Government of Haryana, the complaint filed by her cannot be entertained under the Consumer Protection Act, because the Consumer Fora cannot sit as an appellate authority against the above said orders. District Consumer Forum has failed to appreciate this legal aspect and as such the impugned order passed by the District Forum cannot be allowed to sustain.
8. Hence, this revision.
9. It is contended by learned counsel for the petitioner that Section 3 of the Act, provides that provision of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Hence, complaint filed by petitioner before District Forum is fully maintainable. On this point, learned counsel has relied upon decision of Apex Court in Dhanbir Singh vs. Haryana Urban Development Authority (Civil Appeal No.8639 of 2011 decided on 14th October, 2011).
10. It is further contended by learned counsel that it has been proved on record before District Forum that petitioner had changed her address which fact has been concealed by the respondents. Further, no show cause notice was sent at the new address of the petitioner and as such resumption order being passed without service of show cause notice on the petitioner, is illegal. Thus, no reasonable opportunity was afforded to the petitioner before passing the resumption order. Under these circumstances, impugned order is liable to be set aside.
11. In Dhanbir Singh Case (supra), Apex Court has observed;
The Consumer Protection Act was enacted to provide for better protection of the interests of consumers and for establishment of consumer councils and other authorities for the settlement of consumer disputes and for matters connected therewith. Section 3 declares that the provisions contained in the Act are in addition to and not in derogation of the provisions of any other law for the time being enforce. There is no provision in the Act which bars filing of a complaint by a consumer after availing other statutory remedies. In matters like allotment of plot/land by HUDA and other similar agencies/instrumentalities of the State, whose functioning is governed by the law enacted by State Legislature, departmental remedies are usually available to an aggrieved person. If such person falls within the definition of consumer under Section 2(d) of Act then he can directly file complaint under Sections 12, 17 and 21, as the case may be. He can also avail departmental remedy by filing on appeal. Once the appeal is decided and the consumer is aggrieved by the decision of the appellate authority then he can challenge the action/decision of the initial authority as well as the appellate authority by filing a complaint. If the complaint is time barred, the consumer can seek condonation of delay by filing an application under Section 24A (2).
12. In view of the above decision of Apex Court, it is well settled that a litigant after availing the departmental remedy, can file a consumer complaint also.
13. Short question which arises for consideration is as to whether after passing of the resumption order, notice as required under the HUDA Act, was served upon the petitioner and secondly, as to whether complaint filed by the petitioner before District Forum was within the period of limitation.
14. The entire case of petitioner rest on the premises that no show cause notice under Sections 17(1) and 17(2) of HUDA Act, was given before passing the resumption order dated 15.7.2002, nor the same was delivered to her at her new address.
15. However, as per averments made in the petition, petitioner admits that after resumption order, she had received a cheque of Rs.68,229/- dated 29.5.2003. Petitioner is silent on this point as to whether this cheque was received by her at her old address or new address. Admittedly, this cheque was also encashed by the petitioner.
16. On this issue, it would be fruitful to quote the relevant findings given by the Administrator, HUDA, while dealing with the appeal of the petitioner, against resumption order dated 15.7.2002, which reads as under;
Considering the above stated facts it is obvious that the plot was allotted in the year 1989 and the appellant did not deposit due amount despite issue of notices under Section 17 of HUDA Act, 1977. The resumption orders were passed on 15.7.2002 and appeal has been filed on 25.5.2009 i.e. after a period of 7 years which is badly time barred. I do not find any justification to disagree with the resumption order passed by the Estate Officer which has been passed after adopting the mandatory provisions of Section 17 of HUDA Act, 1977. Hence, I hereby dismiss the appeal.
17. Thereafter, Financial Commissioner, while disposing of the revision petition of petitioner filed under Section 17(8) of HUDA Act , in its order dated 8.12.2011 observed;
The original file of the plot was seen, it was observed that the notices u/s 17(1) and (2) of the HUDA Act were sent vide Memo No. 3454 dated 27.8.1997 Memo No. 4822 dated 19.9.2001 and 17(3) and 17(4) sent vide Memo No. 1221 dated 5.3.2002 and Memo No. 2151 dated 12.4.2002 respectively. Thereafter the order of resumption was passed. All these notices and the resumption order has been sent on the old address of the petitioner i.e. Smt. Jyoti Sharma, House No. 1580, Church Road, Kashmiri Gate, New Delhi instead of new address i.e. Smt. Jyoti Sharma C/o Shri N.D. Sethi, 37, Rajpur Road, Gwalior House, New Delhi.
The file of the Estate Office, HUDA, Rewari was further examined and it was observed that after resumption on 15.7.2002 an amount of Rs.68,229/- was refunded to the petitioner vide cheque no.616207.
It was confirmed by the petitioners counsel that the said cheque was received on the old address i.e. Smt. Jyoti Sharma House No. 1580, Church Road, Kashmiri Gate, New Delhi and the said cheque was duly encashed by the petitioner. The counsel for the petitioner further stated that the cheque/amount having been received by an employee of the father of the petitioner was deposited in her account without her knowledge.
It was observed that petitioner remained silent for a period of more than six years after passing of resumption order when one fine day woke up to file an appeal before the Administrator, HUDA, Gurgaon.
The plea of the petitioner that notices have not been received as it was sent on old address is not tenable as the petitioner received cheque of refund on the old address and got the same encashed. The old address is that of the parental house of the petitioner.
The presumption is that if cheque of refund has been received and encashed at old address, then notices sent on the old address have also been received as the same have not been received back.
18. Thus, we have no hesitation in holding that if the cheque of refund has been received by the petitioner at her old address and the same has been encashed by her, the notices sent on her old address have also been received by her, as the same were not received back by the respondents.
19. The resumption order passed on 15.5.2002 was challenged before the Administrator, HDUA only in 2009. Thus, there was delay of seven years in challenging the resumption order.
20. Under these circumstances, the consumer complaint filed by petitioner before the District Forum, was hopelessly time barred in view of Section 24A of the act
21. It is well settled principle of law that any relief can be claimed under the Act, within two years from the date on which the cause of action accrues.
22. Section 24-A of the Act, deals with this situation which is reproduced as under;
24-A. Limitation period :- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1) a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
23. The above provision is clearly peremptory in nature requiring the Consumer Fora to see at the time of entertaining the complaint, whether it has been filed within the stipulated period of two years from the date of cause of action.
24. Honble Apex Court in case of Kandimalla Raghavaiah & Co. versus National Insurance Co. Ltd. and another, 2009 CTJ 951 (Supreme Court) (CP) took view of the observations made in case State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, as under:-
12. Recently, in State Bank of India Vs. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held:
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 para No.13, it has been held by the Honble Supreme Court The term cause of action is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue. Generally, it is described as bundle of facts., which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, cause of action means the cause of action for which the suit is brought. Cause of action is cause of action which gives occasion for and forms the foundation of the suit. In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.
25. On the point of recurring cause of action reference may be made to the observation made by the Honble Supreme Court in Raja Ram Maize Products etc. Vs. Industrial Court of M.P. and Other, AIR 2001 SUPREME COURT 1676, wherein it has been held ;
10. The concept of recurring cause of action arising in a matter of this nature is difficult to comprehend. In Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneshwar Maharaj Sansthan, AIR 1959 S.C. 798 it was noticed that a cause of action which is complete cannot be recurring cause of action as in the present case. When the workers demanded that they should be allowed to resume work and they were not allowed to resume work, the cause of action was complete. In such a case the workers going on demanding each day to resume work would not arise at all. The question of demanding to allow to do work even on refusal does not stand to reason.
26. Recently, Apex Court in case Anshul Aggarwal Vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) has observed;
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.
27. The observations made by the Honble Apex Court in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the present case.
28. In the case in hand, no application under Section 24A of the Act, was filed before the District Forum.
29. Looking from any angle, we find that the complaint filed by the petitioner before the District Forum, was hopelessly barred by limitation and same is also not maintainable on merits.
30. Accordingly, present revision petition which is meritless and being without any legal basis, is dismissed with costs of Rs.10,000/-.
31. Petitioner is directed to deposit the costs of Rs.10,000/-, by way of demand draft, in the name of Consumer Legal Aid Account of this Commission, within eight weeks, from today.
32. In case, petitioner fails to deposit the said costs within the prescribed period, then she shall also be liable to pay interest @ 9% p.a., till realization.
33. Pending application, if any, stands dismissed.
34. List on 6.7.2012 for compliance.
....J (V.B. GUPTA) (PRESIDING MEMBER) ....
(VINAY KUMAR) (MEMBER) Sg.