National Consumer Disputes Redressal
Huda And Ors vs Cap. Suresh Sharma on 16 May, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.838 OF 2011 (From the order dated 04.03.2010 in First Appeal No.1073/2006 of the Haryana State Consumer Disputes Redressal Commission, Panchkula) 1. Haryana Urban Development Authority through its Estate Officer, HUDA Sector 12, Faridabad, Haryana PETITIONERS 2. Chief Administrator, HUDA HUDA office, Sector 6 Panchkula, Haryana versus Cap. Suresh Sharma S/o Gianender Sharma RESPONDENT House No.64, Sector 11, Panchkula BEFORE: HON'BLE MR.ANUPAM DASGUPTA PRESIDING MEMBER For the Petitioners Mr. R.S. Badhran, Advocate For the Respondent Mr. G.I. Sharma, Advocate PRONOUNCED ON 16th MAY, 2012 ORDER
ANUPAM DASGUPTA This revision petition challenges the order dated 04.03.2010 of the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, the State Commission) in F.A. No. 1073 of 2006 against the order dated 13.12.2005 of the District Consumer Disputes Redressal Forum, Faridabad (in short, the District Forum). The State Commission disposed of this appeal filed by the officers concerned of the Haryana Urban Development Authority (HUDA) by observing, inter alia as under:
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx The facts and circumstances of the present case coupled with documentary evidence reveal that it is a (sic case of?) highhandedness of officials of HUDA by taking different stand in case of other allottee, i.e., Baljinder Kaur of the same sector. The documentary evidence produced on record reflects about handing over the physical possession of the plot to the complainant by taking various stands before the State Commission, on the date when this appeal was originally disposed of, learned counsel for the appellants-opposite parties stated that the physical possession of the plot was handed over to the complainant on 4.9.2008.
Copy of letter bearing Memo No.31216 dated 27.6.2008 issued by Estate Officer, HUDA, Faridabad reveals that possession of plot No.2430 Sector-2, Faridabad was offered to the complainant subject to decision of the Honble Apex Court, but on the said letter there is an endorsement made by the complainant that Had it been only for taking physical possession, why then to say subject to decision of Apex Court. This offer is again conditional and not a clear offer of possession. Another letter for offer of possession was issued by the Estate Officer, HUDA, Faridabad with respect to the same plot vide letter bearing Memo No.31753 and 4.11.2009.
Thus, we feel that there is deficiency in service on the part of the opposite parties for not delivering possession of the plot to the complainant within the stipulated period after completing all the developments works in the area and the District Forum has rightly accepted the complaint.
Now coming to the point of granting compensation with respect to the escalation in the cost of construction, we have gone through the impugned order. There is no cogent and convincing evidence led by the complainant by way of report of an expert Civil Engineer to prove the actual increase in the cost of construction from the date of allotment of plot till the date of offer of possession.
This relief granted by the District Forum is not sustainable and the same is set aside.
With the above modification in the impugned order, rest of the order passed by the District Forum is maintained.
2. The respondent in this petition was the complainant before the District Forum. He averred that plot no. 2430 measuring 250 sq. yards located in Sector 2, Faridabad was allotted to him by HUDA under allotment letter no. 2256 dated 24.11.1998. However, HUDA did not deliver the possession of this plot after completing the development works in this area, as a result of which he could not raise construction on the plot within the stipulated period. Despite this delay in delivering possession of the plot of land, HUDA levied penal interest, etc., on the due installments of the balance cost of the plot as well as extension fee for extending the period to raise construction. Thus, alleging deficiency in service on the part of the HUDA, the complainant prayed for several reliefs. HUDA opposed the complaint mainly on the ground that possession of the plot had been offered to the complainant after completing the development works in the area under its letter dated 25.07.2003. However, the complainant defaulted in paying the due installments and delayed construction on the plot beyond the period stipulated therefor.
3. After appraisal of the pleadings, evidence and documents produced by the parties, the District Forum allowed the complaint with the following directions:
1. The respondents are ordered to deliver the physical possession of plot No.2430, Sector2, Faridabad with full development and in case it is not found possible then give physical possession of some other alternative plot by allotting the same in lieu of the original allotted plot in the same sector, of the same size and on the same price in some developed pocket.
2. The respondents are further ordered to pay Rs.50,000/- on account of escalation charges since the price of the construction material has escalated manifolds.
3. The respondents are also ordered not to charge any kind of interest, penal interest, compound interest, penalty and extension fee from the complainant up till the period of delivery of the physical possession of the plot as ordered above.
4. The respondents are also ordered to pay interest @ 12% p.a. to the complainant on his deposit w.e.f.
its deposit till the delivery of the physical possession of the plot as ordered above.
5. The respondents are further ordered to pay Rs.10,000/- on account of mental agony and Rs.2,000/- as litigation expenses to the complainant.
4. It is against this order of the District Forum that HUDA filed an appeal before the State Commission, with the result noticed above.
5. I have heard Mr. R. S. Badhran, learned counsel for the petitioner and Mr. G. I. Sharma, learned counsel for the respondent and considered the documents produced on record by the parties.
6. At the outset, it may be noticed that the revision petition has been filed after a delay of 255 days. In the application seeking condonation of this delay, the petitioner has stated as under:
2. That the Honble State Commission announced the order on 04.03.2010 and the copy of the order was issued on 29.03.2010. In the office of Estate Officer, copy of the order was received.
3. That after receiving the copy of the order from the office of Estate Officer, the case was examined by the Legal Branch.
The counsel engaged by the applicant prepared the draft revision petition and sent to the Estate Officer. In the office of Estate Officer, HUDA the file was processed for verification of the facts from the accounts branch and thereafter in the allotment branch and thereafter put before Estate Officer.
4. That the delay in filing the present revision petition is neither deliberate nor intentional but on account of aforementioned circumstances.
7. It is clear from the narration reproduced above that leave alone constituting sufficient cause, the grounds cited above by the petitioner for the delay of this magnitude are hardly worth the piece of paper on which they are typed. Mr. Badhran has feebly attempted to justify the delay by referring to the time taken in the usual process of decision-making in the petitioner organisation. It is difficult to accept such a plea for that would only amount to condoning forever the inefficiency and sloth in performance of even statutory duties for which organisations like the petitioner are notorious.
8. Strongly opposing the condonation of delay, Mr. Sharma has cited decisions of the Apex Court as well as this Commission in similar situations. In particular, he has drawn attention to the Apex Courts decision in the case of Anshul Aggarwal v New Okhla Industrial Development Auth. [IV (2011) CPJ 63 (SC)] in which the Apex Court considered the grounds for delay of 233 days in filing of Civil Appeal with Special Leave against an order dated 23.08.2010 of this Commission in RP No. 1327 of 2010.
9. It will be useful to reproduce here the relevant paragraphs of the order of the Apex Court:
The explanation given by the petitioner delayed filing of the special leave petition defined in paragraphs 4 to 7 of I.A. No.1/The same read as under:
4. That the petitioner was in Kuwait with her husband and school going children. That the National Consumer Dispute Redressal Commission passed its order on 23.08.2010. The Counsel of applicant informed the applicant about the order of the National Commission about a fortnight of passing of the order. The applicant after a thorough and careful consideration along with her husband decided to bring the matter before the Honble Supreme Court of India. The applicant thus on 20.11.2010 instructed her Counsel from Kuwait to draft and prepare the case for filing it in the Honble Supreme Court of India. The counsel of the applicant for certain queries asked the applicant to come to India and give certain details along with other particulars in respect to agreement and payments made to NOIDA.
5. That the applicant was not in a position to come to India immediately as per advice of her Counsel, because her school going children were in mid session, and there were certain other unforeseen difficulties to leave Kuwait immediately as per need and demand of the Counsel.
6. That the applicant came in India for a short period from 9th April to 15th April, 2011 for a religious ceremony in family and again went to Kuwait, but could not contact her Advocate due to viral fever while in India.
7. That applicant reached India on 9.7.2011 and immediately got the S.L.P. prepared through her Counsel by explaining all the queries to her Counsel, and is swearing the affidavit for filing the S.L.P. In our opinion, the cause shown by the petition for not filing the special leave petition within the prescribed period of limitation is wholly unsatisfactory. The averments contained in the above reproduced paragraphs show that within a fortnight of passing of the impugned order, the petitioner had become aware of the same. She instructed her Counsel to prepare a draft of the case to be filed in this Court, but did not take step necessary for filing the petition. She visited India in April, 2011, but then too she did not bother to contact the Counsel. The petitioners assertion that she could not do so because she was suffering from viral fever has not been substantiated by any document. Therefore, we do not find any valid ground much less justification for exercise of power by this Court under Section 5 of the Limitation Act.
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 Fora.
[Emphasis supplied]
10. It may be observed that in this case the petitioner did not even attempt to mention the estimated time spent at each stage of decision-making since 29.03.2010 (the date of receipt of the impugned order of the State Commission by the petitioner) and 09.03.2011, the date on which the revision petition was filed. The observations of the Apex Court reproduced above leave no room for doubt that on the strength of the grounds (?) cited by the petitioner; there can be no question of condoning the delay in filing this revision petition.
11. Moreover, both the Fora below have come to concurrent findings of fact regarding deficiency in service on the part of the petitioner in offering possession of the plot allotted to the respondent after completing the development works in the area. The State Commission has, in fact, moderated the award of the District Forum by disallowing the compensation of Rs.50,000/- awarded by the District Forum towards cost of escalation of the construction. In the case of Mrs. Rubi (Chandra) Dutta v M/s United India Insurance Co. Ltd. [(II) (2010) CPJ 19 (SC)], the Supreme Court amplified the ambit of the revisional powers of this Commission under section 21 (b) of the Consumer Protection Act, 1986 (hereafter, the Act) by observing as under:
Also, it is to be noted that the revisional powers of the National Commission are derived from section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdiction error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.
12. The foregoing observations of the Supreme Court also squarely apply to the facts of this case. As a result, the application for condonation of delay of 255 days in filing this revision petition is dismissed. Consequently, revision petition is also dismissed; not only because of inordinate and uncondonable delay but also that there is no reason to differ with the concurrent findings of the District Forum and the State Commission regarding deficiency in service on the part of the petitioner. The well-reasoned order of the State Commission has, in fact, moderated the award of the District Forum after due consideration of the relevant situation.
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(ANUPAM DASGUPTA) bs