National Consumer Disputes Redressal
Haryana State Urban Development ... vs Deveshwer Kumar Kapila on 16 July, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1997 OF 2012 (From the order dated 24.08.2011 in First Appeal No. 2008 of 2005 of the Haryana State Consumer Disputes Redressal Commission, Panchkula) 1. Haryana State Urban Development Authority, through its Chief Administrator Sector 6, Panchkula 2. The Estate Officer, HUDA, Sector 14, Gurgaon ... Petitioner Versus Deveshwer Kumar Kapila S/o Late Shri A. K. Kapila, R/o C-4, 1st Floor, Jangpura Extension New Delhi 110 014 Respondents BEFORE: HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Petitioner : Ms. Anubha Agrawal, Advocate DATED: 16th July, 2012 O R D E R
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. The facts of the case are these. Shri Deveshwer Kumar Kapila, the complainant/respondent had applied for a plot measuring 358.8 sq. yds. He deposited the earnest money. On 24.2.2003, the Estate Officer-petitioner No. 2, offered the possession of plot No. 488-B of Sector 15, Part-II, U.E., Gurgaon measuring 286 sq. meters only. At the time of taking possession, it transpired that the dimensions of the plot were 9.5 meters, in front, 25.35 meters on rear, and 22 meters on each side total measuring 383.35 sq. meters and one side of plot was 22 meters and another side is more than 22 meters against the dimension mentioned in the letter of 13X22 meters.
2. A complaint was filed before the District Forum, which directed HUDA to allot an alternative plot to the complainant measuring 14 marlas either in the same sector or adjoining sector to the satisfaction of the complainant.
The petitioners were also directed to pay interest @9% per annum on deposits from the date of deposit till the delivery of physical possession of the plot.
3. The petitioners filed an appeal against the said order. There was delay of 140 days in filing the appeal. The State Commission found that the complaint was barred by time and dismissed the appeal by placing reliance on few authorities in the Vikram Dass Vs. Financial Commissioner and others AIR 1977 SC 1221 and Government of U.T. Electricity Department & Ors. Vs. Ram Lubhai, II(2006) CPJ 104.
4. The petitioner set up the plea the petitioner being a government department took some time for taking proper decision regarding filing of appeal and during this departmental process, the delay of 140 days had occurred.
5. Thereafter, the instant revision petition was filed.
There is delay of 152 days in filing this revision petition. The following averments were made in the application for condonation of delay. The government procedure in respect of seeking sanctions, collecting relevant documents from concerned department and preparing and filing the present revision petition, has resulted in unavoidable delay of 217 days,(actual 152 days), which is unintentional, unavoidable and highly regretted. The petitioner has placed reliance on three authorities reported in State of Nagaland vs. Lipok Ao (2005) 3 SCC 752; Bhag Singh & Ors. Vs. Major Daljit Singh & Ors. 1987 Supp. 685 and N. Balakrishnan vs. M. Mrishnamurty (1998) 7 SCC 123. She however, submitted that the order of the State Commission has already been complied with. Alternative plot has been given to the complainant. 9% interest has also been handed over to the complainant.
She further prayed that the appeal should be admitted on the limited point of interest to which the complainant is not entitled.
6. This plea is mere palliative and does not delve deep to the roots of malady. It is now well settled that special accommodation cannot be granted to the government departments. It is also clear that while considering the petition filed under Section 5 of the Limitation Act, the court has to examine the following aspects:-
1. Whether the petitioner has satisfactorily proved sufficient cause for the delay for not filing the petition in time.
2. Was there any negligence or inaction or want of bona fide on the part of the petitioner
3. Whether a valuable right that has accrued to the other party will be likely to be defeated by condoning the delay.
4. Whether the petitioners have arguable points on facts and law.
7. It is surprising to note that the appeal of the appellant was dismissed as time barred. The alarm bells surely should have rung. Alas, the department pursued the matter in a lackadaisical manner, took the same plea, which was rejected by the State Commission in its order.
8. A bare look at Sec. 5 of the Limitation Act, makes it plain that the material part of the language of proviso appended to Section 15 of the Consumer Protection Act is in pari materia therewith. Therefore, it would seem settled beyond caisil; that it is incumbent on the appellant to explain each day of default beyond the terminus line of the prescribed period of limitation. (State of West Bengal v. Brojesh Chandra Singha Barman, 2005(3) CHN 19 at p.24).
9. 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.
10. In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right.
The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bonafides may fall for consideration; but the scope of the inquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.
11. In Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held that the expression sufficient cause cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such sufficient cause stated in the application and no such interference in the impugned order is called for.
12. In Delhi Development Authority Vs. Ramesh Kumar, 1996 (2) CCC 150 (Del), it was observed that when appellant found grossly negligent and administrative delays have not been properly explained, application for condonation liable to be dismissed.
13. See the observations made by the Apex Court in State Bank of India Vs. B.S. Agricultural Industries (I), II (2009) CPJ 29 (SC)-II (2009) SLT793=2009 CTJ 481 [Supreme Court] (CP).
14. The petitioner has failed to explain the delay in filing the appeal before the State Commission as well as this revision petition before this Commission. Both are barred by time.
15. We have also considered the limited request made by learned counsel for the petitioner. The State Commission has granted the complainant interest @9% per annum on deposit from the date of deposit till the delivery of physical possession of the plot. It can be assumed that how much harassment and mental torture was caused to the petitioner. HUDA should have come to the rescue of complainant and tried to solve his problem.
On the other hand, the complainant when asked the officials of HUDA, to provide him with site plan of the first plot, they refused to accede to the request made by the respondent. The request of the complainant that he should be handed over the plot as per advertisement, was not decided by the HUDA within a reasonable time. The complainant was unnecessarily dragged to the consumer foras. The time of parties and consumer foras was wasted by the foras. It all boils down to a clear case of harassment to the complainant. It is well said that it is the wearer who knows where the shoe pinches. The complainant could get justice after the lapse of 10 years. Consequently, the order passed by the District Forum suffers from no illegality.
Under the circumstances, the revision petition is dismissed.
..Sd/-
( J. M. MALIK, J.) PRESIDING MEMBER ..Sd/-
( VINAY KUMAR) MEMBER Naresh/reserved