State Consumer Disputes Redressal Commission
1.Haryana Urban Development ... vs Smt. Bijender Kaur W/O Raj Singh, R/O ... on 6 February, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.206 of 2008 Date of Institution: 2.01.2008 Date of Decision: 06.02.2012 1. Haryana Urban Development Authority, through its Chief Administrator, Panchkula. 2. The Administrator, Haryana Urban Development Authority, Sector-12, Faridabad. 3. Estate Officer, Haryana Urban Development Authority, Sector-12, Sonepat. Appellants (Ops) Versus Smt. Bijender Kaur w/o Raj Singh, R/o Village Garhi Sisana, Tehsil Kharkhoda, District Sonepat. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Tarun Gupta, Advocate for appellants. Respondent exparte. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 19.10.2007 passed by District Consumer Forum, Sonepat in complaint No.108 of 2007 whereby the appellants-opposite parties have been held deficient in service and involved in unfair trade practice for not delivering the possession of the plot and for charging the extension fee etc from the complainant and thus while disposing of the complaint, following relief was granted to the complainant:-
Accordingly, taking into consideration the above said fact, it is held that the demand of the respondents made vide letter No.5884 dated 21.4.2006 is wrong, illegal and unjustified and the respondents are, thus, directed to withdraw the said letter as the complainant is not liable to make any amount against the said letter dated 21.4.2006 as their demand is wrong and illegal and accordingly set-aside.
.This Forum, thus, directs the respondents to pay interest at the rate of 09% per annum to the complainant from 29.8.1993 (after expiry of two years from the date of allotment dated 9.09.1991) till 18.5.1998, the date of offer of possession to the complainant and the complainant herself has placed on record the photo copy of letter No.11214 dated 18.5.1998. The respondents are also directed to compensate the complainant to the tune of Rs.2000/- (Rs.Two thousands only) for rendering deficient services, for causing unnecessary mental agony, harassment and under the head of litigation expenses. The respondents are also directed to deliver the actual physical possession of the plot to the complainant.
District Consumer Forum ordered to comply with the above direction within 30 days from the date of the order.
The brief facts of the present case as emerged from the record are that the complainant was allotted plot bearing No.2151 measuring 209 Sq. meters located in Sector-23, Sonepat vide allotment letter No.10137 dated 29.8.1991. The possession of the plot was offered to the complainant vide letter bearing memo No.11214 dated 18.5.1998. The enhancement notice was sent to the complainant vide memo No.2359 dated 29.10.1997 and thereafter vide notice bearing memo No.5884 dated 21.4.2006, the opposite parties demanded Rs.1,71,778/- which included Rs.25,726/- as extension fee for the period 2000 to 2006; instalments worth Rs.1,84,689/- and Rs.61,423/- as enhanced price of the plot. However, the complainant had paid only three instalments on 31.10.1994, 28.8.1995 and 16.1.2001 besides 10% of the tentative price alongwith her application and 15% within 30 days from the date of issuance of the letter of allotment.
After issuing the letter No.5884 dated 21.4.2006, the complainant filed complaint before the District Forum with the plea that the possession of the plot was not delivered to her after completing the development works in the area and for that reason the opposite parties were not entitled to charge the interest on the instalments amount and the extention fee.
Complainants claim was resisted by the opposite parties on the ground that the possession of the plot was offered to the complainant on 18.5.1998 after completing all the development works in the area but the complainant herself did not come forward to take the possession despite the fact that there were/are about 1200 houses built up in the sector of other allottees wherein families were residing.
District Consumer Forum accepted the version of the complainant and issued direction to the opposite parties as noticed in the opening para of this order. Hence this appeal.
We have heard learned counsel for the appellants and perused the case file. Respondent already exparte.
There is delay of 51 days in filing of the instant appeal the condonation of which has been sought by moving an application under Section 5 of the Limitation Act. The application is supported with an affidavit of Shri Amarjeet Singh Mann, Estate Officer, HUDA, Sonepat.
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 51 days in filing of the present appeal is condoned.
At the very outset the question for consideration before us is as to whether the complaint before the District Consumer Forum was within limitation as prescribed in Section 24A of the Consumer Protection Act, 1986? The answer to this question is in negative.
Admittedly, the possession of the plot was offered to the complainant vide letter bearing memo No.11214 dated 18.5.1998. In para No.6 of the complaint, the complainant herself has admitted this fact. However, the complaint was filed on 23.05.2007 after issuing letter bearing memo No.5884 dated 21.4.2006, objecting the demand made therein on the ground that the development works on the plot were not completed. In case the complainant was not satisfied with the development works on the plot, in that eventuality, she should have filed complaint before the District Consumer Forum within two years from the offer of possession. Thus, the compliant could have been filed upto 18.5.2000 i.e. within two years from the date of offer of possession. The subsequent correspondence, if any, cannot extend the period of limitation in view of settled law in catena of judgments. Thus, the act and conduct of the complainant shows that the complainant herself was not in a position to raise the construction on her plot and to pay the instalments in time due to which the opposite parties demanded the impugned amount.
The other aspect which requires consideration is that the Extension fee cannot be questioned by filing complaint under the Consumer Protection Act, 1986. Reference is made to case law cited as HUDA versus SUNITA (2005) 2 Supreme Court Cases 479, wherein the Honble Supreme Court has held as under:-
3. After perusing the order of the National Commission and hearing learned counsel for the parties we find that the National Commission has held that the statutory obligations of HUDA and plot-holder under the provisions of the HUDA Act and the Regulations are not acts or omissions constituting deficiency in service within the meaning of the Consumer Protection Act.
4. On the above finding, the National Commission had no jurisdiction to go into the correctness of the demand of composition fee and extension fee made by HUDA from the respondent complainant.
5. On the National Commissions own reasoning and the interpretation of provisions of law with which we agree, this appeal deserves to be allowed. In our opinion, the National Commission having held that it has no jurisdiction to go into the correctness of the demands made by HUDA ought to have set aside the orders of the District Forum and the State Commission setting aside the demand of composition fee and extension fee. We, therefore, allow this appeal upholding the order of the National Commission. We set aside the order of the District Forum and the State Commission to the extent of quashing the demand of composition fee of Rs.53,808 and extension fee of Rs.6300.
This very judgment has been followed by the Honble National Commission in case cited as Punjab Urban Planning & Devp. Authority & Anr versus Prem Singh Mann 2008(2) CPC 247, and in Revision Petition No.2393 of 2009 titled as Lekh Raj Mehta and others versus HUDA and another decided on 28th July, 2009.
The instant case is fully covered by HUDA versus SUNITAs case (Supra). Thus, the complaint filed by the complainant is not maintainable being barred by limitation and also that the Consumer Fora have no jurisdiction to go into the correctness of the demands made by HUDA with respect to the extension fee. District Consumer Forum has failed to appreciate the above stated facts of the case and as such the impugned order cannot be allowed to sustain.
Accordingly, 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 06.02.2012 President B.M. Bedi Judicial Member