National Consumer Disputes Redressal
G.D. Gupta vs Huda on 13 April, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2412 OF 2012 (Against the Order dated 15/02/2012 in Appeal No. 1719/2008 of the State Commission Haryana) 1. G.D. GUPTA R/o H.No-189 Sector-13 Karnal Haryana ...........Petitioner(s) Versus 1. HUDA Through Esatate Officer Karnal Haryana ...........Respondent(s)
BEFORE: HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER
For the Petitioner : IN PERSON For the Respondent : NEMO
Dated : 13 Apr 2023 ORDER
The present revision petition is filed under section 21 (b) of the Consumer Protection Act, 1986 (in short, 'the Act') against the order dated 15.02.2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, 'the State Commission') in Appeal no. 1719 of 2008.
2. The brief facts as stated by the petitioner are that respondent Haryana Urban Development Authority (in short, 'HUDA') had allotted plot no. 146, Sector 14, Urban Estate, Karnal to the petitioner on 21.05.1979 and paper possession was offered on 25.11.1982. Petitioner has stated that possession under Regulation 13 of HUDA (Disposal of Land and Buildings) Regulations, 1978 could only be made after full compliance of the development of area and works. The petitioner alleges that the plot was to be constructed within the time prescribed under Regulation 13 of HUDA (Disposal of Land and Buildings) Regulations 1978. Both the obligations are part and parcel of Plot Allotment Agreement, incorporated as condition no.7 and 18 respectively in the letter of allotment for the plot. Due to the poor conditions of environment in the immediate vicinity of the plot, the petitioner challenged the offer of possession on 25.11.1982 on the ground that the area around the plot was not fully developed as development works of certain basic amenities were still incomplete and there was acute problem of pollution prevailing just in front of the plot with extremely foul smell emanating from sewage/ sullage water in the Old Mugal Canal passing near the plot which had taken the shape of a 'Ganda Nallah' carrying sewage, sullage and other effluents, thus making the adjoining area unfit for hygienic and healthy living.
3. The petitioner has further stated that the respondent claimed enhanced land compensation and extension fee for the first time on 25.11.1987. The petitioner challenged the same but his representations were unanswered and undecided. It is further stated by the petitioner that in the years 1989-1992 a news item appeared in the 'Tribune' newspaper stating that the respondents are undertaking project works on the Old Mugal Canal 'Ganda Nallah'. The petitioner, in good faith, submitted the building plans on 21/22.10.1991 with the prescribed fee as per Building Regulations for approval by the respondent. The respondent, vide their memo number dated 7459 dated 14.05.1992, asked the petitioner to deposit the enhanced land compensation dues amounting to Rs.10,750/- along with extension fee of Rs.11,887/-. The petitioner made the payment of the enhanced cost of plot under protest and the payment of extension fee was kept in abeyance till the decision of the pending representations. As there was no response from the respondent despite repeated follow-up by the petitioner, the petitioner filed a consumer case before the District Consumer Disputes Redressal Commission, Karnal (in short, 'the District Forum') being CC no. 205 of 1992.
4. The respondent, HUDA, took the plea that the District Forum had no jurisdiction to grant relief and agreed to the suggestion that as per condition no.22 of the allotment letter of plot, disputes could be settled through arbitration. The petitioner/ complainant approached the respondent for referring the dispute to arbitration. The respondent initially delayed the appointment of an arbitrator and Mr K K Khandelwal, IAS was appointed Arbitrator only on 14.10.1993 and endorsed on 02.11.1993 by the office of the appointing authority, the Chief Administrator, HUDA. The matter pended before the Arbitrator for several years under section 47 of the Arbitration Act, 1940, although as per Section 3 of the Arbitration Act, 1940 the time frame for the arbitration process to be completed is 4 months. After over 7 years another arbitrator with Shri Sri Kant Walgad IAS was appointed on 07.12.2000.
5. The petitioner alleges that the arbitrator called for a meeting of the parties on 11.01.2001. During this period of eight years cost etc., had escalated. A third Arbitrator, Shri Arun Kumar Gupta, IAS was appointed who finalised the arbitration proceedings in great haste and decided the matter in favour of the respondent/ HUDA.
6. The petitioner filed objections under section 34 of the Arbitration and Conciliation Act, 1996 before the District Judge, Karnal against the award rendered by the arbitrator. However, due to non-appearance of the counsel engaged by the petitioner, the application under section 34 of the Arbitration and Conciliation Act, 1996 was dismissed in default.
7. Thereafter the respondent/ HUDA sent a notice dated 20.10.2005 and demanded a sum of Rs.2,61,980 as arrears of Extension Fee including surcharge etc., for permitting construction on the plot up to 31.12.2005. The petitioner sought clarifications on the demanded sum of Rs.2,61,980/-.
8. Alleging deficiency on the part of the respondent/ HUDA, the petitioner approached the District Forum, Karnal through a fresh Consumer Complaint no. 624 of 2005 for relief against damages suffered over 9 years. In the meantime, the respondent/ HUDA notified a policy that plot allottees of HUDA in whose case 15 years had expired/ were expiring on 31.12.2006 and who had not undertaken construction and obtained the completion/ occupation certificate from HUDA, required to get their Building Plans approved before 31.12.2006. Allottees were eligible for a one time extension till 31.12.2007 only on payment of the prescribed extension fee.
9. An interim application was moved by the petitioner before the District Forum, Karnal on 07.12.2006 stating that the petitioner was ready to deposit the entire arrears being demanded as extension fee upto 31.12.2006 subject to the decision of the complaint by the District Forum and sought directions to the respondent/ HUDA to sanction the building plan. The petitioner deposited the entire amount of arrears calculated by HUDA upto 31.12.2006 on 30.12.2006. However, the building plans were not sanctioned and delivered to the petitioner till 31.12.2006 by the respondent/ HUDA.
10. The District Forum after hearing the parties vide its order dated 16.07.2008 disposed the complaint directing as under:
OP is directed to refund the amount of extension fee charged from the complainant from 17.02.1993 till the passing of award dated 09.07.2002 by the arbitrator;
The OP has admitted that it had already sanctioned the site plan in respect of the plot in question so OP is directed to hand over the sanctioned site plan to the complainant without charging any penalty from him and the period during which the complainant could not raise construction over the plot due to inaction, delay and latches on the part of OP shall be treated as zero period to enable the complainant to raise construction within the extended time;
OP shall compensate the complainant for the escalation in the construction cost as per the Haryana PDW Schedule of rates for building/ market rates for the aforesaid period;
OP shall also execute the conveyance deed in respect of the plot in question in favour of the complainant by giving adjustment of the amount deposited by the complainant on account of extension fee from the year 1993 to 2002 towards the outstanding amount due towards the plot as per rules and regulations;
OP shall also pay Rs.5000/- to the complainant for causing delay and unnecessary mental agony and harassment to him; and The order shall be complied with within a period of 30 days of the receipt of copy of this order.
11. Aggrieved by the order of the District Forum, the respondent/ HUDA approached the State Commission by way of First Appeal, being no. 1719 of 2008. The State Commission vide its order dated 15.02.2012 held as under:
"Complainant preferred a complaint bearing complaint no. 531 of 2006 titled 'Ghansham Dass Gupta vs HUDA before the District Forum in which District Forum, on plea being raised by the opposite parties, pursuance to agreement between the parties, referred the dispute to the arbitration. Arbitrator entered reference and gave his award on 09.07.2002. Complainant filed objections against the said award, which were dismissed by learned Additional District Judge, Karnal vide order dated 09.07.2022 and thereafter complainant came with the present complaint. Certainly, the matter stood resolved by the arbitrator to whom the case referred by the District Forum, in view of the arbitration clause subsisting, in terms of the agreement executed between the parties. Merely because the award of arbitrator was not favourable to the complainant, more particularly when the objections filed against the said award were dismissed by the District Judge, certainly the decision had attained finality. Filing of complaint thereafter was an act of trying to set aside the judgment of District Judge by way of consumer complaint, an act unknown to the hierarchy to judicial system. Still complaint being filed and allowed more particularly when the decision on earlier complaint has already been become final, was an act trying to overreach the judicial system.
There is another aspect that in the meanwhile complainant had also filed a civil suit in the court of Shri Devender Singh, Civil Judge, Jr Division, Karnal, which was dismissed vide judgment and decree dted 16.05.2005 Civil Appeal bearing CA no. 45 of 2005 filed against the said judgement and decree was also dismissed by the court of Shri Darshan Singh, Additional District Judge, Karnal vide judgment and decree dated 24.01.2006. Thus, we feel that learned District Forum committed error while allowing the complaint. Therefore, order cannot sustain and is set aside. The appeal is allowed complaint stands dismissed."
12. Hence, the present revision petition.
13. I have heard the petitioner who appeared in person. None appeared on behalf of the respondent on 14.02.2023 despite giving last opportunity on 23.11.2022. Hence, he was proceeded ex parte. I have given thoughtful consideration of the material on record.
14. The petitioner's is that as per its own regulations, HUDA could not have handed over possession of the plot when land development was incomplete and the site was not habitable due to unhygienic conditions. For this reason he claims that he should have been granted an extension to comply with the regulations of HUDA of undertaking construction within the prescribed period of time. During the pendency of the Consumer Complaint before the District Forum he also deposited the requisite extension fee with the District Forum. Although the District Forum ordered in his favour, the State Commission, relying upon the award of the Arbitrator which was confirmed by the Additional District Judge, Karnal as also by the Civil Judge, Jr Division, Karnal in Civil Appeal 45 of 2005 filed by the petitioner, has set aside the order of the District Forum and allowed the appeal.
15. It is manifest that the petitioner has not been averse to the payment of the requisite extension fees but has taken the view that the plot allotted should be habitable in a hygienic environment. As a consumer, he cannot be faulted for such an expectation. As the bonafide Government agency responsible for ensuring the development of the area, respondent/HUDA should have ensured the same. For the delay in the arbitration by HUDA the petitioner cannot be held responsible. Deficiency in service by the respondent/ HUDA is therefore writ large in the inordinate delay caused in conveying building plan sanction.
16. The State Commission's order is essentially based upon the orders of the Civil Courts in favour of the respondent/ HUDA. It has not addressed the issue of deficiency in service under the Act. The State Commission being the first Court of Appel is the final Court of fact. A revision against its order lies under section 21 (b) of the Act before this Commission. The State Commission is required to consider the contentions of the respective parties and arrive at a reasoned order setting out reasons. In the instant case, the impugned order has not brought out the reasons and is, therefore, liable to be set aside.
17. In view of the foregoing discussions, the revision petition is found to have merits and is accordingly allowed. The impugned order of the State Commission is set aside with no order as to costs.
...................... SUBHASH CHANDRA PRESIDING MEMBER