National Consumer Disputes Redressal
Iqbal Singh vs Haryana Urban Development Authority, on 15 May, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 761 OF 2011 (From the order dated 10.11.2010 Appeal No.543/2007 of the State Commission, Haryana, Panchkula) Iqbal Singh S/o Talay Ram, Resident of House No.626P, HUDA Colony, Sector-20, Part-II, Sirsa, Haryana ....Petitioner Versus 1. Haryana Urban Development Authority, Panchkula, through its Chief Administrator 2. The Estate Officer Haryana Urban Development Authority Sirsa, (Haryana) .Respondents BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. Pardeep Kumar, Advocate Pronounced on : 15th May, 2013 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER In this revision petition filed by the Petitioner/complainant, there is challenge to order dated 10.11.2010, passed by State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, State Commission).
2. Brief facts are that respondents/O.Ps have allotted a plot bearing No.626-P Sector-20 Part-II measuring 14 marlas vide allotment No.126 dated 7.1.2003. The possession of the plot was delivered to the petitioner vide letter dated 28.4.2003. As per the version of the petitioner, there is a sewerage line passing in front of his plot at a distance of one feet and due to existence of said sewerage line and manhole, he could not construct his house properly as he could not utilize the entire area of the plot. Further, there was foul smell due to the sewerage line as well as manhole. Therefore, petitioner approached respondents and requested them to remove the sewerage line and manhole but in vain. Thus, alleging it a case of deficiency of service and unfair trade practice, petitioner invoked jurisdiction of the District Consumer Disputes Redressal Forum, Sirsa (for short, District Forum).
3. Respondents in their written statement took the plea that complaint was not maintainable, having been filed beyond the period of limitation. They further took the plea that the sewerage line and the manhole was not part of the plot in question and same are within the area of street-road. It is denied that the due to existence of sewerage line and manhole, petitioner could not construct his house properly. In fact, there is no leakage in the sewerage line/pipe. Denying any kind of deficiency in service, it prayed that complaint be dismissed.
4. District Forum, vide order dated 19.1.2007, allowed the complaint and passed following directions;
Keeping in view the facts and circumstances of the case we are of the considered opinion that the respondent-HUDA gross negligence and deficient in service towards the complainant. Hence, we held the respondent guilty under Section 2(1)(g) and 1(1)(o) of the Consumer Protection Act, 1986 (in short the Act). We find that the OPs constructed the manhole in front of the gate and inside the plot of the complainant and due to this reason the complainant could not construct his house properly and he could not utilize the entire area of the plot due to the existence of sewerage line as well as moisture, the front portion of the house including the front portion of the Varandah, open space, paints and marbel damaged badly and have left its space due to the moisture. Hence, we direct the respondent-HUDA to remove the manhole from the front portion of the house of the complainant i.e. from the front gate of the complainant. We further direct the respondents to pay a sum of Rs.one lac to the complainant in lumpsum on account of damages caused to the house of the complainant. We further direct the respondents to pay the aforesaid amount and also remove the manhole and sewerage line within a period of one month from the date of the present order failing which the complainant shall be entitled to compensation of Rs.5,000/- on account of physical and mental harassment, pain and agony with costs of proceedings to the tune of Rs.2,500/-. We order accordingly.
5. Being aggrieved, respondents filed appeal before the State Commission. None had put in appearance on behalf of the petitioner before the State Commission at the time of arguments. After hearing the learned counsel for the respondent, State Commission allowed the appeal.
6. Being aggrieved by the impugned order, petitioner filed this revision and has also placed on record its written version.
7. It has been contended by learned counsel for the petitioner that act of the respondent is a continuous wrong and provide continuous cause of action and consequently there is no question of statutory limitation of two years. In support, petitioners counsel relied upon the following judgments;
(i) Transport Corporation of India Ltd. Vs. Veljan Hydrair Ltd.
((2007) 3 SCR 1082 and
(ii) Balakrishna Savlram Pujari Waghmare Vs. Shree Dhyaneshwar Mahajaj Sansthan 1959 Supp (2) SCR 476.
8. State Commission in its impugned order held;
At the very outset the question for consideration in this appeal is as to whether the complaint of the complainant is within limitation as prescribed under Section 24A of the Consumer Protection Act, 1986. Admittedly the complainant was allotted the plot in question vide allotment letter No.126 dated 7.1.2003 and possession of the same was delivered to him on 28.4.2003 whereas the complainant has filed the present complaint on 06.07.2005 i.e. beyond the prescribed period of two years as provided under Section 24-A of the Consumer Protection Act, 1986. It is well settled principle of law that no complaint can be entertained by the Consumer Forum if it is not filed within two years from the date of cause of action.
Reliance is placed on the case titled as Kandimalla Raghavaiah & Co. versus National Insurance Company Ltd. and another , 2009 CTJ 2009 (Supreme Court)(CP) wherein para No.12 of the said judgment it has been held by Hon'ble Apex Court;
12. Recently, in State Bank of India Vs. M/s. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) = JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held as under;
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.
The present case is fully covered by the case law cited supra.
Under the facts and circumstances of the case as well as the case law cited supra we are of the view that the District Forum has not considered the factual position on record and committed great error in allowing the complaint and as such the impugned order under challenge, is not sustainable in the eyes of law.
For the reasons recorded above, this appeal is accepted, the order is set aside and complaint is dismissed.
9. As per averments made in the complaint, possession of the plot in question was delivered to the petitioner on 28.4.2003.
It has been alleged in the complaint that during the course of construction of the house, it came to the light that the main sewerage line is in existence through the plot of the petitioner.
10. In the entire complaint, it is nowhere stated as to on which date cause of action arose. However, in para no.10 of the complaint it is stated that about three months back when petitioner started to reside in the newly constructed house the fact of damage to his house due to leakage in sewerage line came to his knowledge. Thus, as per petitioners own case, the existence of sewerage line which was going through the plot of the petitioner came to his knowledge during construction of the house.
11. The complaint was filed before the District Forum on 6.7.2005 which is admittedly beyond the prescribed period of two years as provided under Section 24A of the Act. Interestingly, in its written version, petitioner has put forward another story stating that he came to know about deficiency of service on the part of respondents only in the month of June, 2003. Thereafter, legal notice was sent and finally complaint was filed on 6.7.2005.
12. On 9.5.2012 at the time of admission hearing, counsel for petitioner undertook to file copies of relevant Building Regulation of HUDA which specify the parameter of laying underground main sewerage line as well as house connection therewith. Petitioner was directed to do the needful within eight weeks. Consequently, operation of impugned order was stayed. Thereafter, petitioner sought number of opportunities to file such guidelines but lastly on 4.12.2012, counsel for petitioner stated that there is no such rule dealing with sewerage line. This shows the conduct of the petitioner who after obtaining ex parte stay had been delaying the matter.
13. Since, complaint filed by the petitioner before the District Forum was barred by limitation, various judgments cited by learned counsel for the petitioner, are not applicable to the facts of the present case.
14. Thus, we hold that there is nothing on record to show that impugned order passed by State Commission is erroneous or there is any illegality in the same. Hence, the present revision petition being without any legal basis and is meritless stand dismissed.
15. No order as to cost.
..J (V.B. GUPTA) PRESIDING MEMBER ..
(REKHA GUPTA) MEMBER Sg.