State Consumer Disputes Redressal Commission
Haryana Urban Development Authority ... vs Smt. Sudesh Bedi Wife Of Sh. Ashwani ... on 28 June, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.1201 of 2006 Date of Institution: 25.01.2005 Date of Decision: 28.06.2012 Haryana Urban Development Authority through its Estate Officer/Administrator, Sector-12, Faridabad. Appellant (OP) Versus Smt. Sudesh Bedi wife of Sh. Ashwani Kumar Bedi through G.P.A. Pawan Kumar son of Sh. Nand Lal, Resident of House No.511, Sector-19, Faridabad. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: None for appellant. Respondent exparte. O R D E R
Justice R.S. Madan, President:
Case called several times since morning but none put in appearance on behalf of the parties though the case is fixed for arguments. Respondent is already exparte vide order dated 18.04.2012. It is already 12:55 P.M. This appeal relates to the year 2006. As per the provision of the Consumer Protection Act, 1986, the complaints as well as the appeals are to be decided within the prescribed period. Thus, the non-cooperative attitude of the parties/their counsel is against the spirit of the Consumer Protection Act because of unnecessary delay in deciding this appeal. Under these circumstances we do not think it appropriate to adjourn this appeal indefinitely and therefore we proceed to decide the same after going through the case file.
This appeal has been preferred against the order dated 10.11.2004 passed by District Consumer Forum, Faridabad in complaint No.647/2004.
The brief facts of the present case not disputed between the parties are that complainant Smt. Sudesh Bedi was allotted plot No.297 located in Sector-2, Faridabad vide allotment letter bearing Memo No.A-2098/1482 dated 18.11.1998. The possession of the plot was offered to the complainant vide letter dated 28.11.2002 but the complainant did not come forward to take the possession of the plot. Complainant moved an application dated 20.05.2004 whereby she surrendered the plot and requested for refund of the deposited amount in respect of the plot. Thereafter, before the amount could be refunded, the complainant submitted another application dated 24.08.2004 requesting the opposite party to retain the plot and the said application was pending before the authorities of HUDA.
In the complaint filed before the District Consumer Forum, the grievance of the complainant was that she had surrendered the plot under the compelling circumstances because the opposite party failed to offer the possession of the plot after completing all the development works as per the terms and conditions of the allotment letter. However, later on the complainant noticed some development in the area where the plot is situated and therefore, she wanted to withdraw her surrender application by retaining the plot but her request was kept pending without delivering the possession of the plot. Forced by these circumstances, the complainant invoked the jurisdiction of the District Consumer Forum.
Upon notice, the opposite party appeared and contested the complaint by filing written statement wherein it was stated that the possession was offered to the complainant on 28.11.2002 but the complainant did not come forward to take the possession and also did not deposit the amount due to the tune of Rs.10,18,219/- and for that reason the possession of the plot was not delivered to the complainant. It was further stated that as and when the complainant would deposit the balance amount, the possession of the plot will be delivered. Thus, denying any kind of deficiency in service the opposite party prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence brought on the record, District Consumer Forum accepted the complaint and issued following directions:-
1. The respondents are ordered not to consider the application of the complainant which she has filed with the respondent for the surrendering of the plot in question.
2. The respondents are further ordered to allot an alternate plot to the complainant in lieu of the originally allotted plot in a sector, which has been carved and developed before the sector, where the plot was originally allotted, preferably in Sector-31, 45 & 46 on the similar price on which the plot was originally allotted.
3. The respondents are further ordered to pay interest @ 12% p.a. on the total deposited amount of plot No.297 Sector-2, Faridabad w.e.f. its deposit till the allotment and delivery of physical possession of an alternative plot.
4. The respondents are also ordered to pay compensation to the tune of Rs.50,000/- for causing acute mental tension, unnecessary harassment and escalation of price of construction material. The respondents are also ordered to pay Rs.2000/- as litigation expenses to the complainant.
It is further ordered that the complainant can get compliance of the order herself or through her general Power of Attorney. The respondents are further ordered to comply with the order of the Forum within 30 days after the receipt of the copy of the present order. Complaint has been disposed of accordingly.
Aggrieved against the order of the District Consumer Forum, the opposite parties have come up in appeal.
Since none has appeared on behalf of the parties, we ourselves have perused the case file.
There is a delay of 516 days in filing of the present appeal the condonation of which has been sought by the appellant by moving an application alongwith this appeal.
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 by ignoring the fact that the complaint has been filed through G.P.A. which is not maintainable in view of the judgment rendered by Honble Apex Court. Hence, we think it a fit case to condone the delay. Hence, the delay of 516 days in filing of the present appeal is condoned.
While dealing with this appeal on merits, at the very outset the question for consideration before us is whether the complaint through G.P.A. is maintainable or not? The answer to this question is in negative in view of the judgment rendered by Honble Supreme Court in Special Leave Petition (C) No.13917 of 2009 titled as Suraj Lamp & Industries Pvt. Ltd. Versus State of Haryana and another decided on 11.10.2011. This Commission in Appeal No.229 of 2006 decided on 22.02.2012, Haryana Urban Development Authority vs. Bhupendra Nath Ranjen decided the similar situated controversy while relying upon the judgment of Honble Supreme Court in the following manner:-
The other aspect of the case is that the complainant has filed the amended complaint through General Power of Attorney Rameshwar Bansal son of S.R. Bansal. G.P.A. has no interest and could not be treated as a Consumer and, therefore, complaint on his behalf is not maintainable. More so, no G.P.A. has been tendered on the record. It has not been disclosed by the complainant as to what was the relationship between the complainant and G.P.A. Ramehswar Bansal. It appears that Rameshwar Bansal who has acted on behalf of allottee, is a property dealer and even in that capacity the General Attorney is trying to acquire rights by avoiding stamp duty. Complainant Bhupendra Nath Ranjen who has surrendered the plot and filed complaint seeking refund of the surrender value but lateron amended the complaint through G.P.A. As to what is the relationship of the complainant with the G.P.A. has not been explained. The lust of securing the plot by G.P.A. who is a property dealer cannot be allowed to sustain. It has been seen in number of cases that the property dealers keep an eye on the disputed plots and in connivance with the staff of HUDA who also at the back and call of the property dealers manipulate the things in their favour, which practice is prevalent in this part of the Country which requires to be curbed. The lust for earning more profits after allotting the plot by HUDA, is increasing day by day, without actual profit reaching to the original allottee. The purpose of allotting the plots in urban estates, is to provide better facilities with respect to residential as well as commercial plots and the same should not be converted into a profits earning machine. We, therefore, are of the view that once the plot has been surrendered by the original allottee, who initially wanted to take refund the surrender value of the deposited amount but later on fell in lust to get more money from the G.P.A. who is a property dealer, cannot be allowed to retain the plot in such a flimsy manner. To curb such a tendency, Honble Apex Court has taken a serious view in this regard. Reference is made to the observation made by Honble Supreme Court in Special Leave Petition (C ) No.13917 of 2009 titled as Suraj Lamp & Industries Pvt. Ltd. Versus State of Haryana and another decided on 11.10.2011 dealing with consequence of Power of Attorney holder acquiring rights, held as under:-
III-Effects of SA/GPA/WILL transactions
3. The earlier order dated 15.5.2009, noted the ill-effects of such SA/GPA/WILL transactions (that is generation of black money, growth of land mafia and criminalization of civil disputes) as under:
& quot; Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons:
(a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.
(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.
(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin.
Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption.
This kind of transactions has disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such `power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of musclemen to `sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions & quot;
It also makes title verification and certification of title, which is an integral part of orderly conduct of transactions relating to immovable property, difficult, if not impossible, giving nightmares to bonafide purchasers wanting to own a property with an assurance of good and marketable title.
The facts of the instant case are fully attracted to Suraj Lamp & Industries Pvt. Ltd. versus State of Haryana and another case (Supra). Thus, the complaint filed by the complainant through G.P.A. is not maintainable. Hence, the impugned order passed by District Consumer Forum cannot be allowed to sustain.
This case is fully covered by our earlier decision rendered in Bhupendra Nath Ranjens case (Supra) wherein the reference was made to the judgment of the Honble Supreme Court Suraj Lamp & Industries Pvt. Ltd. (Supra). It has been that the complaint through G.P.A. is not maintainable which is against the statutory provision of the Consumer Protection Act. It reflects that the officials of HUDA in connivance with G.P.A. who is a Property Dealer, are bent upon to sell the property of HUDA by concealment of facts. In other words, the G.P.A. is a property dealer who by securing the plot wants to sell the same to earn more profits and this clever device of the complainant/G.P.A. cannot be allowed to sustain.
As a sequel to our aforesaid discussions, this appeal is accepted, the 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 appellant 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 28.06.2012 President B.M. Bedi Judicial Member