National Consumer Disputes Redressal
Sumit Chaudhary vs Haryana Urban Development Authority on 13 September, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION
NEW DELHI
REVISION PETITION NO. 206 OF 2011
(From the order
dated14.10.2010 in Appeal No. 555 of
2006
of the
State Consumer Disputes Redressal, Haryana, Panchkula)
Sumit Chaudhary
Son of Sh. Suresh Chaudhary
Resident of H. No. 1463,
Sector-16,
Faridabad (Haryana)
Through GPA Holder
Smt. Geeta Mohan
W/o Shri. Ravi Mohan
R/o 1289, Sector-8,
Faridabad ( Haryana)
Petitioner.
Versus
1. Haryana
Urban Development Authority
Through its
Chief
Administrator,
Sector-6,
Panchkula (Haryana)
Through the
Estate Officer
2. The
Administrator,
HUDA,
Sector-12,
Faridabad
Through
Estate officer,
HUDA, Faridabad
(H aryana)
3. The
Estate Officer,
HUDA,
Sector-12
Faridabad (
Haryana) ..Respondents.
BEFORE:
HONBLE MR.JUSTICE V.B. GUPTA, PRESIDING
MEMBER
HONBLE MR.SURESH CHANDRA, MEMBER
For the
Petitioner(s) : Mr.
Madhurendra Kumar, Advocate.
Dated
: 13th September, 2011.
ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER By way of this revision there is challenge to order dated 14.10.2010, passed by State Consumer Disputes Redressal Commission, Panchkula, Haryana (for short State Commission). Vide impugned order, State Commission accepted the appeal of respondents, challenging order dated 16.01.2006, passed by District Consumer Disputes Redressal Forum, Faridabad (for short as District Forum).
2. Brief facts are that residential plot no. 1558 measuring 209 sq. meters in Sector-2, Palwal, was allotted to the petitioner by respondents, vide allotment letter dated 23.02.1998. Tentative price of the said plot was Rs. 3,23,741/- Petitioner deposited Rs. 1,40,944/-, being 25% of the total cost and installments with respondents. As per petitioner, respondents failed to develop the area and no basic facilities were provided. Petitioner approached the respondents and requested them to develop the area but respondents failed to do so. Thereafter, on 29.09.2003, petitioner submitted an application to the Estate Officer, HUDA, Faridabad seeking cancellation/surrender of plot and refund of his entire deposit. Considering the request of petitioner, Estate officer, HUDA cancelled the allotment of the above said plot and refunded an amount of Rs. 82,150/- to the petitioner, after deducting 10% of the total consideration and the same was accepted by the petitioner, without any protest.
3. It is alleged by petitioner that he has surrendered the plot under compelling circumstances as after depositing the tentative price of the plot in question, respondents failed to develop the area and also failed to deliver the physical possession of the plot in question due to which he was not in a position to raise construction over the plot. It is further alleged by the petitioner that respondents wrongly deducted 10% of the consideration amount since petitioner did not voluntarily surrendered the plot, rather it was a surrender of plot under compelling circumstances due to non-development of the area. Thus, alleging deficiency of service and unfair trade practice, petitioner invoked the jurisdiction of the District Forum and sought the following reliefs:-
a) To hand over the physical possession of the plot No. 902, Sector-2, Palwal or to allot an alternate plot of increased size or decreased size in the same sector.
b) To pay interest @ 18% per annum to the complainant on the amount deposited (deposited amount and deducted amount) from the date of deposit till actual refund.
c) To not charge the interest on installments, on delayed payment and on enhancement price and to not charge extension fee,
d) To pay the complainant forthwith damages of Rs. 50,000/- on account of deficient service, mental tension agony and harassment caused by the respondents due to their above deliberate deficient services and unfair trade practice towards the complainant consumer.
e) To pay a sum of Rs. 11,000/- to the complainant as costs of the present complaint.
4. Respondents in its written statement denied version of the petitioner and pleaded that possession of plot was offered to the petitioner, vide letter dated 09.12.2002. The possession of plot was offered to the petitioner after completing all the development works in the area such like road, sewerage, drinking water and electricity etc. Petitioner failed to make the payment of installments and in this regard show cause notice dated 20.04.2002 was issued to the petitioner.
5. It is further alleged that enhanced compensation was demanded by the petitioner, vide letters dated 3.11.2000 and 4.4.2002. Respondents justified the amount refunded to the complainant after deducting 10% of the total consideration, in view of application submitted by petitioner on 29.09.2003. Respondents further resisted the claim of petitioner on the ground that once petitioner had surrendered the plot of his free will and accepted the refund without any protest, he is not a consumer of the respondents. Denying any kind of deficiency in service, it was prayed that petition be dismissed.
6. District Forum, allowed the complaint and passed the following directions;
(i) The respondents are ordered to re-allot the same plot on the similar price or any other plot in some other developed sector on the similar price in lieu of the originally allotted plot.
ii) It is further ordered if the area of the alternate plot is found excess then difference of amount be also charged on the basic floating rate of the sector.
iii) The respondents are further ordered to adjust the deducted amount alongwith interest @ 12% p.a. payable w.e.f. its deduction till its adjustment, towards the price of the plot now to be allotted as per aforesaid order.
iv) The respondents are also ordered not charge any kind of interest, penal interest, compound interest, penalty and extension fee up till the period of delivery of the physical possession of the plot now ordered to be allotted.
v) The respondents are also ordered to pay interest on the deposited amount of the complainant w.e.f. its deposit till refund.
vi) The respondents are also ordered to pay Rs. 25,000/- on account of mental tension, un-necessary harassment caused to the complainant at the hands of the respondents.
vii) The respondents are also ordered to pay Rs. 5,000/- as litigation charges.
The complainant himself or through his G.P.A. can get comply with the order of the Forum. The respondents are ordered to comply with the order of the Forum within 30 days after receiving the copy of the present order/.
7. It is contended by learned counsel for the petitioner that State Commission erroneously dismissed the complaint of the petitioner. Plot in question which was allotted to the petitioner was not developed by the respondents even after the expiry of a long period of more than five years from the date of allotment. Respondents were under legal obligation to develop the plot within a period of two years as per the terms of allotment. Thus, respondents violated the terms and conditions of the letter of allotment by not developing the area around the plot in question for a long period of time and as such had committed deficiency in service to the petitioner.
8 It is further contended that petitioner had sought the refund of the entire deposited amount under compelling circumstances, which had been artificially created solely by the respondents. Apart from the non development of the area around the plot in question, respondents also started demanding the enhanced price of the plot from the petitioner with interest and penalty. Petitioner had limited funds at his disposal and payment of the enhanced price was simply unbearable for the petitioner. Under the said compelling circumstances, petitioner surrendered the plot and sought refund of the entire deposited amount.
9. It is further contended that respondents illegally deducted an amount of 10% of the total tentative price of the plot from the deposited amount of the petitioner. Since, physical possession of the plot was never offered to the petitioner by respondents therefore, respondents were not entitled to deduct any amount out of the deposited amount.
10. In support, learned counsel for petitioner relied upon a decision of Apex Court SLP (C) No. 5140 of 2009 titled as Haryana Urban Development Authority Vs. Irish Print Service Pvt. Ltd.
11. As per record, petitioner surrendered the plot on his own and without any force or pressure. The text of the surrender letter is reproduced as under;
August 25,2003 To The Estate Officer, HUDA Sector-12, Faridabad.
Sub: Surrender plot No. 1558, Sector-12,Palwal
----------------------------------------------------------
Dear Sir, I Sumit Choudhary, S/o Sh. Suresh Choudhary, R/o 1463, Sector-16, Faridabad. I am the allottee of plot No. 1558, Sector-2, Palwal, Memo No. 1255 allotted on dated 23.02.1998. I want to surrender my plot. I am very grateful to do this job as early as possible and refund my amount as earliest.
Thanking you, Yours faithfully, Sd/-
(Sumit Choudhary) Plot No. 1463 Sector-16 Faridabad.
12. State Commission vide impugned order observed;
Admittedly the complainant has surrendered the plot of his free will by submitted an application dated 29.09.2003 and accepted the refunded amount as per HUDA policy, therefore, he is not a Consumer of the opposite parties. A similar controversy also came up for consideration before the Division Bench of the Honble Punjab and Haryana High Court in the case Haryana Urban Development Authority versus M/s Zuari Industries, 2009 (3) R.C.R. (Civil) 104(DB), wherein it has been held that:-
Plot allotted to petitioners by HUDA-petitioner surrendering the plot and taking refundThereafter petitioner has no right to get return of surrendered plot.
The State Commission has also followed the observation rendered by the Division Bench of the Honble High Court and observed in case titled as HUDA Versus Pashu Lal Nagpal, 2010 (1) CPJ, 277 that:-
Once the complainant has surrendered the plot and accepted the price of the plot, he cannot seek the re-allotment.
The present case is fully covered by our earlier decision in Pashu Lals (supra).
The plea of the complainant that he has surrendered the plot under compelling circumstances is not established. It is a case wherein the complainant himself had submitted an application for surrendering of the plot seeking refund of the deposited amount. Once the complainant has voluntarily surrendered the plot on his free will & without coercion exercised by any quarter nor any fraud has been practiced by the appellants-opposite parties, the question of reclaiming the same does not arise. In other words the complainant does not come within the definition of Consumer. Once this fact it established that the complainant does not come within the definition of Consumer, the Consumer Foras have no jurisdiction to grant any kind of relief and the complaint could not be maintained before the District Forum. If the complainant had any grievance with respect to the non-development of the area, delivery of possession or enhancement of compensation with respect to the plot in question, he could have approached the competent authorities prior to the surrender of the plot.
Under these circumstances, we feel that the District Forum has ignored the factual position on record and committed great error in accepting the complaint, hence, the impugned order is not sustainable in the eyes of law.
Accordingly, this appeal is accepted, the impugned order is set aside and the complaint is dismissed leaving the parties to bearing their own costs. Before parting with the order we must express that in all the cases of surrender of plot, the President and Members of the District Forum, Faridabad has been indulged in malpractices by passing the order of restoration of surrendered plot to the complainants which were not maintainable. We have already passed stricture against the President as well as Members of the District Forum in several other cases passed by this Commission. We do not want to repeat it in this appeal as the term of the President and the Members of the District Forum Faridabad have already expired
13. This Commission in Budhi Ram Vs. Haryana Urban Development Authority & Ors, II (2011) CPJ 165 (NC) has held that where surrender of plot was made by petitioner of his own free will and has received refund without any protest, petitioner ceases to be a consumer. This Commission observed Admittedly, the complainant had surrendered the plot due to his financial constraints as would be obvious from his own letter dated 14.2.2003, which reads as under:
To The Estate Officer, HUDA, Faridabad.
Sub: Request for surrendering/ cancellation of plot No. 2299, Sector-2, Faridabad.
Sir, Due to my bad financial position, I shall not be able to carry on with the above mentioned plot. I, therefore, request you that the allotment of the above mentioned plot may be surrendered and the amount of money deposited by me may please be refunded at the earliest as I surrender the above plot.
All the document i.e. allotment letter and payment receipts etc. are enclosed herewith in original for your reference.
Thanking you, Yours faithfully, Sd/-
( Budhi Ram) H. No. 32, Aliganj, Kotla, Mubarakpur, New Delhi.
8.
As is obvious from this letter, the petitioner has neither referred to any under development of the area nor has raised any protest with reference to demand of enhanced price. On the contrary, he has himself enclosed the original allotment letter and payment receipts, obviously to facilitate early refund of his deposit. Thus, his request is a letter of surrender simplicitor and the reason being bad financial position. In the absence of any representation to the appropriate authority with regard to development of the area in question, it has been correctly held by the State Commission that the surrender of the plot was made by the petitioner of his own free will.
9. Once we so hold, the next point that requires consideration is as to whether the petitioner was entitled to file any complaint before the District Consumer Forum. Obviously, when he had received the refund without any protest of his deposit after deduction of 10% of the consideration, as per rules and without any protest on 29.4.2003, he ceases to be a consumer of the respondent-HUDA thereafter. Even otherwise, the complaint was filed on 13.12.2005 while the refund had been received by him on29.4.2003, after a period of more than two years, which is clearly beyond the limitation of two years provided under Section24-A of the Con summer Protection Act, 1986. The District Consumer Forum, therefore, has clearly erred in entertaining the complaint, which should have been disallowed at the threshold.
10. We also observed from the order passed by the District Consumer Forum that it has not only directed the respondent-HUDA to reallot the same plot i.e. i.e. plot No. 2229, Sector-2, Urban Estate Faridabad on the similar price to the complainant, if the plot in question is lying vacant and unallotted so far. In case the aforesaid plot is not found vacant and unallotted, then also some other plot to the complainant on the similar price to that of originally allotted plot, as an alternate plot. The District Consumer Forum has further gone on to direct the respondent-HUDA to pay interest to the complainant(petitioner in this case) on his deposit @ 12% per annum w.e.f. its deposit till its realization. An escalation charge of Rs. 50,000/- and another sum of Rs. 50,000/- for mental agony besides other reliefs too have been ordered. The reliefs granted were not only not warranted but perhaps could not even have been thought of by a judicious mind for the following reasons:
(i) The District Forum has failed to consider the plea of the respondent-HUDA that the complaint was barred by limitation since the petitioner had received the refund of deposited amount on 29th of April, 2003 and filed his complaint after more than two years on 13th December, 2005. There is no discussions on this point in the order of the District Forum.
(ii) While directing the respondent-HUDA to re-allot the same plot No. 2299, Sector2, Urban Estate, Faridabad even after the petitioner had accepted the refund, the District Forum has simultaneously awarded a compensation of Rs. 50,000/- totally ignoring the fact that a huge benefit of appreciation of the value of the plot during the intervening period would accrue. This amounts to unduly enriching the petitioner-complainant and runs counter to the principle laid down by the Honble Supreme Court in the case of Bangalore Development Authority v. Syndicate Bank, I (2008) SLT 761=II (2007) CPJ 17(SC)=(2007) 6 SCC 711.
(iii) The District Forum has further ordered the respondent-HUDA to pay interest to the complainant on his deposit @ 12% per annum with effect from his deposit till its realization.
Clearly this amounts to be a bonanza for the complainant since he has already accepted the deposited amount after voluntarily surrendering the allotment. The Honble Apex Court in the case of Banglore Development Authority (supra), have clearly held that even where there is delay in the delivery of the allotted plot for justifiable reasons, ordinarily the allottee will not be entitled to any interest or compensation. In the present case, the conditions stipulated that possession was to be handed over only after the development of the area and until then no interest was to be charged on the installments. This did not entitle the complainant not to pay installments. The Honble Apex Court in the case of Municipal Corporation, Chandigarh & Ors. v. M/s Shantikunj Investment Pvt. Ltd., II (2006) SLT 592=(2006) 4 SCC 109, has held that provision of all the facilities would not be a condition precedent for an allottee for payment of installments. The District Forum has clearly committed an illegality in overlooking the law laid down by the Honble Apex Court.
(iv) The District Forum has also miserably failed to take note of the fact that the petitioner-complainant is a transfree and was fully aware of the status of the plot at the time of repurchase from the original allottee. The case of Haryana Urban Development Authority v. Raje Ram, I (2209) CPJ 56 (SC), has been rightly relied upon by the State Commission. Therein it has been held by the Honble Apex Court that a party gets the benefit of escalation in price of land and interest should not be awarded on amounts paid by the allottees due to delay in allotment. In the present case, the District Forum has failed to notice that the petitioner being a re-allottee has defaulted in the payment of the installments and the enhanced cost and, therefore, there was no deficiency on part of the respondent-HUDA and yet the District Forum has awarded not only interest but compensation.
(v) In the case of HUDA v.
M/s Zuari Industries (supra), the allottee of an industrial plot had not paid the full amount but had taken possession of the plot but had not complied with the condition of raising the construction within a period of five years. He had surrendered the plot and his request for re-allotment was subsequently turned down by the HUDA. He had later approached the Honble Punjab and Haryana High Court for its re-allotment. A Single Bench of the High Court had allowed his petition and ordered HUDA to restore the plot. In the appeal that was filed by the HUDA, the Division Bench of the Honble High Court set aside the order passed by the learned Single Bench and has clearly held that an allottee, surrendering the plot and taking refund, has no right to get return of the surrendered plot. In the present case, what to talk of taking possession and surrender thereafter but petitioner-complainant has defaulted, according to his own admission in payment of the installments and cost of the enhanced price and had surrendered the plot which was a conscious decision on his part. The plea of compelling circumstances was only an afterthought arising perhaps out of greed as the price of the plot has appreciated manifold.
10. Thus, in our view, the order passed by the District Forum was totally perverse. The State Commission has been very mild in its opinion that the District Consumer Forum has committed a great error . The order passed by the State Commission is a very well reasoned, objective, fair, just and legal order and needs absolutely no interference in revision.
14. In the present case, petitioner himself voluntarily surrendered the plot in question vide letter dated 25.8.2003, text of which has been reproduced above. It was an unconditional surrender on the part of petitioner. In the surrender letter, petitioner nowhere stated that respondents have failed to develop the plot in question or have also failed to provide the basic amenities/facilities, till the date of surrender. Moreover, petitioner nowhere mentioned in his surrender letter that due to compelling circumstances, he is surrendering the plot in question. Whatever has been pleaded by the petitioner in the complaint in question, is an after thought.
15. Since, petitioner had already taken the refund, as such on the date of institution of the complaint before District Forum on 4.7.2005, he was not a consumer as per Section 2(1) (d) of the Consumer Protection Act, 1986(for short as Act ).
16. Decision of M/s Irish Print Service Pvt. Ltd.(supra) is not at all applicable to the facts of the present case. Complainant in that case had paid the total amount to HUDA against the plot. After receiving the entire cost of the plot, HUDA failed to develop the land and when complainant approached HUDA, they simply told the complainant that it will take time. Thereafter, HUDA wrote letter to the complainant in May, 2000 asking him to take the possession of the plot. When complainant approached HUDA for physical possession of the plot, HUDA verbally told him that development work is not complete and there are some encroachments on the plot and it would be handed over after removal of those encroachments. Later on, HUDA failed to give the physical possession of the plot. It was only, thereafter, complainant sought refund of his money, due to non development of the works in the area and due to the failure on the part of HUDA to deliver possession of the plot. HUDA considered the request of the complainant to allot him alternative plot in the same sector in the developed pocket.
17. It was under
these circumstances, the Apex Court confirmed the order of the State Commission for allotment of an alternative plot to the complainant in that case.
18. Since, there has been an unconditional surrender of plot by petitioner in the present case, ratio of M/s Irish Print Services Pvt. Ltd. is not applicable to the facts of the present case.
19. Present revision petition has been filed under section 21(b) of the Act. It is well settled that powers of this Commission as a revisional Court are very limited and have to be exercised only when there is some prima-facie jurisdictional error in the impugned order.
20. Recently, Honble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.
21. Since, petitioner was not a consumer under the Act at the time of filing of the complaint, State Commission rightly dismissed the appeal of the petitioner. We concur with the observations made by the State Commission that District Forum ignored the factual position on record and committed a great error in accepting the complaint.
22. Present petition is nothing but gross abuse of the process of law and has been filed just to waste the time of this Commission. It is well settled that frivolous litigation clogs the wheels of justice, making it difficult for courts to provide easy and speedy justice to the genuine litigants. A strong message is required to be sent to those litigant who are in the habit of challenging the order of the fora below even it the same is based on sound reasoning. No one should be allowed to indulge in false and frivolous litigation. Action of the petitioner has resulted in wasting the time of fora below as well as of this Commission. Under these circumstances, present revision petition is liable to be dismissed with punitive costs.
23. Since, the order passed by State Commission is well reasoned, objective, fair, just and legal it needs absolutely no interference in this revision.
24. Accordingly, we dismiss this revision petition with costs of Rs. 25,000/- (Rupees Twenty Five Thousand only)
25. Petitioner is directed to deposit the costs of Rs. 25,000/-( Rupees Twenty Five thousand only) by way of a cross cheque in the name of Consumer Legal Aid Account, within four weeks from today.
26. In case, costs are not deposited within prescribed period, petitioner shall be liable to pay interest @ 9% p.a. till its realization.
27. List the mater on 21.10.2011, for compliance.
(V.B. GUPTA) PRESIDING MEMBER ...
(SURESH CHANDRA) MEMBER SSB/