State Consumer Disputes Redressal Commission
E.O. Bathinda Development Authority vs Kewal Krishan on 6 October, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1. Misc. Application No. 1406 of 2017
In/and
First Appeal No.490 of 2017
Date of institution: 28.06.2017
Date of decision : 06.10.2017
1. Estate Officer, Bathinda Development Authority/PUDA, BDA
Complex, Bhagu Road, Bathinda.
2. Chief Administrator, Bathinda Development Authority/PUDA,
BDA Complex, Bhagu Road, Bathinda.
.......Appellants-Opposite Parties
Versus
Kewal Krishan son of Sh. Sardari Lal, resident of Village Punjab
Mandal, Fazlika
.......Respondent /Complainant
2. Misc. Application No. 1409 of 2017
In/and
First Appeal No.491 of 2017
Date of institution: 28.06.2017
Date of decision : 06.10.2017
1. Estate Officer, Bathinda Development Authority/PUDA, BDA
Complex, Bhagu Road, Bathinda.
2. Chief Administrator, Bathinda Development Authority/PUDA,
BDA Complex, Bhagu Road, Bathinda.
.......Appellants-Opposite Parties
Versus
Surinder Kansal s/o Shri Om Parkash r/o Dr. Sadhu Ram Gali,
District Fazilka.
.......Respondent /Complainant
3. Misc. Application No. 1412 of 2017
In/and
First Appeal No.492 of 2017
Date of institution: 28.06.2017
Date of decision : 06.10.2017
1. Estate Officer, Bathinda Development Authority/PUDA, BDA
Complex, Bhagu Road, Bathinda.
First Appeal No.490 of 2017 2
2. Chief Administrator, Bathinda Development Authority/PUDA,
BDA Complex, Bhagu Road, Bathinda.
.......Appellants-Opposite Parties
Versus
Mehak D/o Shri Arun Narang and Arun Narang s/o Shri Ved Parkash
R/o Street No.23, Gaushala Road, Tehsil Abohar, District Fazilka.
.......Respondent /Complainant
4. Misc. Application No. 1415 of 2017
In/and
First Appeal No.493 of 2017
Date of institution: 28.06.2017
Date of decision : 06.10.2017
1. Estate Officer, Bathinda Development Authority/PUDA, BDA
Complex, Bhagu Road, Bathinda.
2. Chief Administrator, Bathinda Development Authority/PUDA,
BDA Complex, Bhagu Road, Bathinda.
.......Appellants-Opposite Parties
Versus
Mehak D/o Shri Arun Narang and Arun Narang s/o Shri Ved Parkash
R/o Street No.23, Gaushala Road, Tehsil Abohar, District Fazilka.
.......Respondent /Complainant
5. Misc. Application No. 1418 of 2017
In/and
First Appeal No.494 of 2017
Date of institution: 28.06.2017
Date of decision : 06.10.2017
1. Estate Officer, Bathinda Development Authority/PUDA, BDA
Complex, Bhagu Road, Bathinda.
2. Chief Administrator, Bathinda Development Authority/PUDA,
BDA Complex, Bhagu Road, Bathinda.
.......Appellants-Opposite Parties
Versus
Anand Bhadhu s/o Shri Inderjeet Bhadhu R/o VPO Shere Wala,
Tehsil Abohar, District Fazilka.
.......Respondent /Complainant
First Appeal No.490 of 2017 3
6. Misc. Application No. 1421 of 2017
In/and
First Appeal No.495 of 2017
Date of institution: 28.06.2017
Date of decision : 06.10.2017
1. Estate Officer, Bathinda Development Authority/PUDA, BDA
Complex, Bhagu Road, Bathinda.
2. Chief Administrator, Bathinda Development Authority/PUDA,
BDA Complex, Bhagu Road, Bathinda.
.......Appellants-Opposite Parties
Versus
Amit Gandhi s/o Ashok Kumar Gandhi, R/o Street No.5, New Suraj
Nagri, Mixtreem College Road, Abohar.
.......Respondent /Complainant
7. Misc. Application No. 1424 of 2017
In/and
First Appeal No.496 of 2017
Date of institution: 28.06.2017
Date of decision : 06.10.2017
1. Estate Officer, Bathinda Development Authority/PUDA, BDA
Complex, Bhagu Road, Bathinda.
2. Chief Administrator, Bathinda Development Authority/PUDA,
BDA Complex, Bhagu Road, Bathinda.
.......Appellants-Opposite Parties
Versus
Sanjeev Handa s/o Shri Gurbaksh Singh Handa (inadvertently
mentioned as Honda in the complaint as well as Impugned Order),
R/o Street No.6, Nanak Nagri, Abohar.
.......Respondent /Complainant
First Appeals against the orders dated
10.01.2017 and 18.01.2017 of the District
Consumer Disputes Redressal Forum,
Bathinda.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the appellants : Shri Balwinder Singh, Advocate. For respondent : Shri Harsh Neyol, Advocate.First Appeal No.490 of 2017 4
JUSTICE PARAMJEET SINGH DHALIWAL,(RETD) PRESIDENT:
Since a common question of fact and law is involved in all the appeals, therefore, all appeals were heard together and they are being disposed of by this common judgment.
2. All these First Appeals arise from the identical impugned orders with small variation in facts here and there and in all the appeals the applications under Section 5 of the Limitation Act for condonation delay of 119 days have been filed. The facts are being taken from an appeal (FA No.490 of 2017) arising from an impugned order dated 10.01.2017 passed in Consumer Complaint No.233 of 2015 by the District Consumer Disputes Redressal Forum, Bathinda (in short, "the District Forum"), vide which the complaint filed by Kewal Krishan, respondent/complainant, has been partly allowed with ₹5,000/- as cost and compensation and opposite parties have been directed to refund the balance/remaining amount with interest @12% p.a. which will be payable from 04.12.2014 till the date of payment.
3. It would be apposite to mention at the outset that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Averments in the complaint:
4. Shorn of unnecessary details, brief facts for the disposal of the appeal are to the effect that in the year 2012 opposite party No.1 invited applications for participation in the auction for allotment of residential plots in a scheme known as PUDA Enclave (OUVGL), First Appeal No.490 of 2017 5 Abohar to be held on 17.10.2012. The opposite parties in their brochure had offered residential plots having walled community living, earth-quack resistant structure, convenient shopping, Community Centre/clubhouse, ample covered parking space, fire safety, eco-friendly rainwater harvesting, landscaped lush green lawns and separate parking far visitors, as per BDA Rules and Regulations. The brochure further stipulated that Water Supply, Drainage, Sewerage, Street-lighting, Sanitary, Garbage Collection, Roads and other civil services will also be provided to the plot owners. The complainant was allotted Plot No.42 PF measuring 400 square yards in General Category in the said project through auction, vide intent/allotment letter No.7875 dated 19.12.2012. As per clause 4(1) thereof possession of plot shall be handed over to the allottee within 90 days of issue of allotment letter, provided 25% of the sale price has been paid. The complainant deposited a sum of ₹15,92,000/- towards 25% of the price of the said plot and as per the allotment letter, the remaining/balance 75% of the total price of the plot was to be deposited in 6 half yearly instalments along with interest @ 12% per annum and with rebate schedule. It is further averred that the complainant visited the spot and found that there was no development work at site and no provision for water supply, drainage, sewerage, street lighting, sanitary, garbage collection, roads and other basic civil amenities were at the spot. Moreover, there was no provision for electricity, fire fighting and other amenities which were necessary for taking possession and residing in plots. It is further averred that the possession of the plot was not handed First Appeal No.490 of 2017 6 over to the complainant till due date mentioned in the allotment letter and as such, the opposite parties committed breach of the conditions of allotment and regulations. Due to this reason, on 13.10.2014 the complainant wrote a letter to Estate Officer, PUDA to refund the entire amount with interest. However, the opposite parties issued alleged order, vide memo dated 4.12.2014 that allotment of Plot No.42 PF had been cancelled in the name of the complainant and 10% consideration amount has been deducted in PUDA/opposite parties account. The balance amount to the tune of ₹10,63,284/- was refunded to the complainant as per clause 7(viii) of the allotment letter through cheque, after four months. It is further averred that charging of interest and penalty without delivering possession of plot along with committed and essential amenities, amounts to unfair trade practice and misusing monopolized and dominating position by the opposite parties. Hence, the present complaint was filed before the District Forum for refund of the whole amount along with interest, compensation, and costs, as also ₹10,000/- per month from February 2013 to February 2015.
Defence of the opposite parties:
5. In their joint reply opposite parties took various preliminary objections. On merits, it is mentioned that PUDA offered residential and commercial sites at PUDA Encalve, Fazilka Road, Abohar, on the basis of terms and conditions of auction, which was held on 17.10.2012 and the same was published in various newspapers dated 22.9.2012. It is denied that opposite parties invited applications or distributed brochures for auction of plots. The First Appeal No.490 of 2017 7 purchase of the plot and the payment of the amount of 25% towards the price of the plot in the manner stated in the complaint have been admitted. However, it is denied that the complainant was ready to pay remaining instalments. It is admitted that the complainant requested opposite party No.1 for refund of the amount on 15.10.2014 and on his request the allotment of plot was cancelled as per term No.7(viii) of allotment letter and refunded his amount as per Rules, Regulations and Policies of PUDA, vide order/letter dated 4.12.2014. Denying any deficiency in service on the part of the opposite parties a prayer for dismissal of the complaint under Section 26 of the C.P. Act was made.
Finding of the District Forum:
6. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, partly accepted the complaint with costs and compensation of ₹5,000/- and directed the opposite parties to refund the balance/remaining amount with interest @ 12% p.a. which shall be payable w.e.f. 4.12.2014 till the date of realization, vide impugned order. Hence, this appeal.
7. We have heard learned counsel for both the sides on the Misc.
Applications for condonation of delay and have carefully gone through the records of the case.
Contentions of the Parties:
8. Learned counsel for the applicants-opposite parties has argued on the same lines as stated in the applications for condonation of delay and prayed that the delay of 119 days in filing the appeals is First Appeal No.490 of 2017 8 neither intentional nor deliberate but for the reasons stated in the applications. He vehemently contended that due to Government procedure, sanction from various authorities was required and the file for the same moved slowly from one authority to the other. The learned counsel vehemently prayed that the applications may be allowed and the delay of 119 days in filing the appeals be condoned in the interest of justice.
9. On the other hand, learned counsel for the respondent/complainant vehemently contended that day to day delay has not been explained. The Government department does not deserve special concession for condonation of delay. The provisions of Section 5 of the Limitation Act apply to the Government department in the same manner. The delay in the present case is inordinate delay and no sufficient cause has been shown for condoning the same. Ld. counsel has made reference to the Supreme Court authority titled as "DDA versus Krishan Lal Nandrayog" 2010(4) CPJ 7. He has also made reference to the authorities of Hon'ble National Commission in "State Commission Haryana. Panchkula Chief Administrator Haryana Urban Development Authority and another vs Sanjay Kumar Gupta"
2010(1) CLT 534 (NC) and "Superintendent of Post Office vs Sandhya Das" 2015(2) CPR 207 (NC).
Considerations of the contentions:
10. We have given our thoughtful consideration to the arguments raised by the learned counsel for the parties before us.First Appeal No.490 of 2017 9
11. Before we deal with contentions of the parties. It would be apposite to refer to catena of judgments of the Hon'ble Supreme Court as well as Hon'ble National Commission on condonation of delay, wherein it has been repeatedly held that there should be sufficient reasons and each day's delay must be explained. Hon'ble Supreme Court in Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361 observed as under:-
"12. It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the inquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant."
12. It was held by the Hon'ble Supreme Court in Anshul Aggarwal Vs. New Okhla Industrial Development Authority IV (2011) CPJ 63 (SC), as under:-
First Appeal No.490 of 2017 10
"It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras."
13. Recently, Hon'ble National Commission in Essel Finance V.K.C. Forex Ltd. v. New India Assurance Co. Ltd. 2017(1) CPR 551 (NC) has held that as there is no reasonable explanation for condonation of delay of 624 days in filing revision petition, application for condonation of delay is liable to be dismissed in the light of judgment passed by the Hon'ble Supreme Court in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation and Anr. (2010) 5 SCC 459, in which Hon'ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay has held as under :-
"8. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal First Appeal No.490 of 2017 11 remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time."
14. In Ludhiana Improvement Trust vs. Ms. Harpreet Kaur, 2013 (4) CPR 848 (NC), Hon'ble National Commission observed thus:-
"Hon'ble Apex Court in Post Master General & Ors. Vs. Living Media India Ltd. and Anr. (2012) 3 SCC 563, has not condoned delay in filing appeal even by Government department and further observed that condonation of delay is an exception and should not be used as an anticipated benefit for the Government departments. Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate delay of 62 days. In such circumstances, application for condonation of delay has been dismissed. As application for condonation of delay has been dismissed, revision petition being barred by limitation is also liable to be dismissed."
15. Hon'ble National Commission in M/s Hanspal Steel v. National Insurance Co. Ltd. and Ors. 2017(1) CPR 80 (NC) also did not condone the delay of 771 days in filing the revision petition. While dismissing the revision petition Hon'ble National Commission relied upon judgment in R.B. Ramlingam v. R.B. Bhavaneshwari , 1(2009) CLT 188 (SC) in which it has been observed by the Hon'ble Supreme Court as under:
First Appeal No.490 of 2017 12
" We hold that in each and every case the Court has to examine whether delay in filing the Special Appeal Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition."
16. The expression sufficient cause cannot be erased by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of condoning the delay. We do not find any such sufficient cause stated in the application and no such interference in the impugned order is called for. Hon'ble Supreme Court in Balwant Singh Vs. Jagdish Singh & Ors.,(Civil Appeal No. 1166 of 2006 ) decided on 08.07.2010 has held as under:-
"The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention.[Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]."
17. Reference can also be made to another judgment of the Hon'ble National Commission in N.U. Azam v. Postal Department and Ors. 2017(1) CPR 453 (NC) in which the delay of 198 days in filing the revision petition has not been condoned. In United India Insurance Co. Ltd. v. Newar Metals Pvt. Ltd. 2017(1) CPR 615 First Appeal No.490 of 2017 13 (NC) even 80 days delay has not been condoned by the Hon'ble National Commission.
18. Decision of Anshul Aggarwal (supra), has been reiterated in Cicily Kallarackal v. Vehicle Factory, IV (2012) CPJ 1(SC) wherein Hon'ble Supreme Court observed as under:-
"4. This Court in Anshul Aggarwal v. NOIDA, (2011) CPJ 63 (SC), has explained the scope of condonation of delay in a matter where the special Courts / Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute(s).
5. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the Legislature for filing the special petition. Therefore, we do not see any cogent reason to condone the delay.
6. Hence, in the facts and circumstances of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay."
[See also Amarjyothi House Building Co-operative Society Limited v. V.S. Pradeep, I (2014) CPJ 438 (NC)."
19. In N. Manohar Reddy v. Happy Farm and Resorts, I (2014) CPJ 149 (NC), Hon'ble National Commission held thus :- First Appeal No.490 of 2017 14
"16. This Section does not help a person who is guilty of negligence, laches or inaction. The test of good faith is real and bona fide belief of the plaintiff that he could institute the proceedings in the Court where he first instituted it."
20. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lex, sed lex" which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
21. The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an First Appeal No.490 of 2017 15 inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislation.
22. No doubt the words 'sufficient cause' should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bona fide are clearly imputable, the Court would not help such a party. After all 'sufficient cause' is an elastic expression for which no hard and fast guidelines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex parte decree has been able to satisfactorily show sufficient cause for non-appearance and in examining this aspect cumulative effect of all the relevant factors is to be seen.
23. Shri Balwinder Singh, learned counsel appearing for the applicants/opposite parties prayed for condoning the delay in filing the appeals on the grounds mentioned in the applications and he seeks an opportunity to argue the matter on merits.
24. The applicants/opposite parties have filed application for condonation of delay in filing appeal, in which it is mentioned that after passing of the impugned order dated 10.01.2017, the certified First Appeal No.490 of 2017 16 copy of the same was prepared on 30.01.2017 and was conveyed by the learned counsel to the concerned office on 01.02.2017 and reached the concerned office on 02.02.2017 and the Assistant on 07.02.2017. Thereafter, on 13.02.2017 concerned Assistant put up the note to AEO, who forwarded the same to EO on the same date for obtaining opinion of Senior Law Officer. On 14.2.2017 the file was sent to Senior Law Officer. On 15.2.2017 he opined that since the scheme has been floated under OUVGL scheme, approval for filing the appeals be taken from Head Office, PUDA , Mohali. On 20.02.2017 AEO office prepared the draft letter and after approval from EO sent the case to the Head Office on 21.02.2017. Thereafter reminder dated 27.03.2017 was sent. Senior Law Officer, PUDA, Mohali sent a communication dated 29.03.2017 to elaborate the grounds of appeal on the basis of which appeals are sought to be filed. On 19.04.2017 fresh grounds for filing the appeals were submitted. On 15.05.2017, sanction was accorded by the Head Office which was received on 17.05.2017. The copies of orders and other documents were handed over to the panel counsel at Chandigarh on 25.05.2017. He was pre-occupied in the appeals which were to be filed in the case of Sugar Mill Budhlada Scheme. The panel counsel raised some queries which were explained telephonically on 19.06.2017. On 20.06.2017 the appeals were prepared and on 21.06.2017 e-mail for affidavits to be filed along with stay applications and applications for additional evidence were sent. On 27.06.2017 affidavits were got signed from EO and attested. The appeals were filed on the next day i.e. 28.06.2017. The First Appeal No.490 of 2017 17 delay in filing the appeals is due to fulfilling of necessary official formalities and in the circumstances explained above. The same is due to bona fide reasons and the applicants/opposite parties were prevented by sufficient reasons from moving this Commission in time.
25. It is now well settled that departmental and official procedural delays do not constitute "sufficient ground". It must be borne in mind that Consumer Protection Act, 1986 lays down its own period of limitation. The Limitation Act, which prescribes the summary procedure and its provisions should be strictly followed. In the instant case, looking to the application filed by the applicants/opposite parties for condonation of delay in filing the applications and affidavits of E.O., PUDA filed in support of the applications for condonation of delay, it appears that the reasons assigned by the applicants/opposite parties in the applications for condonation of delay in filing the appeals, have not been satisfactorily explained and at each stage in the office due delay has taken place which has not been explained properly.
26. In view of the peculiar facts of this case and the law referred to above, we do not find any justification to condone the delay of 119 days in filing the present appeals, as no sufficient reasons have been given explaining each day's delay, which is a necessity. Accordingly, the applications for condonation of delay of 119 days in filing the appeals are dismissed.
First Appeal No.490 of 2017 18Main Appeals:
27. In view of our above discussion, since we have dismissed the applications for condonation of delay, we are not going into merits of the appeals. So, all the appeals are dismissed as barred by limitation.
28. The appellants/opposite parties have deposited a sum of ₹25,000/- at the time of filing of the appeals in each case. The said amount, along with interest which has accrued thereon, if any, be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to the parties in each case. The concerned complainants in each case may approach the District Forum for the release of the above amount and the District Forum would pass the appropriate order in this regard.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER October 06, 2017 Bansal First Appeal No.490 of 2017 19