State Consumer Disputes Redressal Commission
Haryana Urban Development Authority ... vs Smt. Santosh Gupta Wife Of Shri Kamal ... on 9 May, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.1260 of 2006 Date of Institution: 18.05.2006 Date of Decision: 09.05.2012 Haryana Urban Development Authority through its Estate Officer, Faridabad. Appellant (OP) Versus Smt. Santosh Gupta wife of Shri Kamal Raj, through G.P.A. Raj Kumar son of Shri Anshi Ram, Resident of House No.105, Sector-17, Faridabad. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Raman Gaur, Advocate for appellant. Shri Sameer Sachdev, Advocate for respondent. O R D E R
B.M. Bedi, Judicial Member:
This appeal has been preferred against the order dated 24.10.2005 passed by District Consumer Forum, Faridabad in complaint No.425/2005.
The brief facts of the present case as emerged from the record are that the complainant (respondent herein) was allotted plot No.1155-P, Sector-46, Faridabad on 17.01.1991 at a tentative price of Rs.3,39,383/-. The possession of the plot was offered to the complainant but the complainant did not come forward to take possession and after depositing 25% of the consideration amount, the complainant failed to deposit the balance price of the plot as per the terms and conditions of the allotment letter and for that reason the allotment of the plot was cancelled after serving the notices upon the complainant as required under Section 17(1), 17(2), 17(3) and 17(4) of the Consumer Protection Act and the plot was resumed. Complainant filed an appeal before the Administrator, HUDA, Faridabad wherein the complainant was directed to deposit the balance price of the plot within 15 days from the date of award i.e. 12.11.1996. Accordingly, the complainant was offered an alternative plot No.638 Sector-45, Faridabad vide letter dated 27.05.1998 and the complainant submitted her consent in the shape of affidavit on 12.06.1998 and thus the alternative plot No.638 Sector-45, Faridabad was allotted to the complainant in draw of lots held on 12.08.1998. However, the complainant did not come forward to take the actual physical possession of the plot on the ground that the facilities like Shopping Centre, High School, Dispensary, Post Office and Telephone Exchange were not provided in the area where the plot is situated. Thus, the complainant filed complaint before the District Consumer Forum seeking direction to the opposite parties to deliver the possession of other plot No.248 or 247 in Sector-46, Faridabad on the same price and in the same sector to the G.P.A. of the complainant in lieu of plot No.1155-P, Sector-46, Faridabad; not to charge the extension fee delay interest or penalty; to pay interest @ 18% per annum on the deposited amount from the date of allotment till actual payment of interest; to pay to the G.P.A. of the complainant the damage of Rs.30,000/- for causing acute mental tension and harassment by the opposite parties and Rs.3,000/- as litigation expenses.
Upon notice, the opposite parties appeared and contested the complaint by filing written statement stating therein that the plot of the complainant was resumed due to non-payment of the balance price except 25% initial deposit (10% alongwith the application + 15% after allotment) and for that reason the plot was resumed. However, in the appeal filed by the complainant, the allotment was restored and after taking consent of the complainant, she was allotted the alternative plot No.638 Sector-45, Faridabad but the complainant took false plea that necessary amenities were not provided in the said sector. Denying any kind of deficiency in service, the opposite parties 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 directions to the opposite parties given below:-
Complaint of the complainant, therefore, succeeds and to the satisfy the ground of the complainant, the following order is passed:-
i) The respondents are ordered to allot plot No.12, Sector-46, Faridabad to the complainant in lieu of the originally allotted plot No.1155P, Sector-46, Faridabad and alternate plot bearing No.638, Sector-45, Faridabad on the similar price, on which plot No.1155P Sector-46, Faridabad was allotted.
ii) The respondents are also ordered to pay interest @ 12% p.a. to the complainant on her deposit w.e.f. its deposit till the delivery of the physical possession of the plot as ordered above.
iii) The respondents are further ordered that in case area of the alternate plot is found more or less, the price of the same be assessed to that of originally allotted plot.
iv) The respondents are also ordered to deliver the physical possession of the plot now ought to be allotted immediately after its allotment.
v) The respondents are also ordered not to charge any kind of interest, penal interest, penalty and extension fee up till the period of the delivery of the possession of the plot, now to be allotted to the complainant.
vi) The respondents are also ordered to pay Rs.25,000/- on account of mental agony and Rs.2500/- as litigation expenses to the complainant.
The respondents are also ordered to comply with the order of the Forum within 30 days after receiving the copy of the present order. However, it is also ordered that the complainant herself or through her general power of attorney can get the order of the Forum complied with.
Aggrieved against the order of the District Consumer Forum, the opposite parties have come up in appeal.
We have heard learned counsel for the parties and perused the case file.
There is delay of 176 days in filing of the instant appeal, the condonation of which has been sought by moving an application under Section 5 of the Limitation Act. The application is supported by an affidavit of Shri V.S. Hooda, Estate Officer, HUDA, Faridabad.
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 without appreciating the facts of the case and therefore, we think it a fit case to condone the delay. Hence, the delay of 176 days in filing of the present appeal is condoned.
On behalf of the appellants it has been argued that at the first instance, the complainant herself was negligent for not depositing the price of the plot as after depositing 25% of the tentative price, she failed to deposit further amount and for that reason the plot which was originally allotted to her, was resumed. However, the allotment of the plot was restored subject to the deposit of the balance amount within 15 days of the order passed by the Administrator and after taking consent of the complainant, she was offered the alternative plot No.638 in Sector-45, Faridabad vide letter No.468 dated 25.04.2000 which was accepted by the complainant. However, after taking possession of the plot, the complainant filed complaint through G.P.A. taking the plea that the facilities of shopping centre for convenient of shopping, High School, Dispensary, Post Office and Telephone Exchange etc were not provided in Sector-45 and on that ground sought allotment of specific number of plot i.e. plot No.247 or 248 in Sector-46, Faridabad and thus the claim of the complainant is not sustainable in the eyes of law and the complaint filed by the complainant is barred by time.
We subscribe to the contention raised on behalf of the appellants. Admittedly, the alternative plot was allotted to the complainant on 12.08.1998 and the instant complaint was filed on 07.06.2005 i.e. after about seven years whereas the limitation for filing complaint under the Consumer Protection Act, 1986 (as amended upto date) has been prescribed as two years. It has been settled in catena of judgments that if the complaint is barred by limitation, it cannot be entertained. Hence, the complaint filed by the complainant on this ground is not maintainable. Reference in this case is made to case law cited as State Bank of India v. B.S. Agricultural Industries, 2009 CTJ 481 (SC) (CP) =JT 2009(4) SC 191, wherein it has been held that:-
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.
In V.N. Shrikhande (Dr.) Versus Anita Sena Fernandes 2011 CTJ 1 (SUPREME COURT) (CP) Honble Supreme Court has held that:-
Section 24A (1) contains a negative legislative mandate against admission of a complaint which has been filed after 2 years from the date of accrual of cause of action. In other words, the consumer forums to not have the jurisdiction to entertain a complaint if the same is not filed within 2 years from the date on which the cause of action has arisen. This power is required to be exercised after giving opportunity of hearing to the complainant, who can seek condonation of delay under Section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under Section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under Section 24A (2), the consumer forums will have no option but to dismiss the same.
The instant case is fully covered by the authoritative pronouncements in State Bank of India v. B.S. Agricultural Industries (Supra) and V.N. Shrikhande (Dr.) Versus Anita Sena Fernandes (Supra). District Consumer Forum has failed to appreciate this legal aspect though the objection was taken in the written statement before the District Consumer Forum and also that there was no prayer on behalf of the complainant to seek condonation of delay.
So far as the essential amenities provided in the sector where the alternative plot has been allotted to the complainant, it has been held in catena of judgments that the essential amenities for allotment of plots by HUDA in Urban Estate are electricity, drinking water, roads and sewerage and the facilities of shopping centre for convenient of shopping, High School, Dispensary, Post Office and Telephone Exchange etc, as claimed by the complainant are not the essential amenities. Therefore, the plea taken by the complainant is not genuine.
The other aspect of the case is that at the first instance, the complainant herself did not adhere to the terms and conditions of the allotment letter, as she failed to deposit the instalments with respect to the price of the plot in time and for that reason the allotment was cancelled and the plot was resumed. Merely, that the possession of the original plot was not offered to the complainant cannot be a ground not to deposit the price of the plot as per the terms and conditions of the allotment letter. The allottee of the plot can attribute deficiency in service against HUDA if the allotttee herself/himself deposits the price of the plot as per the terms and conditions of the allotment letter. But in the instant case, the complainant herself remained negligent with respect to the deposit of the instalments of the plot in question. It has also come on the record that in the appeal filed by the complainant, the allotment was restored and the complainant was offered the alternative plot which was accepted by the complainant and after taking possession of the plot the complainant through her G.P.A. has tried to get changed her plot with some other plot having great latent value. This clever device of the complainant cannot be allowed to sustain under the circumstances of the case.
So far as the filing of the instant complaint by the complainant through her G.P.A., the complaint is not maintainable 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 wherein it has been held that:-
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). In the instant case the complainant has deputed Raj Kumar son of Shri Anshi Ram, Resident of House No.105, Sector-17, Faridabad as her G.P.A. We have perused the G.P.A. on the record of the District Consumer Forum at page 37. The complainant has not disclosed her relationship with the G.P.A. Raj Kumar. Power of Attorney even authorizes the G.P.A. to transfer, sell, and mortgage etc the plot. More so, the complainant has not mentioned in the G.P.A. that she is not satisfied with the allotment of the alternative plot. Admittedly, the complainant is resident of Moga (Punjab) whereas the G.P.A. is resident of Faridabad (Haryana) where the plot is situated. Thus, the facts and circumstances of the case clearly reflect that this case is the lust of securing the plot by G.P.A. of his own choice who is a property dealer and this clever device of the complainant cannot be allowed to sustain. We, therefore, are of the view that once the alternative plot No. 638 Sector-45, Faridabad has been accepted by the complainant Santosh Gupta, cannot be allowed to take the other plot of the choice of G.P.A. for the reasons best known to them. Thus, the complaint filed by the complainant through G.P.A. is not maintainable.
As a sequel to our aforesaid discussions, it has been clearly established on the record that the complainant had accepted the alternative plot without any protest in the year 1998 and the complaint through G.P.A. was filed in 2005 which is hopelessly barred by time. Thus, now the complainant cannot be allowed to get any other plot through G.P.A. on flimsy grounds. Hence, the impugned order passed by District Consumer Forum cannot be allowed to sustain.
Accordingly, 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 re ceipt 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 09.05.2012 President B.M. Bedi Judicial Member