National Consumer Disputes Redressal
Huda & Anr. vs Major K.L. Monga on 9 October, 2012
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 838 OF 2012 (From the order dated 05.11.2009 in First Revision Petition No.61/2005 of the State Consumer Disputes Redressal Commission, Haryana, Panchkula ) 1. HUDA Sector-6, Panchkula Through its Chief Adminsitrator 2. The Estate Officer, Sector-14 HUDA, Gurgaon Petitioners Vs. Major K.L. Monga S/o Kushi Ram Monga 113, Engineer Regiment, C/o 56, APO At present: 413/1/120, Shakti Nagar, Gurgaon Respondent AND REVISION PETITION NO. 1307 OF 2012 (From the order dated 06.02.2012 in First Appeal No. 142/2012 of the State Consumer Disputes Redressal Commission, Haryana, Panchkula) 1. HUDA Through its Estate Officer, Sector-14 Gurgaon 2. HUDA Through its Chief Administrator Sector-6, Panchkula Petitioners Vs. 1. Major K.L. Monga S/o Kushi Ram Monga 113, Engineer Regiment, C/o 56, APO At present: 413/1/120, Shakti Nagar, Gurgaon 2. Zila Sainik Board, Opp. Apna Bazar Civil Lines, Gurgaon Through its Secretary Respondents BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HONBLE MR. VINAY KUMAR, MEMBER For the Petitioners : Ms. Anubha Agrawal, Advocate in both cases For Respondent-1 in : Mr. Sanjiv Bansal & both cases Mr. Ritesh Khare, Advocates For Respondent-2 in : Mr. Bijender Singh (W.O.), RP 1307/2012 Zila Sainik Board Pronounced on__09.10.2012 ORDER
JUSTICE J.M. MALIK
1. We shall decide two revision petitions filed by HUDA, though there is delay of 740 days in filing revision petition No. 838/2012. The petitioner has challenged the legal validity of the order dated 04.11.2004 rendered by the District Consumer Disputes Redressal Forum, Gurgaon. The said order was confirmed by the State Commission. The principal plea set up by HUDA is that the complaint filed by the complainant/respondent is barred by time under section 24-A of the Consumer Protection Act, 1986.
2. Major K.L. Monga, the complainant/respondent applied for allotment of a plot in Defence Quota, in Sector-17, Gurgaon, through respondent No.2, namely, Zila Sainik Board, OP 3, by depositing a sum of Rs.1,000/-. It is alleged that the complainant never applied with the petitioner for any allotment. He never approached the authorities for any allotment of plot and suddenly in the year 2001, after 23 years from the alleged application, filed Consumer Complaint No. 1422/19.11.2001, before the District Forum, Gurgaon.
3. It is alleged that the complainant was not a consumer. However, the District Forum directed that the plot be allotted to the complainant. The order of the District Forum, Gurgaon pertains to 07.07.2004. The complainant filed Execution Application No.260/2004. The Executing Court, vide its order dated 04.11.2004, directed HUDA to allot him a plot of his own choice. It also directed to pay upto date interest, which did not form part of the original order.
4. Two appeals were filed before the State Commission, one against the original order and second against the order passed by the Executing Court. There was delay of 2709 days in filing the appeal before the State Commission against the original order. Therefore, the said appeal was dismissed as barred by time.
5. In the second appeal, it was held that the appeal was filed against the order dated 07.07.2004. It was held that the order had attained finality. The State Commission did not find any infirmity in the order and dismissed the second appeal as well.
6. There is delay of 740 days in filing revision petition No. 838/2012 which is in respect of order passed in the execution proceedings.
7. It is clear that revision petitions filed by HUDA are hopelessly barred by time.
However, we admitted the revision petition because it was pleaded that the complaint filed before the District Forum was barred by more than 20 years. Learned counsel for the petitioner also invited our attention towards two authorities which are reported in Kerala Agro Machinery Corporation Ltd. Vs. Bijoy Kumar Roy & Ors. (2002) 3 SCC 165 and Haryana Urban Development Authority Vs. B.K. Sood (2006) 1 SCC 164.
8. At the time of final arguments, the learned counsel for the petitioner also invited our attention towards two other authorities reported in SBI Vs. M/s. B.S. Agricultural Industries 2009 (SC-2) - GJX 0414 SC and the judgment of this Commission in RP No. 1583 of 2005, titled as Punjab Urban Planning and Development Authority & Anr. Vs. Krishan Pal Chander, decided on 23.11.2009. The main argument advanced by the learned counsel for the petitioner is that the complainant had applied for the plot in the year 1997 and he had filed the complaint before the District Forum in the year 2004, after expiry of 23 years and, therefore, the complaint should be dismissed.
9. We find no force in her arguments. The above said authorities are not applicable to these cases. The petitioner had deposited Rs.1,000/- as per the Scheme floated by the Government.
He has not got the plot till now.
The cause of action will continue till he gets the plot in question. In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah & Anr., 2001 SCC 586, the Apex Court has upheld the order of this Commission, holding that a perusal of the agreement dated 23.02.1991 would show that it was specifically stipulated therein that the rights under the agreement dated 27.01.1987 would remain unaffected. It was for this reason that in the claim petition filed before the Commission, it was clearly mentioned that their rights under the agreement dated 27.01.1987 as also those under the agreement dated 23.02.1991 may be enforced. It was also specifically mentioned in the second agreement that the first agreement of 1987 would be treated as terminated only on full payment of the stipulated amount of Rs.9,51,000/- to the respondents. Since the rights under the agreement of 1987 had not been given up and the appellants were constantly under an obligation to provide a flat to the respondents and deliver possession thereof to them, the Commission rightly treated cause of action to be a continuing cause of action and came to the right conclusion that the claim was not beyond time.
10. Again, in B.Venu Madhav Vs. NCDRC, represented by its Registrar, New Delhi & Ors., in RP No. 478 of 2007, decided on 14.10.2011, reported in CDJ 2012 APHSC 421 wherein it was held that when there is immoveable property and the amenities promised by the opposite party were not provided, this Commission held that it can be construed as continuing cause of action and it cannot be said to be barred by time.
11. See also Transport Corporation of India Vs. Veljan Hydrair Ltd., 2007 (3) SCC 142 and Lucknow Development Authority Vs. M.K. Gupta, 1994 (1) SCC 243.
12. Consequently, it is apparent that the complaint filed by the complainant till he got possession was filed well within the time. Now we advert to the appeal filed before the State Commission and revision petitions filed before this Commission. The same are hopelessly barred by time. Parallels can be drawn between the facts of this case and the following authorities.
A) In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that 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.
B) In R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, it has been observed that 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.
C) In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that 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 bonafides 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.
D). In Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held that the expression sufficient cause cannot be erased from Section 5 of the Limitation Act 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 delay condonation. I do not find any such sufficient cause stated in the application and no such interference in the impugned order is called for.
E) Lastly, the Apex court in a recent authority in the Office of the Chief Post Master General & ors. Vs. Living Media India Ltd. & Anr., decided on 24.02.2012, in Civil Appeal No. 2474-2475 of 2012 arising out of SLP(C) No. 7595-96 of 2011, it was held that :-
13. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.
Accordingly, the appeals are liable to be dismissed on the ground of delay.
13. In view of the above discussions, both the revision petitions are hereby dismissed as barred by time.
....J (J.M. MALIK) PRESIDING MEMBER ..
(VINAY KUMAR) MEMBER dd/3 & 4