National Consumer Disputes Redressal
Major Jai Parkash vs Haryana Urban Development Authority & ... on 15 February, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.1989 OF 2012 (From the order dated 24.01.2012 in F.A. No.682 & 1521 of 2009 of the Haryana State Consumer Disputes Redressal Commission, Panchkula) MAJOR JAI PARKASH SENA MEDAL R/O B/17, SECTOR 23-A, DWARKA, NEW DELHI-110075. ...... PETITIONER Versus 1. HARYANA URBAN DEVELOPMENT AUTHORITY THROUGH ITS, CHIEF ADMINISTRATOR SECTOR-6, PANCHKULA, HARYANA. 2. THE ADMINISTRATOR, HUDA, GURGAON. 3. THE ESTATE OFFICER, HUDA, GURGAON. .......RESPONDENTS BEFORE: HONBLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER For the Petitioner : Mr.Yashpal Rangi, Advocate For the Respondents : Ms. Anubha Agarwal, Advocate PRONOUNCED ON: 15th FEBRUARY, 2013 ORDER
This revision petition is directed against the order of the State Consumer Disputes Redressal Commission, Haryana dated 24.01.2012 in appeal no.682 of 2009 and appeal no.1521 of 2009 whereby the State Commission accepted the appeal against the order of the District Forum, Gurgaon preferred by the respondents/OPs and dismissed the appeal against the order of the District Forum preferred by the petitioner/complainant.
2. Briefly, put the facts relevant for the disposal of this revision petition are that the complainant was allotted plot no.796-P, Sector 38, Gurgoan under defence quota by the OPs vide allotment letter dated 15.12.1999. Pursuant to the allotment letter, the complainant deposited a sum of Rs.7,61,934/- (25% of total price of the plot) with the OPs.
The complainant/petitioner however failed to pay the installments in time; consequently, the OPs imposed penalty of Rs.25,397/- on account of non payment of installments. The complainant vide his letter dated 18.12.2002 requested the OPs to set aside the penalty or to refund his money. The OPs instead of waiving the penalty cancelled the allotment of the said plot and refunded a sum of Rs.5,46,032/- after deducting a sum of Rs.2,15,902/- (10% of the price of the plot). Grievance of the complainant/petitioner is that the cancellation of the allotment of plot by the OPs and also deduction of 10% of the price of the plot while refunding the payment made by the petitioner is without any justification and it amounts to deficiency of service as well as unfair trade practice.
3. The case of the OPs is that the complainant vide his letter dated 18.12.2002 has surrendered the plot and requested for refund of payment made by him thus the OPs were justified in canceling the allotment and refunding the deposited amount after deduction of 10% of the price of the plot as per the HUDA policy. The OPs further claimed that once the complainant had surrendered the plot and accepted the refund without protest, he is not a consumer and as such, his complaint is not maintainable. The OPs also took the plea that the complaint is barred by limitation.
4. Learned District Forum decided the complaint vide order dated 01.05.2009. The operative portion of the order reads thus:
The order dated 23.12.2002 vide which the plot of the complainant was resumed by Estate Officer, HUDA, Gurgaon was illegal and the same is hereby set aside. We therefore direct the opposite parties to permit the complainant to deposit with the opposite parties the whole of the price of the plot in question from the complainant within a period of four months from today along with interest as per HUDA policy. However, it is made clear that the amount of Rs.2,15,902/- which was forfeited by the HUDA will also be adjusted towards the principal amount of the plot in question. We the above direction the present complaint stands disposed of. File be consigned to records after making the compliance.
5. OPs being dissatisfied with the order of the District Forum preferred appeal no.682/2002 before the State Commission. The complainant/petitioner also dissatisfied with the order of the District forum preferred appeal no.1521/2009 before the State Commission. The State Commission after hearing the parties allowed the appeal of the OPs and set aside the impugned order. The appeal filed by the petitioner/complainant was dismissed. It is against the aforesaid order of the State Commission, the petitioner/complainant has preferred this revision petition.
6. On perusal of the impugned order, it transpires that the State Commission has set aside the order of the District Forum and dismissed the complaint mainly on the ground that the complaint filed by the petitioner is time barred and also that the petitioner after having surrendered the plot and accepted the refunded amount without any protest does not fall within the definition of the Consumer as defined under Section 2 (d) of the Consumer Protection Act, 1986.
7. Learned counsel for the petitioner has contended that the impugned order of the State Commission suffers from material irregularity and liable to be set aside. It is contended that the District Forum in its order has failed to examine the issue of limitation, therefore on this count alone the State Commission, if it was of the view that the petition is time barred, ought to have been remanded back the matter to the District Forum for adjudication on the issue of limitation.
Secondly, it is contended that the State Commission has concluded on the basis of the letter dated 18.12.2002 written by the petitioner that he surrendered the plot of his own accord whereas careful reading of the aforesaid letter would show that the spirit of letter was to seek waiver of the penalty imposed because of non payment of the installments in time and not to surrender the plot.
8. Above contention of the learned counsel for the petitioner is misconceived and devoid of merit. As regards the issue of limitation Section 24 (A) (1) of the Consumer Protection Act deals with the period of limitation for filing a complaint and it reads thus:
24A Limitation period. - (l) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
9. On bare reading of this Section it is evident that the above provision is mandatory and the District Forum, the State Commission or the National Commission cannot entertain any complaint unless it is filed within two years from the date of cause of action. No doubt Section 24 (A) (2) confers a power upon the concerned forum to condone the delay in filing of complaint provided the complainant is able to show a sufficient cause for not filing the complaint within the prescribed period. Admittedly in the instant case no application for condonation of delay was filed thus only point which is to be seen before entertaining the complaint is whether or not complaint has been preferred within two years from the date of cause of action. Admittedly pursuant to the letter dated 18.12.2002 allotment of the plot in favour of the petitioner was cancelled and the amount of Rs.5,46,032/- after the deduction was refunded to the complainant vide cheque dated 23.12.2002. From this it is evident that allotment in favour of the petitioner was cancelled on 23.12.2002 which is date on which cause of action for challenging the cancellation of allotment arose. The complaint before the District Forum was filed on 03.02.2006 i.e. much after the expiry of two years period of limitation as provided under Section 24 (A). Therefore, I do not find any merit in the contention of the learned counsel for the petitioner on the point of limitation raised by him when the complaint was clearly time barred. There was no obligation on the State Commission to send the matter back to the District Forum for deciding the issue of limitation particularly when there was no dispute of fact. Thus, it is clear that the State Commission has rightly decided the issue of limitation against the complainant.
10. Coming to the second contention of the learned counsel for the petitioner, admittedly the petitioner had written letter dated 18.12.2002 to the OP. Para 2 of the aforesaid letter reads thus:
2. Due to exigency of service I could not deposit the installment amount due in Feb 2002 and I will not be able to do so till I get leave. The estate officer has imposed penalty of Rs.25397. You are requested to set aside the penalty or I will ask for refund of complete amount deposited by me with interest.
11. On reading of the aforesaid paragraph it is clear that petitioner vide this letter had prayed for waiving the penalty imposed upon him or to refund the amount paid by him with interest. Pursuant to this letter OP had cancelled the allotment and refunded the sum of Rs.5,46,032/- to the petitioner vide cheque dated 23.12.2002. The petitioner admittedly has encashed aforesaid refund cheque without any protest. Since the petitioner has encashed the cheque pursuant to cancellation of the aforesaid plot, he no more remains a Consumer. As such, his complaint before the District Forum is not maintainable.
Similar view was taken by Punjab & Haryana High Court in the matter of HUDA Vs. M/s Zuari Industries, 2009(3) R.C.R. (Civil) 104 as also in the matter of HUDA vs. Pashu Lal Nagpal, 2010 (1) CPC 277 wherein it is held that once the complainant has surrendered the plot and accepted the price of the plot, he cannot seek the re-allotment of the plot.
12. In view of the discussion above, I do not find any infirmity in the impugned order, which may call for interference in revisional jurisdiction. The revision petition is according dismissed.
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(AJIT BHARIHOKE J.) PRESIDING MEMBER bs