State Consumer Disputes Redressal Commission
Huda vs Sukh Ram Bishnoi on 21 January, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.164 & 165 of 2008 Date of Institution: 17.01.2008 Date of Decision: 21.01.2011 Appeal No.164 of 2008 1. Haryana Urban Development Authority, through its Estate Officer, Gurgaon. 2. Haryana Urban Development Authority, through its Chief Administrator at Panchkula, Sector 6, Panchkula. Appellants (Ops) Versus Sukh Ram Bishnoi s/o Sh. Partap Ram, C/o Central Jail, Ambala, Ambala City. Respondent (Complainant) Appeal No.165 of 2008 1. Haryana Urban Development Authority, through its Estate Officer, Gurgaon. 2. Haryana Urban Development Authority, through its Chief Administrator at Panchkula, Sector 6, Panchkula. Appellants (Ops) Versus Jora Ram Bishnoi, Veterinary Surgeon (VCH), Ratia, Fatehabad. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. Dr. Rekha Sharma, Member. For the Parties: Mr. Ajay Nara Advocate for appellants-opposite parties. Mr. Sunidh Kashyap, Advocate for respondents-complainants. O R D E R
Justice R.S. Madan, President:
This order shall dispose of two appeals bearing No.164/2008 and 165/2008 which have arisen out of common order dated 23.11.2007 passed by District Consumer Forum, Panchkula whereby complaint No.160 and 161 of 2007 titled as Jora Ram Bishnoi versus HUDA and another and complaint No.161 of 2007 titled as Sukh Ram Bishnoi versus HUDA and another alleging deficiency in service against the appellants-opposite parties for canceling complainants plots allotted to them under Discretionary Quota have been accepted by granting following relief:-
.the instant complaint is hereby allowed and the Ops are hereby directed:-
a) To allot plots No.768/22, Gurgaon and plot 769/22, Gurgaon respectively to the respective complaints on the same price and on the same terms and conditions on which the original allotment was made and the amount of earnest money will also be adjusted in the accounts of the complainants;
b) Also pay a lump sum compensation of Rs.10,000/- to each complainant.
Let the order be complied with within a period of one month from the date of communication of this order.
For the sake of brevity and convenience to avoid confusion, we proceed to decide these appeals while taking into consideration the facts of appeal No.165/2008 HUDA vs Jora Singh.
Complainant Jora Ram had applied for allotment of 8 Marlas plot under the Discretionary Quota in the year of 1986 for which he deposited Rs.3883/- as 10% earnest money. In the year 1987 due to change of the Haryana Government, the allotment of plots under Discretionary Quota was cancelled. The allottees of the plots filed a Civil Writ petition in the Honble High court of Punjab and Haryana titled as S.R. Dass vs. state of Haryana wherein the Honble High Court quashed the orders with respect to the cancellation of the plot under Discretionary Quota. The Honble High Court in another C.W.P. titled as Anil Sabharwal Vs. State of Haryana cancelled the plots allotted onwards 1987. The State of Haryana filed S.L.P. before the Honble Supreme Court against the order passed by the Honble High Court, however, the S.L.P. was dismissed. Thereafter, the opposite parties vide letter bearing memo No.1690 dated 09.04.1991 informed the complainant that plot No.768 Sector-22, Gurgaon was proposed to be allotted to him under the Discretionary Quota and he was asked to deposit Rs.32,609.10 as 15% of the tentative price of the plot so as to make the deposit to the extent of 25%, but the complainant did not deposit the aforesaid 15% amount and accordingly, the allotment of the plot was cancelled and the amount of Rs.3883/- deposited by the complainant Jora Ram was refunded to him vide cheque No.556526 dated 01.09.1997.
The grievance of the complainant is that as per the various polices and the judgments of the Honble High Court and Honble Supreme Court, the opposite parties refunded the amount of plots to the various allottees but subsequently issued the notices to them for re-deposit the said amount and revived the allotment of their respective plots, however, despite repeated requests made by the complainant the opposite parties did not accept the amount and did not allot the plot under the Discretionary Quota. Thus, alleging it a case of deficiency in service, the complainant invoked the jurisdiction of the District Consumer Forum by filing the present complaint seeking direction to the opposite parties to allot him a plot under the Discretionary Quota.
On appearance, the opposite parties resisted the claim of the complainant on the ground that the complaint filed by the complainant was hopelessly barred by time as the deposited amount was refunded to the complainant in the year 1997 whereas the complaint was filed in the year 2007. It was further pleaded that as the complainant did not deposit 15% amount within the stipulated period, therefore, the proposed allotment of the plot was rightly cancelled. Thus, denying any kind of deficiency in service on their part, the opposite parties prayed for dismissal of the complaint.
Similar are the facts of complaint No.160/2007 titled as Sukh Ram Bishnoi vs. HUDA and another, out of which appeal No.164/2008 has arisen.
Both the parties led evidence in support of their respective claims. On appraisal of the pleadings of the parties and evidence brought on record, the District Consumer Forum accepted both the complaints by granting relief as noticed in the opening para of this order.
Aggrieved against the order of the District Consumer Forum, the opposite parties have come up in appeal.
At the very outset the question for consideration before us is whether the complaints filed by the complainants before the District Forum were within limitation period of two years as prescribed under Section 24-A of the Consumer Protection Act, 1986 (hereinafter referred to as the Act, 1986).
Undisputedly, the complainants were refunded 10% deposited amount on 01.09.1997 and the present complaints were filed on 22.05.2007. Thus, the cause of action arose in favour of the complainants on 01.09.1997 when they were refunded 10% deposited amount and after accepting the aforesaid amount, they are no more consumers of the opposite parties. As per provision of Section 24-A of the Act, 1986, the limitation period for filing complaint under the Act has been prescribed two years from the date of cause of action and if the complaint is beyond the period of limitation the same be entertained if the complainant satisfies the District Forum, State Commission or the National Commission as the case may be. In the instant case the cause of action had accrued to the complainants on 01.09.1997 when 10% amount was refunded to them and thus the complaints filed by the complainants on 22.05.2007 was beyond the period of limitation of two years. There was no application on behalf of the complainants seeking condonation of delay before the District Forum alongwith the complaints and as such the complaints of the complainants were not entertainable being barred by limitation.
Reference may be made to the observation made by the Honble Supreme Court in 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 a recent judgment cited as V.N. Shrikhande (Dr.) Versus Anita Sena Fernandes 2011 CTJ 1 (SUPREME COURT) (CP) the 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). The District Consumer Forum while deciding the present complaints has not taken into consideration this aspect despite the fact that the opposite parties raised objection in this regard in the written reply and in this view of the matter the impugned order is not sustainable in the eyes of law.
Another aspect for consideration in the instant case is that the complainants were to be allotted plots under the Discretionary Quota scheme and therefore they could have vested their rights only after the plots were allotted to them on fulfillment of the terms and conditions for the above said allotment. The complainants cannot be termed as Consumers of the opposite parties with respect to the proposed allotment of plots under the discretionary plots.
Learned counsel for the respondents-complainants has contended that in view of the observation made by Honble Mr. Justice S.S. Sandhawalia and S. Kulwant Singh, Member of State Consumer Commission Haryana in case cited as Balbir singh vs. The Haryana Urban Development Authority 1994(1) 315 (SCDRC Haryana), the complainants are entitled to the allotment of plots under the Discretionary Quota. We do not agree with the view taken in the above cited judgment because the complainants were not successful in any draw of lots for allotment of plots but they were to be given plots under a special scheme known as Discretionary Quota as the scheme was floated by the Government of Haryana to oblige kith and kin and therefore the persons getting such a special credit, cannot be said to be Consumers.
As a sequel to our aforesaid discussions we are of the considered view that the complainants are not entitled for allotment of plots and the District Consumer Forum has passed the impugned order without appreciating the facts of the case in its true perspective.
Hence, these appeals are accepted, the impugned order is set aside and the complaints are dismissed.
The statutory amount of Rs.25,000/- each deposited at the time of filing these appeals be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
This judgment/order be attached with appeal No.165/2008 and certified copy be attached with appeal No.164/2008.
Announced: Justice R.S. Madan 21.01.2011 President B.M. Bedi Judicial Member Dr. Rekha Sharma Member