STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(R.B.T. No.1401 of 2008 in Appeal No.1461 of 2002)

                                                                   Date of Institution: 04.07.2002

                                                                   Date of Decision  : 06.12.2010

1.      Haryana Urban Development Authority, Sector 6, Panchkula, District Ambala through its Chief Administrator.

2.      The Administrator, HUDA, Hisar.

3.      The Estate Officer, Haryana Urban Development Authority, Hisar.

……Appellants/OPs.

V e r s u s

Sh. Dharam Singh, Proprietor of M/s Dharam Saw and General Mill, resident of 8, Satrod Khas, District Hisar.

              ....Respondent/Complainant.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

                        S.  JAGROOP  SINGH   MAHAL, MEMBER.

                        MRS. NEENA SANDHU, MEMBER

Argued by:    Sh. Gurindre Pal Singh, Advocate for the appellants.

                        Sh. Anurag Jain, Advocate for the respondent.

PER JAGROOP SINGH MAHAL, MEMBER.

1.                     This is OPs’ appeal under section 15 of the Consumer Protection Act, 1986 against the order dated 20.5.2002, passed by the learned District Consumer Disputes Redressal Forum, Hisar (hereinafter referred to as District Forum), allowing the complaint and quashing the letter of offer of possession and the order dated 23.1.2001 passed by the OPs and thereby directing the OPs to refund the amount of Rs.4,72,468.48 Ps charged as interest, extension fee and penalty. The appeal was initially instituted before the Hon’ble State Consumer Disputes Redressal Commission, Haryana and was received by this Commission under the orders dated 27.3.2008 passed by Hon’ble National Consumer Disputes Redressal Commission, New Delhi.

2.                     According to the complainant, the plots were advertised by the OPs/appellants and one of the terms and conditions of the allotment was proposed to be that either the full amount in lumpsum would be paid without interest within 60 days from the date of allotment letter or in six equated annual installments with interest @10% on unpaid amount. The complainant applied for allotment of plot, in view of which, the plot in question was allotted to him but in the allotment letter dated 3.10.1991, the interest was increased to 15 ½ % and the number of installments were decreased from six to five. The complainant paid the initial amount and also paid some of the installments. It was averred that on account of defaults in 3^rd and the 4^th installments, OPs vide order dated 9.9.1999 (Annexure P-4) proceeded to resume the plot  and also ordered forfeiture of 10% amount of the cost of the plot, against which, the complainant filed appeal before the Appellate Authority of HUDA  and vide order dated 23.1.2001, the complainant was directed to deposit the deposit the entire outstanding amount including interest and penalty within two months. Subsequently, vide letter dated 19.2.2001 (Annexure P-6), OPs raised a demand of Rs.4,72,468.48Ps. The grouse of the complainant was that no basic facilities in the area were provided by the OPs and the action of OPs in charging interest and penalty could not be sustained. As per the complainant, even no electric poles/transformers were installed in the area in question till 1996 as is clear from letter dated 19.6.96 written by the Estate Officer, HUDA.  As per him, he had already paid a sum of Rs.4,90,438/- to the OPs as against the price of the plot of Rs.4,50,835.39 Ps and had already raised construction. It was averred that the demand now created by the OPs to pay a further sum of Rs.4,72,468.48 Ps was patently illegal and unsustainable. Seeking refund  of an amount of Rs.4,72,468.48 Ps, which the complainant paid under threat of resumption of the plot and further seeking quashing of orders dated 9.9.1999 and 23.1.2001 passed by the OPs, the complainant filed the present complaint before the learned District Forum.

3.                     OP in their written reply submitted that the rate of interest was 15 ½ % per annum on the balance 75% price of the plot, which was payable in five equal annual installments and this had been specifically mentioned in the allotment letter No.5139 dated 10.4.1991. It was next pleaded that the rate of interest might be revised from time to time as per Industrial and HUDA Policy and rules and regulations framed thereunder. It was also stated that the complainant accepted the terms and conditions of the provisional letter of allotment and therefore, the final letter of allotment bearing No.14158 dated 3.10.91 was issued to the complainant. As per the OPs, order dated 23.1.2001 was passed after considering the submissions of the complainant. The averment of the complainant as regards the non availability of basic facilities and electric poles etc was specifically denied. It was pleaded that the area had already been developed and the offer of possession had already been given to the complainant vide letter dated 3.10.1991, who obtained possession of the plot in question without any protest on 17.3.1992. Pleading no deficiency in service on their part, OPs prayed for dismissal of the complaint.

4.                     Both the parties were given opportunity to produce evidence in support of their contention.

5.                     After hearing arguments of learned counsel for the complainant and perusing the record, the complaint was allowed in terms as mentioned in the opening para of the order, which has been challenged by the OPs through this appeal.

6.                     The appeal was initially filed before the Hon’ble State Commission, Haryana and was transferred to this Commission as per order dated 27.3.2008 of Hon’ble National Commission as mentioned earlier.

7.                     We have heard the arguments of learned counsel for the parties and have perused the record.

8.                     It is argued by the learned counsel for the appellants that the allotment letter was issued to the complainant/respondent on 3.10.1991 vide which the rate of interest was mentioned to be 15 ½ % and the number of installments were to be five. He objected to this aspect of the allotment vide Para No.4 of his complaint in 2001 by filing the present complaint. It is argued that complying with the requirements of the allotment letter, the complainant deposited the installments and therefore, by the law of estopple as well as latches and delay, he cannot grudge the reduced number of installments or the increased rate of interest after a period of ten years. He was free to accept the allotment letter as a whole or to reject it. Once, he has accepted the allotment and paid the installments, he cannot discard the other terms and conditions of the said allotment.

9.                     The learned counsel for the complainant argued that the price of the plot was Rs.4,50,835.38 Ps but the OPs had already received from him Rs.4,90,438/- and were still demanding Rs.4,72,468.48 Ps, which on the face of it was illegal. It is argued that the demand made by the OPs vide letter dated 19.2.2001 was, therefore, not justified. This contention is also opposed by the OPs. It is argued by the learned counsel for the appellants that the remaining 75% price of the plot was to be paid in five annual equated installments. None of the installments was paid by the complainant in time. He did not raise the construction on the plot within the stipulated period and was, therefore, liable to pay extension fee. It is true that the complainant had paid an amount, which was somewhat more than the original price of the plot but a major portion of the said amount was paid towards interest and extension fee and penalty in not paying the installments by due dates and not raising the construction within the prescribed period. The said amount, therefore, cannot be applied towards the payment of the plot alone.

10.                   A perusal of the entire complaint shows that the complainant nowhere mentioned as to on which dates what amount of installment was payable by him and on which dates, the same was paid. He did not mention as to what was the interest to be charged on the said amount and what was the penalty for late payment. He did not mention within what period, he was required to raise the construction over the plot and what was the extension fee payable by him. This fact was, however, admitted by him in Para No.9 of the complaint that the demand of Rs.4,72,438.48 Ps was created through Annexure P-5, which included interest, extension fee and penalty. The argument advanced by the learned counsel for the respondent/complainant that he had already paid more than the price of the plot could not have been considered a sufficient ground to quash the demand made through Annexure P-5.

11.                   The learned counsel for the appellants has argued that the plot was resumed vide order dated 9.9.1999 for non payment of 3^rd and 4^th installments, as admitted by the complainant in Para No.6 of his complaint, against which, the complainant filed an appeal before the Administrator, HUDA. An order dated 23.1.2001 was passed by the Administrator that the complainant had undertaken to deposit the entire outstanding amount including interest and penalty within two seeks and the resumption was set aside subject to the said deposit. It was made clear if the entire outstanding amount was not deposited within two weeks, the order of resumption would stand revived. The complainant deposited the entire outstanding amount of Rs.4,72,438.48 Ps within the aforesaid period of two weeks. His contention now in Para No.8 of the complaint that he never gave any such undertaking, cannot be accepted as correct firstly because no such assertion had ever been made by him before the Administrator, HUDA through an affidavit or otherwise after he came to know of the order dated 23.1.2001. Needles to mention that if any incorrect statement appears in an order, then the person alleged to have made that  statement is required to inform the officer/authority that he never made such a statement and that the assertion in this regard in the order was wrong. The said order was never challenged by the complainant by filing a revision petition before the higher authority i.e. Commissioner and Secretary to Government, Town and Country Planning Department, Haryana. Furthermore, the said order was complied with by the complainant by depositing the entire remaining amount instead of challenging the undertaking given by him before the Administrator, HUDA. This fact is a strong circumstance to show that the undertaking was given by the complainant and that is why he was complying with the same within the time period given under the said order. The matter would have been different if the complainant had not deposited the amount and would have challenged the said order alleging that he never made such an undertaking. The stand taken by the complainant in this respect was, therefore, totally wrong. After getting the resumption revoked, he now wants to get the said amount back on the deposit of which the resumption was quashed. He cannot be permitted to blow hot and cold in the said breath.

12.                   The learned counsel for the appellants has also argued that the contention of the complainant that area was not developed is totally wrong. The mere fact that in some civil suit such an observation was made by the Civil Court with respect to some part of the sector would not be applicable in respect of some other area especially when the judgment and decree of the Civil Court had not become final and appeal was pending. The possession of the plot was delivered to the complainant on 3.10.1991 but for ten years, he never alleged if there was no development of the area or the delivery of possession was meaningless. He had paid two installments also without any murmur. It occurred to him only after he failed to pay the next installments and the plot was resumed, which shows the malafide of his assertion. Apart from that, the best circumstance against the contention of the complainant is contained in Para No.13 of the complaint in which he admitted that he had raised construction and the unit was in production. The learned counsel for the appellants argued that if the amenities had not been provided, the complainant would not have been able to run the unit. We are, therefore, of the opinion that the delivery of possession could not have been quashed by the learned District Forum on any such ground, which does not relate to the plot in question especially when the complaint was filed after ten years thereof.

13.                   In view of the above discussion, we are of the opinion that the impugned order passed by the learned District Forum cannot sustain. There is no merit in the complaint and the same could not have been allowed. We, therefore, accept the appeal and set aside the impugned order dated 20.5.2002 passed by the learned District Forum. The complaint is accordingly dismissed with litigation costs assessed at Rs.5,000/-.

14.                   Copies of this order be sent to the parties free of charge.

Pronounced.

6^th December 2010.

Sd/-

[JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Ad/-

STATE COMMISSION

(R.B.T. No.1401 of 2008 in Appeal No.1461 of 2002)

Argued by:    Sh. Gurindre Pal Singh, Advocate for the appellants.

                        Sh. Anurag Jain, Advocate for the respondent.

Dated the 6^th day of December, 2010.

ORDER

                        Vide our detailed order of even date recorded separately, this appeal has been accepted.

(JAGROOP SINGH MAHAL)            (JUSTICE PRITAM PAL)     (NEENA SAHDHU)

                MEMBER                                      PRESIDENT                       MEMBER