STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(APPEAL NO.23 OF 2010)

                                                                   Date of Institution: 18.1.2010.

                                                                   Date of Decision: 20.09.2010.

Sh. Jai Bhagwan Gupta son of Sh. Suraj Bhan Gupta, Shop No.234, Sector 34-C, Chandigarh.

……Appellant/Complainant.

Versus

Estate Officer, U.T., Sector 17, Chandigarh.              ....Respondent/OP.

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

                        SH. JAGROOP SINGH MAHAL, MEMBER.

Argued by:          Sh. Jai Bhagwan Gupta, appellant/complainant in person.

                    Sh. M. S. Sihag, District Attorney for the respondent/OP.

PER JAGROOP SINGH MAHAL, MEMBER.

1.                 This is complainant’s appeal against order dated 14.12.2009 passed by learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter to be referred as District Forum) whereby the complaint filed by the complainant under Sections 12 and 13 of Consumer Protection Act, 1986 was dismissed.

2.                 According to the complainant, in response to an advertisement (Annexure C-1), he had applied to the OP on 30.11.1977 for the allotment of a plot, which was entered at Serial No.4859 and he had deposited the requisite fee of Rs.1,000/- through demand draft. Thereafter, he wrote letter dated 12.7.79 but no intimation was given to him by the OP regarding the allotment of the plot or otherwise. He then represented to the OP vide letters dated 11.8.1980, 8.3.83, 25.11.86, 11.4.90, 7.4.94, 15.4.98, 25.9.01, 17.2.04, 11.4.06, 5.2.07, 1.3.07, 16.5.07 and 25.5.07, copies of which are Annexures C-4 to C-16, but to no effect. He was then asked by the OP vide letter dated 3.5.07 to submit IN number, INL number and the original receipt of the amount deposited. The OP issued an advertisement dated 15.5.07 in the paper for holding an auction of the industrial plots on 11.6.07, which according to him is illegal, arbitrary and malafide in so far as his interest has been ignored by the OP. The complainant, therefore, prayed for directions to the OP to allot the plot to him as per the scheme and to adjust the amount deposited by him. He demanded Rs.5 Lac as compensation on account of mental tension and harassment and Rs.7,70,000/- as cost of escalation in constructing the plot, which if allotted in 1977 would have been constructed 30 years back at a low cost of construction. The complainant also prayed for Rs.50,000/- as traveling and corresponding charges and also to restrain the OP for auctioning the plot sites to be held on 11.6.07.

3.                 The complaint was opposed by the OP. It was admitted that the complainant had applied on 30.11.77 for allotment of a plot and had deposited Rs.1,000/- as fee. His case was not recommended by the Director of Industries, U.T., Chandigarh. In the year 1981, Chandigarh Administration again invited applications for allotment of industrial plots ranging from 1 Kanal to 4 Kanal. He was again asked to deposit the difference of the earnest money if he was interested for allotment of industrial plot, which he never deposited. The applications so received were forwarded to the District Industries Centre, U.T., Chandigarh for scrutiny. On the recommendations of the Screening/Allotment Committee, a draw was held in the year 1982 when 339 industrial plots were allotted. Since some of the plots fall in green belt i.e. Reserved Forest Area, the U.T. Administration decided to allot the plots of lesser area to the applicants of 2 Kanal or above, area of plots. However, the allotment letters could not be issued to the successful candidates due to the stay order granted by the Hon’ble Punjab and Haryana High Court. The writ petition was decided on 30.8.2001 against which S.L.Ps were filed, which have also been decided on 13.4.2004. The relief was given only to such of the applicants who were parties before the Hon’ble High Court but the complainant was neither a party before the Hon’ble High Court nor before the Hon’ble Supreme Court of India and therefore, no allotment could be made in his favour. The OP denied having received letter dated 12.7.79 or the subsequent reminders as alleged by the complainant. The amount of Rs.1,000/- deposited by the complainant was refunded to him on 24.3.06 but the same was received back undelivered and it was again sent to the complainant after revalidation on 4.6.07. It was alleged that since the complainant did not apply for the refund of the said amount earlier, it was, therefore, not refunded to him and the question of any harassment or mental tension did not arise. Subsequently also, the complainant was asked to deposit the difference of earnest money as requested on 14.5.81 but he did not deposit it, which shows that he was not interested in the allotment of the plot. The OP prayed for the dismissal of the complaint.

4.                 Both the parties produced evidence in support of their contentions.

5.                 After hearing arguments of the complainant in person and the learned Govt. Pleader for the OP, the complaint was dismissed vide the impugned order dated 14.12.2009, which has been challenged by the complainant through this appeal.

6.                 We have heard the arguments of the complainant/appellant and the learned Govt. Pleader for the respondent/OP.

7.                 We are of the opinion that there is no merit in this appeal and the same must fail.

8.                 The complainant/appellant had applied for allotment of plot in the year 1977. Admittedly, no plot was allotted to him in response to his application. It is not necessary that every applicant is allotted a plot and therefore, there is no deficiency in service on the part of OP/respondent. Otherwise also, the present complaint was filed by him on 4.6.07 after a period of 30 years. The complaint is, therefore, hopelessly barred by time and cannot be allowed.

9.                 The contention of the complainant/appellant is that the matter remained pending with the OP and he had been corresponding with them for allotment of the plot and therefore, the cause of action would accrue to him from the date on which the earnest money of Rs.1,000/- was refunded to him. In support of his contention, he has referred to letters (Annexures C-3 to C-16), which were allegedly sent by him to the OP through U.P.C. He has also placed on file photocopies of U.P.C in this respect. It is interesting to note that during this period of 30 years, no registered letter was sent by the complainant/appellant to the OP requesting for allotment of the plot. In view of the latest judgment of Hon’ble Punjab and Haryana High Court dated 4.3.2010 passed in the case of Harchand Singh Vs. M/s Reliable Agro Engineering Services (Pvt.) Ltd. wherein the cases of The Panchkula Urban Co-operative Bank Ltd. Versus State of Haryana and others, 1998(1) PLJ 315 (Pb. & Hr. High Court) and Gadakh Yashwantrao Kankarrao Vs. E.V. alias Balasaheb Vikhe Patil and others AIR 1994 SC 678 of Hon’ble Supreme Court of India were also referred, no presumption of truth is attached to the documents sent through U.P.C because this can be procured at any time. The OP/respondent has contended that it never received any such letters from the complainant/appellant. The contention of the complainant/appellant that he had been requesting the OP time and again cannot be, therefore, accepted as correct.

10.               According to the OP/respondent, all the applications received by it for allotment of plots were sent to the District Industries Centre, U.T., Chandigarh (for short hereinafter to be referred as DIC, Chandigarh) for scrutiny. The application moved by the complainant/appellant was also sent to the DIC, Chandigarh and as per the affidavit dated 13.3.09 submitted by Sh. Ashwani Kumar, H.C.S, Assistant Estate Officer, U.T., Chandigarh, the unit (of the complainant) was inspected on 14.6.78 but no responsible person was found present. Again the party was requested vide office letter No.5780 dated 15.6.78 to produce the relevant record in their office on 17.6.78 but neither the applicant turned up nor anything was heard from him. It appeared that the applicant was not interested in allotment of the plot and therefore, the case was not recommended. In this respect, the learned Govt. Pleader has referred to the report dated 19.7.78. It was on the basis of this report that the allotment was not made to the complainant/appellant. If the complainant/appellant challenges this report, he could have come within two years or a reasonable period of time but he never challenged the same during the last 30 years. Now, we cannot say that the said report was wrong or the allotment not being made to the complainant/appellant in the year 1978 was a wrong decision of the OP and should be set aside.

11.               The OP thereafter advertised another scheme in 1981. The applications were invited from the earlier applicants also and they were asked to deposit the difference of the earnest money because in the meantime, the allotment price of the plots had increased. The complainant/appellant did not apply in response to the advertisement in 1981 and did not deposit the additional earnest money, which also shows that he was not interested in getting the allotment. His contention is that he could not know about the advertisement and therefore, had no opportunity to deposit the amount. Even if his contention is accepted, though for the argument sake, he cannot succeed in getting the allotment now because when he applied for the allotment of plot in 1977, there was no personal communication to him by the OP and even at that time, he came to know about the scheme from the newspaper. It cannot be believed that subsequently when the scheme was published in the newspaper, he could not know about it. Otherwise also, for inviting the applications to the subsequent scheme in 1981, no personal communication was required to be made to the complainant/appellant and therefore, if he did not apply afresh, it was his own decision but on that basis, no allotment of plot can be ordered to be made to him. In any case, we cannot order the allotment of a plot now after 30 years, which was declined again in 1981.

12.               Some of the applicants, who were allotted plots in that scheme, approached the Hon’ble High Court of Punjab and Haryana and the writ petition was decided by a common judgment dated 30.8.2001. Hira Tikkoo and others filed Civil Appeal before the Hon’ble Supreme Court of India, which was decided vide order dated 13.4.2004, copy of which is Annexure R-1.  It was made clear by the Hon’ble Supreme Court of India that the relief in the nature of directions made in favour of consentees or non-consentees and the allottees of 1 Kanal plot were restricted only to such of them who were party before the Hon’ble High Court. All claims of remaining consentees or non-consentees or allottees of plot who were not party before the Hon’ble High court stood rejected. Admittedly, the complainant/appellant was not a party before the Hon’ble High Court. His claim, therefore, stood rejected in view of the judgment of Hon’ble Supreme Court of India.

13.               It is true that the amount of earnest money of Rs.1,000/- was not promptly refunded to the complainant/appellant. The learned Govt. Pleader has argued that in fact, he did not apply for refund due to which the amount was kept as earnest money because on its basis, he could reapply for the fresh allotment of plot in the subsequent schemes floated by the U.T. However, no interest as damages can be allowed to the complainant/appellant on the said amount of Rs.1,000/- because at the time of filing the application, he had submitted in writing an affidavit copy of which is now marked as Annexure R-3 that he would not claim any interest on the said amount. The complainant/appellant did not produce the said affidavit along with the copy of his application (Annexure C-1) submitted before the Consumer Fora. Otherwise, it is mentioned in the application (Annexure C-1) that an attested affidavit along with its copy were enclosed with the original application but the complete application was not submitted before the learned District Forum, obviously with a malafide intention, so that the Consumer Forum does not come to know of the said undertaking given by the complainant/appellant that he would not claim any interest on the amount of earnest money remitted to the Govt. In view of the conduct of the complainant/appellant in withholding a material document and in view of the undertaking in Para No.5 of the affidavit (Annexure R-3), we are of the view that he is not entitled to any interest as damages on the said amount. It appears that is why the complainant/appellant has not claimed interest on the said amount and therefore, it was rightly not granted by the learned District Forum.

14.               The facts of the complaint show that it is a frivolous litigation generated by the complainant/appellant out of greed. He is claiming a compensation of Rs.5 Lac on account of mental tension and harassment and Rs.7,70,000/- as cost of escalation for delay of construction on the plot, which had not been allotted to him. Otherwise also, every applicant is not entitled to the allotment of plot and therefore, if the same was not allotted to him, it cannot be said to be a deficiency on the part of respondent/OP. There is, therefore, no merit in the complaint and it was rightly dismissed by the learned District Forum.

15.               We do not find any merit in this appeal and the same is dismissed with cost. The complainant/appellant shall pay the litigation cost of Rs.5,500/- to the respondent/OP.

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

Pronounced.

20^th September 2010.

Sd/-

[JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Ad/-

STATE COMMISSION

(APPEAL NO.23 OF 2010)

 Argued by:          Sh. Jai Bhagwan Gupta, appellant/complainant in person.

                    Sh. M. S. Sihag, District Attorney for the respondent/OP.

Dated the 20^th day of September 2010.

ORDER

                    Vide our detailed order of even date recorded separately, this appeal filed by the complainant has been dismissed with cost of Rs.5,500/-.