Haryana

StateCommission

A/960/2017

HUDA - Complainant(s)

Versus

GHANSHYAM DASS GEMINI - Opp.Party(s)

RAJESH KAUL

25 Apr 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

Date of Institution:29.05.2017

Date of final hearing:25.04.2024

Date of pronouncement:29.04.2024

 

 

 

 

 

 

 

First Appeal No.960 of 2017

 

 

IN THE MATTER OF

 

 

 

1.      Estate Officer, Haryana Urban Development Authority, Rewari.

2.      Administrator, Haryana Urban Development Authority, Gurugram.

…Appellants.

 

Through counsel Mr. Rajesh Kaul, Advocate

 

 

Versus

 

Ghanshyam Dass Gemini, R/o Swastik Perforators, 3126/216, Ganpat Nagar, Circular Road, Rewari.

…Respondent.

 

Through counsel Mr. S.K. Tripathi, Advocate

 

Present:-    Mr. Rajesh Kaul, counsel for appellants.

                   Respondent proceeded against ex-parte vide order dated 09^th March, 2020.

CORAM:   Mr. S.C. Kaushik, Member.

 

 

 

O R D E R

 

 

S.C. KAUSHIK, MEMBER:

 

 

                   Present appeal has been preferred against the order dated 15.12.2015, passed by learned District Consumer Disputes Redressal Forum, Rewari (now “District Commission”), whereby the complaint filed by complaint was allowed and opposite parties (“OPs”) were directed as under:-

“Consequently, the complaint is allowed directing the opposite parties to issue No Dues Certificate to the complainant within one month from the date of receipt of the copy of this order. The complainant is also allowed compensation to the tune of Rs. 25,000/- on account of mental agony and physical harassment besides litigation expenses of Rs. 5500/- against the opposite parties to be paid within the above stipulated period. Ordered accordingly.”

 

2.                Brief facts of complaint filed before learned District Commission are that the respondent-complainant was allotted a Plot No.163, sector-5(c) Rewari vide Memo No. 7695 dated 15.9.2005 by the appellants-OPs. It was alleged that the respondent-complainant paid entire cost of said plot i.e. Rs.9,45,000/- to the appellants-OPs. It was further alleged that the appellants-OPs again demanded an amount of Rs.45,000/- on 17.2.2014 and Rs.25,000/- on 13.3.2014 from the respondent-complainant which was also deposited by him. It was further alleged that nothing was due towards the appellants-OPs and he requested for the issuance of No Dues certificate, but the same has not been issued to him despite repeated requests. Thus, there was deficiency in service on the part of appellants-OPs.

3.                Upon notice, appellants-OPs appeared before learned District Commission and submitted their written statement stating therein that the demands of Rs.45,000/- on 17.02.2014 and Rs.25,000/- on 13.03.2014 was made by the appellants-OPs which was deposited by the respondent-complainant but he has not cleared the outstanding amount of Rs.44,336/- as on 16.3.2015. So the No Dues Certificate cannot be issued to the complainant. It was further submitted that there was no deficiency in service on the part of appellants-OPs and prayed for dismissal of the complaint.

4.               After hearing the parties, learned District Commission allowed the complaint of complainant as mentioned above in para 1^st (supra).

5.                Aggrieved from the impugned impugned order dated 15.12.2015, OPs-appellants have preferred this appeal for setting aside the impugned order passed by learned District Commission, Rewari.

6.                Arguments have been advanced by Mr. Rajesh Kaul, learned counsel for appellants. On the other hand, respondent was proceeded against ex-parte vide order dated 09^th March, 2020 as there was no representation on his behalf despite availing several opportunities. With kind assistance of learned counsel for appellants, the entire records as well as original record of learned District Commission including whatever evidence have been led on behalf of the parties had also been properly perused and examined.

7.                Before going on merits, this Commission has to adjudicate with the application for condonation of delay, which has been filed along with the present appeal. There is a delay of 567 days in filing of the present appeal and condonation of which has been sought through an application by the present appellants. The ground taken in the application on behalf of appellants is that copy of impugned order dated 15.12.2015 was prepared on 17.12.2015 and the same was delivered to the counsel for present appellants on 21.12.2015. Thereafter, the said copy was received by present appellants through counsel and the matter was referred to the DDA, HUDA, Gurugram and vide opinion dated 28.02.2016, DDA, Gurugram has approved the matter for filing the appeal. Thereafter, a letter was sent vide Memo No.617-18 dated 21.03.2016 to Head Quarter, Legal Cell, HUDA, Panchkula for engaging an Advocate for filing an appeal which was followed by various reminders. On 23.01.2017, an e-mail was received from the office of C.A, HUDA, Panchkula for engaging an Advocate from the list of panel Advocates of Panchkula. Thereafter, through proper channels the officials of the appellant vide letter No.756 dated 09.02.2017 has engaged and contacted the present counsel to prepare the draft of appeal and hand over the relevant documents, upon which the present counsel prepared the same and sent the draft of appeal along with relevant record to the office of appellants for the purpose of vetting as well as for approval. Thus, due to departmental process the delay of 567 days occurred in filing of present appeal, which is neither intentional nor willful and the same may be condoned in the interest of justice and under the circumstances of present case.

                    While dealing with the application for condonation of delay, it is not disputed that the delay cannot be condoned on the ground of equity and generosity, but at the same time it is to be taken into consideration that in case of any legal infirmity is committed by the learned District Commission while passing the impugned order which is apparent on record, the same cannot be allowed to continue as it would amount to no order in the eyes of law.

                    While dealing with the prayer for condonation of delay, reference may be made to the observation made by the Hon’ble Supreme Court wherein it has been held that when substantial justice and technical approach are pitted against each other, the former has to be performed. It has further been held that the words “Sufficient Cause” have to be interpreted to advance the cause of justice. The Hon’ble Apex Court in case cited as “State of Nagaland Vs. Limpk A.O. and others, 2005 (3) SCC 752” has held as under:-

“11. What constitutes sufficient cause cannot be held down by hard and fast rules. In New India Assurance Co. Ltd. Vs. Shanti Misra (1975) (2) SCC (840) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression “sufficient cause” should receive a liberal construction. In Brij Inder Singh Vs. Kanshi Ram (ILR) (1918) 45 Cal. 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari  (Air 1969 SC 575) a Bench of three-Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.”

                    In the instant case the learned District Commission has passed the impugned order by ignoring the statutory provisions for allotment of plots by HUDA-opposite parties and therefore, it is a fit case to condone the delay. Hence, the delay of 567 days in filing of the present appeal is hereby condoned.

8.                It is an admitted fact that the present respondent (complainant) was allotted a Plot No.163 situated at Sector-5 (c), Rewari vide Memo No.7695 dated 15.09.2005 against which he deposited an amount of Rs.9,45,000/- with the present appellants(OPs). It is also admitted that respondent deposited an amount of Rs.45,000/- on 17.02.2014 and Rs.25,000/- on 13.03.2014. Only issue involved in the present matter is that as per the respondent (complainant) he deposited the entire amount towards the cost of said plot and despite this the appellants failed to issue No Dues Certificate to him. On the other hand, as per the appellants an amount of Rs.44,336/- as on 16.03.2015 is due against the respondent and due to this reason No Dues Certificate was not issued to him.

9.                Learned counsel for appellants drew attention of this Commission towards the account statement (Annexure A-1) as per which an amount of Rs.44,346/- was due against him as on 16.03.2015. It is also established on record that during the pendency of complaint before learned District Commission, the appellants issued a letter dated 20.10.2015 (Ex.OP-1) to the respondent demanding an amount of Rs.44,744/- and it is clear from this letter that possession was offered to respondent (complainant) on 11.12.2008. Hence, it is also established that the appellants were willing and ready to hand over the possession of plot to present respondent (complainant) at that time. Moreover, it is also established that possession was also taken by the respondent (complainant) on 11.12.2008. It is pertinent to mention here, as we all know that No Dues Certificate can only be issued if all the dues were cleared by the allottee as per rules and regulations of HUDA Policy.

10.                In view of the abovementioned facts and circumstances, impugned order dated 15.12.2015, passed by learned District Commission, Rewari is hereby set-aside. Present appeal, therefore, stands allowed. However, the respondent-complainant is directed to pay the outstanding amount to the appellants-OPs and thereafter the appellants are liable to issue No Dues Certificate to the respondent-complainant.

11.                Statutory amount of Rs.15,280/- be refunded to the present appellants against proper receipt and identification and after expiry of the period of filing appeal, revision, if any.

12.                 Application(s) pending, if any, stands disposed of in terms of the aforesaid order.

13.                A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on website of the Commission for the perusal of the parties.

14.                File be consigned to record room alongwith a copy of this order.

 

Pronounced on 29^th April, 2024                                                    S.C Kaushik,

Member        

Addl. Bench-III