Haryana

StateCommission

A/304/2019

ASHMA ANSARI - Complainant(s)

Versus

HARYANA URBAN DEVELOPMENT AUTHORITY AND OTHERS - Opp.Party(s)

SATPAL DHAMIJA

12 Sep 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First  Appeal No.1241 of  2018

Date of the Institution:06.11.2018

Date of Final Hearing: 12.09.2022

Date of pronouncement: 15.12.2022

 

1. Chief Administrator, Haryana Urban Development Authority, C-3, HUDA Complex Sector-6, Panchkula.
2. The Administrator, Haryana Urban Development Authority, Sector-3, Rohtak.
3. The Estate Officer, Haryana Urban Development Authority, Sector 13-17, Panipat.

                                                                                            .….Appellants

Versus

Ashma Ansari W/o P.M. Ansari Aged 61 years, R/o H.No.773, Sector 18, Near Toll Plaza HUDA, Panipat.

          .….Respondent

 

CORAM:    S.P.Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

                   

 

Present:-    Mr.Ranvir Sood, , Advocate for the appellants.

                   Mr.Satpal Dhamija, Advocate for the respondent.

 

F.A. No.304 of 2019

Date of institution:- 01.04.2019

Date of Final Hearing:- 12.09.2022

Date of pronouncement:15.12.2022

 

Ashma Ansari W/o P.M. Ansari, Aged 63 years, R/o H.No.773, Sector 18, Near Toll Plaza HUDA, Panipat.

…..Appellant

Versus

1. Chief Administrator, Haryana Urban Development Authority, C-3, HUDA Complex Sector-6, Panchkula.
2. Administrator, Haryana Urban Development Authority, Sector-3, Rohtak.
3. The Estate Officer, Sector 13-17, HUDA, Panipat, district Panipat.

          …..Respondents

CORAM:    S.P.Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

                   

 

Present:-    Mr. Satpal Dhamija, Advocate for the appellant.

                   Mr.Ranveer Sood, Advocate for the respondent.

 

O R D E R

S P SOOD, JUDICIAL MEMBER:

Vide this common order above mentioned two appeals bearing No.1241 of 2018 and 304 of 2019 will be disposed of as both have been preferred against the order dated 10.07.2018 passed by the District Consumer Disputes Redressal Forum, Panipat (in short Now ‘District Commission).

2.      There is a delay of 76 days in filing the appeal bearing No.1241 of 2018.  Appellant in appeal No.1241 of 2018 has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  76 days wherein,  it was alleged that copy of order was prepared on 16.07.2018 and same was received by the OP on 31.07.2018, the process for filing the appeal before the State Commission was initiated immediately. Thus, delay of 76 days in filing of the present appeal be condoned.

3.      There is also a delay of  204 days in filing the appeal bearing No.304 of 2019.  Appellant in appeal No.304 of 2019 has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  204 days wherein,  it was alleged that the present complaint case was listed on 10.07.2018 for arguments and thereafter, the same was kept for pronouncement and it was informed to the representative of the complainant that the copy of order will be sent by the Registry at the address of the complainant.  After some time, the complainant enquired about the certified copy of the order, it was informed that copy has already been sent on 26.07.2018.  She moved an application for certified copy of the order dated 10.07.2018 on 19.12.2018 and the same was supplied on 20.12.2018. Thereafter complainant took legal advice at Panipat.   The complainant was under bona fide impression that she was entitled to challenge the award in the appeal filed by HUDA and approached the present counsel on 12.03.2019 as the appeal No.1241 of 2018 was fixed for appearance on 14.03.2019.  It was further submitted that after discussing the matter with her present counsel, she decided to challenge the award by filing the present appeal. Thus, delay of 204 days entailed in filing of the present appeal be condoned.

4.      Arguments Heard. File perused.

5.      Learned counsel for the appellant in appeal No. 1241 of 2018 vehemently argued that copy of order was prepared on 16.07.2018 and same was received by the OP on 31.07.2018, the process for filing the appeal before the State Commission was initiated immediately. Due to the above said reasons, the appeal could not be filed in time, so the delay of 76 days be condoned. 

6.      Learned counsel for the appellant in appeal No.304 of 2019 vehemently argued that present complaint case was listed on 10.07.2018 for arguments and thereafter, the same was kept for pronouncement and it was informed to the representative of the complainant that the copy of order will be sent by the Registry at the address of the complainant.  The complainant enquired about the certified copy of the order, it was informed that copy has already been sent on 26.07.2018.  She moved an application for certified copy of the order dated 10.07.2018  on 19.12.2018 and the same was supplied on 20.12.2018. Thereafter complainant took legal advice at Panipat.   The complainant was under bona fide impression that she was entitled to challenge the award in the appeal filed by HUDA and approached the present counsel on 12.03.2019 as the appeal No.1241 of 2018 was fixed for appearance on 14.03.2019.  It was further submitted that after discussing the matter with her present counsel, she decided to challenge the award by filing the present appeal. Due to the above said reasons, the appeal could not be filed in time, so the delay of 204 days entailed be condoned. 

7.      This argument is not available.  A period of 30 days has been provided for filing an appeal against the order of the District Commission. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

8.                  The inordinate delay of 76 days  in appeal No. 1241 of 2018 as well as 204 days in appeal No.304 of 2019 cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

          The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.”

          The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

            In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:

         “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

      In Ram Lal and Ors.  Vs.  Rewa Coalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

         

9.      Taking into consideration the pleas raised by appellants in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 76 days in appeal No.1241 of 2018 and 204 days in appeal No.304 of 2019 in filing of the appeal. Hence application filed for condonation of delay  in both the appeals are dismissed.  

10.    Briefly stated, facts of the case as per the complainant goes like that  she was allotted a residential plot No.782-P, 138 sq. mtr., Sector 8, HUDA Panipat from opposite parties (O.Ps.) as per allotment letter dated No.12504 dated 22.11.2004.  The tentative price of the plot was Rs.4,22,620/-. An amount of Rs.38,420/- has paid by the complainant alongiwth application as earnest money. The complainant paid an amount of Rs.67,235/- within 30 days from the date of allotment. The remaining amount of Rs.3,16,965/- was to be paid in six annual installments. The complainant made the payment of tentative price of the plot. The possession of the said plot was to be delivered within a period of 90 days from the date of allotment, but the possession was not delivered upto 2015.  Being so she filed Civil writ petition NO.19120 of 2015 before Hon’ble Punjab and Haryana High Court, Chandigarh, wherein the OPs suffered a statement assuring to  allot alternative plot by 30.04.2016.  In compliance of the order, the OPs allotted an alternative plot bearing No.192 in sector 40 HUDA vide allotment letter No.a-1-2016/6957 dated 29.08.2016 to the complainant. The complainant is entitled to interest on the deposited amount alongwith compensation for the difference in value of the plot situated in Sector 8 and sector 40. Thus there was deficiency in service on the part of the OPs.

11.     Notice issued to the OPs, later filed reply and submitted that in view of order of Punjab and Haryana High court, allotment of alternative plot No.192 in Sector 40 HUDA Panipat  has been admitted by the OPs. The complainant though claiming interest on the deposited amount, but, as per HUDA policy, no interest was payable to the allottes of plot who were allotted plot prior to 01.01.2007 so the complainant was not entitled to any interest.  Objections about maintainability of complaint, locus standi, jurisdiction, accruing cause of action and concealment of true facts etc. were also raised and requested to dismiss the complaint. Thus there was no deficiency in service on the part of the OPs.

12.    After hearing both the parties, District Consumer Disputes Redressal Commission, Panipat partly allowed the complaint vide impugned order dated 10.07.2018, which is as under:-

“So as a result of our aforesaid findings and observations, we partly accept the present complaint and direct the OPs to make the payment of interest @ 8% on the deposited amount of the complainant from 15.11.2010 till 29.08.2016. The OPs shall make the compliance of this order within a period of 30 days from the date of receipt of the copy of this order.”

 

13.              Feeling aggrieved therefrom, complainant-appellant in appeal No.304 of 2019 as well as O.Ps.-HUDA in appeal No.1241 of 2018 preferred the afore-mentioned appeals.

14.              The arguments have been advanced by Sh.Ravir Sood, learned counsel for the appellants in 1241 of 2018 and respondent in appeal No.304 of 2019 as well as Mr.Satpal Dhamija, learned counsel for the respondent in appeal No.1241 of 2018 and appellant in appeal No.304 of 2019.  With their kind assistance the entire record including documentary evidence as well as whatever evidence had been led during the prosecution of the complaint have also been properly perused and examined.

15.              Learned counsel for the appellant-complainant in appeal No.304 of 2019 and respondent in appeal No.1241 of 2018 has vehemently argued that originally complainant was allotted a plot No.782-P in Sector 8 HUDA, Panipat in the year 2004, but  as after entire payment was made by complainant, the possession of the plot was still not delivered within the stipulated time, she had to seek indulgence of Hon’ble High Court of Punjab and Haryana. As per the order of Hon’ble High Court, the HUDA authorities-opposite parties allotted an alternative plot  No.192 in Sector 40, HUDA Panipat. But complainant was entitled for the interest on the deposited amount  as she had already deposited the entire price of the plot and compensation regarding the difference in value of plots in Sector 8 and Sector 40. The decision of the earned District Commission  are not sustainable and are liable to be modified by awarding interest @ 18% from the date of deposit i.e. from 2004 and also award compensation, litigation expenses and escalation costs of construction.

16.    Learned counsel for the respondent in appeal No.304 of 2019 and appellant in appeal No.1241 of 2018 has vehemently argued that  as per the order of Hon’ble High Court, the HUDA authorities-opposite parties have already allotted alternative plot  No.192 in Sector 40, HUDA Panipat in lieu of previously allotted plot No.782 P in Sector 8 HUDA. As per the HUDA policy, the complainant was not entitled for the interest on the deposited amount   prior to 01.01.2007. Therefore impugned order deserves to be set aside while allowing the appeal No. 1241 of 2018 and complaint be dismissed.

17.    It is not disputed that plot No.782-P in Sector 8 HUDA, Panipat was allotted to the complainant way back in the year 2004.  It is also not disputed that as per the order of Hon’ble High Court, the HUDA authorities-opposite parties have afterwards allotted alternative plot  No.192 in Sector 40, HUDA Panipat in lieu of plot No.782-P, Sector-8, HUDA, Panipat in the year 2016.  Learned District Commission has rightly allowed the interest @ 8% on the deposited amount of the complainant from 15.11.2010 till 29.08.2016 because alternative plot was allotted by the Hon’ble High Court of Punjab and Haryana on 29.08.2016 itself. Learned District Commission has rightly partly allowed the complaint of the complainant.  Likewise since no document was brought on record by complainant as to how both the plots situated in sector 8 and sector 40 received different appreciation of their worth so rightly her request to get the difference in these two prices was refused.

18.    Resultantly, the contentions raised on behalf of the present appellants in both the appeals stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Commission does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.  Hence, both the appeals stand dismissed on merits.

19.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant-respondent in appeal NO. 1241 of 2018 and appellant in appeal No.304 of 2019 against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

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

21.    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 the website of the Commission for the perusal of the parties.

22.    File be consigned to record room.

 

 

15th  December, 2022       Suresh Chander Kaushik            S. P. Sood                                                                Member                                             Judicial Member    

 

S.K

(Pvt. Secy.)