Haryana

StateCommission

A/922/2015

DAYA NAND - Complainant(s)

Versus

HUDA - Opp.Party(s)

MANISH SONI

23 Dec 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                                                         First Appeal No.922 of 2015

Date of Institution: 21.10.2015

Date of Decision: 23.12.2015

 

Daya Nand S/o Sh.Khub Ram, Village Jouri, District Rewari.

 

…..Appellant

Versus

 

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

2.Chief Manager, Haryana Urban Development Authority, Sector-6, Panchkula.

…..Respondents

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:               Shri Manish Soni, Advocate counsel for appellant.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER:-

          Appellant has filed this application for condonation of delay of 109 days in filing the appeal.  It is alleged that  he is residing in rented premises and could not arrange sufficient funds to file the appeal.  Lot of time was consumed for that purpose. Hence the delay be condoned.

2.      Arguments heard.  File perused.

3.      The explanation given in the application is not sufficient to condone the delay it cannot be presumed that it took 147 days to arrange the funds. 

4.      More so, no fee was to be deposited in the present appeal, so there was no question of arranging any fund.  It appears that this plea has been raised just to get the delay condoned. The reason stated in the application is not plausible. 

5.      A period of 30 days has been provided for filing an appeal against the order of the District Forum. 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.

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.”

         

    Hon’ble Supreme Court in  Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 held as under;

“We have considered   the respective    submissions.  The law of limitation is founded on public policy. The   legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that   they    do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same   time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.”       

      In 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority, Hon’ble Apex Court observed as under:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

          Taking into account the ground taken by the appellant in the application for condonation of delay and the settled principle of law, this Commission does not find it a fit case to condone the delay of 109 days in filing of the appeal particularly when case is not good on merits as being discussed hereinafter.

6       The complainant has alleged that he was allotted plot No.573 Sector-4, Rewari, but, the possession was not delivered to him and thereafter he filed complaint which was partly allowed by the District Consumer Disputes Redressal Forum, Rewari, (In short “District Forum”) vide impugned order dated 02.09.2008 and directed the opposite parties (O.Ps.) to complete the development works at the site within the period as assured and thereafter to deliver the possession of the plot to the complainant without any delay.  Thereafter he filed an execution petition to implement that order, but, that was adjourned sine die by District Forum, Rewari vide order dated 30.05.2010.  In view of SLP No.20012 of 2013 titled as Virender Saini & Anr Vs. State of Haryana & Anr.,  the case was pending before the Hon’ble Supreme Court wherein the dispute about plot in question was also involved.  Thereafter he filed this fresh complaint for directing the respondent to allot an alternative plot.

7.      O.Ps. alleged that the matter about plot allotted to the complainant was pending before the Hon’ble Supreme Court and that is why fresh complaint cannot be entertained.

8.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Rewari dismissed the complaint  vide impugned order dated 27.05.2015.

9.      Feeling aggrieved therefrom, the complainant-appellant has preferred this appeal

10.    When the complainant has already filed a complaint about this plot and final order has already been passed on the same, the second complaint is not maintainable.  Even otherwise the matter is pending before the Hon’ble Supreme Court, so the District Forum cannot pass an order. Executing court as well as district Forum has taken into consideration this aspect.  Relevant para of order passed  by executing court on 30.05.2014 is as under:-

“During the pendency of this complaint,  Executive Engineer HUDA was directed to appear before this forum on 02.09.2008.  As such Shri Jawahar Lal Sub Divisional Engineer, HUDA, Rewari appeared in pursuance of the directions of this Form and stated that the development works shall be completed within six months subject to any legal complications in future. His statement has been recorded separately.  After a plain reading of the record, it appears that HUDA has been making its best efforts to get the development work completed and the Sub Divisional Engineer, HUDA to this effect also assured that the development work will be completed within six months.  As such, the present complaint is allowed partly by directing the opposite parties to complete the development work at the site within the period as assured and hereafter to deliver the possession of the plot to the complaint without any delay.”

11.    Thereafter the relevant portion of the order dated 27.05.2015 is as under:-

“In the present complaint, Hon’ble Supreme Court in its wisdom has decided to order “status quo” qua the suit land which also admittedly include the plot in question. With these observations, the present complaint is hereby dismissed being not maintainable.”

12.    From the perusal of this order it is clear that when matter is pending before Hon’ble Supreme Court and has directed to maintain status quo, the District Forum cannot pass an order. So the findings of the learned District forum well reasoned based on law and  facts and cannot be disturbed.  Resultantly, appeal fails and the same is hereby dismissed on both counts i.e. delay as well as on merits.

 

December 23rd, 2015

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench