Haryana

StateCommission

A/166/2016

PARESH NATH - Complainant(s)

Versus

HUDA - Opp.Party(s)

PARDEEP SOLATH

20 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                                                         First Appeal No.166 of 2016

Date of Institution: 10/24.02.2016

Date of Decision: 20.05.2016

 

Paresh Nath S/o Sh.Vishwa Nath,R/o H.No.E-32, Kalindi ring Road, New Delhi-85.

…..Appellant

Versus

 

Haryana Urban Development Authority, Faridabad,Sector-12, HUDA Faridabad through its Estate Officer.

…..Respondent

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

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:              Shri Pardeep Solath, Advocate counsel for   appellant.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER:-

          It was alleged by the complainant that he was allotted plot No.185, Sector 21 B Faridabad by opposite party (O.P.) vide memo No.2104 dated 08.01.1973.  Possession of the plot was handed over to him on  10.05.1982. Thereafter he got the plan sanctioned and completed construction in the year 1983. He got electricity connection installed at the place/plot on 16.10.1986   He also obtained water connection on this plot.  After completion of construction he applied for refund of the security amount which was deposited before raising construction.  After verifying the facts, officials of O.P. refunded Rs.1503/- vide cheque No.175324 dated 21.10.1986 after making necessary deductions.  In this way, O.P. acknowledged the completion of construction by him.  After issuing orders of construction O.P. never sent any letter to him to obtain occupation certificate, but, all of a sudden started issuing frivolous notices to the effect that he violated conditions of allotment letter. He was writing letters to O.P. time and again informing about completion of construction within time.  O.P. was threatening to resume the plot on the ground of non-construction and violation of terms and conditions of insurance policy. Even another notice bearing no.45597 dated 16.10.2008 was issued.  The act of the O.P. was covered by unfair trade practice.  No occupation certificate was required when security was already refunded by O.P. The documents mentioned in the complaint were showing that he completed construction well in time and was residing in the house. O.P. never issued any notice or letter regarding outstanding dues previously.  Finding no other alternative he  filed complaint No.185 of 2009 before District Consumer Disputes Redressal Forum, Faridabad ( In short “District Forum”)  and prayed to direct respondent to withdraw illegal notices of demanding extension fees.  After the decision of that case he applied with O.P. for issuing No objection certificate, but, without applying mind O.P. decided his representation on the ground that his case was remanded back by State Commission to District Forum and was not decided on merits and request could not be adhered to, as mentioned in para No.10 of the complaint. The entire order was showing that O.P. was not aware about factual position as no appeal was filed by him before State Commission, Haryana. Therefore there was no question of remand. Condition No.7 of allotment letter was as under:-

“On payment of 25 per cent of the total tentative sale price of the plot you shall have to execute a Deed of Conveyance on the prescribed from in such manner as may be directed by the undersigned.”

He had already deposited paid 10% price on 07.06.1980 and requested OP to execute conveyance deed.  He also deposited Rs.3360/- qua necessary expenses. Administrator HUDA decided an appeal titled Rakesh Nath Versus Estate Officer, HUDA which was on similar footings. So, OP be directed to  withdraw illegal notices on account of alleged non-construction and issuing occupation certificate etc.

2.      O.P. filed reply controverting his averments and alleged that he had concealed true facts from the court. Actually plot in question was allotted to One Baldev Parashad Nayyar vide allotment memo No.1204 dated 08.01.1973. As per terms and conditions of allotment letter construction was to be completed within three years from that date of allotment. The time limit was to be extended if it was found that cause of delay was beyond control, otherwise plot was to be resumed. This plot was transferred in the name of the complainant vide letter bearing No.16739 dated 07.06.1980 and physical possession was taken by him in the year 1982 vide certificate No.872 dated  10.05.1982. Thereafter new policy was circulated by the Government which was informed to him vide letter bearing No.A/21B/89/185 dated 13.06.1989. Thereafter show cause notice under section 17 (1 & 2) of HUDA Act was issued to him vide memo No.R/21B/93/185 dated 08.12.1993 qua extension fee amounting to Rs.39,427/-. Thereafter letter No.854 dated 10.01.1994 was issued to deposit copy of occupation certificate or pay extension fee, but, to no avail.  Show cause notices were issued to him vide memo/letter Nos.6843 dated 27.09.2001, 48463 dated 27.11.2002, 9992 dated 20.02.2008, 42420 dated 17.09.2008, 43429 dated 25.09.2008, 45597 dated 16.10.2008, but, to no avail.  The building was to be erected as per provisions of building bye laws applicable in Urban Estate.  He filed complaint No.185 dated 02.03.2009 on the same very cause of action, but, was dismissed on merits by District Forum vide impugned order dated 11.04.2012. When the  matter was already settled in the previous complaint, this complaint was not maintainable.  Objections about limitation, jurisdiction etc. were also raised and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Consumer Forum dismissed the complaint vide impugned order dated 08.01.2016 on the ground that complaint filed on the same very cause of action was already dismissed and this complaint was not maintainable.

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

5.      Arguments heard. File perused.

6.      It is argued by learned counsel for the complainant-appellant that provisions of CPC are not applicable in consumer cases and subsequent complaint cannot be considered as barred by res- judicata as opined by Hon’ble Punjab and Haryana High Court in P.C.Wadhwa Vs. Hanil Era Textiles Ltd (Punjab and Haryana) 2014 (2) PFR 1 : 2015 (1) CLT 248.

7.      This argument is devoid of any force.  The case law relied upon by the appellant is not applicable in the present case.  In that case it was decided whether the civil suit was barred when a consumer complaint was already decided.  Therein , it was opined that principle of res judicata is not applicable on the civil suit.  It was no where opined therein that if a complaint has already been decided on merits by Consumer Fora then subsequent complaint on the same very cause of action is maintainable.  It cannot be considered as a recurring cause of action.  In complaint No.185 of 2009 complainant challenged letter dated 16.10.2008 and his complaint was dismissed on merits. In the present complaint also he has challenged that very letter.  The learned District Forum rightly came to conclusion that subsequent complaint is not maintainable and dismissed the same. These views are also fortified by the opinion of  Hon’ble National Commission expressed in revision petition No.3094 of 2012 titled as Ramesh Chand Rathore Vs. Manager State Bank of India and another decided on 09.01.2014. Resultantly the appeal is dismissed in limine.

May 20th, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.