Haryana

Yamunanagar

CC/932/2012

Radhi W/o Ram Dhari - Complainant(s)

Versus

HUDA - Opp.Party(s)

Arvinder Singh Chahal

28 Jun 2017

ORDER

BEFORE THE PRESIDENT DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR AT JAGADHRI.

 

                                                                                                Complaint No. 932 of 2012.

                                                                                                Date of institution: 03.09.2012

                                                                                                Date of decision: 28.06..2017.

 

Radhi aged about 60 years widow of late Ram Dhari, resident of New Ratgal, Opposite New Bus Stand, Kurukshetra, District Kurukshetra.                                                                

                                                                                                                     …Complainant.

                                    Versus

1. Haryana Urban Development Authority, Jagadhri District Yamuna Nagar through its Estate Officer.
2. Chief Administrator Haryana Urban Development Authority Sector-6, Panchkula.
3. Punjab National Bank Thanesar District Kurukshetra, Branch Opposite Co-operative Goel Bank Railway Road Kurukshetra, through its Branch Manager.                                                                                                           

                                                                                                                   …Respondents.

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT.

                        SH. S.C.SHARMA, MEMBER.

                   

Present:  Sh. Arvinder Singh Chahal, Advocate, counsel for complainant.

              Sh. Anuj Jain, Advocate, counsel for respondents No.1& 2.   

              Respondent No.3 already ex-parte.  

 

ORDER   (ASHOK KUMAR GARG PRESIDENT)

 

1.                     Complainant Radhi  has filed the present complaint under section 12 of the Consumer Protection 1986 as amended up to date against the respondents(hereinafter referred as OPs). 

2,                     Brief facts of the present complaint, as alleged by the complainant, are that complainant applied for plot of 3 marlas in Urban Estate, Sector-18 (Part II), Jagadhri vide application No. 136269 with the respondent No.1 and as per direction of OPs No.1 & 2, complainant had deposited a sum of Rs. 2691/- with the OP No.3 PNB Bank Thanesar, District Kurukshetra vide receipt dated 02.12.2005. Thereafter, after passing such a sufficient time, the complainant approached the Op No.1 and asked its official about the fate of draw but no satisfactory answer was given to the complainant, upon which, the complainant visited to the official of OP No.3 Bank and asked them about the amount deposited by her on 02.12.2005 and it was told to the complainant by the official of the OP No.3 Bank that the said amount has been got deposited in the account of OPs No.1 & 2 and the only OP No.1 & 2 can tell the status about the same. After that complainant again met with the official of Op No.1 at Jagadhri and requested them to disclose her about the draw regarding the plot. Firstly the OP No.1 lingered on the matter by making one pretext or the other and ultimately refused to recognized the complainant. It has been further mentioned that having been aggrieved from the illegal acts of the OPs, the complainant had filed a complaint under section 12 of the Consumer Protection Act against the OPs before the Hon’ble Forum at Kurukshetra which was decided in favour of the complainant vide order dated 22.09.2010 but the Hon’ble State Commission, on appeal filed by the Ops (HUDA) set aside the order passed by the Hon’ble District Forum, Kurukshetra and dismissed the complaint vide order dated 05.07.2012 in FA No. 1650 of 2010 with the direction to file the present complaint before the Forum having proper territorial jurisdiction. Hence, the present complaint has been filed before this Forum. Lastly, it has been prayed that OPs be directed to issue necessary directions to allot the plot in favour of the complainant or to refund the amount of Rs. 2691/- to the complainant along with interest and also to pay compensation as well as litigation expenses.

3.                     Upon notice, OPs No.1 & 2 appeared and filed its written statement whereas Op No.3 failed to appear despite service through registered post, hence, OP No.3 was proceeded ex-parte vide order dated 26.10.2012.

4.                     OPs No.1 & 2 filed its written statement by taking some preliminary objections such as complaint is not maintainable; there is no relationship of consumer and supplier between the parties; complainant has no jurisdiction to file the present complaint; complainant has not come to this Forum with clean hands and has concealed the true and material facts. The true facts are that there was no scheme at the time of alleged application form for the allotment of plot in Urban Estate, Sector-18, Part II, Jagadhri under which Rs. 2691/- could have been deposited along with application form. However, there was a scheme for the allotment of plots in Jagadhri, Sector-18 Part II of 3 marlas and 2 marlas and 10% earnest money of Rs. 2370/- and 1795/- respectively were to be deposited alongwith application form. Moreover, no alleged application form and an amount of Rs. 2691/- was deposited by the complainant with the OP No.1 as alleged and on merit, it has been mentioned that complainant has filed a false and frivolous complaint just to harass and humiliate the official of the Ops. The complainant had earlier filed a complaint bearing No. 670/2007 before the District Forum, Kurukshetra which was allowed vide order dated 22.09.2010 but on appeal filed by the Ops No.1 & 2 the complaint of the complainant was ordered to be dismissed with liberty to approach the Forum having proper jurisdiction. Rest contents of the complaint were controverted and reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint.

5.                     In support of her case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and documents such as photo copy of slip of bank for depositing Rs. 2691/- as Annexure C-1, Photo copy of order of Hon’ble State Commission, Haryana, Panchkula in FA No. 1650  of 2010 decided on 05.07.2012 as Annexure C-2, Photo copy of order passed of District Consumer Forum, Kurukshetra passed in CC No. 670 of 2007 decided on 22.09.2010 as Annexure C-3 and closed the evidence on behalf of complainant. IN additional evidence, complainant examined 1 witness Devinder Kumar Sharma, DCDRF, Kurukshetra who tendered into evidence photocopy of account statement as Annexure C-4.

6.                     On the other hand, counsel for the OPs No.1 & 2 tendered into evidence affidavit of Prem Chand Gangle Estate Officer, HUDA, Jagadhri as Annexure RX and documents such as Photo copy of order of Hon’ble State Commission, Haryana, Panchkula in FA No. 1650  of 2010 decided on 05.07.2012 as Annexure R-1, Photo copy of cutting for detail of plots  alongwith list of application as Annexure R-2 & R-3 and closed the evidence on behalf of OPs No.1 & 2.

7.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

8.                     The only grievance of the complainant is that she applied for 3 Marla plot in Urban Estate, Sector 18, Part II, Jagadhri vide application No.136269 and as per directions of the OP No.1 and 2, complainant deposited a sum of Rs.2691/- with the OP No.3 Bank at Thanesar (Kurukshetra) and after passing sufficient time the complainant approached the OP No.1 but no satisfactory answer was given, neither any plot was allotted to her nor even the amount of Rs.2691/- deposited with the OP No.1 and 2 through OP No.3 was refunded to the complainant which constitute the deficiency in service and unfair trade practice on the part of the OPs. Learned counsel for the complainant draw our attention towards the receipt (Annexure C-1) vide which complainant deposited Rs.2691/- on 02.12.2005 in the name of HUDA-Jagadhri at Thanesar Branch of OP No.3 Bank, mentioning the application No. 136269 and argued that from this receipt it is clear that complainant has deposited the said amount for participating in the draw for allotment of plot at HUDA- Jagadhri. Learned counsel for the complainant further draw our attention towards the previous judgment passed by Hon’ble District Forum, Kurukshetra (Annexure C-3) and order passed by Hon’ble State Commission, Panchkula on 05.07.2012 as Annexure C-2 and argued that from the passing of order by the Hon’ble State Commission on 05.07.2012 the present complaint is within the limitation and lastly prayed for acceptance of the complaint.

9.                     On the other hand, learned counsel for the OP No.1 and 2 argued at length that a false and manipulated complaint has been filed just to harass and extract to the money from the OP No.1 and 2 HUDA. Learned counsel for the OPs No.1 and 2 draw our attention towards the brochure/pamphlet published by HUDA Department for demanding the applications for allotment of plots in various cities including Faridabad, Sector 56 and 56A, Jagadhri Sector 18 Part II (Annexure R-2) and argued that as per this brochure the amount which was to be deposited with the application was Rs.2370/- for 3 marla plot in Jagadhri Sector 18 Part II and Rs.2691/- was application money for the plot in Faridabad Sector 56, 56A and argued that as the complainant deposited Rs.2691/-  and no such amount was demanded for allotment of plot as application money for  Jagadhri, Sector 18, part II, HUDA, So application of complainant was not considered for the draw of plots for Jagadhri and the same was considered for the draw of plots at Faridabad, Sector 56, 56A. However, the complainant remained unsuccessful and the amount deposited by the applicant was refunded through Head Office of the OP No.3 Bank to the applicant. Learned counsel for the OP No.1 and 2 draw our attention towards account statement (Annexure C-4) vide which that amount of Rs.2691/-  was deposited by the complainant and the same was disbursed to the OP No.1 and 2 in respect of application No.136269. Further, learned counsel for the OPs draw our attention towards the letter dated 28.10.2016 issued by Punjab National Bank and argued that from the perusal of this letter it is duly evident that amount of Rs.2691/- was refunded to Smt. Radhi wife of Ram Dhari. Further, learned counsel for the OPs No.1 and 2 also draw our attention towards information taken under RTI Act placed on file during the course of arguments and referred letter bearing Memo No.10549 dated 07.10.2016 issued by Estate Officer, HUDA, Faridabad and argued that from the perusal of this letter it is clear that the amount of Rs.2691/- + interest of Rs.39/- thereon was refunded vide refund order no.RFC 55993 to the unsuccessful applicant through Punjab National Bank, Sector-17B, Chandigarh. Lastly, Learned counsel for the OPs argued that as the applicant was herself negligent at the time of submitting the application as she apply the plot of 3 Marla in Sector 18, Part II, HUDA, Jagadhri whereas she deposited amount of Rs.2691/-  which was required for the application for draw at Faridabad, Sector 56, 56A. So the OP No.1 and 2 as per amount deposited by the applicant considered the application for Faridabad. Further as the complainant remained unsuccessful in the draw for plot in Sector 56, 56A, HUDA Faridabad,  so the amount of Rs.2691/-  was refunded along with interest to the applicant / complainant and lastly prayed for dismissal of the complaint as there was no deficiency in service or unfair trade practice on the part of the OP No.1 and 2. Lastly referred the case law tilted as (National Commission) 2010(1) CPC 440 and referred by the counsel for the OPs wherein it has been held that :-

Consumer Protection Act, 1986- Section 2(1) – Consumer- Allotment- An application for allotment was given by the complainant as a prospective investor- Complainant is not a consumer merely on the basis of application for allotment till allotment of plot made in his favour.

and another case tilted as “ Union Bank of India Vs. Smt. Anita Gupta and others, Appeal No.783/2003 decided on 28.09.2010 by the Hon’ble State Commission, Panchkula wherein it has been held that passed on the judgment titled as Rourkela Development Authority Vs. Rourkela Consumer’ Front, 2009 CTJ 1166(CP) (SCDRC) wherein it has been held only by depositing the earnest money for allotment of a plot of land or house does not make a person “Consumer “  as thereby he does not hire service in the present case and therefore, there can be no question of any deficiency in service.

10.                   After hearing both the parties we are of the considered view that from the perusal of brochure /pamphlet (Annexure R-2) it is evident that an amount of Rs.2370/- was required to be deposited with the application for participating in the draw for allotment of plot at Sector 18 part II, Jagadhri but the applicant deposited Rs.2691/- which is evident from the photocopy of receipt (Annexure C-1). So it seems that there was some mistake on the part of the complainant herself. Further, as per version of the OP No.1 and 2 it is clear that the application of the complainant was considered for allotment of plot at Faridabad and as the complainant remained unsuccessful, the said amount of Rs.2691/- along with interest of Rs.39/- was refunded through the OP No.3 to the complainant which is duly evident from the photocopy of letter issued by OP Bank on 28.10.2016 and further from the letter issued by Estate Officer, Faridabad vide memo No.10549  dated 07.10.2016 and account statement (Annexure C-4). This version of the OPs has not been reverted by the complainant by leading any cogent evidence.

11.                   The complainant has not placed on file any photocopy of Form/application submitted with the OPs for allotment of plot in question and the OP No.1 and 2 have also not placed on file photocopy of the same, so in that absence of this Form, we are unable to hold that there was any lapses on the part of the OP No.1 and 2 HUDA or OP No.3 Bank. Although as per case law referred by counsel for the OPs titled as Union Bank of India Vs. Smt. Anita Gupta and others (National Commission) 2010(1) CPC 440 , Rourkela Development Authority Vs. Rourkela Consumer’ Front, 2009 CTJ 1166(CP) (SCDRC) (Supra), the complaint of the complainant is not maintainable, even then as the Op No.1 to 3 totally failed to prove that amount of Rs. 2691/- deposited by the complainant was refunded to her as no photocopy of any cheque or Demand Draft or any other account statement showing the transfer of amount from the account of the Op No.3 Bank to the Bank of the complainant has been placed on file. Mere placing on the file letter dated 28.10.2016 issued by Punjab National Bank to Estate Officer, HUDA and letter bearing Memo No.10549 dated 07.10.2016 issued by Estate Officer HUDA, Faridabad to Estate Officer, HUDA Jagadhri, the OP No.1 to 3 cannot save their skin from the liability for refunding the amount of Rs.2691/- deposited by the complainant by placing on file any cogent evidence which has not been placed on file. It may be that amount i.e. Rs.2691/ - is lying with the OP No.3 Bank as no such certificate on  behalf of OP No.3 bank has been placed on file vide which all the amount transferred by the OP No.1 and 2 for unsuccessful  applicant has been refunded to them. This fact cannot be ignored that complainant is facing and fighting for legal right since the filing of first complaint i.e. 18.10.2007 and the official of the OPs till date could not justify/satisfy the complainant, even to this Forum, hence, we are of the considered view that the officials of the OP No.1 and 2 remained negligent and careless in respect of grievance of the complainant which constitute the deficiency in service and unfair trade practice on their part.

12.                   Resultantly, in the circumstances noted above, and to avoid further litigation between the parties as both the parties are facing litigation since 2007, we partly allow the complaint of the complainant and direct, the OP No.1 and 2 to refund the amount of Rs.2691/-  along with interest @ 9%  per annum from the date of filing the first complaint i.e. 18.10.2007  till its realization and further the OP No.1 and 2 are also directed to pay Rs.15000/- as compensation for mental agony, harassment and further to pay Rs.5000/- as litigation expenses. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be supplied to the parties concerned as per rules. File be consigned to the record room after due compliance.

Pronounced in open court.                                         

Dated: 28.06.2017.                                                      (ASHOK KUMAR GARG),

                                                                                    PRESIDENT, DCDRF

                                                                                    YAMUNA NAGAR AT JAGADHRI

 

 

                                                                                    (S.C. SHARMA)          

                                                                                    MEMBER