Haryana

StateCommission

A/998/2018

HSVP - Complainant(s)

Versus

JAI PARKASH SHARMA - Opp.Party(s)

SAURABH SHARMA

07 Jun 2022

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                                 

                                                         First Appeal No.998 of 2018

                                                 Date of Institution: 23.8.2018

                                                               Date of Decision: 07.06.2022

 

1.      The Estate Officer, Haryana Urban Development Authority, Sector-6, Bahadurgarh, Distt. Jhajjar.

2.      The Chief Administrator, Haryana Urban Development authority, Sector-6, Panchkula  (Haryana).

…..Appellants

Versus

Jai Parkash Sharma S/o Chander Bhan Sharma, R/o Arya Nagar Jhajjar,Tehsil and Distt.Jhajjar.

….Respondent

CORAM:    S.P.Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

                   

Present:-    Mr.Saurabh Sharma, Advocate for the appellants.

                   Mr.Sandeep Kotla, Advocate for the respondent.

 

                                                 ORDER

S P SOOD, JUDICIAL MEMBER:

The present appeal No.998 of 2018 has been filed against the order dated 12.07.2016 of the District Consumer Disputes Redressal Forum, Jhajjar (In short Now  “District Commission”) in complaint case No.155 of 2015, which was disposed of.

2.      There is a delay of 740 days in filing the appeal.  Appellants have filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  740 days wherein,  it is alleged  that the order dated 12.07.2016 passed by District Commission, Jhajjar was prepared on 18.07.2018 and delivered to the appellants on 16.08.2018. The file was sent to the concerned office for legal opinion and thereafter the case was marked to the panelled counsel Shri Jagwant Singh, Advocate. The said counsel prepared the appeal and obtained the signatures of the appellant on the affidavits and assured to file appeal.  Unfortunately, the appellants received  warrants of arrest in the execution petition. The appellant contacted the said counsel  but was unable to trace the file and then appellant engaged another counsel to file the appeal. The delay occurred is neither willful nor intentional but is on account of above said reasons which were beyond the control of appellants. Thus, delay of 740 days in filing of the present appeal be condoned.

3.         Arguments Heard. File perused.

4.         Learned counsel for the appellants vehemently argued that order dated 12.07.2016 passed by District Commission, Jhajjar was prepared on 18.07.2018 and delivered to the appellants on 16.08.2018. The file was sent to the concerned office for legal opinion and thereafter the case was marked to the panelled counsel Shri Jagwant Singh, Advocate. The said counsel prepared the appeal and obtained the signatures of the appellants on the affidavits and assured to file appeal.  Unfortunately, the appellants received warrants of arrest in the execution petition. The appellants contacted the said counsel  but was unable to trace the file and then appellant engaged another counsel to file the appeal. As per facts mentioned above, it is clear that delay in filing appeal is not intentional, so the delay may be condoned. 

5.         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.

6.                   The inordinate delay of 740 days 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.”

         

7.      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 740 days in filing of the appeal. Hence application filed for condonation of delay  in appeal No.998 of 2018 is dismissed.   

8.      Briefly stated, the facts of the case are that the complainant was allotted plot No.216 in Sector-9 at Jhajjar by the opposite parties-appellants. The tentative price of the plot was Rs.16,00,000/- and complainant has already paid total Rs.8,39,292/- to O.P.No.1.  O.Ps. have sent letter dated 19.04.2015 for offering the possession. O.Ps. also demanded due installments  from 11.08.2015 to 11.08.2017 alongwith interest. The O.ps. have not yet provided the basic amenities i.e. water supply, approach road, sewerage etc., hence the complainant was unable to take the possession of the plot. It was  submitted that in memo, possession without providing basic amenities were against the terms and conditions of allotment letter.  Thus there was negligence and deficiency in service on the part of the O.ps.

9.      The complaint was resisted by the O.Ps.-HUDA-appellants by filing a written version before the District Forum, in which, they stated that after completing the basic amenities like water supply, sewerage and electrification and road work etc., they offered the possession of the plot to the complainant vide memo no.Z005/E003/UE031/0EPOS/0000000256. The demand of O.Ps. were legal and as per the terms and conditions of allotment letter. Thus there was no negligence and deficiency in service on the part of the O.ps. Preliminary objections about the maintainability of complaint,  jurisdiction, non-joinder and mis-joinder of necessary parties, locus standi, limitation etc. were also alleged and requested to dismiss the complaint.

10.    After hearing both the parties, District Consumer Disputes Redressal Forum, Jhajar (Now In short “District Commission”) allowed the complaint vide impugned order dated 12.07.2016, which is as under:-

“In view of aforesaid discussion and findings, it is observed that there is deficiency in service on the part of the respondents who issued offer of possession letter to the complainant vide document  Ex. P-3 on 19.04.2015 raising interest on further installments w.e.f. 23.08.2015 to 23.08.2017 from the complainant which is illegal, arbitrary, wrong and unjustified. Hence, in our considered opinion, the complainant becomes entitled for a suitable compensation in the matter. We, therefore, declare the said offer of possession Ex. P-3 with demand of interest w.e.f 23.08.2015 to 23.08.2017 as wrong and illegal and set aside the same. The respondents are directed to take the due installments from the complainant w.e.f. 23.08.2015 to 23.08.2017 without any interest thereupon and pay to the complainant a sum of Rs.5000/- on account of mental agony, harassment etc. suffered by him and also a sum of Rs.5500/- on account  of litigation expenses to the complainant for the deficiency in service on the part of the respondents. “

11.    Feeling aggrieved therefrom, O.Ps-appellants have preferred this appeal.

12.    The arguments have been advanced by Sh.Saurabh Sharma, learned counsel for the appellants as well as Mr.Sandeep Kotla, learned counsel for the respondent.  With their kind assistance the entire record of appeal including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint had also been properly perused and examined.

13.    In fact, the present appellants had come before this Commission with a limited relief that all the development activities have been carried out in Sector-9 Jhajjar, where a plot has been allotted to the complainant-respondent.  He has paid the amount of the plot except the last few installments. The present appellants had raised a demand that installments which had not been paid by the complainant, he is liable to pay the same alongwith interest.   As per allotment letter Ex. P-8 dated 11.08.2011, the possession of the plot will be offered within a period of three years from the date of allotment after completion of development in the area. Clause 7 of the allotment letter is reproduced below:-

“The possession of the plot will be offered within a period of three years from the date of allotment after completion of development work in the area.  In case possession of the plot is not offered with in the prescribed period of three years from the date of allotment, HUDA will pay interest @ 9% ( or as may be fixed by Authority from time to time) on the amount deposited by you after the expiry of three years till the date of offer of possession and you will not be required to pay the further installments. The payment of this balance installments will only start after the possession of the plot is offered to you.”

 As per Ex. P-2, which reveals that in the year 2016, the HUDA Authority has not taken water connection in Sector-9, HUDA and why HUDA authorities has demanded possession offer interest in the year 2015 vide its offer of possession dated 19.04.2015 Ex. P-3. As per allotment letter dated 11.08.2011, clause 26 is yearly installments will fall due as per the schedule below:-

Installment Number	Due Date	Principal	Possession offer interest		Total
1	11.08.2012	1,98,927/-	0.00		1,98,927.00
2	11.08.2013	1,98,927/-	0.00	1,98,927.00
3	11.08.2014	1,98,927/-	0.00	1,98,927.00
4	11.08.2015	1,98,927/-	0.00	1,98,927.00
5	11.08.2016	1,98,927/-	0.00	1,98,927.00
6	11.08.2017	1,98,927/-	0.00	1,98,927.00

 

Since, the HUDA authorities have already given the details of year and amount without interest, how the OPs have demanded possession offer interest in the year 2015.

14.    Even the local commissioner report dated 25.03.2016 reveals that there was no number of plots at site, no sign board, the man-holes of sewerage were found to be open, sewerage system was not in order, there was connectivity of pipe line of drinking water with water tank but the supply had not yet started, park was not developed by HUDA department, there was no community centre or senior citizen club, hospital, school and surprisingly enough some farmers have cultivated their crops at the site.  Local commissioner report shows that OPs have failed to develop the area within the stipulated time and wrongly offered the possession to him. Learned District Commission rightly allowed the complaint.

15.    Resultantly, the contentions raised on behalf of the present appellants 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, appeal stands dismissed on both counts delay as well as on merits.

16.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

07th  June, 2022     Suresh Chander Kaushik                        S. P. Sood                                                    Member                                                         Judicial Member    

 

S.K

(Pvt. Secy.)