Rajasthan

StateCommission

A/1573/2016

Rajasthan Housing Board - Complainant(s)

Versus

Kumari Anju Sharma D/O. Shri Jagdish Prasad Sharma - Opp.Party(s)

P.S. Tomar

12 Oct 2017

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

 

FIRST APPEAL NO: 1573/2016

 

Rajasthan Housing Board through Chief Estate Manager, Janpath, Jyoti Nagar, Jaipur & ors.

Vs.

Kumari Anju Sharma d/o Sh.Jagdish Prasad Sharma r/o 10/265 Malviya Nagar, Jaipur.

 

 

Date of Order 12.10.2017

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

 

Mr.P.S.Tomar counsel for the appellants

Mr.N.C.Sharma counsel for respondent

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

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This appeal has been filed against the order passed by the learned DCF Jaipur 4^th dated 22.9.2016 whereby the claim has been allowed against the appellant.

 

The contention of the appellant is that the respondent took the possession of the property on 16.6.2011 without any protest and complaint has been filed on 20.2.2014. Hence, the claim is time barred. The matter of costing cannot be entertained by the Consumer Forum. The contact road is available in the colony hence, the claim should have been dismissed.

 

Per contra the contention of the respondent is that before the Forum below objection as regard to limitation was never been agitated. He has to take the possession of the property as he was in need of it. Housing Board cannot raise the cost arbitrarily. The contact road has not been constructed hence, the claim has rightly been allowed.

 

Heard the counsel for the parties and perused the impugned judgment as well as original record of the case.

 

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There is no dispute about the fact that the possession of the property was handed over to the respondent on 16.6.2011 and he paid the money without any protest. The cause of action as regard to the excess sale proceed accrued to the respondent on 16.6.2011 but within two years the complaint has not been filed. It is true that before the Forum below objection as regard to limitation was not contended but the appellant has rightly relied upon 2013 4 CPR (SC) 427 State Bank of India Vs. B.S.Agricultural Industries where the apex court has held as under:

 

“ It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression 'shall not admit a complaint' occuring in section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said

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period the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words it is the duty of the consumer forum to take notice of section 24A and give effect to it. If the complaint is barred by time and yet the consumer forum decides the complaint on merits, the forum would be committing an illegality and therefore, the aggrieved party would be entitled to have such order set aside.”

 

Hence in view of the above even in absence of objection by the appellant it was the duty of the Forum below to examine that whether the complaint has been filed within limitation period prescribed under the C.P.Act. The claim as regard to charging of excess cost is time barred and cannot be entertained.

 

Further the appellant has rightly contended that possession of the property was taken over by the consumer respondent without raising any objection. Hence, now the objection as regard to costing cannot be entertained and reliance has been placed on II (2016) CPJ 36 (NC) Harpal Arya Vs. Housing Board, Haryana where the National Commission has held that as per possession certificate it is clear that petitioner had taken possession without any pre-

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condition. Once petitioner had taken possession with open eyes and without any pre-conditions he ceases to be a consumer. Hence, in view of the above the contention as regard to costing cannot be entertained.

 

The other contention of the appellant is that possession of the property was taken on 16.6.2011 without any protest hence, now in 2014 the complainant cannot agitate about deficiency of contact road to the house but this contention has no legs as the appellants have gave the property on the assurance that the consumer will get garden, school, shops, roads, traffic facility etc. and when the consumer is not getting even the basic facility of the road which could lead to the house the cause of action is continuous one and he can agitate it every day.

 

Further the contention that he has not objected for the same at the time of taking the possession is not sustainable as per the letter of the Housing Board dated 14.5.2013 the road was damaged in the rainy season of 2011 whereas the complainant respondent took the possession in June 2011. Thereafter if road has been damaged it was the duty of the

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appellant to re-construct it and inspite of repeated reminders dated 22.3.2013, 2.5.2013 and 14.9.2013 the road has not been constructed. Information given in Right to Information Act dated 31.12.2013 clearly shows that bridge still under construction and date of completion is 9.6.2014 which shows that till 2014 there was no contact road to the house of the complainant respondent.

 

The contention of the appellant is that now the road has been constructed and photos of the same are being placed on record in appeal. Be that may be the case the deficiency of the appellant is writ large clear on the face of it that there was no road facility for a significant number of years.

 

The other contention of the appellant is other connecting roads are available to the complainant respondent and a site plan Anx. A 3 is submitted in appeal and it has been tried to state that from B & D place the approach roads are available but no such contention is raised in reply to the complaint rather it has been admitted that bridge is damaged and it has to be re-constructed. Hence, in view of the above appellants are

 

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deficient in not providing the proper road to the complainant respondent.

 

The appeal is partially allowed . The order of the Forum below as regard to refund of Rs. 1,76,585/- alongwith interest is set aside. Rest of the order needs no interference.

(Nisha Gupta) President

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