STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 11.06.2019
Date of final hearing: 20.12.2023
Date of pronouncement: 05.01.2024
First Appeal No.567 of 2019
IN THE MATTER OF :-
1. The Estate Officer, Haryana Urban Development Authority, Faridabad.
2. The Administrator, Haryana Urban Development Authority, Faridabad. ...Appellants
Versus
R. N. Soni, R/o H.No. 266, Old Housing Board Colony, Bhiwani.
….Respondent
CORAM: Sh. Naresh Katyal, Judicial Member
Argued by:- Sh. Sudhir Gupta, proxy counsel for Sh. Sikander Bakshi, counsel for appellants.
R.N. Soni-respondent in person.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 40 days in filing the present appeal stand condoned for the reasons stated in the application for condonation of delay.
2. Challenge in this Appeal No.567 of 2019 of appellants has been invited to legality of order dated 29.03.2019 passed by District Consumer Disputes Redressal Forum-Bhiwani (In short “District Consumer Commission”) in Complaint Case No.42 of 2018, vide which complainant’s complaint has been allowed.
3. Factual matrix: complainant applied for allotment of residential plot measuring 6 Marlas in Sector-12, HUDA-Palwal on freehold basis and deposited Rs.1,58,000/- on 11.02.2016 with Estate Officer, HUDA, Faridabad/Bhiwani (OP No.1), who sent memo No. 8731 dated 27.07.2015 informing that: plot has been allotted to him. He (complainant) deposited requisite documents and HUDA issued allotment letter No.265 dated 10.11.2015 of Plot No.616 measuring 135 Sq. meters, Sector-12, Palwal, in Backward Class Category. It is alleged that cause of action accrued, when complainant sought information under RTI Act from OPs, vide his application dated 10.06.2015 and Appeal No. 7099 of 2015 with State Information Commission-Chandigarh, but OPs failed to furnish requisite information up to two years. Learned State Information Commission- Chandigarh held that: taking note on detriment suffered by appellant, due to delay in furnishing requisite information; OP-Public Authority through the SPIO/E.O. HUDA, Faridabad is directed to pay Rs.500/- as compensation to appellant. Only due to this reason; he (complainant) could not deposit dues with OP No. 1, of aforesaid Plot. He (complainant) sent letter No.175/2015 dated 04.12.2015 to OPs to extend time limit to deposit dues, pending his RTI appeal with State Information Commission-Chandigarh, but in vain. Due to non-payment of dues; OP No.1 cancelled allotment of plot, without fault of complainant. Action of OP No. 1 to cancel plot is illegal and against natural justice, as no notice has been served to him (complainant) and they remained mum up to two years without any reply. As per settled legal proposition; notice is mandatory before passing adverse order. He (complainant) sent several letters dated 18.03.2017, 211-212/2017 dated 17.11.2017, 213/2017 dated 21.12.2017 and legal notice 203-204/2018 dated 13.02.2018 to OPs to issue ‘I.D. and password’ for make payments of said plot, without which OPs does not accept payments. By alleging deficiency in service on the part of OPs; complaint has been filed for issuance of directions against OPs: to rectify cancelation of aforesaid plot and to allow him (complainant) to deposit dues of plot; to grant him compensation for mental agony, deficiency in service and negligence.
4. OPs/appellants raised contest. In defence so entered; it is pleaded that: complainant applied for allotment of residential plot in Sector-12-Palwal on 10.11.2014. Draw was held by OPs and complainant was successful for plot bearing No.616 of 6 Marlas category in Sector-12-Palwal. Allotment letter No.265 dated 10.11.2015 was issued to complainant on address given by him at the time of application, after completing formalities regarding OBC category. Complainant failed to deposit 15% amount within 30 days from date of issue of allotment letter. As per terms & condition No. 4 of allotment letter; allotment has been cancelled automatically, without any notice and earnest money i.e. 10% deposited by him (complainant) has also been forfeited. Both parties are bound to abide terms & conditions of allotment letter, as well as, broachers, but complainant failed to deposit 15% amount within time. Complaint is not maintainable as Jurisdiction of Forum is barred in view of the Section 50 of HUDA Act, 1977. There is no deficiency in service on part of OPs and prayer is for dismissal of complaint with costs.
5. Parties to this lis led their evidence; oral as well documentary.
6. On critically analyzing the same; learned District Consumer Commission-Bhiwani, vide order dated 29.03.2019 has allowed the complaint and directed OPs-appellants to re-allot Plot No.616, Sector-12-Palwal to complainant with immediate effect, or in case the plot in question is already allotted to someone else, then to allot other available plot of same size in same sector, or in other sector at Palwal; to get deposit the dues of plot in question from complainant without any penalty, interest, surcharge & extension fee etc. and to adjust wrongfully forfeited amount in fresh allotment of plot; to pay Rs.1100/- as compensation on account of mental agony, physical harassment and hardship; and to pay Rs.1100/- as litigation charges.
7. Feeling aggrieved; OPs have filed this appeal. Vide order dated 11.07.2019; passed by this Commission implementation of impugned order (dated 29.03.2019) has been stayed.
8. Learned proxy counsel for appellants and complainant appearing in person have been heard at length. With their able assistance; record has also been perused. Complainant also filed written submissions.
9. Learned proxy counsel for appellants has urged that: complainant was successful for allotment of plot No. 616 measuring 6 Marlas situated in Sector 12-Palwal. He was informed by appellants vide letter No. 8231, dated 27.07.2015 in this regard and requested to send documents in order to enable appellants to take further action. He submitted OBC Certificate and Residential Certificate with affidavit and thereafter allotment letter dated 10.11.2015, for plot No. 616, Sector 12-Palwal, was issued to complainant on address given by him. It is urged that: complainant was apprised that: “in case he accepts allotment then he should send acceptance by Registered Post along with Rs.2,36,875/- within 30 days of issue of allotment letter, which, together with Rs.1,58,000/- paid by him along with application as earnest money would constitute 25% of total tentative price”. He did not follow terms and conditions No. 4 and 5 of allotment and failed to deposit 15% amount within 30 days of issue of allotment letter. Accordingly, allotment of plot was cancelled automatically and 10% amount deposited by complainant was forfeited. It is urged that: appellants have strictly followed conditions of allotment letter and no prior notice was required to be served upon complainant before cancellation of allotted plot. Learned Forum has wrongly placed reliance that: complainant could not deposit dues against allotted plot, due to non-reply of his RTI application by OPs that: under which caste category the plot was allotted to him because he had already one plot at Palwal and if this allotted plot, or earlier plot was allotted in same category, then he was not entitled for allotment of plot and deposit of further amount with OPs, would have gone waste and of no value. In this regard, it is urged that allotment of plot No. 616, Sector 12-Palwal to complainant was under OBC Category, as he submitted OBC Certificate with his residential certificate and affidavit. Lastly, it is urged that District Consumer Commission-Bhiwani has no territorial jurisdiction to entertain and decide the complaint. In this regard it is urged that plot in question was situated at Palwal/Faridabad. Complaint was filed at Bhiwani. No cause of action has arisen at Bhiwani. Merely because, office of OPs is situated at Bhiwani, or because complainant applied for plot from Bhiwani, will not confer any territorial jurisdiction upon District Consumer Forum situated at Bhiwani. In this regard, learned proxy counsel for appellant has relied upon judgment of Hon’ble Apex Court in case titled as “Sonic Surgical versus National Insurance Company Ltd.” 2010(1) RCR Civil page 1 and urged that learned District Consumer Commission-Bhiwani has not touched this legal plea at all which has caused gross, obvious and manifest injustice to appellants. It is further contented that even under Section 50 of HUDA Act, 1977; District Consumer Forum-Bhiwani has no jurisdiction.
10. On the other hand, complainant, while appearing in person, has urged that: he could not deposit 15% amount against allotted plot as he sought information from OPs through his RTI application to specify/clarify him about ‘Caste Category’ under which he was earlier allotted another residential plot of HUDA at Palwal. No such information was provided to him for two years by OPs. It is urged that if his earlier allotted plot was also under same ‘Caste Category’ i.e. Backward Class, under which, he was allotted plot in question then, legally he was not entitled to allotment of plot in question and amount deposited towards plot in question would have gone waste. It is also urged that he has been writing applications to OPs to issue him ID/Password for making payment of plot No. 616, Sector-12, Palwal. It is also urged that District Forum-Bhiwani has territorial jurisdiction because complainant is resident of Bhiwani; he applied for plot in question from Bhiwani by depositing earnest money; he was conveyed about allotment of plot No. 616, Sector 12-Palwal measuring 6 Marlas at his address of Bhiwani. Therefore, as per contention; part of cause of action has also accrued in his favour at Bhiwani.
11. Admittedly, complainant applied for allotment of plot with OPs from Bhiwani. Admittedly, he was allotted plot No. 616, measuring 6 Marlas, Sector 12-Palwal. Admittedly, OPs informed complainant vide its letter bearing memo No. 8231, dated 27.07.2015 (Annexure C-1) at his residential address at Bhiwani that: he was found successful in draw of lots of residential plots held on 26.05.2015 and HUDA has decided to allot him plot No. 616, Sector 12-Palwal. Admittedly, he is submitted documents Viz. Residential Certificate, OBC Certificate and Affidavit (Annexure A-3 to A-5 appended with appeal). Admittedly, allotment of aforesaid plot to complainant was under ‘Backward Class Category’ as it is so apparent from allotment letter 10.11.2015, Annexure C-2 and this fact was also conveyed to complainant at his residential address at Bhiwani.
12. Question arises; as to whether action of OPs to cancel allotment of aforesaid plot and to forfeit amount of earnest money, so deposited along with application is justified or not? Rs.2,36,875/- was demanded from complainant as per condition No. 5 of allotment letter, to be deposited by him within 30 days from date of allotment letter. This amount (Rs.2,36,875/-), along with Rs. 1,58,000/- already paid by complainant along with application from, towards earnest money, will constitute 25% of total tentative price of allotted plot. Reason quoted by OPs in their defence is that: complainant failed to deposit 15% amount in time (within 30 days of date of allotment) which had led to automatic cancellation of plot and forfeiture of earnest money. This reason does not sound credence. On the face of it there was no prior notice issued to complainant before cancellation of his allotted plot and such principle of natural justice has been violated by appellants, having being thrown to winds. Obviously, cancellation of allotted plot would invite civil consequences and as such prior notice was required to be served upon complainant, before cancellation of allotted plot.
13. It is expressly pleaded by complainant in para 3 of his complaint that: he submitted RTI application dated 10.06.2015, and through Appeal No. 7099 of 2015, filed before State Information Commission-Chandigarh to sought information. As per contention, complainant was earlier allotted plot by HUDA at Palwal; therefore, he sought clarification that: under which Caste Category that plot was allotted to him. Allotment of plot in question to him was under Backward Class Category. If earlier plot was allotted also in same category (Backward Class) then he was not entitled for allotment of plot in question, and deposit of further amount with OPs towards allotted plot in question would have gone waste and be of no value. No reply was providing to him for two years on this application. State Information Commission-Chandigarh took note of detriment further by him due to delay in furnishing information. Consequently it awarded Rs.500/- as compensation to him for this reason. Because of this; he could not deposit dues with OPs of allotted plot in question. In opinion of this Commission the act of complainant to sought desired information as explained above through RTI, flowed from his very instinct state of mind. In considered opinion of this Commission; complainant was justified to seeking information through RTI from OPs about Caste Category of allotment of earlier plot at Palwal. There was no bad intention on his part in that context, to delay the deposit of due amount towards allotted plot. Had, OPs promptly provided him the information sought by him through mode of RTI, then the situation of delay in making payment of due amount (15%) on the part of complainant would not have arisen. More so, this stance of complainant (in para No. 3 of complaint) has never been refuted specifically in corresponding para No. 3 of para wise reply furnished by OPs. Evasive denial by pleading ‘wrong and denied’ is no denial in eyes of law.
14. There is also no express and specific denial to the pleaded fact in para No. 5 of complaint that: complainant has been sending letters to OPs (dates of letters mentioned in compliant-Para No.5) requesting OPs to issue him ID/Password for making payments. But OPs did not reply him even to these letters. Consequently, District Consumer Commission-Bhiwani has rightly observed that: OPs have wrongly resumed/cancelled the allotment of plot in question and forfeited 10% of earnest money. There is no legal or factual error in this observation of District Consumer Commission-Bhiwani and this Commission uphold, maintain and affirm this observation.
15. It is urged that: as per Section 50 of HUDA, Act, 1977, District Consumer Commission has no jurisdiction. This contention, too deserves to be thrown overboard. Once having applied for allotment of plot by depositing application money; complainant has attired a status of consumer. Definition of consumer in Consumer Protection is apparently wide enough and encompasses within its fold, not only goods but also the services, bought or hired for consideration. Such consideration may be paid or promised or partly paid or partly promised under any system of deferred payment. The Act, being a beneficial legislation, aims to protect the interest of a consumer as understood in business parlance. The important characteristics of goods and services under the Act are that: they are supplied at price to cover the cost and generate profit or income for seller of goods or provider of services. The comprehensive definition aims at covering every man who pays money as the price or cost of goods and services. Above being the reason; the contention on behalf of appellants centered on Section 50 of HUDA Act, 1977 that District Consumer Commission has no jurisdiction, stood repelled and it is held that its jurisdiction would never be ousted on given facts.
16. It is urged that allotted plot in question was situated at Palwal-Faridabad. Complaint was filed at Bhiwani; no cause of action has accrued in favour of complainant at Bhiwani; merely because, office of OPs is situated at Bhiwani or application for allotment was made from Bhiwani will not confer any territorial jurisdiction on District Consumer Commission in view of ratio of law laid down by Hon’ble Apex Court case titled as “Sonic Surgical versus National Insurance Company Ltd.” 2010(1) RCR Civil page 1. This contention is also misconceived. Reasons are: by glancing at the written version filed by OPs, it is deciphered that absolutely no plea has been taken by OPs on territorial jurisdiction of District Consumer Commission-Bhiwani. There was no such objection regarding territorial jurisdiction so raised by OPs in their written statement on above facts. It is settled legal adage that objection as to territorial jurisdiction should be taken at the preliminary stage of any case. There can be no exception so far as this case is concerned. Still further, complainant is resident of Bhiwani. He was conveyed through OPs letter dated 27.07.2015, of being successful in draw of lots of residential plots held of 26.05.2015 and allotment of plot No. 616, Sector 12-Palwal to him at his residential address at Bhiwani. Allotment letter dated 10.11.2015 too was served upon him at his residential address at Bhiwani. Although there is no document on record that application for allotment of plot was made by complainant from Bhiwani along with earnest money, yet this quality contention has been raised during course of this appeal. By taking note of this contention as well, along with other allied facts, as narrated above, it is established that: part of cause of action has arisen in favour of complainant at Bhiwani. More so, office of OPs is also situated at Bhiwani. These facts would definitely confer territorial jurisdiction upon District Consumer Commission-Bhiwani. It is held by Honb’le Apex Court in case titled as Alchemist Ltd. and Another Versus State Bank of Sikkam and Others (2007) 11 SCC 335, while explaining meaning of cause of action that:-
“for the purpose of deciding whether facts averred by the appellant-petitioner would or would not constitute a part of cause of action, one has to consider whether such facts constitutes a material, essential, or integral part of the cause of act. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the Court, the Court would have territorial jurisdiction to entertain the suit/petition. Nevertheless, it must be a “part of cause of action” nothing less than that”.
17. By applying above quoted dictum of Hon’ble Apex Court it is held that making of application for plot with earnest money by complainant; conveying by appellants about the fact that he was successful in draw of lots and further sending him allotment letter are such facts which would constitute integral part of cause of action. Moreover, facts of cited judgment “Sonic Surgical (Supra) are distinguishable to facts of this case in hand. This Commission is not oblivious of the fact that branch office of any Insurance Company is situated in every nook and corner in the Country. In contrast, offices of OPs are situated within State of Haryana only. Any prospective applicant aspiring for HUDA residential plot, cannot be put in onerous state by forcing him/her to go and knock doors of the Court of law/forum, situated at place where plot in question is situated, for seeking redressal of his/her grievance. Court of law/forum of place where he/she has been corresponding with HUDA, has territorial jurisdiction to adjudicate upon his/her grievance. Consequently, the reliance placed by OPs upon judgment of Hon’ble Apex Court in Case of “Sonic Surgical (Supra) will not majestically stimulate any cause of appellants. In view of above this Commission holds that appellants have been rightly non-suited.
18. Impugned order dated 29.03.2019 does not warrant any interference in this appeal. Impugned order dated 29.03.2019 is the outcome of proper and meticulous appreciation of facts and evidence by learned District Consumer Commission-Bhiwani and same is maintained, affirmed and upheld. This appeal, being devoid of merits is hereby dismissed.
19. Statutory amount of Rs.1100/- deposited by appellants at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
20. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
21. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
22. File be consigned to record room.
Date of pronouncement: 05th January, 2024.
Naresh Katyal
Judicial Member
Addl. Bench-II
