Haryana

StateCommission

A/1112/2019

CENTRAL GOVERNMENT EMPLOYEE WELFARE HOUSING ORGANIZATION - Complainant(s)

Versus

RAM KUMAR AGGARWAL AND ANOTHER - Opp.Party(s)

PRADIP BHANDARI

16 Jan 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

First Appeal No.1112 of 2019

Date of Institution:20.12.2019

Date of decision:16.01.2020

 

Central Government Employee Welfare Housing Organization through its chief Executive Officer, 6^th Floor, ‘A’ Wing, Janpath Bhawan, Janpath, New Delhi.

…Appellant

Versus

 

1.      Ram Kumar Aggarwal S/o Late Sh.Chetan Dass Aggarwal through General Power of Attorney Smt.Sharda Aggarwal W/o Sh.Ram Kumar Aggarwal both R/o Flat No.49, Kendriya Vihar-II, Sector-25, Panchkula.

 

2.      The Kendriya Vihar-II Apartment Co. OP. Group Housing (Maintenance) Society Ltd. through its President, Group Housing Plot No.8, Sector-25, Panchkula.

 

…Respondents

 

CORAM:   Mrs. Manjula, Presiding Member.

 

Present:-    Mr.Ajay Kalra, Advocate for the appellant.

                   Mr.Durgesh Aggarwal, Advocate for the respondents.

 

                                      O R D E R

 

MANJULA, PRESIDING MEMBER:

 

The appeal has been preferred against the order dated 26.08.2019 passed by the District Consumer Disputes Redressal Forum, Panchkula (in short ‘District Forum’) vide which the complaint has been partly allowed with direction to the OP No.1 to execute the conveyance deed in favour of the complainant and to pay Rs.25000/- to the complainant on account of mental agony and harassment; Rs.5500/- as litigation expenses.

2.      The brief facts giving rise to the complaint are that complainant  is suffering from chronic liver cirrhosis and is 100% disabled and bed ridden. O.P.No.1 advertised a housing scheme in the year 2002 consisting of 240 dwelling units known as Kendriya Vihar II, Sector 25 Panchkula.  He applied for 3 BHK flat in the said scheme and flat bearing No. C-49 was allotted to the complainant by the OP No.1 vide  their allotment letter dated 03.03.2004. The price of the flat was Rs.10,40,000/- and it was escalated upto Rs.15,66,900/-. He deposited entire  demanded amount of Rs.15,66,900/- in installments upto year 2006.  Physical possession of the flat was also delivered.  The OP No.1 CGEWHO put a restriction of five years on executing the conveyance deeds with the allottees to stop the further sale purchase of the dwelling units.   O.P.No.1 had executed about 180 conveyance deeds in favour of the allottees out of total 240 allottees. He met with a road accident in December 2010, due to this reason, he is bed ridden and become 100% permanent disabled and therefore, could not execute the conveyance deed. CGEWHO received two demand notices vide dated 19.12.2012 of Rs. 33,39,978 and Rs.2,22,18,247/- as land cost enhancement issued by the HUDA/ HSVP. The CGEWHO did not inform him  till 29.05.2017.  OP No.1 vide their letter dated 04.07.2018 informed him alongwith other allottees that an amount of Rs.10,11,76,751/- was due to be paid  to HUDA towards enhancement.  After the rebate of 40% of amount comes to Rs.6,07,06,650/-.  OP No.1 also sent calculations for each type of flat.  The liability of complainant after availing the OTSS comes out to Rs.2,87,292/-.  The OP No.2 refused to accept the payment from him with advice that it should be deposited with
CGEWHO only.   He was ready to deposit his share towards enhancement under protest, but,  O.Ps did not accept the payment from him. In December 2017, he was in the dire need of money due to his protracted illness and for the knee surgery of his wife.   He requested the OP No.1 to execute the conveyance deed but, O.Ps. refused to execute conveyance deed due to verbal orders of Mr. M.K.Malti, Dy. Director, CGEWHO.  He sent legal notice dated 13.04.2018 to CGEWO, but, to no avail. He wrote a detailed grievance dated 30.06.2018 to the Prime Minister of India.  CGEWHO has given a false misleading and vague reply by citing a pending court case i.e. CWP 16890 of 2018.  The prayers and relief sought in the above CWP is totally different to the present  grievance. He filed RTI application and in reply, OP No.1 stated that demand notices sent by HUDA dated 19.12.2012 issued by OP No.2 demanding Rs.33,39,978/- and Rs.2,22,18,247/- respectively from OP No.1, but till 29.05.2017, the OP No.1 did not inform him or the resident welfare society about enhanced land compensation demand as raised by OP No.2.  Thus there was deficiency in service and unfair trade practice on the part of the O.Ps.

3.      Notice being issued.  Opposite parties filed separate written statement.  In the preliminary objections, O.P.No.1 stated that complaint is not maintainable being vague, baseless.  On merits, OP No.1 stated that after completing the project, the possession was handed over  to the allottees and even executed conveyance deeds in respect of willing allottees. The occupation certificate was granted by the authority vide their memo No.57/87 dated 14.07.2006. The enhancement demanded by HUDA was paid by OP No.1. OP No.1 received two demand letters for enhanced cost of land, which was payable within 30 days from the date of issue of letter failing which the interest @ 15% per annum was payable for the period of delay.    OP No.1 issued letter dated 21.01.2013 to HUDA for clarification of the demand letters, but, HUDA remained silent for a period of more than three years.  Show cause notice dated 29.04.2016 issued by HUDA mentioning that the area of land as 5 marla & Auction and calling upon the OP No.1 to show cause as to why penalty of Rs.38,40,750/- may not be imposed for non payment of the amount enhancement.  He did not come forward for execution of conveyance deed.    Every beneficiaries or OP NJo.2 was willing to pay the total cost of enhancement after rebate and same was refused by HUDA.  O.P.No.1 is not responsible for beneficiaries not availing the benefit of schemes floated by HUDA. Thus there was no deficiency in service on the part of O.P. No.1.

4.       O.P.No.2 filed separate reply stating that the main aim & object of the KV-II Society is to manage, administer and maintain the complex according to the bye laws.  The society has no power to receive any amount of enhancement from the allottees.  Till 2017 more than 165 number of conveyance deeds have been executed between the allottees and CGEWHO and CGEWHO never demanded any enhancement from the allottess in whose favour conveyance deed had been executed.  Thus there was no deficiency in service on the part of the O.P.No.2.  Objections about the maintainability of complaint etc. were also raised and requested to dismiss the complaint.

5.      An application for condonation of delay has also been filed.

6.      There is a delay of 70 days in filing the appeal.  An appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  70 days wherein,  it is alleged that   certified copy of the impugned order was not received by the appellant Department. The appellant applied for the certified copy of the order  on 11.12.2019 and same was delivered to the appellant on 16.12.2019, but, appellant has not received certified copy of the impugned order. The delay is neither intentional nor deliberate but same has occurred as mentioned above. In these circumstances there was a delay of 70 days in filing of the present appeal. Thus, delay of 70 days in filing of the present appeal be condoned.

7.      Arguments heard on application for condonation of delay as well as on merits of appeal. File perused.

8.      It is argued by learned counsel for the appellant that certified copy of the impugned order was not received by the appellant. The appellant applied for the certified copy of the order on 11.12.2019, which was delivered on 16.12.2019, but, appellant has not received certified copy of the impugned order.  Learned counsel for the appellant vehemently argued that as per facts mentioned above, it is clear that delay in filing appeal is not intentional.

9.      However, contention of learned counsel for appellant to condone delay is of no avail.  A period of 30 days has been provided for filing an appeal against the order of the District Forum. 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 and rightly so, because it would vary from facts and circumstances of each case. It is settled law that delay of each and every delay should be explained properly with some reasonable cause but in the appeal in hand, there is no reasonable justification and sufficient cause.  The impugned order was passed in the presence of the parties.

10.    In these circumstances, the inordinate delay of 70 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 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority, Hon’ble Apex Court observed as under:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”.

11.    Since, ignorance of law regarding filing of appeal in the present case against the impugned order is no excuse, therefore, condonation of delay of 70 days in filing of the appeal cannot be allowed, thus, the application filed for condonation of delay  in appeal No.1112 of 2019 is dismissed.   

12.     Even touching the merits of the case, it is argued by learned counsel for the appellant that 165 flat owners have executed the conveyance deed. The complainant has not deposited the amount of enhancement. 

13.    Since the complainant has paid full and final payment as is evident from the possession letter, which is reproduced below:-

“On receiving full and final payment as per our final call-up letter dated 28^th August 2006, you may now take physical possession of flat No.49 in Block No.3 on First Floor of Type-C allotted to you alongwith Car Stilt No.24 in Block No.3 at Sector-25, Panchkula from our Project Manager-Panchkula”.

14.    In view of the above, he is entitled to get the conveyance deed executed in his favour by OP No.1.  Learned District Forum has already granted compensation to the complainant. There is no merit in the appeal, hence, the present appeal stands dismissed in limine.

 

16th  January, 2020                                               Manjula                                                                                                                                 Presiding Member                                                             

 

S.K

(Pvt. Secy.