MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

1.             This is an appeal filed by the appellant (complainant) against order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 26.2.2009 vide which the complaint filed by the appellant bearing No.219 of 2009 was dismissed in limine without issuing any notice to the OPs.

2.             Briefly stated the case of the complainant is that she applied for a Two Kanal Industrial Plot on 25.5.1989 with OPs and deposited a sum of Rs.11,500/- by way of demand draft.  It was averred that the complainant completed all other necessary formalities but no plot was allotted to her.  It is the case of the complainant that she visited the office of OPs many times since 1989 but all to no avail. The complainant also sought information from OPs under R.T.I. Act, 2005 vide letter dated 31.10.2007, consequent to which, OPs submitted a list of 131 persons to whom the Industrial Plots were allotted after 1.1.1989 in Urban Estate, Panchkula.  A copy seniority list being maintained for allotment of 2 kanal plots on “first come first served” basis was also supplied to the complainant wherein his name appeared at Sr.No.59 out of a total number of 106 persons.  The allegation of the complainant is that OPs did not follow the principle of first come first serve basis due to which the complainant was deprived from allotment of industrial plot.  It was further alleged that the amount of earnest money had also not been refunded to the complainant.  Alleging the above acts of OPs as deficiency in service, the complainant filed the complaint.

3.             The learned District Forum, before admitting the complaint, first chose to decide the maintainability of the complaint and after giving ample opportunity of being heard to the representative of the complainant, the learned District Forum relied on the law settled by the Hon’ble Kerala High Court in the case of Fon-Ess India (P) Ltd. Vs. Kerala State Consumer Disputes Redressal Commission, Original Petition No.19405 of 2000, decided on 14^th July, 2006 and reported as 2007 CTJ 8 (Kerala High Court) (CP), wherein it had been specifically held that admission of a complaint before a District Forum or the State/National Commission and appeal before the State/National Commission under the Consumer Protection Act, 1986 was not automatic. It was further held that the Forum/Commission had to consider the maintainability before admitting it and issue its notice to the opposite party/respondent.

4.             The learned District Forum further observed that the complaint was badly time barred as the complainant had remained silent from the year 1989 till Sept. 2007 i.e. about 18 long years and mere seeking information under the RTI Act vide letter dated 31.10.2007 did not give her any cause of action nor did it extend the period of limitation. 

5.             The learned District Forum next recorded that in the complaint, the complainant had claimed the relief for the allotment of plot against HUDA - OP NO.1 located at Panchkula District in the State of Haryana and if there was any deficiency in service the same could be on the part OP No.1.  As per the leaned District Forum, the only allegation against OP No.2 was made in the concluding lines of Para No.5 of the complaint wherein it was mentioned that the office of OP No.2 was unnecessarily sitting tight over the matter, which had resulted into a huge financial loss to the complainant.  In the view of the learned District Forum, OP No.2 had already recommended to HUDA for allotment of plot and therefore, there was no deficiency in service on the part of OP No.2.  It was observed that the name of OP No.2 had been joined simply to confer jurisdiction of the Forum at Chandigarh. The learned District Forum also recorded that OP No.2 was not a necessary party because the relief was being claimed against OP No.1 alone and if the name of OP No.2 was deleted then the Forum did not have the territorial jurisdiction to try the complaint.

6.     On merits, the learned District Forum recorded that admittedly the allotment of plots was to be made on the basis of “first come first served” basis and the complainant had been duly informed by OP No.1 as regards his name appearing at Sr.No.59 in the list prepared by the OP.  It was next recorded that  there were only 55 plots of 2 kanals and the same would be allotted to the first 55 applicants and not to the complainant.  In the view of the learned District Forum, no plot could be allotted to the complainant, who was at Sr.No.59 of the list. Thus, holding no deficiency in service on the part of OPs and in view of its observations on the issues discussed, the learned District Forum dismissed the complaint in limine.    

7.        Aggrieved by the said order of learned District Forum, the complainant has filed the present appeal. The appeal having been taken on board, notices were sent to the respondents and record of complaint case was summoned from the District Forum. Sh. Ajay Walia, authorized representative appeared on behalf of the appellant whereas Sh. Joginder Singh, AAG represented the respondents.

8.     Sh. Ajay Walia, authorized representative appearing on behalf of the appellant submitted that the complainant had applied for 2 Kanal plot but te OPs have neither allotted the plot nor have refunded the earnest money back to her. He also submitted that there was something wrong committed on behalf of OP No.1 in the allotment of plots as some plots had been allotted to those who were lower down in the seniority list as compared to the complainant. He prayed that his complaint be entertained as the same was maintainable before the Consumer Fora and the complainant be either allotted the industrial plot as applied for or the earnest money deposited by the complainant be refunded to her along with interest and compensation as prayed for in the complaint.

9.     Sh. Joginder Singh, AAG appearing on behalf of the respondents submitted that the impugned order was very well reasoned and the complainant had no cause to file the complaint. He clarified to the Bench that the plot could not be allotted to the complainant as she was 59^th in the List of Seniority whereas there were only 55 plots, which had been allotted on the basis of the seniority maintained by the OPs. With regard to the refund of the earnest money, the leaned counsel submitted that the complainant never approached the OPs for the refund of the money and she was at liberty to collect the same after approaching the OPs.

10.   We have gone through the record on file as well as the impugned order and have heard Sh. Ajay Walia, authorized representative of the complainant and Sh. Joginder Singh, AAG on behalf of the respondents.

11.        Admittedly, the complainant had applied for a 2 Kanal industrial plot and her seniority number in the list of applicants was 59. Also admittedly, there were only 55 plots, which as per OPs, had been allotted as per the seniority list maintained by them. The case of the complainant is that she has apprehension that some persons who were lower in seniority list had been allotted plots and she had been ignored. It has further been alleged that the norm of ‘first come first serve basis’ has not been duly observed. However, it is seen that the complainant has failed to produce any cogent evidence to prove this contention of her’s. She has, however, stated that she had sought this information from the OPs through the R.T.I but the same has not been supplied. If that be so, the complainant had the right to agitate it before the CIC in the laid down manner but without any evidence before us to support her contention, we are in no position to believe the contention of the complainant particularly in the face of the specific stand taken by the OPs that the plots had been allotted as per seniority list. Thus, in our considered view, the complainant has totally failed to prove any deficiency in service on the part of OPs in not allotting the plot to her. However, the second aspect of this complaint is that the earnest money given by the complainant to the OPs has not been refunded to her even though twenty long years have gone passed. The contention of OPs in this context is that the complainant never approached them for the refund of the earnest money and she can get the refund from the OPs by contacting the relevant official. From the facts and circumstances of the case, it is cear that the OPs had not allotted the complainant the industrial plot applied for and there was no possibility or offer to her for allotment of subsequent plots. In this view of the matter, it was incumbent upon the OPs to refund the amount of earnest money to the complainant. However, in this case, no effort at all had been made by the OPs to refund the amount of the complainant to her. We find no justification in the plea taken by the OPs that the amount could not be refunded to her because she never approached the office of OPs for the same. There is a clear deficiency on the part of OPs for the  non refund of the earnest money to the complainant, over which, they had no right and which was unduly retained by them.

12.           In view of the foregoing discussion, the appeal filed by the complainant is partly allowed and the OPs are directed to refund the earnest money deposited by the complainant along with interest @9% per annum from the date of deposit till the date of payment. It is clarified that this interest also includes the component of compensation. OPs are further directed to pay the complainant a sum of Rs.2,100/-, which we quantify as costs of litigation. It is also directed that the above directions be complied with within a period of 30 days from the date of receipt of certified copy of this order.

13.           Copies of this order be sent to the parties free of charge.

Pronounced.

4^th February 2010.