HARYANA URBAN DEVELOPMENT AUTHORITY vs ISHWAR RAWAT

MR. Justice K. C. Gupta, President-This appeal has been directed by opposite party Nos. 2 to 4 against order dated 7. 8. 2007 passed by Consumer Disputes Redressal Forum-I, U. T. Chandigarh (hereinafter to be referred as District Consumer Forum), vide which complaint of respondent No. 1 (complainant) was accepted with costs of Rs. 2,100 and appellants as well as respondent No. 2 were directed to restore the allotment and complete the development works around the booth i. e. pavements, public toilet, drainage system, etc. and further respondent No. 1 would not be liable to pay interest on the balance amount and they were directed to recover the balance amount without interest.

BRIEFLY stated the facts are that Sh. Ishwar Rawat, respondent No. 1 (complainant) was allotted commercial booth No. 48-P, Sector-17, Faridabad measuring 27 sq. yards in open auction vide allotment letter dated 19. 4. 1996. He had deposited 25% of the purchase money as per allotment letter and physical possession was delivered to him vide letter dated 14. 5. 1996. It was next averred that appellants and respondent No. 2 failed to provide basic amenities and develop the area as per terms and conditions of the allotment letter as pavement was not constructed and there was no drainage system and further no public toilets were provided and green belt was not developed around the booth, although respondent No. 1 had asked them several times to provide the basic amenities and complete the development work. It was further stated that he was not liable to pay interest on the instalments as development work was not completed and further he had completed construction as per site plan approved by the department but the conveyance deed was not executed in his favour.

It was further averred that he had asked several times to complete the development work and to stop the commercial activities which were being carried out in the residential premises due to which he could not start his business and on the other hand the booth was resumed.

ALLEGING deficiency in service, the complaint was filed. Appellants and respondent No. 2 contested the complaint and filed separate written replies. They further stated that it was only after completion of the development work in and around the booth in question and providing requisite basic amenities like sewerage, water, electricity and roads that the possession was offered in the area of booth. They denied that respondent No. 1 had ever approached them and requested for completion of development work and there was no response on their behalf because development works had already been completed. They next stated that respondent No. 1 had deposited 25% of the price and thereafter did not deposit outstanding dues in spite of repeated demands and notices and ultimately the booth was resumed vide order dated 15. 6. 2001. They also stated that there was no question of conveyance deed in favour of respondent No. 1 as the outstanding dues were not paid and the booth had been resumed. They further stated that if respondent No. 1 was aggrieved by the resumption order, then he could have filed appeal before the Administrator which he failed to file. They denied other allegations and stated that the complaint should be dismissed.

PARTIES adduced their evidence by way of affidavits. After hearing Counsel for the parties, District Consumer Forum vide order dated 7. 8. 2007 accepted the complaint with costs as stated in the earlier part of the judgment. Aggrieved by the said order, opposite party Nos. 2 to 4 have filed the present appeal.

NONE appeared on behalf of respondent No. 2-Principal Secretary and Financial Commissioner of Country Town Planner and as such it was proceeded against ex parte.

WE have heard Counsel for appellants Mr. Suveer Sheokand, Mr. Sandeep Bhardwaj, Advocate for respondent No. 1 and carefully gone through the file. There is delay in each case of 22 days in filing appeal. An application accompanied by the affidavit of Estate Officer has been filed for condonation of delay. Since the appeal had been processed by different departments of the appellants and in that process some delay occurred,so, for the reasons mentioned in the application, delay of 22 days is condoned.

It is an admitted fact that Sh. Ishwar Rawat, respondent No. 1 (complainant) was allotted commercial booth No. 48-P, Sector-17, Faridabad measuring 27 sq. yards in open auction vide allotment letter dated 19. 4. 1996. There is no dispute about it that respondent No. 1 had deposited 10% of the amount on the day of auction and 15% of the amount within 30 days from the date of auction,so, as to make it 25% of the total price. There is further no denying the fact that the possession had been delivered to the respondent No. 1 vide letter dated 14. 5. 1996. A perusal of the allotment letter, whose copy has been placed on file shows that the booth in question was allotted to respondent No. 1 for Rs. 8 lacs and its area is 27 sq. yds. Rs. 80,000 were deposited as bid money at the time of bid while Rs. 1,20,000 as 15% of the amount within 30 days, so, as to make it 25%. Therefore, respondent No. 1 had deposited Rs. 2 lacs in all. The balance amount of Rs. 6 lacs was to be deposited by respondent No. 1 within 60 days from the date of issuance of allotment or in ten half yearly equal instalments and the first instalment was to start after the expiry of six months from the date of issuance of allotment letter and each instalment was recoverable with interest on the balance amount @ 15% and this interest was to accrue from the date of offer of possession. It is specifically mentioned in para No. 6 of the allotment letter that possession of the plot/building could be taken immediately after making payment of the balance of 15% amount as demanded in para 4 above. There is no denying the fact that possession had been delivered to respondent No. 1, therefore, respondent No. 1 was liable to pay instalments with 15% interest on the remaining amount. It is further stated that if the instalments were not paid on due date then he would be liable to pay interest @ 18% on the delayed instalments. Admittedly respondent No. 1 had not paid ten six monthly instalments and the amount of Rs. 6 lacs with interest is due, although, possession was delivered to him vide letter dated 14. 5. 1996. It is admitted by respondent No. 1 in the complaint itself that the appellants had resumed the booth in question for non-making payment of the instalments.

IT is stated in para No. 5 of the complaint that pavement had not been constructed, drainage system had not been provided, there were no public toilets and further green belt had not been developed around the booth. In rainy season there was flood like situation around the booth. In the written reply the appellants in para Nos. 3 to 5 had stated that no objection was ever raised about non-completion of development work in the area at the time of taking the possession of booth in question. They further stated that in fact after completion of the development work in and around the booth and providing of basic amenities like sewerage, water supply, electricity and roads the possession of booth was offered to respondent No. 1. They denied that in the rainy season there was flood scene around the booth but stated that in rainy season water used to accumulate in some places and after sometime it automatically drained out. Along with the written statement, affidavit of Shri Pushpinder Singh, Estate Officer, HUDA, Faridabad has been filed who supported the allegations on oath. The respondent No. 1 (complainant had not filed rejoinder stating that basic amenities had not been provided around the booth as alleged by HUDA. They had categorically stated that basic amenities like water, sewerage, road had been provided. This fact has not been controverted by respondent No. 1 (complainant ).

IT has been stated by the Apex Court in Municipal Corporation Chandigarh and Ors. Etc. v. Shantikunj Investment Pvt. Ltd. Etc. , II (2006) SLT 592= (2006) 4 SCC 109, that if basic amenities like electricity, approach road, sewerage and drainage had been provided in the area so, as to facilitate construction of the building within specified time, then Court would not interdict in the matter and facilitate withholding of the balance of premium, ground rent, etc. Rather, it would insist that all the dues of public money are paid by the allottee in accordance with relevant rules/regulations and conditions of the allotment. Since, there is categorical stand of appellants that basic facilities had been provided and there is no rebuttal from the side of respondent No. 1, so, respondent No. 1 was not entitled to withhold the balance 75% of the amount which he was required to pay in lumpsum within 60 days from the date of allotment or instalments as stated above. As respondent No. 1 had failed to pay the balance amount within reasonable period, so, after giving notices, the Estate Officer resumed the booth vide order dated 15. 6. 2001 after following due procedure. The present complaint has been filed on 3. 10. 2006 i. e. after a period of more than two years from the date of passing of resumption order which is clearly time barred in view of Section 24a of the Consumer Protection Act. The copy of the order dated 15. 6. 2001 passed by the Estate Officer, HUDA for resumption of the booth has been placed on file. It is not known on what basis District Consumer Forum had held that the requisite amenities had not been provided and further no notice was served upon respondent No. 1 before resumption of booth. Admittedly respondent No. 1 did not deposit the amounts as stated in the allotment letter and slept after depositing 25% of the amount. He cannot be allowed to take benefit of his own wrongs. The order passed by the District Consumer Forum is based on no evidence and is illegal. Same is set aside. Consequently, appeal is accepted and complaint is dismissed.

COPIES of this order be communicated to the parties, free of charge. Appeal allowed.