HARYANA URBAN DEVELOPMENT AUTHORITY vs NARESH KUMAR

THIS appeal is directed against the order dated 25. 8. 2005 passed by the District Consumer Disputes Redressal Forum, Kaithal whereby while accepting the complaint No. 435 of 9. 10. 2003 filed by respondent-complainants following directions have been given to the appellant-opposite parties: "the respondents are directed to provide all the facilities and should complete all the development work in the Mandi Township Sector. The respondents are also directed not to charge possession interest and extension fee from the complainant till completion of development work. The respondents are also directed to refund amount charged 10% excess from the complainant for treated plot No. 126 as preferential plot. The respondents are directed to return/refund the said amount. All the amount shall be refunded to the complainant along with interest @ 9% p. a. from the date of deposit till realization. Rs. 3,000 (three thousands) are awarded as compensation for harassment and mental agony including the costs. Complaint is accepted. Compliance of the order shall be made within 30 days from the date of order. "

THE facts of the case have to be focussed in the forefront in order to decide the present appeal. A residential plot No. 126 measuring 10 Marlas located in Mandi Township, Pundri was allotted to Krishan on a tentative price of Rs. 3,29,947, as per allotment letter No. 3216 dated 29. 9. 2000. Thereafter, it was transferred to the complainants as per re-allotment letter bearing No. E. O. KTL-95/7599 dated 9. 10. 2001. In terms of Clause 7 (ii) of the allotment letter dated 29. 9. 2000, it was specifically mentioned therein that the possession of the site be obtained by visiting personally or through any representative on any working day. The grievance of the complainants is that factually the development work as stated in the allotment letter was not completed by the opposite parties and for that reason offer of the possession of the plot so made in the allotment letter was an unfair trade practice on the part of the opposite parties. According to the complainants they had visited the site on 28. 9. 2002 after making the payment of second instalment with a view to start construction of their house on the said plot but they came to know that the electricity, sewerage, water and roads facilities had not been provided. They further found that it was not a preferential plot. It was also stated that treating the plot as preferential plot, the same should have been located at a site having two roads but factually no such roads were there. Therefore, the opposite parties had wrongly stated in the allotment letter that it was a preferential plot. Further, according to the complainant a park is located on one site of the plot which is source of nuisance to them. They have further averred that the opposite parties had wrongly charged Rs. 29,995 as additional price being 10% of the total tentative price being preferential one. At the same time it was admitted that the allottees of the plot Nos. 166 and 152 had constructed their houses who were facing hardship in the construction work for want of provision of electricity as they had to take electricity from the Grain Market installing temporary Ballies with the help of their own wires and cables. It was further stated that all the manholes were lying choked and were leaking under the construction. Despite these shortcomings the opposite parties had demanded extension fee of Rs. 2,090 as per letter bearing Memo No. 3200 dated 26. 8. 2003. Alleging deficiency of service on the part of the opposite parties the complainants sought direction against the opposite parties to complete the development work in the area where the plot in question is located; not to charge possession interest and extension fee till the essential facilities are provided in the sector; to refund the amount of possession interest charged during the period September, 2001 to September, 2003 on the instalments amount; to refund the extension fee charged during the period 2003 onwards; to refund the amount of Rs. 29,995 illegally charged as additional price @ 10% of the total tentative price of the plot by mentioning the plot in question as preferential plot; to pay Rs. 1,00,000 as escalation charges of the cost of construction; to pay Rs. 1,00,000 as compensation on account of mental agony and harassment and Rs. 5,500 as litigation expenses. The complaint was contested by the opposite parties. In the written statement filed they raised the preliminary objections with regard to the locus standi, cause of action and non-maintainability of the complaint in the present form. On merits it was stated that the development work like roads, sewerage, electricity and water had been completed as per letter No. 3739 dated 9. 4. 1996 and letter No. 2416 dated 10. 12. 2003 and for that reason there was no deficiency on their part, as alleged by the complainants. It was further maintained that the possession of the plot was delivered to the allottee at the time of allotment. Consequently, it was prayed that the complaint merited dismissal. On the basis of the pleadings of the parties and evidence adduced on record the District Forum did not accept the version of the opposite parties and issued the directions to the opposite parties as per order dated 25. 8. 2005 noticed above. Hence, the present appeal at the behest of the appellant-opposite parties. Learned Counsel representing the parties have been heard at length.

While seeking the reversal of the order dated 25. 8. 2005 two-fold submissions have been made by the learned Counsel representing the appellant-opposite parties. Firstly, that the District Forum has totally overlooked the factual position on record because before the date it was re-allotted to the complainants, the offer of possession of the plot was made to the original allottee as per letter dated 29. 9. 2000. Secondly, it was contended by him that the complaint was hopelessly barred by time and though no plea was taken in this regard in the written statement filed but being legal plea, it can be taken during the appeal because the District Forum has failed to perform its statutory duties in terms of the requirements of Section 24a of the Consumer Protection Act, 1986 (hereinafter referred to as the Act, 1986 ). Opposing the submissions made, learned Counsel representing the respondent-complainants has justified the order of the District Forum for the reasons stated therein. The District Forum has accepted the complaint primarily on the basis of reports of two Local Commissioners namely Shri Rajesh Kumar Khatkar, Advocate dated 20. 10. 2003 and S. D. O. ''op'' Sub-Division No. II, U. H. B. V. N. , Pundri, who were appointed to visit the spot and to report about the existing position at the spot. There are two reports of the Local Commissioners dated 20. 10. 2003 of Mr. Rajesh Kumar Khatkar, Advocate and dated 16. 12. 2003 of S. D. O. ''op'' Sub-Division No. II, U. H. B. V. N. , Pundri on record. It has been rightly contended by the learned Counsel representing the appellant-opposite parties that the District Forum had not discussed the factual position mentioned in these reports and in one line had observed, "we have gone through the report of Local Commissioners carefully which fully support version of complainants. The photographs are also on the file which were submitted by local LCs" and on that basis recorded a finding that deficiency was committed by the opposite parties in this regard which finding on the face of record is erroneous and deserved to be set aside. As far as the report dated 20. 10. 2003 submitted by Shri Rajesh Kumar Khatkar, Advocate is concerned, he has mentioned that he had visited the site on 15. 10. 2003 at 3. 00 p. m. in the company of S. D. O. of H. V. P. N. They found that the transformer was not in working condition and supply of the electricity had not been provided. It is also mentioned in the said report that 8-10 houses had been constructed which had been provided electric connections from the Anaj Mandi with the help of cables having the length of 400-500 mtrs. fixed on the Ballies. In some of the poles the wires were not there. Some of the poles were found to be in twisted condition. There was no provision for streetlight. It is also mentioned in the said report that in respect of the plot No. 126-P road of nine feet width was located on the Eastern side and there was no road on the Western side as there was a park on that direction. The water of the sewerage was found leaking and pits were noticed around the place. It was also mentioned in the report that though the road had been laid but it was found broken at some places. A conclusion was drawn that repair of the road had not been done for the last many years and in particular after 1992 onwards. In the separate report submitted by the S. D. O. , OP Sub-Division No. II, U. H. B. V. N. , Pundri, he has stated that the HUDA authorities had erected one 100 KVA T/f, but no connection was released from there and transformer was lying totally idle. At the same time it was mentioned that L. T. Span conductors were found stolen. There was no provision for streetlight. The residents of HUDA had been using the supply from Nigam City Feeder T/f with a Long Service Line. The reading of the above reports clearly being out that necessary infrastructures for roads, water supply, sewerage and electricity had been provided. The provision of electricity poles were found in existence as mentioned in both the reports and if in some of the poles wires were not fixed, is no consequence to draw a conclusion that the opposite parties had not carried out the development work in the area. The above stated reports clearly pin-point that even the conductors had been stolen and the roads had been laid at the time Mandi Township was initially developed and it is for that reason at some places pits were found. Therefore, the District Forum has not properly appreciated the factual position spelt out from the above stated reports. Furthermore, the opposite parties have also placed on record the letter No. 2416 dated 10. 12. 2003, wherein it has been mentioned that the work of electricity in Mandi Township, Pundri had been completed in the year 1994-95. It is also mentioned in the said letter that transformer installed was got inspected from the Chief Electrical Inspector, Haryana in May, 1994 and the operation and Mtc charges amounting to Rs. 26,197 were deposited with the H. S. E. B. vide BA-16 No. 45/0516 dated 11. 12. 1995. The other letter placed on record is bearing No. 3739 dated 9. 4. 1996, wherein the Executive Engineer, HUDA Division, Panipat had informed the Estate Office, HUDA, Kaithal that the development work like roads, water supply and sewerage, etc. had been completed as per details mentioned in Annexure A in respect of the plots mentioned therein. Therefore, the stand of the opposite parties that at the time of allotment was made to the complainants, the essential amenities needed for the residents had been provided. Even otherwise, from the allotment letter and re-allotment letter placed on record from the side of the complainants it cannot be construed that providing of the basic amenities was a condition precedent. In this case the offer of possession was made at the time of allotment letter No. 3216 dated 29. 9. 2000 was issued to the original allottee. The complainants have stepped into the shoes of original allottee in respect of the rights accrued to him on the basis of allotment letter issued to him and for that reason in the re-allotment letter it was also mentioned that the complainants would abide by the terms and conditions of the allotment letter issued to them. In this regard notice has to be taken of the observations made by the Hon''ble Supreme Court in case Municipal Corporation Chandigarh and Ors. Etc. v. Shantikunj Investment Pvt. Ltd. Etc. , II (2006) SLT 592=jt 2006 (3) SC 1, wherein the question came up for consideration whether providing of basic amenities is a condition precedent and what would be liability of payment of interest of the allottee where the basic amenities are not provided by the authority. While dealing with the question raised it was observed in Para No. 26 of the judgment, which reads as under: "26. We have bestowed our best of the attention to the provisions of the Act and the Rules. On a plain reading of the definition ''amenities'' read with Rule 11 (2) and Rule 12, it cannot be construed to mean that the allottees could take upon themselves not to pay the lease amount and take recourse to say that since all the facilities were not provided, therefore, they are not under any obligation to pay the instalment, interest and penalty, if any, as provided under the Act and the Rules. It is not possible to accept a sweeping proposition that if all the facilities or amenities are not provided, then the allottees/lessees can take upon themselves not to pay the lease amount, interest and penalty would be going too far. It has never been the condition precedent. "

THE observations made in the above mentioned case would fully apply to the facts of the present case. Taking into account the evidence adduced on record there is no manner of doubt that basic amenities like roads, water supply, sewerage and electricity had been provided where the plot in question is located and for that reason the findings of the District Forum to the contrary are set aside. Even otherwise, the District Forum has totally ignored that the complaint filed by the complainants was barred by limitation in terms of the provisions of Section 24a of the Act, 1986. As already noticed the complainants were re-allottees of the plot as per re-allotment letter bearing No. E. O. KTL-95/7599 dated 9. 10. 2001. The offer of possession of the plot was made to the original allottee as per Clause 7 (ii) of the allotment letter. The original allottee thereafter did not approach the opposite parties for taking possession of the plot. Same is the position with regard to the complainants who after re-allotment letter did not approach the opposite parties for delivery of possession of the plot to them. Rather, the present complaint was filed on 9. 10. 2003 on the ground that after visiting the site on 28. 9. 2002 they found that the development works had not been completed. No application for seeking condonation of delay has been moved in terms of the requirements of Section 24a of the Act, 1986. Needless to say a statutory duty has been cast on the District Forum under Section 24a of the Act, 1986 that it shall not admit a complaint unless it is filed within two years from the date of cause of action had arisen. In this case the cause of action had arisen on the basis of offer of possession of the plot made on 29. 9. 2000. The present complaint came to be filed on 9. 10. 2003. So to say after a period of two years. It has been laid down in Haryana Urban Development Authority v. B. K. Sood, IV (2005) CPJ 1 (SC)=viii (2005) SLT 146=2006 (1) CCC 646 (SC) that if the complaint is not filed within two years of the accrual of cause of action unless sufficient cause for not filing the complaint within the period of two years from the date of cause of action is shown, the complaint would not be maintainable. In case Surinder Mohan v. Municipal Corporation and Another, III (2006) CPJ 136 (NC), the complainant had filed the complaint alleging that basic amenities had not been provided in the area where the booths were allotted. The allotment letters were issued in April, 1992 whereas the complaint was filed 1999. Taking notice of the two years for filing the complaint under Section 24a of the Act, 1986 the complaint was held to be barred by time because the complainant had not a continuing cause of action and for that reason the complaint was not held to be maintainable. The facts and circumstances brought on record equally establish that the complainants had not filed the present complaint within the prescribed period of two years in respect of the relief claimed in the complaint, and for that reason the complaint was likely to be dismissed on this ground. All these aspects have not been given due consideration by the District Forum while accepting the complaint and for that reason the order of the District Forum cannot be sustained.

FOR the aforesaid reasons, while accepting the appeal the impugned order is set aside and the complaint is dismissed. The amount of Rs. 25,000 deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules. Appeal allowed.