HUDA vs Ankit Tyagi

PETITIONERS /Opposite Parties being aggrieved by impugned order dated 30.08.2010 passed by State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, ''State Commission'') in (First Appeal No.1125 of 2010), have filed present revision petition under Section 21(b) of the Consumer Protection Act, 1986( for short, ''Act'').

BRIEF facts are that, Plot No.2204, Sector -28, Panchkula was allotted to the Respondent/Complainant by petitioners, vide memo dated 3.11.2006 @ Rs,5980/ - per sq. mts. at tentative price of Rs.13,28,756/ -. After allotment, respondent deposited amount of Rs.2,07,207/ - demanded by the petitioners towards 15%, through draft no.012735 dated 24.11.2006. Alongwith allotment letter, petitioners also issued another letter of offer of possession vide memo dated 3.11.2006, stating therein that possession of the plot could be obtained by visiting personally or through some authorized person in their office on any working day between 3.00 P.M. to 5.00 P.M. within 30 days from the issuance of this letter. It is stated, that as per clause no.6 of the allotment letter, interest @ 9% p.a. on the remaining amount of installments would accrue from this date i.e. 3.11.2006. After receiving the letter, respondent along with his father and his counsel visited the spot and found that no amenity was provided by the petitioners, such as road, sewerage pipe line, water pipe lines, electric line etc. which are essential before offering the possession of the plot. Petitioners assured the respondent, that they would provide the same very shortly, within one month. The respondent again visited on the spot on 20.5.2007 but till then petitioners had not provided the basic amenities. Respondent issued legal notice upon the petitioners and again visited the spot on 15.10.2007 and found installations of electric poles without wires. Thereafter, respondent sent reminder notice dated 22.10.2007 to the petitioners. They replied on 4.1.2008, stating that development works have already stand completed as on 3.11.2006 around the said plot. However, this is against the factual position. Respondent also deposited the second installment of Rs. 2,66,095/ - plus Rs. 89,691/ - on 1.11.2007, which was due on 2.11.2007. The petitioners wrongly and illegally, without completion of development works over the plot of the respondent having received the amount of Rs. 1,64,434/ -, which they are liable to refund interest and are not entitled to get the interest on the remaining amount, till completion of the development work. This act of the petitioners caused him great mental, physical and financial harassment and also amounts to deficiency in service on its part. Hence, a consumer complaint was filed against the petitioners.

PETITIONERS in their written statement took the plea that respondent has no cause of action to file the complaint as possession stood offered to the complainant, vide letter dated 3.11.2006. Petitioners have provided all the development works i.e. road, sewerage pipe line, water pipe line, electricity line etc. as per the office report. Respondent has not applied for taking possession so far. Thus, respondent is not entitled to get any relief. Hence, there is no deficiency in service and complaint be dismissed with costs. District Forum after had fully examined the case, vide order dated 10.6.2010 allowed the complaint and passed following directions; "a) To treat the letter of offer of possession(Ex.C -2) dated

3.11.2006 as quashed.

b) To offer physical possession of the plot in question to

the complainant after development.

c) Not to charge any interest on installments and extension

fees till the offer of possession as per (b) and refund the

same if charged along with interest @ 6% p.a. from the

date of deposit till refund.

d) Further to pay a sum of Rs. 1,000/ - as lump sum

compensation on account of mental agony, harassment

& costs of litigation."

AGGRIEVED by the order of the District Forum, petitioners filed appeal before the State Commission which dismissed the same in limini, vide its impugned order.

HENCE , the present revision.

WE have heard the learned counsel for the parties and gone through the record.

IT is submitted by learned counsel for petitioners, that as per letter of offer of possession dated 3.11.2006, all the basic amenities were provided. Inspite of letter of possession, respondent did not take the possession of the plot. Further, it is submitted that petitioners objected to the report of the Local Commissioner but the same were not considered by the District Forum. Thus, there is no deficiency on the part of the petitioners.

ON the other hand, it is submitted by learned counsel for the respondent, that respondent after getting the letter of possession visited the spot and found that no amenities have been provided. Thereafter, he sent legal notice. Moreover, as per inspection report of the Local commissioner, all basic amenities had not been provided by the petitioners as on 3.11.2006.

DISTRICT Form, while allowing the complaint in its order held;. "9. We have given our due consideration to the arguments advanced by both the parties. The main question in the present complaint to be looked into by this Forum is whether the opposite party offer of possession of the plot in question to the complainant vide letter (Ex. C -2) dated 3.11.2006 is valid or not. In this regard we find that complainant was allotted plot in question on 3.1.2006 along with offer of possession. Since the very beginning the complainant has been agitating that the aforesaid offer was not valid as is evident from various letter and legal notices Ex. C -3, Ex -C -4 and Ex. C -6. During the pendency of the complaint, under the directions of this Forum, a legal Commissioner visited the spot on 31.7.2009 and submitted his report retarding development works at plot no. 2204 in question who specifically mentioned in its report dated 28.9.2009 there were 5 electricity poles without wire in the north side of the plot and that there were no street lights over the site and that roads were also not in good condition. Although the opposite party filed objection to this report, but we find no substance in objection raised by the Op.

The Op argued that they offered possession of the site after completion of development works as evident by letter Executive of Engineer HUDA Division Panchkula (Ex.OP -2) dated 13.10.2006. However, this report was regarding only development works qua water supply, sewerage and roads. No report regarding completion of Electrification works over the site has been placed on record by the OP. Thus after going through above discussion it is very much clear that basic amenities like electricity is not available at the site even to date and the availability of water supply facility is also doubtful, also that the opposite party offered possession of the plot vide letter (Ex C -2) without providing all basic amenities. Accordingly we hold that this act of the opposite party amounts to deficiency in service on their part."

THE State Commission, while dismissing the appeal in limni in its impugned order observed; " We have gone through impugned order and taken into consideration the facts and circumstances of the case and are of the view that since the appellants/opposite parties have not completed the development work in the area, where the plot of the complainant is located, in that event the appellants/opposite parties have rendered deficient services to the complainant by not offering the actual physical possession of the plot as well as charging him the interest over the installments. The District Forum wrongly granted the relief with respect to the setting aside of extension fees, which was never the case of either of the parties set up before the District Forum. In this view of the matter, we do not find any case for interference in the impugned order in this appeal."

BOTH the Fora below, in their respective order observed, that petitioners have not completed development works in the area where plot of respondent is located as all amenities were not provided. In addition, District Forum had appointed a Local Commissioner, who visited the spot on 31.07.2009. Thereafter, he submitted his report dated 28.09.2009, stating therein that there were 5 poles without electric wires in the north side of the plot and there were no street lights over the site and the roads were also not in good condition.

PETITIONERS in the present case have not filed on record, even single document so as to show as to what development works were completed on the date of possession i.e. on 3.11.2006. Moreover, no report regarding completion of electrification work with regard to the plot has been placed on record.

IT is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited. This Commission can interfere with the order of the State Commission only where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

THE Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., 2011 3 Scale 654 has observed; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora".

IN view of the concurrent findings of the facts given by both the Fora below, there is no infirmity or illegality in the impugned order. The present revision petition stand dismissed.

NO order as to cost.