H.U.D.A.,HISSAR vs CHUNI LAL MALHOTRA

FIRST Appeals Nos. 160 & 161 of 1993 are directed against the virtually identical orders of the District Forum, Karnal dated the 3rd of March, 1993. Learned Counsel for the parties are agreed that the issues of law and facts are common and this order will govern both of them.

THE representative facts may be noticed from First Appeal No. 160 of 1993 ''H.U.D.A. v. C.L. Malhotra & Others''. THE Haryana Urban Development Authority had admittedly developed Sectors 8 & 9 in the Urban Estate at Karnal. THE respondent was an allottee of Plot No. 883 therein. THE primal grievance of the respondent was that there had been no development worth the name on the site and consequently possession was not delivered to the consumer-respondent. However, the opposite party levied interest @ 12% per annum on the price of the plot in contravention of the terms and conditions from an arbitrary date of the alleged offer of possession. It was the firm plea that since the area has never been developed nor plots demarcated, the possession of the plot could not possibly be delivered and consequently no interest could be charged. On notice being issued, the appellants put in their written statement in which some fragmentary preliminary objections were taken, but patently not at all were pressed before the District Forum and consequently the reference to them is unnecessary. The core of the plea taken on behalf of the appellant was that interest could be charged from the date of the offer of possession and not necessarily from delivery and since such an alleged offer had been made on the 20th April, 1990, the levy of interest on the said date was justifiable.

The District Forum noticed that it was undisputed that the appellant had failed to demarcate the area and provide the amenities like road, electricity, sewerage at the time of alleged offer of possession which was consequently meaningless. In the result, it was directed that the amount of interest charged be refunded to the respondent.

MR. Sanjeev Sharma, the learned Counsel for the HUDA apparently bereft of a meaningful argument, took up the hyper-technical plea of their being a lack of jurisdiction on the part of the District Forum. It was contended that on the ground alone the order under appeal was non-est. The submission aforesaid has to be only noticed and rejected. It is manifest from the order under appeal that even though the appellants were fully represented by Shri Jaswant Singh, Additional District Attorney, not the least attempt was made to urged or raised any jurisdictional objection at the threshold. This indeed was very fairly conceded by Mr. Sharma. What next meets the eye is that even on the grounds of appeal herein not a hint or any mention of the preliminary objections has been raised. It is somewhat elementary that jurisdictional objections have to be necessarily pressed at the very commencement of the proceedings and if it is not so done the party concerned must be deemed to have waived the same. In this situation, we find not the least merit in the submission of the learned Counsel seeking to resurrect the ghost of preliminary objections for the first time at the appellate stage, without eve mentioning them in the grounds.

MR. Sharma had then argued vehemently that the terms and conditions provided for the levy of interest from the date of the offer of possession and consequently the respondent could not opt out there from. It was submitted that a formal offer had infact been made and consequently the levy of interest was justifiable. The aforesaid submission has only to be noticed and rejected. The District Forum noticed in terms that before it, it was not disputed at all that the appellant had both failed to demarcate the plots sites and further to provide the elementary amenities like road, electricity, sewerage etc. at the time of the alleged offer of possession. Once that is so, it is plain that an offer of possession is not merely an empty paper formality. In the context, it is somewhat obvious that such an offer can only be made when development is complete, and in any case a reasonable development on the spot has been done by a developer of the appellant HUDA''s stature. What further calls for notice is the fact that the respondent had put in a clear and categoric affidavit in support of his case averring in no uncertain terms that there was not a hint of development at the material time and even the zoning had hardly been completed. Significantly the respondent was not at all challenged by way of cross-examination and the affidavit evidence has consequently to be accepted as true. Equally the hyper-technical submission that Sectors 8 & 9 of the Urban Estate were on a different footing has not been borne out from the record. Infact on behalf of the respondent Mr. Goel had contended that these were virtually composite sectors. It was further submitted on behalf of the respondents that there is not a title of evidence to dislodge the firm finding of fact by the District Forum that it was beyond the pale of dispute that no development at the material time had taken place. Even Mr. Sharma had conceded that on behalf of the appellant no meaningful evidence whatsoever has been led or place on the record. For the foregoing reasons, both the appeals are without merit and are hereby dismissed with costs which are assessed at a sum of Rs. 500/- in each appeal. Appeal dismissed with costs.