KUSUM LATA GOEL vs ESTATE OFFICER, HUDA

THIS is an appeal directed against the judgment dated 11.10.2000 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter to be referred as the District Forum-II) in Complaint Case No. 810 of 1996, Kusum Lata Goel v. Estate Officer, HUDA and Chief Engineer, HUDA. The District Forum-II has allowed the complaint with costs of Rs. 550/- and directed the respondent/O.P. to pay sum of Rs. 1,784/- to the complainant along with interest @ 12% p.a. from 22.2.1996, the day of decision to forfeit Rs. 20,000/- was taken by HUDA till payment.

THE facts giving rise to this appeal may briefly be mentioned as under : THE appellant, Mrs. Kusum Lata Goel, w/o Sh. Suraj Bhan, resident of H.No. 15, Sector 36-A, Chandigarh was allotted plot No. 810-P, Sector 23, Sonepat by the respondent No. 1, Estate Officer, HUDA and a letter of allotment bearing No. 6651 dated 6.11.1992 was issued. However, in the year 1993, the appellant applied for surrender of the plot which was not accepted by the respondents vide their letter dated 4.4.1994. THE appellant/complainant thereafter deposited subsequent instalments and in all she deposited a sum of Rs. 1,19,590/-. It was alleged that in 1996 Mrs. Kusum Lata Goel, the appellant, came to know that respondent/HUDA was allowing the surrender of plots and as such she applied again for surrender of her plot on 1.1.1996. THE respondent/HUDA allowed the surrender of the plot and ordered for the refund of the amount after forefeiting a sum of Rs. 20,000/-. THE appellant, Mrs. Kusum Lata Goel felt aggrieved by the forfeiture of the amount of Rs. 20,000/- and alleged it to be deficiency in service. She filed a complaint before the District Forum-II and alleged that the amount of Rs. 20,000/- had been forfeited without affording an opportunity of hearing to her by the respondent/HUDA. She alleged that she had been deprived of the said amount and claimed interest thereon. The respondents filed reply and challenged the jurisdiction of the District Forum-II to deal with the complaint case. On merits also the respondents defended their action in forfeiting the amount of Rs. 20,000/-. It was explained that the respondents could as a matter of fact forfeit a sum of Rs. 22,000/- but they forfeit only a sum of Rs. 20,000/- and they had, thus, taken a lenient view of the matter in favour of the complainant. The District Forum-II was of the opinion that the dispute involved in the complaint case was squarely covered by the decision of Hon''ble Supreme Court in the case of HUDA & Ors. v. Kewal Krishan Goel, 1996 (2) RRR 696, and a sum of Rs. 20,000/- had been rightly deducted in view of the decision of the Apex Court in the case of K.K. Goel (supra). The complaint case was decided with the directions referred to above.

The complainant felt aggrieved against the order of the District Forum-II and has filed this appeal under Section 15 of the Consumer Protection Act, 1986. Appearance has been put in on issuance of notice, by the respondents through Mr. Aman Chaudhary, Advocate. The record of the complaint case was summoned from the District Forum-II, U.T., Chandigarh in triplicate. We have heard the learned Counsel for the appellant, Mr. K.S. Bawa, Advocate and Mr. Aman Chaudhary, Advocate for the respondents. We have also carefully perused the impugned order of the District Forum-II and have gone through the record of the complaint case.

THE facts involved in the case are not much in dispute. Undisputedly, the plot No. 810-P, Sector 23, Sonepat had been allotted to the appellant on 6.11.1992 vide letter No. 6651 dated 6.11.1992. It is also not disputed that the appellant prayed for the surrender of the said plot and for the refund of the amount which was declined by letter dated 4.4.1994 issued by the respondents. It is also not disputed that the appellant had deposited a sum of Rs. 1,19,590/- with the respondents in connection with the allotted plot. Undisputedly the appellant again moved for surrender of the plot on 1.1.1996 which was allotted by the respondents, who, however, forfeited a sum of Rs. 20,000/- and ordered the refund of the balance amount. THE main contention of the learned Counsel for the appellant was that the respondents could not order for the forfeiture of the amount of Rs. 20,000/- without affording an opportunity of hearing to the appellant and as such the right of the hearing appellant has been denied for no valid reasons. THE learned Counsel for the appellant had placed reliance on a Full Bench judgment of the Punjab and Haryana High Court reported in Rampuri''s case (AIR 1982 P&H 301), in support of his contention that an opportunity of being heard has to be granted to the complainant before an adverse order is passed against the complainant. THE District Forum-II has also made reference to the Full Bench decision of the Punjab and Haryana in Para 4 of the order and has dealt with the matter therein as under : "4. THE learned Counsel for the complainant refers to the decision AIR 1982 Punjab and Haryana 301 Full Bench, Ram Puri, Chandigarh v. Chief Commissioner, Chandigarh & Ors., which call for providing an opportunity of being heard to the complainant before passing an order adverse to her. This is under the Capital of Punjab (Development and Regulation) Act, 1952 and the point involved therein is not in controversy before this Forum. Importantly, here the allotment of plot was cancelled at the instance of the complainant herself. THE only point to be seen is whether the O.P. could validly deduct Rs. 20,000/- and forfeit it out of the entire amount deposited by the complainant."

THE District Forum-II has, however, found the controversy involved fully covered by the decision of the Hon''ble Supreme Court in K.K. Goel''s case (supra), and relied on the relevant observations made therein which are as under : "It is held that the appellant would be entitled to forfeit the earnest money which had been deposited along with the application form and on deducting the said ''earnest'' the balance amount may be refunded to allottees-respondents who had made application for refund in question."

(Vide Para 5 of the impugned order) THE judgment of the Hon''ble Supreme Court in the case of K.K. Goel''s case (supra), was cited before us in Para 3 of the judgment. THE Hon''ble Supreme Court considered the question that arose for consideration and observed as under : "3. THE short question that arises for consideration is, where a land is allotted and the allottee deposits some instalments but thereafter intimates the authority about his incapacity to pay up the balance instalments and requests for refund of the money paid, is the Allotting Authority entitled to forfeit the earnest money deposited by the allottee or could be only entitled to forfeit 10% of the total amount deposited by the allottee till the request is made as directed by the High Court ?"

THE facts of the case were noticed in Para 4 which are as under : "4. Haryana Urban Development Authority issued an advertisement inviting applications for allotment of residential plots at Karnal. THE price of plots was different for different sizes. In accordance with the advertisement 10% of the total price was required to be deposited along with the application form as earnest money and where the plot was a preferential one an extra price of 10% of the total price was required to be deposited. In the letter of allotment that had been issued by the Estate Officer of the Haryana Urban Development Authority to the allottee, it was indicated that if the allottee refuses to accept the allotment then the same may be communicated within 30 days from the date of allotment letter failing which the allotment would stand cancelled and the earnest money deposited shall be forfeited to the authority and the allottee can have no claim for damages. It was also stipulated in the letter of allotment that the balance amount of the tentative price indicated in the letter of allotment could be deposited either in lump sum without any interest within 60 days from the date of issue of the allotment letter or in 6 annual instalments and each instalment would be recoverable together with interest at 15%. On receipt of the letter of allotment the allottees who are the respondents in these appeals accepted the allotment and made the initial deposits as required and thereafter chose to deposit the balance amount in instalments. Each of the allottee-respondent did deposit some instalments and thereafter intimated the authority that they will not be in a position to take the land allotted and requested for refund of the amount. In some cases the authority replied that their prayer for cancellation of allotment cannot be acceded to and in some other cases even before any consideration made by the authority to the request of the allottees, the allottees approached the High Court. THE High Court having directed the authority to refund the balance after deducting 10% of the amount deposited by each of the allottee, the Haryana Urban Development Authority as well as the State of Haryana have preferred these appeals."

THE Hon''ble Apex Court considered whether the allottee accepts the allotment and indicates the same within the stipulated period and makes additional deposits on instalment basis and thereafter intimates the authority that he will not be in a position to pay up the balance amount and makes a request for refund of the money deposited, would the authority be justified in forfeiting the earnest money which had been deposited along with the application form. In Para 8 of the judgment, the Hon''ble Apex Court gave its answer to this question inter alia as under : "...THE answer to this question depends upon the basis concept of ''earnest''. In the case of Shri Hanuman Cotton Mills & Ors. v. Tata Air Craft Limited, 1969 (3) SCC 522, this Court laid down the following regarding ''earnest''..."

The Hon''ble Supreme Court held that the earnest money was a part of the purchase price when the transaction got through and the same is forfeited when the transaction falls through by reason of the default or failure on the part of the vendee. Summing up the legal position, the Hon''ble Apex Court held in Para 10 as under : "10. This being the legal position and the allottee having accepted the allotment and having made some payment on instalment basis and then made the request to surrender the land, has committed default on his part and, therefore, the Competent Authority would be fully justified in forfeiting the earnest money which had been deposited and not the 10% of the amount deposited as held by the High Court. The High Court was totally in error in issuing the direction in question on the ground that the respondents were not in a position to deliver the possession of the land to the allottee. It may be stated that in the letter of allotment no period was stipulated within which the possession of the land was to be delivered. The land in question was required to be developed and then to be delivered and in absence of any period in the letter of allotment, it was required to be delivered within a reasonable period. In the facts and circumstances, it cannot be said that the reasonability had lapsed particularly when the allottee had not paid up the entire instalments due and merely paid a part thereof."

A careful perusal of the facts involved in the case of K.K. Goel (supra), before the Hon''ble Supreme Court, it will be apparent that the controversy involved in the instant case is squarely covered by the decision referred in the case of K.K. Goel (supra). That being so, the District Forum-II was right in rejecting the statement of the learned Counsel for the appellant in this regard. So far as the Full Bench decision of the Punjab and Haryana High Court is concerned, the same has to be considered in the light of the judgment of the Hon''ble Apex Court in K.K. Goel''s case (supra). Resultantly, the appeal lacks merits and is dismissed with no order as to costs. Copies of the order be sent to the parties free of charges. Appeal dismissed.