LT. COLONEL VIRPAL SINGH vs HARYANA URBAN DEVELOPMENT

Revision petition no. 424 of 2016 has been filed against the judgment dated 14.10.2015 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (''the State Commission'') in Appeal no. 892 of 2014.

The facts of the case as per the petitioner/ complainant are that a second complaint filed by the petitioner was allowed because the previous complaint no. 70 of 2011 was dismissed as withdrawn. It was alleged in the subsequent complaint no. 174 of 2011 out of which the present revision petition has arisen that the petitioner applied for a plot measuring 14 marlas against the advertisement issued by respondent/ opposite parties for Sector no. 13 and 23 at Bhiwani. Vide letter dated 10.04.1996 the petitioner was informed that as per the orders of the Chief Administrator HUDA, the petitioner was allotted plot no. 1859 in Sector 13 in place of the previous plot on the same terms and conditions mentioned in memo no. 1459 dated 04.06.1990. Further, the petitioner was not informed about any kind of enhancement vide memo no. 897 dated 10.04.1996. The petitioner took possession of the subsequent plot and memo no. 1258 dated 16.08.1996 was issued to this effect. The petitioner paid Rs.1,26,554.75 for the plot in Sector 13, Bhiwani. He regularly paid the instalments. Petitioner also paid Rs.25,396/- qua plot situated in Sector 23 as being preferential rate whereas plot given in sector 13 was general. A No Due Certificate (NOC) was also issued by the respondents on 19.08.1996. He completed the construction on plot no. 1859, Sector 13 Bhiwani and occupation certificate was issued by respondent vide memo no. 568 dated 20.04.1999. Vide letter dated 3935 dated 24.10.1996 respondent no. 2 asked to pay Rs.1,60,959/- as the additional price for the alternative plot. The petitioner requested the respondents to withdraw that letter, but to no avail. Under compulsion, the petitioner deposited Rs.50,000/- on 26.06.2000 and Rs.35,000/- on 24.10.2001 total amounting to Rs.85,000/-. Vide letter no. 4649 dated 25.06.2007 the petitioner was asked to deposit Rs.3,92,089/- as the enhanced price. Possession of plot was delivered to him after six years of allotment in Sector 13 Bhiwani. There was no enhancement in the price of plot no. 864 P in Sector 23, Bhiwani, which had been allotted to him initially. Hence, the petitioner was not liable to pay the enhancement pertaining to plot no. 1859, Sector 13, Bhiwani. Previous complaint filed by the petitioner was withdrawn on 24.03.2011 with the permission to file fresh complaint with better particulars. He prayed that letter no. 3935 dated 24.10.1996 and memo no. 4649 dated 25.06.2007 were arbitrary, against law and should be set aside. The respondents were not entitled to recover any kind of enhancement from the petitioner. Further, he prayed they may also be directed to refund Rs.85,000/- mentioned above, along with interest, besides compensation for mental harassment and litigation expenses as alleged.

The respondent has contended that plot in Sector 23 was under dispute, so another plot was allotted to the petitioner in Sector 13, Bhiwani, vide Memo no. 897 dated 10.04.1996. Enhancement came after allotment of the plot and that is why the petitioner was asked to deposit the enhanced amount vide memo no. 3935 dated 24.10.1996 and memo no. 3217 dated 27.08.2001. When he did not deposit the amount, memos were issued to him time and again. The additional price was demanded from the petitioner qua enhancement. He filed similar complaint previously which was dismissed as withdrawn. Objections about concealing true facts, estoppel maintainability of complaint etc., were also raised with a request to dismiss the complaint.

The District Consumer Disputes Redressal Forum, Bhiwani, vide its order dated 19.08.2014 allowed the complaint and directed as under:

Not to recover the additional price of the alternate plot demanded vide memo No. 3935 dated 24.10.1996.

To refund the excess amount received from the complainant along with interest @ 12% from the date of deposit till its final realisation.

To refund the interest charged from the complainant prior to offer of possession.

To refund 20% amount of the original price deposited by the complainant as special preferential plot.

To execute the conveyance deed of the alternate plot in favour of the complainant on the original price.

To pay Rs.20,000/- as compensation for harassment.

To pay Rs.2,200/- as litigation charges".

Aggrieved by the order of the District Forum, the respondents preferred an appeal on the ground that the complaint was hopelessly time barred. The demand for the additional price was made vide memos dated 24.10.1996 and 30.09.2002. Memo issued on 25.06.2007 was not a demand for the additional price, but was sent in pursuance of request of the petitioner regarding the amount due.

The State Commission vide its impugned order dated 14.10.2015 while allowing the appeal and dismissing the compliant observed as under: "6. Firstly, it is to be seen whether the complaint was filed in time or not. If the complaint is time barred there is no necessity to give findings on the merits. Hon''ble Supreme Court has opined in State Bank of India vs M/s B S Agricultural Industries (I) reported in 2009 (2) CPJ 1, that if the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the Forum would be committing an illegality and therefore, the aggrieved party would be entitled to have such order set aside.

Learned counsel for the complainant vehemently argued that previous complaint was dismissed as withdrawn on 24.03.2001 with permission to file fresh complaint. Thereafter, this complaint was filed on 29.03.2011 and cannot be considered as time barred.

This argument is also devoid of any force. As per this complaint and as per previous complaint he denied the right of the OPs to recover price as per letter dated 24.10.1996 and 25.03.2007. Initially cause of action accrued to him on 24.10.1996, he should have filed complaint within two years therefrom as provided under Section 24 A of the Act. Vide letter dated 25.06.2007 he was informed about the amount due on that date. When he did not pay any amount that went on accumulating. Worst to worst if letter dated 25.06.2007 is taken into consideration then he was supposed to file complaint upto 25.06.2009 whereas first complaint was filed by him in the year 2011. When that complaint itself was time barred, limitation will not start from the date when he was allowed to withdraw that complaint with permission to file fresh complaint. When initial complaint was time barred, this compliant cannot be considered in time.

Admittedly, the present complaint was filed by the complainant before the District Forum after a gap of more than two years from accruing cause of action, which on the face of it appears to be hopelessly time barred.

The District Forum failed to take into consideration all these aspects. In these circumstances, impugned order dated 19.08.2014 cannot be sustained and same is hereby set aside. Resultantly the appeal is allowed and complaint is dismissed".

Hence, the presence revision petition.

We have heard the learned counsel for the petitioner and have carefully gone through the record. Learned counsel for the petitioner has contended that the order of the State Commission should be set aside because, there cannot be any enhancement on an alternate plot and as such he is not liable to pay any enhancement or additional price. He further contended that there has been no increase in Sector 23, where the plot was earlier allotted to him. He further argued that the State Commission has erred in holding that it was time barred because this is a continuing cause of action from 24.10.1996 when the demand notice for enhancement was received for the first time.

We have carefully gone through the record. Placed on record is the allotment letter dated 04.06.1990 by which the petitioner was allotted plot no. 864, Sector 23, Bhiwani on free hold basis. Paragraph 9 of the terms and conditions reads as under: " 9. The above price is tentative to the extent that any enhancement in the cost of land awarded by the competent authority under the Land Acquisition Act shall also be payable proportionately, as determined by the authority. The additional price determined shall be paid within thirty days of its demand".

Thereafter, he was allotted plot no. 1859 in sector 13, Bhiwani in exchange of the earlier allotment vide letter dated 10.04.1996. This letter clearly stated that the terms and conditions of the allotment already issued vide office letter no. 1459 dated 04.06.1990 will remain unchanged.

The No Due Certificate issued to him on 19.08.1996, is reproduced as under: "It is certified that plot no. 1859 ad-measuring 14 Marla in Sector no. 13 of Urban Estate, Bhiwani has been sold to Virpal Singh at the tentative price of Rs.1,26,554.25 and is free from all encumbrances of attachments and Col. Virpal Singh has a clear and title to the property subject to the terms and conditions of allotment letter dated 04.06.1990. The allottee has paid the full tentative price of the aforesaid plot, which is subject to revision in the event of enhancement of amount of compensation by the court or additional price determined by the authority otherwise the balance shall have to be paid within 30 days from the date of demand and the Haryana Urban Development Authority shall have the first and permanent charge over the said plot to the extent of enhanced price till the same has been paid by him."

From this also, it is crystal clear that the no due certificate was issued only with reference to the tentative price paid by the petitioner. He was repeatedly informed that the price was tentative and that it is subject to revision in the event of enhancement of amount of compensation by the court or additional price determined by the authority otherwise the HUDA to first charge over the said plot to the extent of enhanced price till the same has been paid by the petitioner.

The demand letter for additional price for plot no. 1859, sector 13, Bhiwani also clearly spells out that: "(2) Under regulation no. 2 (b) and 10 of the Haryana Urban Development Authority (Disposal of Land and Buildings) Regulation 1978 you, are liable to pay to the authority additional price in addition to the date of this notice.

(3) According to condition no. 9 of the allotment letter, the price of the said plot is subject to the variation with reference to enhancement of compensation of acquisition cost of land of this sector by the Court. The enhanced compensation of this sector has since been deposited in the court for payment to the concerned parties and as such the same is recoverable from you. It has been worked out that the enhanced compensation is to be recovered @ Rs.536.53 per sq. mtr and as such an amount of Rs.1,60,959/- is recoverable from you in respect of the above mentioned plot".

We agree with the State Commission as per the facts of the case, the complaint is hopelessly time barred. Further, even on merit the petitioner has no case. As per the terms and conditions of the allotment letter issued on 04.06.1990, he was aware that the price mentioned in the allotment letter was tentative subject to enhancement, depending upon the cost of the land awarded by the Land Acquisition Authority and which he would have to pay proportionately. He was also aware that the allotment letter dated 10.04.2016 issued to him for the alternate flat was subject to the terms and conditions of the first allotment letter dated 04.06.1990. The ''No due certificate'' had categorically informed him that the price paid by him was tentative and he would have to pay the enhanced land compensation as and when communicated to him. The additional price to be paid is due to the enhancement of compensation cost of land in Sector 13 which was first communicated to him on 24.10.1996. Thereafter, memos were issued to him in 2001, 2002, 2006, as also in 2007. The petitioner failed to pay the amount as demanded by the authorities. He unconditionally accepted the allotment of the alternate plot and he continued to construct the flat on the said plot and obtained an occupation certificate.

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."

Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby, dismissed.