Mahesh Kumar vs HARYANA URBAN DEVELOPMENT AUTHORITY

MR. Justice R.C. Kathuria, President-This order shall dispose of above mentioned three complaints as common questions of law and facts are involved in all these complaints and as such so argued by the learned Counsel representing the parties.

IN order to focus the controversy involved in these complaints the facts of Complaint Case No. 18 of 1999 are that complainants Mahesh Kumar, Satish Kumar, Pawan Kumar and Sanjay Kumar had purchased S.C.O. No. 2 located in Sector-5, Mansa Devi Complex, Panchkula in open auction on 15.3.1993 for the price of Rs. 13,80,000. They had deposited 10% of the price on 15.3.1993 being the date of auction and the remaining 15% within 30 days of the issuance of the allotment letter bearing Memo No. 8760 dated 30.4.1993. As the opposite parties had failed to carry out the development works in the area and to hand over the possession of the site to them, they filed a Civil Writ Petition No. 73 of 1994 in the Hon''ble Punjab & Haryana High Court, Chandigarh with a prayer that writ of Mandamus be issued to the opposite parties to deliver the possession of the site immediately after making development in the area or they be restrained from releasing the remaining instalments of the site in question till the possession was delivered and they be allowed to deposit the remaining instalments after possession was delivered to them. During the pendency of the writ petition the complainants also filed Civil Miscellaneous No. 1109 of 1995 seeking stay of the payment of instalments till the possession of the site in question was delivered to them after carrying out the development work in the area. The Hon''ble High Court as per order dated 30.3.1995 directed the opposite parties not to recover the instalments from the complainants till they were offered possession of the site in question. Thereafter, the opposite parties offered possession of the site in question to the complainants on 9.1.1996, which according to the stand of the complainants was without making any development and without providing any amenities in order to overreach the order of the Hon''ble High Court dated 30.3.1995. The opposite parties did not provide outlet of rainy water and for that reason during the rainy season basement of the site in question which was under construction was flooded with rainy water causing loss of Rs. 75,000 of cement concrete and labour to the complainants. The walls of the basement also fell down. The rainy water had come under the wall of S.C.O. Nos. 2, 3 and 4 belonging to the complainant which affected the foundation of S.C.O. No. 3 as the Nala was not Pucca. The banks of the Nala fell down during the rainy season which provided opening of the water towards the site. The opposite parties submitted the report dated 28.1.1998 which according to the complainants was not satisfactory. The Hon''ble High Court as per order dated 27.2.1998 passed common order on the Civil Writ Petition No. 102 of 1997 titled as ''Mahesh Kumar and Others v. HUDA'' and Civil Writ Petition No. 857 of 1998 titled as ''Smt. Asha Rani etc. v. HUDA and Anr.'' whereby the complainants were asked to deposit the amount due in two instalments, the first instalment was to be paid by them within 15 days from 27.2.1998 and the remaining instalment was to be paid within one month thereafter which was accordingly deposited by them. It is further case of the complainants that despite the deposit of Rs. 1,38,000 being 10% of the price of the plot made on 15.3.1993 and Rs. 2,07,000 being 15% so as to constitute 25% of the total price of the plot on 27.5.1993, the possession of the plot was not delivered to them which according to them be deemed to have been delivered on 28.1.1998 when the development work was completed. Further, according to the complainants they had deposited a sum of Rs. 1,29,375 on 2.11.1993, Rs. 1,29,375 on 18.5.1994, Rs. 1,29,375 on 31.10.1994 and on that account they had suffered a loss because of non-use of the plot amounting to Rs. 97,242, Rs. 84,929 and Rs. 74,421 at the rate of 18% interest per annum for the above stated period up to 28.1.1998. The complainants had also incurred an expense of Rs. 65,000 because the Pucca wall of the site in question had gotten bent and cracks due to the defective drainage system made by the opposite party. It is also alleged by the complainants that the drainage pipe goes up to the end of S.C.O. No. 2 and no exit of water after the end of the wall of S.C.O. No. 2 had been provided with the result the water had been seeping into the foundation of the building. On these premises the complainant claimed their entitlement to recover Rs. 9,86,392 on account of total loss suffered by them due to the lack of service to be provided by the opposite parties. They further claimed interest @ 18% per annum on the aforesaid amount after 28.1.1998 till the date of realisation. On notice the opposite party contested the complaint. In the written statement filed they have pleaded that the complaint is not maintainable as the site was purchased for commercial purpose and in open auction and the complainants being not consumers had no right to invoke the jurisdiction of the District Forum. On merits it was stated that the complainants had filed Writ Petition No. 73 of 1994 and Miscellaneous Application No. 1109 of 1995 before the Hon''ble High Court and thereafter, offer of possession was made on 9.1.1996 after completing the basic development works and thereafter they had obtained the possession of the site and had started making construction on it. At the same time it admitted that the Hon''ble High Court had directed not to recover the instalments from the complainants till the offer of possession was given to the complainants and in case of default in the payment of instalments amount they were liable to make payment along with interest on the defaulted amount till payment. It further claimed the Hon''ble High Court while deciding the Writ Petition No. 73 of 1994 on 11.7.1996 had not waived of the interest to be charged on the delayed payment of instalments as per HUDA policy. It was stated that the complainants had filed another Writ Petition No. 102 of 1997 on the very same grounds which was disposed of after taking notice of the fact that necessary development works had been carried out and necessary amenities had been provided. It was further stated that the relief for interest @ 18% per annum claimed by the complainants in Civil Writ Petition No. 73 of 1994, Manju Devi and Others v. HUDA, and in Civil Misc. No. 152 of 1996 was not granted by the Hon''ble High Court and as the writ petition was dismissed as per order dated 11.7.1996 it has to be taken that the prayer for grant of the interest claimed by the complainants has been rejected by the Hon''ble High Court. Accordingly, it was maintained that the present complaint is barred by the principle of res judicata and for that reason the complaint deserves to be dismissed.

In the rejoinder filed the complainants re-asserted their earlier pleadings taken in the complaint.

IN the Complaint No. 19 of 1999 the above named complainants had purchased S.C. No. 3 located in Sector-5, Mansa Devi Complex, Panchkula for the price of Rs. 13,80,000 in an open auction held on 15.3.1993. They had deposited 10% of the price on the date of auction and the balance 15% within 30 days of the issuance of the allotment letter vide Memo No. 8761 dated 30.4.1993. IN this complaint they have also alleged that the development of the area was not completed and possession of the site was not handed over to them for which they had filed the writ petitions the details of which have been noticed above. On the basis of similar averments they have claimed that they have suffered loss of Rs. 9,21,392 on account of deficiency of service on the part of the opposite parties and accordingly sought directions to the opposite party to pay the aforesaid amount along with interest @ 18% per annum after 28.1.1998 till its realization. In the Complaint No. 20 of 1999 the above named complainants had purchased S.C.O. No. 4 located in Sector-5, Mansa Devi Complex, Panchkula for price of Rs. 13,80,000 in an open auction held on 15.3.1993. They had deposited 10% of the price of the site in question on the date of auction and 15% of the price as per Memo No. 8762 dated 30.4.1993. The opposite party failed to carry out the development work in the area and to deliver the possession of the said shop site to them which forced them to file the writ petitions before the Hon''ble High Court noticed above. On the similar allegations they have alleged that they suffered loss of Rs. 9,21,392 on account of deficiency of service and prayed for grant of the above said compensation along with interest @ 18% per annum after 18.1.1998 till the date of realization. These complaints were contested by the opposite parties on the grounds noticed above. In support of the stand taken from the side of the complainant in the complaints filed, they have reiterated their stand in the rejoinder filed.

IN order to establish their respective stands the complainants filed affidavit of Shri Mahesh Kumar one of the complainants while the opposite party filed affidavit of Shri D.P. Singh, Estate Officer, HUDA, Panchkula. Learned Counsel representing the parties have been heard at length. The entire edifice of the claim of the complainants in these complaints is based on the ground that the opposite party in terms of Clause-6 of the allotment letters failed to carry out the development of the area where the shop sites are located, up to the date of filing of the complaints and also up to the directions of the Hon''ble High Court given in Civil Writ Petition No. 102 of 1997 titled as Mahesh Kumar and Others v. HUDA and Civil Writ Petition No. 857 of 1998 titled as Smt. Asha Rani etc. v. HUDA and Anr., and consequently the opposite party is liable to pay the claim made in the complaints. Learned Counsel representing the complainants during the course of arguments has urged the same grounds which have been detailed in the complaints filed noticed above. Opposing the submissions made learned Counsel for the opposite party has sought rejection of the complaints because development work had been completed before the filing of the complaints and for that reason the Hon''ble High Court had disposed of the writ petitions referred to above after recording finding in this regard and for that reason the complainants cannot re-agitate this matter in these complaints as principle of res judicata would fully apply to the facts of the case including the claim of the interest.

CLAUSE 6 of the allotment letters issued to the complainants in all three complaints in relation to the shop sites Nos. 2, 3 and 4 clearly provides that the possession of the allotted site shall be offered on completion of the development work in the area. The complainants have placed on record the orders dated 30.3.1995 passed in Civil Misc. No. 1109 of 1995 filed in C.W.P. No. 73 of 1994 which reads as under : " Present : Mr. S.K. Goyal, Advocate for applicant-petitioners. Mr.Sanjeev Sharma, Advocate for respondent. This is an application filed under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure with a prayer that the Haryana Urban Development Authority, Panchkula be restrained from recovering the instalments from the petitioners till the latter are offered possession of the commercial sites for shop-cum-offices purchased by them in auction. It is not in dispute that the area where the sites are located has not been fully developed and it is stated that process of development is in progress. After hearing Counsel for the parties, the application is disposed of with a direction to the respondent not to recover the instalments from the petitioners till they are offered possession of the sites in question. As and when the possession is offered the petitioners will be liable to pay the amount due from them in instalments as originally fixed. In case they commit any default in payment of instalments they will be liable to pay interest on the defaulted amount from the date of default. A copy of this order be given Dasti to the parties on payment March 30, 1995. Sd/- N.K. Sodhi, Judge."

The said Writ Petition No. 73/1994 was disposed of on 11.7.1996 by passing the following order : "THE HON''BLE MR. JUSTICE N.K. SODHI. For the Petitioners : Mr. S.K. Goyal, Adv. For the Respondents : Mr. Sanjeev Sharma, Advocate. ORDER This petition has been filed under Article 226 of the Constitution for a direction to the respondent to deliver possession of the commercial sites for shop-cum-office to the petitioners which were allotted to them in an open auction. Mr. Sharma appearing for HUDA states that possession of the commercial sites has been offered to all the petitioners in this case on 9.1.1996. This renders the petition infructuous and the same is accordingly dismissed. 11.7.1996 Sd/- N.K. SODHI, JUDGE The complainants have further placed on record report of the Local Commissioner which was submitted in C.W.P. No. 102 of 1994 titled Mahesh Kumar and Others v. Estate Officer, H.U.D.A. and Another. The relevant portion of the report dated 11.11.197 reads as under : "The report as per the inspection is submitted here-below : 1. The road construction work was found to be under progress in the parking site in front of the shop-cum-office. Only water bound (stone places mixed in the mud water) was done in the area marked by A, B, C, D i.e. in front of the S.C.O.''s Nos. 4 to 17. In front of S.C.O. Nos. 1 to 3 there was no water bound. On asking, it was told by Shri Navinder Singh Xen, H.U.D.A. Division No. 3 that pre-mised carpeting is always done after completion. 2. There was no transformer at the site. Only two electrical poles were there at points P1 and P2. There was one transformer at point T/F but as per Xen. (Electrical) Shri A.K.Tandon the transformer installed at point T/F can''t bear load of all the 17 show-rooms as the electricity was being supplied to residential Sector 7, Panchkula from this transformer. It was also told by Xen that they have started installing the additional transformer. The transformer is taken. As per Xen Electrical, they cannot block transformer by installing these before construction takes place. There were no L.T. lines either in front of show-room or in the back side of the show-room, although 4 poles were seen laying at the site. 3. There was no storm water drainage system constructed by H.U.D.A. On asking, it was told by Xen. Navinder Singh that since there is Nallah on the side of the show-rooms. There is a natural drainage and the storm water would fall in the Nallah. The back corner wall of S.C.O. No. 2 at point ''E'' was found bent duly cracked. There was a ditch near point ''A'' and it was filled with mud. When mud was removed then it was seen that there was a drainage pipe from which the water was coming. This drainage pipe was not connected any where and there was no outlet for the water coming out from the pipe with the result the ditch was filled with water. It appeared that the wall at point ''E'' was also bent and got cracked because of other water filled in the ditch. On the back side of show-room No. 9 at point ''X'' there was main hole in which strong water was coming from the shop-room No. 17 side and was going towards show room No. 1 and 2. Chandigarh (LOKESH K. SINHA) 11.11.97 Advocate Local Commissioner"

When the matter was taken up on 18.11.1997, the following order was passed in CM. No. 26137 of 1997 and CWP No. 102 of 1997 "Present : Mr. S.K. Goyal, Advocate for the petitioners. Mr. Rameshwar Puri, Advocate, for the respondents. C.M. allowed. Replication filed along with C.M. is taken on record. Mr. Puri says that he may be given some time to take instructions from the official respondents on the issue of providing amenities to the petitioners. On his request, the hearing of the case is adjourned to 16.12.1997. In the meantime, further recovery of the instalments shall remain stayed in view of the report submitted by the Commissioner appointed by the Court. Sd/- G.S. Singhvi, Judge Sd/- Iqbal Singh, November 18, 1997 Judge "

The above said Writ Petition No. 102 of 1997 was disposed of by the Hon''ble High Court by passing the following order : "Present : Mr. S.K. Goyal, Advocate for the petitioners. Mr. Rameshwar Puri, Advocate, for the respondents. These petitions have been filed for directing the respondents to carry out the development of the area and provided amenities at the sites allotted to the petitioners i.e. in Sector 5, Mansa Devi Complex at Panchkula. In compliance with the interim orders passed by the Court on 24.9.97 and 16.12.97, the respondents have carried out the development of the Sector at the disputed site and have provided the basic amenities to the petitioners. On 9.2.98 Mr. Rameshwar Puri produced before the Court a Photostat copy of the letter dated 28.1.98 written by the Sub Divisional Engineer, HUDA, Sub Division No. X, Panchkula to the Executive Engineer, HUDA, Division No. III, Panchkula and Memo No. 136 dated 2.2.98 written by Sub Divisional Engineer, Electrical Sub Division, HUDA, Panchkula to show that the entire development work has been completed. Learned Counsel for the petitioner in CWP No. 102 of 1997 sought time to file an affidavit. After that day, an affidavit dated 18.2.98 has been filed by Sh. Mahesh Kumar son of Banarsi Dass. We have perused the same and are satisfied that the grievance made by the petitioners through the affidavit of Shri Mahesh Kumar is wholly untenable. That affidavit does not disclose the lack of any major amenity which prevents the proper use of the premises allotted to the petitioners. Therefore, there is no necessity to give any further direction to the respondents on the issue of development of the site. In view of the fact that the necessary development has been carried out and amenities have been provided, the writ petitions are disposed of as having become infructuous. However, we deem it appropriate to give liberty to the petitioners to deposit the amount due in two equal instalments. The first instalment shall be paid by the petitioners within fifteen days from today and the remaining instalment shall be paid by them within one month thereafter. In case petitioners fail to make payment of the instalments due to the respondents, the latter shall be free to resume the sites in question. Sd/- G.S. Singhvi JUDGE Sd/- Iqbal Singh 27.2.1998 JUDGE"

It is manifest from the above stated orders that the stand of the complainants before the Hon''ble High Court in C.W.P. No. 102/1997 and C.W.P. No. 857/1998 that amenities had not been provided, was rejected. A definite finding was recorded that necessary development had been carried out and amenities had been provided which had rendered the writ petitions having become infructuous. Further direction was given to the complainants to deposit the instalments amount. In the face of above position the stand taken in the affidavit dated 19.9.2000 filed by Mahesh Kumar one of the complainants that necessary amenities had not been provided, as such, cannot be accepted. Under the circumstances of the case the stand taken by Shri D.P. Singh, Estate Officer, HUDA, Panchkula in his affidavit dated 29.1.2001 placed on record is fully supported by the above stated circumstances.

IN the latest pronouncement in case Municipal Corporation, Chandigarh etc. v. Shanti Kunj INvestment Pvt. Ltd. etc., II (2006) SLT 592=JT 2006 (3) SC 1, it has been observed by the Hon''ble Supreme Court as under : "We have bestowed out best of 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 allottees could take upon themselves not to pay the lease amount and to take recourse to say that since all the facilities were not provided, therefore, they are not under any obligation to pay the instalments, interest and penalty, if any, as provided under the Act and 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. It is true that it has to fully enjoy the allotment proper linkage is necessary. But to say this is a condition precedent, that is not correct approach in the matter."

The above observations were made in relation to the dispute where grievance was made that the amenities had not been provided. But in the present case as already noticed, a definite finding has already been recorded by the Hon''ble High Court that necessary amenities had been provided to the complainants. Therefore, the stand of the complainants in this regard has to be rejected.

In fairness to the Counsel representing the opposite party it was contended that the principle of res judicata would be attracted in this case in view of the above stated finding recorded by the Hon''ble High Court. To come out of this stand of the complainants, it was urged by the learned Counsel for the complainants that some of the parties were different than the parties mentioned in the above mentioned writ petitions. While making this submission it has been totally ignored that all the complainants were parties in the above stated writ petitions relating to the above said shop sites mentioned for which controversy has also been raised directly in these complaints.

IN Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332, it was observed that in order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits and the dismissal is confirmed in appeal, the decision not being on the merits would not be res judicata in a subsequent suit. IN case Ferro Alloys Corpn. Ltd. v. Union of INdia & Ors., III (1999) SLT 401=(1999) 4 Supreme Court Cases 149, it was laid down that for the applicability of principle of res judicata under Section 11 of the Code of Civil Procedure, 1908, the issue raising question inter se among the contesting respondents should have been shown to have been expressly considered and decided and decision obtained finality so as to operate as res judicata in subsequent proceedings. IN case Syed Mohd. Salie Labbai (Dead) by L.Rs. & Others v. Mohd. Hanifa (Dead) by L.Rs. & Ors., (1976) 4 Supreme Court Cases 780, the conditions which must exist for the applicability of principle of res judicata have been noticed. IN case of Dharam Bir Singh v. Mansi Sahakari Avas Samiti Ltd. & Ors., (2005) 11 Supreme Court Cases 481, the question of applicability of res judicata was not accepted because no view was expressed by the Hon''ble High Court while dismissing the writ petition on other grounds. From the principles laid down in the above mentioned cases it would be discernible that in the present cases the matter in issue raised by the complainants before the Hon''ble High Court related to the same subject matter which is being agitated with regard to the question or area being developed where the allotted shop sites are located and amenities not provided to them by the opposite party in terms of Clause 6 of the allotment letters issued. Therefore, the principle of res judicata would fully apply to the facts of the present case and on that account as well the complaints deserve to be rejected. Learned Counsel for the complainants has also pointed out that there is clear distinction with regard to the controversy raised in the writ petitions referred to above because no adjudication with regard to the interest claimed by the complainants was decided. It is clear from the Annexure-7 placed on record that it related to the Writ Petition No. 73 of 1994 wherein mention has been made to C.M. No. 3978/94, C.M. No. 5333/94, C.M. No. 10472/94, C.No. 1109/95, C.M. No. 391696 and C.M. No. 152 of 1996 and prayer had been made from the side of the complainants by filing application that the respondents be directed to pay interest on the amount deposited with them from the date of deposit @ 18% per annum. No order was passed with regard to this claim at the time when the Writ Petition No. 73 of 1994 was dismissed by the High Court on 11.7.1996. Resultantly, it has to be taken that the relief claimed in this regard stood rejected. This proposition of law is fully strengthened from the observations made by the Hon''ble National Commission in case of The Erode Turmeric Merchants Association, Erode v. The Periyar Market Committee and Another, III (1996) CPJ 7 (NC)=1997 (1) Consumer Law Today 291, wherein it has been observed, "If the High Court did not consider the grievances of the present complainant independently and individually the complainants had remedy to file appeal before the Supreme Court. In fact Special Leave Petition was filed before the Supreme Court and the same was dismissed. Therefore, the petitioners are precluded from alleging that their grievances were not heard by the High Court or that services are not being rendered by the Periyar Market Committee". In view of the above stated observations the stand taken by the opposite party has to be accepted and it is held that the claim qua the interest made in the present complaints is equally barred by the principle of res judicata.

COMING to the other submission made from the side of the opposite party a plea was raised that all the three shops were sold in public auction and for that reason the complainants had no right to invoke the jurisdiction of the State Commission under the Consumer Protection Act, 1986. The Hon''ble High Court case in Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC), clearly laid down that housing construction being a service would not be excluded from the definition of consumer, rather it was observed that "perusal of the definition of ''service'' as stood prior to 1993 would indicate that the word ''facility'' was already there. Therefore, the Legislature while amending the law in 1993 added the word in Clause (d) to dispel the doubt that consumer in the Act would mean a person who not only hires to avail of another facility for consideration. It in fact indicates that these words were added more to clarify than to add something new". In view of the above observations there is no merit in the submissions made from the side of the opposite party in this regard. For the aforesaid reasons, the complainants have failed to substantiate their claim in all the three above mentioned cases. Resultantly, all the three above mentioned complaints are dismissed. Complaints dismissed.