PUDA vs SUMAN SHARMA

These five Revision Petitions, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), by Punjab Urban Development Authority, now Greater Mohali Area Development Authority (for short "PUDA"), are directed against two orders, dated 31.03.2010 and 29.03.2010, passed by the Punjab State Consumer Disputes Redressal Commission at Chandigarh (for short "the State Commission") in two sets of First Appeals, bearing Nos.652 to 654 of 2004 and 842 & 843 of 2004 respectively. By the impugned orders, while overturning the

orders, dated 27.04.2004 and 09.06.2004, passed by the District Consumer Disputes Redressal Forum at Ropar (for short "the District Forum") in Complaints No.404 of 2003, 406 of 2003, 405 of 2003, 78 of 2004 and 79 of 2004 respectively, the State Commission has directed PUDA to refund to all the Complainants a sum of 50,000/- deposited by them as earnest money with it, along with interest @ 6% per annum from the date of filing of the Complaints till the date of payment.

Since the facts, giving rise to the Complaints, and the issues involved are identical in all the five Revision Petitions, these are being disposed of by this common order. However, in order to appreciate the controversy, the facts in Revision Petition No. 2622 of 2010, arising out of First Appeal No. 652 of 2004, are taken as illustrative.

Sometime in the year 2001, PUDA floated a Scheme for allotment of commercial booths under Tatkal Scheme. The brochure issued under the Scheme stipulated that the applications once submitted, for allotment of the booth, could not be withdrawn at any stage. The Complainant submitted an application for allotment of a booth along with earnest money of 50,000/-. The draw of lots was held on 26.09.2001, in which the Complainant was found successful. He was allotted a booth vide allotment letter dated 29.10.2001. On allotment of the booth, a letter of intent was issued to him. Clause-6 of the said letter of intent reads as follows:

"6. In case you neither deposit money within 90 days nor give your refusal to accept this offer within 90 days, the entire earnest money deposited by you shall be forfeited."

It is an admitted case of the parties that before the expiry of 90 days of the receipt of the letter of intent, the Complainant refused to accept the offer of allotment of the booth and requested for refund of the earnest money deposited. Relying on the aforesaid stipulation in the Scheme, the request for refund having been declined by PUDA, the Complaints came to be filed, inter alia , praying for a direction to PUDA to refund the earnest money alongwith interest @ 18% per annum.

Accepting the stand of PUDA, as noted above, the District Forum dismissed the Complaints.

Being aggrieved, the Complainants carried the matter in further Appeals to the State Commission.

All the Appeals having been allowed, PUDA is before me in these Revision Petitions.

I have heard learned Counsel for PUDA and learned Counsel appearing for the Complainants in Revision Petitions No.2622 and 2623 of 2010. The Complainants in other three Revision Petitions remain unrepresented.

Learned Counsel appearing for PUDA has vehemently submitted that the terms and conditions in the brochure, issued at the time of announcement of the Scheme, were sacrosanct and binding on the Complainants and, therefore, the State Commission has erred in directing refund of the earnest money. In support of her submission, learned Counsel has placed reliance on a decision, dated 29.05.2006, rendered by this Commission in Revision Petition No. 2579 and 2580 of 2004 . Learned Counsel appearing for the Complainants supported the decision of the State Commission.

Having carefully perused the brochure, issued at the time of launch of the Scheme, and the letter of intent, I am in complete agreement with the view taken by the State Commission. It is true that the salient features of the Scheme, mentioned in the brochure as also under the conditions for refund/forfeiture of earnest money, do stipulate that the application shall be regarded as irrevocable and the applicant would not be permitted to withdraw his application, either before or after the draw, but at the same time in the letter of intent, issued by PUDA, after the draw of lots, conscious of the conditions in the brochure, for the reasons best known to PUDA, the afore-extracted Clause was incorporated therein. Having done so, it could not be pleaded on behalf of PUDA that the said Clause in the letter of intent, being in conflict with the conditions in the main Scheme, is redundant. The terms and conditions in the letter of intent equally bind both the parties as the conditions in the brochure issued at the time of floating the Scheme. Both the conditions have to be harmoniously construed and the condition, in the letter of intent, being later in time, has to prevail over the former.

Insofar as the afore-noted order of this Commission is concerned, in my view, the ratio of the decision of the Hon''ble Supreme Court in HUDA And Anr. v. Kewal Krishan Goel & Ors., (1996) 4 SCC 249, which decision has been relied upon in the said order against the Complainants, in fact supports the stand of the Complainants. Since in that case the allottee had not exercised his option of refusal or acceptance within 30 days from the date of allotment letter, as stipulated therein, the Hon''ble Supreme Court held that Haryana Urban Development Authority was justified in forfeiting the earnest money, which is not the case here. Admittedly, in the present case, all the Complainants had refused to accept the offer of allotment within the stipulated period of 90 days and, therefore, PUDA was not justified in forfeiting the earnest money.

For the foregoing reasons, all the Revision Petitions fail and are dismissed accordingly but with no order as to costs.