HUDA vs R K MODERN PUBLIC SCHOOL EDUCATION SOCIETY

MR. Justice R. C. Kathuria, President-This appeal is directed against the order dated 28. 5. 2004 passed by the District Consumer Disputes Redressal Forum, Faridabad whereby while accepting the complaint of the respondent-complainant following directions have been given to the appellant-opposite parties: "1. The respondent is ordered not to charge any type of interest towards instalments, penalty or penal interest till date and till the development of the area of the plot in question and further the closing of the schools which are being run illegally in HUDA Sectors, Faridabad.

The respondent is further ordered to pay interest at the rate of 12% per annum on the deposits made by the complainant with the respondents towards the price of the plot in question with effect from its deposit till the development work is completed.

The respondent is also ordere to make a fresh schedule of the instalments, which the complainant has to deposit towards the balance sale consideration and the same be charged from the complainant without any interest, penalty and delay interest and upto the period of development of the area and closing of schools, which are being run illegally. The respondent is also ordered to pay Rs. 5,000 on account of mental agony and Rs. 1,000 on litigation expense. The respondent is ordered to comply with the order of the Forum within 30 days after receiving the copy of the present order. "

IN nutshell the facts of the case are that the complainant which is a Public Welfare Education Society had been allotted a plot measuring 700 sq. mtrs. located in Sector 55 HBC, Faridabad in a public auction held on 25. 11. 1998 for setting up a Nursery School. At the time of auction it was represented to the complainant that the area was fully developed. The possession of the said plot was taken by the complainant on 21. 6. 1999. At that point of time it came to the notice of the complainant that roads and electrification works had not been done in the area and for that reason the complainant approached the opposite parties on 16. 7. 1999 for doing the needful. Thereafter, the complainant got the building plan sanctioned from D. T. P. , HUDA office and after obtaining sanction of the water connection, started raising construction over the said plot. They found that the water supply was not being received without the help of electric connection and when they moved an application to the S. D. O. , H. V. P. N. L. , Gurgaon their application was rejected on the ground that the area had not been electrified by the HUDA. Thereafter, the complainant approached the opposite parties for completion of the electrification work on 18. 1. 2000 but without any effect. The construction of the school was completed in June, 2000 and thereafter the complainant applied for occupation certificate on 23. 6. 2000 but no response was received from the opposite parties. Earler an appeal was also filed to the administrator, HUDA, Faridabad on 13. 9. 1999. Forced by these circumstances the present complaint was filed seeking direction against the opposite parties not to charge interest on the balance 75% of the amount payable towards the price of the plot until the development work in the area was not completed. The complaint was contested by the opposite parties. In the written statement filed it was pleaded that after the allotment of the plot was made to the complainant on 10. 6. 1999, the possession of the allotted plot was also delivered to the complainant on 21. 6. 1999. It was further stated that as the complainant has filed an appeal before the Administrator, HUDA with regard to the relief claimed in the complaint, which was also decided on 4. 11. 2000 wherein it was observed that the development work in the area stood completed where the plot-site of the complainant is located and for that reason the complaint merited dismissal. On the basis of above pleadings of the parties and evidence adduced on record the District Forum found no substance in the stand of the opposite parties and while accepting the complaint issued the directions in its order dated 28. 5. 2004 noticed above. It is against the said order the present appeal has been filed. None has chosen to appear to argue the matter on behalf of the appellant-opposite parties. Mr. Rakesh Threja, President of the respondent-complainant has been heard at length.

The delay of 24 days in filing the appeal is condoned under the circumstances of the case.

AS there was no representation from the side of the appellant-opposite parties at the time of arguments, the grounds stated in the Memorandum of Appeal have to be noticed. It is stated therein that regarding the roads and electricity for which grievance had been made by the complainant in the complaint, an appeal was filed before the Chief Administrator, HUDA, who after obtaining the report of the Executive Engineer and Sub-Divisional Engineer (Electrical) dismissed the same after recording a finding that the development work in the area stood completed around the site of the plot and for that reason the District Forum had no jurisdiction to try the complaint. The other findings of the District Forum were also assailed on the ground that the District Forum had totally ignored that the school building was completed by the complainant after the area was fully developed and the findings of the District Forum, as such, observed to be set aside. During the course of arguments it was not disputed by the representative of the respondent-complainant that an appeal was filed before the Administrator, HUDA on 13. 9. 1999 wherein grievance for non-completion of the development work was made with further prayed that interest on the balance amount of 75% be not charged from the complainant, but the said appeal was dismissed. The primary question to be decided in this case is whether the complainant could invoke the jurisdiction of the District Forum by filing the present complaint after the complainant had invoked the jurisdiction of the appellate authority by filing the appeal which was dismissed as per order, dated 4. 11. 2000. The administrator, HUDA, Faridabad while exercising the powers of Chief Administrator as per order dated 4. 11. 2000 concluded as under: "i have heard both the parties on 29. 9. 2000 and gone through the record carefully. From the perusal of record, it is revealed that the said plot was purchased by the appellant in open auction on 25. 11. 1998 and allotment letter was issued vide EO (F) No. RA-II-99/217 dated 10. 6. 1999. The possession of the said plot was delivered on 21. 6. 1999. Regarding non-development of site as stated by the appellant, report of site was sought from the Executive Engineer, HUDA Division I, Faridabad and he reported vide memo No. 9683 dated 29. 9. 2000 that the development works around Modern School are completed. The water connection has been sanctioned vide No. 1171 dated 27. 9. 1999 and the sewer connection has not been applied by the School till date. The road in front of Main Gate stands completed, but has been damaged due to construction of H. B. houses and is under repair. The development works stands completed before 1990. And regarding electrification works, the report of SDE (Electrical), HUDA Sub-Division, Faridabad was also sought and he reported on 19. 9. 2000 that the electrification works stands completed near the RK, Modern School, Sector 55, Faridabad on 11. 8. 2000. From the report of the Executive Engineer, HUDA Division I, Faridabad and Sub-Divisional Engineer (Electrical), HUDA Sub-Division, Faridabad, which are placed on record, it is very clear that all the development works have been completed. Therefore, appeal is hereby dismissed. "

The position of law in this regard stands well settled in case Surinder Mohan v. Municipal Corporation and Anr. , III (2006) CPJ 136 (NC), wherein it was observed by the Hon''ble National Commission that the complainant before filing the complaint before the District Forum for the alleged deficiency for not providing the basic amenities had also filed a representation before the Chief Administrator, which was dismissed. The revision petition against that order was also dismissed by the Advisor to the Administrator. It was held that the present Commission was not the revisional or appellate authority against the order passed by the Advisor to the Chief Administrator, U. T. Chandigarh. It would be appropriate to refer to the discussion contained in Para Nos. 5 and 6 of the order as under: "5. As per memo of appeal filed before us, it is clear as per para 2 of the memo of appeal that the allotment of booth was cancelled by the respondent Estate Officer for non-payment of the premium. Appeal against which was filed before the Chief Administrator, which was dismissed in the year 1998. Aggrieved by this order, a revision petition was filed before the Advisor to the Administrator, U. T. Chandigarh which as per statement given before us by the learned Counsel for the appellant has also been dismissed by the Advisor to the Administrator. It is an admitted position that in this revision petition along with other grounds, the question of lack of basic amenities was also agitated by the appellant.

There is no doubt that Section 3 of the Consumer Protection Act, 1986 provides additional remedy for redressal of grievance of a consumer. But it does not envisage and this Commission has not been supporting ''forum-hopping'' by a consumer. If a certain route has been adopted, of their own volition, by a consumer, then he has to pursue his remedy to the end from that agency. In this case, admittedly the order of the cancellation and lack of amenities was agitated before the Chief Administrator, U. T. Chandigarh who dismissed the appeal. Revision petition was filed against that order which also contained ''relief'' with regard to lack of amenities which has also been dismissed. This Commission is not a revisional or appellate authority against the order passed by the Advisor to the Chief Administrator, U. T. Chandigarh.

ON the basis of above observations the appeal was dismissed besides on the ground of litigation. In this case as well undisputedly the appeal filed by the respondent-complainant before the Administrator, HUDA had been dismissed on 4. 11. 2000. The District Forum despite the fact that it was specifically stated by the complainant and also brought to the notice by the opposite parties in the written statement filed did not examine the legal consequences arising thereof. By now it is well settled that where the complainant has chosen to file the appeal before the appellate authority in terms of the rules and regulations of the opposite parties against the action of the Estate Officer, Gurgaon, then he has to pursue the remedy to the logical end. The complainant cannot be allowed to take recourse of filing the complaint by invoking the jurisdiction of the District Forum because that would tantamount to exercise the powers of the revisional/appellate authority against the order of the Administrator. As the patent illegality has been committed by the District Forum in entertaining the complaint, the order of the District Forum as such the same cannot be sustained. In view of the above factual position on record the other question raised on merit cannot be decided because that would cause prejudice to the rights of the opposite parties as the District Forum and the State Commission has no jurisdiction to examine the merits of the stand taken by the parties with regard to the issue raised in the complaint. For the aforesaid reasons while accepting the appeal the impugned order is set aside and the complaint is consequently dismissed. Appeal allowed.