ISHWAR RAWAT vs HARYANA URBAN DEVELOPMENT AUTHORITY

-PETITIONER was the complainant before the District Forum where he filed complaint alleging deficiency in service on the part of the respondent.

UNDISPUTEDLY facts of the case are that the petitioner/complainant was allotted a commercial booth No. 48-P, Sector 17, Faridabad measuring 27 sq. yds. , purchased through an open auction vide allotment letter dated 19. 4. 1996. It is also not in dispute that after paying the requisite 25% of the bid amount, possession was given to the petitioner/complainant on 14. 5. 1996. It is also not in dispute that the petitioner/complainant did not pay 10 equated instalments after which, the plot was resumed by the respondent vide order dated 15. 6. 2001. In these circumstances, the complaint was filed in 2006 alleging deficiency in service on the part of the respondent. The case of the petitioner was that the area had not been developed in the absence of which, he could not take up any activity there. He was always willing to pay the instalment. District Forum after hearing the parties, allowed the complaint in following terms: "in view of the discussion above, we are of the considered view that this complaint is maintainable in this Forum. Since, O. Ps. have ordered resumption without developing the area and further no notice was served upon the complainant before resumption so it tantamounts to deficiency in service. Therefore, we direct O. Ps. to restore the allotment and complete the development works around the booth i. e. pavements, public toilets, drainage system, etc. As the development work was not complete in the area, so, complainant shall not be liable to pay interest on the balance amount and OPs shall recover the balance amount without interest. Waiving of the interest on the delayed payment shall take care of other reliefs sought by the complainant. Complainant is also held entitled to costs, which are quantified at Rs. 2,100. The complaint stands disposed of as such. "

Aggrieved by this order, an appeal was filed before the State Commission. After hearing the parties, the State Commission allowed the appeal and dismissed the complaint. Hence, this revision petition before us.

Heard the learned Counsel for the petitioner/complainant. He has advanced two arguments in his favour. Firstly, that since the basic amenities were not provided, the State Commission fell in error in stating in para 15 of the order that since the respondent had stated before the District Forum that the basic amenities have been provided and since no rejoinder was filed by the petitioner, hence, it cannot be said that mere rebuttal by the respondent would satisfy the requirement of law.

AS far as this aspect is concerned, it is unquestionable that the burden of proof lies on the person who would benefit from such a plea. If the whole case hinged on this plea of not providing basic activities/basic infrastructure, which was vehemently denied by the respondent, in fact, clearly stating that the basic amenities have been provided then in my view the burden of proof to prove the absence of such facilities lay with the petitioner/complainant which he failed to discharge to his deferment. In such a situation, the statement filed by way of written version duly supported by an affidavit remained unrebutted i. e. the rebuttal to the plea/assertion of the respondent that basic amenities have been provided. If in these circumstances State Commission held the plea of provision of basic amenities to the complainant, I see no infirmity in the order passed by the State Commission in this regard. Learned Counsel for the petitioner also wishes to rely upon the order of the Hon''ble Supreme Court in the case of M/s. Teri Oat Estates (P) Ltd. v. U. T. , Chandigarh and Ors. , I (2004) SLT 563=i (2004) CLT 471 (SC)= (2004) 2 SCC 130 on the question of proportionality. He specifically relied upon paras 46 and 47 of the judgment- "46. By proportionality, it is meant that the question whether while regulating exercise of fundamental rights, the appropriate or least restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the Legislation or the purpose of the administrative order, as the case may be. Under the principle, the Court will see that the Legislature and the administrative authority maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve. "

This Court as far back as in 1952 in State of Madras v. G. Row observed, (AIR p. 200 para 15)- "the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the Judges participating in the decision should play an important part, and limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorizing the imposition of the restrictions, considered them to be reasonable. "

IN order to take advantage of any mistake committed by an Administrator, HUDA, one had to appreciate that in this case, as per material on record; the basic amenities had been provided which remained unrebutted, hence, stood proved. If in these circumstances, petitioner did not pay 10 equated instalments, without giving any reason, weight of proportionality in my view will lie against the petitioner and in favour of the respondent because no valid reason has been brought proved on record, making it the basis of non-payment of instalment by the petitioner to the respondent. Making a bald and unsubstantiated statement of non-provision of basic amenities does not prove the case of the complainant. Learned Counsel has also drawn attention to the para 22 of the judgment (supra), which is quoted hereinbelow: "22. Validity of the proceedings-One of the questions, which, therefore, must always be posed by the Estate Officer, while initiating a proceeding under Section 8a of the Act, is as to whether the drastic power of resumption and forfeiture has been taken recourse to as a last resort. The order of the Estate Officer dated 13. 8. 1992 does not say so. No reason has also been assigned in the said order. "

It was the case of the respondents before the District Forum that they had issued notices under HUDA Act on 25. 9. 2000, 2. 11. 2000, 24. 1. 2001 and 9. 5. 2001. The District Forum stated that these are not on record. But asking ourselves if a person does not pay 10 equal instalments, the inference would be that the petitioner would have been noticed for non-payment. The petitioner cannot be compensated for his wrong doing of not having paid the instalments in time. It was not a question of one or two instalments but non-payment of 10 instalments which he has not paid till date. The learned Counsel appearing for the petitioner stated before me, that the petitioner is willing to pay the instalments with reasonable interest. One is unable to appreciate such a proposal emanating after a gap of almost 13 years starting from the date when the possession was given way back in 1995 since when the instalments have not been paid. It is a weak attempt on the part of the petitioner to become wise/smart after the event.

LEARNED Counsel for the petitioner also drew my attention to the judgment of the Hon''ble Supreme Court in the case of Municipal Corporation Chandigarh and Ors. Etc. v. Shantikunj Investment Pvt. Ltd. Etc. , II (2006) SLT 592= (2006) 4 SCC 109. He specifically relied on para 38 of the judgment, which is produced hereinbelow: "38. In this background, we are of the opinion that the interpretation of the Act and the Rules given by the Division Bench of the Punjab and Haryana High Court in the impugned judgment (Shanti Kunj Investment (P) Ltd. cannot be sustained. It has been contended by the Counsel for the Chandigarh Administration that all necessary facilities have been provided and some of the allottees have already constructed their buildings and have rented out the same and some allottees have applied for construction of hotel also. It is not possible for us to examine all these facts individually. Some of the sectors have been fully developed. Therefore, it is not possible to work out that in one case it has been fully developed and in the other case it is still not developed. However, in some cases full payment has been made, in some cases two instalments have been made. Therefore, all these disputed facts have to be adequately dealt with by the High Court. We make it clear that though it was not a condition precedent but there is obligation on the part of the Administration to provide necessary facilities for full enjoyment of the same by the allottees. We, therefore, remit the matter to the High Court for a very limited purpose to see that in cases where facilities like kutcha road, drainage, drinking water, sewerage, street lighting have not been provided, in that case, the High Court may grant the allottees some proportionate relief. Therefore, we direct that all these cases be remitted to the High Court and the High Court may consider that in case where kutcha road, drainage, sewerage, drinking water facilities have been provided, no relief shall be granted but in case any of the facilities had not been provided, then the High Court may examine the same and consider grant of proportionate relief in the matter of payment of penalty under Rule 12 (3) and (sic interest for) delay in payment of equated instalments or ground rent or part thereof under Rule 13 (3-A) only. We repeat again that in case the above facilities had not been granted then in that case consider grant of proportionate relief and if the facilities have been provided then it will (sic not) be open on the part of the allottees to deny payment of interest and penalty. So far as payment of instalment is concerned, this is a part of the contract and, therefore, the allottees are under obligation to pay the same. However, so far as the question of payment of penalty and penal interest is concerned, that shall depend on the facts of each case to be examined by the High Court. The High Court shall examine each individual case and consider grant of proportionate relief. "

THE learned Counsel specifically drew my attention to the para, which is underlined. Having discussed the question of development/providing basic amenities to the petitioner by the respondent, I see no merit in this plea either, as the petitioner has failed to prove non-provision of basic function on the spot. The onus of proof clearly lies in the present case with the petitioner, as already discussed. He has failed to do in view of which he is not entitled to the benefit of remanding the case to the State Commission or the District Forum for this purpose. In my view, the question of development of the area stands settled by an unrebutted statement brought on record that basic amenities have been provided. Even before us there is no other plea on the part of the petitioner to prove/bring on record material oral/documentary for no basic evidence has been provided in absence of which I see that this judgment does not help the petitioner. One of the key aspects completely ignored by the District Forum and not seriously discussed by the State Commission relates to the question of limitation. There is not disputing fact that the booth was resumed by the Government Authority vide its order dated 15. 6. 2001 and the complaint admittedly was filed on 3. 10. 2006 i. e. after a gap of more than 5 years, thus, clearly violating the time limit laid down under Section 24 (A) of the Consumer Protection Act. In my view, the District Forum should not have entertained the complaint. In this regard, I reproduce amended Section 24 (A) of the Consumer Protection Act as under: "24 (A) Limitation period- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen. (2) Notwithstanding anything contained in Sub-section (1), a complaint may be entertained after the period specified in Sub-section (1) , if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.

(Emphasis supplied)

In view of the provisions of Sub-section (2) of Section 24a of the Consumer Protection Act, this complaint should not have been entertained by the District Forum without any application for condoning the delay, which was not there.

I see no such order passed by the District Forum. In my view, the complaint itself was time-barred and should have been dealt with, accordingly. In above mentioned circumstances, I see no merit in this revision petition and it is dismissed accordingly. Revision Petition dismissed.