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Judgment
By way of the Present appeal, the appellant Punjab Small Scale Industries and Export Corporation Ltd. has challenged the order dated 8th September, 2005 passed by the State Commission in consumer complaint No. 117 of 1999.
Brief facts of the case are that on 11.4.1994, letter of allotment was issued to respondent No.1 for the setting up Homeopathic medicine factory. Till June, 1997, respondent No.1 did not raise any construction and transferred Plot No.234 to one Sh. Mohinder Singh through GPA which was executed by Respondent No.1 in favour of Smt. Narinder Kaur (wife of Sh. Mohinder Singh). Extension fee for not raising the construction on the plot no.234 was regularly being paid without any protest from any of them. No protest letter was sent to P.S.I.E.C. that basic facilities such as Roads, etc. were not being given. On 19.5.1999, Sh. Mohinder Singh sells/transfers the plot to respondent No.2. On 25.11.1999, respondents 1 & 2 file original complaint before the State Commission Punjab claiming deficiency of service for non-development of approach roads towards plot no.234 apart from claiming other reliefs. On 18.6.2002, 1st order of State Commission, Punjab disposing off the original complaint was passed with liberty to the respondents 1 & 2 to approach the civil court for relief, since the case involved leading of voluminous and exhaustive evidence. On 21.3.2003, order of National Commission was passed remanding the case back to State Commission Punjab and directing it to decide the case again by obtaining a report of Local Commissioner and by impleading Notified Area Committee (N.A.C) Mohali as a party, if necessary. Report of Local Commissioner was obtained but NAC was not impleaded as a party. On 8.9.2005, impugned order was passed by the State Commission, Punjab, Chandigarh as under:-
"In view the discussion made above, the complaint is allowed with cost of Rs.5,000/-. The opposite parties are directed to do the following:-
i) To refund the interest, penal interest, penalty, non-construction charges and any other excess amount charged alongwith interest @12% p.a. from the date of deposit till payment.
ii) To get the drain (nallah) running on the western side rectified and road completed between the Plot No.234 (P) and the drain where nallah is running from the Municipal Council.
iii) The opposite parties will not charge non-construction fee for three years from 15.4.2004.
Let the aforesaid directions be complied with within three months from the date of receipt of copy of this order.
The complainant no.2 being transferee of the plot is entitled to all the reliefs mentioned above.
The complaint stands disposed of in above terms."
Hence the present appeal.
Heard the learned counsel for the parties and perused record. The learned counsel for the appellant stated that the complainant No.1 and complainant No.2 have combined together to file the present complaint, however, they do not have any common interest as they have been owner of the disputed plot at different times. Complainant No.1 is the original allottee who was allotted the industrial plot in the year 1994 and she sold the plot to another person Mohinder Singh in the year 1997 through power of attorney though the transfer deed is dated 4thJanuary, 1999,and Mohinder Singh sold the plot to the complainant No.2 on 17th May,1999. The present complaint has been filed in the year 1999 after the complainant No.2 had purchased the Industrial plot from Mohinder Singh. The grievance of complainant No. 1 is basically to get back the amount of extension fee deposited by her as well as the penalty and interest levied on the allottee at that time whereas, the grievance of complainant No. 2 is mainly in respect of the non-availability of the approach road to the disputed plot. Learned counsel argued that the complainant No. 1 has no privity of contract with the appellant at the time of filing of the complaint as she had already sold the plot two years ago and her interest in the disputed plot had ceased in the year 1997 when the plot was sold to Mohinder Singh. Thus, complainant No.1 is clearly not a consumer. The complainants are in general not consumer because the plot is an Industrial plot and every complainant has purchased the same for commercial purpose. Complainant No.1 had purchased this plot to establish homeopathic medicine manufacturing factory which is definitely a commercial proposition. The second complainant has also purchased this plot for establishing an industry and therefore, the purpose of purchase is commercial.
It was further argued by the learned counsel for the appellant that the complaint was highly time barred but still the State Commission has considered the complaint and decided the same. The cause of action first arose in the year 1994 when the plot was allotted and the complainant No.1 noticed the shortcomings in the plot. Further cause of action arose when the complainant No. 1 received the notice for depositing extension fee, penalty and interest from the appellant which was before the year 1997 definitely and thus the complaint is barred by limitation as the complaint has been filed on 03.12.1999.
The learned counsel emphasized that it was the duty of the State Commission to have dismissed the complaint on the ground of limitation. In support of his contention, the learned counsel relied on the judgment of the Hon'ble Supreme Court in V.M..Salgaocar & Bros. Vs. Board of Trustees of Port of Mormugao & anr., (2005) 4 SCC 613 wherein the following has been held:-
"20. The mandate of Section 3 of the Limitation Act is that it is the duty of the court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is ex facie barred by the law of limitation, a court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation."
Learned counsel for the appellant further argued that the maintenance of road was transferred to the Notified Area Committee Mohali (NAC) in the year 1992 and therefore the NAC was a necessary party in the complaint case however, the complainants have not made NAC an opposite party in spite of the direction of this Commission passed in order dated 21.03.2003 in the appeal which was filed by the Complainant No.2 after the complaint was dismissed by the State Commission vide its order dated 18.06.2002. It is not that the complainants were not aware of this transfer of the road maintenance to the NAC as would be clear from the complaint itself. Learned counsel for the appellant further argued that the complainant No. 2 has purchased the disputed plot from Mohinder Singh, however, Mohinder Singh has not been made a party in the complaint case. Thus, the complaint suffers from non-joinder of necessary parties.
Learned counsel pointed out that all the three technical objections were taken by the appellant in the written statement filed by the appellant before the State Commission, however, the State Commission has not given any finding on any of these issues.
It has also been mentioned by the learned counsel for the appellant that there is a delay of 191 days in filing the present appeal and the delay has happened due to inter departmental consultations and in obtaining higher orders. It has been stated by the learned counsel that at every stage the concerned officer puts in his or her comments and then orders are taken. In a governmental set-up every officer takes due precaution and care to put in his note so that the public accountability is maintained. The delay is not deliberate or with any intention to harm the complainants. The appeal is based on merits and with that view the delay in filing the present appeal should be condoned.
On the other hand, the learned counsel for the respondents/complainants stated that a local commissioner was appointed to visit the site and to give his report. The local commissioner has clearly mentioned that there is no approach road to the disputed plot. . The appellant is only entitled to charge extension fee if they have given fully developed plot to the complainant No.1. In the absence of any approach road to the plot, it was not possible to raise any construction on the plot and therefore, there was no justification for penalizing the complainant by levying the extension fee and other penalties.
It was pointed out by the learned counsel for the respondents that the present appeal has been filed by the appellant with a delay of 191 days and no proper reason has been given in the application for condonation of delay. It has only been stated that the delay has occurred due to time taken at every stage where an officer has put his note for getting the higher orders. This cannot be a sufficient cause for condoning the delay as observed by the Hon'ble Supreme Court in Postmaster General &Ors. Vs. Living Media India Ltd. &Anr. (2012) 3 SCC 563 as under:-
"29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.
Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay".
In respect of the issue of 'consumer', learned counsel for the respondents argued that the present case relates to time period before 2003 when the amendment was made for the service also. Before that all kinds of services were allowed to be considered for alleging deficiency in service and due to this reason, the argument of the learned counsel for the appellant that the plot has been purchased for commercial purpose is not tenable.
It has been also stated by the learned counsel for the respondents that Mohinder Singh has not been made a party because complainants are not seeking any relief against him and there was no justification to make him an opposite party in the present case.
Learned counsel for the respondents further argued that the complaint was not time barred because the shortcomings in respect of the developed plot, particularly the approach Road was not complete till 1999 when the complaint was filed, hence, this was a continuing cause of action and there was no question of any delay in filing the complaint. The complainant No. 2 has purchased the plot only in the year 1999 and she did not find the approach Road built for the plot therefore, she filed the complaint within 6 months of purchasing the plot. Thus, the complaint has been filed in time.
I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties. In the first place it is seen that there is a delay of 191 days in filing the present appeal. The delay has been caused by the fact that the file was moved from one stage to another to get the final orders of the competent authority. Clearly this type of administrative reasons are not amenable to be considered as sufficient cause for condoning the delay as observed by the Hon'ble Supreme Court in Postmaster General &Ors. Vs. Living Media India Ltd. &Anr. (supra) . However, the question of considering the condonation of delay depends on many factors. Section 24A of the Consumer Protection Act 1986 reads as under:-
"Limitation period. - (l) 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 (l), 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.]"
From this provision, it is clear that the delay may be condoned subject to satisfaction of the National Commission. Obviously, in arriving at the satisfaction, the delivery of substantive justice is to be kept at the center of the thought process. Hon'ble Supreme Court in Esha Bhattacharjee vs. Managing Committee of RaghunathpurNafar Academy and Others., (2013) 12 SCC 649, has laid down:-
"From the aforesaid authorities (case laws referred) the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8 (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."
The Hon'ble Supreme Court in another case N. Balakrishnan Vs. M.Krishnamurthy, (1998) Supp. 1 SCR 403, has laid down the following:-
"11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis Mum (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" Under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain V. KuntalKumari, MANU/SC/0335/1968: [AIR 1969 SCR1006 and State of West Bengal Vs. The Administrator, Howrah Municipality, MANU/SC/0534/1971: [1972]2SCR874a.
It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
Moreover, in Manoharan Vs. Sivarajan & Ors, Civil Appeal No.10581 of 2013, decided on 25.11.2013 (SC) the following has been observed:-
"9. In the case of State of Bihar & Ors. v. Kameshwar Prasad Singh & Anr., it was held that power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing the cases on merit. The relevant paragraphs of the case read as under:
"11. Power to condone the delay in approaching the Court has been conferred upon the Courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987)ILLJ 500 SC held that the expression 'sufficient cause' employed by the legislature in the Limitation Act is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life purpose for the existence of the institution of Courts. It was further observed that a liberal approach is adopted on principle as it is realised that:
Ordinarily a litigant does not stand to benefit by lodging an appeal late.
Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
For public authorities the Hon'ble High Court of Gujarat in The Municipal Corporation of.. Vs. Manish Enterprises Ltd., AIR 1993, Guj, 145 has also observed the following:-
In my opinion, the Court has to bear in mind the principle of 'substantial justice' and if the expression 'sufficient cause' has to receive liberal construction, in the facts and circumstances of the case, sufficient cause can be said to have been made out by the applicant. For that purpose, in my opinion, it is altogether immaterial whether the advocate could have telephoned the officer concerned; whether the said officer could have immediately rushed to the advocate in the High Court; or whether the appeal could have been filed little earlier. The question is whether there is inaction, negligence or want of bona fides as observed by the Supreme Court. According to me, it cannot be said that any of the above elements is present in the instant case. 'Sufficient Cause' has been made out by the applicant Corporation in approaching this Court in filing the appeal and accordingly delay is required to be condoned.
In my judgment, the legal position cannot be disputed that the provisions of the law of limitation must be applied to all persons equally and uniformly. Government departments and local authorities cannot claim any privilege in that regard and they must be treated on par with private individuals. However, as observed by the Supreme Court, the realities of life also cannot altogether be ignored. Whereas a private individual takes a decision one way or the other almost instantaneously, a democratic government or a bureaucratic department hesitates and halts, discusses and debates, considers and consults, peeps through papers and files, speaks through notes and drafts, moves horizontally and vertically till at last it gravitates towards a conclusion, unmindful and oblivious of urgency and emergency.
Looking to the principles laid down by the Hon'ble Supreme Court arid applying them to the case on hand keeping in mind, the hard realities, I have no hesitation in holding that there is no inaction, want of bona fides or negligence on the part of the applicant Corporation in approaching this Court and delay of 38 days should be condoned in the larger interest of justice."
The core concern in considering the condonation of delay is the dispensation of substantive justice. In the present case, the quest for substantive justice drives me to condone the delay in the present case, obviously, at a cost of Rs.20,000/- to be paid to the complainant No.2 by the appellant.
Though the complainants have filed the joint complaint, it is not a complaint under section 12(1)(C) of the Consumer Production Act 1986 as there is no commonality of interest between the 2 complainants as complainant No. 1 had already sold the disputed plot to another person Mohinder Singh and therefore she did not have any relation with the disputed plot at the time of filing of the complaint and the second complainant has purchased the plot from Mohinder Singh in the year 1999 and her grievance in the complaint is mainly in respect of the approach road. Both the complainants have different interests in the disputed plot and in fact they want different relief in the complaint, though put up as a joint request. As no permission was granted by the State Commission to proceed under section 12(1)(C) of the Consumer Protection Act 1986, the complaint was not maintainable before the State Commission. Even if one considers the claims of the 2 complainants as against the opposite party, it is seen that the claim of the complainant No. 1 is in respect of the refund of the extension fee and penalty as well as interest amount from the opposite party. Clearly the cause of action for complainant No.1 arose when she received the demand for extension fee as well as for penalty or interest from the opposite party. She did not file any complaint at that time when she could have very well filed the complaint in respect of the amounts demanded by the opposite party as well as for non availability of the approach road. Clearly, the complaint is time barred so far as complainant No. 1 is concerned. Apart from being time-barred, the complaint from complainant No. 1 is not maintainable as the complainant No. 1 does not have any privity of contract on the day of filing of the complaint with the opposite party as she had transferred all her interests in the disputed plot to a third party.
So far as the complainant No. 2 is concerned, she has purchased the disputed plot from Mohinder Singh on 17th May 1999 and the complaint has also been filed in the year 1999. Obviously complainant No. 2 has not paid any extension fee etc. therefore, she cannot file any complaint in respect of refund of the extension fee or penalty or interest paid by the complainant No. 1 to the opposite party. It is generally one of the necessary conditions that the transferor has to pay all the dues before getting the plot transferred to a third party. From this aspect, the complainant No. 1 had to pay all the dues in terms of extension fee, penalty etc. before transferring the plot to the other party. If a person has paid certain dues to get some service from an opposite party, then, after getting the service, that person cannot claim refund of the amounts paid as observed by the Hon'ble Supreme Court in State of Punjab and Ors. Vs. Dhanjit Singh Sandhu, Civil Appeal Nos.5698-5699 of 2009 decided on March 14, 2014, wherein the following has been observed:-
"21. .................The said demand was rejected by the Estate Officer by passing the reasoned order in compliance of the directions of the High Court. In the facts of the instant case, we have no doubt in our mind in holding that the ratio decided in Tehal Singh's case will not apply in the instant case. In our considered opinion defaulting allottes of valuable plots cannot be allowed to approbate and reprobate by first agreeing to abide by terms and conditions of allotment and later seeking to deny their liability as per the agreed terms.
It is evident that the doctrine of election is based on the rule of estoppel the principle that one cannot approbate and reprobate is inherent in it. The doctrine of estoppel by election is one among the species of estoppel in pais (or equitable estoppel), which is a rule of equity. By this law, a person may be precluded, by way of his actions, or conduct, or silence when it is his duty to speak, from asserting a right which he would have otherwise had."
From the above judgment, it is clear that neither the complainant No. 1 nor the complainant No. 2 can claim refund of the extension fee and the other penalties or interest paid by complainant No. 1.
So far as the question of approach road is concerned, it is important to note that the maintenance of the area was transferred to the Notified Area Committee of Mohali before the allotment of the said plot to the complainant No. 1. When the complaint was first dismissed by the State Commission vide its order dated 18th June 2002, the complainant No. 2 had approached this Commission by filing first appeal No. 425 of 2002. This Commission vide it's order dated 21st March 2003 had remanded the matter to the State Commission for deciding the complaint afresh. This commission had noted the following:-
"We find it difficult to agree with the State Commission. In our view controversy is not of such a matter that by making Notified Area committee a party and obtaining a report of Local Commissioner, if considered necessary, the State Commission could not have adjudicated on the issue before it. These consumer forums have been constituted to help the consumer get speedy relief. In our view no such dispute arises in this case, that it cannot be disposed off by the State Commission."
From the above, it seems that the NAC was to be made a party by the complainants, however, the complainants did not make NAC a party. Even the report of the local commissioner dated 27th February 2004 does not clearly establish whether it was possible for the complainants to raise construction on the disputed plot or not. The local commissioner has only said that there is a metal road till plot 232 and beyond this it was only laid down bricks till the plot 234 the disputed plot. Even though there was no metal road however, in my view, the approach was not so restricted that construction could not have been taken on the plot. It is true that the opposite party was duty bound to have given the totally developed plot to the complainants but an important aspect in the present case is that the maintenance was transferred to the NAC in the year 1992 itself and this was in the knowledge of the complainants as mentioned in the complaint itself in the following manner:-
"15. That the complainant no.2 vide letter dated 4.6.1999 received Dasti by the opposite party requested in writing for providing approach road. A copy of the same is attached as Annexure C-15 with the present complaint. Thereafter, another letter was sent on 27.9.1999 requesting for construction of approach road and for making the arrangement with regard to Nallah (drain). A copy of the said letter is appended as Annexure C-16 with the present complaint. The O.P. vide letter dated 3.11.1999 addressed to the Executive Officer, Notified Area committee, Mohali forwarded the application of the complainant for taking necessary action and endorsed the copy thereof to the complainant. The copy of the same is attached as Annexure C-17."
The complaint in fact suffered from the non-joinder of necessary parties as the NAC was not included as an opposite party. It is all the more important to note that even after the observation of this commission as noted above, the complainants did not include Notified Area Committee as an opposite party. The fact of purposely not making NAC as an opposite party in the complaint cannot draw any benefit to the complainants.
When the complainant No. 2 purchased the plot from Mohinder Singh, she must have seen the plot and should have known that there was no approach road to the disputed plot. The complainant No. 2 must have taken the advantage or benefit of this deficiency in the plot while purchasing the plot from Mohinder Singh. She must have purchased the plot with eyes open and being fully aware that the plot does not have the metal approach road.
The State Commission has relied upon the affidavit of the junior engineer of the opposite party Des Raj dated 16th August 2005 that the approach road was completed on 15th April 2004 by the Municipal Council SAS Nagar Mohali. Based on this fact, the State Commission has concluded that there was no approach road and no construction could have been raised on the disputed plot. Here, I have a difference of opinion with the State Commission on the basis of the report of the local commissioner who has observed as under:-
"7. That on the western side of the plot no.234 (P) there is no road between the open drain and plot no.234(P). The grass etc. was standing on the earth. Even both the parties present there have not pointed out any such road on the said side and the said side is shown as side-W in the plan. However, there exists one road across the nullah/drain in front of the plot nos.408-417 and the same is shown as XY in the said plan Annexure A-2. There is no approach road available to the plot from the western side.
That on the Northern side of the plot No.234(P) there does not exist any metaled road. No such road appears to have ever been constructed. This side is shown as side N in the site plan. However, there exists a metalied road 12' wide (approx.) only till the plot no.232 as shown in the plan i.e. from point A-B. The metaled road also exists even in front of plot no.227, 228 etc. After point B only 8" thick base course (gatka) has been laid. The same is laid till 34' approximately in front of the plot no.234(P) as shown in the sketch/plan i.e. Point No.B-C, and thereafter only 3'' base course (gata) has been laid from point C-D. There is not even base course or the bricks after the point D and even no kacha road exits on the western side of the plot. The point D is dead end. It is important to mention here that the base course was dug to see if any metaled road was ever constructed. On digging it was found that a 3'' brick layer has been laid below the base course and above the earth as shown in sketch."
The basic point to be decided was whether it was not possible for the complainants to raise construction. From the report of the local commissioner, it seems that some kind of road was there till the plot and construction material could have been taken to the plot and thus construction was quite possible on the plot. It has also been mentioned by the opposite party that except for plot No. 234 all other plots from 228 to 240 have been constructed. It seems that in order to cover up their own deficiency for not starting the construction in time the complainants have come up with an excuse of the approach road. The legislation of Consumer Protection Act 1986 is for providing better protection to the rights of the consumers and keeping this in view as well as the fact that finally the metal road was also laid till the plot of the complainant No. 2 in the year 2004 by the Municipal Council of SAS Nagar Mohali, I deem it appropriate to modify the order of the State Commission to the effect that if complainant No. 2 has paid any amount as non-construction charges after the purchase of the plot by her till 15.04.2004, then the same will be refunded by the opposite party to complainant No. 2 along with 6% per annum interest from the date of deposit till actual payment. The complaint of complainant No.1 stands dismissed as being non-maintainable. Therefore, nothing will be payable to complainant no.1. The appellant shall also pay an amount of Rs.20,000/- as cost to the complainant No.2. Accordingly the order dated 08.09.2005 of the State Commission stands modified. This order will be complied with by the appellant within a period of 45 days from the date of receipt of this order. The first appeal No.213 of 2006 stands disposed of.