SANJEEV KUMAR vs JAMMU AND KASHMIR HOUSING BOARD

-ORDER dated 10. 4. 2007 passed by the learned Divisional Forum, Jammu (hereinafter to be referred to as the Forum) has been challenged through the medium of this appeal. The facts of the case in brief are that Sanjeev Kumar and his father Sh. Narsingh Dass Sharma filed Complaint No. 96/06 on 7. 6. 2006 in the Forum making the allegations that shop No. 4 measuring 12ft X 18ft situated at Channi Rama, Jammu was allotted in favour of Sanjeev Kumar for consideration of Rs. 75,000 and the whole price of the said shop had been paid within time. Consequent upon receiving the price of the allotted shop lease-deed was duly got registered in favour of the appellant Sanjeev Kumar on 15. 11. 1995 before the learned Sub-Registrar and Secretary, Jandk Housing Board, Jammu wrote a letter bearing No. 5099-5100 dated 18. 11. 1995 (Annexure C) to respondent No. 2 for handing over the possession of shop No. 4 at Channi Rama, Jammu and a copy of the said letter was forwarded to appellant for information and he was required to attend the office of respondent No. 2 within week''s time for the completion of the requisite legal requirements. In Complaint No. 97/06 letter bearing No. 5097/98 dated 18. 11. 1995 was addressed by Secretary, Jandk Housing Board, Jammu to respondent No. 2 herein for handing over the possession of shop No. 3 situated at Channi Rama, Jammu to appellant Ajay Kumar and a copy of the said letter was forwarded to appellant Ajay Kumar requiring him to attend the office of the respondent No. 2 within week''s time for completion of the requisite legal formalities. The case of the complainants in brief in both the complaints is that after the registration of the lease-deeds, the possession of the above stated shop Nos. 4 and 3 was to be handed over to the appellants Sanjeev Kumar and Ajay Kumar respectively within 90 days but that was not done by the respondents. No information was given to the appellants herein within the stipulated period of 90 days to take the possession on a specific date. That after the expiry of 90 days, both the appellants on many occasions had visited the offices of the respondents and made fervent oral requests for putting them in possession but on every occasion they were being duped on one pretext or the other. That when their patience got exhausted, they were compelled to despatch two missives on 12. 3. 2005 to respondent No. 1 inter alia stating that, "but due to some unavoidable circumstances, the possession of the said shop site Nos. 4 and 3 could not be taken by them. " This was the common language employed in both the above stated communications along with a request for the issuance of necessary instructions to respondent No. 2 herein by respondent No. 1 to handover the possession of the shops in question. This hopeful step had gone hay-wire and ultimately they addressed a joint letter dated 27. 7. 2005 to the Principal Secretary, Housing and Urban Development Department, Jandk Government Srinagar (Annexure E with the complaints ). The Private Secretary to Principal Secretary to Government, Housing and Urban Dev. Deptt. vide his letter No. PS/tsm/3/2003 dated 29. 7. 2005 (Annexure F) had drawn the attention of respondent No. 1 to look into the matter and take the immediate action under rules. Vide Annexure G the appellant Mr. N. D. Sharma again approached the Principal Secretary to Government, Housing and Urban Development Department, Jandk, Srinagar for issuing the instructions to respondent No. 2 herein for immediate action. Vide Annexure H, the appellants Sanjeev Kumar and Ajay Kumar again approached respondent No. 1 for getting the possession. When nothing was done to redress the grievances, appellant No. 3 (Mr. N. D. Sharma) was compelled to send a threatening letter dated 6. 1. 2006 to respondent No. 2 (Annexure I) wherein week''s time was granted to settle the dispute failing which the matter was to be taken in the Jandk Accountability Commission. Ultimately, this technique proved successful in bearing the fruit because vide letter No. HB 5386-87 dated 21. 2. 2006 and No. HB 5392-93 dated 21. 2. 2006 respondent No. 1 informed appellant Nos. 1 and 2 that though they had failed to complete the requisite legal requirements for taking over possession in compliance to their office No. 5099-5100 dated 18. 11. 1995 yet a lenient view was taken and they were given final opportunity to attend the office of Deputy Manager, Housing Unit No. 11 within fifteen days from the issue of those letters for taking over possession, failing which, the allotments issued shall stand automatically cancelled. It appears from the record that on 24. 2. 2006 the possession of the shops was handed over to appellant Nos. 1 and 2.

THE Forum below after considering the arguments of Mr. S. C. Mansotra, Advocate of the appellants, herein also had noticed in brief the communications addressed by the appellants to the concerned quarters which at his suggestion we have dealt with exhaustively. The Forum has held: How can it be said that OPs were at fault when the admission of complainants is there that despite allotment having been made by the M. D. Jandk Housing Board OP No. 1 and letter having been issued on 18. 11. 95 by OP No. 1 where under the complainants had been informed to take possession and Dy. G. M. , Housing Unit-1, Jammu had been also instructed accordingly. The complainants on their own because of unavoidable circumstances having not taken possession of the shops sites have requested to issue instructions to Dy. G. M. , Housing Unit -1, Jammu to handover the possession of shops to complainants. Both the complainants have admitted in writing that they were responsible for not taking possession of shop sites from 18. 11. 95 to 12. 3. 2005 because of unavoidable circumstances, how the fault can be found with the OPs. ". The Counsel of the appellants had been canvassing there that letter dated 12. 3. 2005 was addressed by the complainants therein at the insistence of OPs therein. This plea had found no favour because the letter in question was found to be voluntarily written by the appellants herein. The Forum was not swayed to allow the appellants to take advantage of their wilful delay and consequently dismissed the complaints without costs. The appellants through this appeal has challenged the order on various grounds, but amongst them the following are only worth mentioning: (a) That respondents herein were under legal obligation to handover the possession of the sites of shop Nos. 3 and 4 within 90 days from 15. 11. 1995 and that statutory period of 90 days expired on 16. 2. 1996. Since they had failed to convey the date of delivery so it amounted to lapse in rendering the service as required under law and under the Jandk Consumer Protection Act it has to be deemed as serious deficiency in service.

(b) The delay of more than one decade was caused because of the lethargic attitude being adopted by the respondents who slept over the matter without discharging their legal obligations. The appellants herein through various representations made to different authorities made them activated and the possession could be got of the shop sites on 4. 3. 2006.

(c) Respondents herein have failed to discharge their statutory duty after 18. 11. 95 by not writing any communication to the appellants even in the form of warning that in case of their failure to take the possession the allotments would be cancelled. The alleged admissions which have been foisted upon the appellants in their letters dated 12. 3. 2005 addressed to respondent No. 1 that "due to some unavoidable circumstances the possession of the shop site could not be taken" that was under the compelling circumstances to get the possession and even after the execution of this letter dated 12. 3. 2005 the appellants have to knock at the doors of the higher authorities to get the possession which was finally handed over to them on 4. 3. 2006.

Heard the arguments.

MR. S. C. Mansotra learned Counsel appearing for the appellants has reiterated the grounds of the memo of appeal in his arguments and laid stress that it is a case of failure to discharge the statutory duty on the part of the respondents as they have slept over the matter right from 18. 5. 1995 till 12. 3. 2005 and finally up to 4. 3. 2006. By their failure to discharge the statutory duties, the appellants have undergone financial loss because the cost of construction during that period of more than 9 years had gone sky high and they have also during that period undergone emotional and mental torture. The learned Forum has not taken these attending circumstances into consideration because this was the case of deficiency in service but on a purely technical ground of the alleged admission which was spelled out to have been made by the appellants Sanjeev Kumar and Ajay Kumar in their letters dated 12. 3. 2005 their grievances were not redressed and the impugned order suffers from this patent legal infirmity. In support of his contention he has cited the case of Brij Pal Sharma v. Ghaziabad Development Authority, III (2005) CPJ 43 (SC)=vi (2005) SLT 365=air 2005 SC 4282; and Ghaziabad Development Authority v. Naresh Kumar Sharma, III (2004) CPJ 17 (SC)=v (2004) SLT 224=air 2004 SC 4471. In rebuttal Mr. N. A. Chowdhary, Advocate, has contended that vide letters dated 18. 11. 1995, the appellants herein were required to attend the office of respondent No. 2 within a week''s time for the completion of the requisite legal formalities. There is no documentary or oral evidence to the effect that after 18. 11. 1995 till 11. 3. 2005 any of the appellants ever approached the respondents. It was only on 12. 3. 2005, that appellant Nos. 1 and 2 approached respondent No. 1 with a written request wherein it was admitted that due to some unavoidable circumstances the possession of the shops in question could not be taken by them. A request was made to issue necessary instructions to respondent No. 2 to handover the possession of the shops in question to them. Clause 3 of the lease-deed (Annexure A) clearly states that, "the lessee will take over the possession within 90 days from the date of execution of the lease deed. " Since the appellants had failed to approach the respondents within 90 days or even thereafter and Clause 7 of the lease deed states, " That in the event of failure or default by the lessee to oblige him to observe and fulfil any or all the terms and conditions of this agreement, the lessor may without prejudice to any other remedy available under any law for the time being in force, process to cancel the lease agreement and may terminate the lease with a prior notice of 15 days to the lessee and re-enter the premises. " The respondents had not resorted to Clause 7 of the lease deed and taken a lenient view because on their representation their case was reopened which took some time to perform the legal formalities and to seek instructions from the administrative department. The allotment orders had been issued in favour of appellants 1 and 2 before filing the complaints in question. Not only that, the possession of the shops in question had also been handed over to them.

NOT only that the possession of the shops in question had also been handed over to the appellants on 24. 2. 2006 and after a gap of more than three months they filed the complaints stated above (in the Forum on 7. 6. 2006 ). We have considered the respective contentions of the Counsel of the parties and perused the record. We find no reason to disturb the order of the Forum which is based on proper appreciation of the facts. Vide letter dated 18. 11. 1995, the appellants herein were required to attend the office of respondent No. 2 within a week''s time for the completion of the requisite legal formalities. They have not explained by leading even an iota of evidence why they slept over the matter from 18. 11. 1995 to 11. 3. 2005. It was only on 12. 3. 2005 that both of them approached respondent No. 1 with a written request wherein it was unambiguously admitted that due to some avoidable circumstances the possession of the shops in question could not be taken by them. A suo motu request was made to issue necessary instructions to respondent No. 2 to hand over the possession of those shops. The appellants took a U Turn after getting the possession of the shops from the respondents and started blaming the respondents that they had failed to perform their legal duty by not handing over the possession within ninety days from the date of the execution of the lease deed. A bare perusal of Clause 3 of the Lease Deed (Annexure-A) makes it clear that it was the duty of the appellants herein to take over the possession within ninety days from the date of the execution of the lease deed. When in terms of the letter dated 18. 11. 1995 they had failed to attend the office of respondent No. 2: herein within a week''s time for the completion of the requisite formalities as well as slept over the matter from 18. 1. 1995 to 11. 3. 1995 it cannot be said by any manner of doubt that it was the fault of the respondents. Rather, under Clause 7 of the lease deed the respondents had the authority to initiate process to cancel the lease agreements and to terminate the leases with a prior notice of fifteen days to the appellants herein. In the complaint it was alleged that the possession of Shop No. 3 was accepted under protest (vide Annexure-K ). From the perusal of Annexure-K, we do not find any such protest recorded therein. Rather they have admitted in unequivocal terms in the letter dated 12. 3. 2005 that due to some unavoidable circumstances the possession of the shops in question could not be taken by them. A case of undue influence and coercion seems to have been put up before the Forum that they were compelled to make such written admissions but this plea was not supported by any evidence. The conduct of the appellants have not been found fair because they have tried to shift their negligence on the heads of the respondents and come in the consumer Fora to earn some money by way of interest or damages without realizing the fact that only bona fide consumers can approach the Fora under the Act. There was no fault, illegality or irregularity in the impugned order which was based on the appreciation of factual and legal position. This meritless appeal was filed herein on the same grounds which had been agitated in the complaint. The law cited by the learned Counsel of the appellants laid down by the Apex Court in the case of Ghaziabad Development Authority v. Naresh Kumar Sharma (supra) and in the case of Brij Pal Sharma v. Gaziabad Development Authority (supra), have no application to the facts of the present case. In the case of Ghaziabad Development Authority v. Naresh Kumar Sharma (supra) the facts of the case were that the possession of the plot was not delivered despite deposit of the entire amount and the possession was delivered during pendency of the complaint before the District Forum. On evidence it was proved that it was a belated delivery of possession and the District Forum had awarded 18% interest by way of compensation. This finding was not disturbed because after the acceptance of the whole amount the possession was not given in time. The facts of the present case are quite different because the appellants herein had failed in their duty to fulfil the requisite legal formalities before the respondents. Similar were the facts in the case of Brij Lal Sharma v. Ghaziabad Development Authority (supra), where the cancellation of the allotment order was made on unjustifiable grounds after accepting the full payments, because the Housing Scheme was subsequently cancelled. The facts of this case are quite different from the facts of the case of Brij Lal Sharma.

IN view of the discussion made above, we find no merit in this appeal which is dismissed with costs of Rs. 5,000. The record of the Divisional Forum be returned at once and the appeal be consigned to the records. Appeal dismissed.