BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRMOUR AT NAHAN, H.P.
Consumer Complaint No: 66/2007
Date of presentation: 07/06/2007
Date of decision: 17/12/2009
Sh. Basu Dev S/o Sh. Gurdial Singh,
R/o House No. 40/I Ward No. 6,
Bye Pass, Paonta Sahib, District Sirmaur, H.P.
… Complainant.
Versus
Himachal Pradesh Housing Board,
Nigam Vihar, Shimla, H.P.
Through Secretary/ State Manager,
H.P. Housing Board, Shimla-2.
…. Opposite Party
………………………………………………………………………..
For the complainant: Mr. M.K. Jain, Advocate.
For the Opposite Party: Mr. Virender Sharma, Advocate.
O R D E R:
Sureshwar Thakur (District Judge) President (Oral):- The instant complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant avers that, he was allotted HIG plot No.1-D, being the highest bidder, vide allotment letter, on, 29.11.2002. It is averred that, as per the terms and conditions of the auction proceedings, he deposited 10% per sale price of Rs.5,50,000/- , i.e. Rs.55,000/- and the balance 75% of the sale cost, was to be deposited in three annual equal installments which were fixed at Rs.1,56,466/-. It is averred that, the OP-Board, vide letter dated 17.02.2004, re-scheduled the installments, to be paid yearly and fixed the same at, Rs.1,70,500/-, and also imposed penal interest of Rs.10,537/-,hence, the total amount of Rs.1,81,037/- was demanded for first installment. Thereafter, vide letter dated 18.05.2004, a demand of Rs.1,34,338/- along with penal interest, was raised against him, but due to financial crisis, he could not deposit the installment in time, hence a request was made to the OP and since nothing was heard from the OP, as such, he was under bonafide belief that, he has been allowed time to deposit the installments. However, the OP-Board, vide letter dated 29.07.2004, cancelled his allotment, hence, the request was made to the OP, not to cancel the allotment of the flat and allow him to deposit money, which was allowed by the OP, hence, made a deposit of Rs.50,000/- on, 16.11.2006. The complainant further proceeded to aver, that the OP-Board, vide letter dated 28.10.2006, sent a cheque of Rs.1,46,036/- favouring complainant, which was containing the amount so deposited by him with the OP-Board, against the total deposited sum of Rs.2,20,000/-. Hence, it is averred that there is apparent deficiency in service on the part of the OP-Board, and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.
2. The OP-Board, in its written version, to the complaint, raised preliminary objections regarding maintainability of the complaint, and contended that, the HIG Plot No.1-D, in Housing Colony at, Paonta Sahib, which was earlier allotted to the complainant, has nw been allotted to one Shri Ajay Kukrreja, who has also executed the Hire Purchase Tenancy Agreement, and took the possession on, 23.06.2006 and is also paying the installments, as per the payment schedule. It is contended that vide letter dated 18.05.2004, the complainant was advised to deposit a sum of Rs.1,34,336/-, which were outstanding up to 31.05.2004, and also deposited watch and ward charges up to 28.12.2002, till execution of the hire Purchase Tenancy Agreement. It is further contended that, since, the complainant failed to execute the Hire Purchase Tenancy Agreement and deposit the balance sum, hence, as per the terms and conditions, the allotment was cancelled and a sum of Rs.1,46,036/- vide cheque No.109323 dated 28.10.2006, was refunded to him, which was received back, as unclaimed. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.
3. Thereafter, the parties adduced evidence, by way of affidavits, and, documents in support of their respective, contentions.
4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.
5. The complainant, is, aggrieved by the act of the OP-Board, in canceling the Plot bearing No.1-D, so allotted to him, in Housing Board Colony. The OP-Board, has repudiated the contention, so put forth by the complainant, inasmuch, as, since, the complainant failed to deposit the installments, as well, as, also failed to execute a Hire Purchase Tenancy Agreement, hence, under the terms and conditions of the allotment, the OP-Board, was justified in canceling the plot.
6. It has been vehemently contended, on behalf of the complainant, that, the action of the OP-Board, in canceling the allotment of HIG Plot No.1-D, in Housing Board, Colony Paonta Sahib, is arbitrary, and illegal, for the reason that, no notice was issued to him, before cancellation of the aforesaid plot. In this behalf, our attention was drawn towards letter dated 17.02.2004, Annexure R-6 & 7 vide which, it, was categorically informed to the complainant to remit the outstanding sum and execute the Hire Purchase Tenancy Agreement within 15 days from the issuance of the aforesaid letter positively, failing which the allotment shall be cancelled. In response to, the, aforesaid letter, the complainant remitted a sum of Rs.50,000/-, however, he failed to execute the hire purchase tenancy agreement, hence, vide letter dated 18.05.2004, Annexure R-8, was called upon by the OP-Board, to, remit a sum of Rs.1,34,336/- within 10 days and execute hire purchase tenancy agreement. Since, complainant failed to give any reply to the letter dated, 18.05.2004 Annexure R-8, the OP-Board, vide letter dated 29.07.2004, Annexure R-9, cancelled the allotment and forfeited 50% earnest money and vide Annexure R-10, order for refund of Rs.1,96,036/- was passed.
7. Therefore, from the above discussed evidence, it is clearly manifested that, the OP-Board, had, given sufficient time to the complainant and also served prior notice to him, as required under the terms and conditions, eliciting from him, a, deposit of the installments and was to then enable execution of hire purchase tenancy agreement, yet, the complainant failed to adhere to the letters so issued to him, by the OP-Board, hence, the contention of the complainant, that, the OP-Board had received a sum of Rs.50,000/- in response to the letter dated 17.02.2004, as such, its receipt, tantamounts to deemed acceptance of the part payment, with the concomitant effect of deemed extension of time, hence, rendering the action of the OP-Board, in canceling the allotment of the plot, without compliance with the terms and conditions of the allotment letter, to be, illegal and arbitrary, cannot be countenanced. It is pertinent to mention here that, the OP-Board, had also earlier cancelled the allotment of the plot owing to non-defrayment of the installments by the complainant, yet subsequently, on the request of the complainant, order of cancellation of allotment, was rescinded by the OP-Board, which clearly shows that, their, was arbitrariness or a biased approach on the part of the OP-Board. Rather, it sprouts from the aforesaid discussion, that, the OP-Board, was forced by the lapses on the part of the complainant, detailed above, to resort to take the action of cancellation of the allotment. Therefore, it cannot be said by any stretch of imagination, that, their was any deficiency in service on the part of the OP-Board, in canceling the allotment of the plot. Therefore, no relief can be afforded to the complainant.
8. Consequently, the complaint, is, liable to be dismissed and we order accordingly. However, their shall be no order as to the costs. The file after due completion, be consigned to record room.
Announced on this, the 17th day of December, 2009.
(Sureshwar Thakur)
President.
NMehta) (Vanita Singh) (Satish Kumar Gupta)
Member Member