STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 18.05.2018
Date of final hearing: 08.08.2023
Date of pronouncement: 10.10.2023
First Appeal No.653 of 2018
IN THE MATTER OF:-
- Haryana State Agricultural Marketing Board through its Chief Administrator, Panchkula.
- Market Committee, Barwala, District Hisar through its Secretary-cum-E.O. ...Appellants/OPs
Versus
Smt. Channo Devi W/o Sh. Bhag Ram, H.No. 119/26, Hanuman Nagar, Narwana, District: Jind. …..Respondent/Complainant
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Pankaj Banwra, proxy counsel for Sh. B.S. Negi, counsel for the appellants.
Sh. Vivek Panghal-Secretary-cum-EO Market Committee, Barwala (Hisar) and Sh. Om Bir Singh-Mandi Supervisor, Barwala (Hisar) in person.
Sh. Sant Lal Barwala counsel for respondent.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 104 days in filing of this appeal stands condoned for the reasons stated in application seeking condonation of this delay.
2. Challenge in this appeal No.653 of 2018 has been invited by OPs to the legality of order dated 22.12.2017 passed by District Consumer Disputes Redressal Forum-Hissar (In short “District Consumer Commission”) in complaint case No.543 of 2014.
3. Facts in brief: Plot No.3, Cotton Market-Barwala was purchased by complainant from Market Committee-Barwala in ‘open auction’ held on 25.06.2008 which was confirmed by Chief Administrator, HSAMB-Panchkula on 14.07.2008. As per plea, complainant deposited 25% of auction money at the time of purchase of plot and further deposited all instalments of this plot as mentioned in Para No.4 of allotment letter. Complainant took possession of plot in year 2008 and constructed shop on it. As per condition No.9 of allotment letter; complainant is not permitted to use premises in question for any purpose, other than marketing of notified agriculture produce and in case of misuse of premises; allotment of plot in question can be cancelled by Market Committee-Barwala. From date of auction, HSAMB-Panchkula did not issue any notification for Cotton Mandi-Barwala, where plot in question is situated, for period of 5 years from September-2008, therefore, as per plea, complainant could not start any business for sale and purchase of cotton i.e. notified agriculture produce as mentioned in condition No.9 of allotment letter. So much so, for want of notification; Market Committee-Barwala did not issue any license to complainant and other shopkeepers of Cotton Mandi-Barwala for start of business of sale and purchase of notified agriculture produce i.e. ‘Cotton’ from date of auction of plot in question and other plots in Cotton Mandi-Barwala for period of 5 years. As per plea, complainant could not make any use of plot and shop in question despite having invested huge amount; firstly, in auction of plot and secondly in construction of shop on it. It is pleaded that as per letter No.62498 dated 24.09.2012 issued by Chief Administrator, HSAMB-Panchkula addressed to Secretary, Market Committee-Barwala; Notification No.10503 dated 27.08.2012 in respect of Cotton Mandi-Barwala was issued on 27.08.2012. It is further pleaded that Market Committee-Barwala and HSAMB-Panchkula are responsible and negligent for delay caused in issuance of notification for sale and purchase of notified agriculture produce, so complainant is not liable to pay any interest on instalments of plot in question from 01.02.2009, including penal interest and penalty/non-construction fee in respect of allotted plot. Contrary thereto; Market Committee-Barwala and HSAMB-Panchkula are bound to reschedule repayment of instalments of plot in question and same may be made payable only after issuance of notification for sale and purchase of notified agriculture produce. Till date of filing of complaint before learned District Consumer Commission; no auction proceedings for sale and purchase of notified agriculture produce have been started by Market Committee-Barwala, therefore, complainant is not in a position to start any business in shop in question. Market Committee-Barwala has sent notice dated 26.07.2013 to complainant, whereby she was asked to pay penal interest on remaining instalments and to complete construction on allotted plot, on or before 31.03.2014, otherwise plot in question shall be deemed to be resumed. Complainant sent reply by registered post on 14.08.2013 through counsel but OP No.1 sent false reply dated 31.08.2013 through counsel. On these facts, complainant filed complaint by complaining gross deficiency in service and negligence on the part of OPs and prayed that OPs be restrained from recovering any interest, penal interest and non-construction fee (extension fee) in respect of plot in question and to refund amount of interest and penal interest recovered by OPs from complainant with interest @ 15% per annum from date of deposit till final realization and to further pay Rs.2.00 lacs as compensation plus Rs.22,000/- as cost of litigation.
4. Upon notice, OPs/appellants herein raised defence. Pleas viz. maintainability, cause of action, locus standi, estoppels, complainant has not come with clean hands and not consumer and plea of jurisdiction of forum have been taken in preliminary objections. On merits, it is admitted that complainant deposited 25% of auction money. It is pleaded that complainant is guilty of committing numerous deliberate defaults in payment of scheduled instalments and is bound to pay interest, as well as, penal interest in respect of defaulted amount as per clause 5 of allotment letter entered into between parties. Complainant is also liable to pay 15% amount of total cost of plot for raising unauthorized construction, as provided under HSAMB (Sale of Immoveable Property) Rules, 2000. So far as construction raised by complainant over the plot in question is concerned, same was not done in adherence to terms and conditions of allotment letter, therefore, complainant was asked to make construction set right, in terms of conditions of allotment letter and of approved plan and to deposit compounding fee and to apply for completion certificate afresh, after complying with such terms of approved plan. When site was inspected in pursuance of application moved by complainant for seeking completion certificate; construction raised by her was not found to be in consonance with terms and conditions of allotment letter and of approved plan, therefore, she was asked to apply for completion certificate afresh after complying with approved plan and terms of allotment letter. Complainant herself is at fault in not getting completion certificate issued in time, for want of approved construction. She cannot blame OPs for non-issuance of same. So long as, completion certificate is not issued; question for granting licence and running business for sale and purchase of notified item, even if notified, does not arise at all, though notification in this regard stood issued on 27.08.2012 and 24.09.2012. As per rules, licences have been issued to those shopkeepers who applied for it. It is pleaded in Para No. 8 of written statement that amount of Rs.1,02,57,494/- calculated as on 29.02.2016, is still due and payable by complainant towards plot in question and as per terms and conditions of allotment letter, she (complainant) is legally bound to pay same along with interest and penalty. Allegations raised in complaint have been specifically denied. It is pleaded that there is no delay or negligence on the part of OPs and there is no deficiency in service on their part.
5. Parties to this lis led their respective evidence, oral as well as documentary.
6. On subjectively analyzing rival pleas and evidence; learned District Consumer Commission-Hissar vide order dated 22.12.2017 has allowed the complaint. OPs/appellants have been restrained from recovering any interest, penal interest and non-construction fee (extension fee), in respect of plot in question, up to date of notification viz. 27.08.2012 and to refund or adjust amount of interest and penal interest recovered by them from complainant, at the agreed rate, from date of deposit till final realization.
7. Feeling aggrieved; OPs have filed this appeal.
8. Learned counsel for the parties have been heard at length. With their able assistance record has been perused.
9. On behalf of appellants/OPs; it is urged that factual and legal aspects of matter have been grossly ignored. Impugned order dated 22.12.2017 legally unsustainable on all fronts. Complainant is liable to pay interest, penal interest in respect of defaulted installments amount from the date of its accrual. It is urged that notification was issued on 27.08.2012. Still, complainant cannot be allowed to commit default regarding payment of scheduled installments. Further contention is that construction raised by complainant over plot in question, de-hors terms and conditions of approved plan. Complainant has been asked to set right the construction; then apply afresh for completion certificate which she has not done. Entire fault in not getting completion certificate is lay upon her. It is urged that until completion certificate is obtained, question of granting licence for sale or purchase of notified item as per notification dated 27.08.2012 does not arise. Learned District Consumer Commission has failed to appreciate these facts, which has led gross and manifest injustice to appellants.
10. Per contra, learned counsel for respondent/complainant has supported impugned order dated 22.12.2017 passed by learned District Consumer Commission-Hissar by urging that it is legally justified on given facts and evidence and does not warrant any interference in this appeal.
11. This Commission has critically and subjectively analyzed rival submissions put before it. Admittedly, shop/plot No. 3 situated in New Vegetable Cotton Market, Barwala, District: Hisar was allotted to complainant vide allotment letter Ex.C-1. Total price of allotted plot is Rs.47,71,000/- as per Ex.C-1. Complainant was to use the premises (allotted shop) only for the purpose of marketing notified agriculture produce as per condition No. 9 of allotment letter. Admittedly, State Government has issued notification in this regard on 27.08.2012. Qua this plot, appellants in furtherance to order dated 08.08.2023 of this Commission have placed on record; calculation regarding principal amount due from allottee, as on the date of issuance of notification which is 27.08.2012. As per this calculation; principal amount of Rs.49,78,327/- and interest of Rs.5,63,098/- (total Rs.55,41,425/- as per closing balance) is due towards complainant on 27.08.2012. This calculation visibly runs in sheer contrast to recital of Para No. 8 of written statement, as per which, Rs.1,02,57,494/- (calculated on 29.02.2016) is still due and payable by complainant towards plot in question as per terms and conditions of allotment letter. Since, apparently there seems to be an ambiguity in the amount due towards complainant, therefore, calculation supplied to this Commission on the force of order dated 08.08.2023 does not form any fundamental and acceptable base, to the extent it relates to outstanding amount due from complainant in respect of allotted plot.
12. As per case set up by appellants in their written version complainant has deposited 25% of the cost of price of plot at the time of auction. As per calculation filed in this Commission; complainant had paid one installment of Rs.9,03,456/- on 28.04.2009. Although complainant has alleged in her complaint, and testified in her duly sworn affidavit Ex.CW1/A that she has paid all installments due qua this plot i.e Plot No. 3, yet there is no cogent proof led by her to substantiate her plea. On the other hand as per calculation sheet; she has paid Rs.9,03,456/- on 28.04.2009, besides paying 25% amount (at the time of auction). By 28.04.2009 (on the date of payment of installment as per calculation sheet), Govt. Notification was not yet issued and complainant had paid this installment amount with interest. Delay in issuance of notification lay entirely upon appellants and for which they cannot justly claim any interest on installment(s), prior to issuance of Govt. Notification. These reasons certainly weigh with this Commission to uphold impugned order dated 22.12.2017 passed by learned District Consumer Commission-Hissar wherein it has been observed that appellants cannot recover any interest, penal interest and non-construction fee (extension fee) in respect of plot in question, up to the date of notification dated 27.08.2012 and to refund or adjust the amount of interest and penal interest recovered from complainant at agreed rate from the date of deposit till final realization. There is absolutely no illegality or infirmity in aforesaid observation of learned District Consumer Commission, which are maintained and affirmed.
13. Hence after date of notification which is 27.08.2012, complainant/allottee has to pay balance of installments’ amount so due towards her (whatsoever it may be), along with agreed interest as per allotment letter Ex.C-1, which of course is binding upon both the parties to this lis. After date of notification (27.08.2012); legal right has accrued in favour of appellants to command complainant to pay outstanding amount of installments with agreed interest (as per allotment letter Ex.C-1). In this regard, appellants would revisit its calculation.
14. As a sequel to observation recorded herein before, this appeal stands dismissed. Impugned order dated 22.12.2017 passed by learned District Consumer Commission-Hissar is maintained and affirmed.
15. The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.
16. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
17. File be consigned to record room.
Date of pronouncement: 10th October, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
