Dr. B.C. Gupta, Member
This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 19.04.2010, passed by the Haryana State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in Appeal No. 1026/2008, 'Haryana Urban Development Authority (HUDA) & Ors. Vs. K.C. Bhatia', vide which, while allowing the said appeal, the order dated 30.11.2007, passed by the District Forum Panchkula in consumer complaint No. 134/2007, filed by the present respondent, allowing the said complaint, was set aside and the consumer complaint was ordered to be dismissed.
2. Briefly stated, the facts of the case are that the complainant K.S. Bhatia, who is a non-resident Indian (NRI), was allotted an industrial plot No. 142, Phase-II, Panchkula, vide allotment letter dated 29.11.1991 by the Estate Officer (HUDA-NRI) Industrial Development Group Haryana, Chandigarh. As per instructions/policy issued by the Chief Administrator (HUDA), vide memo No. A II-88/34630-47 dated 4.10.88, it was stated that in accordance with the decision of the authority taken in their 38th Meeting held on 15.07.1988, it was laid down that 5 residential plots of 1 kanal category and two residential plots of 2 kanal category be reserved for allotment to NRI in all urban estates, where the plots of above categories are floated in future, and the allotment of residential plots be made to those NRIs, who have already been allotted industrial plots in adjoining or neighbouring industrial estates established by HUDA or the Haryana State Industrial Development Corporation (HSIDC) and the payment is made in foreign currency. The policy was modified vide another letter No. NRI-90/9793 dated 09.05.90, issued by the Chief Administrator (HUDA) in accordance with decision of the Authority in its meeting dated 30.03.90, and it was stated that in future, two residential plots of one or two kanal category and five residential plots of 350 sq. yards be reserved for allotment to such NRIs as stated above. The complainant submitted an application dated 12.02.1992 to the Estate Officer, Industrial Assistance Group, 30 Bays Building, Sector-17, Chandigarh, which was forwarded to the OP HUDA, vide letter dated 28.02.1992. It was stated in the letter dated 12.02.1992 of the complainant that as advised, he had deposited a sum of ₹50,000/- from his NRI account at Chandigarh in Bank of India with Estate Officer, HUDA vide DD No. CDG5662091 dated 22.01.1992. Thereafter, the complainant wrote letters dated 04.04.1992, followed by reminder dated 02.04.1994 to the HUDA authorities, requesting for allotment of a 500 sq. yard residential plot in one of the developed sectors. The Estate Officer, HUDA, Panchkula sent a letter dated 19.08.1994 to the Chief Administrator, HUDA, Panchkula, saying that the construction on the industrial plot No. 142, allotted to the complainant was complete, but production had not been started till date. The Chief Administrator, HUDA sent a letter dated 07.03.1995 to the Director of Industries, Haryana requesting them for sending information with respect to the commencement of production on the said plot. In reply, the Director of Industries Haryana, vide their letter dated 19.1.1996, sent a reply that the factory building had been constructed, but no industrial activity was going on in the building. Further, the Chief Administrator (HUDA) circulated a letter dated 06.05.1997, saying that the residential plots to the NRIs were to be offered, when they at least complete the building upon the industrial plot allotted, install machinery and are ready to start commercial production. Further, they will not be allowed to dispose of the plot for a period of 10 years.
3. On the other hand, the complainant stated in his complaint that he kept on pursuing his entitlement regarding the residential plot with the OPs and he made several visits to them. He sent a reminder application to the OPs on 21.01.2005 and another reminder dated 19.05.2005, but the residential plot was not allotted to him.
4. The OPs vide their letter dated 18.04.2006 to the complainant asked him about the date of commencement of production. In response to the said letter, the complainant replied on 05.05.2006 that he had set-up an export firm for handicrafts, called Sneh International, which was initially being run from House No. 43, Sector 8, Panchkula. After the completion of the building at Industrial Plot 142, the operations were shifted to the said building. It was also stated that the occupation certificate was issued by HUDA vide letter dated 15.07.1994 and thereafter, the permanent occupation certificate was also issued by HUDA vide letter dated 23.05.1996. The complainant also stated that their profile appeared in the official directory of the Indian Handicrafts and Gift Fair, held in January 1996 at New Delhi, wherein the said industrial plot is shown as the workshop of Sneh International. The complainant requested that the allotment of residential plot should be expedited. However, on the failure of the OPs to allot the residential plots to him, the consumer complaint, in question, was filed on 11.05.2007, seeking directions to the OPs to issue allotment of the entitled residential plot to the complainant and also to pay him Rs.2 lakhs as compensation for harassment and Rs.11,000/- as cost of litigation.
5. The OP HUDA resisted the complaint by filing a written statement before the District Forum, in which they stated that the complainant was asking for a benefit, which was the sole discretion of the OPs and the allotment was to be made, depending upon the conditions to be satisfied by the complainant and also the availability of plots, and it was not a right vested in the complainant. The OPs also stated that the complainant did not fall under the category of ‘consumer’ and hence, the complaint was not maintainable before the Consumer Fora. The OPs also took the plea that after making the application in the year 1992, the complainant had approached them again in the year 2005 and thereafter, the process was started, but the allotment could be made only, if plots of one kanal area were available and after compliance of the formalities, which was under process.
6. The District Forum, after taking into account the averments made by the rival parties, allowed the complaint vide their order dated 30.11.2007 and directed the OPs to issue allotment letter to the complainant as per his entitlement within one month from the date of communication of the order. Being aggrieved against the said order, the OP HUDA challenged the same by way of an appeal before the State Commission, which was allowed vide impugned order dated 19.04.2010, by which, the order of the District Forum was set aside and the consumer complaint was dismissed. The State Commission stated, interalia, that the complainant could not be termed as a consumer, because no allotment had been made in his favour. The State Commission relied upon the order passed by this Commission in 'Punjab Urban Planning and Development Authority and Anr. vs. Krishan Pal Chander' [2010 CTJ 415 (CP) NCDRC], saying that the complainant becomes a consumer only, after the allotment of a flat/plot, otherwise he remains only a prospective investor. The State Commission further held that the complaint was barred by limitation as per the provisions of section 24A of the Consumer Protection Act, 1986, because the complaint was made in the year 2007, whereas the cause of action had arisen to the complainant on 12.02.92, i.e., the date of the application for the residential plot. Being aggrieved against the said order of the State Commission, the complainant is before this Commission by way of the present revision petition.
7. The arguments advanced by the learned counsel for the parties were heard. After the conclusion of the arguments, the learned counsel sought permission to file their written submissions as well. The written submissions were first filed on behalf of the petitioner, a copy of which was provided to the counsel for respondent. Thereafter, the counsel for the respondent HUDA filed his written submissions and provided a copy of the same to the petitioner. The said written submissions were taken on record and have been considered alongwith the oral arguments.
8. During hearing, the learned senior counsel appearing for the petitioner has drawn attention to the policy letter dated 14.05.1990 sent by Chief Administrator, HUDA, according to which a residential plot will be allotted to the persons, who had already been allotted industrial plots in the estates developed by the HUDA or the HSIDC. The learned counsel stated that the application made by the complainant was strictly in accordance with the policy and he was entitled for the allotment of the plot, as his unit had gone in production in the year 2002. The learned counsel stated that many other persons similarly situated as the complainant, had already been allotted the residential plots. The learned counsel has drawn attention to copies of the office noting of the OPs, in which it had been proposed after analysing the facts of the case that the complainant was entitled for the allotment of a residential plot.
9. In the note dated 20.07.1994 submitted by Secretary, HUDA, the name of the complainant was included among the list of eligible NRIs for allotment of residential plots. Further, as per the proposal made on 07.02.1995, the office of HUDA had proposed that residential plot No. 966 measuring 14 marla in sector 25 Panchkula may be allotted to the complainant @Rs.1195/- per sq. mtr. The Chief Administrator, HUDA had put a query on that note, asking for information as to whether his unit had gone into production. Further, in the office note written on 04.01.2001, it was proposed that plot No. 199, Sector–4, MDC Panchkula, measuring 14 marla be allotted to the complainant. However, the Chief Administrator did not take final decision on the above proposal and hence, the complaint in question was filed on 11.05.2007. The learned counsel argued that from the internal departmental notes, it was clear that the complainant was entitled for the allotment of a residential plot as per the policy, and the proposals for allotment of specific plots were also submitted to the higher authorities, but still the allotment was not made.
10. The learned counsel further argued that the State Commission had erroneously observed that the complaint was barred by limitation. This Commission has clarified in the order passed in 'Satish Kumar Pandey vs. Unitech Ltd.' [CC No. 427/2014 decided on 08.06.2015], that it was a continuing cause of action in such cases till the OPs refused to deliver the possession to the buyer. The reliance placed by the State Commission on the cases, 'State Bank of India v. B.S. Agriculture Industries (I) [(2009) 5 SCC 121]' and the case 'Kandimalla Raghavaiah & Co. v. National Insurance Co. Ltd. [(2009) 7 SCC 768]' was unfounded, because the facts of the present case were entirely different from the facts in those cases. The learned senior counsel further argued that the order given by this Commission in 'Punjab Urban Planning and Development Authority and Anr. vs. Krishan Pal Chander' (supra)', was not applicable in the present case, as residential plot was to be given in pursuant to the allotment of the industrial plot, which had already been provided to him. Moreover, a larger bench of this Commission had held in 'Tamil Nadu Housing Board and Anr. vs. A.V. Ramakrishnan' [III (1994) CPJ 137 (NC)], that an applicant who had made an application for allotment was to be considered as a consumer. The learned counsel argued that the order passed by the State Commission was not in accordance with law and should be set aside and the order passed by the District Forum should be restored.
In the written submissions as well, the learned counsel for the petitioner stated that the application for residential plot had been filed by the petitioner on 12.02.92 alongwith a deposit of Rs.50,000/-. He had subsequently sent reminders dated 04.04.92, 28.04.94 etc. to the HUDA. The Chief Administrator, HUDA had also sent various reminders to the Director of Industries, Haryana for sending the required information about the status of the unit as asked vide letter dated 07.03.95. The unit of the petitioner had gone into production in the year 2002, following which proposal for allotment of flat No. 199 Sector-4 MDC, Panchkula had been made but the allotment was not made. Referring to the limitation issue, the learned counsel has stated that in the case of 'Kandimalla Raghavaiah & Co. v. National Insurance Co. Ltd.' (supra), the fire had occurred in the year 1998 and the claim was filed in 2002 which was beyond limitation. In the case of 'State Bank of India v. B.S. Agriculture Industries' (supra), as well, the judgment was delivered from the perspective of recovery suit, wherein the date of acknowledgement of the debt became relevant. However, the decisions in these two cases were not applicable in the present case. The learned counsel also referred to the order of the Supreme Court in 'Rajaram Maize Products vs. Industrial Court of MP' [AIR (2001) SC 1676], saying that where cause of action was complete, there was no question of recurring cause of action. However, in the present case, the cause of action was not complete, because the allotment of plot had not been made.
11. In response, the learned counsel for the OP HUDA based his arguments on the points taken in the order of the State Commission, saying that the complainant did not come under the category of consumer, as allotment of plot was yet to be made to him. Moreover, the complainant made application for allotment of plot in the year 1992 and thereafter, he did not approach the OPs for a period of about 15 years and hence, the complaint was barred of limitation. The OPs had taken-up these points in the written statement filed by them. The learned counsel further argued that the decision to allot such plots, was to be taken depending upon the availability of such plots, and there was no vested right in the complainant to get a plot. The order passed by the State Commission was, therefore, in accordance with law and should be upheld.
In his written arguments, the learned counsel for the respondent HUDA submitted that the date of application for the residential plot, i.e., 12.02.92 was the date of the cause of action and hence, the period of limitation started from that date. Further, there was no linkage between the allotment of industrial plot and the policy dated 04.10.88 for the allotment of residential plot. The learned counsel also stated that it was the sole discretion of the concerned authority, whether to allot plot or not. Moreover, the complainant did not come under the category of consumer relying upon the 'Punjab Urban Planning and Development Authority and Anr. vs. Krishan Pal Chander', (supra) case.
12. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
13. The first issue that requires consideration in the matter is whether the complainant as an NRI entrepreneur comes within the definition of ‘consumer’ under the Consumer Protection Act, 1986 or not. The State Commission, relying upon the order made by this Commission in 'Punjab Urban Planning and Development Authority and Anr. vs. Krishan Pal Chander' (supra)', held that the complainant was just a prospective investor and he would fall under the definition of consumer only, once the allotment of plot was made to him. We, however, are not inclined to agree with the view expressed by the State Commission, because it is an admitted fact on record that the complainant had already been allotted an industrial plot No. 142 in industrial area Phase II, Panchkula, Haryana vide allotment letter dated 29.11.1991. In accordance with the policy, adopted by HUDA itself, he made an application for allotment of a residential plot as well, and his application remained under process at various levels and information about the construction of building and commencement of production on the industrial plot already allotted to him, was called for. By no stretch of imagination, therefore, the complainant can be stated to be a prospective investor. In the case relied upon by the State Commission in 'Punjab Urban Planning and Development Authority and Anr. vs. Krishan Pal Chander' (supra)', the issue was entirely different as the complainant failed to fulfil the terms of the proposed allotment and deposit the balance amount. It was held that mere application for allotment did not give the respondent any right to the allotment of the plot, although the proposed allottee acquired a right to be considered for the allotment. In the present case, the allotment of industrial plot has already been made and the complainant is merely seeking allotment of a residential plot in accordance with the policy of OP HUDA. Moreover, the learned counsel for the complainant has rightly pointed out that a three-Member Bench of this Commission in 'Tamil Nadu Housing Board and Anr. vs. A.V. Ramakrishnan' (supra), had taken a different view and stated that a person who had applied for allotment of a building site, shall be covered under the definition of potential user. It could not be stated, therefore, that he would fall under the definition of consumer, only after he had been given the allotment of a plot. It is held, therefore, that the finding of the State Commission on this issue that the complainant is not a ‘consumer’ is erroneous and deserves to be set aside.
14. The next issue that requires consideration is that in reply to the complaint filed by OP HUDA, they stated that they were extending a certain benefit to the allottees of industrial plots to the NRIs by way of providing a residential plot as well, but it was not their vested right to obtain that residential plot and it was their sole discretion, to provide such plot or not. The material on record indicates that some other persons, similarly situated as the complainant, have already been given allotment of residential plots in the estates developed by OP HUDA. We have no reason to agree with the contention of the OP HUDA that it is their sole discretion, whether to allot the residential plot to such categories of persons or not. Such an arbitrary exercise of power cannot be justified on any ground and it shall be wholly against the accepted cannons of justice. The office notings made from time to time in the office of the OP HUDA itself, as referred by the complainant, make it very clear that the complainant was eligible for the allotment of residential plot as per the policy of the HUDA itself and in fact, proposals for allotment of specific plots were also submitted from time to time, but still final orders were not made by the competent authority on one pretext or the other. We, therefore, do not agree with the contention of the OP HUDA that it was their sole discretion, whether to allot a residential plot in such cases or not.
15. The main issue that merits consideration in the present case is whether the consumer complaint in question is barred by limitation under section 24A of the Consumer Protection Act, 1986.
16. The State Commission has brought out that the cause of action arose on the date of the application for the residential plot, i.e., 12.02.1992. However, we have no reason to agree with this contention of the State Commission. The cause of action would arise only, if the OP had taken a decision not to grant the request of the complainant for the allotment of the plot, and not from the date of making an application. The entire material on record and the correspondence exchanged between the OP HUDA, the Directorate of Industries, Government of Haryana and the complainant from time to time, indicates that the OP HUDA never took a final decision in the matter, as to whether the request of the complainant was to be accepted or not. In the written statement to the complaint, filed by OP HUDA, there had been no denial of allotment of plot on the part of the OPs. Further, in the written statement, the OP HUDA stated that when the complainant approached them again in the year 2005, the process was started, but the allotment could be made only, if plots measuring one kanal were available. The OP HUDA also stated in their reply that the matter regarding the allotment of plot was under process. From these averments, it is abundantly clear that steps were being taken for the allotment of plot to the complainant, but no final decision had been taken by OP HUDA in the matter. Had the OP denied the allotment of plot to the complainant, it could have been stated that the cause of action had arisen to the complainant and that he should have filed the consumer complaint within 2 years from the date of such denial on the part of the OP HUDA. It is also abundantly clear from the material on record that the OPs HUDA never conveyed to the applicant that he could not be allotted the plot in question, or that he was not eligible to get the same. The bar of limitation as contained in section 24A of the Consumer Protection Act, 1986, therefore, does not come into play at all.
17. The learned senior counsel for the petitioner has rightly brought out that the judgments given by the Hon’ble Supreme Court in 'Kandimalla Raghavaiah & Co. v. National Insurance Co. Ltd.' (supra)' (supra) and 'State Bank of India v. B.S. Agriculture Industries' (supra), are not applicable in the present case. The facts in these two cases are clearly distinguishable from the facts of the present case. The claims preferred in the judgments quoted were clearly barred by limitation and specific dates to that effect had been mentioned. In the present case, however, it was a case of recurring cause of action and hence, the complaint was not beyond limitation. This view finds support from the order made by this Commission in 'Satish Kumar Pandey & Anr. vs. M/s. Unitech Ltd. (supra)', where it was held as follows:-
'It is by now settled legal proposition that failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action and, therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum. It is only when the seller flatly refuses to give possession that the period of limitation prescribed in Section 24A of the Consumer Protection Act would begin to run. In that case the complaint has to be filed within two years from the date on which the seller refuses to deliver possession to the buyer. However, in the present cases the opposite party did not refuse possession of the flats to the complainants at any point of time and, therefore, the cause of action continues to subsist in favour of the complainants.'
18. A perusal of the office note dated 07.02.1995 made in the office of OP HUDA by an official called Pyara Singh, says as follows:-
'As per policy on the subject circulated vide H.Q. memo No. A-11-88/34630-47 dated 4/10/88 and A-NRI-90/9793 dt. 9/5/90 2 residential plots of 1 kanal category and 5 residential plots of 14 marla category are kept reserved in each sector, for its allotment to NRI entrepreneurs in all Urban Estates, where the plots of the above categories are floated in future. The allotment of these plots is however subject to the condition that only those NRI entrepreneurs, will be eligible who have already been allotted industrial plots in adjoining or neighbouring industrial estates established by HUDA or HSIDC. The payment is made in foreign currency.'
19. It was proposed in the above note that Plot No. 966 measuring 14 marla in sector–25, Panchkula may be allotted to the complainant K.C. Bhatia, NRI entrepreneur and allottee of industrial plot 142, Phase-II, Panchkula. A list of vacant plots was also attached alongwith this note. However, a query was raised by the Chief Administrator to find out whether the industrial unit of the complainant had gone into production. Another note prepared on 04.01.2001 is on record, in which it has been stated as follows:-
'The residential plots to NRIs is to be offered when he at least complete the building upon the industrial plot allotted to them, install machinery and is ready to start commercial production. Further, he will not be allowed to dispose off the plot under any circumstances in a period of 10 years.'
20. In the above note, it had been proposed that plot No. 199, sector – 4, MDC, Panchkula measuring 14 marlas be allotted to the complainant. The Chief Administrator, HUDA has raised a query as to how many plots had been allotted since formulation of the policy. He also remarke
Please Login To View The Full Judgment!
d that there was no need of having such policy for the NRIs. 21. It is clear from the above record of the office of OP HUDA that the matter regarding allotment of residential plot to the complainant remained under active consideration during all these years and no final decision was taken. It is explicitly stated that the complainant was eligible for allotment of such residential plot under their own policy. It is evident, therefore, that this is a case of continuing cause of action, as no final decision about allotment was taken by the OP HUDA and conveyed to the complainant. The conclusion arrived at by the State Commission, therefore, that the complaint was beyond the period of limitation cannot be upheld, therefore, looking at the facts and circumstances on record. 22. In their written submissions, the OP HUDA have stated that the Industrial Plot as well as the residential plot were not linked with each other and the residential plot was to be allotted on the availability of such plot and subject to other terms and conditions. This plea taken by the OP HUDA is totally unfounded, because as per their own letter issued vide Memo No. A-11-88/34630-47 dated 04.10.88, it has been clearly stated that as per the decision taken by the authority in their meeting held on 15.07.88, a decision was taken that a particular number of residential plots were to be reserved for the NRIs in all urban estates and only those NIRs would be eligible who had been allotted an industrial plot in an adjoining or neighbouring industrial estate established by HUDA or HSIDC and the payment is made in foreign currency. It is quite evident that there was direct linkage between the allotment of industrial plots to the NRIs and residential plots developed by the HUDA. The OP HUDA had not denied that in pursuance of this decision, residential plots had been allotted to many such NRIs. 23. From the foregoing discussion, it can be safely stated that as per the office record of the OP HUDA itself, the complainant was very much covered under the policy for allotment of residential plots to the NRI entrepreneurs and the matter remained under process in their office for a considerable time and no decision could be arrived at in the matter. The order passed by the District Forum by which direction has been given to the OP to make allotment to the complainant is, therefore, based on sound logic and reasoning. Under the circumstances, the revision petition is allowed. The impugned order passed by the State Commission is set aside and the order passed by the District Forum is restored. Further, it is made clear that such allotment shall be made at the current allotment rates prevalent in the urban estate, in question. There shall be no order as to costs.