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2015 DIGILAW 204 (JK)

Jammu Development Authority v. Awtar Singh

2015-04-21

DHIRAJ SINGH THAKUR, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : Per: D.S. Thakur-J. 1. The present Civil 1st Miscellaneous Appeal is preferred against an order dated 28.4.2009 passed by the Jammu and Kashmir State Consumer Disputes Redressal Commission, Jammu (hereinafter called as the 'Commission') whereby while allowing the complaint filed by the complainant-respondent herein, the Commission has held the denial of allotment of a plot of land to the complainant to be willful and malafide and on that account, awarded an amount of (a) Rs. 30,00,000 (Rupees Thirty Lac) as reimbursement of the actual price of the plot, (b) Rs. 5,00,000 (Rupees Five Lac) for physical, emotional and mental torture and (c) Rs. 15,000/- (Rupees Fifteen Thousand) has been awarded as cost of litigation. On failure of the appellant to pay the awarded amount within a period of one month, interest has been held to be payable @ 8% per annum till payment. 2. However, with a view to understand the controversy in its correct perspective, the material facts may be noticed as under:- CASE OF THE COMPLAINANT 3. In response to a notification issued by the Jammu Development Authority (hereinafter called as 'JDA') in the year 1978, an amount of Rs. 4,000, representing earnest money, was deposited by the complainant-respondent herein for the allotment of a residential plot in the proposed Roop Nagar, Housing Colony, Janipur, Phase-II. 4. It was stated that the complainant had, in fact, applied for a plot of measuring one kanal against which the respondents issued allotment offer in favour of the complainant for a plot of size 40”x80” without conveying him about the reasons of reduction in the size of the plot. 5. It is stated that the representations were filed from time to time by the complainant with the officials of the JDA, who assured the complainant for redressal of his grievances and meanwhile, directed him to deposit the amount of plot, so allotted. 6. It is stated that the complainant accordingly deposited an amount of Rs. 20.000, representing the cost of the plot in the office of the JDA through bank draft dated 29.10.1986. 7. 6. It is stated that the complainant accordingly deposited an amount of Rs. 20.000, representing the cost of the plot in the office of the JDA through bank draft dated 29.10.1986. 7. It was further stated that without considering the representations, filed from time to time, the JDA cancelled the allotment offer vide its order dated 20.1.1988 on the plea that the amount of the plot had not been deposited by the complainant, which according to him, had already been deposited vide bank draft mentioned in the preceding para. 8. It was further stated that the complainant kept reminding the officials through different communications, requesting them to withdrawal of the cancellation order and allotment of a bigger size plot and alternatively to release of the amount, so deposited, in his favour. 9. The specific case of the complainant in the complaint further was that the officials of the JDA deliberately ignored the representations, did not reply to the same nor at any point of time informed the complainant regarding reduction of the plot size or cancellation thereof. 10. The relief prayed for in the in the complaint filed by the complainant needs to be reproduced hereunder. “The petitioner humbly prays that the complaint may kindly be accepted and award of Rs, 1.78 lacs on account of financial loss for the amount withheld by the respondents (as worked out in Annexure “Analysis-XXIII along with Damages for mental tension, agony, inconvenience to the tune of Rs. 3 lacs, loss of health and expenses for its treatment as per annexure-XXIII Rs. 12.80 lacs, loss of reputation Rs. 3 lacs, which totals to Rs. 20.58 lacs may kindly be granted. ANNEXURE “ANALYSIS” -XXIII I) Total amount due from Jammu Development Authority on account of amount withheld (A) Amount deposited in the year 1978 Total amount deposited Interest on Rs. 4000/- from January, 1979 to May, 2007 @ 9.5% per annum.Rs. 4000/- Rs. 469S4/- Rs. 50934/- Rs. 50934,'- (B) Amount deposited in the year 1986 Total amount deposited Interest on Rs. 20000/- from January, 1987 to May, 2007 @ 9.5% per annum.Rs. 20000/- Total = Rs. 127110/- Rs. 127110/- Total = Rs. 178044/- say Rs. 1.78 Laos. Capital Amount = 24000 Interest = Rs. 154044 T = Rs. 4000/- Rs. 469S4/- Rs. 50934/- Rs. 50934,'- (B) Amount deposited in the year 1986 Total amount deposited Interest on Rs. 20000/- from January, 1987 to May, 2007 @ 9.5% per annum.Rs. 20000/- Total = Rs. 127110/- Rs. 127110/- Total = Rs. 178044/- say Rs. 1.78 Laos. Capital Amount = 24000 Interest = Rs. 154044 T = Rs. 178044 II) Damages (a) (a) Damage due to mental tension, agony, inconvenience.= 3 Lacks (b) Loss of health and expenses on account of Medical treatment for Major TP surgery (8 lacs) and Medication/ Testing (For two years @ 0.2 lacs per month - 4.8 lacs).Rs. 12.80 LacS (c) Loss of reputation.= Rs. 3 Lacs Total = Rs. 18.80 lacs Total of 1 &. II - Rs. 1.78 Lacs + 18.80 Lacs = 20.58 Lacs STAND OF THE JDA 11. The stand of the JDA is that the complainant had applied for a plot of land in the year 1978 along with the earnest money deposited for an amount of Rs. 4000/-. A plot of land was offered to the complainant vide offer dated 5.10.1984 in which there was a stipulation for depositing the balance amount, which was not adhered to by the complainant. Vide notification dated 4.7.1986 published in the daily excelsior, it was notified that the defaulters whose names figured in the said list had failed to deposit the amount within the stipulated period of time and as such has lost their entitlement for allotment of the plot at Roop Nagar, Housing Colony. However, by virtue of the said notification, 21 days were granted to express their reply to the said notification. This notification dated 4.7.1986 was published on 6.7.1986 to which the complainant did not respond nor did he render any explanation within the prescribed period of 21 days which expired on 27.7.1986. According to the official stand, the complainant had lost all right or entitlement to claim the plot of land. 12. However, it was stated that much after the expiry of the period mentioned above, the complainant is alleged 10 have deposited an amount of Rs. 20,000 vide draft dated 29.10.1986. There is some confusion, it appeal's, in the office of the JDA, however, regarding this draft an enquiry also appears to have been conducted. 12. However, it was stated that much after the expiry of the period mentioned above, the complainant is alleged 10 have deposited an amount of Rs. 20,000 vide draft dated 29.10.1986. There is some confusion, it appeal's, in the office of the JDA, however, regarding this draft an enquiry also appears to have been conducted. Although the records of the JDA did suggest that there was a receipt of the draft, yet the aforementioned amount, according to them, was never credited into the accounts of the JDA for which the complainant was asked to give details of the bank from where the draft had been prepared to confirm whether the draft in question had cleared or that the same had been cancelled. 13. Legal pleas were also raised in the objections to the complaint and memo of appeal regarding the complaint being barred by limitation under Section 18-A of the Jammu and Kashmir, Consumer Protection Act, 1987 inasmuch the same had been filed beyond the prescribed period of two years from the date of accrual of the cause of action, which, in this case, according to the appellant. was the date of cancellation dated 20.1.1988, by virtue of which the offer of plot in the colony for which the complainant had applied was formally withdrawn. ORDER OF THE TRIBUNAL 14. The Commission appears to have been satisfied with the stand of the complainant that having deposited the amount of Rs. 20,000/-, there was no other formality which was required to be completed by the complainant in regard to the allotment of the plot in question and for that reason held the cancellation of the plot as nothing but an effort to dupe the complainant of his genuine claims. 15. Reference was made in detail to the evidence on record with regard to the receipt of the bank draft in the office of the JDA by the Commission to return a finding that the amount stood deposited. According to the Commission, the complaint was not time barred because the repudiation of the claim of the complainant was based on fabrication of false record and misrepresentation. 16. The Commission came to a conclusion that the market rate of a residential plot in the Roop Nagar Housing Colony for 90ft x 60ft was Rs. According to the Commission, the complaint was not time barred because the repudiation of the claim of the complainant was based on fabrication of false record and misrepresentation. 16. The Commission came to a conclusion that the market rate of a residential plot in the Roop Nagar Housing Colony for 90ft x 60ft was Rs. 30,00,000 (Rupees Thirty Lac) and thus ordered reimbursement of the actual price of the plot in question in favour of the complainant. Besides this, an amount of Rs. 5,00,000 was awarded in an aggregated form for physical, emotional and mental torture as also pecuniary loss. It was recorded that the complainant had undergone kidney transplant. 17. Reliance was placed upon the testimony of Dr. Hardev Singh Bhutyal and Dr. Amresh Kotwal to the extent that mental tension, worry, anxiety and mental stress could lead to kidney trouble. Monthly expenses incurred by the complainant on account of medicine and check up as also expenses for the kidney transplant was also noticed by the Commission for which the amount mentioned above was awarded. Rs. 15.000 on account of cost of litigation and interest @ 8% per annum on failure to pay the awarded amount within one month was also ordered. 18. Heard learned counsel for the parties. 19. Section 18-A of the Jammu and Kashmir Consumer Protection Act 1987 provides for the period of limitation as under: “18-A. Limitation period (1) The Divisional Forum or the State Commission may not admit a complaint unless it is filed within two years from the date on which the cause of action arises. (2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1) if the complainant satisfies the Divisional Forum or the State 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 Divisional Forum or the State Commission, as the case may be, records its reason for condoning such delay.” 20. The finding as recorded by the Commission that the complaint had been filed on 9.7.2007 within two years from the last representation made on 30.11.2006 to justify that the said complaint was within the period of limitation cannot be accepted. The finding as recorded by the Commission that the complaint had been filed on 9.7.2007 within two years from the last representation made on 30.11.2006 to justify that the said complaint was within the period of limitation cannot be accepted. In fact, the consistent stand of the complainant in the complaint filed before the Commission was that the official respondents had failed to respond to his representations made over a period of time. The fact that the complainant had made once such representations on 30.11.2006 by itself would not determine the starting point of limitation nor it can be said that the cause of action accrued only on 30.11.2006. 21. The finding recorded by the Commission that the claim could not be said to be barred by time because of repudiation of claim was based on fabrication of false record, fraud and misrepresentation also is a finding which cannot be accepted. Admittedly, show cause notice dated 4.7.1986 was published by the appellant on 6.7.1986 notifying the list of persons as under: “It is hereby notified for the inform of the persons indicated in the list hereunder that they have failed to deposit the cost of plots within the time stipulated and have thus lost entitlement to the plot promised in Roop Nagar, Housing Colony................................................ In case any of the persons denoted in the list above has anything to express in reply to this notice could be done within 21 days from the date of appearance of this notice in the paper. No claim thereafter entertained.” 22. According to the complainant, an amount of Rs. 20,000/- was deposited by him by way of a bank draft dated 29th of October, 1986. This was in any case beyond the period of 21 days prescribed in the notification above. Notification dated 4.7.1986 already was an intimation to all the applicants that they had lost their entitlement to the plot and the period of 21 days prescribed in the said notice was not an opportunity to the applicants to deposit the outstanding but only a period given to express their reply to the notification. Notification dated 4.7.1986 already was an intimation to all the applicants that they had lost their entitlement to the plot and the period of 21 days prescribed in the said notice was not an opportunity to the applicants to deposit the outstanding but only a period given to express their reply to the notification. In fact, the right and entitlement to the plot in question already stood extinguished on publication of the notification aforementioned, In any case, notwithstanding the notification dated 4.7.1986, the complainant ought to have approached the Commission immediately after the issuance of the communication dated 20.1,1988 as it formally communicated that the rights of the complainant stood extinguished. 23. To determine the issue of limitation, a necessary question to be determined is regarding the date of accrual of cause of action, In Rajasthan High Court Advocates' Association v. Union of India, (2001) 2 SCC 294 , the Apex Court held as under: “17. The expression “Cause of action” has acquired a judicially-settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in “cause of action... 24. In Navinchandra N. Majithia v. State of Maharashtra & ors, (2000) 7 SCC 640 , the Apex Court has held as under: “18. In legal parlance the expression “cause of action' is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to one or more basses for suing; a factual situation that entitles one person to obtain a remedy in court from another person. (Black's Law Dictionary).” 25. (Black's Law Dictionary).” 25. Testing the facts on the touchstone of the aforementioned facts, it is clear that cause of action had accrued in favour of the complainant initially in July 1986 and in any case on communication dated 20.1.1988. 20. In our view, the complaint was barred by limitation having been filed beyond the period prescribed under Section 18-A of the Jammu and Kashmir Consumer Protection Act, 1987. 27. Even on merits, we find that there; was no justification for the Commission to have awarded an amount of Rs. 30,00,000 (Rupees Thirty Lac) as reimbursement of the price of the plot measuring 60ft x 90ft on a. hypothetical basis even when the case of the JDA was that what was offered to the complainant was a plot size of 40ft x 60ft for which too, the complainant had failed to deposit the amount within the time prescribed. In any case, as has been reflected in the preceding paragraphs of this judgment, the complainant had never made a prayer for reimbursement of the value of the plot of land allegedly denied to the complainant, therefore, there was no justification for the Commission to make any such award in favour of the complainant. 28. Reference in this regard can be made to 1999 ACJ, 939 whereby the Apex Court held that the total amount awarded cannot exceed the total claimed amount. This view was taken by the Apex Court even when the provisions of the Motor Vehicles Act, dealing with award of compensation has been held to be a piece of welfare legislation. 29. The other major item of award was compensation to the tune of Rs. 5,00,000/- (Rupees Five lad), which was awarded in aggregate on account of physical, emotional and mental torture as well as pecuniary loss undergone by the complainant. Statement of doctors among others was relied upon to show that stress and mental tension could cause renal failure, which, in the present case, the complainant is said to have suffered leading to kidney transplant. 30. While the complainant might have suffered such a renal failure and received kidney transplant yet, we are unable to persuade ourselves to subscribe to the commissions' theory that such a transplant was necessitated only on account of the failure on the part of the respondents to allot a plot of land in the Roop Nagar Housing Colony. 30. While the complainant might have suffered such a renal failure and received kidney transplant yet, we are unable to persuade ourselves to subscribe to the commissions' theory that such a transplant was necessitated only on account of the failure on the part of the respondents to allot a plot of land in the Roop Nagar Housing Colony. There is no specific evidence on record, which would necessarily interlink the issue of the allotment of a plot to the medical condition suffered by the complainant. 31. Notwithstanding the observations made hereinabove, it appears that the complainant had -deposited an amount of Rs. 4,000/- as earnest money and also asserts that he has deposited 20,000 by way of a bank draft. Records produced before us show that there are some entries, which show that such a draft was deposited although the case of the JDA was that it was never credited into their account yet since receipt is not denied, the onus lay on the JDA to prove that the same had not been credited into their accounts. 32. Section 102 of the Evidence Act., Svt. 1977 is relevant and reproduced as under: “102. On whom burden of proof lies. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.” 33. During the course of arguments, learned counsel for the appellant suggested that the complainant-respondent should negotiate with the JDA for a lesser amount than the one awarded by the Commission, This court was not averse to any such negotiations notwithstanding the fact that the issue of limitation was not raised by the counsel for the appellant but was highlighted by this court during the course of arguments. 34. On the principles of Section 102 mentioned supra, it was the JDA, who ought to have discharged the onus that the bank draft though received was never credited into the account of the JDA, which onus the JDA has failed to discharge. Since during the course of arguments, learned counsel for the appellant did make an offer for negotiations with the complainant, we feel that it would be in interest of justice that an amount of Rs. 24,000/- (Rs. 4000/- as earnest money and Rs. 20,000/- deposited vide bank draft dated 29.10.1985) be refunded to him. 35. Since during the course of arguments, learned counsel for the appellant did make an offer for negotiations with the complainant, we feel that it would be in interest of justice that an amount of Rs. 24,000/- (Rs. 4000/- as earnest money and Rs. 20,000/- deposited vide bank draft dated 29.10.1985) be refunded to him. 35. We accordingly allow this appeal and modify the order passed by the Commission to the extent that the complainant-respondent would be entitled to receive a refund of Rs. 24,000/- (Rupees Twenty Four Thousand) along with interest @ 7% per annum as under: a) Rs. 4.000/- @ 7% interest p.a w.e.f., 1.1.1979, b) Rs. 20,000/- @ 7% interest p.a w.e.f., 1,1.1987. The amount would be paid within one month from the date of this order. 36. Disposed of accordingly.