JAMMU DEVELOPMENT AUTHORITY Vs. JAG MOHAN WAZIR

JUDGEMENT

(1.) Jammu Development Authority ["JDA"] has invoked the extraordinary jurisdiction of this Court vested by Article 226 of the Constitution of India for quashing order dtd. 18/7/2019 passed by the Jammu and Kashmir State Consumer Disputes Redressal Commission, Jammu ["the Commission"] whereby order dtd. 4/5/2018 passed by the District Consumer Disputes Redressal Forum, Jammu ["the Forum"] has been upheld.

(2.) Before we advert to the grounds of challenge urged by Mr. Sachin Dogra, learned counsel for the petitioners, in support of his petition, we deem it appropriate to give a brief resume of factual antecedents leading to filing of this petition. Respondent No.1 instituted a complaint before the Forum on 29/7/2016 seeking, inter alia, a direction to the JDA to allot him a plot measuring 40"x80"at Bantalab Housing Colony, Phase-II ["the subject plot"] on payment of balance amount of Rs.77,400.00. It was averred in the complaint that, in response to an Advertisement Notice issued by the JDA which was published in the daily newspaper "Daily Excelsior" on 15/10/1993 for allotment of residential plots at Bantalab Housing Colony, Phase-II on Amb Gharota Road, respondent No.1 applied on the prescribed format for allotment of a plot by depositing the registration fee of Rs.8600.00 through demand draft. On 30/11/1993. the JDA vide its communication dtd. 8/1/1994 informed respondent No.1 that the subject plot would be allotted to him subject to the terms and conditions mentioned in the said communication. This was followed by another communication dtd. 2/6/1994 issued by the JDA to respondent No.1 to deposit the balance amount of Rs.77,400.00 representing 90% amount of the premium on or before 8/7/1994. Respondent No.1 was also warned that in case he would not deposit the amount on time, he would be liable to pay penal interest at the rate of 18% per annum. Respondent No.1 was also made known that it is only after he deposits the full amount, lease deed shall be executed and possession of the subject plot handed over to him. It was the complaint of respondent No.1 before the Forum that he visited the Bantalab Housing Colony where the subject plot was located and found that the proposed colony was yet to be developed and was without basic amenities like water and electricity. It was also averred by respondent No.1 that being in the service of Bank, he mainly remained outside Jammu and, therefore, could not deposit the requisite amount. It was claimed by respondent No. 1 that he approached the JDA for allotment of the subject plot in the year 2000 and 2007 by making written representations which were followed by legal notices served on JDA through Advocate on 4/2/2014 and 30/4/2016 but nothing fruitful was done. It is in the background of these allegations of deficiency of service, a complaint was filed before the Forum on 29/7/2016. The JDA contested the aforesaid complaint by presenting written version of its stand before the Forum. Apart from taking the plea that the complaint filed by respondent No. 1 was highly belated and time barred, the claim of respondent No.1 was also contested on merits. It was submitted that vide communication dtd. 8/1/1994, the JDA informed respondent No.1 that the subject plot shall be allotted to him provided he deposits 90% of the cost of plot by way of a bank draft pledged to VC, JDA within a period of six months from the date of issuance of the letter with a further stipulation that penal interest of 18% shall be charged in case of any delay in making the payment of premium. It was submitted that respondent No.1 did not deposit rest of the amount, though he was again reminded to deposit the balance payment vide communication dtd. 2/6/1994. It was, thus, contended by the JDA that in view of failure of respondent No.1. to pay the balance premium, no lease deed granting leasehold rights in favour of respondent No.1 qua the subject plot could be executed. To prove the complaint, respondent No.1 filed his own affidavit duly sworn in by way of evidence. No affidavit in evidence was filed by the JDA. The Forum accepted the version of respondent No.1 and allowed the complaint filed by him. Consequently, a direction was issued to the JDA to allot the subject plot in favour of respondent No.1 subject to payment of Rs.77,400.00.This was challenged by the JDA by way of an appeal before the Commission. The Commission, instead of addressing the appeal on merits, dismissed the same for non-prosecution vide order dtd. 18/7/2019. Both the orders i.e the order passed by the Forum dtd. 4/5/2018 and order of Commission dtd. 18/7/2019 dismissing the appeal of JDA for non-prosecution, are subject matter of challenge in this writ petition.

(3.) Having heard learned counsel for the parties and perused the material on record, we are of the view that the order passed by the Forum impugned in this petition is not sustainable in law. The plea of limitation specifically raised by the JDA in its written version, submitted in opposition to the complaint, has though been noticed, yet has not been decided by the Forum. On internal page No.5 of the impugned order, the Forum has noticed the argument of learned counsel for the JDA that the complaint, having been filed after lapse of 22 years after the cause of action, was barred by limitation. However, the Forum has ignored to consider the said plea for the reasons not discernible from the impugned order dtd. 4/5/2018.