MUNICIPAL COUNCIL Vs. DEEP SINGH

JUDGEMENT

(1.) THIS appeal is directed against the order dated 22. 3. 2002 passed by the District Consumer Disputes Redressal Forum, Sirsa whereby while accepting the complaint of the respondent-complainants direction has been given to the appellant-opposite party to pay the actual amount deposited by the complainants along with saving interest from the date of the institution of the complaint till realisation.

(2.) PUT shortly, the facts of the case as set out in the complaint briefly stated are that the complainants has purchased three plot Nos. 41, 74 and 75 in public auction after making the payment of Rs. 1,97,740 being 1/4th of the price of the said plots. In terms of condition No. 9 of the allotment letter, the possession of the plot was to be given to the complainants after approval of the auction. The complainants raised construction over the plot. The grievance of the complainants is that the opposite party did not remove the structure of old building of Civil Hospital, Sirsa with the result the vacant possession of the plot was not given to them. In addition, the opposite party had allowed the establishment of fruits and vegetable market and further permitted the installation of Khokas and Rehris in that area and thereby allowed encroachment of the area. Instead of taking action in this regard the opposite party passed the order of the resumption of the plots without giving opportunity of hearing and against the principle of natural justice. Forced by these circumstances, the complainants have challenged the validity of the resumption order by filing the civil suit. It was averred that the opposite party had admitted that the possession of the allotted plot had not been delivered to the complainants and for that reason a compensation amount of Rs. 1,00,000 along with refund of the amount of Rs. 1,97,750 with interest @ 18% per annum was claimed in the complaint. The complaint was contested by the opposite party. In the written statement filed it was pleaded that allotted plots had been carved out at a place known as old Civil Hospital, Sirsa and after establishing the new Municipal Market sale of the said plots was effected. It was further stated that the possession of the plot was never delivered to the complainants at the spot and had remained still with it. The other allegations of encroachment made by way of establishment of fruits and vegetable market by installation of Khokas and Rehris and construction of the taxi stand were denied. It was further stated that as the complainants had failed to make the payment of the instalments as per schedule of the payment, the opposite party had issued the notice to them and after complying with the procedure prescribed and affording opportunity of hearing to them the plots were resumed. The complaint was resisted on the ground that the complainants had filed a civil suit qua the same subject matter between the same parties which has already been dismissed and thereafter the complainants had also filed another civil suit for adjudication of the same dispute between the same parties which was pending in the Court of Civil Judge (Junior Division), Sirsa and for that reason the complaint was not maintainable. The other pleas of complaint being barred by limitation; locus standi and want to cause of action to file the complaint were also raised. Taking into consideration the respective stands of the parties and evidence adduced on record the District Forum accepted the complaint and issued the directions in its order dated 22. 3. 2002 to the extent noticed above. The District Forum did not grant any relief to the complainants. Aggrieved by the said order the appellant-opposite party has come up in appeal. Learned Counsel representing the parties have been heard at length.

(3.) AT the threshold of arguments it has been strenuously urged by the learned Counsel representing the appellant-opposite party that the dispute raised in the present complaint between the same parties stands adjudicated by the Civil Court and for that reason the District Forum had committed illegality in entertaining the complaint and on that account the order of the District Forum deserves to be set aside. During the course of arguments learned Counsel representing the respondent-complainants did not dispute that the complainants had earlier filed a complaint regarding the same subject matter claimed in the present complaint and that was dismissed as withdrawn without the permission of the Civil Court. It was also not disputed by him that the another Civil Suit No. 249 of 1995 dated 21. 10. 1995 titled Deep Singh and Ors. v. Municipal Council was also filed which was decided by the Civil Judge (Junior Division), Sirsa as per order dated 3. 9. 2002 and the said suit was dismissed with costs. Against the said order R. S. A. No. 1819 of 2006 titled 'deep Singh and Ors. v. Municipal Council, Sirsa has been filed in the Hon'ble High Court of Punjab and Haryana, which is still pending. In the civil suit filed by the complainants, they had challenged the order of resumption passed by the opposite party. In addition they had also taken up the plea that no development work had been carried out by the opposite party and even encroachment made had not been removed. The Civil Court also recorded a finding that in fact the possession of the allotted plot was delivered to the complainants at the time first instalment was paid and thereafter the complainants failed to raise construction over the same and thereby incurred the forfeiture of the deposited amount as per the conditions of the sale. The Civil Judge also recorded a finding that not even a single penny was paid by the complainants in respect of the above stated plots after initial payment of 1/4th price of the auction money and for that reason they were not entitled to the equity relief. Reliance was placed on the observations made in case of Devinder Singh Pannu and Ors. v. Chandigarh Administration and Ors. , 1998 HRR 93 (DB), wherein it was held that due to non-payment of the instalments, the Estate Officer exercised his powers of resuming the site as allottee had made a persistent default in payment of instalments and did not fulfill the terms and conditions of the contract and for that reason they were entitled to the concession from the Court. It was further observed that nobody should be allowed to enjoy public property without doing his duties such as payment of due instalments. It is clear from the record that the present Complaint No. 106 of 1999 came to be filed on 24. 3. 1999 while the Civil Suit No. 249 of 1995 was instituted on 21. 10. 1995. Therefore, at the time when the complaint was filed, the complainant was agitating the same dispute before the Civil Court regarding which he had raised the dispute in the complaint filed and for that reason the complainants were not entitled to invoke the jurisdiction of the District Forum by filing the complaint on 24. 3. 1999. All the above stated aspects have not been taken into account by the District Forum and for that reason the order of the District Forum suffers from patent illegalities and as such it cannot be sustained.