Dismissed

Ram Sarup Chauhan v. Housing Board, Haryana and Others

Punjab & Haryana HC23 Apr 2013CWP/12398/2012

Case brief

AI extract

What is this about?

This order dismisses two writ petitions concerning non-allotment of houses by the Haryana Housing Board. The court held that the High Court should not exercise extraordinary jurisdiction to entertain the petition filed after a long delay, as the petitioner had an undisputed statutory remedy under the Haryana Housing Board Act which he failed to avail, and the financial loss had already been addres

What did the court decide?

The petitions were dismissed, but it was noted that petitioners remain open to avail their alternative remedy of appeal or revision under the Act.

Ram Sarup Chauhan Vs Housing Board… — Pension and Retirement Benefits | Punjab & Haryana HC (2013)

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C.W.P. No. 12398 of 2012 and anr. -1-

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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C.W.P. No. 12398 of 2012

Ram Sarup Chauhan

... Petitioner

Versus

Housing Board, Haryana and another

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....Respondents

¶9

C.W.P. No.12527 of 2012

Ravinder Veer Hooda

... Petitioner

Versus

Housing Board, Haryana and another

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....Respondents

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Date of Decision: April 23, 2013

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CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE AMOL RATTAN SINGH

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Present: Mr. Sanjeev K. Tamak, Advocate, for the petitioners.

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Mr. Durgesh Aggarwal, Advocate, for the respodnents.

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SATISH KUMAR MITTAL, J.

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This order shall dispose of CWP No.12398 and 12527 of 2012 in which common question of facts and law is involved.

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For facility of reference, the facts are extracted from CWP No.12398 of 2012.

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In this petition, the petitioner is challenging the letter dated 9.10.2002 (Annexure P-2), whereby the respondent-Housing Board, Haryana had intimated to the petitioner that he was unsuccessful in the draw

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C.W.P. No. 12398 of 2012 and anr. -2-

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of lots held on 26.9.2002 and he had been placed in the waiting list which was prepared as per the terms and conditions of the brochure. Further, the petitioner had been asked to give his option either to get refund of the earnest amount paid by him or to remain in the waiting list for allotment of the house in future.

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After notice and the written statement filed by respondents No.1 and 2, we have heard the learned counsel for the parties.

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In the year 2002, the Housing Board, Haryana through brochure invited applications for allotment of built up single storey houses of different categories on Hire Purchase basis at Kurukshetra and Rohtak. The petitioner applied for a LIG house of Type I category and deposited Rs.75,400/- as earnest money. There were 30 number of houses of Type I category. It is the case of the petitioner that the respondent-Housing Board received less number of applications in the said category, but in spite of that, instead of allotting the houses to all the applicants, the respondentHousing Board had prepared a separate waiting list in that category and kept the name of the petitioner in the waiting list. The said waiting list was prepared under Clause 6(5) of the Mode of Allotment, which provides that a waiting list to the extent of 25% of the total number of units shall also be prepared by draw of lots which shall remain operative/valid for a period of six months from the date of draw of allotment of house numbers and the validity of the said waiting list was six months, and an option was to be sought from the person on waiting list either to take refund of the earnest money or to remain in the waiting list for future allotment. Accordingly, the respondent-Board, vide impugned letter dated 9.10.2002, sought an option from the petitioner as to whether he wanted to take refund of the earnest

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C.W.P. No. 12398 of 2012 and anr. -3-

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money or to remain in the waiting list for allotment of the house in future.

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Feeling aggrieved against the non-allotment of the house and above action, the petitioner filed a complaint before the District Consumer Disputes Redressal Forum (hereinafter referred to as `the District Consumer Forum') claiming that when the number of applications received were less than the number of houses advertised, then he should have been allotted the house in the applied category, and the respondent-Board should not have prepared the waiting list. The District Consumer Forum partly allowed the complaint vide judgment dated 29.6.2004 (Annexure P-5) and directed the respondent-Board to refund the earnest money of the petitioner with interest @ 10% per annum from the date of draw of lots till realization. The said order was directed to be complied with within 30 days, failing which the penal action under Section 17 of the Consumer Protection Act would be taken against the respondent-Board.

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Undisputedly, the petitioner did not challenge the aforesaid order. On the other hand, the respondent-Board challenged the part of the said order qua awarding of interest by filing an appeal before the State Consumer Commission. During the pendency of the appeal, the respondentBoard in compliance with the said order refunded the earnest amount along with interest through cheque No.476301 dated 7.1.2005. The said amount was accepted by the petitioner.

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After seven years, the appeal filed by the respondent-Board was allowed by the State Consumer Disputes Redressal Commission vide judgment dated 13.6.2011, the impugned order passed by the District Consumer Forum was set aside and the matter was remanded to the District Consumer Forum on technical ground that the order passed by the District

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C.W.P. No. 12398 of 2012 and anr. -4-

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Consumer Forum was only signed by the President alone and later on he got the signatures of the other Member of the Forum, which is in violation of Section 14(2)(a) of the Consumer Protection Act.

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Thereafter, the District Consumer Forum, after hearing both the parties, dismissed the complaint of the petitioner being not maintainable as the petitioner was not falling under the definition of `Consumer', and instead of challenging the said order by filing an appeal, the petitioner preferred the instant writ petition challenging the impugned letter dated 9.10.2002 written by the respondent-Board.

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In the written statement, the respondents have specifically taken the objection that under Section 72A and 72B of the Haryana Housing Board Act, 1971 (hereinafter referred to as `the Act'), the petitioner is having statutory remedy of appeal and revision against the impugned letter/order dated 9.10.2002. Section 72A of the Act provides the remedy of appeal to an aggrieved person against an original or appellate order of any officer, Chief Administrator or Chairman under the Act or any rule or regulation made thereunder. Every such person can prefer an appeal within a period of thirty days from the date of communication of the order. The Appellate Authority has also been empowered to entertain the appeal after the expiry of the period of limitation if it considers that the appellant was prevented by sufficient cause from filing the appeal in time. Section 72B further provides for a revision before the Government. The Government may either suo moto or on an application filed by a party can call for and examine the record of any proceeding or decision or order passed by the Board, Chairman, Chief Administrator or officer of the Board for the purpose of satisfying itself as to the legality or propriety of any decision or

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C.W.P. No. 12398 of 2012 and anr. -5-

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order passed, and can modify, annul or reverse such order after giving the affected person an opportunity of hearing. The respondents have taken the stand that in case the petitioner is aggrieved against the order passed by the respondent-Board, whereby his name has been kept in the waiting list, which, according to the respondents, was drawn in view of Clause(5) of Condition No.6 of the brochure, he should have availed the aforesaid alternative remedy, and the writ petition filed by him after 10 years, should not have been entertained on the ground of delay and laches.

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After hearing the learned counsel for the parties and in the facts and circumstances of the present case, we are not inclined to entertain this petition in exercise of extra ordinary jurisdiction of this Court. It is undisputed position that the petitioner was satisfied with the order dated 29.6.2004 passed by the District Consumer Forum, whereby the complaint filed by the petitioner was partly allowed and the respondents were directed to refund the earnest amount along with interest @ 10% per annum from the date of draw of lots till realization. It is further undisputed position that in view of the said order, the earnest amount paid by the petitioner to the respondent-Board was refunded with 10% interest. Though subsequently on an appeal filed by the respondent-Board the order of the District Consumer Forum was set aside and the matter was remanded to the District Consumer Forum, and ultimately vide order dated 30.3.2012 the complaint filed by the petitioner was dismissed, but prior to that, the earnest amount paid by the petitioner was refunded to him with interest.

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During the course of hearing, learned counsel for the petitioner pointed out that after decision of the District Consumer Forum dismissing the complaint of the petitioner, the respondent-Board has filed an

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C.W.P. No. 12398 of 2012 and anr. -6-

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application under Section 27 of the Consumer Protection Act for recovery of the interest amount which was paid to the petitioner in the year 2005 in pursuance of the order dated 29.6.2004 passed by the District Consumer Forum. When this fact was confronted to the learned counsel for the respondents, he, on instructions from the respondents, stated that the respondent-Board will not pursue that application and will withdraw the same before the District Consumer Forum.

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In view of the said stand taken by the respondents, in our view, the earnest amount paid by the petitioner already stood refunded to him with interest as per the initial order passed by the District Consumer Forum. In case the petitioner is still having any grouse, he may challenge the action of the respondent-Board in not allotting the house to him by filing appeal under Section 72A or revision under Section 72B of the Act. In these facts, we are not inclined to entertain this petition after ten years of the said action, particularly when the petitioner has statutory remedy of appeal and revision against the impugned letter/order, which he has not availed.

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In view of the aforesaid, the petitions are dismissed. However, it will be open for the petitioners to avail their alternative remedy of appeal or revision under the Act, in accordance with law.

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(SATISH KUMAR MITTAL) JUDGE

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April 23, 2013 ( AMOL RATTAN SINGH ) vkg JUDGE

Ram Sarup Chauhan v. Housing Board, Haryana and Others

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Ram Sarup Chauhan v. Housing Board, Haryana and Others

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