‘Every fact needs to be proved to support right being claimed’
Order passed by Consumer Forum against JDA set-aside
JAMMU, Mar 4: A Division Bench of the High Court of Jammu & Kashmir and Ladakh comprising Justice Sanjeev Kumar and Justice Puneet Gupta has held that ‘cause of action’ cannot be generated by making repeated representations and legal notices to the concerned authorities and every fact is required to be proved in order to support the right being claimed before the court.
The Division Bench was dealing with a Writ Petition filed by Jammu Development Authority (JDA) for quashing order dated 18.07.2019 passed by the Jammu and Kashmir State Consumer Disputes Redressal Commission whereby order dated 04.05.2018 passed by the District Consumer Disputes Redressal Forum, Jammu was upheld.
As per the facts presented before the court, in response to an Advertisement Notice issued by the JDA on 15.10.1993 for allotment of residential plots at Bantalab Housing Colony, Phase-II on Amb Gharota Road, respondent applied on the prescribed format by depositing the registration fee of Rs 8600.
The JDA vide its communication dated 02.06.1994 asked the respondent to deposit the balance amount of Rs 77,400 representing 90% amount of the premium on or before 08.07.1994. He 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 and lease deed shall be executed only after that. However, there was no compliance of the conditions by the respondent.
After prolonged delay, the respondent approached the JDA for allotment of the plot in the year 2000 and 2007 by making written representations which were followed by legal notices served on JDA on 04.02.2014 and 30.04.2016. Thereafter, the respondent filed a complaint before the District Consumer Disputes Redressal Forum alleging deficiency of service.
Consequently, the Forum directed the JDA to allot the plot in favour of respondent subject to payment of Rs 77,400. This was challenged by the JDA by way of an appeal before the J&K State Consumer Disputes Redressal Commission, which instead of addressing the appeal on merits, dismissed the same for non-prosecution vide order dated 18.07.2019.
After hearing the counsels for the parties and perusal of record, the DB said, “the order passed by the Forum is not sustainable in law. The plea of limitation specifically raised by the JDA was not decided by the Forum”.
The DB further said, the ‘cause of action’ is not something which can be generated by a party by making repeated representations or legal notices as the ‘cause of action’ would mean a situation or state of facts that entitles a party to maintain an action in a court of law or a Tribunal; a group of operative facts giving rise to one or more basis for suing; a factual situation that entitles one person to obtain a remedy in court from another person.
“The cause of action 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”, the DB said, adding “the legal notices issued by the respondent reiterating his request for allotment of plot which were not responded to by the JDA were issued only as a precursor to the filing of a complaint and with a view to generate fresh cause of action but such course of action is not permitted in law”.
“We are of the considered view that the Forum erroneously entertained a highly belated complaint filed by respondent particularly when there was no explanation tendered for such delay. As a matter of fact, the Forum did not advert to the issue of maintainability of complaint being barred by limitation”, the DB said.
“So far as the order passed by the Commission is concerned, it is trite law that the Commission, under the Jammu and Kashmir Consumer Protection Act, 1987 had no power to dismiss the appeal for non-prosecution. The Commission ought to have adjudicated the appeal on merits, rather than dismissing it for non-prosecution”, the DB said.
Accordingly, the DB allowed the petition of JDA and set-aside the impugned order passed by the Forum.
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