Himachal Pradesh Housing And vs Ishwar Dev Bhandari
2023 Latest Caselaw 15837 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH AT
                          SHIMLA




                                                               .
                                  LPA No.176 of 2023





                                  Decided on: 10.10.2023

          Himachal Pradesh Housing and
          Urban Development Authority                      ...Appellant





                                  Versus

          Ishwar Dev Bhandari                              ...Respondent
    Coram


    The Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice
    The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge


    Whether approved for reporting?
    For the appellant:      Mr. Gobind Korla, Advocate.
    For the respondent:     Mr. Ankush Dass. Sood, Senior Advocate
                            with Mr. Kush Sharma, Advocate.



    M.S. Ramachandra Rao, Chief Justice (Oral)

This LPA is preferred against the judgment dt. 10 th

August, 2023 passed by the learned Single Judge in CWP no.1109

of 2023.

2. The background facts are that the appellant invited

applications for the allotment of the residential plots on 12.10.2006

for which the respondent applied, and allotment was made on

08.05.2007/17.07.2007 of a plot in favour of the respondent.

3. Thereafter, vide Annexure P-4 dt. 16th September,

2011, the appellant offered possession of the plot subject to

payment of certain deferential amount of Rs.3,78,364/- within 45

days and it was mentioned therein that the possession of plot was

.

given to the respondent only after payment of this amount, if not,

he would be liable to pay penal interest on delayed payments and

also watch & ward charges as per Clause 20(vi) of the brochure.

4. This was questioned by the respondent before the

District Consumer Disputes Redressal Forum, Solan, District

Solan, H.P. by filing Consumer Complaint no.307/2013. In the

said complaint he also sought delivery of possession of plot

immediately with a direction to the appellant to pay interest @ 18%

per annum on the amount of Rs.20,07,709/- already deposited by

him on 20.02.2010 and also Rs.5,00,000/- as compensation for

mental harassment.

5. After contest, the District Consumer Disputes

Redressal Forum, Solan, upheld P-4 order dt. 16 th September, 2011

and directed the respondent to deposit the differential amount of

Rs.3,78,364/- within 30 days from the date of its order and directed

the appellant to handover the possession to the respondent within

30 days. It also directed the payment of interest @ 9% per annum

by the appellant to the respondent on the deposited amount from

22.02.2010 till the possession of plot is delivered to the respondent.

The respondent was also held entitled to Rs.25,000/- as

compensation towards mental harassment besides Rs.3,000/-

.

towards litigation charges.

6. After the said order was passed by the District

Consumer Disputes Redressal Forum, Solan on 23.11.2017, the

respondent deposited on 12.12.2017 the differential amount of

Rs.3,78,364/-.

7. The appellant however assailed the order of the

District Consumer Disputes Redressal Forum, Solan, dt 23rd

November, 2017, before the H.P. State Consumer Disputes

Redressal Commission, Shimla in the First Appeal no.265/2018 as

regards the direction of the said Forum to pay 9% interest per

annum to the respondent on the deposited amount w.e.f.

22.02.2010, compensation of Rs.25,000/- and payment of costs of

Rs.3,000/-.

8. The H.P. State Consumer Disputes Redressal

Commission, Shimla allowed the appeal on 02.12.2019 on all these

three aspects and modified the order of the District Consumer

Disputes Redressal Forum, Solan.

9. Thereafter, the appellant issued Annexure P-8, demand

notice dt. 28th February, 2023 to the respondent demanding watch

& ward charges up to 28.02.2023 of Rs.6,19,238/-, GST thereon of

Rs.1,11,463/- and also charges for not making construction

.

amounting to Rs.7,48,150/- in all Rs.14,78,851/-. Prior thereto, it is

alleged that the appellant had also issued Annexure P-9, demand

notice dt. 10th February, 2020, demanding watch & ward charges,

GST thereon and charges for non-construction amounting to

Rs.8,80,000/-, which the respondent denies receipt.

10. Assailing these two demand notices Annexures P-8 &

P-9, the respondent approached this Court by filing CWP no.1109

of 2023.

11. The learned Single Judge allowed the Writ petition and

set aside both the demand notices Annexures P-8 & P-9 and

directed the appellant to handover the possession of the plot in

question to the respondent forthwith.

12. Assailing the same, this appeal is filed.

13. As regards the reasoning of the learned Single Judge

qua the charges regarding watch & ward up to 28.02.2023 apart

from GST thereon and charges for non-construction up to

31.05.2023 is concerned, we are of the opinion that liability to pay

watch & ward charges would fall on the respondent only from

16.09.2011 till 12.12.2017 when the respondent did not pay the

differential amount of Rs.3,78.364/- and when its challenge thereto

before the District Consumer Disputes Redressal Forum, Solan,

.

failed on 23.11.2017, but after the said amount had been deposited

on 12.12.2017, it was the duty of the appellant to deliver

possession of the plot in question, particularly when its appeal was

on other grounds and not with regard to aspect of the delivery of

possession as directed by the District Consumer Disputes Redressal

Forum, Solan in its order dt. 23rd November, 2017.

14. Likewise, there could not have been levy of GST on

the watch & ward charges up to 28.02.2023 or levy of any charges

for not making of construction by the respondent up to 31.05.2023

because admittedly possession of the plot in question has not been

delivered by the appellant even today. Without delivering

possession of the plot in question to the respondent, the appellant

cannot claim charges for non-construction by the respondent.

15. Accordingly, the appeal is partly allowed. The order of

the learned Single Judge is modified and the respondent is directed

to pay watch & ward charges for the period 16.09.2011 to

12.12.2017 on account of delay in payment of same by the

respondent alongwith GST thereon from 01.07.2017 to 12.12.2017.

The appellant shall inform the respondent of the amount payable as

per the above directions within two weeks from today and within

two weeks thereafter, the respondent shall make the said payment

.

without fail. On such payment being made, possession of the plot

in question shall be handed over to the respondent by the appellant.

The appellant shall also execute a sale deed subject to completion

of formalities by both the parties.

16. Pending miscellaneous application(s), if any, also

stand disposed of r ( M.S. Ramachandra Rao )

Chief Justice

( Jyotsna Rewal Dua ) Judge

October 10, 2023 (vt)