22 November 2004
Supreme Court
Download

HUDA Vs BABESWAR KANHAR

Bench: ARIJIT PASAYAT,S.H. KAPADIA
Case number: C.A. No.-007522-007522 / 2004
Diary number: 11533 / 2004
Advocates: Vs RESPONDENT-IN-PERSON


1

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2  

CASE NO.: Appeal (civil)  7522 of 2004

PETITIONER: HUDA and Anr.

RESPONDENT: Dr. Babeswar Kanhar and Anr.

DATE OF JUDGMENT: 22/11/2004

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T                  

O R D E R

               (Arising out of S.L.P.(C) No.12371 of 2004)

ARIJIT PASAYAT, J.

       Leave granted.   

       The controversy in this appeal lies within a very narrow compass.  The  respondent No.1 applied for allotment of a plot in response to an advertisement  issued by the Haryana Urban Development Authority (in short ‘HUDA’).  The  application was for allotment of a residential plot measuring 250 square yards,  and deposit of Rs.46,625/- was made on 26.12.2000. The HUDA intimated  respondent No.1 by letter dated 30.10.2001 that plot No.2205 in Sector 65,  Faridabad has been alloted to him.  The respondent No.1 purportedly, on the  basis of Clause-4 of the letter, sent a registered letter on 28.11.2001, intimating  HUDA that he is not interested in accepting the allotment.  The letter was  received on 03.12.2001 by HUDA.  Referring to Clause-4 of the letter, HUDA  directed forfeiture of the earnest money deposited.  A complaint under Section 12  of the Consumer Protection Act, 1986 (in short ‘the Act’) was lodged by  respondent No.1 before the District Consumer Disputes Redressal Forum,  Faridabad (in short the ‘District Forum’).  By order dated 31.03.2003, the District  Forum directed refund of the amount deposited along with 12% interest with  effect from the date of deposit till realisation.  The matter was carried in appeal  before the State Consumer Disputes Redressal Commission, Haryana,  Chandigarh (in short the ‘State Commission’) by HUDA.  By order dated  09.06.2003, the State Forum reduced the interest to 10% but otherwise affirmed  the order of the District Forum.  The matter was carried in revision before the  National Consumer Disputes Redressal Commission (in short the ‘National  Commission’).  By the impugned order dated 04.02.2004, the revision has been  dismissed.           Learned counsel for the appellant-HUDA submits that there was clear  stipulation about forfeiture in case the intimation regarding non-acceptance is  not given within 30 days. Therefore, according to him, the forfeiture was in order  and the direction for refund within interest is not sustainable in law.          The respondent No.1, who appears in person, submitted that the non- acceptance was conveyed by letter dated 28.11.2001.  The HUDA office was  closed on 01.12.2001 and 02.12.2001.  30.11.2001 was a postal holiday and,  therefore, on the next day after the closure period, i.e. 03.12.2001, the letter was  served on HUDA and  therefore the orders of the Forums below do not suffer  from any infirmity.         What is stipulated in Clause-4 of the letter dated 30.10.2001 is a  communication regarding refusal to  accept the allotment.  This was done on  28.11.2001.  Respondent No.1 cannot be put to loss for the closure of the office of  HUDA on 01.12.2001 and 02.12.2001 and the postal holiday on 30.11.2001.  In  fact he had no control over these matters.  Even the logic of Section 10 of the

2

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2  

General Clauses Act, 1897 can be pressed into service.  Apart from the said  Section and various provisions in various other Acts, there is the general  principle that a party prevented from doing an act by some circumstances  beyond his control, can do so at the first subsequent opportunity (see Sambasiva  Chari V. Ramaswami Reddi (1898) (8) Madras Law Journal 265).  The  underlying object of the principle is  to enable a person to do what he could have  done on a holiday, on the next working day.  Where, therefore, a period  is  prescribed for the performance of an act  in a court or office, and that period  expires on a holiday, then the act should be considered to have been  done within  that period if it is done on the next day on which the court or office is open.  The  reason is that law does not compel the performance of an impossibility.  (See  Hossein Ally V. Donzelle) ILR 5 Calcutta 906).  Every consideration of justice  and expediency would require that the accepted principle which underlies Section  10 of the General Clauses Act should be applied in cases where it does not  otherwise in terms apply.  The principles underlying are lex non cogit ad  impossibilia (the law does not compel a man to do the impossible) and actus  curiae nemi nem gravabit (the act of Court shall prejudice no man). Above being  the position, there is nothing infirm in the orders passed by the Forums below.   However, the rate of interest fixed appears to be slightly on the higher side and is  reduced to 9% to be paid with effect from 03.12.2001, i.e., the date on which the  letter was received by HUDA.

       The appeal is, accordingly, disposed of.