Vs. Dr. Babeswar Kanhar and ANR  Insc 707 (22 November 2004)
Arijit Pasayat & S.H.
Kapadia O R D E R (Arising out of S.L.P.(C) No.12371 Of 2004) Arijit Pasayat, J.
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
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 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.