STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
HARYANA PANCHKULA
Date of Institution: 29.11.2007
Date of Final hearing: 16.10.2024
Date of Pronouncement: 29.11.2024
Appeal No.360 of 2020 in
First Appeal No.3213 of 2007
IN THE MATTER OF:
- Haryana Urban Development Authority through its Chief Administrator, Sector-6, Panchkula.
- Haryana Urban Development Authority through its Estate Officer, Kurukshetra. ….Appellants
Versus
Avinash Kalra S/o Madan Lal Kalra, R/o H. No. 322/2, Mohalla Khatarwara Shahabad Markanda, Tehsil Shahbad Markanda, District Kurukshetra. …..Respondent
CORAM: Sh. Naresh Katyal, Judicial Member.
Sh. S.C. Kaushik, Member.
Argued By:- Mr. Ashwani Chaudhary, counsel for appellants.
Mr. S.K. Sharma, counsel for respondent.
NARESH KATYAL, JUDICIAL MEMBER
Consumer Complaint No.393 of 2006 titled as “Avinash Kalra Vs. Haryana Urban Development Authority and Another” was decided on 20.06.2007 by learned District Consumer Disputes Redressal Commission-Kurukshetra and same was partly allowed. Order dated 20.06.2007 was challenged by OPs/HUDA through First Appeal No.3213 of 2007 before this Commission, which was dismissed being rendered infructuous vide order dated 10.11.2009 of this Commission. Operative part of said order reads as under:-
“Since the impugned order passed by the District Forum had already been complied with by the appellant/HUDA, no further cause of action exists in favour of the appellant, hence the present appeal has rendered infructuous and it is dismissed as such.”
OPs/HUDA has/had further resorted its legal remedy by filing Revision Petition No.1034 of 2010 before Hon’ble National Consumer Disputes Redressal Commission-New Delhi, which was allowed vide order dated 17.07.2020. Order dated 10.11.2009 of this Commission earlier passed in First Appeal No.3213 of 2007 has been set aside and matter has been remanded back to this Commission for deciding said appeal on merits. Observation recorded by Hon’ble National Consumer Disputes Redressal Commission-New Delhi in para 5 of its order dated 17.07.2020 reads that: “In my opinion, the State Commission was not justified in dismissing the appeal solely on the ground that the order passed by the District Forum had been implemented. The execution proceedings having been initiated by the complainant against the petitioner and the appeal before the State Commission having not been filed by that time; the petitioner Authority had no option but to implement the order of the District Forum so as to avoid penal consequences which arise in case non implementation of the order of a consumer forum. In case the appeal is eventually allowed by the State Commission on merits, the petitioner may even be entitled to restoration by directing the respondent to refund the amount received from the petitioner with or without interest.” This is how, present appeal, on its remand has been re-registered as First Appeal No.360 of 2020 and same is now being disposed off.
2. As per complainant’s case; Residential Plot No. 1221-P, Sector-1, UE Shahabad measuring 300 Sq. mtr. was allotted to complainant’s father-Mohan Lal Batta in year-1991 (27.06.1991) and same was transferred/re-allotted to complainant vide re-allotment letter No. 18807 dated 28.09.1992. Total amount towards tentative cost has/had been paid. According to re-allotment letter, OPs were entitled to recover the balance, if any, with 10% simple interest from date of offer of possession and complainant was entitled to receive possession of plot within two years from date of allotment, but OPs have/had not offered possession up to 20.07.2006 i.e. after 15 years of allotment. As per plea; offer of possession vide letter dated 20.07.2006 is illegal, because construction on said plot cannot be raised due to electric pole and non-offer of possession. OPs received Rs.3,58,887.50 from complainant till 24.05.2006 and charged Rs.1,20,000/- in violation of terms and conditions of allotment/re-allotment letters. Conveyance deed is/was registered in favour of complainant on dated 29.05.2006, thereafter, complainant came to know that plot is of 311.25 Sq. Meter area, as disclosed by HUDA authorities at the time of execution of conveyance deed; however, no information regarding excess area was given to him up to 29.05.2006, which proves that HUDA has not offered possession till 15 years of allotment, therefore, complainant could not construct building and has to reside in rental premises and paid Rs.5.00 lacs as rent in that 15 years. Cost of construction has also escalated up to 400% in these 15 years and OPs charged illegal amount during this period and same has/had been deposited by him, under protest to which he is entitled to refund. He moved application dated 10.06.2006 with photographs of electric pole for depicting clear picture of plot, but OPs have not considered it, which as per plea; prove its glaring deficiency in service. Complainant, time and again requested OPs for actual physical possession at spot, but no physical possession was given to him. In complaint he has prayed for direction against OPs to deliver physical possession of plot with all amenities; to refund amount charged illegally with 18% p.a. interest; to pay 18% p.a. interest on total deposited amount from date of allotment till payment; to pay Rs. 5.00 Lacs as compensation for harassments etc.
3. OPs/HUDA raised contest. In its defence; it is pleaded that complainant has no locus standi to file and maintain complaint as plot No.1221-P was re-allotted on 28.09.1992 and complaint has been filed in 2006 i.e. after period of 14 years. Electric pole was in existence at the time of re-allotment in 1992 on berms of road, away from subject plot with horizontal distance of 4 feet 4 inch. Minimum distance as per I.E. Rules is 4 feet from building. Prompt action was taken on notice dated 10.06.2006 and report was asked from Electricity Wing of HUDA and spot was inspected. OPs further stated that physical possession has already been taken by complainant. Amount has been charged from him as per terms and conditions of allotment letter. After registration of conveyance deed; amount of increased area has been charged from allottee as per rules. It was fault of complainant/allottee, who neither got site plan sanctioned nor constructed building, till now. Possession was offered to allottee/complainant on 01.03.1996. There is no deficiency in service on part of OPs and prayer for dismissal of complaint has been made.
4. Parties led their evidence oral as well as documentary. Learned District Consumer Forum vide order dated 20.06.2007 has partly allowed the complaint by directing OPs to overhaul the account of complainant by charging 10% p.a. simple interest on balance amount from 01.03.1996 onwards and refund amount recovered excess with interest @10% p.a. from date of deposit till realization and to pay 10% p.a. interest on amount lying deposited with it (OPs) from 08.03.1993 to 29.02.1996. Feeling aggrieved, OPs/HUDA has filed appeal (F.A. No. 3213 of 2007) before this Commission.
5. On 16.10.2024; post remand of this matter from Hon’ble National Consumer Commission; we have heard arguments addressed by learned counsel for both parties at considerable length. With their able assistance; we have also minutely perused the record.
6. Learned counsel for appellants/HUDA has urged that: once complainant has been proved wrong, while asserting that possession has/had been offered to him vide letter dated 20.07.2006, whereas appellants offered possession to him, way back on 01.03.1996, (post re-allotment of subject plot to him on 28.09.1992), through registered communication along with 18 persons and he made no effort to get physical possession and construct building on subject plot, therefore, as per contention; on above facts, there is no relative merit in complainant’s case. It is urged that learned District Consumer commission has grossly erred while partly allowing the complaint through impugned order dated 20.06.2007.
7. Per Contra, learned counsel appearing on behalf of respondent has supported the impugned order dated 20.06.2007 by urging that it is the outcome of proper appreciation of facts and evidence by learned District Consumer Commission and same warrants no interference. It is urged that OPs/appellants have received excess payment from complainant and as such learned District Consumer Commission has committed no illegality by directing OPs/appellant to overhaul complainant’s account.
8. At this moment, while limiting our observations on merits of this appeal on posed question “as to whether the direction issued in impugned order dated 20.06.2007 sound credence at legal pedestal or not”; This Commission views that there is no fallacy on the part of learned District Consumer Commission-Kurukshetra while directing OPs/appellant to do the needful as per operative part (para 8 thereof) of impugned order. Reason in this regard is obvious. OPs/appellants have proved to have received excess amount from complainant. Tentative price of subject plot was Rs.1,57,740/- and it has escalated to Rs.2,50,000/- for the reason of paying enhanced compensation. Against this price; OPs/appellants/HUDA has admittedly received Rs.3,58,887/- from complainant despite having failed to develop the area of subject plot by providing basic civic amenities for five years reckoned from date (viz. 01.03.1996) regarding offer of possession of subject plot to complainant. OPs/appellants have illegally charged 18% compound interest from complainant, despite there being no default/delay on part of complainant, proved as such by OPs/HUDA/appellants through any evidence, while remitting amount to OPs/appellants actually due, with respect to subject plot. In case titled as Roochira Ceramics Vs. Haryana Urban Development Authority 2001(2) RCR (Civil) 617; Hon’ble Apex Court has held on interest component that authority is entitled to charge interest @ 10% only and not @ 18%, even when there is a default on the part of allottee in making payment of installment(s). This leading pronouncement of Hon’ble Apex Court has formed a formidable and acceptable base to non-suit HUDA/appellants, which has illegally charged 18% interest from complainant, even in the scenario, when it (HUDA/appellants) has miserably failed to prove any default on the part of complainant in paying amount towards cost of plot. In wake of above, it is held that impugned order dated 20.06.2007 passed by learned District Consumer Commission-Kurukshetra in complaint case No. 393 of 2006 being the outcome of meticulous appreciation of relevant facets of the case, is affirmed, maintained and upheld. Present appeal being devoid of merit is hereby dismissed.
Additional submissions on behalf of complainant/respondent post remand of the matter from Hon’ble National Consumer Commission:
9. Learned counsel for complainant has contended that too much of water has flown overhead, after decision of appellant’s appeal, earlier through order dated 13.07.2011. In this regard, it is urged that complainant has highlighted subsequent developments/events through his affidavit which was filed on 08.05.2021 through Misc. Application No. 54 of 2021. Through this application, documents Annexure R-1 to R-22 were sought to be brought on record. Copy thereof has already been supplied to counsel for appellant as is apparent from order dated 12.03.2021 of this Commission.
10. On force of these documents, learned counsel for complainant/respondent has urged that: earlier in compliance of order dated 20.06.2007 of learned District Consumer Commission; payment to complainant was made vide cheque No. 708164 dated 02.11.2007. Therefore, order of learned District Consumer Commission was implemented. In proceedings of appeal, earlier preferred by HUDA (F.A. No. 3213 of 2007) against order dated 20.06.2007; complainant was not served with notice of appeal, though responsibility was of appellants/HUDA to get him served as per order dated 22.09.2008. Appellants did not collect notices to serve complainant as per order dated 22.09.2008. In above situation, complainant remained under bona fide belief that no appeal has been preferred against order dated 20.06.2007.
11. It is urged that after two years of order dated 20.06.2007 of learned District Consumer Commission and almost after one year nine months of implementation of that order (compliance being dated 02.11.2007-the date of cheque of Rs.1,26,494/-); the complainant entered into an agreement to sell subject plot with one Asha Rani on 30.07.2009 for sale consideration of Rs.27,90,000/-. Only during complainant’s visit at the office of Estate Officer HUDA-Kurukshetra to know about the formalities to be completed after agreement to sell dated 30.07.2009, it came to complainant’s notice that appeal has been filed by HUDA before this Commission and it is fixed for hearing on 10.11.2009. Accordingly, on 10.11.2009 complainant (without having been served with notice) appeared of his own and apprised the Commission about implementation of order dated 20.06.2007 with amount of Rs.1,26,494/- having been paid to him. Accordingly, the then State Commission was pleased to dismiss the appeal as having become infructuous through its order dated 10.11.2009. He submitted application for grant of permission to transfer plot in question in office of Estate Officer, HUDA on 11.05.2010 along with requisite transfer fee. Transfer permission was not granted, purportedly for the reason that revision has been preferred before Hon’ble National Consumer Commission against the order dated 20.06.2007 of learned District Consumer Commission and order dated 10.11.2009 of this Commission.
12. Thereafter, complainant approached Chief Administrator, HUDA for compromise and refunded amount (Rs.1,26,494/- plus Rs.42,050/- - interest) and two separate bank drafts of this amount have/had been accepted by HUDA. He has also paid another cheque No. 013040 to HUDA of amount of Rs.3,000/-. His grievance is that due to non-according the permission to transfer of subject plot in favour of Asha Rani; complainant has also filed civil suit No. 300 of 2013 against HUDA for mandatory injunction and consequent relief of permanent injunction. This suit was decreed on 06.03.2014 and HUDA-appellant herein (respondents in said civil suit) has been directed to give necessary permission to transfer the plot to plaintiff within two months. HUDA has also been directed to refund the entire amount of Rs.1,71,544/- along with interest @8% p.a. from date of filing of suit. Said civil court decree dated 06.03.2014 was questioned by HUDA by filing Civil Appeal No. 55 of 2014. In said appeal counsel appearing for appellant-HUDA suffered statement in following terms:-
“In case, the respondent-plaintiff will submit a bank guarantee regarding the amount deposited by him with the Haryana Urban Development Authority, the deposited amount of ₹1,71,544/- will be refunded to the respondent/plaintiff and the transfer permission as applied will be issued in his favour. The amount refunded shall be subject to decision of the Revision Petition titled “HUDA Vs. Avinash Kalra” pending before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi. In case, the respondent-plaintiff or the subsequent purchaser will violate any policy or building bye laws of HUDA, the HUDA will take action as per law. However, in normal course, no interference in the peaceful possession and occupation of the plaintiff over the plot in question would be caused and there would also be no objection from the side of HUDA in case the construction is carried out after obtaining the permission/sanction from the HUDA. In view of this, the present appeal may kindly be disposed of”
13. Likewise counsel appearing for complainant (respondent in appeal) suffered following statement:-
“I have gone through the statement of learned counsel for HUDA/appellant. I have no objection if the present appeal is disposed of in view of statement made by learned counsel for the appellants-defendants.”
In view of above statements civil appeal has/had been disposed off on 23.07.2014.
14. Complainant encountered civil suit filed by Asha Rani, Ravinder Kumar and Renu Bala for claiming possession by way of specific performance of agreement to sell dated 30.07.2009. (Note: Ravinder Kumar and Renu Bala are the persons in whose favour complainant applied to HUDA for seeking transfer permission regarding subject plot.) In that civil suit also appellant/HUDA was/were arrayed as respondents No. 2 & 3. This suit was decreed against complainant vide decree dated 14.09.2015. Complainant preferred appeal against said judgment and decree which was dismissed on 15.03.2018 by First Appellate Court.
15. In wake of above factual situation, it is contended on behalf of complainant that HUDA/appellant is continuously sitting over issue of granting transfer permission, over 14 years which has caused mental agony, harassment to complainant and it would also project unfair trade practice on HUDA’s part. Learned counsel for HUDA/appellant, having already received above documents, could not put forward any meaningful objection viz-a-viz the contention on behalf of complainant for according permission to him to transfer the subject plot in favour of vendee- Renu W/o Ravinder Kumar and Ravinder Kumar S/o Roshan Lal on the foundation of agreement to sell, which was executed by complainant with Asha Rani and which contains express recital that second party to this agreement viz. Asha Rani can get the plot transferred either in her name or in the name of any person of her choice for which first party has no objection. However, it is urged by learned counsel for HUDA that for seeking permission to transfer subject plot in favour of Asha Rani; complainant needs to file fresh complaint.
16. These additional submissions on behalf of counsel for complainant and the sole objection of HUDA/appellants have been analysed by this Commission. Since contentions on behalf of complainant have been supported by documents, and those documents have been delivered to counsel for HUDA/appellant and further these documents show the subsequent developments which have taken place, post earlier decision of the appeal by this Commission through order dated 10.11.2009, therefore this Commission observes that the irony of complainant would be compounded majestically, in case, he is now made to file a fresh complaint for the purpose of seeking permission to transfer subject plot, for the reason, that long 14 years period have already passed since complainant had applied for permission for transfer of subject plot, way back on 11.05.2010 in favour of Renu W/o Ravinder Kumar and Ravinder Kumar S/o Roshan Lal. In any case, it is the statutory function of HUDA to accord necessary permission for transferring the subject plot to complainant. This act of HUDA would not be foreign to its obligatory duty in above context. More so, Civil Court at Kurukshetra in Civil Suit No. 300 of 2013 titled as Avinash Kalra Vs. HUDA and another has already granted decree against HUDA-appellant to grant necessary permission to transfer the subject plot. Further, HUDA has also been directed to amount of Rs.1,71,514/- with 8% p.a. interest to plaintiff Avinash Kalra (complainant herein). Learned counsel for HUDA could not show to this Commission through any document that aforesaid Civil Court decree dated 06.03.2014 has legally lost its light of day, having been set aside in any appeal. This being so, appellant HUDA cannot deny permission to complainant-Avinash Kalra so requested by him in his application dated 11.05.2010 to transfer this subject plot. Appellant/HUDA despite being not aloof of the documents relied upon by complainant, should have acted with realistic approach in order to curb any further litigation. After all, all litigations has to come at end at some point of time. The inept attitude of HUDA in delaying the grant of permission to transfer subject plot to complainant for long period of 14 years is ex-facie established, particularly when learned counsel could not justify any reason for withholding requisite permission for transfer of plot requested by complainant on 11.05.2010 for such an inordinately long period of 14 years. Obviously, HUDA has created sordid conditions for complainant to bear and made him to land him in a vulnerable state. Deficiency in service of HUDA towards complainant is established without doubt.
17. This being so, the additional submissions raised on behalf of complainant contain merits and same are accepted as there is no legal impediment to ignore the same being based on subsequent developments/events. HUDA-appellant is now directed to immediately accord necessary permission to complainant to transfer the subject plot No. 1221-P, Sector-1, Shahabad in pursuance to complainant’s application dated 11.05.2010. With aforesaid relief to complainant; this appeal preferred by HUDA, post remand of the matter from Hon’ble National Consumer Commission is hereby dismissed.
18. Statutory amount of Rs.25,000/- deposited by appellants at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
19. Application(s) pending, if any, stands disposed of in terms of the aforesaid judgment.
20. Copy of this judgment/order be provided to all parties, free of cost, as mandated by the Consumer Protection Act, 1986/2019. This judgment/order be also uploaded forthwith on website of this Commission for perusal of parties.
21. File of this appeal be consigned to record room.
Pronounced on: 29th November, 2024.
S.C Kaushik Naresh Katyal
Member Judicial Member
Addl. Bench Addl. Bench
