MRS. NEENA SANDHU, MEMBER

1.       This is an appeal, received by transfer from Haryana State Consumer Disputes Redressal Commission under the orders of Hon’ble National Consumer Disputes Redressal Commission, New Delhi filed by OPs against order dated 2.4.2007 passed by District Consumer Disputes Redressal Forum, Bhiwani (for short hereinafter to be referred as District Forum) passed in complaint case No. 50 of 2003.

2.       Briefly stated the facts of the case are that the complainant was allotted a 10 marlas plot bearing No.2132, Sector 13, HUDA, Bhiwani vide allotment letter bearing No. 7711 dated 16.6.1990. The tentative cost of the plot was Rs.1,02,432/- and the complainant deposited all the installment in time. It was submitted by the complainant that as per Clause 7 of the allotment letter, the OPs were bound to deliver the possession of the plot within 90 days after developing the area but the OPs failed to deliver the possession of the plot. The plot was allotted to the complainant in the year 1990 and the complainant deposited the whole amount of the plot and also deposited Rs.10,262/- as non-completion fee on 22.12.2002. On 17.10.2002 the complainant wrote a letter to the OPs for removal of wall of the disposal room, which was constructed in the plot of the complainant. On 25.10.2002 the OPs inspected the site from their J.E and J.E submitted his report in which it was submitted that the wall of the disposal room is situated in the plot of the complainant. It was submitted that the OPs illegally encroached the plot of the complainant and due to this reason, the complainant could not construct his house on the said plot. It was further alleged that there was no right upon the OPs to charge the enhanced cost of the plot from the complainant because till today, the OPs could not deliver the possession of the plot to the complainant. The above said act of OPs amounts to deficiency in service and hence, the complaint was filed.

3.       Reply was filed by the OPs in which OPs took preliminary objections regarding the maintainability of the complaint as the learned District Forum had no pecuniary jurisdiction to entertain and decide the complaint and the complainant had no locus standi to file the complaint in the learned District Forum. It was denied that the possession of the plot was to be given within 90 days from the date of allotment letter, rather it was to be offered after completing the development works in the area within reasonable time of the allotment and replied that the development work was completed within reasonable period and the possession of the plot was also offered to the complainant vide letter No.2656 dated 27.6.1994 but the complainant failed to take possession and to complete the construction within stipulated period and hence non-completion fee was rightly imposed upon the complainant. It was pleaded that the complainant deposited the non-completion fee on 22.12.2000 and not on 22.12.2002 as alleged by the complainant and replied that the complainant did not raise any objection before filing of the complaint. It was submitted that no construction of disposal room was found on the plot of the complainant and the OPs were ready to deliver the possession of the plot to the complainant but the complainant did not turn up to take the same. It was further pleaded that the cost of the plot mentioned in the allotment letter as tentative cost and could be increased at any time on account of price of land acquired for the purposes and as per terms and conditions of the allotment letter, the complainant was liable to pay the same. Hence, the OPs were ready to deliver the possession of the plot to the complainant as such there was no deficiency in service on the part of OPs and prayed for dismissal of the complaint with costs.

4.       The parties led their evidence in support of their contentions.

5.       The learned District Forum disposed off the complaint and directed the OPs to offer the possession of the allotted plot to the complainant after demolishing the wall of disposal room, if the same is not demolished till today. The OPs further directed to pay interest @ 10% p.a. on the deposited amount of the complainant after two years from the date of allotment letter till the date, when the offer of possession of plot in question offered to the complainant. Besides it, the OPs further directed to pay a sum of Rs.50,000/- as compensation on account of mental agony, harassment, hardships suffered by the complainant due to deficient and negligent act of OPs and costs of litigation of Rs.1,000/-. The order was directed to be complied withion two months from today, failing which the complainant also entitled to get interest @ 12% p.a. on the above said calculated awarded amount from the date of default till its final realization. 

6.          Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the OPs.  Sh.R.S.Madan, Advocate has appeared on behalf of appellants as none has appeared on behalf of respondent.

7.       In appeal, it was contended by the appellants/OPs that the learned District Forum has erred in not taking into consideration the submission of the appellants that the possession of the plot delivered vide letter dated 17.1.1994 to the respondent within stipulated period after the completion of the work but the respondent himself did not come forward to take the possession of the plot. Hence, there was no deficiency in service on the part of appellants. The learned District Forum failed to take into consideration that as per the allotment letter, the tentative cost of the plot was mentioned, which could be increased at any time on account of price of land acquired for the purposes. The enhancement in the cost of the plot has been made because of enhancement of compensation of the acquired land by the competent court. The learned District Forum has erred and have not taken into consideration that when in the year 1994 the possession of the plot was offered to the respondent and he did not come forward to take the possession then as per the terms and conditions, the appellants have rightly issue notice to impose the penalty. It is submitted by the appellants that the respondent deposited the non-completion fee on 22.12.2000, which shows that the appellants have made the offer of possession of the plot. The respondent did not raise any objection at any stage but just to harass the appellants with ulterior motive and filed the complaint. It is further submitted that no disposal room is constructed on the plot of the respondent. The learned District Forum has further erred in not taking into consideration that it is the respondent who have not come forward to take possession of the plot, hence the direction given by the learned District Forum to the OPs to pay interest, compensation as well as costs of litigation is not at all tenable, justifiable and sustainable as there is no deficiency in service on the part of appellants. Hence, it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside. 

8.       We have heard the learned counsel for the appellants and perused the record.

9.       After hearing the learned counsel for the appellant and having gone through the impugned order dated 2.4.2007 passed by the learned District Forum, it is an admitted fact that a plot bearing No.2132 in the year 1990 was allotted to the complainant and the complainant deposited the entire tentative cost of the plot. He complainant also deposited non-completion fee amounting to Rs.10,262/- with the OPs.

10.     As per the version of the complainant that although as per the clause no.7 of the allotment letter, the OPs were bound to deliver the possession of the plot within 90 days from the date of allotment but the OPs failed to do so even till the filing of the complaint, as the OPs wrongly and illegally constructed the wall of disposal room in the plot allotted to the complainant and the complainant in support of its contention has placed a photocopy of the letter bearing No.8392 dated 15.11.2002 as well as the report of the JE dated 25.10.2002.

11.          Whereas the OPs vehemently denied that there is no wall of disposal room which is constructed on the said plot as alleged by the complainant but the OPs have not produced any document to support their contention that there is no wall of disposal room in the said plot. Thus in the absence of any corroborated evidence, the contention made by the OPs regarding the non construction of the wall of the disposal room in the plot allotted to the complainant had no meaning. Therefore, in the absence of any document to counter the allegation made by the complainant, we are left with no option but to believe the contention of the complainant, who has filed his affidavit along with photocopy of letter No.8392 dated 15.12.2002 written by the Estate Officer, HUDA, Bhiwani to SDO, HUDA, Bhiwani in which it is categorically mentioned that the wall of the disposal room be demolished so that the possession of the plot could be delivered to its allottee i.e. the complainant. The complainant had also placed on record the photocopy of the report of the JE dated 15.11.2002 in which it is stated that the wall of the disposal room is constructed on the plot of the complainant. Therefore, we are of the view that the wall of the disposal room is in the plot allotted to the complainant and the OPs are at fault by charging non-completion fee of Rs.10,262/- from the complainant.

12.     The learned District Forum has rightly observed that there is a deficiency in service on the part of OPs and there is nothing wrong by directing the OPs to give the possession of the plot to the complainant after demolishing the wall of the disposal room, if the same is not demolished till today and by directing to pay interest @ 10% p.a. on the deposited amount of the complainant after 2 years from the date of allotment ill the date, when the offer of possession of the plot in question is offered to the complainant and by directing to pay a sum of Rs.50,000/- as compensation on account of mental agony, harassment and hardships suffered by the complainant along with costs of litigation of Rs.1,000/-.

13.     With the foregoing discussion, the appeal filed by the OPs is dismissed as devoid of any merit and we uphold the order passed by the learned District Forum. Therefore, the complaint is allowed and the parties are left to bear their own costs.

14.          Copies of this order be sent to the parties, free of charge.

Pronounced.                                                                        

15^th December, 2010.