STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1.            ­State of Haryana through its Land Acquisition Collector, Estate, Sector 8, Kothi No.879, Panchkula.

2.            Chief Administrator, HUDA, 84, Mani Majra, Panchkula.

3.            Estate Officer, HUDA, Panipat.

……Appellants

V e r s u s

1. Dharam Chand, 2. Gopal Dass, 3. Murari Lal Sons of Sh. Kalu Ram R/o Krishna Colony, Model Town, Samalkha, District Panipat.              

 ....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE: HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT

               MRS. NEENA SANDHU, MEMBER.

               S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:          Sh. Ajay Kansal, Adv. for the appellants.

                   Respondents already exparte.

PER  JAGROOP  SINGH   MAHAL, MEMBER

                    This appeal was received by transfer from Haryana State Consumer Disputes Redressal Commission  under the orders dated 25.8.2010 of the Hon’ble National Commission and this is OPs’ appeal against the order dated 3.5.2007 passed by the learned District Consumer Disputes Redressal Forum Panipat, Haryana (hereinafter referred to as the District Forum) whereby the OPs were directed to allot only one plot of two Marla, to the petitioners, out of the oustees quota, in any developed Sector of HUDA, at Panipat (as each of the petitioner is not entitled to separate plots), on completion of legal formalities by the petitioner within a period of 15 days and the OPs were to comply with the order within 30 days and the petitioner was to pay the expenses, if any, as the rules permit.

2.                      Briefly stated, the complainants were owners of the land/constructed land measuring 638 Sq. yards situated at Patti Afgan comprised in Khewat No.112 Khatoni No.134, Khasra No.24 rectangle and killa numbers as mentioned in para no.1 of the complaint measuring 56 Kanal 9 marla i.e. 194/10161 share vide sale deed dated 10.9.1993. It was stated that the said property was the sole property of the complainants at Panipat and the same was acquired by the OPs. Thereafter the complainants personally contacted the OPs and they were directed by them for filling up the form and on priority the OPs would give plot of two marlas to each of the complainants from the oustees quota. The complainants filled up the form jointly in their name and deposited Rs.10125/-  with the OPs and fulfilled all the formalities but to no effect. Ultimately the complainants served legal notice upon the OPs and the OPs gave them assurance to give the plots in Sector 24, HUDA Panipat but to no result. Hence this complaint, alleging deficiency on the part of the OPs.

3.                      In their written reply the OPs took preliminary objection of maintainability, locus standi and estopple. It was stated by the OPs that they have informed the counsel for the complainant that the allotment of the plots under the oustees quota was under the hectic consideration and the final decision in the matter was likely to be taken by OPs and the same would be conveyed to the complainants. It was further stated by the OPs that allotment of the plots under the oustees quota is a policy matter and the policy of the OPs was to be executed in accordance with rules and all the complainants under the oustees quoa would be given plots as per their entitlement. So the pick and choose policy could not be applied in the case of complainants. Pleading that there was no deficiency in service on their part, a prayer was made for dismissal of the complaint.

4.                      Parties led evidence in support of their case. 

5.                      After hearing the ld. Counsel for the parties and on going through the evidence on record, the ld. District Forum allowed the complaint, as stated in the opening para of this order

6.                      Feeling aggrieved, the instant appeal has been filed by the appellants/OPs.

7.                      We have heard the ld. Counsel for the appellants/OPs and have perused the written arguments submitted by the learned counsel for the appellants/OPs.

8.                      This is a case in which the land of the complainants was acquired in the year 1993 but till 2006, when the present complaint was filed, the plot was not allotted to them though assurances had been given that they would be allotted the same under the terms of the policy.  The appellants/OPs have taken 13 years to decide as to what size of plot is to be allotted to the complainants.

9.                      It is not denied by the OPs that the complainants were the owners of the land measuring 638 sq. yards and the said land was acquired.  It is also admitted by the OPs, in preliminary objection No.4 of their reply, that all the complainants under the oustee quota would be given plots as per their entitlement simultaneously.  It was admitted in reply to para 3 that the complainants have applied for allotment of plots under the oustee quota and the process for allotment was under hectic (?) consideration and they would be informed accordingly.  Again in para 4 it was admitted that the complainants had filled the form for allotment of plots of 2 marla and their request would be considered according to oustee quota policy of HUDA and the matter was under process.  In this manner, the claim of the complainants was admitted by the appellants/OPs in the reply filed by them and it was undertaken that all the complainants would be allotted the plots under the policy.

10.                   The OPs actually decided to allot a plot vide their letter dated 28.11.2006 when the present complaint was pending before the ld. District Forum. The OPs asked for certain affidavits which the complainants were unable to procure and, therefore, they brought this letter to the notice of the ld. District Forum.  This fact further shows that the complainants were entitled to the plot and the OPs decided to allot the same.  However, the inordinate delay in allotting the plot could not be explained by the OPs in any manner, as to why they should sit over a simple application for 13 years and not allot the plot promptly.  Needless to mention that the delay in allotting the plots not only breeds corruption but also causes mental and physical harassment to the complainants who go on endlessly waiting for an allotment letter to be issued by the OPs and making rounds of their office or pursuing litigation in the Consumer Fora to get their rights enforced.

11.                   Even after admitting the entitlement of the complainants to the allotment of a plot and further issuing the letter dated 28.11.2006, in this respect, the ld. Counsel for the appellants has argued that, in fact, the complainants are not entitled to the allotment of plot on the ground that they had purchased the land in question on 10.9.1993 vide sale deed, copy of which is Annexure C-2, after the issuance of a notification under Section 4 of the Land Acquisition Act (hereinafter referred to as the Act).  The ld. Counsel submitted written arguments alongwith which certain documents have been produced, including the alleged notification which, according to the ld. Counsel, was issued on 2.3.1993.  The question for consideration would be as to whether the documents attached with the written arguments, which are not per se admissible and regarding which no mention has been made in the written reply or evidence, should be read in evidence or not?  Our answer to the above question would be in the negative.  These documents, now adduced with the written arguments, cannot be read in evidence firstly because these are not authenticated by any officer or authority to be true copies of the original.  Secondly, there is no affidavit of any authority, produced by the OPs, to prove if it is the same notification which was issued under Section 4 of the Act with respect to the land in question, owned by the complainants.  Thirdly, there was no such ground taken before the ld. District Forum that any such notification was issued by any such authority on 2.3.1993. Fourthly, there is no such plea in the written reply that the complainants were not owners of the land on the date of proposed acquisition and that in view of the policy they were not entitled to the allotment of a plot.  Last, but not the least, there is not even a request made by the OPs, even before us, for admitting these documents as additional evidence.  We are, therefore, of the opinion that the documents, attached with the written arguments, cannot be read in evidence.

12.                   The OPs did not produce any evidence before the ld. District Forum as to on which date the notification under Section 4 of the Act was issued by them.  It, therefore, cannot be said if the complainants purchased the land after the issuance of the said notification.  The OPs did not produce before the ld. District Forum, the policy issued by them for the allotment of the plots.  It, therefore, cannot be said that a person, who purchases land after the issuance of notification under Section 4 of the Act, would not be entitled to the allotment of the plot under the said policy. Otherwise also, issuance of a notice under Section 4 of the Act does not divest the owner of his rights to sell the land nor such a prospective purchaser is barred from acquiring ownership rights in the land purchased after the issuance of notice under Section 4 of the Act.  The mere fact that the complainants purchased this piece of land even after the issuance of the said notice would not be enough to deny the allotment of plots to them. This argument, advanced by the ld. Counsel for the OPs, is, therefore, not only without any evidence, but legally also it is not maintainable.

13.                   The OPs took an objection that the complainants are not consumers. We do not find any merit in it.   It is not disputed that the complainants had applied for plot under their policy in view of which they are entitled to the allotment of a plot in accordance with the size of the holding owned by them and acquired by the OPs.  The allotment letter shows that they were to deposit price of the plot with the OP and it is not being granted free to them.  A similar question arose in case of Lucknow Development Authority Vs. M.K. Gupta, III(1993) CPJ 7(SC) as to whether an applicant who has applied for allotment of a plot with an authority is a consumer or not and the same was answered in affirmative.  The Hon’ble Supreme Court held that Section 2(1) (d) applied to any service made available to potential users.  In other words service which is not only extended to actual users but those who are entitled to use it are covered in the definition and the clause is very wide and extends to any or all actual users.  The said authority was followed by the Hon’ble National Commission in case of Karnail Kaur Vs. PUDA I(2005) CPJ 48 (NC)   in which case an oustee, under similar circumstances as in the present case, had applied for the allotment of plot under oustee quota.  The Hon’ble  National Commission held as follows:-

Since (i) she had been potential allottee of the plot and as such though not actual user of service but who is capable of using it; (ii) she had already filed an application; and (iii) it could have been allotted to her but for change in policy, in view of the observations made hereinabove, the appellant would be a ‘Consumer’ under the definition. Consequently, on this point we confirm the findings given by the State Commission. 

We are therefore, of the opinion that an oustee, who has applied for the allotment of a plot under oustee quota and to whom a plot is to be allotted on payment of price is a consumer and the OP is a service provider.

14.                   The ld. counsel for the OPs also produced before us the allotment letter dated 15.5.2007 vide which the plot has already been allotted to the complainants.  His contention further is that this allotment letter was issued in order to comply with the impugned order passed by the ld. District Forum and not otherwise.  As mentioned earlier, the OPs admitted the complainants as owners of the land acquired and also admitted their right to be allotted the plot under their policy but took 14 years to issue this letter and even now they are saying that they would have taken a couple of more years to issue the letter had there not been any direction from the District Forum to allot the plot.  The perusal of the allotment letter, however, shows that it is not in accordance with the orders issued by the District Forum because at page 4 of the letter, some other names have been mentioned in it, though actually the allotment letter is to be issued only in favour of the complainants who were the exclusive owners of the land purchased by them vide Annexure C-2.  It is also argued by the ld. Counsel for the appellant that the complainants/ respondents have not deposited the amount as required vide para 5 & 6 of the letter.  The ld. Counsel, however, could not produce any postal receipt or acknowledgement to suggest that this letter was served on the complainants.  If the letter has not been sent or delivered so far, the question of depositing the desired amount does not arise.  Moreover, the sale price of the plot would be as was prevalent in 1993, when the land was acquired, and not as prevalent on the date of issue of this letter and the size of the plot would be that as provided under the policy. 

15.                   That above facts and discussion shows that not only there was inordinate delay on the part of the OPs in issuing the letter of allotment but their attitude towards the allottees had also been callous.  Sitting over a simple matter for 14 years cannot be justified by them. Even after admitting the complainants as owners of the acquired land, and their right to the entitlement of the plot, the OPs came forward to file this appeal.  They tried to introduce certain documents alongwith their written arguments which cannot be taken on record, being not per se admissible. They should issue fresh letter of allotment of the plot of the size as provided in their policy.

16.                   In view of the above discussion, we are of the considered opinion that there is no merit in this appeal and the same is accordingly dismissed with costs.  The OPs/appellants shall pay Rs.15,000/- to the complainants/respondents as costs of litigation

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

Pronounced.

23^rd August, 2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

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