Haryana

Ambala

CC/225/2020

Ms. Yukti - Complainant(s)

Versus

Haryana Shahri Vikas Pradhikaran - Opp.Party(s)

Nikhilesh Bhagi

03 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	225/2020
Date of Institution	:	07.10.2020
Date of decision	:	03.05.2023

 

Ms. Yukti d/o Sh. Roshan Lal r/o H.No.175, Sector 1, Ambala City

……. Complainant

Versus

1. Haryana Shahri Vikas Pradhikaran formerly Haryana Urban Development Authority, Through Chairman /Chief Administrator, HSVP office, C-3 Sector 6, Panchkula.
2. The Estate Officer, Haryana Shahri Vikas Pradhikaran formerly Haryana Urban Development Authority, Office of Estate Officer, Sector 7, Ambala.

 

….…. Opposite Parties.

 Before:       Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member.

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Nikhilesh Bhagi, Advocate, counsel for the complainant.

                   Shri Arvind Goel, Advocate, counsel for the OPs.

         

Order:        Smt. Neena Sandhu, President.

 

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To deliver the possession of plot in question or to allot the alternative plot in lieu of plot no.86, Sector 32 Ambala in same sector or in any sector of Ambala with same specification;
2. To pay interest @ 15% p.a. on the deposited amount from the date of deposit till delivery of possession;
3. To pay Rs.4,00,000/- as compensation for deficiency in service, unfair trade practice and mental harassment suffered by the complainant;
4. To pay Rs.55,000/- as litigation expenses to the complainant
382.  

Grant any other award which this Hon’ble Commission may deems fit.

 

2.           Brief facts of this case are that the complainant wanted to construct her own house in Ambala Cantt. Office of the OPs was established to promote and secure development of urban areas in Haryana by using the acquired land for residential, recreational and commercial purpose. In the year 2004-05 the OPs carved out Sector 32, Ambala Cantt and sought applications for allotment of plots of different sizes in the above said sector. At the time of seeking application for allotment, the OPs assured the public that all sectors are free from all encumbrances and they shall provide possession and basic amenities to allottees after developing the roads, street light, sewerage, water etc. Plot no. 86 was earlier allotted to Sh. Tarun Chugh s/o Sh. Ashok Kumar, r/o Yamuna Nagar vide allotment letter no. 4431 dated 23-05-05. At the time of allotment, OPs also assured to deliver the possession of the above said plot at the earliest as possible after development of above said sector. In  the year 2010, the above said allottee applied for transfer of above said plot to Ms. Chand Rani w/o Sh. Anil Kumar r/o Ambala City and same were transferred in her name vide Re- allotment letter no. 11666 dated 30-08- 2010. In the year 2015, Ms. Chand wanted to sell her above said plot no. 86 sector 32, Ambala Cantt and the complainant Ms. Yukti who was in dire need of home and wanted to construct a house in Urban Sector 32, Ambala Cantt agreed to purchase the above said plot from Ms. Chand Rani. Before purchase of above said plot no. 86 Sector 32, the complainant visited office of the OPs to enquire about factual status of plot, where upon their officials assured the complainant that the above said plot is free from encumbrances and its possession will be delivered to her within 5-6 months. After enquiry and assurance from office of OPs, the complainant purchased the above said plot to construct home and same was transferred in her name vide Re-allotment letter no. Z0004/EO15/UE025/REALL/0000000058 dated 02-07-2015. After purchase and transfer of above said plot the complainant waited patiently for the possession as the same was to be delivered within 5-6 months from the date of re-allotment letter in her name but to no avail. In the month of September 2017 she visited the office of OPs and made written request for delivery of possession of plot no. 86, which was duly received by OPs vide receipt no. 27508092017-197537 dated 08-09-17. OP No.2 wrote a letter no. 2787 dated 06-11-17 to OP No.1 i.e. The Administrator, HUDA, Panchkula with a request to take decision for allotment of alternative plots to allottees of plot no. 86 and 87 Sector 32, HUDA Ambala due to non-completion of development works in Sector 32, Ambala Cantt for which Estate Officer HUDA Ambala had already sought permission vide letter office letter no. 259 dated 31-01-2017. Copy of letter dated 06-11-17 were also sent to the complainant and OPs requested the complainant to wait for some time as by that time department will allot alternative plot and shall deliver the possession of the same. The complainant believed the version of OPs and started waiting to receive a call/letter from OPs about the intimation of allotment of alternative plot and its delivery of possession. The complainant regularly contacted the OPs to know the exact status of the plot but to no avail. Even the complainant vide email dated 23-12-19 requested to deliver the possession of plot no. 86 or allot the alternative plot in same sector as per policy Letter of HUDA bearing MEMO no. U.B-A-6-20137934-57 dated 18.02.13 but no response has been received from OPs. On each visit to the office of the OP No.2 their officials told the complainant to approach OP No.1 i.e. office of Administrator HUDA as permission has to be given by it and as such the complainant left with no option except to visit the office of Administrator, HUDA. Complainant alongwith her father visited the OP No.1, where officials told them that matter is under consideration and alternative plot will be allotted to her very soon. After waiting for long period when no response was received from OPs, the complainant wrote a letter to Chief Minister, Haryana through CM Window, Ambala vide complaint no 077466 dated 15-07-19 and 143307 dated 24-12-19, where OP No.2 gave reply that alternative plot will be allotted after getting permission from Administrator HUDA Ambala and said complaint is pending since December 2019. The complainant has already paid entire amount of price of above said plot to OPs and nothing remains due from her but still she is empty handed. Even the complainant sent a legal notice dated 13-08-2020 to the OPs for delivery of possession or allotment of alternative plot, but the OPs failed to do so. Hence this complaint.
3.           Upon notice, the OPs appeared and filed written version and raised preliminary objections to the effect that the present complaint is not maintainable; the complainant has misstated the material facts and concealed material facts, from this Commission; the complaint of the complainant is not maintainable as per clause 15 of the re-allotment letter bearing memo no. 58 dated 02.07.2015 "All disputes and differences arising out of or in any way touching or concerning this allotment whatsoever shall be referred to the sole arbitration of the Chief Administrator or any other officer appointed by him and that the decision of such arbitrator shall be final and binding on the concerned parties; under Section 50 of HSVP Act, 1977, jurisdiction of the consumer commission is barred as such complaint is liable to be dismissed; Regulation 5(7A) of Haryana Urban Development (Disposal of Land & Buildings), Regulations, 1978 provide that the payment of installment(s) on due date is mandatory and in case the payment of installment(s) is not made on due date, interest at the rate as may be decided by the Authority from time to time shall be chargeable on the delayed payment of installment(s) irrespective of the fact whether the possession has been offered or not; because the complainant is reallottee, she is not a consumer. On merits, it has been stated that the complainant has relied on the brochure issued for the scheme and even in brochure under the head 'Other Notes' condition no. 10 made it clear that allottee may either seek refund or may wait but will not have right to claim an alternative plot. Thus, the complainant can either seek refund of the amount or she can wait for the development, as it is found that there is CWP No 16298 of 2003 titled as Gurbaksh Singh & others Versus State of Haryana & others is admitted and pending in the Hon'ble High Court on account of which development works cannot be carried out at this stage; the present complaint is completely time barred as re- allotment of plot was made on 02.07.2015 and it is alleged that possession request was given on 08.09.2017, whereas, the complaint has been filed only in the later part of the year 2020; that so far as prayer of the complainant to pay interest on deposited amount is not tenable. The complainant cannot claim interest or compensation as it will amount to double benefit and undue enrichment of complainant. The plot was originally allotted at rate of Rs.3,63,285/- whereas the rate of allotment fixed for year 2019-2020 by HSVP in Sector-32, Ambala is Rs,13,500 per square meters and considering the same, rate comes to Rs.18,22,500/- and current rate would be even more. Thus, the benefit of appreciation in value of the plot has occurred to the complainant. No possession interest has been charged from the original allottee or re-allottee. Therefore, complainant cannot claim interest or compensation in the matter.  The complainant at time of re-allotment submitted an affidavit dated 12.06.2015 deposing that she accept the terms and conditions relating to allotment of plot and shall abide by the provisions of HSVP Act, 1977, rules/ regulations and she will not raise any dispute about interest paid by transferor. Hence, she is estopped from raising the dispute now. The OPs is an authority constituted under section 3 of the HSVP Act, 1977 (Haryana Act no. 13 of 1977) for purpose of urban development and to secure objects under the HSVP Act, 1977, the OPs acquired the land, as per layout plan and disposed of either with development or without development. As per brochure of the year 2004-2005 Annexure R-4, it was made clear that prospective allottees were made clear possession of plot, will be delivered in about three years and it can be given earlier also if development of basic amenities are completed, but it was subject to fact that if later on it is found that plot is found to be in any litigation or development could not be done due to litigation or possession is delayed due litigation, then the allottee in such a case will have to either wait for possession of plot till litigation is over and development works are completed in the pocket thereafter or the allottee can seek refund of the amount paid till then to HSVP without interest and in either case, allottee shall not have any right to claim an alternate plot. Chand Rani was the re-allottee of the plot and complainant may be put to strict proof regarding her source of funds/ income for said purchase. She was living with her father Roshan Lal and they were residing in House No. 175, Sector-1, Jail Road, Ambala City which is allotted to the mother of complainant namely Smt. Babita Gupta w/o Sh. Roshan Lal. Therefore, her averment of being in dire need of home and that she wanted to construct the plot appears to be wrong. Rather, the complainant has entered into a transaction with the previous allottee through secondary market at her own sweet will. The OPs have no role to play in said private agreement and they do not advise people to purchase or not to purchase a property. Chand Rani applied for the transfer of plot to the Estate Officer and the same was transferred as per policy on completion of formalities. No question of assurance to deliver possession in 5-6 months arises. Infact, the averments of complainant shows that she was well aware of the status of possession and still chose to purchase the plot.  Estate Officer, Ambala have though sent a consolidated list of the plots showing the plots of which possession could not be delivered due to varied reasons and present plot is also shown, however, decision on allotment of alternative plot is still awaiting. A committee has been constituted to examine the issues and will decide after considering all the facts and circumstances of the cases including clause 7 (ii) of allotment letter. Whether alternate allotment is made or not to the complainant is to be decided by the competent authority and Estate Officer is not the competent authority and any such remarks on the CM window that alternate plot will be allowed after permission is completely misstated and misconstrued by the complainant. The complainant has not paid any amount to the OPs, as when plot was re-allotted to her, dues were nil. The complainant in view of clause 7 (ii) of allotment dated 23.05.2005 and condition of brochure can either wait for the same or seek refund of amount. Rest of the averments of the complainant were denied by the OPs and prayed for dismissal of the present complaint.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-30 and closed the evidence on behalf of the complainant. On the other hand, learned counsel for OPs tendered affidavit of Darshan Kumar, HCS, EO, HSVP as Annexure RW1/A alongwith documents as Annexure R-1 to R-9 and closed the evidence on behalf of the OPs.
5.           We have heard the learned counsel for the parties and have carefully gone through the case file and also written arguments filed by the learned counsel for the complainant.
6.           Learned counsel for the complainant submitted that complainant being the subsequent purchaser, steps into the shoes of the original allottee, thus consumer qua the OPs. By not delivering the possession of the plot in question, within a period of three years from the date of reallotment i.e. from 02-07-2015, the OPs are deficient in providing service and also adopted unfair trade practice. The learned counsel for the complainant has placed reliance upon the judgment dated 22.07.2021, passed by Hon’ble Supreme Court, in the case of M/s Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh, Civil Appeal No.7042 of 2019 and judgment dated 01.02.2002, passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the case of H.U.D.A. Versus Krishan Kumar Aggarwal, Revision Petition No.210 of 2000.
7.           On the other hand, learned counsel for the OPs while reiterating the objections raised in the written version, stated that since it was on account of the pending litigation, the development work cannot be completed at the project site, therefore, the same being a force majeure circumstances, beyond the control of the OPs, the complainant can either wait for final outcome of the said litigation or can seek refund of the amount paid without any interest. The learned counsel for the OPs has placed reliance upon the case Haryana Urban Development Authority Vs. Raje Ram, Civil Appeal No.2381 of 2003, decided on 23.10.2008, Haryana Urban Development Authority Vs. B.K.Sood, decided on 26.10.2005, by the Hon’ble Supreme Court of India, New Delhi and the order dated 12.10.2000, passed by Hon’ble State Consumer Disputes Redressal Commission, Haryana, in the case of Haryana State Development Authority Vs. Dr. Ram Saran Gauba First Appeal No.280 of 2000.
8.           Since neither the purchase of plot in question in resale by the  complainant nor endorsement of the said plot in favour of the complainant; nor any pending dues qua the plot in question nor the fact that possession of the said plot has not been delivered to the  complainant, as mentioned in the complaint, are in dispute, as such, only the following material objections raised by the OPs in this case, needs to be decided by this Commission?
   1. Whether, the complainant being reallottee falls under the purview of consumer or not?
   2. Whether it is obligatory upon the Commission to refer this complaint to the arbitrator in view of clause 15 of the re-allotment letter bearing memo no. 58 dated 02.07.2015, Annexure C-17/R-3?
   3. Whether, this complaint filed by the complainant for delay in delivery of possession of the plot in question is maintainable or not, in the face of condition no. 7 (ii) of allotment letter dated 23.05.2005, Annexure C-1/R-1?
   4. Whether, the present complaint is time barred?
   5. Whether, the complainant is entitled for any relief, in case, it is held that there is delay on the part of the OPs in delivering possession of the plot in question to her or not? 
9.           First coming to the objection regarding that complainant being reallottee does not fall under the purview of consumer. It may be stated here that this objection of the OPs stands rejected because this question has already been set at rest by the Hon’ble Three Judges Bench of the Supreme Court in M/s Laureate Buildwell Pvt. Ltd. vs Charanjeet Singh (supra), wherein, while holding that decision in Raje Ram (supra) (in the present case relied by the OPs) cannot be considered good law, it was held that on issuing the endorsement letter by the builder, the reallottee steps into the shoes of the original allottee and thereby became entitled to the same treatment, rights and reliefs and he is entitled to move before any consumer commission in the matter and therefore the Relevant portion of this judgment is reproduced as under:-

“…….31. In view of these considerations, this court is of the opinion that the per se bar to the relief of interest on refund, enunciated by the decision in Raje Ram (supra) which was applied in Wg. Commander Arifur Rehman (supra) cannot be considered good law. The nature and extent of relief, to which a subsequent purchaser can be entitled to, would be fact dependent. However, it cannot be said that a subsequent purchaser who steps into the shoes of an original allottee of a housing project in which the builder has not honoured its commitment to deliver the flat within a stipulated time, cannot expect any – even reasonable time, for the performance of the builder’s obligation. Such a conclusion would be arbitrary, given that there may be a large number- possibly thousands of flat buyers, waiting for their promised flats or residences; they surely would be entitled to all reliefs under the Act. In such case, a purchaser who no doubt enters the picture later surely belongs to the same class. Further, the purchaser agrees to buy the flat with a reasonable expectation that delivery of possession would be in accordance within the bounds of the delayed timeline that he has knowledge of, at the time of purchase of the flat. Therefore, in the event the purchaser claims refund, on an assessment that he too can (like the original allottee) no longer wait, and face intolerable burdens, the equities would have to be moulded. It would no doubt be fair to assume that the purchaser had knowledge of the delay. However, to attribute knowledge that such delay would continue indefinitely, based on an a priori assumption, would not be justified. The equities, in the opinion of this court, can properly be moulded by directing refund of the principal amounts, with interest @ 9% per annum from the date the builder acquired knowledge of the transfer, or acknowledged it.

32. In the present case, there is material on the record suggestive of the circumstance that even as on the date of presentation of the present appeal, the Imperia Structures Ltd. v. Anil Patni, (2020) 10 SCC 783 occupancy certificate was not forthcoming. In these circumstances, given that the purchaser/respondent had stepped into the shoes of the original allottee, and intimated Laureate about this fact in April 2016, the interests of justice demand that interest at least from that date should be granted, in favour of the respondent. The directions of the NCDRC are accordingly modified in the above terms……”

 

10.           The next question which needs to be decided is, as to whether, it is obligatory upon the Commission to refer this complaint to the arbitrator in view of clause 15 of the re-allotment letter bearing memo no. 58 dated 02.07.2015? It may be stated here that this controversy has also been put at knot by the larger Bench of the Hon’ble National Commission in Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, decided on 13.07.2017, holding that Arbitration Clause in the Agreements between the developer and  allottees cannot circumscribe the jurisdiction of a Consumer Commission and significantly, Civil appeal bearing No.23512-23513 of 2017 and  Review Petition (C) Nos.2629-2630 of 2018 against the said order filed by the builder, also stood dismissed by the Hon’ble Supreme Court of India, vide orders dated 13.02.2018 and 10.12.2018. Thus, this objection of the OPs also stands rejected.
11.           Now coming to the plea taken by the OPs to the effect that as per condition no. 7 (ii) of allotment letter dated 23.05.2005 (R-1) it was made clear that if during the demarcation or at the stage after allotment, if the plot of any allottee, is found to be falling in any area under any litigation or development could not be done due to litigation or possession is delayed due to litigation, then the allottee in such a case, will have to either wait for the possession of his plot till the litigation is over and the development works are completed in that pocket thereafter, or the allottee can seek refund of the amount paid till then by him to HUDA and because CWP NO 16298 of 2003 titled as Gurbaksh Singh & others Versus State of Haryana & others is pending for adjudication before the Hon'ble High Court on account of which development works cannot be carried out at this stage, as such, condition no.7 (i) will come into force. It may be stated here that admittedly, it was in the year 2004-05 that the OPs carved out Sector 32, Ambala Cantt. and sought applications for allotment of plots of different sizes in the above said sector, meaning thereby that they were well in the knowledge regarding the pending litigation aforesaid in the year 2003 (CWP NO 16298 of 2003) and even then they launched the project in question. This act of the OPs in itself is sufficient to say that when the project in question was launched, it was under litigation, whereas, on the other hand, they should not have launched the project and sold the units therein, before final outcome of the pending litigation aforesaid. It is not the case of the OPs that new litigation cropped up only during the period intervening of launching the project and committed period of delivery of possession of the said plot. Even vide term No.9 of the brochure of the year 2004 Annexure R-4, it was made clear that possession of plot will be delivered to the prospective buyers in about three years i.e. latest by 2008 or even by 01.07.2018 to the complainant, to whom plot in question was reallotted on 02.07.2015. Not even a single word is found mentioned in the said allotment letter or any other letter placed on record by the OPs to prove that it was clearly made known to the complainant and other prospective buyers that one litigation is pending since 2003 i.e. before launching the project in question. Had the said fact been made to the knowledge of the general public, they would have got option to think twice to buy plots in the project in question. It appears that the OPs deliberately did not mention this fact of pending litigation in order to usurp money from the prospective buyer and now want to take blanket immunity under the garb of pending litigation aforesaid, which is not sustainable in the eyes of law. Under these circumstances, for the act and conduct of the OPs, the complainant cannot be made scapegoat.
12.           Whether, the present complaint is time barred is the next question to be decided by this Commission. It may be stated here that admittedly re-allotment of plot in question was made in favour of the complainant by the OPs on 02.07.2015 and possession thereof was to be delivered to her on 01.07.2018, which has not so far been delivered by the OPs. Since, neither possession of the plot in question nor any alternative plot has been delivered so far to the complainant nor the amount paid has been refunded to her with interest, therefore there is a continuing cause of action in her favour to file this complaint in view of the law settled by the Hon’ble Supreme Court in Lata Construction & Ors. Versus  Dr. Rameshchandra Ramniklal   Shah  and Anr., II 2000 (1) CPC 269= and Meerut Development Authority Versus Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when possession of the residential units is not offered, there is a continuing cause of action in favour of the consumer. Reliance placed on the case of Haryana Urban Development Authority Vs. B.K.Sood (Supra) by the OPs is misplaced. As such, this objection of the OPs also stands rejected.
13.           Whether, the complainant is entitled for any relief on account of delay on the part of the OPs in delivering possession of the plot in question to her or not, is the final question to be decided by this Commission. It may be stated here that not even a single convincing evidence has been placed on record by the OPs, as to why they failed to complete the development works at the project site for the last more than 22 years. As stated above, if the project in question was launched by the OPs in the year 2004-2005 fully knowing well that the same is under litigation since 2003 and even then they sold the plots with a promise to deliver possession to the buyers including the complainant, therefore, now they cannot wriggle out of the same by citing the pending litigation of 2003.  The plot in question was purchased by the complainant in the year 2015 and is in lurch till date, as possession of the plot has not been delivered to her.  There has been an inordinate delay in delivery of possession of the plot in question, which act amounts to deficiency in service on the part of the OPs. In Lucknow Development Authority Vs. M.K.Gupta, 1994 AIR 787, 1994 SCC (1) 243,   the Hon’ble Supreme Court has held that where the developer is at fault in not delivering possession of a property, the act so amounts to denial of service, and consumer complaint is maintainable before the Consumer Fora. Under these circumstances, that the complainant is entitled to get possession of  plot no. 86 aforesaid or the alternative  plot in lieu of said plot (if possession of plot no.86 is not feasible), in same sector or in any sector of Ambala with same specifications, over and above compensation for the period of delay in delivery of possession. Since, the complainant has paid the amount in respect of her plot, therefore, she is entitled for delay compensation in the form of interest @6% per annum on her deposits from due date of possession till the offer of possession as held by Hon’ble Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 and DLF Home Developers Limited Vs. Capital Green Flat Buyer’s Association, (2021) 5 SCC 537. Recently, in Ambrish Kumar Shukla & 21 Ors. Versus Ferrous Infrastructure Pvt. Ltd., Consumer Case No. 97 of 2016 decided on 26 April 2023 also, interest @ 6% p.a. has been granted by the Hon’ble National Commission as delayed compensation. Relevant part of this order is reproduced as under:-

“………..ln view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to obtain “occupation certificate” and handover possession to the complainants of the flats allotted to them, complete in all respect as per specification, after taking balance consideration, within four months from the date of this judgment. At the time of offer of possession, the opposite party shall pay delay compensation to the complainants in the form of interest @6% per annum, on their deposit, from due date of possession as per their agreement till the date of offer of possession…..”

 

14.           In view of the aforesaid discussion, we here allow the present complaint and direct the OPs, in the following manner:-
    1. To deliver possession of plot no.86 aforesaid or an alternative plot in lieu of plot no.86, if possession of the same is not feasible, in same sector or in any sector of Ambala with same specifications, within the period of 45 days from the date of receipt of the certified copy of this order.
    2. To pay delayed compensation for the period of delay by way of interest @6% p.a. on the amount deposited by the complainant starting from 01.07.2018 (due date of possession) till the possession of plot, is actually delivered to her. However it is made clear that this compensation shall in the first instance be paid to the complainant in lumpsum from 01.07.2018 to 31.05.2023, within a period of 45 days from the date of receipt of the certified copy of this order and thereafter starting from 01.06.2023 on monthly basis by 10^th day of every month till possession is delivered to the complainant.
    3. To pay compensation for mental agony and harassment to the tune of Rs.5,000/- and Rs.3,000/- as cost of litigation to the complainant within the period of 45 days from the date of receipt of the certified copy of this order, failing which these amounts shall entail interest @6% per annum from the date of default till realization.

 

Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 03.05.2023

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President