Haryana

Panchkula

CC/405/2021

RAJAN SIKKA. - Complainant(s)

Versus

HARYANA SHEHARI VIKAS PRADHIKARAN. - Opp.Party(s)

ANIRUDH KUSH

14 Feb 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

 

                                                       

Consumer Complaint No.	:	405 of 2021
Date of Institution	:	30.09.2021
Date of Decision	:	14.02.2022

 

 

Rajan Sikka son of Sh. R.K. Sikka, resident of House No. 106, Sector 21-A, Faridabad, Haryana.

 

                                                                           ….Complainant

Versus

1.     Haryana Shehri Vikas Pradhikaran, Sector-6, Panchkula through his Chief Administrator.

2.     Administrator, Haryana Urban Development Authority now Haryana Shehri Vikas Pradhikaran (HSVP), Sector-12, Faridabad (Haryana).

3.     The Estate Officer, Haryana Shehri Vikas Pradhikaran, Faridabad.

.….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019 (AS AMENDED UPTO DATE).

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

 

For the Parties:   Shri Anirudh Kush, Advocate, Counsel for the Complainant.

                        Shri Ashwani Chaudhary, Advocate, Counsel for OPs No.1 to 3. (OPs No. 1 to 3 already ex-parte vide order dated 22.11.2021)

ORDER

(Satpal, President)

1.            The brief facts of the present complaint are that the OPs allotted a residential Plot No. 85, measuring 420 Sq. meter in Sector 21-C, Part-3, UE Faridabad vide memo no. 120 dated 12.08.1992, in the name of brother of the Complainant namely Shri Virender Kumar, and thereafter due to family settlement, the said plot fell in share of Complainant  and his another brother namely Sh. Surinder Sikka and on request, the OPs transferred the same in the name of the Complainant vide re-allotment letter memo No. 682-83 dated 12.11.1998. The OP No. 3 vide memo No. 2514 dated 24.12.2002 issued Possession certificate to the Complainant in respect of allotted plot for the area of 409.50 Sq. mt. just to recover the extension fee/penalties though the area was not fully developed and the OPs were not in a position to provide basic amenities to the allottee of the said plot. In the year 2004, on request, the OPs transferred the plot in question in the name of the Complainant for which the requisite court fees of Rs. 5000/- was paid vide DD dated 20.05.2004 and moreover, the extension fees of Rs. 17,200/- demanded by the OPs was also paid vide receipt no. 273477 dated 29.06.2004 by the Complainant. Thereafter, the OPs issued re-allotment letter dated 01.07.2004 and informed the Complainant vide letter memo No. 27037 dated 26.07.2004. The Complainant on depositing 100% payable amount against the said plot submitted stamp papers as per the instructions of the OPs for the execution of Conveyance deed in terms of Clause 13 of the allotment letter. The OPs without providing basic facilities and amenities in the area of the plot in question in garb of proceedings of Section 17 of HUDA Act, 1977 charged extension fee of Rs. 13,100/- vide DD dated 30.03.2005 and thereafter, the same amount has been charged in the year 2006 against extension fees. The Complainant had no knowledge with regard to pending litigation as the provisions of the Forest Act were applicable w.e.f. 13.12.2004 in and around the area of plot in question where OPs have carved out allotted plots. At the request of the Complainant, the OPs informed the Complainant that they are not in a position to deliver the physical possession of the said plot w.e.f. 13.12.2004 as per the provisions of Forest Act, and the OPs also disclosed that alternative plots would be provided to all the allottees of Sector 21-C, part III, Faridabad after receipt of necessary approval of the competent authority through draw of lots as per the policy instructions and interest would also be paid on the amount deposited by the allottee because of non- delivery of the possession of plot. However, number of similar situated allottees of the same Sector have already been allotted alternative plot in the same Sector 21, Faridabad and in adjoining Sectors with a pick and choose policy. Also the policies dated 25.06.2004, 25.01.2007, 10.12.2007, 16.04.2009 and 18.02.2013 issued by the OPs pertain to issuance of alternative plots in the same Sector or adjoining Sector or by carving out and developing special belt in the area. The OPs prepared details of disputed plot vide report memo no. 43980 dated 01.08.2017 and submitted it before the Hon’ble High Court and thereafter, the OPs held draw on 23.10.2017 vide which alternative plots were allotted to 47 allottees except the Complainant. The Complainant served a legal notice dated 22.04.2019 upon the OPs but they did not reply the same. The OPs have also allotted an alternative plot in lieu of another disputed plot No. 160P, Sector 21C, Part III, Faridabad vide memo no. 6597 dated 08.06.2021. Due to negligent act and conduct on the part of the OPs, the Complainant has suffered financial loss, harassment and mental agony and thus, the Complainant is entitled to be compensated by the OPs.  Hence, the present complaint.

2.             Notice was issued to the OP No. 1 through Process Server   which was served on 19.10.2021 and in this regard, there is a report of the Process Server on the back side of the notice dated 13.10.2021. Notices were issued to OPs No. 2 and 3 through registered post (vide registered post No. CH089175195IN and CH089175204IN on 13.10.2021) which were not received back either served or unserved despite the expiry of 30 days from the issuance of notice to OPs; hence, it was deemed that OPs No. 2 and 3 were duly served. Thus, due to non appearance of OPs, they were proceeded against ex-parte by this Commission vide its order dated 22.11.2021 and the case was adjourned to 07.01.2022 for submission of ex-parte evidence by the Complainant. On 07.01.2022, the Ld. Counsel for the Complainant has tendered his Affidavit as Annexure C-A along with documents Annexure C-1 to C-16 in his evidence and closed the evidence by making a separate statement and the case was adjourned to 01.02.2022 for filing written arguments as well as addressing arguments. On 01.02.2022, the Ld. Counsel Shri Ashwani Chaudhary put appearance by filing power of attorney on behalf of the OPs No. 1 to 3 and filed an application for setting aside the said ex-parte order dated 22.11.2021 alongwith written statement. The Ld. Counsel contended that the OPs could not appear due to non-communication between OPs No. 1 and 2. It is contended that OP No.2  issued the engagement letter dated 23.11.2021 in his favour which was received through registered post and till then the OPs were already ordered to be proceeded ex-parte. It is further contended that the non-appearance of the OPs was not intentional; rather it was due to reasons explained in the said application.

3.             On the other hand, the Ld. Counsel for the Complainant opposed the said prayer of the OPs vehemently stating that this Commission has no power to set aside a validly passed ex-parte order.

4.             The power to review by the District Commission has been conferred upon it, under the Act, in certain cases, vide Section 40 of the CP Act, 2019, which reads as under:-

“40. Review by District Commission in Certain Cases:- The District Commission shall have the power to review any of the order passed by it if there is an error apparent on the face of the record, either of its own motion or on an application made by any of the parties within thirty days of such order.”

                From a bare perusal of above, it is evident that power to review is to be exercised only if there is an error apparent on the face of record either suo moto or on an application made by any of the parties within 30 days of such order. The OPs vide aforementioned application has not attributed any error in the said ex-parte order dated 22.11.2021; rather it has been admitted that the summons were duly served upon the OPs for appearance on 22.11.2021. Therefore, in the absence of any error in the said ex-parte order dated 22.11.2021, the power to review is not liable to be exercised. In fact, in the absence of any error in the said order, we have no power to review the same. In this regard, we may safely place reliance upon the order dated 21.10.2021 in FA No. 366 of 2021 titled as ‘Nipun Sharma Vs. G.L.C. Members Co-operative House Building Society Ltd.’ passed by Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh.

                Apart from above, it is pertinent to mention here that the power to review any order passed by District Commission is to be exercised within a period of 30 days from the date of order in question. In the present case, the application has been filed by the OPs much beyond the stipulated period of 30 days and thus, the application filed by the OPs seeking setting aside the order dated 22.11.2021 is rejected being baseless and meritless. However, we take on record the written statement filed on behalf of the OPs treating the same as written submissions. Needless to mention here that as per well settled legal proposition, any party to a complaint can join the further proceedings at any stage of the case. Today, the case is fixed for arguments and we have heard both the parties and gone through the entire record available on the file, minutely and carefully.

5.             Admittedly, the Plot no. 85, Sector 21-III, Faridabad was allotted to Shri Virender Kumar S/o Shri Radha Krishan against the total cost of Rs. 5,29,200/- vide allotment letter dated 12.08.1992 and thereafter, it was transferred in the names of Shri Surinder Kumar Sikka and Shri Rajan Kumar Sikka both sons of said Shri Radha Krishan. The said plot was transferred in the name of the Complainant vide re-allotment letter dated 26.07.2004 and conveyance deed was executed in his favour on 02.12.2004 after receiving the full and final payment and thus, there is no dispute with regard to the payment of price of the plot in question.

6.             Undisputedly, the area of the plot fell into litigation on account of orders passed by the Hon’ble Apex Court vide its order dated 18.03.2004 in WP(C) 4677 of 1985 titled as ‘M.C. Mehta Vs. Union of India and others’ and thus, the Complainant alongwith other allottees of the Sector 21-C, Part III, 46, 45, 44-47 and Crusher Zone Dhauj could not raise the constructions over the allotted plots. The Complainant, alleging deficiency in services on the part of the OPs, has claimed several reliefs, which may be summarized as under:-

1. To allot alternative plot in lieu of the originally allotted plot in the same Sector or to allot alternative plot no. 679, Sector 14, Faridabad, which is lying vacant and unallotted.

2. To pay interest compensation at the rate of 12% per annum on the deposited amount.

3. To refund the extension fee paid by the Complainant.
4. To pay a sum of Rs. 5 Lacs as compensation on account of mental agony and harassment.

5. To pay Rs. 55,000/- on account of litigation charges.

7. The main grievance of the Complainant is with regard to the allotment of alternative plot to him in lieu of the originally allotted Plot No. Plot No. 85, Sector 21-C, Part-3, UE Faridabad. The Ld. Counsel for the Complainant, while inviting our attention towards various policies of HUDA, which are available on record as Policy dated 25.06.2004 (Annexure C-8), Policy dated 10.12.2007 (Annexure C-10) and Policy dated 18.02.2013 (Annexure C-12), contended that the Complainant is entitled to the allotment of an alternative plot. It is contended that several similarly situated allottees of Sector 21C Part III have been allotted alternative plots in other Sectors such as Sector 31 and Sector 37. In this regard, the copy of allotment letters dated 17.10.2012(Memo no. 24829-30 and Memo no. 24831-32 of even date), 18.10.2012, 24.05.2013, 08.04.2015 and 09.04.2015 have been appended with the written synopsis.

8. The claim of the Complainant to the allotment of the alternative plot as claimed in the complaint has been disputed by the OPs on the ground that the Complainant failed to give his consent to the allotment of Plot no. 214, Sector-2, Faridabad, which was earmarked against the originally allotted plot in the draw of lots held on 23.10.2017. The Ld. Counsel for the OPs contended that the competent authority could not give its approval to the allotment of said plot no. 214, Sector-2, Faridabad on account of CWP No. 13898 of 2019 filed by the Complainant, which has already been dismissed on 14.09.2021 as not pressed. The Ld. Counsel further contended that if the applicant is not ready to take alternative Plot no. 214, Sector-2, Faridabad, in terms of the policies of the OPs, in that event, the present Complainant may take the refund of amount deposited alongwith interest at the rate of 5.5% per annum but he has not taken any steps in this regard. Concluding the arguments, the Ld. Counsel submitted that the present complaint deserves outright dismissal as the Complainant has failed to give his consent to the allotment of said Plot no. 214, Sector-2, Faridabad, which was earmarked for him in lieu of the originally allotted plot.

9.             Admittedly, the OPs are unable to permit the Complainant to raise the constructions over the originally allotted plot no. 85, Sector 21-C, Part-III, Faridabad as the plot is located in the forest area wherein constructions have been banned by the Hon’ble Apex Court vide its order dated 18.03.2004 passed in MC Mehta case(supra) and thus, the Complainant is entitled to the allotment of an alternative plot located in a good Sector having comparable location with that of the originally allotted plot. The right of the Complainant to the allotment of an alternative plot cannot be denied merely on the basis of his not giving the consent to the allotment of Plot no. 214, Sector-2, Faridabad as alleged by the OPs. We are of the considered view that the OPs cannot compel the Complainant to accept the allotment of said plot i.e. Plot no. 214, Sector-2, Faridabad.

10.            The OPs have framed certain policies with regard to the exchange of plots. We have gone through the policy dated 25.06.2004 (Annexure C-8) wherein it is provided that an alternative plot will be offered, in case, the same is not available in the same Sector, to the allottee in the adjoining sectors out of the available plots of the category or by carving out additional plot in the vacant pockets of land; if it is not possible, then an alternative plot may be offered in the next Sector to be floated. The policy dated 10.12.2007(Annexure C-10) speaks about the allotment of an alternative plot in the same Sector by carving out any unplanned pocket if possible and if the plot is not available in the same Sector, then alternative plot may be given in the adjacent Sector on the same rate, terms and conditions of the original plot. Further, we find a similar provision in the policy dated 18.02.2013 (Annexure C-12). From the perusal of above said policies, it is evident that a duty was cast upon the OPs to explore the possibility of carving out of residential plots out of the unplanned pocket lying in the same Sector or in the adjoining Sectors or in the Sector to be floated in future. As per the provisions of the said policies, it was incumbent upon the OPs to take active steps for carving out of the residential plots out of the unplanned pocket in the adjoining Sectors or in any other Sectors but we are clueless with regard to any such steps being taken or already taken by the OPs for the allotment of alternative plots to the allottees of Sector 21C, Part III, Faridabad. In the written statement, there are no averments, which may indicate that the OPs have ever made any efforts to adjust the allottees of disputed plot holders in the newly carved out residential plots out of the unplanned pocket in the adjoining Sector or in any other Sectors. There is nothing on record, which may clarify as to the total numbers of disputed plots falling under the forest belt and out of which how many have been adjusted in other Sectors by way of making alternative allotments.

                Further, the OPs even did not take the pains to respond to the legal notice dated 22.04.2019 (Annexure C-15) sent by the Complainant through his Counsel seeking the redressal of his grievances. Furthermore, the Ld. Counsel for the Complainant has pointed out that several similarly situated allottees of Sector 21C, part III, Faridabad have already been adjusted in Sector 31 and 37 Faridabad by making alternative allotments. We find no rebuttal or contravention to the said contention raised by the Ld. Counsel for the Complainant. In the absence of any such rebuttal, we have no option except to conclude that there has been lapse and deficiency on the part of the OPs while delivering services to the Complainant and thus, the Complainant is entitled to relief.

11(a)         Coming to the relief, it is found that the OPs have made alternative allotments in Sector 31 and 37 as mentioned above in Para No. 7 of this order, and there is no rebuttal or contravention of the said alternative allotments.  The Complainant has pointed out that Plot No. 679, Sector-14, Faridabad and Plot No. 738, Sector-17, Faridabad are lying vacant and unallotted. As the Complainant is waiting for the allotment of an alternative plot since 2004, it would meet the ends of justice, if the OPs are directed to allot Plot No. 679, Sector-14, Faridabad or Plot No. 738, Sector-17, Faridabad or any other vacant/unallotted and litigation free plot of the same size/category in Sector 31 or Sector 37, Faridabad.

11(b) &(c)          Since, the Complainant is/was not able to raise the construction over the originally allotted plot, he is justified to the entitlement of 9% interest over his deposited amount w.e.f. 12.08.1995(i.e. after the expiry of three years from the date of allotment) till realization. The charging of extension fees by the OPs is also invalid as no construction was permissible over the disputed plot and thus, the Complainant is entitled to the refund of Rs. 17,200+ 13,000+13,000=Rs. 43,200/-.

12.            As a result of the above discussion, we partly allow the present complaint and dispose of with the following directions to the OPs:-

(i)      To allot Plot No. 679, Sector-14, Faridabad or Plot No. 738, Sector-17, Faridabad or any other vacant/unallotted and litigation free plot of the same size/category in Sector 31 or Sector 37, Faridabad. 

(ii)     To pay interest compensation at the rate of 9% interest over his deposited amount w.e.f. 12.08.1995(i.e. after the expiry of three years from the date of allotment) till realization.

(iii)     To refund an amount of Rs.43,200/- which was deposited by the Complainant as extension fees as per Annexures C-4, C-6 and C-7.

(iv)    To pay a lump sum compensation of Rs. 10,000/- to the complainant on account of mental agony, harassment and litigation charges.

 

13.            The OPs shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the Complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced: 14.02.2022

 

Dr.Sushma Garg           Dr. Pawan Kumar Saini         Satpal

                 Member                 Member                        President

 

Note: Each and every page of this order has been duly signed by me.

 

 Satpal                                                 

                                             President