Haryana

Panchkula

CC/18/2022

ARUNA MANCHANDA. - Complainant(s)

Versus

HARYANA SHEHRI VIKAS PRADHIKARAN (HSVP) - Opp.Party(s)

ANIRUDH KUSH

07 Mar 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	18 of 2022
Date of Institution	:	20.01.2022
Date of Decision	:	07.03.2023

 

 

Aruna Manchanda, aged about 51 years w/o Sh.Kamal Manchanda, R/o House No.B-164, Sector-44, Noida (Haryana)

                                                                           ….Complainant

Versus

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

2.     The Estate Officer, Haryana Shehri Vikas Pradhikaran, Sector-34, Gurugram.

….Opposite Parties

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

 

For the Parties:   Sh. Anirudh Kush, Advocate, for complainant. 

                        Sh. Sikander Bakshi, Advocate for OPs.

 

ORDER

(Satpal, President)

1.             Briefly stated, the facts of the present case, as alleged in the present complaint, are that a residential plot no.2417P, Sector-57, Gurugrum, was allotted in favour of the complainant by OP No.2 vide allotment letter no.769 dated 20.04.2009 at the tentative price of Rs.19,40,400/-; the complainant had paid the entire price of plot within 60 days as per clause 6 of the allotment letter and conveyed the same to OP No.2 vide her letter dated 10.06.2009; the complainant had intimated the OP No.2 about change of her residential address vide her letter dated 29.03.2010. The possession of the plot was offered to the complainant by Ops vide letter dated 14.01.2010. Upon inspection of the site, the plot was found not clear and thus, the complainant had sought the status of the land under RTI vide application dated 22.06.2010, wherein she was informed by the Ops vide their reply dated 24.09.2010 that plot in question was under litigation in CWP No.11330 of 2007 and that the plot is not clear for possession as per JE report. The complainant was informed by the OPs vide letter dated 04.02.2013 that a mini draw of plots would be held for allotment of an alternative plot in lieu of disputed plot no.2417P, Sector-57, Gurugram. The complainant was further, informed by the Ops vide letter dated 04.07.2014 that the plot no.443P, Sector-50, Gurgaon was allotted as an alternative plot in lieu of disputed plot no. 2417P, Sector-57, Gurgaon. Upon  inspection of the alternative plot no.443P, Sector-50, Gurgaon, it was found by the complainant that the said plot was situated at very bad location and on a small road and was of a very much lesser value as compared to her original plot no.2417P, Sector-57, Gurgaon, which was having a good location and on 60 meter wide road and thus,  the complainant choose  not to take  an alternative plot and requested the Ops vide her letter dated 17.03.2015 to allot  another alternative plot, having good location or to give possession of her original plot. It is stated that the complainant had invested her hard earned money in paying the cost/price of the plot. It is stated that the complainant had wished to live in a plot, having good location on a wide road and in an open area. It is stated that due to the act and conduct of the Ops, the dreams of the complainant has got shattered. The request of the complainant was declined by the OPs vide letter dated 21.09.2015, which was contrary to their own policy dated 10.12.2007, which provides as under:-

a)     The alternative plot should be given in the same sector by carving out any unplanned pocket, if possible, on the same terms and condition as the original plot was allotted.

b)     If the plot is not available in the same sector than alternative plot may be given in the adjacent sector on the same rate, terms and conditions of the original plot.

c)     The original allottee will be paid simple interest @9% on the amount deposited by him after expiry of 3 years of the original allotment if the possession of the plot is not offered within 3 years of the allotment and the future installments will be paid only after the possession of alternative plot is offered.

d)     The size category of the plot will not be changed in any case.

It is stated that the OPs were again requested by the complainant vide letter dated 02.11.2016 and 08.11.2017 for the allotment of another alternative plot as the plot no.443P, Sector-50, Gurgaon was of lesser value and situated in a bad vicinity. It is stated that the said plot no.443P, Sector-50, Gurgaon was also under litigation vide CWP No.7913 of 2017. It is stated that the complainant had approached the Hon’ble Punjab and Haryana, High Court vide CWP No.11268 of 2019, wherein the Ops were directed by the Hon’ble High Court vide its order dated 01.05.2019 to decide the representation of the complainant by passing a speaking order. In compliance of said order dated 01.05.2019, the speaking order was passed by the OPs vide Memo no.4959-63 dated 27.08.2020. The relevant portion of the said speaking order is reproduced as under:-

                “It be further cleared that out of the original allotted plot or the         alternative plot granted whichever gets available earlier i.e. stay gets     vacated, possession of the same shall be offered/granted”.

It is stated that the original plot no.2417P, Sector-57, Gurgaon has got clear, as per judgment dated 12.10.2020, delivered by the Hon’ble High Court in CWP No.20037 of 2017. The alternative plot has got clear as per judgment dated 12.07.2021, delivered by the Hon’ble High Court in CWP No.7913 of 2017. It is stated that the Ops have miserably failed in their obligation towards the complainant as they had never informed that the original plot had got cleared on 12.10.2020. It is stated that the OPs have tried to put original plot in auction in utter disregard of their own speaking order dated 27.08.2020. It is stated that the Ops have failed to offer the possession of the plot to the complainant within prescribed time as per terms and conditions of allotment letter dated 20.04.2009. It is further stated that the maximum period of offer of possession is three years from the date of allotment as per numerous judgments rendered by the Hon’ble Apex Court. The complainant has visited the office of Ops several times and requested for allotment of original plot but in vein. The complainant has also sent a detailed representation to Ops on 20.07.2021. It is stated that originally allotted plot no.2417P, Sector-57, Gurgaon has become litigation free and thus requested the OPs to allot her original plot in her favour  but the Ops has included the said plot in e-auction, which was to be held on 03.11.2021. The complainant sent her email on 02.11.2021 to the Ops with the request not to include the plot no.2417P in e-auction but the said plot was again included for e-auction dated 30.01.2022. The complainant is running from pillar to post to get her original plot, which is now litigation free. Due to the act and conduct of Ops, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence the present complaint.

2.             Upon notice, the OPs appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable as the complainant is not a consumer under the Consumer Protection Act, 2019; the controversy involved in the present complainant is not a consumer dispute; there is no unfair trade practice on the part of OPs and the complainant is not entitled to any relief whatsoever. It is submitted that the HSVP(HUDA) is a statutory non-profit making body and it develops the area and allots the plots at reasonable rates. In certain cases, where allotment is made and the development works are not complete, certain rebate is granted in payment of interest on the amount of price of plot. In the present case, the complainant was allotted the plot No.2417-P, Sector-57, Gurgraon vide allotment letter no.769 dated 20.04.2019 as per draw of lots. The possession of the plot was offered vide memo no.846 dated 14.01.2010. However, the land of the said plot was under litigation, therefore, an alternative plot no.443-P, Sector-50, Gurugram was exchanged in lieu of original plot vide memo no.7643 dated 04.07.2014. The complainant vide her letter dated 17.03.2015 intimated that the alternative plot is not acceptable to her and requested to hand over the possession of original plot. The complainant filed CWP No.11268 of 2019 in the Hon’ble High Court, which was disposed of vide order dated 01.05.2019. In compliance of the Hon’ble High Court order, the Op’s passed a speaking order on 27.08.2020 that possession of plot will be provided post vacation of stay from Hon’ble High Court or refund of the deposited amount would be provided as per HSVP policy dated 18.02.2012, if the petitioner does not wish to wait for the litigation to conclude. Further, as per the report  dated 21.01.2022 of Executive Engineer, HSVP, Division No.VI, Gurugrum, the development work in front of plot no.443-P, Sector-50, Gurugrum has not completed. Hence, it is open for the allottee/complainant to wait for the possession of plot after completion of development works/vocation of stay or to take the refund of the deposited amount as per HSVP Policy dated 18.02.2012, if she does not wish to wait for the litigation to be concluded. The claim of the allottee for awarding compensation is not maintainable, being unreal, unwarranted and baseless. Further, since the possession of plot is not offered, therefore, the possession interest is not charged from the complainant; hence the complainant has no legal right to claim any relief on account of delayed possession. It is submitted, if the complainant is not willing to have the plot in question, she is at liberty either to wait for getting the possession of plot or she may get refund of deposited amount along with interest @9% p.a. in view of the HSVP Policy.  The complaint is liable to be dismissed as there existed an arbitration clause in the allotment letter. The clause No. 22 of allotment letter dated 20.04.2009 clearly stipulates that all disputes and differences arising out of or in any way touching or concerning this allotment shall be referred to the sole arbitration of the Chief Administrator or any other officer appointed by him; hence, the present complaint is not maintainable. As per provisions of Section 15 of HSVP Act, 1977 read with regulation 3 of Haryana Urban Development (Disposal of Land & Buildings), Regulations, 1978, plots can be disposed of either with or without development. Section 15(1) of HSVP Act, 1977 provides that subject to any directions given by the State Government under this Act and the provisions of sub-section(5), the Pradhikaran may dispose of–(a) any land acquired by it or transferred to it by the State Government without undertaking or carrying out any development thereon; or (b) any such  land after undertaking  or carrying  out such development as it think fit, to such persons, in such manner  and subject   to such  terms and conditions, as it considers  expedient  for securing  development. The plot has been allotted under the provisions of HSVP Act, 1977, rules/regulations there under. In view of this position of the law, the averment of the complainant that there is unfair trade practice or deficiency in service is liable to be rejected. It is pertinent to mention that due to reasons beyond control of the Ops as area was under litigation, the possession of the allotted plot was not given to the complainant. The complaint is not maintainable as no financial loss has been caused to the complainant. The complainant has also got the benefit of appreciation in the price of the plot as value of plot is more than Rs.1 crores, thus, the complaint is liable to be dismissed as no law permits undue enrichment of the allottee.  It is stated that under Section 50 of HSVP Act, 1977, jurisdiction of the consumer commission is barred as such complaint is liable to be dismissed. It is also stated that the present complaint is time barred as the same has been filed beyond the period of limitation. It is submitted that a complaint filed, after two years from the date of cause of action, cannot be admitted by any Consumer Forum. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OPs No.1 & 2 and as such, the complaint of the complainant is liable to be dismissed.

3.             Replication to the written statements of the OPs No.1 & 2 was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OPs.

4.             The learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-24 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OPs tendered affidavit Annexure R-A along with document as Annexure R-1 and closed the evidence.

                The Ld. counsel on behalf of the Complainant, during argument, on 21.02.2023 has tendered the copy of office noting and photo copy of order dated 12.10.2020 passed by Hon’ble Punjab and Haryana High Court, in CWP NO. 20037 of 2017, which have been taken on record as mark ‘A’ and mark ‘B’ for adjudication of the controversy in a proper and fair manner.

5.             We have heard learned counsel for the parties and gone through the entire record available on the file, minutely and carefully.

6.             During arguments, the learned counsel for the complainant, reiterating  the averments made in the complaint as also in the affidavit (Annexure C-A) of the complainant contented that the OP No.2 in compliance of order dated 01.05.2019 passed by the Hon’ble High Court in CWP No.11268 titled as  Aruna Manchanda Vs. HSVP & Ors. passed a speaking order on 29.08.2020, wherein it was mentioned that the HSVP i.e. Ops would make serious endeavor to ensure that the possession of the originally allotted plot i.e. 2417-P, Sector-57, Gurgaon would be delivered to the complainant post vacation of stay from the Hon’ble High Court. It is contended that the said plot has now become litigation free as the CWP No.20037 of 2017, wherein the said plot was involved, has been dismissed in favour of the HSVP and thus, it is contented that there is no legal impediment in the allotment of the said original plot in favour of the complainant. The learned counsel has invited our attention towards the orders dated 03.07.2019 passed by the Revisional Authority in other cases, wherein the right of the allottee to the allotment of the original plot has been upheld. The relevant part of the said order is reproduced as under:-

        “It is worthwhile to mention here that if the original plot no.2561 is free from all the litigation and has not been allotted to someone else, the petitioner(allottee) has the first right over the same”.

                The learned counsel has invited our attention towards Mark ‘A & B’, wherein it is shown that the plot no.2417-P is clear at site whereas the development work are not complete in the area, of alternative plot no.443-P, Sector-50, Gurugram. Concluding the arguments, the learned counsel has prayed for acceptance of the complaint by granting the relief as claimed for in the complaint.

7.             On the other hand, the learned counsel on behalf of the Ops reiterating  the averments made in the written statement has contended  that the complaint is not maintainable in view of the arbitration clause no.22 of the allotment letter dated 20.04.2009(Annexure C-1). It is contended that as per, said arbitration clause, the matter was liable to be referred to arbitrator, in case, of any dispute between the parties.

8.             This objection is rejected in view of the provisions contained in Section 100 of the Consumer Protection Act wherein it is provided that the remedy under the CP Act, available to a consumer is in addition to any other remedy available under law and not in derogation of the remedies available to an aggrieved consumer. In this regard, we may place reliance upon the law laid down by the Hon’ble Punjab and Haryana High Court in CWP No.22121 of 2014 decided on 21.09.2015 in case titled as Puma Realtors Pvt. Ltd.(M/s) Vs. Union of India, which is fully applicable to the facts of the present case. We may further rely upon the law laid down by the Hon’ble Apex Court in the case titled as Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M.Lalitha (Dead) Through Lrs and others, (2004) 1 SCC 305 wherein it has been held that remedy under Consumer Protection Act is in addition to and not in derogation of the remedies available to aggrieved person.

9.             The next objection raised by the learned counsel on behalf of the Ops is that the complaint is time barred. It is contended that the present complaint has been filed beyond the statutory period as prescribed under the CP Act, 2019.

10             This objection is also rejected in view of the fact that speaking order was passed by OP No.2 on 27.08.2020 and thereafter, as per office noting dated 22.12.2020 Mark ‘A’, the OP No.2 has shown the said plot  i.e .2417-P, Sector -57, Gurugram as clear from litigation. The present complaint  has been filed on 20.01.2022 and thus, the same has been filed within  two years  from the date of speaking order dated 27.08.2020(Annexure C-13) as well as office noting dated 22.12.2020 Mark ‘A’.

11.            On merits, the learned counsel contended that the original plot would be allotted in the favour of the complainant as and when the same becomes free from litigation and thus, has prayed for dismissal of the complaint.    

12.            Admittedly, the plot no.2417-P, Sector-57, Gurugrum was allotted by OPs in favour of the complainant vide allotment letter no.769 dated 20.04.2009(Annexure C-1). The payment of entire price qua the said plot by the complainant is also not in dispute. As per admitted factual position, the said plot i.e. 2417-P, Sector-57, Gurugrum fell under litigation & an alternative plot i.e. plot no.443-P, Sector-50, Gurugram was allotted in lieu of original plot vide exchange letter dated 04.07.2014 (Annexure C-8). However, the said alternative plot was not acceptable to the complainant as the location of this plot was not good as compared to the original plot and it was of lesser value vis-à-vis the original plot. The complainant conveyed her refusal qua the alternative plot no.443-P, Sector-50, Gurugram vide her letter dated 18.03.2015 (Annexure C-9). The complainant further, vide her letter dated 17.11.2016 (Annexure C-10) & letter dated 08.11.2017(Annexure C-11), conveyed her intention to the OPs to retain the original plot i.e. 2417-P, Sector-57, Gurugram. As per admitted factual position, based on speaking order dated 27.08.2020 (Annexure C-13) passed by the OP no.2, in compliance of the order dated 01.05.2019 passed by Hon’ble High Court in CWP No.11268 of 2019 titled as Aruna Manchanda Vs. HSVP & Ors.(Annexure C-13), the original plot i.e. no. 2417-P, Sector-57, Gurugram  as well as the alternative plot no.443P, Sector-50, Gurugrum are still under litigation. Moreover, the development works in and around the plot no.443, Sector-50, Gurugrum are not complete as per averments made by the OPs in para no.5 of the preliminary objections of the written statement. The OP No.2 vide speaking order dated 27.08.2020(Annexure C-13) has ordered that possession of the plot No.2417-P, Sector-57, Gurugram would be delivered to the complainant after the vacation of stay order from the Hon’ble High Court. As per Mark ‘A’ as well as Mark ‘B’, it is evident that the original plot i.e. 2417-P, Sector-57, Gurugram has become clear on account of disposal of CWP No.20037 of 2017, which was dismissed on 22.10.2020. Needless to mention here that  the plot no.2417-P, Sector-57, Gurugrum  was allotted  in favour of the complainant on the basis of  draw of lots, qua which she had made the entire payment; so there can be no dispute of any kind in any manner qua her entitlement to restoration of the originally allotted plot in her favour. The complainant has already waited for more than 13 years & 11 months and despite making entire payment by her qua the price of plot no.2417-P, Sector-57, Gurugram, she is still empty-handed; thus, no fault can be found with her on any counts. It is well settled legal proposition that a plot-holder cannot be made to wait for indefinite period. Therefore, we are of the considered view that the Ops are deficient while not allotting and delivering the physical possession of the originally allotted plot no.2417-P, Sector-57, Gurugram to her as the same has got cleared from litigation as discussed above.  

13.            As a sequel to above discussion, the complaint is partly allowed against OPs as under:-

1. The OPs are directed to issue the allotment letter in favour of the complainant qua plot no.2417P Sector 57 Gurugram.
2. The OPs are directed not to charge any extension fee and surcharge thereon or penalty etc. from complainant on account of non construction of the plot till the offer of possession of plot no.2417P Sector 57 Gurugram is made to her.
3. The OPs are directed to pay an interest compensation @ 9%P.A. on the total deposited amount after the expiry of three years w.e.f. 10.06.2009 i.e the date when entire payment of the plot was made.
4. The Ops are further directed to pay an amount of Rs.20000/- to the complainant on account of mental agony and harassment.
5. The OPs are also directed to pay an amount of Rs.5500/- as cost of litigation charges.

 

14.            The OPs No.1 & 2 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 No.1 & 2. 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: 07.03.2023

 

 

 

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