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DEEP SHIKHA filed a consumer case on 26 Apr 2019 against HARYANA URBAN DEVELOPMENT AUTHORITY in the Panchkula Consumer Court. The case no is CC/298/2017 and the judgment uploaded on 03 May 2019.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA
Consumer Complaint No | : | 298 of 2017 |
Date of Institution | : | 19.12.2017 |
Date of Decision | : | 26.04.2019 |
Deep Shikha, aged 29 years, D/o Sh. Prem Bansal, R/o House No.9, Sector 9, Panchkula, Tehsil and District Panchkula.
….Complainant
Versus
….Opposite Parties
For the Parties: Mr. Lavish Arora, Advocate for complainant.
Mr. Saurabh Sharma, Advocate for Ops.
Consumer Complaint No | : | 299 of 2017 |
Date of Institution | : | 19.12.2017 |
Date of Decision | : | 26.04.2019 |
….Complainants
Versus
….Opposite Parties
For the Parties: Mr. Lavish Arora, Advocate for complainant.
Mr. Saurabh Sharma, Advocate for Ops.
COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.
Before: Mr.Satpal, President.
Dr. Pawan Kumar Saini, Member.
Dr.Sushma Garg, Member.
ORDER
(Satpal, President)
1. By this order we shall be disposing of the above mentioned two consumer complaints bearing No. 298 of 2017 and 299 of 2017 by a common order as by and large similar question of law and facts are involved in the same and ld. counsel for both the parties have consented to the disposal of the above mentioned complaints by a common order.
2. For the sake of brevity and to avoid repetition, facts are being taken from the consumer complaint bearing No. 298 of 2017 (Deep Shikha Vs. HUDA & anr.) as agreed by the Ld. counsel for the parties.
3. The brief facts of the present complaint are that the complainant is the individual owner of the residential Plot No.1, Industrial Area, Phase II, Urban Estate, Village Buddanpur, District Panchkula. The Haryana Urban Development Authority, Panchkula had acquired the land at Village Buddanpur, Tehsil and District Panchkula for development and utilization of the land for BEL factory at Panchkula. Earlier Sh. Roshan Lal son of Sh. Kishori Lal was owner of the plot which was allotted to him under oustee quota vide memo No.9552 dated 07.07.1987. The Ops handed over the letter of physical possession of the said plot to the allottee only as a paper transactions, but no physical possession was given to the allottee by the HUDA to the allottees. After the death of Sh. Roshan Lal, the said plot was transferred in the name of Smt. Raj Rani wife of Late Sh. Roshan Lal vide transfer letter No.7659 dated 12.07.2011. The Ops also executed a conveyance deed bearing Certificate No.1254/1 dated 12.07.2011 in favour of the Raj Rani. Thereafter, Raj Rani sold the said plot to the complainant and the Ops issued re-allotment letter 11759 dated 30.08.2013. But the Ops had not delivered the physical possession of the plot to the allottees till date. After purchase of the said plot, the complainant many times approached the Ops and requested to hand over the physical possession of the said plot, but they did not pay any heed. After verified the spot, the J.E. of Ops has reported that there is no development work at the site. Thereafter, the matter was referred to Executive Engineer, HUDA, Division No.II, Panchkula and the said official also made the report vide No.791 dated 16.01.2014. The Ops failed to develop the said site till date without given any sufficient cause and reason and to re-allot the alternative plot to the complainant in the adjoining sector. Moreover, the Ops have failed to develop the said Sector 1A2, Urban Estate, Panchkula for residential purposes; this act and conduct of the Ops amount to deficiency in service on their part; hence, this complaint.
4. Upon notice, the OPs have appeared and contested the complaint by filing the written statement taking preliminary objections that the complaint is not maintainable in the present form; that the complainant has no locus standi to file the present complaint; that the complaint is time barred; that no cause of action has arisen in favour of the complainant; that this Forum has no jurisdiction to entertain and try the present complaint; that the complainant has not come to this Forum with clean hands and has concealed the true and material facts from this Forum. It is stated by the Ops that complainant/re-allottee is not the consumer of the Ops. It is submitted that the plot No.1 (measuring 455.10 Sq mtrs) was allotted to Smt. Rukmani Devi wife of Sh. Kishori Lal as alternative undeveloped land in lieu of constructed house/land acquired for BEL factor at Panchkula vide Memo No.7840 dated 28.04.1987. Since, Smt. Rukmani Devi had expired on 25.11.1985, hence the plot was allotted in the name of legal heir of Smt. Rukmani Devi namely Sh. Roshan Lal son of Sh. Kishori Lal vide Memo 9552 dated 07.07.1987 for tentative price amounting to Rs.20,092,67.00. The allotment was made as alternative undeveloped land lieu of undeveloped constructed houses/land acquired for BEL Factory at Panchkula. Hence, the original allotment was treated of Roshan Lal son of Sh. Kishori Lal vide letter dated 07.07.1987. There is no condition to develop the said land. The original allottee Sh. Roshan Lal had filed CWP No.11380 of 1997 for possession of the plot. The Hon’ble High Court vide order dated 03.06.1993 directed the respondent to either release the land of the petitioner forthwith or deliver him the possession of the alternative plot within one month from today in the year 1993. The possession of the plot could not be given due to boundary dispute with UT Authorities. Thereafter, the said original allottee had filed COCP No.256 of 1994 in the Hon’ble High Court. The possession of the plot was given to original allottee vide Memo No.587 dated 19.01.1995 and the COCP No.256 of 1994 was disposed of by the Hon’ble High Court. The possession of the plot was already been handed over to the petitioner-Roshan Lal. The plot in question was transferred in the name of the complainant namely Smt. Raj Rani wife of Late Sh. Roshan Lal vide Memo dated 16.06.2011. The conveyance deed was executed on 13.07.2011. Smt. Raj Rani had expired on 22.11.2012 and she had executed a will in favour of Ms. Deep Shikha daughter of Sh. Prem Bansal. She had transferred the plot in her name on 30.08.2013. It is further submitted that the plot in question was not allotted under the oustees quota. It is further submitted that the plot in question was allotted as alternative undeveloped land in view of constructed house/land acquired for BEL factory. It is further submitted that there is no condition to develop the said land. It is further submitted that the matter has attained finality up to the Hon’ble Supreme Court. Thus, there is no deficiency in service on the part of OPs and as such, the complaint of the complainant is liable to be dismissed with costs.
5. The ld. counsel for the complainant has tendered the affidavit as Annexure C-A along with documents Annexure C-1 to C-6 in evidence and closed the evidence by making a separate statement. On the other hand, ld. counsel for the OPs tendered affidavit Annexure R-A along with documents Annexure R-1 to R-6 and closed the evidence.
6. We have heard the learned counsels for both the parties and gone through the record minutely and carefully.
It is evident that, initially, Smt. Rukmani Devi W/o Sh.Kishori Lal was allotted a piece of land/plot vide letter dated 30.03.1987 Annexure R-1 in lieu of acquisition of her land/house for the establishment of BEL Factory at Panchkula. It is also an admitted fact that the above said allotted plot/piece of land, vide letter 30.03.1987, which was allotted in the name of said Rukmani Devi vide letter dated 30.03.1987, was allotted in the name of her legal heir, namely, Sh. Roshan Lal son of Sh. Kishori Lal vide letter dated 07.07.1987 as said Smt. Rukmani Devi had already expired on 25.11.1985. It is not disputed that after the death of said Sh. Roshan Lal, said plot/piece of land was further transferred vide letter dated 12.07.2011 in the name of his legal heir i.e. his wife, namely, Smt. Raj Rani. The execution of convenyance deed bearing Certificate No.1254/1 dated 12.07.2011 by the OP in favour of said Smt. Raj Rani is not disputed. Further, it is also not disputed that said plot was transferred in favour of the complainant vide re-allotment letter dated 30.08.2013. The grievances of the complainant are that the OPs have not delivered the physical possession of the plot to the earlier allottees as also the complainant without any sufficient reason and cause. It has also been alleged that the OPs are duty bound to develop the sector by providing basic amenities such as the water lines, sewerage facility, metalled road etc. but the OPs have failed to carry out the development works in the sector by providing the said facilities and on these grounds, the complainant has prayed for direction to the OPs to handover the physical possession of the Plot No.1 Indl. Area Phase II, Buddanpur, Urban Estate, Panchkula measuring 455.10 Sq.Mtrs along with all basic amenities like sewerage, water, road, street etc. as provided in the developed sector or in the alternative, to allot another residential plot of the same size to the complainant in the adjoining Urban Area/Sector, Panchkula. The complainant has also claimed a compensation of Rs.10 lacs and one lac on account of mental agony, harassment and cost of litigation.
The OPs have resisted the claim of the complainant stating that the complaint is time barred as the possession of the plot had already been delivered to the earlier allottee, namely, Roshan Lal son of Sh. Kishori Lal vide possession certificate dated 19.01.1995, (Annexure R-2). It has been alleged that the ld. counsel namely Sh. A.S.Tewatia appearing for the earlier allottee, namely, Roshan Lal son of Sh. Kishori Lal in the COCP No.256 of 1994, Annexure R-3 had accepted the factum of delivery of possession as mentioned in the order dated 23.01.1995, passed by Hon’ble High Court in COCP No.256 of 1994 Annexure R-3. It has also been contended by the ld. counsel for the OPs that the land owned by the earlier allottee was acquired for establishing the BEL Factory at Panchkula and the earlier allottee, namely, Sh. Roshan Lal son of Sh. Kishori Lal was allotted the undeveloped piece of land in lieu of constructed house/land acquired for the BEL Factory. Further, the ld. counsel has contested the claim of the complainant on the ground that the complainant being re-allottee is not entitled to any relief as held by Hon’ble National Commission in RP No.1221 of 2012 in case titled as Kamla Gupta Vs. Estate Officer, HUDA and anr., decided on 25.03.2015.
7. On the basis of pleadings, evidence adduced by both the parties on the record and arguments advanced by ld. counsel for both the parties, it emerges that the controversy between the parties requires discussion and adjudication of the following questions:-
We take up the above questions for discussion in the same seriatim:-
“7. As a matter of fact, the case of oustees does not come within the domain of consumer for a. In a judgment of this Commission, titled HUDA Vs. Uday Singh, (RP No.3456 of 2009), it was held:
“Learned counsel for the petitioner would also place reliance on a decision of this Commission in the matter of Premkanta & Ors., Vs. HUDA & Anr., for unsuiting respondents, they being not consumers, as defined under Section 2(1)(d)(ii) of the Act. We can take notice of the fact that since owners of land had received compensation for land acquired by HUDA, allotment of residential plot under the Scheme was only a gesture of goodwill and there being no element of ‘hiring’ service for consideration of petitioner authority from respondents. The ratio of decision of the case in Premkanta (Supra) applies with all force with the case under consideration before us with identical factual backgrounds”.
8. A Special Leave Petition (Civil Appeal No.10379/2010, titled Udai Singh Vs. HUDA & Anr.) was filed before the Hon’ble Supreme Court against the above said order and the same was dismissed by the Hon’ble Apex Court, vide order dated 16.04.2010.”
We may further rely upon the law laid down by Hon’ble National Commission in case titled as Raj Kumar and Others Vs. Haryana Urban Development Authority., reported in 2017(2), CLT 260 (NC), wherein it has been held as under:-
“Since the owners of the land had received compensation for the land acquired by HUDA, the allotment of a residential plot under the oustee scheme was only a gesture of goodwill and there was no element of hiring the service for any consideration by the complainants-A person to whom a residential plot was allotted under the oustees scheme, cannot be held as a ‘consumer’.”
The ld. counsel for the complainant could not dispute the above mentioned settled proposition of law; hence, we conclude that the present complainant, who has purchased the plot from the earlier allottee, namely Raj Rani, who was legal heir of said Roshan Lal (oustee) having acquired the status of an oustee, does not fall under the category of consumer and thus, is not entitled to any relief being not a consumer under the Consumer Protection Act, 1986 as held by the Hon’ble National Commission in cases (supra).
On the other hand, the ld. counsel for the complainant has contended that neither the earlier allottee, namely, Sh. Roshan Lal son of Sh. Kishori Lal and thereafter, his wife, namely, Smt. Raj Rani had been delivered the possession of the plot in question nor the complainant has been delivered the possession and that the possession certificate Annexure R-2 as alleged by the OPs in support of their contention is only a paper transaction. The ld. counsel contended that no development works such as sewerage, water lines and mettaled road have been carried out by the OPs in the area of said sector and on these grounds the ld. counsel vehemently pleaded that the cause of action is continuing one and hence, the complaint has been filed within the period of limitation.
We have perused the orders dated 03.06.1993 passed by the Hon’ble High Court in CWP No.11380 of 1992, which is available on record as Mark-A and for the sake of conveyance, the same is reproduced as under:-
“Civil Writ Petition No.11380 of 1992.
Roshan Lal son of Sh. Kishori Lal, village Chhachhroli, Tehsil Jagadhir (Ambala) now District Yamunanagar. ….Petitioner
Versus
Present: Mr. A.S.Tewatia, Advocate
Mr. Deepali Puri, Advocate.
ORDER:
There is no dispute, that the petitioner is entitled to the allotment of the plot. The land of the petitioner was acquired as far back as 1987. A plot in lieu thereof has been allotted to the petitioner but its possession has not been delivered to him till day. Today an objection has been raised that as there is a dispute between the Union Territory of Chandigarh and the State of Haryana with respect to demonstration of the boundary, hence till the dispute is settled, the petitioner cannot be handed over the possession of the plot.
In our considered view, this objection cannot be sustained. The respondents have deprived the petitioner of his land/house. It is for them to provide him an alternative shelter. They cannot deprive the petitioner of his land and throw him on the street to wait for the possession of the tentative plot till the dispute between two Government is settled. In view of the observations made above, we direct the respondents to either release the land of the petitioner forthwith or deliver him the possession of an alternative plot within one month from today. Accordingly, the writ petitioner is allowed.
Sd/- M.S. Liberhan,
Judge
Sd/- S.S.Grewal,
3.6.1993 Judge
When the above order passed by Hon’ble High Court was not complied with by the OPs, the complainant, feeling aggrieved, approached the Hon’ble High Court by way of filing the COCP No.256 of 1994, which was disposed of by the Hon’ble High Court as under:-
“COCP No.256 of 1994
Roshan Lal son of Sh. Kishori Lal, resident of village Chhachroli, The. Jagadhri, Ambala now District Yamunanagar. …Petitioner.
Versus
Contempt petition under Section 12 of the Contempt of Courts Act praying that the respondents may kindly be punished for flouting the judgment delivered by the Hon’ble Division Bench dated 03.06.1993 passed in CWP No.11380 of 1992, willfully and intentionally.
Order:
Present: Mr. Surinder Dhull, Advocate for Mr. A.S.Tewatia, Advocate.
Ms. Deepali Puri, Advocate for Mr. J.K.Sibal, Advocate.
Learned counsel for the respondents states that possession of the plot has already been handed over to the petitioners. Learned counsel for the petitioner does not dispute this fact. In this view of the matter, contempt petition is dismissed and the rule is discharged.
Sd/-(G.C.Garg)
Judge
23.01.1995”
From a bare perusal of the above, it is evident that the possession of the plot in question was delivered to Sh. Roshan Lal son of Sh. Kishori Lal, who was allotted the said plot by the OPs in lieu of the acquisition of his land/house for the BEL Factory at Panchkula. The ld. counsel for the petitioner, namely, Sh. Roshan Lal son of Sh. Kishori Lal did not dispute the statement made by the ld. counsel for the State of Haryana with regard to delivery of possession of plot in question to said Sh. Roshan Lal. We cannot be oblivious of the fact that said Sh. Roshan Lal son of Sh. Kishori Lal or his legal heir Smt. Raj Rani never agitated or disputed about the delivery of possession of plot in question. Further, we have perused the possession certificate bearing memo No.587, 19.01.1995 (Annexure R-2) vide which the earlier allottee, namely, Sh. Roshan Lal son of Sh. Kishori Lal was delivered the possession by Sh. Vinod Kumar, JE HUDA. The said possession certificate bears the signature of said Roshan Lal, earlier allottee of the plot in question. Thus, by no stretch of imagination it can be said that the possession delivered to the earlier allottee Sh. Roshan Lal son of Sh. Kishori Lal vide possession certification Annexure R-2 was merely a paper transaction. In view of the above stated facts, we are of the considered view that possession of the plot in question was duly delivered to Sh. Roshan Lal son of Sh. Kishori Lal by the OPs on 19.01.1995 and hence cause of action, if any, stood extinguished on 19.01.1995 itself.
The term ‘cause of action’ has been discussed and explained by the Hon’ble Apex Court while delivering the judgment dated 10.06.2009 titled as Kandimalla Raghavaiah & Co. Vs. National Insurance Co. & anr., reported in 2009 (3) R.C.R. (Civil) 888, vide its para No.13 as under:-
“The term "cause of action" is neither defined in the Act nor in the Code of Civil Procedure, 1908 but is of wide import. It has different meanings in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue.
Generally, it is described as "bundle of facts", which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, "cause of action" means the cause of action for which the suit is brought. "Cause of action" is cause of action which gives occasion for and forms the foundation of the suit. (See: Sidramappa Vs. Rajashetty & Ors.4). In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.”
Now, adverting to the facts of this case, we find that the complainant or the earlier allottees were never asked by the OPs to pay any extension fee on account of non-construction of the house over the plot in question. The ld. counsel for the complainant did not controvert the assertions of the
OPs that the extension fee is charged by them as per extension policy from those plot holders who fail to raise the construction over the allotted plot within the stipulated period. Admittedly, it is not the case of the complainant that they have been asked by OPs to pay any development charges or extension fees or any other fees with regard to the aforesaid plot in question.
Further, we find no evidence on record in support of the contention of the complainant that other similarly situated persons have already been allotted the alternative plots in another sector. The complainant has alleged in Para No.8 of the complaint that some of the allottees of the same locality have already been allotted alternative plots in different nearby sectors which is also unfair trade practice and pick and choose policy on the part of the OPs. In reply, the OPs have denied the contents of Para No.8 of the complaint while filing the written statement. In view of the categorical denial by the OPs with regard to alternative allotment to any of the similarly situated person, it was incumbent upon the complainant to adduce cogent and credible evidence in support of her contention that other persons of the same locality have already been allotted alternative plots.
In view of the aforesaid discussion, we have no hesitation to conclude that the complainant has no cause of action against the OPs.
Regarding the question of limitation, we may rely upon the law laid down by Hon’ble Apex Court in case titled as Haryana Urban Development Authority and others Vs. Tej Refrigeration Industries Ltd., reported in 2013 (14) SCC 758. & case titled as Haryana Urban Development Authority Vs. B.K.Sood, reported in 2006(1) J.C.R. 42.
Further we may rely upon the law laid down in Hon’ble National Commission, New Delhi in case titled as HUDA & Anr. Vs. Jaspal Singh, reported in 2015(3) C.P.J.576:2015(36) R.C.R. (Civil) 450.
In view of the above stated factual position as also the legal proposition propounded by the Hon’ble Apex Court (supra) we are in complete agreement with the plea of the OPs that the present complaint is hopelessly time barred.
On the other hand, the ld. counsel for the OPs stated the OPs had allotted the undeveloped piece of land to the earlier allottee from whom the present complaint has purchased the plot in question after ascertaining the status of the plot at site with regard to the availability of alleged development facilities at site. The ld. counsel asserted that the complainant being re-allottee have no right to seek any relief from the OPs with regard to amenities. In support of his contention, the ld. counsel relied upon the law laid down by Hon’ble National Commission in case titled as Kamla Gupta Vs. Estate Officer, HUDA and anr., RP No.1221 of 2012, decided on 25.03.2015 and in case titled as S.C.Jain Vs. Haryana Urban Development Authority, R.P Nos.789 and 790 of 2012, decided on 21.11.2012 and also case titled as Sudershna Devi and others Vs. HUDA and another, in R.P. No.1962, 1963 of 2011, decided on 12.07.2012.
After hearing both the parties, we agree with the contention of the OPs that earlier allottees were allotted undeveloped land in lieu of acquisition of their house/land as is evident from the perusal of Annexure C-1; hence, the complainant being re-allottee is not entitled to the relief as prayed for in the present complaint in view of the law laid down in cases (supra).
8. In view of the above said discussions and findings mentioned above by us, the complaint being baseless and meritless deserves dismissal and hence, the same is dismissed with no order as to cost. Certified copy of this order shall be forwarded, free of cost, to all the parties to the complaints i.e. complaints bearing No. 298 of 2017 and 299 of 2017 and file be consigned to the record room after due compliance.
9. The complaint bearing No. 299 of 2017 involving similar question of law and facts is ordered to be disposed of in similar terms as passed in this Complaint No.298 of 2017. Certified copy of this order be placed in said connected complaint file referred above i.e. CC No. 299 of 2017.
Announced
26.04.2019 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
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