1. The Revision Petition Nos.1066 & 1067 of 2011 were filed by the Applicants/Complainants challenging the Order dated 21.01.2011, passed by the Haryana State Consumer Disputes Redressal Commission (for short “the State Commission”) in Appeal Nos. 164 & 165 of 2008, whereby the Orders passed the District Forum allowing the Complaints were set aside and Appeals filed by the Opposite Party/Non-Applicant, Haryana Urban Development Authority (for short, the HUDA) were allowed.
2. Briefly stated the facts of the case are that Mr. Jora Ram Bishnoi, the Complainant in RP No. 1066 / 2011, (hereinafter ‘Complainant’), had applied for allotment of 8 marla plot under the ‘Discretionary Quota’ (hereinafter ‘DQ’) in 1986 depositing ₹3,883/- as earnest money.  Following a change of the Government, all allotments under this DQ were cancelled.  The allottees of the DQ filed a Writ Petition before the Hon’ble High Court of Punjab & Haryana titled “S.R. Dass Vs. State of Haryana”. The writ was successful and the Hon’ble High Court quashed the orders of cancellation of plots under DQ in 1988.  SLP by the Government of Haryana before the Hon’ble Supreme Court was also dismissed.  Following this, the Non-Applicant/Opposite Parties - HUDA (hereinafter referred to as the Non-Applicant), vide Memo No. A-22-DQ-768/81 1690 dated 09.04.1991, offered allotment of Plot No. 768 in Sector-22, Gurgaon under the DQ to the Complainant, and asked him to deposit ₹32,609.10, in order that with ₹3,883/- that had already been deposited earlier in 1986, the Complainants would have deposited 25% of the tentative price of the plot. The Complainant, however, failed to deposit this amount.  Therefore, the Non-Applicant cancelled the plot and refunded the amount of ₹3,883/- deposited by the Complainants vide cheque No. 556526 dated 01.09.1997.
3. The case of the Complainant was that as per various policies and following judgments of the Hon’ble High Court and the Hon’ble Supreme Court, Non-Applicant had refunded the amount taken for plots to various allottees; however, subsequently Non-Applicant had also issued notice to them for reviving their allotment and re-depositing the amounts required.  This facility had not been extended to the complainants despite repeated requests, and this was the deficiency in service which had caused the complainants to file a consumer complaint before the District Forum.
4. The Consumer Complaint before the District Forum was resisted by the Non-Applicant on two grounds: (i) the complaint was hopelessly time barred as the amount of ₹3,883/- had been returned to the Complainant vide cheque dated 01.09.1997 and the complaint was filed in 2007 i.e. after nearly a decade; (ii) complainant had not deposited the amount asked of him vide memo dated 9.4.1991 within the stipulated period. Therefore, the Non-Applicant had pleaded that the complaint was liable to be dismissed.
5. The District Forum, after hearing the pleadings of the parties and the evidence brought on record, had allowed the complaint and directed the Non-Applicant to allot plot No. 768/22, in Gurgaon, on the same price and on the same terms and conditions on which the original allotment had been made, adjusting the amount of earnest money in the accounts of the complainants as also pay a lump sum compensation of ₹10,000/- to the complainant.
6. On appeal, the Non-Applicant succeeded: the State Commission set aside the impugned order of the District Forum. It first considered the aspect of limitation in filing of the consumer complaint: noting that the period of delay was much beyond the two years prescribed under sec 24A(1) of the Consumer Protection Act 1986 (CPA), and that no application seeking condonation of delay had been filed either, it held that the consumer complaint was, to begin with, not entertainable by the District Forum.  The State Commission, further, went on to also consider whether the Complainant could be called a ‘consumer’ in the first instance as he was to be allotted plots under the DQ and, therefore, his status as a ‘consumer’ could have begun only after the plot was allotted to him on fulfillment of terms and conditions for the said allotment.  Since this was not the case, he was not even a ‘consumer’.  The State Commission drew a distinction between the allottees of plots under the DQ as against allottees who are successful in a draw for allotment of plots.
7. Being aggrieved the Complainants/Applicants challenged the Orders passed by the State Commission by filing Revision Petition Nos. 1066 & 1067 of 2011, before this Commission. Since the facts and issues involved in both the Revision Petitions were similar, vide Order dated 17.03.2020, this Commission dismissed both the Revision Petitions filed by the Complainants/Applicants by observing as under:-

“16.    A core fact in this matter is that the complainant, to begin with, was a beneficiary of DQ.  A challenge to this DQ survived the first round of litigation before the Hon’ble High Court and the Hon’ble Supreme Court; subsequently however, the Hon’ble Supreme Court, vide judgment in rem, set aside all previous orders and decided that all plots allotted prior to 23.4.1996 be restored.  Thereafter, HUDA announced policy to reflect the order of the Hon’ble Supreme Court. The issue is: was the complainant covered? Complainant’s case is he was. OP’s case is he could not have been. The State Commission has held that the complaint was time barred and inherently non-maintainable as the complainant was not a consumer under the CPA 1986.

17. I am inclined to the view of the State Commission. First, I do not find any evidence supported attempt by the complainants to explain how matters came to this pass. All that is stated in the RP is that the complainant was never kept informed about all that transpired qua his DQ plot, despite various visits and representations to the OP, and that during one such visit, he learnt about the letter dated 09.04.1991 offering him his plot and that he then immediately wrote to OP on 2.7.2003. However, there is no mention of dates of visits, the persons met, or the manner in which the complainant finally came to know about the letter dated 09.04.1991. Not only this, the above mentioned averment of the complainant in the RP seems to suggest that the OP was duty bound to keep the complainant informed about the DQ and not having done so was a deficiency in service on the part of the OP. In fact, however, there was no reason for OP to do so. DQs are, by definition, discretionary. It is perhaps arguable that once an allotment has been made under DQ and required consideration paid, the allottee becomes a consumer of the OP. But without any allotment, such as in the case at hand, the relationship of a consumer and a service provider does not even commence. All this strengthens the case of the OP that the complainant had not responded to the initial offer in letter dt. 09.04.1991, and that his refund cheque had been thereafter sent to him, which therefore was the end of the matter. Indeed, it is hard to believe that the complainant, beneficiary of a DQ, and therefore, presumably a well-informed citizen, was so un-aware of the state of affairs vis-a-vis the DQ plots!!  Whatever be the case, the aspect of the complaint being barred by limitation and the fact that, all said and done, this whole matter is about a plot in a DQ, the two aspects relied upon by the State Commission in passing the impugned order, cannot be denied nor faulted.  Consequently, this being so, this revision petition must fail. Further, as discussed briefly above, it is hard to think of this case as a case of a simple consumer complaint since the whole premise of the case is rights born out of what was, at the end of the day, a DQ, available, by definition, only to those who could avail the discretion. In this backdrop and setting, no case of deficiency on the part of OP is made out.

18. Similar facts and the same reasoning also applies mutatis mutandis to RP 1067 of 2011.

19.     In view of the discussion above, both the Revision Petitions, RP 1066 of 2011 and 1067 of 2011, stand dismissed after consideration. Consequently, the orders of the State Commission are upheld.  No order as to costs”

8. The Complainants/Applicants have preferred the present Miscellaneous Applications, i.e., MA No. 239 of 2021 & MA No. 236 of 2021, in RP Nos. 1066 of 2011 and RP No. 1067 of 2011 respectively on 27.10.2021 before this Commission. 
9. The Applicants/ Complainants have also filed two Applications being RA/7/2022 and RA/8/2022 in MA/236/2021 and MA/239/2021, respectively, seeking recall/review of the Order dated 17.03.2020 passed in Revision Petitions and prayed to treat the prayer made in Review Application, as having effect of amending the Prayer Clause in the respective Miscellaneous Applications. Heard the learned Counsel for the Parties and perused the averments made in the Applications. Both the Applications are allowed.
10. Since the facts and issues involved in MA No. 239 / 2021 & MA No. 236 / 2021 are similar, both the Applications are being disposed off through this common Order.  For convenience, the facts are being taken from MA/239/2011 in RP No. 1066/2011.
11. In MA No. 239 / 2021 in RP No. 1066/2011, the Applicant / Complainant had sought Recall/Review of the Order dated 17.03.2020 passed by this Commission on the ground that there was an error apparent on the face of the record in the finding that the Applicant/Petitioner is not a consumer in view of the allotment having been made in the Discretionary Quota.  It is submitted on behalf of the Applicants/Complainants that since the Earnest Money being 10% of the sale consideration, is lying deposited with the Non-Applicant/HUDA and also by their admission, the Non-Applicants/Opposite Parties have averred that vide letter dated 01.04.1991 the allotment of Plot No. 768, Sector 22 Gurugram had been made and the remaining amount was demanded which incidentally was not received by the Applicant/Petitioner, thus, there is apparent error on the face of record in holding that the Applicants/Complainants are not consumers in view of the allotment having been made in the Discretionary Quota.  It was further submitted that the Applicants/Complainants are ready to pay the remaining 90% of the balance amount of ₹14,68,800/- in half-yearly instalments as per the amended installment policy of HSVP. In the circumstances, Miscellaneous Application No.239 / 2021 in Revision Petition No. 1066 / 2011 were filed seeking following reliefs:-

“a)     Recall the judgment and order dated 17.03.2020 passed in Revision Petition No. 1066 / 2011;

b)      Treat the prayer for recall of the judgment and order dated 17.03.2020 made in this Application as having the effect of amending the prayer clause of MA No. 239/2011;

c)       Direct the respondent to not to alienate or transfer or create any third party interest in the Plot no. 768, Sector 22, Gurugram, Haryana which had been directed to be allotted by the judgment and order dated 23.11.2007 passed the District Forum until the disposal of the present application; and

d)      Direct the respondents to issue a fresh allotment letter and handover possession after executing the conveyance deed in respect of Plot No. 768,; Sector 22, Gurugram, Haryana; and

e)      Direct the respondents  to accept the remaining balance amount of 90% of the sale consideration for the plot of Rs.14,68,800/- as per the then prevailing rate of Rs.8000/- per square meter in half yearly instalments as per the respondent’s policy for payment by instalments;

f)       Allow the Revision Petition No.1066 of 2011 in the light of the prayer (a) and set aside the judgment and order dated 21.01.2011 passed in Appeal No.165/2008 by the State Commission Haryana and affirm the judgment and order dated 23.11.2007 passed by the District Forum in Complaint No.161/2007;

g)      Direct the respondents to allot and hand over vacant possession of the 768, Sector 22, Gurugram, Haryana to the applicant as per the rates prevailing at the time of offer of possession as decided by the Hon’ble Supreme Court of India and ;

h)      Pass any order or directions that the Hon’ble Commission may deem fit and appropriate in the facts and circumstances of the case to do complete justice.”

12. Per contra, the learned counsel for the Non-Applicant/HUDA submitted that the Revision Petitions filed by the Applicants/Complainants have been decided on 17.03.2020 by this Hon’ble Commission on merits whereas the present Applications have been filed for certain directions with respect to the Plot in question, thereby seeking review of the Order dated 17.03.2020.  It was submitted that the present Applications are liable to be dismissed being barred by limitation.  It was also submitted that the Complainants do not fall under the definition ‘Consumer’ as rightly held by this Commission vide Order dated 17.03.2020 and thus, the dispute raised by the Applicants in Applications is manifestly outside the purview of the Consumer Protection Act, 1986 and thus, the Applications are liable to be dismissed.  It was further submitted since there is no error apparent on the face of record, thus the Applications be dismissed. 
13. I have heard Mr. Naveen Sharma, learned Counsel appearing for the Complainants/Applicants and Mr. Shresth Jain, learned Counsel appearing for the Opposite Parties/Non-Applicants, perused the Memo of Revision Petitions, the documents filed by the respective Parties as also the Miscellaneous Applications alongwith Review Applications filed by the Complainants/Applicants, the Reply filed by the Non-Applicants/Opposite Parties and have given a thoughtful consideration to the various pleas raised by the Parties.
14. Learned Counsel for the Petitioner/Complainant contended that the Petitioner was allotted Plot No. 768, Sector -22, Gurgaon, Haryana vide letter dated 19.03.1986 under the discretionary quota floated by the Respondent. The Petitioner under the aforesaid scheme deposited an amount of ₹3,383/- with the Respondent towards earnest amount. Hon’ble Supreme Court vide its order dated 28.09.2001 settled the issue with regard to Discretionary Quota holding that allotment made prior to 31.10.1989 cannot be cancelled whether those allottees are parties in the proceedings or not. It is further submitted that following the Judgment of the Hon’ble Supreme Court various policies were formed by the HUDA and it allotted the Plots even where the 25% of the total Sale Consideration was not deposited and the Earnest Money too was refunded. He submitted that the Complainant was also issued a letter dated 09.04.1991 for restoration of the Plot and was directed to deposit 25% cost of the plot i.e. 32,609/-. However, the said letter was not received by the Complainant. The Petitioner vide letter dated 02.07.2003, requested the HUDA to allow the Petitioner to deposit the balance amount of ₹32,609/-. It is submitted by him that there is recurring of cause of action as the earnest amount of ₹3,883/- is still lying with the HUDA and they had failed to prove as to whether the cheque of ₹3,883/- was received and encashed by the Complainant.

15.     As against this, it is submitted by the learned Counsel for the HUDA that the cause of action had accrued to the Petitioner on 01.09.1997 when Earned Money was refunded and, thus the complaint filed by the Petitioner on 22.05.2007 was beyond the period of limitation of two years as prescribed under the Consumer Protection Act.  It is also contended by the Ld. Counsel for the HUDA that the Petitioner does not come within the definition of Consumer under the Act, since the allotment letter had not been issued in favour of him till today.

16.     Considering the facts sated in the Miscellaneous Application No. 263 of 2021 and 239 of 2021, filed by the Petitioners, I deem it appropriate  and in the interest of justice, to treat this Applications as a Review Applications seeking recall of the Order dated 17.03.2020, passed by this Commission dismissing the Revision Petition Nos. 1066 and 1067 of 2011.

17.     Admittedly, in the present case it is not in dispute that the Hon’ble Supreme Court in the case of Haryana Urban Development Authority Vs. Irish Print  Services P. Ltd., Petition (s) for Special Leave to Appeal (Civil) No (s). 5140/2009 decided on 18.01.2010, has passed the following Order on the statement given by the learned Counsel for the Parties: 

“In view of the statements made by the learned counsel for the parties, the special leave petition is disposed of in the following terms :-

1. Within two months from today, the respondent shall deposit the price of the plot at the rate of Rs.7894/- per square meter after adjusting the amount already paid pursuant to the allotment made in terms of the direction given by the District Forum.

2. If the respondent deposits the price in terms of Clause 1 above, the concerned authority of HUDA shall execute necessary documents in its favour.

3. If the respondent fails to deposit the amount in terms of Clause 1 above, the allotment made in its favour shall stand automatically cancelled and the concerned authority shall immediately take possession of the plot allotted to the respondent on 18.12.2007.”

18.     In another case Pradeep Sharma Vs. Chief Administrator, Haryana Urban Development Authority & Anr., Civil Appeal No (s).52-53 of 2016 decided on  07.01.2016, the Hon’ble Supreme Court after considering the entire facts and circumstances of the case has passed the following directions:

“12. The impugned orders passed by the National Commission are set aside and these appeals are allowed. Respondent-authority/HUDA shall permit the appellant to retain the plot subject to the appellant’s depositing the amount at the current HUDA rate of the year 2014-15 i.e. Rs.10,500/- per sq. mtr. after adjusting the amount already deposited by the appellant. The appellant shall deposit the said amount within four months from the date of this judgment and on such deposit, HUDA shall execute the necessary document and issue no objection certificate and clearances as may be required within four weeks thereafter. It is further directed that the respondent-authority shall proceed against the delinquent officials/officers who are responsible for the lapses in accordance with law. In so far as action taken in the disciplinary proceedings, the respondent[1]authority shall file compliance report before this Court within nine months. In the facts and circumstances of the case, we make no order as to costs.”

19.     In another case Pratap Singh Yadav Vs. Haryana Urban Development Authority & Anr., Civil Appeal No (s).10418-10419 of 2016 decided on  28.10.2016, the Hon’ble Supreme Court has passed the following Order:

“8. We accordingly allow these appeals but only in part and to the extent indicated above and set aside the order passed by the National Commission and the State Commission with the direction that subject to the appellant depositing the price of the plot at the rate of Rs.18,000/- per square meters within a period of six months from today the appellant shall be permitted to retain the plot. In case the needful is not done within the time allowed, this appeal shall stand dismissed and order passed by National Commission and the State Commission affirmed. In any such event  HUDA shall be free to dispossess the appellant from the property and resume the possession of the plot along with the superstructure, in case the superstructure is not removed by the appellants within the time granted by HUDA for that purpose.

9. Ordered accordingly. No costs.”

20.     In another case Ajay Mittal Vs. Haryana Urban Development Authority & Anr., Petition (s) for Special Leave to Appeal (C) No (s). 33890-33891/2016 decided on 07.12.2018, the Hon’ble Supreme Court has passed the following Order:

“We have heard learned counsel for the parties.

An affidavit has been filed by Mr. Amardeep Jain, Estate Officer, Haryana Urban Development Authority. The affidavit is dated 17th April, 2018.

It is stated in the affidavit that possession of the plot in question was handed over to the petitioner on 28th March, 2008 and the allotment rate at that time was Rs.6,200 per sq. m. 

Learned counsel for the petitioner says that he is ready and willing to make the payment at the allotment rate of Rs.6,200 per sq. m. after adjusting any amount that has already been paid.

We direct accordingly.

The balance amount be paid within a period of four weeks from today.

The special leave petitions stand disposed of in view of the above.”

21.     Without going into the various issues raised by the leaned Counsel for the Parties and taking into consideration that Haryana Urban Development Authority has been offering alternative plots in similar situation, in the interest of justice, it is an appropriate case, where the Review Applications has to be allowed and the Complainants/ Petitioners herein has made out a case for allotment of alternative plot.

22.     Applying the principles laid down by the Hon’ble Supreme Court in the cases referred to above, which also applies to the facts of the present case, I am of the considered opinion that the Review Applications (MA/236/2021 and MA/239/2021) filed by the Petitioners should be allowed and the Revision Petitions be disposed of in the following terms:

(i) Respondents are directed to accept the balance payment of the plots after adjusting the 10% amount being earnest money, lying deposited with them.

(ii) Since, the Complainant/Petitioner is ready and willing to pay balance amount of Sale Consideration at current circle rates approved by the HUDA i.e. @ ₹ 35000/- per square yard (page 72 of the Application) in terms of the judgments of the Hon’ble Supreme Court in the cases of Pradeep Sharma (Supra) and Pratap Singh Yadav (Supra), the Respondents are directed to accept the said rate.

(iii) The Respondents are directed to allot the Plot Nos. 768 and 769, Sector-22, Gurugram, Haryana to the Complainants/ Petitioners herein and possession of the same be handed over and land conveyance deed be executed within one month from the date of receipt of this Order.

(iv)  The Petitioners are directed to pay the balance sale consideration after adjustment of the 10% amount being earnest money, to the Respondents/ HUDA in four equal instalments at the interval of six months in a total period of two years.

23.     For the forgoing discussion, the Review Applications are allowed and the Revision Petitions stand disposed of in the aforesaid terms.