1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent(s) as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 13.12.2017 of the State Consumer Disputes Redressal Commission, Haryana, Panchkula (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.1105/2016 in which order dated 22.03.2016, District Consumer Disputes Redressal Forum, Kurukshetra (hereinafter referred to as District Forum) in Consumer Complaint (CC) no.407/2009 was challenged, inter alia praying to set aside the order passed by the State Commission and restore the order of District Forum.

2.       While the Revision Petitioner (hereinafter also referred to as complainant) was Respondent and the Respondent(s) (hereinafter also referred to as OPs) were Appellants in the said FA/1105/2016 before the State Commission, the Revision Petitioner was complainant and Respondent(s) were OPs before the District Forum in the CC/407/2009.

3.       Notice was issued to the Respondents. Parties filed Written Arguments/Synopsis on 17.04.2023 (Petitioner/Complainant) and 19.04.2023 (Respondents/OPs) respectively.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:-

   
The complainant purchased Plot No. 265, measuring 311.25 sq. meters, from the original allottee Rajesh Sharma. The re-allotment letter dated 15.04.2005 was issued by OP-2, stating that no dues were pending against the plot from the original allottee. According to the OPs, the plot's dimensions were described as 25 meters in length and 12.45 meters in breadth. Paper possession of the plot was granted by Balbir Singh, Junior Engineer of OP-2, through Memo No. 16474 dated 24.01.2006. Before commencing construction, the complainant requested OP-2 for the actual demarcation of the plot at the location. However, the Junior Engineer did not disclose that the actual area of the plot was less than the area described in the papers. The complainant subsequently requested an alternative plot due to these circumstances. Plots No. 2127 to 2142 had been re-allotted by including the area of the park in front of Plot No. 359 to 370. The complainant perceives this as a deficiency in service on the part of the OPs and sought redressal by approaching the District Forum.
The District Forum upheld the complaint, ruling in favor of the complainant. However, upon an appeal filed by the OPs, the State Commission dismissed the complaint.

5.       Vide Order dated 22.03.2016, in the CC no. 407/2009 the District Forum has allowed the complaint and directed OPs to allot the alternative plot of the same area, at the same rate and of same dimensions to the complainant.

6.       Aggrieved by the said Order dated 22.03.2016 of District Forum, Respondents/OPs appealed in State Commission and the State Commission vide order dated 13.12.2017 in FA No.1105/2016 has allowed the appeal and dismissed the complaint.

7.       Petitioner has challenged the said Order dated 13.12.2017 of the State Commission mainly on following grounds:

1. The State Commission made a judgment based solely on the OPs' submissions, neglecting the evidence presented by the complainant that would reveal the true facts. The State Commission incorrectly concluded that the complainant knowingly purchased the plot with accurate dimensions. However, the OPs consistently misrepresented the plot's dimensions, and the complainant only discovered the truth when the revised site plan was denied. The Commission's error regarding the NOC from HUDA for plot sale is emphasized; the re-allotment letter and possession certificate issued to the complainant prove a different narrative than what the Commission concluded. The Commission failed to recognize the contract relationship between the complainant and the OPs, despite documents directly issued to the complainant establishing this relationship.

2. The OPs didn't raise the absence of a contract when rejecting the re-allotment request in 2009. This claim surfaced later, appearing as an attempt to avoid responsibility. The State Commission overlooked the legal precedent that vests the subsequent allottee with the rights and interests of the original allottee regarding the builder. The Commission's decision was based on the absence of the original allottee as a witness or party, but their presence was unnecessary as all allegations were substantiated with documentary evidence. The grievance should have been directed towards the original allottee, not HUDA, as the OPs misled the complainant regarding the plot's status and failed to rectify the situation despite knowing about the plot's dispute. The possession of plot no. 265 is also claimed by residents of village Choti Ratgal, and the OPs having knowledge of this had no legal authority to transfer the plot to the complainant, constituting unfair trade practices and service deficiencies.

3. The complainant faced obstacles in commencing construction due to the OPs' failure to demarcate the plot and approve the site plan, which originated from the initial misrepresentation of the plot's dimensions by the OPs. The Complainant's case aligns with the policy for plot exchange from 06.01.2010, yet the OPs haven't provided an alternative plot as per the policy. The Commission overlooked the plot's altered shape due to a cut at the eastern-southern corner, resulting in a five-corner plot instead of the intended four corners. This alteration prevented construction according to the approved site plan. The Complainant is considered a consumer under Section 2(d) of the Consumer Protection Act, 1986, with the OPs identified as service providers. The Commission's judgment contradicts the evidence presented and fails to properly consider the pleadings in line with established legal procedures, drawing inferences that conflict with established laws and practices.      

8.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

1. The counsel for Petitioner/complainant argued that Mr. Rajeshwar Sharma initially received a plot from the OPs, which was later found to be under litigation. As a resolution, an alternative plot (Plot no. 265, Sector-7, Urban Estate Kurukshetra) was allotted to Mr. Sharma by HUDA in 1994. Mr. Sharma conveyed this plot to the current complainant via a sale deed in 2005. OPs (HUDA) issued a reallotment letter in favor of the complainant for the same plot in 2005. Subsequently, in 2006, HUDA issued a possession letter to the complainant after certifying the dimensions of the plot through their representative. Despite the possession, physical demarcation of the plot by HUDA remained pending, leading the complainant to submit a revised plan in 2009. Requests for actual physical demarcation of the plot were made by the complainant to HUDA.

2. It is argued by the counsel that HUDA withheld information regarding the plot's incomplete dimensions and its nature as a 5-cornored plot. The complainant requested an alternative plot from HUDA, but this was rejected by HUDA in 2009. On 09.07.2009, the complainant filed a consumer complaint before the District Forum, Kurukshetra, which faced opposition from HUDA. On 06.01.2010, HUDA introduced a new exchange policy, granting the complainant entitlement to an alternative plot.

3. The counsel further asserted that on 14.12.2011, in response to an RTI application, HUDA admitted that possession of the subject plot wasn't taken, and only paper possession was granted, with a part of the plot being under litigation. The subject plot was noted to be 5 cornered with an area of 280.82 sq mt instead of 311.25 sq mt. On 22.03.2016, the District Forum allowed the complaint, directing the allotment of an alternative plot. On 18.11.2016, HUDA filed a First Appeal with a delay of 151 days, arguing that no alternative plot could be allotted due to the absence of a relationship between HUDA and the complainant. On 13.12.2017, the State Commission allowed the appeal and dismissed the complaint, citing that the remedy was only against the predecessor. The Commission noted that the complainant purchased the plot with full awareness. However, it failed to address the order passed by the District Forum and stated that there was no privity of contract between the parties.

4. The counsel for Petitioner/complainant relied on following cases:

1. Vinod Kumar Thareja v. Alpha Construction, (2011) 11 SCC 453; Sale deed cancelled by consumer court affirmed upto Supreme Court for failure to develop the property and deficiencies therein.

2. Haryana Urban Development Authority v. Seema Handa, (2005) 9 SCC 494; HUDA v. Prem Kumar Agarwal, (2008) 17 SCC 607; HUDA failed to develop plot, despite payment of all dues possession not given. Alternative plot ordered by DCDRF, upheld by Hon’ble Supreme Court.

3. Laureate Buildwell v. Charanjeet Singh 2021 SCC Online 479;  Indu G. Nainani v. Kamala Park Developers, 2021 SCC OnLine NCDRC 434; Subsequent buyer is also a consumer.

4. Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC); Recurrent cause of action.

5. The counsel for the Respondents/OPs argues that the complainant does not meet the criteria of a consumer as defined in Section 2(d) of The Consumer Protection Act, 1986. The original allottee, Mr. Rajinder Sharma, settled all dues with the OPs for the plot's allotment before transferring it to the complainant. The complainant did not make any payments, dues, or considerations to the OPs to avail any services. The absence of consideration or promises for services establishes a lack of privity of contract between the parties. The complainant was fully aware of the plot's dimensions at the time of purchase, and as per HUDA policies, subsequent purchasers are ineligible for alternate plots.

9.     We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties.  Re-allotment letter dated 15.04.2005 of the plot in question i.e. plot no. 265, Sector 7, Urban Estate Kurukshetra measuring 311.25 sq. mtr. in favour of complainant is not in dispute.  It is true that earlier this plot was allotted by OP HUDA to one Mr. Rajeshwar Sharma and letter dated 12.12.1994 issued to earlier allottee Mr. Rajeshwar Sharma also shows that area of said plot no. 265 is 311.25 sq. mtr.  This plot was allotted to Mr. Rajeshwar Sharma as an alternative plot in lieu of old plot no.321, Sector-7, Urban Estate, Kurukshetra as the said plot was having some litigation. Once OP HUDA reallots the plot in question, Petitioner steps into the shoes of original allottee and all his rights and liabilities are that of the original allottee.

10.     Hon’ble Supreme Court in Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh 2021 SCC Online SC 479 has observed that “…..absence of privity of contract is not a bar for maintaining a complaint against a service provider, by a third party who suffers an incident, which is otherwise covered by an agreement.” In the present case, the petitioner herein is not even a third party but having a valid allotment / re-allotment of the plot in question in his favour.  Hon’ble Court further observed in this case as under :

“…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.”

11.     Hence, we are of the considered view that State Commission went wrong in allowing the appeal and dismissing the complaint on the ground that alternate plot cannot be allotted as there is no relation between HUDA and Complainant and on the ground that complainant’s remedy is only against predecessor, stating further that petitioner had purchased the plot with open eyes.  Hence, we decide that complaint is maintainable and complainant has the same rights and liabilities with regard to the plot in question as were available / applicable to the original allottee. The Possession Certificate dated 24.11.2006 clearly give the dimension of the plot as follows:

1. Length of the plot :-   25.0 m.
2. Breadth of the plot : - 12.45 m.
3. Area :- 311.25 sq.m.

This Possession Certificate is signed by the Junior Engineer of OP HUDA who has issued the said certificate after checking relevant papers and dimensions of the said plot no.265 allotted to the Petitioner herein.  Reply to RTI application dated 14.12.2011 clearly shows an admission by OP that said plot no. 265 is five corners / sides and the area of the plot along with sides is only 280.82 sq. mtr. As per this reply, the stand of the OP is that possession given by the Junior Engineer was only a paper possession and allottee of the plot has never taken possession on the spot. After the hearing on 05.10.2023, while reserving judgment, respondent HUDA was directed to file an affidavit by the competent Authorised Officer within two weeks, stating clearly whether any plot of the size 311.25 sq.m. is still available in Sector 7 of Urban Estate Kurukshetra, which has not been allotted yet to any other person, if yes, list of all such plots with plot number, size and dimension etc. allotted.  Despite this order, respondent HUDA failed to file such affidavit.

12.    In view of the foregoing, we reject the contentions of the respondent herein that petitioner is not a consumer as there is  no privity of contract between the parties as no consideration is paid by the petitioner herein to respondent herein for allotment of the plot or any promise for any service. Hence, we find that State Commission went wrong in setting aside a well-reasoned order of the District Forum. State Commission has not given any valid reasons for setting aside the order of the State Commission except making following observations:

“5. From the aforesaid factual position, it is evident that if at all there was any grievance available to complainant, it was only against the original allottee Rajinder Sharma, from whom he had purchased the plot in question and not against HUDA i.e. the present appellant.  Consequently, we do not find any merit in the complaint and we dismiss the same by allowing the appeal filed by HUDA with no order as to costs.”

13.    Accordingly, we hereby set aside the order of the State Commission and restore the order of the District Forum with directions to the OP / respondent herein to allot alternate plot of the same size / area at the same rate to the complainant / petitioner herein in accordance with order of the District Forum, within two months from the date of this order.  Respondent herein will also be liable to pay litigation cost of Rs. 20,000/- to the Petitioner herein. 

14.  It is clarified that although District Forum has directed the OPs to allot alternate plot of the ‘same area’ and of the ‘same dimensions’, we are consciously not making a mention of the ‘same dimensions’. As long as respondent HUDA allots an alternate plot of the same size / area i.e. 311.25 sq. mtr.,  even if, there is some minor variation of the dimensions of the alternate plot than the one mentioned in the Possession Certificate, it will be treated as full compliance of the order of the District Forum and order of the District Forum is hereby modified slightly to this extent only.

15.     Revision Petition is disposed off accordingly. 

16.     The pending IAs in the case, if any, also stand disposed off.