Haryana

Panchkula

CC/216/2017

PRERNA DEWAN - Complainant(s)

Versus

HARYANA URBAN DEVELOPMENT AUTHROITY - Opp.Party(s)

jaswant singh

18 May 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.        

                                                       

Consumer Complaint No	:	216 of 2017
Date of Institution	:	27.09.2017
Date of Decision	:	18.05.2018

               

Prerna Dewan, Age 44 years wife of Sh. Sanjeev Dewan, R/o House No.1129, Sector-11, Panchkula, Haryana.

                                                                           ….Complainant

Versus

1.       Haryana Urban Development Authority, through its Chief Administrator, Sector-6, Panchkula.

2.     Estate Officer, Haryana Urban Development Authority, Sector-6, Panchkula.

….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

Before:              Mr.Dharam Pal, President.

Mr.Jagmohan Singh, Member.

For the Parties:   Mr.Jaswant Singh, Advocate for the complainant. 

                        Mr.Saurabh Sharma, Advocate for OPs.

ORDER

(Dharam Pal, President)

1.     The present complaint has been filed by complainant Prerna Dewan with the averments that the OPs floated plots of various categories in Mansa Devi Complex, Sector-2, Panchkula. In the year 2004, one Sanjeev Kumar Trehan had applied for a 14 marla plot in Sector-2, MDC Panchkula and he had allotted Plot No.482, Sector-2, MDC, Panchkula.  Thereafter, Sanjeev Kumar applied through transfer application to add the name of Smt. Urmil Narula wife of Sh. Desraj as co-owner. The said application was allowed and an allotment letter No.5333 dated 13.4.2016 was issued in the name of Sanjeev Kumar Trehan and Smt. Urmil Narula. Thereafter, the complainant purchased the plot No.482, measuring 300 sq. yard, Sector-2, Panchkula from Sanjeev Kumar Trehan and Smt. Urmil Narula and the plot was transferred in the name of complainant through Memo No.852, dated 18.1.2008 and the complainant had paid the entire amount of the plot to OPs as demanded. On 22.12.2010 OP No.2 offered the possession of the plot to complainant and the complainant applied for taking possession, but the actual possession was not delivered and later on it was transpired that the possession of the plot has not been offered so far, hence actual possession could not be handed over to the complainant. So, the complainant wrote a letter to the OP No.2 in this regard. The OP No.2 sent a memo No.3589 dated 19.3.2013 to the complainant in which it was intimated that as the land is under litigation and HUDA is not in possession to handover the physical possession of the plot. However, in order to decide the issue some new plots have been carved out to be considered for allotment as alternative plots in lieu of disputed plots through mini draw of lots in the same sector. The date of mini draw was fixed on 14.3.2013. However, the memo number and date of allotment was wrongly mentioned. In the letter it was requested to give consent in writing for allotment of alternative plot. The matter also reported in the newspaper that there is no litigation qua the plot of the complainant and the officials of OPs are not offering possession of the plots due to the reason best known to them. Complainant has visited the Sector 2 HUDA and found that HUDA has not provided the basic amenities in the area, there is no disposal of sewerage, drainage has been provided, link road has also not provided, which connect the Sector with the remaining sectors of Panchkula and development works were also not complete. HUDA has also not connected the water supply line of this Sector with the main supply line and raw water of tube well was being supplied without any treatment, electricity lines has also not connected with the rest of urban area, any park, community centre, school, shopping area or any type of facilities in this sector were also not provided by HUDA. The condition of a part developed by HUDA was miserable and there was no maintenance of this park. The OPs assured to the complainant that entire sector would be completed within three years and would hand over the possession of the plots after completion of amenities and infrastructure, but no effect. This act of the opposite parties amount to deficiency in service on their part. Hence, this complaint.

2.     Upon notice, OPs have appeared to contest the complaint by filing the written statement with the contents that the complaint is not maintainable; the complainant is stopped by her own act and conduct from filing the present complaint; no cause of action has arisen in favour of the complainant. It is stated that when the complainant was offered an alternative plot in lieu of the disputed plot, she submitted that she could wait for the judicial decision and she refused to accept the offer of alternative plots in fresh draw. It is stated that firstly the plot in question was allotted to Sanjeev Kumar Trehan, thereafter, the said plot was transferred in the names of Sanjeev Kumar Trehan and Smt. Urmil Narula and then they transferred the said plot in the name of complainant (Prerna Dewan) vide memo No.852 dated 18.1.2008. It has already intimated to the complainant vide memo No.3589 dated 19.3.2013 that due to land under litigation, HUDA could not give physical possession of plot. However, in order to decide the issue some new plots have been carved out to be considered for allotment as alternative plot in lieu of disputed plots through mini draw of lots in the same sector. The complainant was also requested to give her consent in writing for allotment of alternative plot in lieu of her disputed plot within a period of one week. The OP No.2 has also intimated to the complainant regarding draw of alternative plots vide memo No.3969 dated 22.3.2013 as the date of mini draw was fixed on 29.2.2013. The complainant has given in writing to this office that she could wait for the judicial decision and refused to accept the offer of alternative plots in fresh draw. It is stated that complainant was fully aware that the possession of the plot in Sector-2 MDC could not be delivered due to pendency of court case. She was duly intimated about the offer of alternative plots and she was requested to submit her consent in writing, however the complainant did not submit any consent and therefore, her name was not included in the mini draw. The complainant herself refused to accept the alternative plot. It is further stated that all the development work had been completed where the complainant offered alternative plot in lieu of disputed plot. But she did not accept the same. Thus, there is no deficiency in service on the part of OPs and prayed for dismissal of complaint. 

3.     The learned counsel for the complainant has tendered into the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-7 and closed the evidence.  On the other hand, learned counsel for OPs have tendered into evidence by way of affidavit Annexure R-A along with documents Annexure R-1 to R-4 and closed the evidence.

4.             We have heard the learned counsel for both the parties and have also perused the record.

5.             Admittedly, the complainant purchased the plot No.482, measuring 300 sq. yard, Sector-2, MDC, Panchkula  vide re-allotment letter No.852 dated 18.01.2008 and the complainant paid the entire amount of the plot as demanded by the Ops. The complainant requested the Ops for delivery of actual possession of plot, on this the OP No.2 intimated the complainant that the land is under litigation & HUDA is not in position to handover the physical possession of the plot and some new plots have been carved out to be considered for allotment as alternative plots in lieu of disputed plots through mini draw of lots in the same sector, therefore, she gave her consent in writing for allotment of alternative plot. The grievance of the complainant is that there were no basic amenities in the area and there was no disposal of sewerage, drainage, link roads with remaining sectors of Panchkula. Alleging deficiency on the part of the Ops, complainant filed the complaint against the Ops to pay interest on the deposited amount of Rs.17,30,150/-, Rs.2,00,000/- as damages and Rs.33,000/- as litigation expenses @ 9% per annum. The Ops has raised the plea that the complainant was intimated that the land is under litigation & HUDA is not in position to handover the physical possession of the plot and some new plots have been carved out to be considered for allotment as alternative plots in lieu of disputed plots through mini draw of lots in the same sector, therefore, she gave her consent in writing for allotment of alternative plot (Annexure R-2). The Ops also intimated the complainant regarding draw of alternative plots vide memo No.3969 dated 22.03.2013 (Annexure R-1) but the complainant refused to accept the alternative plot in lieu of disputed plot.

6.     After hearing the arguments advanced by the counsel for the parties and going through the material available on the case file which transpires that in this complaint, the complainant demanded interest as relief on the deposited amount but the complainant has not sought the possession of the plot or refund of the amount deposited by him. He has simply claimed interest on the deposited amount. Hence, the complainant only for claiming interest and compensation is not maintainable. On this point reliance can be taken from case law titled as Tanuja Kundu versus M/s Hi-Tech Developers Ltd. decided on 04.07.2016 passed by the Hon’ble National Commission, New Delhi in Consumer Case No.120 of 2016, which is reproduced as under:-

“Perusal of complaint reveals that complainant has neither claimed possession in the complaint nor claimed refund of the amount deposited by him with interest.  He has simply claimed Rs. 2,22,32,392/- by way of interest as per formula of opposite party i.e. 18% p.a. compounded quarterly interest.  Complaint is not maintainable for aforesaid amount without either claiming possession or claiming refund of the amount.  Complainant is free to file complaint claiming aforesaid amount alongwith prayer for delivery of possession of flat or refund of the amount but independently this complainant for claiming only interest alongwith compensation is not maintainable.

Order 2 Rule 2 CPC provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.  It further provides that where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. It has further so provided that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.  Thus it becomes clear if this complaint is proceeded, complainant will be precluded from filing any complaint for delivery of possession or refund of amount which would cause great hardship to him and in such circumstances, complainant is advised to file complaint alongwith all the reliefs and aforesaid complaint, only for claiming interest and compensation, is not maintainable.”

7.       In view of the above discussion, we are of the considered view that the present complaint is not maintainable and it deserves to be dismissed. Hence, we dismissed the complaint and the parties shall bear their own costs.

8.     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

18.05.2018                JAGMOHAN SINGH               DHARAM PAL

                                MEMBER                            PRESIDENT

 

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

 

                                                DHARAM PAL     

                                                PRESIDENT