Haryana

Karnal

182/13

Smt. Kailash Kumari - Complainant(s)

Versus

Haryana Urban Development (HUDA) - Opp.Party(s)

Sh. Suresh Khanna

21 Jul 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: KARNAL.

 

                                                           Complaint No.182 of 2013

                                                               Date of instt.16.04.2013

                                                               Date of decision: 5.08.2015

 

Smt.Kailash Kumari w/o Sh.Naresh Kumar resident of house No.779, Sector 8, Urban Estate, Karnal.

                                                                   ………….Complainant.

 

                                                          Versus

1.The Estate Officer, Haryana Urban Development Authority, Karnal.

2.Haryana Urbana Development Authority, through its  Chief Administrator, Sector 6,  Panchkula.

.

                                                                   ………..Opposite Parties.

 

 

                   Complaint u/s 12 of the Consumer

                   Protection Act.

 

Before          Sh.K.C.Sharma……. President.

                   Smt.Shashi Sharma……….Member.

                  

 

 Present        Sh.Suresh Khanna  Advocate for the complainant.

                   Sh.C.R.Chauhan Advocate for the Ops.

ORDER:                    

 

                        The  brief facts giving rise to  the present complaint u/s 12 of the Consumer Protection  Act, are that complainant is the owner in possession  of  House No.779, Sector 8, Urban Estate, Karnal, which was  purchased by her from Sushil Kumar son of Babu Ram vide  registered sale deed No.6322/1 dated 12.12.2007. Allotment letter  bearing NO.16789 dated 18.8.1986 in favour of Sushil Kumar  was  issued by Opposite Party  ( in short OP)  No.1 regarding area of the plot as 318 sq.meters.  Conveyance deed No.1759/1 dated 27.6.2003 was also executed in  favour of Sushil Kumar mentioning  the same area. Building plan of the property was also sanctioned by the OP No.1, vide letter  No.22967 dated 29.12.2006 considering the area of the plot as 318 sq.meters. The physical possession of the said plot  measuring 24 x 13.25 meters = 318 sq.meters was also given by Sukhbir Singh Gill, JE, vide possession certificate  No.9043 dated 8.6.2007.  The complainant  entered into agreement with Sushil Kumar on 24.10.2007 for the purchase of the said property and sale consideration was paid in full on the basis of area measuring 318 sq.meters. Thereafter, Sushil Kumar, applied for  permission to transfer the plot in favour of the complainant vide letter dated 29.10.2007.  While granting permission for transfer, the OP no.1 vide letter dated 14.11.2007 informed that area of the plot is 305.28 sq.meters instead of 318 sq.meters and  the allottee was directed to submit the revised building plan as per the reduced area.  Revised building plan was  submitted to OP no.1 on 13.10.2007, which was kept  pending and the same was not approved on vague  plea.  As per policy, in case , the construction on the plot  was not completed prior to 31.12.2007, the plot was liable to be resumed, therefore, the complainant in order to  save property from resumption completed the required construction and applied for completion/occupation certificate on 31.12.2007 The complainant completed all the required formalities, but neither the  revised plan has been approved nor  completion/occupation certificate has been issued by the Ops.  However, on 16.8.2010 the OP no.1 issued letter to the complainant asking to submit  Architect report of the building,  but the authorized Architect  refused to prepare the same on the ground that site plan of the building was not approved by the HUDA/Town and Country Planning Department.  Accordingly, the complainant served legal notice dated  28.1.2013 upon the Ops but the same also did not  yield  any result.  In this way, the Ops remained willful defaulter, which caused mental harassment to the complainant. The complainant has claimed that Ops be directed to issue completion/occupation certificate after approving the revised plan, pay compensation of Rs.five lacs suffered by her due to  reduced area of the plot, refund the extension fee and interest charged thereon the reduced area  alongwith interest @ 18% per annum, charge  compounding  fee at rates  applicable as on 31.12.2007,  revise water/sewerage  bills charged at penal rates for non issuance of completion certificate  and pay Rs.one lace as compensation for the mental harassment and  agony suffered by her.

 

2.                Upon notice, Ops filed written statement controverting the claim of the complainant on various grounds. Objections have been raised that the complainant is estopped from filing the present complaint by her own acts and conduct; that the complainant has no loucs standi and cause of  action to file the present complaint; that the complaint is not  legally maintainable and that the complainant does not fall  under the definition of Consumer.

 

                   On merits, it has been submitted that before issuance of letter NO.2067 dated 13.2.2008 regarding re-allotment of  the plot to the complainant, an affidavit/undertaking dated 12.12.2007  was given by the complainant, accepting terms and conditions regarding the allotment of the  incidental  open area and abide by the   provisions of Haryana Urban Development Authority Act, 1977 and the rules/regulations applicable thereunder while granting   permission regarding re-transfer of the plot in the name of the complainant, condition No.13 was imposed, vide which she was asked to submit revised building plan  of the area of 305.28 sq.meter.  Therefore, the complainant is bound by the undertaking  and as such has no right to file the present complaint. Original owner, Sushil Kumar was also having knowledge of the fact about the area of the of the plot as 305.28 sq.meters and vide application dated 13.10.2007, he had submitted revised building plan. It has further been averred that the complainant is bound to  pay cess fee i.e. Rs.32975/- and Malba charges amounting to Rs.9000/- as per HUDA policy before getting approval of the building plan but the complainant failed to deposit the same and as such required documents could not issued in her favour. It has been admitted that   allottee/ re-allottee was bound to apply for obtaining completion certificate.  It has also been pleaded   that as per sale deed dated 12.12.2007, previous allottee Sushil Kumar obtained sale consideration of the area of 305.28 sq.meters, therefore, the complainant is precluded from agitating  matter regarding the  less area in the present complaint. Serving of notice  by the complainant upon the Ops has not been disputed. All other allegations have been denied specifically.

 

3.                In evidence of the complainant, she filed her affidavit Ex.CW1/A and documents Ex.C1 to Ex.C15.

 

4.                On the other hand, in evidence of the Ops, affidavit of Sh.Bablir Singh, JE Ex.RW1/A and documents Ex.R1 to Ex.R2 have been filed.

 

5.                We have heard the learned counsel for the parties and have gone through the case file very carefully.

 

6.                 There is no dispute between the parties that plot No.779, Sector 8, Urban Estate, Karnal was allotted to Sushil Kumar on 18.8.1986 and area was mentioned as 318 sq.meters.  The conveyance deed  in favour of Sushil Kumar was executed on 27.6.2003, building plan was sanctioned on 29.12.2006 and possession certificate was issued on 8.6.2007.  In all these documents area of the plot was mentioned as  318 sq.meters. Sushil Kumar sought permission to transfer the said plot to the complainant, vide letter dated 29.10.2007 and while granting permission for transferring the said plot vide letter dated 14.11.2007, it was informed by the Ops that area of the said plot is 305.28 Sq.meters and accordingly revised plan was submitted by Sushil Kumar  on 13.11.2007. The complainant purchased the said plot from Sushil Kumar on 12.12.2007 and  she raised construction on the said plot and applied for completion/occupation certificate on 3.12.2007.  However, neither the revised plan has been approved nor completion/occupation certificate has been issued by the OP no.1 to the complainant.

 

7.                The learned counsel for the Ops has raised the contention that  for sanction of the revised plan and issuance of the completion/occupation certificate, complainant was required to deposit Cess /fee i.e. Rs.32975/- and Malba Charges amounting to Rs.9000/- as per policy of the HUDA, but she did not deposit the said amounts, therefore, she is estopped from filing the complaint by her own acts and conduct.

 

8.                To wriggle out of the aforesaid contention, the learned counsel for the complainant laid emphasis on the contention that no demand notice was ever served by the Ops upon the complainant for depositing the said amounts. The complainant was ready and willing to deposit any prescribed fee or Malba charges if, the same were applicable for approval of the building plan and issuance of the  occupation certificate at the relevant time i.e. when revised plan was submitted and she applied for issuance of the completion/occupation certificate. It has further been argued by the learned counsel for the complainant that  one  letter dated  16.8.2010  was issued by the Estate Officer, HUDA, Karnal, the copy of which is Ex.C10, for submitting the Architect report, plumber form, affidavit and photos of the house i.e. back, kitchen and toilet. The complainant accordingly, submitted  the photos of the house, affidavit and plumber certificate on 27.9.2012.The copy of  letter in this regard is Ex.C11.  In her letter she clarified that no  Architect was  prepared to submit report as the revised building plan was not sanctioned.  In the said letter  dated 16.08.2010also no demand was raised by the Ops for  depositing Cess and Malba Charges as claimed in the written statement.  It has also been contended that complainant was not liable to deposit Malba charges etc.  at the relevant time when she applied for completion/occupation certificate, therefore, demand raised by the Ops in the written statement is illegal and unjustified.

 

9.                It is worth pointing out at the very out set that Ops have not produced any document which may show that demand regarding Cess  of Rs. Rs.32975/- and Malba Charges amounting to Rs.9000/- was ever raised from the complainant. In the written statement there is no reference of  issuing any such demand notice/letter to the complainant for depositing the  said amounts.  Even in the letter dated 16.8.2010 Ex.C10,  complainant was not directed to deposit  Cess or malba charges. It is settled proposition of law that pleadings cannot take place of proof. Therefore, under such circumstances, the Ops have not been able to establish that demand of Cess and Malba  charges was ever raised and the complainant did not deposit the  demanded amounts. After  submitting the revised  building plan, the OP no.1 was bound to approve the same until  and unless, there was  non compliance of  any order or demand of the Ops or any  provision of law by the complainant.  The   only reason for not sanctioning the revised plan and not issuing the completion/occupation certificate, as per written statement  is that the complainant did not deposit the Cess  of Rs.32975/- and Malba Charges amounting to Rs.9000/-, but Ops have failed to prove that any such  demand was ever raised from the complainant. Therefore, Ops  were  bound to sanction the revised plan and  to issue the completion/occupation certificate, but so far neither the site plan has been sanctioned nor completion/occupation certificate has been issued, though the complainant applied for the same on 31.12.2007. Thus, deficiency in services  on the part of OP No.1 is established.

 

10.               The complainant has also alleged that Ops  charged for 318 sq.meters  but the   area was found at the spot 305.28 sq.meters only  and on the asking of the Ops revised building plan was submitted before re-allotment of the plot to the complainant. The complainant has claimed refund of the excess amount received by the Ops regarding the area of the plot. 

 

 11.                  The complainant is  not entitled to get refund of any amount regarding less area of the plot because the conveyance deed in her favour was executed by Sushil Kumar , the original allottee,  in respect of 305.28 sq.meters.  Even the Ops issued re allotment letter to the complainant in respect of  305.28 sq.meters area of the plot and the transfer permission was also  regarding 305.28 sq.meters  as is evident from Ex.C4. Thus, the complainant paid for 305.28 sq.meters area  of the plot, therefore, she is not entitled to get any refund from the Ops in this regard.

 

12.               In view of the foregoing discussion, we arrive at the conclusion that there was deficiency in services on the part of Ops on account of not sanctioning the revised building plan submitted as required and  non issuance of the completion/occupation certificate to the complainant. Accordingly, the Ops are directed to approve the revised site plan and thereafter issue the completion/occupation certificate to the complainant in respect of house no.779, Sector 8, Urban Estate, Karnal,  after charging compounding fee at the rates applicable as on 31.12.2007, from the complainant and  also revise the water/sewerage bills charged from the complainant on penal rates  for non issuance of the completion certificate. The complainant shall also be entitled for a sum of Rs.11000/- for the mental agony and harassment caused to her together with a sum of Rs.2200/- for the legal fee and litigation expenses. The Ops shall make the compliance of this order within a period of  ninety days from the date of receipt of the copy of this order.  The present complaint is accepted accordingly. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

 

Announced
dated:5.08.2015                                                                             

                                                                 (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

                (Smt.Shashi Sharma)

                   Member.

 

 

 

 

Present         Sh.Suresh Khanna  Advocate for the complainant.

                   Sh.C.R.Chauhan Advocate for the Ops.

 

                   Arguments in part heard. For remaining arguments, the case is adjourned to 5.8.2015.

 

Announced
dated:27.4..2015                                                                             

                                                               (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

                (Smt.Shashi Sharma)

                   Member.

 

 

Present         Sh.Suresh Khanna  Advocate for the complainant.

                   Sh.C.R.Chauhan Advocate for the Ops.

 

 

                      Remaining arguments heard. Vide our separate order of the even date, the present complaint has been accepted. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:5.08..2015                                                                            

                                                                (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

                (Smt.Shashi Sharma)

                   Member.