1.      This revision petition under section 21(b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 30.05.2011 in First Appeal no. 864 of 2008 of the State Consumer Disputes Redressal Commission, Haryana, Panchkula  (in short, the ‘State Commission’) upholding order dated 24.10.2005 of the District Consumer Disputes Redressal Forum, Faridabad (in short, the ‘District Forum’) in consumer complaint no. 321/2005.

2.      The relevant facts of the case according to the petitioner are that she applied for a residential plot in Sector 2, Palwal in July 1997 and paid Rs 46,470/- to the respondent. On 18.02.1998 plot no. 228 measuring 300 sq. meters was allotted at a tentative price of Rs 4,64,700/-. This price was subsequently revised to Rs 7,14,703/-. She paid the initial 25% of the total cost and other installments amounting to Rs 7,14,703/-. Despite several efforts, possession of the developed plot was not handed over by the respondent compelling the petitioner to apply for surrender of the plot on 19.02.2004. The respondent cancelled the allotment and refunded Rs 6,38,906/- on 17.04.2004 after deducting Rs 75,797/-. The petitioner’s requests for refund of the entire amount being to no avail, consumer complaint 321 of 2005 was filed before the District Forum which was allowed, on contest, with directions to refund the amount with interest @ 12%, compensation of Rs 25,000/- and litigation costs of Rs 2,500/-. On appeal, the State Commission set aside this order on the ground that the deduction was as per respondent’s policy dated 14.12.1995 vide Memo no. A-11-P-95/33924-51. Hence, this revision petition. 

3.      The petitioner’s case is that she had been compelled to cancel the allotment since the respondent failed to hand over possession of the developed plot of land with all amenities even after 6 years of allotment which was violative of the terms and conditions of the allotment. The respondents were, in addition, seeking further enhancement of cost. The deduction of the amount was, therefore, challenged as arbitrary and illegal. The setting aside of the order of the District Forum by the State Commission is stated to be erroneous and unjustified since the respondent had defaulted in not handing over possession of the flat as per the terms of the allotment and, therefore, was not entitled to deduct the sum of Rs 75,797/-.

4.      The respondent’s contention, on the other hand, is that the refund was sought voluntarily and that the same is covered by its Policy dated 14.12.1995 vide Memo No. A-11-P-95/33924-51 issued by the Chief Administrator, HUDA which permits surrender of plots without forfeiture of money only in 4 situations where (i) HUDA could not deliver possession due to pending litigations by original land owners; (ii) plot was not available on ground as per layout plan; (iii) land was under unauthorized encroachment which could not be removed easily and (iv) the allottee was unable to pay the balance cost or was unable to take possession due to death of a dependent. None of these conditions being attracted, 10% of the total consideration had been deducted in the instant case.

5.      I have heard the learned counsel for both the parties and perused the material on record carefully.

6.      The petitioner relied upon the following orders of this Commission in support if his contentions that the deduction of 10% of the total cost was unjust and that the State Commission had erred in setting aside the District Forum’s order:

(i)   HUDA Vs. Des Rattan Dutta in RP No 4361 of 2009 dated 20.07.2010

(ii)   HUDA Vs. Devi Chand Gupta in RP No. 669 of 2010 dated 24.05.2010

(iii)  HUDA Vs. Sanjeev Gandotra in RP No 3489 of 2009 dated 20.07.2010

(iv)  Surinder Pal Verma Vs. HUDA & Anr. in RP No 3171 of 2011 dated 10.04.2012

In all the cases it was held that the refund was not asked for voluntarily but under compulsion as the plot in question was not offered after several years because developmental work had not been carried out. It is therefore averred that this case is squarely covered and the order of the State Commission was erroneous in holding otherwise.

7.      The respondent placed reliance upon the judgment of the Hon’ble High Court of Punjab & Haryana in HUDA Vs. Zuari Industries, (2009) 3 RCR (Civil) 104 which had based its conclusion on HUDA’s decision dated 13.09.1999 that institutional/residential plots be allowed to be surrendered subject to forfeiture of 10% of the total cost and held that after a petitioner surrendered the plot and took refund, he had no right to get return of the surrendered plot. It was also contended that this matter was squarely covered also by the recent order of this Commission in Satya Dev Jakhar Vs. HUDA & Ors. in RP no. 561 of 2011 dated 3268 of 2011 which upheld the deduction of 10% as forfeiture to be valid.

8.      From the foregoing it is apparent that the plot in question was not handed over after completion of developmental works as envisaged by the respondent’s own letter of allotment. It is not disputed that these works had not been completed. The short point before us, therefore, is whether the respondent was justified in deducting the amount of Rs 75,797/- at the time of refund. The petitioner has contended that the policy of the respondent on refunds on surrender is not applicable since the surrender was due to the respondent’s failure to comply with the development of the plot for inhabitation and was therefore not voluntary but under compulsion. He has relied upon several case laws in support upholding the deduction to be incorrect and ultra vires. The learned counsel for the respondent, on the other hand, would contend that the matter is covered by the judgment in Zuari Industries (supra) and Satya Dev Jakhar (supra). Zuari Industries (supra) pertains to a case of the petitioner seeking reallotment after accepting refund and Satya Dev Jakhar (supra) pertains to a case where failure on part of the development authority to develop the area within the assured or reasonable period or financial malfeasance or allegations of some deficient/unfair act is not leveled. In the latter case, it was held by the coordinate Bench that the normative principle of deduction was justified if the application was not discriminatory to similarly situated persons. These cases are, therefore, clearly differentiated and do not lend support to the respondent’s arguments.

9.      There is, therefore, merit in the contentions of the petitioner and is liable to succeed. The petitioner has clearly proved that the surrender of the plot was not voluntary but under compulsion due to the acts of omission and commission of the respondent. In the result, the revision petition is found to have merit and accordingly succeeds. The impugned order of the State Commission is set aside and the order of the District Forum affirmed.