Haryana

Ambala

CC/6/2022

Smt Pinki - Complainant(s)

Versus

HSVP Ambala - Opp.Party(s)

Sukh Pal Singh Khushwa

03 Apr 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	06 of 2022
Date of Institution	:	04.01.2022
Date of decision	:	03.04.2023

Mrs. Pinky Wife of Mr. Vikram Singh Rana Resident House No.204 Milanagar Village Nanheda Post Office Kuldeep Nagar Ambala Cantonment District Ambala. Now Resident of Plot No.209 Sector 32, Urban Estate Ambala Cantonment District Ambala.

          ……. Complainant.

                                                Versus

1. Haryana Urban Development Authority, Estate Officer Sector 7 Ambala Chief Publisher City Haryana HUDA Panchkula District Ambala Haryana.
2. Haryana Head Office Urban Development Authority Chief Administrator HUDA C-3 Sector-6 Panchkula District Haryana.

                                                                                   ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Sukhpal Singh, Advocate, counsel for the complainant.

                    Shri Arvind Goel, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of directions to them to pay Rs.18,00,000/-, to the complainant, as compensation and also litigation expenses to the complainant.

2.            Brief facts of the case are that the complainant was living with her family in her former house number 204 Milanagar Village Nanheda Post Office Kuldeep Nagar Ambala Cantonment District Ambala and now staying in her newly constructed house Plot Number 209 Sector 32 Urban State Ambala Cantonment District Ambala.  The  house in which the complainant is now living, had been earlier transferred in the name of Praveen Goyal S/o Shri Suresh Chand Baidya, allotment number 27787 dated-29-12-2008 and was got registered vide Conversion deed 889 dated-11-09-2021. The complainant had purchased this plot no. 209, Sector 32, Urban Estate, Ambala Cantt vide deed no. 3650 dated 07-11-2014. Since then, the complainant is the real owner and occupier of the said plot. After purchasing the said plot, a certificate was also issued by OPs No.1 & 2 for construction alongwith approved site plan, on 04-12-2017. In the year 2014, the complainant raised housing loan from HDFC Bank for construction of house on the said plot. After getting the sanctioned loan from HDFC Bank when complainant started construction on the said plot, under the approved site plan, one Rajeev Sharma's son Mr. Surendra Sharma, filed a civil suit No.143 of 2017- Rajeev Sharma Vs Haryana Development Authority etc. and obtained one-sided stay, in which the husband of the complainant is the defendant No.2. In the Civil Suit No.143, filed before Civil Judge, Senior Division, Ambala, Haryana, wherein HUDA company has made as defendant no.1, it has been stated that in the north and south side of the said plot, the road belongs to HUDA Company and someone has a house there. In the Civil Suit, Rajeev Sharma has challenged about 6 X 10 square feet of land of the plot in question by impleading husband of the complainant Shri Vikram Singh Rana and obtained one sided stay and the matter is still sub-judice before the Hon’ble Court. Before the Civil Court, Rajiv Sharma, being plaintiff has submitted that in the land acquired by the HUDA in the year 2000 for urban development, in the south side of the land inadvertently, the plaintiff constructed his house and his father Shri Surinder Sharma, in the year 2003 requested HUDA to release the said land wherein he has inadvertently constructed his house, may be released in his favour but the HUDA had not released the said land till today. After that, the complainant also filed a suit before the Hon'ble High Court, Chandigarh, with the intention that the part of the built house, which belongs to the HUDA, should be released in favor of the complainant. In the said suit, the Hon'ble High Court, Chandigarh has ordered to resolve the matter amicably. Therefore, Rajeev Sharma and his family are living in the part of that illegal house illegally keeping possession of it, which is a trespasser and punishable offense.  The said Rajeev Sharma is demanding his way through the plot of the complainant, despite the fact that there is already a 20-25 feet wide road in front of house no.215. According to the map view A, B, C, D, the plot in question which has been purchased by the complainant in the year 2014, which is not in dispute and the area on which the houses A, B, C, D are built in the southern part of the area is 15 square feet, which is indicated by the words K, L, C, D. House no. 215, village Nanheda district Ambala, of Rajeev Sharma is displayed with the word JHIJ in north part which is disputed land of HUDA. The land in front of that place which is shown by the word LGPC, that land has also been described as the land of his 6 feet road in his civil suit while it is part of the plot of HUDA. On this basis, Rajeev Sharma by saying that the land showed as KLCD belongs to him, had obtained stay from the Civil Court by filing a civil suit. Mr. Rajeev Sharma has built his house according to the land of Nanheda village, in which part of the GHTP house is illegal, which he had encroached forcibly. If he is to build a house on his own deed of land, then there is already a road of 25-30 feet wide road in front of his house which is indicated by the word NPNS, which goes to the south. Rajeev Sharma and his family are living on encroached land, which is criminal and punishable offence according to section 441, 447, 448 IPC. HUDA was informed through a notice but to no avail. The HUDA is responsible for the said dispute because had the HUDA company timely consider the application moved by Suresh Chand regarding the H.No.215 and ordered for the removal of the illegal construction and also ordered for release of 6 feet rasta which was situated in front of the aforesaid house belongs to HUDA, and HUDA would have sold the H.No.209, then this situation would not have arisen. Due to the negligent and callous behavior of the OPs, complainant was dragged into unwanted litigation as a result whereof she had spent about Rs.5,00,000/- to pursue the said cases and wasting her time and also suffered a lot of financial losses in total complainant suffered the loss to the tune of Rs.8,00,000/- for which OPs are responsible.  It was the responsibility of OP No.1 and 2 to acquire unencumbered land if anyone is free from all encumbrances and is in illegal possession of somebody, then firstly they should have got it free and only then allot that land to someone, which they failed to do so.  Hence this complaint.
3.           Upon notice, the OPs appeared and filed written version wherein numerous preliminary objections were taken to the effect that the complaint is not maintainable as one civil suit no CS/143/2018 title Rajiv Sharma Versus HUDA and Vikram Singh Rana (husband of complainant) is pending in the Civil Court, Ambala, regarding the same matter which is also mentioned in the complaint filed by complainant; complicated question of law and facts that (1) whether Shri Rajiv Sharma S/o Shri Surinder Sharma had encroached the HUDA land as mentioned in the complaint by complainant? (2) whether the site plan attached with the complaint by complainant is correct?; the complaint is bad for non- joinder of Sh Rajiv Sharma S/O Sh Surinder Sharma as necessary party, as the complainant had mentioned in her complaint that Sh Rajiv Sharma had obtained stay from civil court in civil suit no CS/143/2018 in which the husband of the complainant Shri Vikram Rana is one of the defendant and the complainant had further mentioned in para no 5 in her complaint that Shri Rajiv Sharma had encroached the land illegally; the civil suit was filed in the year 2018 in which the husband of the complainant is made party but the present complaint is filed on 30-12-2021 which is time barred;  the complainant is not a consumer; that no cause of action has arisen as the complainant in her letter dated 25-6-2018 addressed to HUDA, had mentioned that "this to bring your knowledge as per court order I have been covered my DPC of plot no 209, Sector -32, Ambala Cantt. I will start further construction request to please consider the same provide covered area DPC Certificate", which shows that the complainant had covered her entire area of plot no 209 etc. On merits, it has been stated that Shri Parveen Goel S/O Shri Suresh Chand Goel, the 1^st allotee of plot no 209, Sector -32, Ambala Cantt. had taken the possession of the plot (with complete dimensions,) as per possession certificate bearing memo no 1538 dated 19-2-2010. As per clause 15 of the re-allotment letter bearing memo no 5958 dated 18-12-2014 which is in the name of complainant, the complainant has to approach regarding any dispute to an arbitrator. In the complaint complainant herself has stated that the civil suit regarding the passage/encroachment is pending in civil Court and civil court had granted stay in this regard.  When civil court has granted stay in favour of Sh. Rajiv Sharma then how the OPs can remove the encroachment if any. It is duty of the complainant to purchase the plot after fully verification and satisfaction. Rest of the averments were denied by the OPs and prayer has been made to dismiss this complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure CA-1 to CA-9 and closed the evidence on behalf of the complainant. Learned counsel for the OPs tendered affidavit of Darshan Kumar, HCS, Estate Officer, Ambala as Annexure RW-1/A alongwith documents as Annexure R-1 to R-7 and closed the evidence on behalf of the OPs.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file and also gone through the written arguments filed by the learned counsel for the complainant.
6.           Learned counsel for the complainant submitted that since the OPs failed to obtain clear title of the land in question, which resulted into berth of dispute between her and Rajeev Sharma, as a result of which, the complainant is forced to enter into unnecessary litigation filed by Rajeev Sharma and is not able to live peacefully in her plot in question, as such, the OPs are liable to compensate her in the matter.
7.           On the other hand, learned counsel for the OPs submitted that since the matter is admittedly subjudice before the Civil Court as such the present case is not maintainable before this Commission. He further submitted that peaceful possession was delivered to the then owner of the plot in question and dispute if any arose thereafter with Rajeev Sharma and the complainant, the OPs cannot be held responsible for that. He further submitted that the complainant should have waited in the matter, especially, when stay has been granted by the civil court in the matter.   
8.           The moot question which falls for consideration is, as to whether, the present complaint is maintainable before this Commission or not. It may be stated here that in the present case, since it is coming out from the record that the entire case of the complainant rests upon the ground that part area of the way to her plot no.209 is being encroached by one Rajeev Sharma illegally, for access to his plot no.215, as such, in our considered opinion there are several  specific laws in India, which allows property owners to defend their property against  such alleged encroachers like Permanent or temporary injunction; order 39, Rule 1 and 2 of the Land Encroachment Act; ex-parte injunction etc. etc.

Be that as it may, it is the own case of the complainant that one civil suit no CS/143/2018 title Rajiv Sharma Versus HUDA and Vikram Singh Rana (husband of complainant) is pending in the Civil Court, Ambala, in respect of the dispute in question and that Rajeev Sharma has also obtained stay, Annexure R-2 dated 20.04.2018, in the matter. Not only as above, the complainant herself has also stated in her complaint that she had also filed a complaint in the Hon'ble High Court, Chandigarh, with the intention that the part of the built house, which belongs to the HUDA Company, should be released in favor of the complainant, in which the Hon'ble High Court, Chandigarh has ordered to resolve the matter amicably. If that is so, we have no hesitation to hold that this Commission has no jurisdiction to entertain and decide this complaint, proceedings before which are summary in nature, and, especially, when civil court case is pending adjudication and stay has been admittedly granted in the matter. This Commission also did not vest with jurisdiction to entertain the present complaint because two parallel remedies simultaneously in the matter cannot be permitted, especially, when admittedly there is stay granted by the civil court in the matter.

9.           For the reasons recorded above, this complaint stands dismissed with no order as to cost, being not maintainable before this Commission. However, the complainant is at liberty to continue with the civil court proceedings, which are admittedly pending adjudication, qua the property in dispute. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.     

Announced:- 03.04.2023.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President