Haryana

Kurukshetra

228/2018

Mukhtiara Ram - Complainant(s)

Versus

HSVP - Opp.Party(s)

Sahab Singh

12 Apr 2021

ORDER

BEFORE THE  DISTRICT CONSUMER DISPTUES REDRESSAL COMMISSION  KURUKSHETRA.

 

                                 Complaint no.228 of 2018

                                         Date of instt. 18.08.2018

                                       Date of Decision:12.04.2021.

 

Mukhtiara  Ram Bhola alias M.R.Bhola son of late Sh.Surja Ram, resident of house no.97, Sector 13, Urban Estate, Kurukshetra.

 

                                                                                                                                                ……….Complainant.      

                        Versus

1. Haryana Shahri Vikas Pradhikaran earlier   HUDA, Jindal Chowk, Sectpr 4, Urban Estate, Kurukshetra through its Estate Officer

 

2. Chief Administrator, Haryana Shahri Vikas Pradhikaran earlier HUDA Sector 6, Panchkula.

..………Opposite parties.

 

                   Complaint under section 35 of Consumer Protection Act.

 

                                                            

Before                      Smt. Neelam President.    

                        Smt. Neelam, Member,

                        Sh.Isham Singh Sagwal, Member,

                       

Present   :          Sh. Sahab Singh Saini , Adv. for complainant.

   Sh. Sanjeev Kuimar, Adv. for OPs.  

                                    

ORDER

                                                                                       

                 This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Mukhtiara Ram  against Estate Officer, Haryana Urban Development Authority, Kurukshetra etc., the opposite parties.

2.             It is stated in the complaint that the complainant is allottee of Plot No.97, Sector-13, Urban Estate, Kurukshetra. A notice for 3rd enhancement at the rate of Rs.60.85/- was issued to the complainant, beside to the other plot holders . The said demand was challenged by the Urban Estate Residents Welfare Association, Kurukshetra who filed a civil suit against HUDA in the Civil Court at Kurukshetra  and the Hon’ble Court was pleased to order dated 3.8.2002 to the effect that the complainant as well as other allottee to pay enhanced amount at the rate of Rs.52.88/- per square meter within a period of one month from the date of order and accordingly, the complainant deposited Rs.15,865/- at the rate of Rs.52.88/- per square meter  on 14.8.2002 in compliance with the order passed by the Hon’ble Court. The said suit was finally decided on 24.12.2003 and demand notice @ Rs.60.85/- per square meter was held to be illegal, null and void and further direction to the HUDA to issue fresh notices on the basis of correct calculations. The HUDA issued fresh notices to 226 plot holders including the complainant in the month of March, 2004 with the direction to deposit the difference at the rate of Rs.4.22/- (57.10-52.88) per square meter within a period of 30 days from the date of notice. The complainant also deposited the said difference at the rate of Rs.4.22/- per square meter on 11.5.2004 amounting to Rs.1270/- vide receipt No.445648 dated 11.5.2004. Conveyance deed of the said plot was executed and registered in favour of complainant on 29.12.2004 and by that time there was no dues against the complainant regarding the said plot. . As per directions of the Hon’ble Court on the basis of fresh notice was never served upon the complainant, however, the matter was further decided by the then Estate Officer, HUDA, Kurukshetra vide its speaking order dated 9.2.2014, whereby it was taken that the enhancement is to be treated for an amount of Rs.57.10/- per square meter. It is further held that notices issued during the month of March, 2004 to 226 allottee were without interest while the notices issued to the others during August, 2012 was with interest and as such, there was discrimination and to avoid the said discrimination it was held that notice of 3^rd enhancement at the rate of Rs.52.88/- per square meter to be treated from 3.8.2002 and balance notice at the rate of Rs.4.22/- i.e. (Rs.57.10-Rs.52.88) be treated from March, 2004 and interest at the rate of 15% will be charged from these dates and consequently, if any allottee had deposited the excess amount at the rate of Rs.57.10/- is entitled to refund with the same interest i.e. 15% per annum. The complainant had already complied with the orders of the court and as passed by the then Estate Officer, HUDA, Kurukshetra and nothing was due against complainant. The amount of Rs.52,082/- was charged from the complainant on 29.12.2004 from 12.12.1991 till 31.12.2004 illegally and without any basis and the same was deposited by the complainant by reserving his right subject to the decision of the suit and since the complainant has to get conveyance deed, so the complainant in the compelling circumstances deposited the said amount and the Ops have illegally charged the same illegally and against the order of the Hon’ble Civil Court as well as the then Estate Officer, HUDA, Kurukshetra. The complainant made representation on 21.4.2014 just after the speaking order of Estate Officer dated 9.2.2014 to get the said amount of Rs.52,082/- refunded along with interest of 18% per annum but the same was not refunded in spite of written as well as verbal requests  and now the Ops’ letter bearing Memo No.A-13/2014/6952 dated 27.6.2014 is to the effect that no refund is to be made and simultaneously the complainant made representation to the Chief Administrator, HUDA, Panchkula on 10.5.2014 but in spite of the same no refund was made. Ultimately, the complainant was compelled to file a complaint against the OPs before this Hon’ble  Commission   for refund of Rs.52082/- alongwith interest  but the said complaint was dismissed by this Commission vide order dated 24.5.2017 simply on the ground that the calculation of due amount has not been submitted by the complainant. Then the complainant filed an appeal against the order dated 24.5.2017 passed by the Hon’ble Commission  bearing No.796 of 2017   wherein the OPs took a plea  before the Hon’ble State Commission Panchkula that the complainant has not mentioned the amount due towards the OPs if any, as such the Hon’ble State Commission disposed off the appeal vide order dated 27.3.2018 by directing the  complainant to file representation before the  respondent no.1 to be decided within three months from the date of issuance of notice to the complainant. In compliance of the order dated 27.3.2018,  of the Hon’ble State Commission, the complainant submitted representation on 22.5.2018  before the OP No.1 but the OP No.1 rejected the same holding that “ no excess amount has been charged” vide order dated nill (passed in the back of the complainant) which was received by the complainant on 24.9.2018 by post. Thus, it amounts to deficiency in service on the part of Ops. Hence, in such like circumstances, the present complaint was moved by the complainant with the prayer to direct the Ops to make he payment of Rs.52,082/- along with interest @ 15% per annum, to pay Rs.35,000/- as compensation on account of mental agony and harassment and Rs.11,000/- as litigation expenses.

3.             Upon notice, opposite party appeared and contested the complaint by filing written statement taking preliminary objections that the complaint is not maintainable in the present Forum; that the complainant has no locus standi and cause of action to file and maintain the present complaint; that the complainant is estopped by his own act and conduct from foiling the present complaint; that the matter regarding charging of enhancement amount, extension fee is beyond the scope of consumer Forum. Even, the Ops are well entitled to charge the enhancement amount from the complainant as per rules; that the first notice concerning to 3^rd enhancement was issued @ 60.85 per sq. meters to the allottee of Sector-13, Kurukshetra w.e.f. 15.12.1991 and the allottee and residents welfare association had filed a case before the Arbitrator and there the rate were reduced to Rs.57.10 per square meter vide order dated 2.12.1994. Thereafter, the civil court had ordered on 3.2.2008 that the rate of enhancement to be deposited at least @ 52.88 per square meter. No excess amount has ever been charged and as such no question of any refund arises at all. Hence, in view of the facts and circumstances mentioned above, there is no deficiency in service on the part of Ops and as such, the complaint of the complainant is liable to be dismissed. On merits, the contents of the complaint were denied to be wrong. Preliminary objections were reiterated. Prayer for dismissal of the complaint was made.

4.             The complainant proved on record his own affidavit as Ex.CW1/A and tendered documents Ex.C-1 to Ex.C-19 and closed his evidence.

5.             On the other hand, the OP proved on record affidavit Ex.RW1/A and tendered documents  Ex.R-1 to Ex.R-3 and thereafter closed the evidence.

5.             We have heard learned counsel for the parties and have gone through the record carefully.

7.             Learned counsel for the complainant contended that the complainant was allotted plot No. 269, Sector-13, Urban Estate, Kurukshetra vide allotment letter, Ex.C1.  He contended that the Ops have demanded 3^rd enhancement @ Rs.60.85 per square meter in the year 1991.  The Urban Estate Resident Welfare Association etc. had filed a civil suit against HUDA in Civil Court, Kurukshetra in which the Civil Court has directed to deposit the amount of Rs.52.88 per square meter as interim relief.  After this order of civil court, the complainant has deposited the amount of Rs.15865/- on 14.08.2002 with  the Ops and the civil court has declared that demand notice @ 60.85 per square meter is illegal, null and void and further directed the HUDA to issue fresh notices.  He further contended that the HUDA issued fresh notices to only 226 plot holders in the month of March, 2004 with the direction to deposit @ Rs.4.22 paise (Rs.57.10-Rs.52.88) per square meter within a period of 30 days from the date of notice but no such notice was served to the complainant.  The counsel of complainant again contended that in the month of January 2015 the complainant has applied for NOC in the HUDA department to dispose off his said plot/house.  The HUDA department refused to give the NOC without deposit the amount of Rs.52082/-  as  penal interest in lieu of 3^rd enhancement of that area.  The complainant was in need of NOC and conveyance deed.  He has deposited that amount to the HUDA department.  The department has taken that amount illegally from the complainant.  He further contended that the complainant had deposited amount of 3^rd enhancement at the rate of Rs.52.88 paise per square meter (Rs.15865 /- on 14.08.2002) as per interim order of Hon’ble Court and the complainant was thus liable for balance payment at the rate of Rs.4.22 paise ( amounting to Rs.1270/- was deposited by the complainant with the OPs vide receipt No.44548 dated 11.5.2004 and nothing was payable by the complainant to the OPs..  Thus, the HUDA department has taken excess payment of Rs.52082/- when the complainant asked the OPs to get the conveyance deed executed in his favour.  The counsel of complainant contended that the excess amount may please be refunded to the complainant.  The counsel of complainant has place reliance upon the order dt. 22.08.2017 passed by Hon’ble State Commission, Haryana in case titled as Ved Parkash Vs. HUDA bearing first appeal No.918 of 2016.  

8.             On the other hand, learned counsel for the Ops contended that the Hon’ble High Court has decided the case regarding the amount of 3^rd enhancement.  So, this Forum has no jurisdiction to entertain and try the present complaint.  It is further argued that as per the order of the Hon’ble State Commission,  if the complainant was not satisfied by the order of the  EO, HUDA, then the complainant was supposed to file appeal before the Higher Authorities of the HUDA and this commission is not competent authority to file the present complaint before this Commission. It is argued that as the complainant has not preferred appeal against the order of EO, HUDA before the Higher Authorities of HUDA, therefore, the present complaint is not maintainable before this Commission and the present complaint deserves to be dismissed on this ground alone. It is admitted by the HUDA department that the amount of Rs.52082/- has been deposited by the complainant.

 

9.             So far as maintainability of the present complaint before this Commission is concerned, the Hon’ble State Commission vide its order dated 27.03.2018 (Ex.C-28)  had disposed off the appeal filed by the complainant giving directions  to dispose of the representation after giving an opportunity  to plead his case before the HUDA. Accordingly, the complainant filed representation before the HUDA which was decided vide Speaking order Ex.C-8. As the representation of the complainant was declined by the HUDA, therefore, new cause of action accrued to the complainant and the complainant was at liberty to file new case  either before the Civil Court or this Commission and as such the present complaint before this Commission is well maintainable.

10.            From the pleadings, evidence of the case and on appraisal of submissions of both the parties, we find weight in the submissions of counsel for the complainant.  There is no merit in the submissions of counsel for the Ops.  We can rely upon the authority titled as Lucknow Development Authority Vs. M.K.Gupta, bearing civil appeal No.6237 of 1990, date of decision: 05.11.1993 (SC), wherein it has been held by Hon’ble Apex Court “Consumer Protection-Promoting welfare of Society-Act is Social benefit oriented legislation-Removing helplessness of consumer in Society where producers have secured power-Provisions of Act should be construed in favour of consumer-Milestone in socio economic legislation history and is directed to achieve public benefit”.  So, keeping in view the ratio applied by Hon’ble Apex Court in the said authority and in view of facts and circumstances of the case, we are of the considered view that the Ops have adopted the act of unfair trade practice and there is gross deficiency in service on the part of Ops.

 

11.            In this case the complainant had deposited Rs. 52082/- with the OPs on 29.12.2004 whereas the OPs were  not entitled to recover any for third enhancement for the land because same has already been paid by the complainant and this amount of Rs.52082/- has been charged by the OPs as penal interest as per Ex.C-17.  Thus, the OPs have  received  Rs.52082/- in excess from the complainant which is liable to be refunded by the OPs. As per letter issued by Chief Administrator to the Estate Officer, HUDA ( Ex.C-18) OPs are liable to get interest @ 15% on the recoveries from the allottees and in the said letter, it is also mentioned that simultaneously HUDA is liable to pay the interest @ 15%  w.e.f. excess amount deposited  by the allottee. Accordingly, in view of the own document of OPs, the complainant is entitled to interest @ 15% on the amount of Rs.52082/- from the date of deposit i.e. 29.12.2004 till its actual realization.

 

12.            Thus, as a sequel of above discussion, we allow the complaint and direct the Ops to pay Rs.52082/- to the complainant alongwith interest @ 15% per annum from the date of deposit i.e. 29.12.2004  till its actual realization and further to pay Rs.10,000/- as lump sum compensation on account of harassment, mental agony including the litigation charges.  Let the order be complied with within 30 days from the date of preparation of copy of this order, failing which, the complainant shall be at liberty to initiate proceedings u/s 25 and 27 of the Consumer Protection Act.  A copy of said order be supplied to the parties free of cost.  File be consigned to record-room after due compliance.

     

Announced in open court:

Dt.:12.04.2021 

                                                                        (Neelam Kashyap)

                                                                        President.

 

 

(Issam Singh Sagwal),                (Neelam)         

      Member                                       Member.