Haryana

Kurukshetra

99/2018

Balbeer Singh - Complainant(s)

Versus

HUDA - Opp.Party(s)

Shekhar Thakur

15 Sep 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION  KURUKSHETRA.

 

Consumer Complaint No.99 of 2018

Date of Instt.: 09.05.2018

Date of Decision: 15.09.2021.

 

Balbir Singh son of Sh.Aatma Ram  resident of Gali No.1,  Chanarthal Road, Aakash Nagar, near New Anaj Mandi, Kurukshetra.

                                                              …….Complainant.       

                                                   Versus

 

1. Haryana Urban Development Authority, Kurukshetra through The Estate Manager.

2.Haryana Urban Development Authority, Panchkula through The Chief Administrator.

.                                                                                                                                                          ….…Opposite parties.

 

               Complaint under Section 12 of Consumer Protection Act.

 

Before        Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member. 

                   Shri Issam Singh Sagwal, Member.                           

 

Present:      Sh. Shekhar Thakur Advocate  for the complainant.

                   Sh.  Purnima Malhotra Advocate for the OPs.

                  

 ORDER

                   This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by the complainant Balbeer Singh against   HUDA and another - the opposite parties.

 

2.                In brief, the case of the complainant is that  OP No.2  widely advertised a scheme regarding allotment of free hold residential plots in  Sector-1, (Part-I) Pehowa  and the complainant accordingly applied for allotment of the plot during the extension period  on 17.11.2016.  The complainant  paid the earnest money of Rs.2,43,000/- being 10% of the cost with the application. The complainant became successful in the lots of draw held on 6.03.2017 for a plot measuring 8 Marla. It is submitted that 15% of the cost of the plot was to be deposited within 30 days of the allotment of the plot but the complainant was not intimated by the OPs regarding allotment of the plot and issuance of the allotment letter to the complainant.  The complainant received this information through other modes and not through the OPs. The complainant made efforts to deposit 15% of the cost of the plot but due to financial exigency, he could not succeed and ultimately he applied for return of earnest money of Rs.2,43,000/- vide application dated 17.4.2017 but more than four months elapsed and the OPs failed to refund the amount. Then, he got issued reminder dated 26.10.2017  asking the OPs to refund the amount  alongwith receipts but nothing has been done which amounts to deficiency in services on the part of the OPs. Thus, the complainant alleging deficiency in services on the part of the OPs, has filed the present complaint and prayed that the OPs be directed to refund the amount of Rs.2,43,000/- alongwith simple interest @ 14% from the date of surrender of the plot i.e. 17.4.2017  and compensation for the mental harassment and agony caused to him and the litigation expenses.

 

3.                Upon notice, OPs appeared and filed written statement disputing the claim of the complainant.  It is submitted that in the present complaint, the complainant has been demanding/requested by the complainant that refund of earnest money deposited under New Pehowa Scheme floated in the month of November 2016 for Sector -1, (Part) Urban Estate, Pehowa and the draw for the same was held on 6.03.2017. As per clause No.2 of the terms and conditions of the allotment of the new scheme:

 

                   “ the successful allotted shall  deposit  15% of the tentative sale price, or such other amount which together with the earnest money is equal to at least 25% of the tentative sale price of the site within 30 days of issuance of allotment letter. The remaining 75% of the tentative sale price shall be paid in lump-sum within 60 days of issuance of allotment letter, failing which this allotment shall stand cancelled without any notice and the  earnest money paid with the application shall stand forfeited against which the applicant shall have no claim for the damages,”

 

                   There was no provision of surrender of plot laid down in the broacher, so this office has sought the necessary directions/guidelines from the competent authority regarding refusal /surrender of allotment of plot No.1 Sector -1 (Part) Urban Estate, Pehowa vide this office memo No.204636 dated 2.11.2017. In that  reference the High Authority, issued the instructions vide his office memo No. HUDA/CCF/AO- Cash/2017/226903 dated 30.11.2017 which are as under:

 

                   “Whenever the date of issuance of allotment letter, the concerned Estate Officer, HUDA will refund the amount after deducting 10% of the total consideration money including interest and penalty, if any, due upto the date of application for such surrender. However, no interest shall be payable on such amount to be refundable”.

 

                   As per the instructions issued by HSVP, Head quarters vide memo No. HUDA/CCF/AO- Cash/2017/226903 dated 30.11.2017, the earnest money deposited i.e. 10% of the total consideration  money  of the plot cannot be refunded. However, 38 numbers of such persons demanded for refusal of  earnest money, they have approached the Hon’ble Punjab and Haryana High Court, Chandigarh  and filed the writ petition CWP No.5771 of 2018 titled as Rajesh Kumar and others Versus State of Haryana and others, which is fixed for 27.7.2018.

 

                   Thus, OPs have submitted that nothing is to be refunded to the complainant and has prayed for dismissal of the present complaint.

 

4.                The complainant in support of his case has filed his affidavit Ex.CW1/A and tendered documents Ex.C-1 to Ex.C-8 and closed his evidence.

 

5.                On the other hand, learned counsel for the OPs  in support of their case has filed affidavit Ex.RW1/A and tendered documents Ex.R-1 to Ex.R-4 and closed their evidence.

 

6.                We have heard the learned counsel for the parties and gone through the material available on the case file.

 

 

7.                The learned counsel for the complainant has argued that  he online applied for allotment of the plot with the Ops in  Sector -1,(Part) Pehowa  and deposited Rs.2,43,000/- as earnest money  with the application.  The complainant became successful for allotment of the plot and plot no.303 was allotted to him 15 % amount of sale consideration was to be deposited within 30 days from the date of issue of allotment letter, but the Ops had not issued the allotment letter and he applied for refund of the amount of Rs.2,43,000/- deposited by him with the application but the Ops failed to refund the said amount which amounts to deficiency in services on the part of the Ops. He has cited authority titled Rajesh Kumar and others Versus  HUDA CWP No.24489 of 2019 decided on 21.11.2019.

 

8.                On the other hand, learned counsel for the Ops while reiterating the contentions made in the written statement has argued that the plot was allotted to the complainant on line and the complainant has applied for refund of amount of earnest money beyond 30 days of the allotment of the plot and as per policy of the Ops, the complainant is not entitled for refund of any amount. It is further argued that on the application form there is no mention that  the applicant can seek refund of the earnest money.

 

9.                After hearing the learned counsel for the parties and going  through the material available on the case file we see that as per the policy of the Ops dated 30.11.2017 “Whenever the date of issuance of allotment letter, the concerned Estate Officer, HUDA will refund the amount after deducting 10% of the total consideration money including interest and penalty, if any, due upto the date of application for such surrender. However, no interest shall be payable on such amount to be refundable”. But in this case the complainant had applied for allotment of the plot online in the draw dated 6.3.2017 and the Ops have not yet issued the allotment letter and the complainant applied for refund of the said earnest money on 17.4.2017. The policy of Ops dated 30.11.2017 has been framed after the draw of lots and thus the same cannot apply to the complainant. Moreover,  said policy is contrary to Regulation 5(5) of the Haryana Urban Development (Disposal of Land and Building) Regulation, 1978 and thus the same is illegal. The policy dated 30.11.2017 provides for surrender subject to deduction 10% of the total  sale consideration and  this policy does not permit  the complainant to seek refund.  But as per Regulation 5(5) of the said Regulation  “the applicant to whom the land building has been allotted shall communicate his acceptance or refusal in writing within 30 days of the date of allotment by registered post to the Estate Officer.  Hon’ble Punjab and Haryana High Court held as under:

         

               “The writ petitions are accordingly allowed. Impugned orders Annexures P-6 to P-14 are quashed. Amendment to the format of allotment letter made vide instructions 30.11.2017, is also quashed. The petitioners would be refunded their earnest money within a period of four weeks from the date of receipt of certified copy of this order.  They would also be entitled to payment of interest @ 6% per annum from the day following 30 days after issuance of allotment letter till date of payment. In case application for surrender was made prior to date of issuance of allotment letter, the interest would be payable after 30 days of the date of receipt of the application. It is further clarified that only those petitioners who had made an application for surrender before issuance of allotment letter or within 30 days of issuance thereof, shall be entitled to the relief.”

                     

                In this case allotment letter has not been issued till today. Thus, relying upon the above cited judgment and the Regulation 5(5) as enumerated above , the  complainant is entitled to refund of the earnest money. Thus for not refunding the earnest money to the complainant, there is deficiency in services on the part of the Ops.

10.              In view of our above discussion, we accept the present complaint and direct the Ops to refund the sum of Rs.2,43,000/- ( i.e. earnest money) to the complainant alongwith interest @  6% per annum from the  date of  filing of the filing of application for surrender of plot and refund of earnest money i.e.17.4.2017  till its actual realization. The complainant shall also be entitled for a sum of Rs. 20,000/- in lump sum as compensation for the mental harassment and agony caused to the complainant together with for litigation expenses. The Ops are    further directed to make the compliance of this order within a  period of  45 days from the date of preparation of certified copy of this order, failing which, the complainant will be at liberty to initiate proceedings under Section 25/27 of the Act against the OPs. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. The complaint qua OP No.2 stands dismissed. File be indexed and consigned to the record-room, after due compliance.

 

Announced in open commission:

Dt.:15.09.2021                                                     (Neelam Kashyap)

                                                                                  President.

 

 

(Issam Singh Sagwal),              (Neelam)         

 Member                                     Member.