This is an appeal filed by the complainant, received on transfer from Haryana State Consumer Disputes Redressal Commission, against order dated 9.10.2001 passed by District Consumer Disputes Redressal Forum, Faridabad (for short hereinafter to be referred as District Forum) passed in complaint case No.516 of 21.10.99.

2.       Briefly stated the facts of the case are that the complainant was allottee/owner of House No. 43, Sector 21-A, Faridabad and the Occupation Certificate had been given by the OPs vide letter dated 11.1.1995 and transfer letter dated 2.5.1994. The complainant had built the house partly and was given the part completion of the ground floor vide occupation certificate No.111/113 dated 11.1.1995. Prior to this, the complainant had deposited Rs.1050/- and Rs.1650/- as malba fee and construction of the plot of ground floor in full along with the proposed site plan. After the submission of the site plan, the HUDA failed to pass the site plan as submitted by the complainant and after waiting for more than six months, the complainant started construction the house as per the proposed site plan submitted to the OPs department. On completion of the house, the OPs demanded Rs.17,000/-as penalty for the violation made by the complainant while construction of the house. The complainant rectified/removed the violations in the site plan. Thereafter the complainant applied for completion/occupation certificate vide letter dated 16.2.1999 and on which date the OPs gave a target date upto 3.3.1999 but despite the fact that more than six months had expired, the OPs had failed to give completion/occupation certificate to the complainant. On 20.8.1999 the OPs issued a notice imposing a penalty of Rs.35,783.70 paise which was against the law, arbitrary and illegal and not recoverable from the complainant.  The above said act of the OPs tentamounts to deficiency in service. Hence, the complaint was filed. 

3.       Reply was filed by the OPs in which it was pleaded that due to the stay of the Hon’ble Supreme Court of India, in such cases. The site plan submitted by the complainant could not be sanctioned and the complainant had started construction without getting the building plan sanctioned and only an amount of Rs.17,000/- as penalty had been imposed upon the complainant. It was admitted by the Ops that on 16.2.1999 the complainant had applied for the issuance of completion/occupation certificate but due to the violation of the front and rear portion of the plot, the complainant was directed by OP No.1 vide letter dated 4.5.1999 to deposit an amount of Rs.35,783.70 paise for committing violations of the construction of the house within 15 days but the complainant failed to deposit the abovesaid amount and even after issuance of reminder dated 20.8.1999 the complainant failed to do so. Till date the said amount which is legally due from him had not been deposited by the complainant. Rest of the allegations made by the complainant in the complaint have been denied and prayed for dismissal of the complaint with costs.

4.    The parties led their evidence in support of their contentions.  

5.    The District Forum dismissed the complaint without any cost.

6.            Aggrieved by the order of District Forum, the present appeal has been filed by the complainant which was dismissed for want of prosecution on 19.8.2009. The same was restored on 7.9.2009 and fixed for arguments. We have heard Sh.Shiv Kumar, Advocate for the appellants and Sh.Raman Gaur, Advocate for the respondents and carefully gone through the file. The main point for consideration before us are

(i) whether the complainant has rightly deposited the Malba fee.

(ii) whether the demand of Rs.17,000/- as penalty by the OP has rightly been imposed.

(iii) whether the OPs have rightly imposed penalty of Rs.35783.70 paise for violation in construction of the house upon the complainant.

7.         After hearing the learned counsel for the parties and perusal of the record, it has been observed that the plot bearing No. 43, Sector 21-A, Faridabad was allotted to the complainant and possession was also delivered to the complainant vide letter dated 11.1.1995 and the same was also transferred in the name of the complainant vide letter dated 2.5.1994. The complainant had partly built the ground floor for which a completion/occupation certificate dated 11.1.1995 was issued. It is submitted that the complainant had deposited Rs.1050/-, Rs.1650/- as malba fee on 13.7.1994 and 15.4.1997. It is averred that the complainant had submitted the site plan in the office of the OPs for the rest of the construction. Even after six months of submission of the site plan for approval. No approval was granted by the OPs and thereafter the complainant started construction of the house as per the proposed site plan submitted to the OPs. It is further submitted that on the completion of the part construction of the ground floor of the above said house the OPs demanded an illegal amount of Rs.17,000/- as penalty for alleged violation in construction of the said house. It is further submitted that after the full completion of construction of the house, the OPs wrongly demanded a penalty of Rs.35783.70 paise against this plot. For this reason a complaint was filed before the learned District Forum and the learned District Forum dismissed the complaint of the complainant and allow the OPs to recover this aforesaid amount from the complainant. It is further submitted that in similar cases the same learned District Forum has quashed the penalties imposed by the Ops and appeal filed against this order by the OPs was dismissed by the Hon’ble State Commission, Haryana vide its order dated 20.10.1994. Hence, the complainant prayed that the appeal filed by him may kindly be allowed and the impugned order may kindly be set aside.

8.         On the other hand, the OPs pleaded that due to the stay by the Hon’ble Supreme Court of India in such cases, the site plan submitted by the complainant could not be sanctioned. The complainant started constructing the plot without getting the site plan sanctioned. On account of this, a penalty of Rs. 17,000/- was imposed upon the complainant. It is further submitted that immediately after the decision of the Hon’ble Supreme Court of India, the plan submitted by various allottees were duly sanctioned. It is admitted by the OPs that the complainant had also applied for the issuance of completion/occupation certificate on 16.2.1999. Since there were violations on the front and rear portion of the plot in question and a penalty of Rs.35783.70 paise was imposed on the complainant for the violation in construction of the house. Therefore, the penalty imposed upon the complainant is in accordance with the rules of the HUDA Act and there is no ambiguity in the order passed by the learned District Forum.

9.       After the perusal of the file and after hearing the learned counsel for the parties, we have come to the conclusion regarding the issues for consideration before us are as below.

1.          Firstly, the complainant has rightly deposited the malba fee which was as per the rules and the complainant is not entitled for the refund of the same. Hence, the prayer made for refund of the malba fee i.e. Rs.1050/- and Rs.1650/- is denied.

2.          Secondly, the OPs have rightly imposed the penalty of Rs.17,000/- due to the non compliance of the stay order passed by the Hon’ble Supreme Court of India. It is pertinent to mention here that the learned District Forum has wrongly observed that an amount of Rs.17,000/- has been demanded on account of illegal gratification as there was no mention of this fact in the complaint as well as at the time of arguments. Hence, the prayer for refund of the amount of Rs.17,000/- is also denied.

3.          Thirdly in our view that the OPs have wrongly imposed a penalty of Rs.35783.70 paise. It is settled law that an opportunity should be granted before imposing a penalty. The OPs failed to serve a show cause notice to the complainant and the penalty imposed by the OPs is illegal and arbitrary. The OPs are failed to place on file any relevant document to prove that what kind of violation has been done by the complainant. Moreover, as in case of Estate Officer, HUDA Vs. Prem Kishore, the Hon’ble State Commission, Haryana has uphold the impugned order and dismissed the appeal of the OPs on the similar facts. On the principal of consistency also the order imposing penalty of Rs.35783.70 paise in the present case is quashed/set aside.

10.     In view of the above observations, the impugned order passed by the District Forum is modified to the extent of deletion of Rs.35783.70 paise charged as penalty for violation of the construction of the above said house and the rest of the order of the District Forum is upheld. The appeal is accordingly disposed of. Parties are left to bear their own costs.

11.          Copies of this order be sent to the parties, free of charge.