Haryana

StateCommission

A/129/2015

PARVEEN KUMAR AGGARWAL - Complainant(s)

Versus

HUDA - Opp.Party(s)

S.M.WADEHRA

10 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      129 of 2015

Date of Institution:      09.01.2015

Date of Decision :      10.01.2017

 

Parvin K. Aggarwal, Resident of House No.742, Sector-7, Panchkula-134109.

                                       Appellant-Complainant

Versus

1.      The Haryana Urban Development Authority, through Principal Secretary to Government of Haryana, Department of Town & Country Planning, New Haryana Civil Secretariat, Sector-17, Chandigarh.

2.      The Chief Administrator, Haryana Urban Development Authority, HUDA Building, Sector-6, Panchkula.

3.      The Administrator, (H.Q.), Haryana Urban Development Authority, HUDA Building, Sector-6, Panchkula.

4.      The Estate Officer, Haryana Urban Development Authority, Sector-12, Karnal.

                                      Respondents-Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Argued by:          Shri Parvin Kumar Aggarwal-appellant in person.

Shri Sikander Bakshi, Advocate on behalf of Shri Rajesh Kaul, Advocate for respondents.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

          This complainant’s appeal is directed against the order dated January 2^nd, 2015 passed by District Consumer Disputes Redressal Forum, Panchkula (for short ‘the District Forum’) whereby the complaint was dismissed.

2.                The brief facts of the present case are that one Ram Chander s/o Sh. Rattan Singh, was allotted a plot measuring 14 Marlas bearing No.1673, Sector-7, Karnal by by Haryana Urban Development Authority (HUDA), vide letter No.15366 dated 15.05.1987, under the discretionary policy of the Haryana Government. However, due to Government Policy decision dispensing with the discretionary quota allotments, the allotment of the plot was cancelled vide letter No.12692 dated 04.07.1987. Thereafter, in view of the judgment passed by Hon’ble Punjab and Haryana High Court, Chandigarh, the allotment of the plot was restored vide letter No.3050 dated 26.03.1990 and allotment letter No.5225 dated 05.05.1990 was issued by HUDA. Thereafter, Parvin Kumar Aggarwal-complainant (appellant herein) purchased the plot in question from the original allottee- Ram Chander. HUDA issued re-allotment letter No.10043 dated 27^th June, 1990 (Annexure C-1) in favour of the complainant.

3.                Since, all the plots including the plot in question, which were allotted by HUDA under the discretionary quota, remained under litigation in civil writ petition before Punjab and Haryana High Court, Chandigarh for a considerable period, that is, 19^th June, 1997 to 25^th February, 2002; so the HUDA excluded the period of litigation for the purpose of computing the extension period for raising construction under HUDA extension policy. In this respect, the complainant was informed by the Estate Officer, HUDA, Karnal-Opposite Party No.4 vide letter bearing memo No.1304 dated 30^th January, 2007 (Annexure C-2), the relevant portion of which is reproduced as under:-

“….it is intimated that the extension fee has been charged after deducting the litigation period. The date of offer of possession is correct 20-11-91. The extension period will be considered under HUDA Extension policy after deducting 1047 days i.e. (19-06-97) to 25-02-02) for which the matter was pending in the court.”

4.                Thus, by taking benefit of the litigation period, the complainant was to raise construction over the plot in question up to August/September, 2007. 

5.                Vide letter No.3746 (Annexure C-3) dated 05.03.2009 HUDA informed the complainant as under:-

“….it is informed you that you have purchased this plot from Sh. Ram Chander i.e. from the open market on 27.6.90. After this reallotment in your name this plot was never cancelled. Hence, you are liable to abide by the rules and regulations of the HUDA and provisions of HUDA Act, 1977 as accepted by you in your acceptance affidavit dated 10.05.90 submitted in this office duly attested by Ist Class Magistrate Karnal at the time of issue of re-allotment letter in your favour.

          The contents of letter No.1304 dated 30.1.07 are related to the plots allotted after 92 out of discretionary quota. But your plot was allotted in the year 1990 vide office memo No.5225 dated 5.05.90 in the name of Sh. Ram Chander. Hence the contents mentioned in the said letter (1304 dated 30.01.07) may be considered withdrawn. The inconvenience caused due to this letter is regretted please.

          Hence you are requested to follow the rules and regulations of HUDA Act, 1977 amended up to date.”

6.                The possession of the plot was offered to the complainant vide letter No.1805 dated 20.11.1991. As per condition No.18 of the allotment letter, the complainant was to complete the construction within two years from the date of offer of possession. However, the complainant did not raise construction. The competent authority vide letter No.Auth.98/8067-87 dated 26.03.1998 decided that as the allottees of discretionary quota plots from 14.07.1971 to 31.10.1989 were unable to raise any construction on their plots from 13.05.1997 to 18.03.1998, the issue to give extension in the existing time limit by a period equivalent to the period relevant during which restraint order remained operative and in existence, was considered and it was decided that the allottees of discretionary quota plots from 14.07.1971 to 31.10.1989 may not be charged any extension fee from 01.01.1998 to 31.10.1998 i.e. for a period of 10 months for which the stay remained operative. Thus, all such allottees of discretionary quota who were unable to complete their construction on the plots allotted to them by 31.10.1998 were given further extension of one year from 01.11.1998 to 31.10.1999 in the extension fee applicable for the year 1998.  Vide policy dated 02.04.2007, it was decided that no extension shall be granted beyond 15 years including the initial stipulated period of two years (2+13 years) after the date of offer of possession. Thus, the allottees of plots were given 15 years time to raise construction from the date of offer of possession. For those plots in respect of which the period of 15 years either had already expired or was going to be expired on 31.12.2006, it was decided that all such allottees who had already availed a period of 15 years or more by 31.12.2006 would get their building plan approved before 30.06.2007 and complete their construction up to 31.12.2007 and apply for occupation certificate by 31.12.2007. Since possession of the plot in question was offered to the complainant on 20.11.1991, therefore 15 years period there-from was completed on 19.11.2005.  Thus, in terms of aforesaid policy, construction was to be completed on or before 31.12.2007.

7.                Vide letter No.22402 dated 29.12.2006 the complainant was informed about the revised extension policy. The building plan submitted by the complainant was sanctioned vide letter No.22702 dated 29.12.2006 but still the complainant failed to complete the minimum required construction within the stipulated period and did not submit case for issue of Occupation Certificate. The policy was again revised granting relaxation for raising construction up to 30.11.2009 in cases where building plans had been got approved and construction had been started but occupation could not be obtained, subject to payment of double extension fee. Despite the above said concession, the complainant failed to comply with the terms of the policy. The complainant applied for occupation certificate on 30.11.2009. The Junior Engineer of HUDA inspected the site and found that the house was not fit for occupation. So, HUDA issued letter No.2134 dated 11.02.2010 stating that “house not fit for occupation such as flooring work, woodwork, sanitary work, electric work etc not completed” and thus refused to issue occupation certificate to the complainant. Reminder bearing No.12028 dated 13.10.2010 was also issued to complete the construction work. Thereafter, the complainant requested for completion certificate vide application dated 03.01.2012. However, HUDA vide letter No.1040 dated 18.01.2012 informed the complainant about the shortcomings in the construction because the same was not in accordance with HUDA policy and thus the occupation certificate was not issued. The complainant after completing the shortcomings, applied for occupation certificate on 09.09.2013 and thereafter the HUDA worked out the extension fee payable by the complainant at Rs.10,85,370/- up to 30.09.2013. Challenging the demand of extension fee, the complainant filed complaint before the District Forum.

8.                The Opposite Parties-HUDA contested complaint by filing written version. It was stated that the complainant himself was negligent/deficient in not raising the construction as per HUDA guidelines and therefore the extension fee was rightly demanded from him. Denying the allegations of the complainant, it was prayed that the complaint be dismissed.

9.                After evaluating the pleadings and evidence of the parties, the District Forum vide impugned order dismissed the complaint.

10.              Undisputedly, initially the plot in question was allotted to Ram Chander and the complainant is re-allottee of the plot. The possession was offered to the complainant vide letter No.1805 dated 20.11.1991. As per Clause 18 of the allotment letter, the complainant was bound to complete the construction within two years from the date of offer of possession.  Condition No.18 reads as under:-

                   “Condition No.18

You will have to complete the construction within two years of the date of offer of possession after getting the plans of the proposed building approved from the competent authority in accordance with the regulation governing the erection of buildings. This time limit is extendable by the Estate Officer, if he is satisfied that non-construction of the building was due to reasons beyond your control, otherwise this plot is liable to be resumed and the whole or part of the money paid, if any in respect of it forfeited in accordance with the provisions of the said Act.”

11.              The controversy only starts that as per the complainant he completed the construction by 30.11.2009 and applied for occupation certificate vide application dated 30.11.2009. It is not disputed that the complainant has paid ‘extension fee’ for delay in construction prior to that period i.e. 30.11.2009. As per opposite parties-HUDA, in the application itself submitted by the complainant,  through his Architect, it was mentioned that the construction was not complete, therefore the Junior Engineer of HUDA has given a note that construction was not fully completed and house was not fit for occupation. The note is reproduced as under:-

“The site was checked by the concerned Junior Engineer on dated 29.12.09. The site was found not fit for issue of Part Occupation/full Occupation. So the refusal notice placed below for signature please for further communication to the allottee.”

 

12.              Besides the fact that the architect engaged by the complainant, who was certainly a representative of the complainant, has given note of house not being fit for occupation, even on inspection by the officials of the HUDA also house was not found fit for occupation and notice in this regard was sent to the complainant. After prolonged correspondence between the parties, when the HUDA issued notice dated 19.07.2012 for resumption under Section 17(3) of HUDA Act, 1977 (Annexure C-9), the complainant again produced photographs. Thereupon, fresh inspection was carried out on 12.09.2013 when house was found fit for occupation.

13.              The issue involved is whether complainant was liable to pay extension fee beyond 30.11.2009.

14.              As per HUDA, since the complainant did not complete the construction, therefore he was liable to pay the extension fee till completion of building. A perusal of note annexed by the architect, who was representative of the complainant, at the time of applying occupation certificate, the house was not fit for occupation, besides that it was not found to have been constructed as per sanctioned plan vide inspection report of the officials of HUDA-opposite parties. The contention of complainant that construction has been completed as he has paid water and electricity charges from 01.01.2010 onwards, cannot be accepted. Mere payment of water and electricity charges from 01.01.2010 onwards cannot raise presumption of completion and house being fit for occupation in terms of sanctioned plan. Another plea raised by complainant is that he is not bound by note given by his Architect. The complainant is bound by the note of the architect who was his agent.

15.              The complainant himself admits that he applied for occupation certificate submitting the building to be completed as per plan through his architect. The architect engaged by the complainant has himself mentioned the building to be not complete. He is representative of complainant; therefore complainant is bound by same.

16.              It is own case of the complainant that thereafter he did not apply for completion of occupation certificate at any point of time. The contention raised by the complainant is that the architect appointed by him has wrongly given the certificate. Whatever it may be, the architect appointed by the complainant submitted the application as representative of the complainant, complainant cannot wriggle out from the certificate signed by his own architect. There is no other document on the file from where it can be inferred that the complainant completed the construction and the building was fit for occupation on the date the complainant applied for completion and occupation certificate. The complainant has referred to letters Annexure C-11 to C-14 to say that though the opposite parties have sent their reminders in response to his application for completion and occupation however since he has never submitted any reminder, therefore there could not be any reply to the reminders. Once the complainant himself admits that he did not apply for completion or occupation certificate after application dated 30.11.2009 and the architect certified the building not to be complete, therefore, the opposite parties could certainly recover ‘extension fee’ for non-completion of the construction within the stipulated period.

17.              Even otherwise, the ‘extension fee’ cannot be disputed in view of law settled in HUDA versus SUNITA (2005) 2 Supreme Court Cases 479, wherein the Hon’ble Supreme Court has held as under:-

“3.     After perusing the order of the National Commission and hearing learned counsel for the parties we find that the National Commission has held that the statutory obligations of HUDA and plot-holder under the provisions of the HUDA Act and the Regulations are not acts or omissions constituting “deficiency in service” within the meaning of the Consumer Protection Act.

4.      On the above finding, the National Commission had no jurisdiction to go into the correctness of the demand of “composition fee” and “extension fee” made by HUDA from the respondent complainant.”

 18.             In view of the facts and circumstances of the case and the legal position enunciated above, it is held that the HUDA rightly demanded the ‘extension fee’ from the complainant and the District Forum was justified in dismissing the complaint.

19.              Hence, the appeal fails and is hereby dismissed. 

 

Announced 10.01.2017

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL