Haryana

StateCommission

A/42/2022

HARYANA SHEHRI VIKAS PRADHIKARAN - Complainant(s)

Versus

RADHA THAKUR - Opp.Party(s)

SIKANDER BAKSHI

17 Feb 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                First Appeal No.42 of  2022

Date of the Institution: 11.02.2022

Date of Final Hearing: 15.02.2023

Date of pronouncement: 24.02.2023

 

1.      Haryana Urban Development Authority Now Haryana Shehri Vikas Pradhikaran through the Administrator, HSVP, Gurugram, Haryana.

2.      Estate Officer-II, Haryana Urban Development Authority Now, Haryana Shehri Vikas Pradhikaran, Sector-34, Gurugram, Haryana.

3.      The Chief Administrator, HSVP, Panchkula.

                                                                            .….Appellants

Versus

 

Radha Thakur  W/o Sh.Vinod Kumar Thakur, R/o H.No.720, Mahavir Parsad Block, Asiad Village, New Delhi-49.

                                                                             .….Respondent

 

CORAM:    S.P. Sood, Judicial  Member

                    Suresh Chander Kaushik, Member

 

Present:-    Mr.Sikander Bakshi, Advocate for the appellants.

                   Mr.Pardeep Solath, Advocate for the respondent.

 

                                                 ORDER

 

S P SOOD, JUDICIAL MEMBER:

          The present appeal No.42 of 2022 has been filed against the order dated 16.12.2021 of the District Consumer Disputes Redressal Forum, Gurgaon (In short Now “District Commission”) in complaint case No.642 of 2021, which was allowed.

2.       The brief facts of the case are that respondent herein was allotted plot No.2392 Sector 57 Gurugram vide allotment letter dated 20.04.2009 bearing memo No.765 on free hold basis at a tentative price of Rs.19,40,000/-. However,  the opposite parties -appellants have failed to develop the said allotted plot  for more than 5 years owing to some dispute and litigation pending against the said plot not attributable to respondent.  On 04.07.2014, the OP allotted an alternate plot No.1375 Sector 51 Gurugram. However despite respondent  has already cleared the payments towards the said allotted alternate plot as per the allotment agreement OPs failed to give possession of either of the said originally allotted plot or that of the alternative plot.  In fact, the alternative plot was also undeveloped and disputed plot.  Since the HUDA authorities did not issue the possession of the said alternate plot to her till date, therefore the complainant could not construct a dwelling house for her residence. So there was deficiency in service on the part of the OPs as the OPs had allotted the plot originally more than 12 years ago in the year 2009, but due to non delivery of possession of the said alternate allotted plot, the complainant shall now be compelled to raise her house so late due to the deficiency in service committed  by the OPs.  The complainant also alleged is similar that present case identical to that of the another case of Ms.Suprabha Dahiya. CC 161 of 2015 titled Suprabha Dahiya Vs Huda and another wherein the learned District Commission while allowing the complaint imparted specific directions and the relevant portion was also reproduced in para No.10 of the complaint.  Complying with those directions HUDA has already allotted an alternate plot to Ms.Suprabha Dahiya. The complainant is also seeking similar relief in the present complaint. The OPs can allot an alternate plot No.3117-P Sector 46 Gurugram to  her in lieu of the earlier allotted plot No.1375 Sector 51 Gurugram. The said alternate plot is vacant and is in developed are. The cause of action arose on 04.07.2014 when the OP allotted an alternate plot No.1375 Sector 51, Gurugram in lieu of earlier allotted plot No.2392 Sector 57 Gurugram to the complainant, and is still continuing. The complainant prayed that OPs be directed to allot plot No.3117-P, Sector 46, Gurugram as alternative to the complainant at the originally allotted price, in lieu of the earlier allotted alternate plot No.1375 Sector 51 Gurugram alongwith compensation as prayed for, hence the complaint.

3.      Notice being issued to the opposite parties.  OPs filed reply.  It was submitted that the plot No.1375 Sector 51 Gurugram was exchanged in favour of complainant on 04.07.2014.  Following this development OP No.1 has already offered the possession of the said plot by way of letter No.7639 dated 04.07.2014 in exchange the original plot No.2392 Sector 57 Gurugram as the original plot alongwith some other plots were involved in dispute.  OPs were always ready and still ready to deliver the possession of the same but complainant being greedy has been avoiding the matter on one or the other pretext.  The market price of the HSVP plots in Sector 46 Gurugram is high that is why the complainant was bent upon to get another alternate plot in Sector 46 only by adopting any illegal means and tactics. Continuing further it was averred that earlier the complainant has earlier filed CWP No.12008 of 2017 titled as Radha Thakur Vs State of Haryana and which was decided by the Hon’ble Punjab and Haryana High court vide its order dated 26.05.2017 and in compliance of order dated 26.05.2017, the then Estate Officer-II, HSVP, Gurugram has already passed a speaking order No.329 dated 03.08.2018 whereby it has been stated that “the plot No.1375 Sector 51 Gurugram was available for offering possession at the site, therefore her case was not fit for allotment of some alternative plot. All civil development works like water supply, sewerage, roads, electricity etc. has already been completed”. The plot No.2392 in Sector 57 was not clear due to litigations and OPs had allotted the alternate plot No.1375 in Sector 51 Gurugram and accordingly the possession was offered to her. But complainant did not come forward to take the physical possession of the plot. The said alternate plot was clear and free from encumbrance.   It was denied that HSVP did not issue the possession letter. The HSVP was ready and willing to deliver the possession of the said plot  but complainant was avoiding to take over the possession of same with an ulterior motives.   As per the HSVP Act and Rules the allottee of any plot is liable to pay the enhanced amount.  The HSVP Department can re-allot the alternate plot in view of the policy vide endorsement No.A-6-UB/2013/7958-93 dt. 18.02.2013 and complainant did not agitate the allotment of the alternative plot No.1375 Sector 51 Gurugram.  It was denied that said complaint of Ms.Suyprabha Dahiya was similar to that of the present complaint.  The case of Sh.Hemant Kumar was also entirely different from the instant case. There has never been an intentional delay on the part of OPs to issue possession certificate, whereas the complainant has not applied to take physical possession.  The said alternate plot was fully developed and ready to be occupied.  Thus there being no deficiency in service on the part of the OPs and requested to dismiss the complaint.

4.      After hearing both the parties, the learned District Commission, Faridabad has allowed the complaint vide order dated 16.12.2021, which is as under:-

“ However, keeping in view the principle of equity and keeping in view the fact that the plot No.1376 which was allotted to Ms. Suprabha Dahiya of Sector 51 was not found suitable to the allottee, then how the adjacent plot No.1375 Sector 51 can be found suitable to the allottee i.e. present complainant.

Therefore, keeping in view the above circumstances, the present complaint is allowed and the OPs are directed to allot plot bearing No.3117-P, Sector 46 Gurugram to the complainant which is still lying vacant. The complainant is also held entitled to interest as per rates of the HUDA policy on each deposit from the date of respective deposits till offer of alternate plot. The complainant is also held entitled to compensation for harassment and mental agony as well as litigation expenses to the tune of Rs.25,000/-. The OPs shall make the compliance of the order within 30 days from the date of receipt of the copy of this order. The parties be communicated of the order accordingly and the file be consigned to the records after due compliance.”

5.      Feeling aggrieved therefrom, O.Ps-appellants have preferred this appeal.

6.      This arguments have been advanced by Sh. Sikander Bakshi, learned counsel for the appellants and Mr.Pardeep Solath, Advocate for the respondent. With their kind assistance the entire record of the appeal as well as the original record of the District Commission including whatever evidence has been led on behalf of  both the parties has also been properly perused and examined.

7.      Learned counsel for the appellant vehemently argued that they admit that the plot No.2392 in Sector 57 was not clear due to litigation therefore OPs had allotted an alternate plot No.1375 in Sector 51 Gurugram and accordingly its possession was offered to her  vide letter No.7639 dated 04.07.2014.  Counsel further argued that  the market price of the HSVP properties in Sector 46 were comparatively very high, Therefore the complainant was hell bent upon to get another alternate plot in Sector 46 by one way or the other. The complainant has earlier filed CWP No.12008 of 2017 titled as Radha Thakur Vs State of Haryana and same was decided by the Hon’ble Punjab and Haryana High court vide its order dated 26.05.2017 and in compliance of the order, the then Estate Officer-II, HSVP, Gurugram has passed the speaking order No.329 dated 03.08.2018 whereby it has been stated that “the plot No.1375 Sector 51 Gurugram is available for offering possession at site.  Therefore, I am of the considered view that this case is not fit for allotment of alternative plot. All civil development works like water supply, sewerage, roads, electricity etc. has already been completed”.   The complainant was not forward to take the physical possession of the plot. The said alternate plot was clear and that HSVP has even issued the possession letter also. The HSVP was ready and willing to deliver the possession of the said plot  but complainant has been avoiding to take over the possession of same with an ulterior motives.   As per the HSVP Act and Rules, every allottee of any plot are liable to pay the enhanced amount.  The HSVP Department can re-allot the alternate plot in view of the policy vide endorsement No.A-6-UB/2013/7958-93 dt. 18.02.2013. The complainant did not agitate the allotment of alternative plot No.1375 Sector 51 Gurugram.  It is wrong that said complaint of Ms.Suyprabha Dahiya is similar to that of the present complaint.  The case of Sh.Hemant Kumar was also entirely different from the instant case. There has never been an intentional delay on the part of OPs to issue possession certificate, whereas the complainant herself has not applied to take physical possession.  The said alternate plot was fully developed and ready for possession.  The complainant has also not challenged the speaking order.   The complainant has already availed the remedy of alternate plot. Learned District Commission has wrongly allowed the compliant and  prayed for setting aside the impugned order and dismissing the complaint  while accepting the appeal as prayed for.  He placed his reliance upon authority of  Hon’ble Supreme Court in Basawaraj and another Vs. Special Land Acquisition Officer 2013(14) SCC 81, Savitri Devi Vs. State of Haryana and others 1996 (3) RCR (Civil) 199, Narmada Bacho Andolan Vs.State of Madhya Pradesh 2011 AIR (SCW) 4473, HUDA vs B K Sood 2006 (1) JCR 42, HUDA Vs. Darb Singh gill and Anr.  2021(2) CLT 16 and opinion of Hon’ble High Court titled Rama Nand Dhaka Vs. Haryana Urban Development Authority and others in Civil Writ Petition No.937 of 2014 decided on 23.03.2015.

8.      On the other hand, learned counsel for the respondent emphatically argued that  initially she was allotted plot No.2392 Sector 57 Gurugram vide allotment letter No. 765 dated 20.04.2009 on free hold basis at a tentative price of Rs.19,40,000/- but OPs  failed to develop the said allotted plot  for more than 5 years as there was some dispute and litigation pending against the said plot.  Learned counsel for the respondent further argued that on 04.07.2014, the OPs had allotted an alternate plot No.1375 Sector 51 to complainant.  The complainant  had already made the payments towards the said alternate plot as per the allotment agreement but again OPs failed to give possession of either the said originally allotted plot or that of the alternative plot to her.  In fact this alternative plot was also undeveloped and disputed till date.  The HUDA authorities did not issue the possession of the said alternate plot to her till date, therefore the complainant could not construct a dwelling house for her residence.  The alternate plot No.1375 Sector 51  was not suitable  because  adjoining plot No.1376 of the same sector was not found suitable to another allottee Ms.Suprabha Dahiya and as such the OP had allotted an alternate plot bearing No.3059-P Sector 46 to said allottee Ms.Suprabha Dahiya and thus  the complainant also desires similar option to be made to her regarding plot No.3117-P Sector 46 Gurgaon which was lying vacant.  He placed his reliance upon authority of Hon’ble National Commission in Haryana Shehri Vikas Pradhikaran Earstwhiule known as HUDA vs Tripta Sachdev  in RP No.108 of 2022 decided on 14.11.2022, Chief Administrator Huda Vs. Darshana Sethi in RP o.1022 of 2022 decided on 13.12.2022, Yash Pal Arora Vs. HSVP decided on 16.03.2022 by Additional Chief Secretary to Govt. of Haryana Town & Country Planning, Department, Chandigarh and opinion of this commission in HUDA vs Tripta Sachdev in first appeal No.847 of 2016 decided on 02.12.2021.

9.        It is not disputed that respondent then complainant was originally allotted plot No.2392 Sector 57 Gurugram vide allotment letter dated 20.04.2009 bearing memo No.765 on free hold basis at a tentative price of Rs.19,40,000/- but the OPs  failed to develop the said allotted plot  for more than 5 years as there was some dispute regarding the same.  It is also not disputed that alternative plot No.1375 was allotted to the complainant vide allotment letter dated 04.07.2014 in Sector 51.. The issue involves of this case was that whether the said allotted alternate plot was developed or not  and the complainant was entitled for the proposed alternative plot NO. 3117-P, Sector 46 as was done by appellants in other similarly placed cases.

10.      Perusal of the file shows that present case was alleged to be similar to the case of Suprabha Dahiya Vs. HUDA and another which was decided by this Commission on 01.02.2016 and complainant was seeking similar relief, which was granted by the HUDA-HSVP, which of course has been denied by the appellants. Another development took place during pendency of the complaint that the HSVP/present appellants have filed revision Petition against  order dated 04.10.2021 in Consumer Complaint passed by the District Commission vide which OPs were directed to reserve the plot NO.3117-P Sector 46 Gurugram for the complainant and also directed EO-HUDA-OP No.1 to make a proposal and send the same to Chief Administrator HUDA for approval and necessary action on the same footing as mentioned above in Suprabha Dahiya’s case vide memo No.5562 dated 13.08.2021 issued by EO-II, HSVP, Gurugram regarding allotment & Heman t’s case. The  EO-OPNo.1 was also directed not to alienate/transfer/create any third  party interest in respect of plot No.3117-P,Sector 46,Gurugram, dismissing the said Revision petition in limini at the initial stage vide order dated 29.11.2021. 

11.    As already observed, appellants have denied that the present case of respondent is totally different from the already decided cases of Ms.Suprabha Dahiya and that Mr.Hemant but if we compare facts put across by the parties it will not be difficult to conclude about the similarities therein. Just to name a few, it was Ms.Suprabha Dahiya and Mr.Hemant and of course present respondent/complainant all of whom were originally allotted plots in Sector 57 of Gurugram in the same series and all of these even after five years of the allotment the same could not be developed owing to some litigation with the land owners.  This is how when all these allottees voiced their grievance, then HUDA authorities walk-up from deep slumber and all of them were allotted alternative plots in Sector 51. However as the area of this Sector 51 was not developed properly,  all these allottes put forth a request  to adjust them in some other sector and were thus Ms.Suprabha Dahiya & Mr.Hemant were allotted plots in Sector 46.  This is what precisely respondent wants in this case that as the request of both of the above stated allottees  Ms.Suprabha Dahiya and Mr. Hemant were heeded duly by HUDA regarding the area of Sector 51 being undeveloped and were thus adjusted in  Sector 46, while complying with the directions of learned District Commission, her case should also be decided on the same analogy and she be also allotted proposed area in Sector 46 regarding which HUDA has already been instructed to reserve the same for respondent and also for not to create any third persons’ rights qua the same. Even otherwise parity also demands the same.

12     Moreover we even are unable to reconcile with the fact as to how HUDA could afford to allot any plot to any successful buyer which happened to be the subject matter of some litigation. This is so because there is no plea of appellant this area of Sector 57 which was allotted to complainant originally got involved into litigation only after allotment but prior thereto it was all clear. For this reason even the concerned authorities can also be held accountable for deliberately pushing respondent-complainant into future litigation.

13     Coming over to the policy being followed by HUDA under which its functionaries allot different plots to various allottees as an alternative option, we see that in this case also, appellants have already allotted an alternative plot to respondent in lieu of the original plot about which there is bonafide dispute between complainant on one hand and appellants-HUDA on the other that  this,  alternative plot in Sector 51 is fully developed. But if we look into the record of the recent past earlier, even other allottees who all were also allotted plots in this sector have rejected this offer of HUDA on the sole ground of this place being not developed which has also been accepted by appellant, therefore if respondent has also come out and crying hoarse that she did not wish to take this plot the same being not developed then why appellants are dragging its feet and reluctant to allot her the proposed area in Sector 46.  All cases involving similar and identical facts need to be decided on similar lines which propriety also demands. Therefore, the questions raised by respondent regarding development of Sector 51 as alleged to the contrary by appellants seem to be probable. Therefore when respondent was not able to get the legal and valid possession of the allotted areas either in Sector 57 or in Sector 51 despite waiting for more than 12 (Twelve years) despite her having cleared entire amount towards its price structure so her grouse was reasonable and deserved to be considered sympathetically.

14.              In view of the above, the plea of the appellant that they developed the site of plot No.1375 is not tenable in the eyes of law because if the adjacent plot No.1376 is not developed, how they could have allotted the plot to the complainant. Since the alternative plot allotted to the complainant is not developed, the learned District Commission has rightly allowed the complaint of the complainant. The case laws relied by the counsel for the appellants are not relevant because the facts and circumstances of the case are different from that of the present case.   The case laws relied upon by the counsel for the respondent are covered  in this case because the facts and circumstances of the case titled HSVP Vs.Tripta Sachdev is similar to the present case. As such the question is answered in the affirmative.  

15.    Resultantly, the contentions raised on behalf of the present appellant stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Commission does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.  Hence, appeal stands dismissed on merits.

16.    The statutory amount of Rs.12,500/- deposited at the time of filing the appeal be refunded to the complainant-respondent against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

17.    Application(s) pending, if any, stand disposed of in terms of the aforesaid order.

18.    A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

19.    File be consigned to record room.

 

 

 

24th  February, 2022          Suresh Chander Kaushik            S. P. Sood                                                                Member                                             Judicial Member    

 

 

S.K

(Pvt. Secy.)