MRS. NEENA SANDHU, MEMBER

1.     This is an appeal filed by the OP, received on transfer from Haryana State Consumer Disputes Redressal Commission, against order dated 16.1.2002 passed by District Consumer Disputes Redressal Forum, Sirsa (for short hereinafter to be referred as District Forum) passed in complaint case No.3487 of 2001.

2.        Briefly stated the facts of the case are that the plot No. 135 in Block-A M.T., Sirsa was originally sold by Colonisation Department vide allotment No. 1112 dated 30.1.1958 for Rs.1760/- and the conveyance deed was executed on 16.8.1962 for the plot measuring 250 Sq. Yards in favour of original allottee Sh.Dharam Chand son of Sh.Jamita Ram after the deposit of full amount of Rs.1760/- and thereafter no building plan was submitted before the authority of Ops (HUDA) for the purpose of raising construction by the original allottee. Subsequently, the plot was purchased by one Sh.Kewal Ram. As there was a heavy amount outstanding in respect of plot including the excess area of 93.33 square yards and various notices sent by the Estate Officer, HUDA, Sirsa to the original allottee Sh.Kewal Ram, who had not deposited the amount. Instead of it, various opportunities were given to the allottee vide memo dated 11.12.1995, 9.4.1997, 2.7.1997 and 17.9.1997 but the allottee failed to deposit the amount. Ultimately the Estate Officer resumed the plot of the allottee namely Sh.Kewal Ram and ordered for forfeiture 10% of consideration money, interest and penalty etc., out of the amount deposited by him. Both the complainants filed an appeal before the Administrator, HUDA the complainants purchased this plot by way of sale deed. The Administrator, HUDA held that as this plot was sold many times to various persons and lastly on 7.4.2000 this plot was sold to the present complainants and prior to it all the letters were issued by the office prior to 7.4.2000 in the name of Sh.Kewal Ram who was the owner in the record as neither any transfer fee was deposited by anyone nor the said plot was transferred in the name of any other person. The full amount of the plot was deposited and only the amount of excess area was not deposited. The complainants were ready to deposit the amount due against them. The Administrator, HUDA set aside the impugned order dated 25.3.1998 passed by the Estate Officer, HUDA and directed the complainants to make the payment of balance amount within a period of 15 days and the Estate Officer, HUDA was also directed to inform the appellant regarding outstanding dues within 7 days vide its order dated 20.3.2001 but inspite of the repeated requests of the complainant, the Estate Officer, HUDA could not issue the demand notice for the amount to be deposited and the impugned order dated 20.3.2001 were conveyed by the Administrator, HUDA to the complainants vide its endorsement No.2386 dated 5.4.2001. After receiving the impugned order, the complainants again and again requested the Ops to give the demand notice but the Ops did not bother to give the exact amount due from the complainants. The complainants paid an amount of Rs.5,000/- vide bank draft bearing No. 0527970 dated 21.6.2001 to be withdrawn from Bank of Baroda at Sirsa in the name of the Ops but the Ops failed to issue any further demand from the complainants and as such the amount paid by the complainants was already in excess and the complainants were entitled to get the refund along with interest. It was submitted by the complainant that there was no occasion to say by the Ops that the complainants were in an unauthorized occupation of the plot and the Ops were only competent to recover the price of additional land attached with the plot according to the provisions of law and the complainants always offered and even paid, hence the resumption of the plot as well as creating illegal liability amounts to deficiency in service and harassment & humiliation to the complainants. Hence, the complaint was filed.

3.        Reply was filed by the Ops and pleaded that the complainants are not consumer qua the respondents and the complaint is incorrect to the extent that the complainants are vendees of the plot in question. The complainants never informed the HUDA Department of any such alleged purchase of the plot in question by them and no document was ever submitted to HUDA Department to bring on record any such alleged sale and purchase of the plot in question by the complainants and/or anyone else. It was only in the appeal that the complainants spoke of having purchase of the plot in question but it was never got transferred at any stage till the date in favour of the complainants. It was correct that the plot in question was sold by the Colonisation Department vide allotment letter dated 30.1.1958 for a sum of Rs.1760/-. It was pleaded that no such alleged sale of the plot in question was brought to the notice of HUDA Department and even alleged sale deed No. 35 dated 7.4.2001 was not brought to the notice of the Ops. It was incorrect that the vendees were not required to inform any department for the correction of record. The factum of all such sale deeds having been kept secret and not producing the same in the concerned department and for the first time the same seeing on the occasion of preferring appeal to Administrator, HUDA against order dated 25.3.1998 passed by the Estate Officer, HUDA. The complainants or any earlier purchaser had no right and authority to raise construction on the plot in question. As per notice/memo issued by the Estate Officer, HUDA, Sirsa, the complainants were in unauthorized and illegal occupation of plot and the construction raised thereon is also unauthorized and illegal. The said notice was just and legal and the complainants were nobody to impugn and assail the same and the plot in question was rightly and legally resumed vide order dated 25.3.1998 passed by the Estate Officer, HUDA, Sirsa. The owner of the plot namely Sh.Kewal Ram had failed to make the payment of the amount due in respect of excess area to the extent of 93.33 square yards and as such Estate Officer, HUDA had issued various notices/letters to the complainants and Sh.Kewal Ram had failed to reply to any of these notices and also failed to make the payment of the amount due as required. Consequently Estate Officer, HUDA had resumed the plot vide order dated 25.3.1998. The present complainants had preferred an appeal against order dated 25.3.1998 before the Administrator, HUDA and vide order dated 20.3.2001, the Administrator, HUDA had set aside the order passed by the Estate Officer, HUDA. The complainants had not complied the order passed by the Administrator, HUDA dated 20.3.2001 and not deposit the amounts required thereby. Impugned amount of Rs.5,000/- paid by the complainants was insufficient and hence did not absolve them of their liability and responsibility to clear the amounts due. It was not even paid within time and it is denied that the said amount paid by the complainants was already in excess and the complainants were entitled to get the refund thereof along with interest. All other allegations made by the complainants in the complaint were denied and submitted that there was no deficiency in service on the part of OPs and prayed for dismissal of the complaint.

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

5.     The District Forum dispose of the complaint as Estate Officer, HUDA did not comply with the order of the Administrator, HUDA, Hisar properly and never issued any recovery memo for the outstanding dues against the excess area, transfer fee etc. and the Ops are guilty for their negligency and deficiency under Section 2(1)(g) and 2(1) (o) of the CPA, 1986. While commencing on the question of compensation under Section 14(1)(d) of the Act, the learned District Forum held that we direct the Estate Officer, Sirsa to issue memo for recovery against the excess area according to proportionate price of the actual plot and the same be paid by the complainant with saving bank interest i.e. 5% p.a., from the date of registered sale deed and same be paid by the complainant within one month. Further there is no recovery due against the plot No. 135 and transfer fee had already been deposited by the complainant through draft and the complainant is not liable to pay Rs.5,000/- against each transfer because he once liable and had already paid.

6.        Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the OPs and submitted that the learned District Forum committed a grave legal error by entertaining the complaint as the complainants are not a consumer because they have not hired the services of appellant authority. The learned District Forum committed a grave illegality by quashing the memo No. 6691 dated 24.9.2001 passed by the appellant authority and the plot was already resumed for all intents and purposes because the earlier allottee failed to pay the outstanding dues of the plot and even the present complainants did not deposit the same as per the orders of the Administrator. Therefore the memo dated 24.9.2001 was rightly passed by the appellant authority and the learned District Forum had no powers to quash the memo. The learned District Forum committed a grave legal error by holding that the complainants are not the unauthorized occupant whereas it is apparent that the complainants are not the owner of the plot in question. The learned District Forum had acted beyond its powers as it was a matter of evidence which can only be decided by the competent civil court. The learned District Forum had further erred in law and facts brought on record by holding that the appellant authority guilty under the CPA, 1986 whereas the complainants were themselves deficient because as per the orders of the Administrator they did not deposit the outstanding amount due of the plot. The learned District Forum committed a gross infirmity by directing the appellant authority to issue memo for recovery against the excess area according to proportionate price of the actual plot with saving bank interest 5% p.a. from the date of registered sale deed because the amount is outstanding on the whole plot and not on the excess area only. Further they have no right on the plot as the plot has already been resumed for all intent and purposes and as per the terms and conditions of HUDA, the allottees are very much liable to pay the whole amount due of the plot. Inspite of various notices, the amount due was not paid by the original allottee and a heavy amount is due of the plot including the penal interest. Therefore the learned District Forum has illegally directed to accept the amount with interest 5% only and the learned District Forum had wrongly held that no recovery is due against the plot whereas a heavy amount is outstanding against the plot No. 135 and the same was resumed due to the reason that the same was not deposited. The learned District Forum committed a grave legal error by directing that the complainants are not liable to pay Rs.5,000/- against each transfer whereas according to the terms and conditions of HUDA Rs.5,000/- is to for each transfer. Hence, the impugned order passed by the learned District Forum is wrong, illegal and unsustainable in the eyes of law and prayed that the appeal may kindly be allowed and set aside the impugned order passed by the learned District Forum. 

7.     We have heard Sh.Amandeep Singh, Advocate for the appellants and Sh.Luxmi Niwas, husband of the respondent No.1  & representative of respondent No.2  and carefully gone through the file.

8.        During the pendency of appeal, the learned counsel for the complainants/respondents submitted that no intimation whatsoever was ever sent to the complainant by the Estate Officer, Sirsa in compliance with the order of Administrator, HUDA. Taking this point into consideration a query was put up to the Estate Officer, Sirsa to intimate how much amount was outstanding on the said plot against the complainant and whether they have informed the complainant about the outstanding amount if any and regarding this a direction was issued vide its order dated 5.8.2009 directing the Estate Officer, Sirsa to inform the complainant about the outstanding amount of the plot in question against the respondents/complainants within a week from today and then complainant shall deposit the entire amount further within 15 days. The Estate Officer, Sirsa intimated the State Commission, UT, Chandigarh on 26.10.2009 that the total outstanding dues against the complainant on the aforesaid plot was Rs.2,61,198/-, regarding this an affidavit was filed by Sh.S.K.Setia, Estate Officer, HUDA. The respondents/complainants deposited the same amount vide demand draft No. 13141 dated 23.11.2009 which was duly received by the Estate Officer, Sirsa on 23.10.2009. In our view, as both the parties have complied with the directions issued by us and all the dues were cleared by the respondents/complainants as demanded by the appellants/Ops. We, therefore, direct the appellants/Ops to transfer the said plot in the name of the respondents/complainants as per law as nothing is due against the respondents/complainants. Consequently, we dispose of the appeal accordingly.

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

Pronounced.

23^rd March, 2010.