Haryana

Panchkula

EA/37/2018

VINOD KUMAR - Complainant(s)

Versus

THE CHIEF ADMINISTRATOR,HUDA - Opp.Party(s)

COMPLAINANT IN PERSON

05 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Execution application No.	:	37 of 2018
Date of Institution	:	15.10.2018
Date of Decision	:	05.05.2023

 

 

Vinod Kumar, R/o House No.5495, Anaj Mandi, Ambala Cantt.

 

                                                                           ….Decree Holder

Versus

1.     The Chief Administrator, HUDA, Plot No.C-3, Sector-6, Panchkula,      Haryana.

2.     The Estate Officer, Faridabad, HUDA, HUDA Complex, Sector-12,       Faridabad.

                                                                        ….Judgment Debtors

EXECUTION APPLICATION  

 

Before:              Sh. Satpal, President                   

Dr. Sushma Garg, Member

Dr. Barhm Parkash Yadav, Member

 

 

For the Parties:   Complainant in person with Sh.Vishal Garg, Advocate for DH.

                        Sh. Sikander Bakshi, Advocate for JDs.                            

 

                                        ORDER

(Satpal, President)

1.             The arguments in the present execution application were heard on 27.04.2023 and it was reserved for orders. The case file is taken up today for its disposal.2.This order shall dispose of the present execution application no.37 of 2018, which has arisen out of order dated 25.04.2007, passed in the complaint no.11 of 2007 by the District Consumer Forum, Panchkula (now known as District Commission)wherein the following directions were issued, which are as under:-  a.     To restore the plot in question on the current floating rate                        and if not possible, then to refund the amount of Rs.9,789/-                 with 10% interest w.e.f. the date of seeking the refund till                         actual realization.        b.     Also pay a sum of Rs.2,000/- as costs of proceedings.  3.Briefly stated, the fact of the case, as per the Decree-holder(hereinafter referred to as DH) are that DH after the said order dated 25.04.2007 passed in said complaint no.11 of 2007 requested the  Judgment Debtors(hereinafter referred to as JDs) to restore the plot no.884, Sector-64, Faridabad in his favour; on  asking of officials of JDs, the DH submitted an application with his affidavit mentioning therein that he was ready for restoration of the plot and the earnest money amounting to Rs.46,625 and Rs.9,789/- be adjusted qua the outstanding  payments while making the restoration of the said plot in his favour; the JDs, instead of the restoring the said plot in his favour, sent him a cheque amounting to Rs.17,172/- by post with a letter mentioning there in that the plot cannot be allotted to the DH as plot was already allotted to a third party before the decision of the Commission. After 11 years, the DH started getting letters of various property dealers of Faridabad, who informed him that DH was still the allottee of the said plot as it was never transferred in favour of any other person. The DH collected  the information under RTI Act, wherein it was confirmed on 29.08.2018 by JDs that DH is the allottee of plot no.884, Sector-64, Faridabad till today and the said plot was never transferred to any 3^rd party. The earnest money as deposited by the DH qua the said plot still exists in the account of JDs. The JDs authorities stated to DH that he has to pay now outstanding amount of Rs.21,59,233/-. It is alleged that the JD Authority with a malafide attention and acting arbitrarily refused to restore the said plot as per order dated 25.04.2007. It has been prayed that the JDs be directed to restore the said plot as per order passed by the Forum at floating rates of 25.04.2007.4.On the other hand, the JDs have resisted the execution application by raising preliminary objections as well as on merits in its reply mentioning therein that in compliance of order dated 25.04.2007, an amount of Rs.17,172/- was refunded to the DH vide cheque no.71656 dated 17.01.2008, which was got encashed by him. It is alleged that the letter dated 14.02.2017, wherein the DH was asked to make the payment of outstanding amount qua plot in question was sent inadvertently and the same has been withdrawn vide memo no.15057 dated 27.11.2018. It is further alleged that the DH/ complainant himself had applied for the refund of the deposited amount as per the provisions of the HUDA and accordingly, a sum of Rs.60,149/- was refunded to him vide cheque no.81325 dated 04.07.2002 as per HUDA policy and thus, the DH/complainant cannot claim the ownership of the plot, at this stage. 5.On merits, it is reiterated that the bank draft amounting to Rs.17,172/- in favour of the complainant was sent to the DH/ complainant and he was informed vide letter dated 18.01.2008. It is alleged that order under execution has already been implemented in its true letter and spirits and thus, plot cannot be allotted in favour of the DH/complainant at this stage. 6.            Replication to the written statements of the JDs No.1 & 2 was filed by the DH/complainant reiterating the contents of the execution application, while controverting the contentions of the JDs/OPs. 7.             Since the execution application relates to the order, which was 11 years old, both the parties were given opportunity to lead evidence in support of their respective contentions. To prove the case, the DH/complainant has tendered documents Annexure DH-1 to DH-10 in evidence and closed the evidence by making a separate statement. On the other hand, learned counsel for the JDs has tendered documents as Annexure JD-1 to JD-5 and closed the evidence.  8.After hearing the learned counsel for both the parties and pursuing the entire record on the file including written arguments filed by the DH/complainant as well as JDs/OPs, it is found that the main controversy between the parties is with regard to the compliance of order dated 25.04.2007 passed in complaint no.11 of 2007. Therefore, the question for adjudication before the Commission is whether the JDs/OPs have complied with the order under execution in its true letter and spirits. For the sake of convenience and clarity, the said order is again reproduced as under:-

        a.     To restore the plot in question on the current floating rate                         and if not possible, then to refund the amount of Rs.9,789/-              with 10% interest w.e.f. the date of seeking the refund till                       actual realization.

        b.     Also pay a sum of Rs.2,000/- as costs of proceedings. 9.           The clause (a) of above said order is in two parts. The first part of the order speaks about the restoration of the plot no.884, Sector-64, Faridabad in favour of the DH/complainant by the JDs/OPs. The second part speaks about the refund of Rs.9,789/- with 10% interest. The second part of the order concerning the refund of the amount was to come into force, in the event, if restoration of the said plot in favour of the DH/complainant was not possible. There is no ambiguity as to the fact that refund of the amount was to be made only in case, restoration of the plot no.884, Sector-64, Faridabad in favour of the DH/complainant was not possible. 10.In view of the above stated facts, the question that falls for consideration before us, is, whether there was any legal or any technical hurdle in the restoration of plot no.884, Sector-64, Faridabad in favour of the complainant. 11.The learned counsel for JDs, while reiterating the averments made in the objection/reply, has contended that order under execution has already been complied with and thus, the present application deserves dismissal. The main thrust of the submissions of the learned counsel for JDs/Ops is that the order under execution has already been complied with in its entirety, which may be summarized as under:-

1.     That a sum of Rs.17,172/- has already been refunded to the DH/complainant vide cheque No.71656 dated 17.01.2008, which he had got enchashed without any objections and at this belated stage, the DH is not entitled to claim any relief qua the allotment of said plot in his favour.
2.     That the DH had surrendered the said plot and as per the rules and regulations of JDs, an amount of Rs.60,149/- was refunded to the DH vide cheque dated 04.07.2002 after making a deduction of 10% of the total sale consideration of the plot in question. It is vehemently contended that the consumer complaint no.11 of 2007 was filed seeking the refund of the balance amount of Rs.9,789/- with interest thereon. It is contended that as per settled law once a plot is surrendered is always surrendered.
3.      That the present execution application has been filed after a period of about 10 years and thus, is liable to be dismissed.
4.     That the letter dated 14.12.2017 issued by the O/o JDs asking the DH to clear the outstanding payments has already been withdrawn vide memo no.15057 dated 27.11.2018.
5.         That the Consumer Forum vide its para no.5 of the said order dated 25.04.2007 has  held that the JDs/OPs is guilty in not refunding the lawful amount as per the law laid down by the Hon’ble Apex Court in the case titled as HUDA Vs. Kewal Krishan AIR 1996(SC)1981. Further, the Hon’ble Forum in the last para of its order directed the Chief Administrator, HUDA, Panchkula to issue instructions to all the Estate Officers in the State of Haryana to abide by the law laid down by the Hon’ble Apex Court in future. 12.On the other hand, the learned counsel on behalf of the DH/complainant, while reiterating the averments as contained in the execution application, contended that the JDs had sent the cheque no.71656 dated 17.01.2008 amounting to Rs.17,172/- by concealment of facts and in utter violation of order under execution. It is contended that the plot in question still exist in the name of the DH/complainant; as such, there was no hurdle in restoration of the said plot in favour of the DH/complainant as directed by the DCF, Panchkula vide order under execution. The learned counsel has contended that JD has not made compliance of the order under execution in its true letter and spirit and thus, it is prayed that the execution application be allowed by granting the relief as claimed for in the execution application.13.        The aforesaid submissions/objections as raised on behalf of the JDs are not tenable. The objection as raised by the JDs/OPs to the effect that the DH did not raise any protest or objections against the refund of a sum of Rs.17,172 vide cheque No.71656 dated 17.01.2008 stands negated, in the light of the fact that DH/complainant had duly requested the JDs vide his application supported, with his affidavit, for the allotment/restoration of the said plot. For the sake of convenience and clarity, the contents of said affidavit are reproduced as under:-
6.  

I Vinod Kumar S/o Sh. Arjan Dev R/o 5495, Grain Market, Ambala Cantt do hereby solemnlyaffirm and declare as under:-

1. That I have been allotted plot no.884, Sector-64, Faridabad.
2. That the plot in question may be restored or alternative plot be allotted and the amount of Rs.9,789/- be considered as the deposit amount against plot allotment+ 46625/- as earnest money.
3. That I am ready to pay the present cost of the plot.
4. That I am ready to give up interest amount as ordered by Distt.Consumer Forum, Panchkula.
5. That I am also ready to give up an amount of Rs.2,000/- as cost of proceedings also.                                                                                       Deponent14.         A bare perusal of above would make it evident that the DH had made his intention clear beyond any doubt that he was seriously interested in the restoration of the plot. Even he had sent his application to O/o CA, HUDA, who had asked the E.O.office, Faridabad, HUDA to give a reply to the DH/complainant under intimation. As discussed earlier the Consumer Forum vide said order had directed the JDs/OPs to restore the plot in question in favour of the DH/complainant and if restoration is not possible, then in that event, refund was to be made. Therefore, it is crystal clear that refund was to be made only when restoration of the plot in question was not possible. The first action as per order under execution was to be taken qua the restoration of the plot in question in favour of the DH/complainant. In the present case, the JDs/OPs have not shown as to how and why the restoration of the plot was not possible.  Further, it is not the case of the JDs that there was any legal hurdle in making restoration of plot no.884, Sector-64, Faridabad in favour of the complainant. Moreover, the said plot still exists in the name of the complainant. Therefore, no merits are found in the objections of the JDs/OPs and thus, the same are hereby dismissed.  15.Resultantly, it is decided that the JDs/Ops have failed to comply with the order dated 25.04.2007 in its true letter and spirits; hence, the DH/complainant is entitled to the restoration of the plot no.884, Sector-64, Faridabad on the current floating rate. Accordingly, the present execution application is allowed and the JDs/OPs are directed to restore the plot no.884, Sector-64, Faridabad in favour of the complainant at the floating rate, which prevailed on 25.04.2007, within a period of 60 days from the date of communication of copy of this order to JDs/OPs No.1 & 2 failing which the DH/complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2.

Announced on:05.05.2023

 

                Dr. Barhm Parkash Yadav                     Satpal         

                        Member                                     President

 

 

Per Dr.Sushma Garg, Member: (Dissenting View)

 

1. With utmost respect, I am unable to convince myself with the majority view of Ld. President and Ld. Colleague Member of this commission in respect of the maintainability of the present execution petition. 2.In my humble opinion, this is a case of abuse of process of law. The complainant/DH through this execution application has tried to claim an already surrendered and settled allotment right over a plot in respect of which he has applied and voluntarily accepted the refund of earnest money about 20 years back. The complainant/DH, being influenced and allured by the high rise in the market rate of the plot in question over the time, now wants to take wrongful and illegal benefit of the inadvertent error of the employees of the OP/HUDA in not removing the name of the complainant from the list of the allottees after the surrender of the plot by the complainant and even after refund of the admissible earnest money. The brief facts of the case are that the complainant was allotted a plot No.884, Sector64, Faridabad by the HUDA on 15.01.2000. However, the complainant was not interested in retaining/constructing the said plot, therefore, he applied for the surrender of the plot and refund of the earnest money after deduction/forfeiture of the applicable charges for the same. The OP, accordingly, refunded an amount of Rs. 60,419/- on 04.07.2002 to the complainant /DH after making the applicable deduction of 10% earnest money as per the rules. However, the complainant was of the view that the OP had refunded the less amount by Rs.9,789/-. He, therefore, filed complaint No.11 of 2007 praying for a direction to the OP/HUDA to refund the balance amount of Rs.9,789/- along with interest. The relief part claimed by the complainant in his complaint no.11 of 2007 is reproduced as under:

1. The Huda is liable to refund the balance amount of Rs.9,789/-  with interest thereon since 04.07.2002 @ Rupees 18% p.a. or in the alternative HUDA may revive the plot and the complainant is ready to pay the entire amount of the plot with interest.

 

2. That the complainant shall also be awarded suitable compensation for the harassment due to negligence and deficiency in service.

 

3. That the complainant shall also be awarded with the costs amounting to Rupees 5,000/-.

 

4. That the Hon’ble forum may also award any other relief as deemed fit.   2.The above facts show that the complainant had already surrendered the plot and got the refund. The grievance of the complainant was that the refund was short of Rs.9,789/- and the main relief claimed by the complainant was for refund of the aforesaid amount along with interest and compensation. It was not the case of the complainant that he was entitled to in any manner for the restoration of the plot. It was only mentioned that if HUDA may restore the plot, the complainant would pay price of plot along with interest.  However, the Ld. District Consumer Forum passed the following directions to the OP:

1. To restore the plot in question on the current floating rate and if not possible, then to refund the amount of Rs. 9789/- with 10% interest with effect from the date of seeking the refund till actual realization.

 

2. Also pay a sum of Rs. 2,000/- as costs of the proceedings.

2. A perusal of the above directions would show that though, it was never the main claim of the complainant to get the restoration of the plot, however, the Ld. District Consumer Forum directed for the restoration of the plot at current floating rate, and if not possible, then to refund the amount of Rs.9,789/- with 10% interest with effect from the date of seeking the refund till actual realization. The said direction for restoration of the plot was not absolute. It was qualified with the condition that “if not possible, then to refund the amount of Rs.9,789/- along with 10% interest”. As noted above, since the complainant was not interested in the restoration of the plot, he never made any effort in that direction. He had already got refund of Rs. 60,149/- in the year 2002 itself. He never approached the OP for redeposit of the refunded amount of Rs.60,149/- along balance sale consideration with the OP for restoration of the plot. The complainant was only interested in the refund of the amount of Rs.9,789/- along with interest. Though, after the order dated 25.04.2007, of the District Forum, the complainant allegedly wrote a letter to OP/JD on 22.09.2007 for restoration of the plot or give him alternative plot, however, the complainant did not send the received amount of Rs.60,149/- along with the said letter.
3. The OP in compliance of the order dated 25.04.2007 vide letter dated 18.01.2008 sent a cheque of Rs.17,172/-which the complainant accepted and got encashed. It was also informed to the complainant/DH that as per policy of the HUDA, plot could not be restored to the DH. After the compliance of the order and acceptance of the award amount by the DH, the case was closed for both the parties. Neither the complainant ever enquired from the OP as to why the restoration of the plot was not possible nor took any effort or steps for restoration of the same. As noted above, it was neither the case of the complainant nor the claim of the complainant before the District Forum that he is entitled to restoration of the plot, however the only prayer was that in the alternative the HUDA may revive the plot and in that event the complainant would be ready to deposit the entire amount of plot along with interest. However, due to some laxity or inadvertence on the part of concerned employee of the OP/HUDA that the name of the complainant was not struck off/deleted from the list of the allottees in their records, even after the payment of refund amount/award amount  along with interest to the complainant. Because of the said mistake, a letter dated 14.02.2017 was sent inadvertently to the complainant by the HUDA, whereby, the complainant was asked to make the payment of the outstanding amount along with interest qua the said plot. However, when the mistake was realized, the said letter was withdrawn vide another letter of JD dated 27.11.2018. Now the complainant/DH wants to get undue benefit and unjust enrichment out of the said inadvertent mistake of the employees of the OP in issuing him the letter of 2017, though the same has already been withdrawn in the year 2018 itself. Now the question for determination is whether any right, title or interest in the said plot has accrued to the complainant by the aforesaid inadvertent mistake of the OP in issuing the said letter of 2017. To my mind, the answer is “ NO”.

 

4. Now the plea of the complainant/DH is that the OP has not complied the order dated 25.04.2007 of the forum as the direction was to restore the plot at current/floating rate and only, if it was not possible, then to refund the amount of Rs.9,789/- along with interest. It is contended that since the name of the complainant is still standing in the list of allottee of the said plot, therefore, it is obvious that the said plot has not been reallotted or sold to anybody else, therefore it was possible for the OP to restore the plot to the complainant. But the OP has only chosen to refund the amount. It has therefore been claimed that the plot be restored to the complainant/DH at the rates as applicable in 2007. In my humble opinion, the above claim of the complainant/DH is not maintainable at this stage. Firstly, in my view, in the facts and circumstances of the case, it was not technically possible for the OP/HUDA to restore the plot. The complainant/DH had already got refund of the earnest money in the year 2002 itself.  The complainant/ DH never ever claimed before the District Forum that he was entitled to restoration of the plot, however the only prayer was that in the alternative the HUDA may revive the plot and in that event the complainant would be ready to deposit the entire amount of plot along with interest.

Under the circumstances, when the complainant had already accepted the refund amount of Rs.60,149/- and did not ever redeposit the said amount, it was not possible for the HUDA to restore the plot. When the OP sent the refund of the balance amount of Rs.9,789/- along with interest, he readily accepted the same. Thereafter, the complainant/ DH never objected to the said refund and never approached the OP for restoration of the plot till the 14.12.2017 when the OP by inadvertent mistake issued the said letter. In view of this, since neither it was ever the case of the complainant that he is entitled to get the restoration of his voluntarily surrendered plot, nor it was the mainreliefprayed for in the complaint, nor it was technically possible for the OP to restore the plot and even not the complainant ever showed any inclination for restoration of plot and never took any steps to redeposit the already received refund amount and even never made any objection in accepting the balance refund amount of Rs.9,789/- along with interest, but readily accepted the same, therefore, the order of the forum dated 25.04.2007 stood fully complied with on 17.01.2008. Even the complainant/DH has failed to prove on the file by any convincing document that he was ever misguided by JD in this respect. The complainant/DH has failed to prove that he was ever informed by the JD that the plot in question has been allotted to somebody else. The complainant could have filed objections at the time of receiving the award amount in the year 2008 itself as to why it was not possible to restore the plot. But the complainant instead of filing any objections, readily accepted and encashed the cheque amount sent by JD in compliance of the order of District Forum. The JD in this respect has relied upon the decision of the Hon’ble Punjab and Haryana, High Court in the case of HUDA vs. M/s Zuari Industries (L.P.A. No.88 of 2007, order dated 20/03/2009), wherein also the petitioner after surrender of the plot and accepting the 90% refund money had sought for the restoration of the plot. The Hon’ble High Court held that the petitioner was estopped from claiming the restoration of the plot by his own act and conduct and that the principles of constructive resjudicata will apply. The relevant part of the order of the Hon’ble Punjab and Haryana, High Court is reproduced as under:

“ The facts mentioned above clearly makes out a good case to apply principles of constructive res judicata against the respondent. In view of facts of this case, we are of the opinion that it was not open to the respondent to claim return of the plot once it had failed to make any such prayer in the successive representations made by it and in the Civil Writ Petition earlier filed. After receipt of 90% of the amount paid, the respondent was not supposed to take a summersault, to claim remaining 10% of the amount and then to go further to claim return of the plot on frivolous grounds. Reading of applications Annexures P-19, P-20 and P-24, indicate that the claim of the respondent was only for money and not for return of the plot. When passing the impugned order, learned Single Judge has erred in not taking note of the above said facts.

Under similar circumstances, their Lordships of the Hon'ble Supreme Court in RamadharShrivas versus Bhagwandas, (2005) 13 Supreme Court Cases 1, where plea which ought to have been taken, was not taken in the first instance, did not approve the raising of that very ground in the subsequent litigation. ……

…..This Court is also of the opinion that on account of its act and conduct, respondent is estopped from claiming return of the plot in question. By making its surrender, the respondent saved itself from resumption proceedings and after refund of 90% amount paid by it, now it does not behove it to blow hot and cold to claim return of the property in dispute”

5.  In the present case also, the DH having voluntarily surrendered the plot, never been interested in restoration of the plot, having accepted the refund amount of Rs.60,149/- in the year 2002 itself, thereafter disputing only about the less refund amount of Rs. 9789/- only and after the order of the District Forum, having accepted and encashed the said award amount of Rs.9,789/- along with interest etc. (total award amount paid by JD of Rs.17,172/-) in the year 2008 itself, and thereafter not raising any objection for more than 10 years, therefore, the DH is estopped from his own act and conduct to reagitate an already closed issue and fully complied execution application more than 10 years ago. Therefore, the present execution application is liable to be dismissed. 8. Without prejudice to the above discussion, the Distt. Forum vide order dated 25.04.2007 had ordered “to restore the plot at “currant floating rate, if not possible…..,” the DH after acceptance of the award/refund amount in the year 2008 itself, never filed objections and only filed the present execution application on 18.10.2018. Therefore, even otherwise, if for the sake of arguments, it is assumed that the DH is entitled to the restoration of plot, then it can be restored only at the present market value of the plot.

                However, in view of the above discussion, the present execution application is hereby dismissed.

Announced: 05.05.2023                                        Dr.Sushma Garg                                                                               (Member)

 

                As per the majority view expressed by Satpal, President and Dr. Barhm Parkash Yadav, Member, the present execution application is allowed in the manner as discussed above in para no.15 of this order.  A copy of this order shall be forwarded, free of cost, to the parties to the execution application and file be consigned to record room after due compliance.

Announced : 05.05.2023

 

                                        Dr. Barhm Parkash Yadav         Satpal

                                              Member                         President

 

 

 

 

 

E.A.37 of 2018

Present:     DH/Complainant in person with Sh. Vishal Garg, Advocate.

                Sh.Sikander Bakshi, Advocate for the JDs/OPs.

 

                Vide a separate order of even date, the present execution application is hereby allowed against JDs/Ops.

A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt.05.05.2023

 

 

                                        Dr. Barhm Parkash Yadav               Satpal

                                           Member                            President

 

 

Vide a separate order of even date, the present execution application is hereby dismissed against JDs/Ops.

A copy of this order be sent to the parties free of costs alongwith majority opinion and the file be consigned to the record room after due compliance.

Dt.05.05.2023

                                                                Dr.Sushma Garg  

                                                                  Member