Haryana

Panchkula

CC/358/2019

TARSEM CHAND. - Complainant(s)

Versus

THE ESTATE OFFICER,HSVP(HUDA). - Opp.Party(s)

VIKAS

26 Jul 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	358 of 2019
Date of Institution	:	18.06.2019
Date of Decision	:	26.07.2022

 

 

Tarsem Chand son of Shri Rameshwar Dass, resident of House No.463., Sector-13, Urban Estate, Kurukshetra(Haryana) at present residing at House No.1017,  Sector-7, U.E. Kurukshetra(Haryana)

 

                                                                           ….Complainant

Versus

The Estate Officer, HSVP(HUDA), Sector-6, Panchkula.                                                                                                      ….Opposite Party

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh. Satpal, President

Dr. Sushma Garg, Member

Dr. Barhm Parkash Yadav.

 

 

For the Parties:   Sh. R.S.Sathi, Advocate for the complainant.

                        Sh. Sikander Bakshi, Advocate for OP.                    

 

                                        ORDER

(Satpal, President)

1.             Briefly stated, the facts of the case are that the complainant was allotted plot no.2388P, measuring 209 Sq. meter, Sector-21, Part-III, Panchkula vide Memo No.24 dated 27.04.2004 and he has already deposited all the installments and enhancement of plot in question as per demand and terms and conditions of the allotment. As per condition No.7 of the allotment letter, offer of possession was to be made after completion of development works in and around the plot in question; no offer of possession has been made to him despite number of requests made by him in this regard; furthermore, without delivering the possession, the installments were charges with interest from the complainant vide resumption notice under Section 17(1) issued vide Memo No.ZO004/EO012/UEO3O/US171/0000000001 dated 11.06.2012. Beside this, the complainant was forced to deposit an amount of Rs.6,00,000/- as interest on the tentative price without offering the physical possession of the plot in question. Lateron, the complainant checked the status on HUDA portal and learnt that offer of possession was made on 26.08.2008 but no possession was ever offered to the complainant till date. Hence, he sent a letter dated 20.05.2013 and requested to supply him offer of possession, but in response to said letter, the OP informed the complainant vide memo no.8255 dated 21.06.2013 that date of possession of plot no.2388-P, Sector-21, Panchkula has been deleted in the system/record of this office, whereas no possession was ever offered to the complainant inspite of the fact that full cost of the plot stands already paid. It is further averred that interest on the deposited amount is payable after three years of allotment as per policy of HUDA issued vide memo no.DA-95/26360-402 dated 05.10.1995; the complainant served upon the OP a legal notice dated 24.07.2018 but the OP failed to comply the said legal notice. Due to the above said act and conduct on the part of the OP, the complainant has suffered mental and physical agony, financial loss and harassment; hence, the present complaint.  

2.             Upon notice, the OP appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being baseless and false; time-barred; no jurisdiction.  It is stated that the residential plot no.2388-P, Sector-21-III was allotted to the complainant vide allotment letter dated 27.04.2004 at tentative price of Rs.9,89,949/-; as per condition no.7 of the allotment letter, it was made clear to the allottee that the possession of the site will be offered on completion of the development works in the area, without setting any time limit for the same; the balance amount of 75% of tentative price could be paid in 60 days from date of allotment letter, in which case, no interest was chargeable; However, as a matter of concession, the allottees are allowed to deposit the tentative price in installments in which case, each installment is recoverable with interest. In the present case, as per the condition no.6 of the allotment, the installments would be recoverable together with interest on the balance price @ 11% interest per annum, however, as a further concession to the allottee, the said interest payment was made related to date of offer of possession; hence, the complainant has not been charged any interest on the installments. It is denied that the complainant paid the entire amount timely; rather, matter of fact is that not even a single installment was paid in time but was delayed. Therefore, a show cause notice under Section 17(1) of the HSVP Act, 1977 was issued to the complainant vide letter number ZO004/EO012/UE020/US171/0000004386 dated 01.04.2009 and another show cause notice under Section 17(1) of the Act was issued to the complainant was requiring him to remit Rs.12,55,941/- upto 11.06.2012. As per the condition No.25 of the allotment letter, the complainant was liable to pay the installments and, in case, any installment was not paid, then he was liable to pay the interest on delayed payments. This condition is in consonance with the Regulation 5(7A) of the Haryana Urban Development Authority Regulations, 1978; therefore, the complainant was under legal liability to pay the delay interest and hence, Rs.5,83,895/- was paid by him towards delay interest. It is also averred that possession could not be offered as area was encroached by jhuggi dwellers, which was beyond the control of the OP and due to said reasons, the development works could not be carried out. The development works are in full swing at site. It is stated that no interest on the installments had been charged from the complainant. The complainant has also got the benefit of appreciation in the price of the plot as value of plot is more than Rs. one crore. The complainant is not entitled for any compensation as he had never followed the terms and conditions of the allotment letter. The complainant has been given the benefit of waiver off possession interest on the installments. It is further stated that the policy dated 25.01.2007 was applicable prospectively and only to cases where allotment was made after 12.12.2006 and it was clear in the application form and allotment letter. In the present case, the plot was allotted on 27.04.2004 i.e. prior to 12.12.2006. However, lateron, vide letter dated 20.08.2019, it was stipulated that the policy dated 25.01.2007 will be made applicable retrospectively where HSVP failed to offer of possession of plot within prescribed period of 3 years of allotment.   In the present case, neither the application form nor the allotment letter specifies the period of 3 years for offer of possession. So, there is no deficiency in service and unfair trade of practice on the part of OP and prayed for dismissal of the present complaint

3.             To prove the case, the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-13 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP has tendered affidavit Annexure RW/A alongwith documents as Annexure R-1 to R-3 and closed the evidence.

4.             We have heard the learned counsels for the parties, considered the written arguments filed by the learned counsels for complainant as well as OP and gone through the record minutely and carefully.

 5.            Undisputedly, the offer of possession  of the plot no.2388P, measuring 209 sq. meter, Sector-21, Part-III, Panchkula, allotted in favour of the complainant, vide memo no.24 dated 27.04.2004 has not been made by the OPs so far on account of encroachment  made by the Juggies dwellers over the area of the plot. It is an admitted factual position that encroachment has been removed and now, development works in and around the plot are under progress. As per averments made in Para no.6 of the preliminary objections of the written statement, tenders for road works was allotted to a contractor on 12.09.2019 and road in front of the plot stands completed upto WMM level. It is also averred that the work for providing  the facilities pertaining to water supply, sewer, SWD has been allotted to a contractor i.e. M/s Shree Krishna Infratech, VIII-Mouli, Barwala, Panchkula vide EE-I PKL letter no.158433-41 dated 06.10.2020.

                The complainant has claimed, in the present complaint, the interest over the deposited amount alongwith the delivery of the possession of the plot after the completion of all basic amenities.  Compensation of Rs.3,00,000/- on account of mental agony and harassment and compensation of Rs.3,00,000/- on account of increase  in the cost of construction of building material  and  compensation  of Rs.33,000/- as litigation charges also been claimed. The learned counsel for the complainant during arguments reiterating the averments made in the complaint has placed reliance upon the law laid down by the Hon’ble National Commission in case titled as Haryana Urban Development Authority Vs. Darsh Kumar in Revision Petition nos. 1197/1998, 856/1997, 1303/1999, 703/2001 and 1274/198 decided on 31.08.2001.

6.             The complaint has been resisted by the OP by raising preliminary objections as well as on merits in its written statement.

                In preliminary objections, the plea of limitation has been taken stating that the complaint is time barred, thus, it is liable to be dismissed to this score in view of the law laid down by the Hon’ble Apex Court in case titled as “Kandimalla Ragvaish & Co. Vs. National Insurance Co. Ltd & Another” 2009 CTJ 951(SC). This objection is rejected in view of the fact that entire amount paid by the complaint is still lying deposited with the OPs and as per admitted factual position the OP is not in a position, to deliver the possession of the plot as the basic amenities like roads, water, sewer etc. have still not been made available in and around the plot in question.

                The next plea taken by the OP is that the complaint is not maintainable as no financial loss has been caused to the complainant. The learned counsel vehemently contended that the complainant has got the benefit of appreciation in the price of the plot as value of plot is more than Rs.one crore. In this regard, the learned counsel has placed reliance on the judgment of the Hon’ble Supreme Court delivered in “Ghaziabad Development Authority Vs. Shakuntala Rohtagi”, Civil Appeal No.6051/202 on 04.03.2009 and by the Hon’ble State Commission in “Rakshanda Quadeer Vs. Bhopal Development Authority” reported in 2008(2) CLT 272(MP).

                The aforesaid plea raised by OP is not tenable as the complainant has made the payment of the entire price of the plot and he is seeking the delivery of possession after a period about 15 years from the date of allotment. The case law as relied upon by the OP is not of help to the case of the OP being distinguishable on facts and law.

        The next objection is that this Commission has no pecuniary jurisdiction in the case as the value of the plot is more than Rs.One Crore. This objection is completely devoid of any merits and hence rejected in view of the fact that the price of the plot vide allotment letter(Annexure C-1) is Rs.9,89,949/-, which is very much within the pecuniary jurisdiction of this Commission.

                The next objection is that jurisdiction of the Commission is barred under Section 50 of HSVP Act, 1977 and further, the complaint is liable to be dismissed in view of the Arbitration clause in the matter. This objection is also dismissed in view of the fact that remedy under the C.P.Act is in addition to any other remedy available under law. In this regard, we may rely upon the law laid down by the Hon’ble Punjab and Haryana High Court in CWP No.22121 of 2014 decided on 21.09.2015 in case titled as Puma Realtors Pvt. Ltd.(M/s) Vs. Union of India. Further, the Hon’ble Supreme Court in case titled as M/s Emaar Land Limited Vs. Aftab Singh-1(2019) CPJ 5(SC) has laid down the law  that an Arbitration  clause  in the Agreement  does not  bar the jurisdiction  of the Consumer Fora  to entertain  the complaint. 

                On merits, it is contended that the complainant made default several times in making the payment of installment qua the price of the plot. The learned counsel reiterating the averments made in the written statement contended that as per provisions of Section 15 of HSVP Act, 1977 read with regulation 3 of Haryana Urban Development(Disposal of Land & Buildings), Regulations, 1978, plots can be disposed of either with or without development. It is contended that the complainant was given the facility of making the payment of the price of the plot in question by way of installments without any interest and thus, he was given a major concession in this regard, hence, he is not entitled to any interest on the deposited amount as claimed by him. The learned counsel controverting  the contentions of the complainant contended that the complainant is not entitled to any interest compensation as per policy dated 25.01.2007 issued by HSVP as the said policy was applicable in respect of plots, which were allotted after 25.01.2007. The present plot was allotted in the year 2004 i.e. prior to the said policy; hence, no interest compensation is liable to be awarded. Regarding the policy dated 20.08.2019(Annexure C-13), it is stated that the same has been withdrawn by HSVP on 30.05.2022. Concluding the arguments, the learned counsel prayed for dismissal of the complaint being devoid of any merits and baseless.

7.             After hearing the rival contentions of both the learned counsels for the parties and perusing the record available on the file, it may be mentioned as per admitted factual position that OP has not offered the possession of the plot so far. Even the development works pertaining to basic amenities in and around the plot are also not complete.

8.             With regard to the non delivery of the possession after a reasonable period, the ratio of law as laid down by the Hon’ble National Commission in the case titled as Haryana Urban Development Authority Vs. Darsh Kumar in Revision Petition nos. 1197/1998, 856/1997, 1303/1999, 703/2001 and 1274/198 decided on 31.08.2001 as relied upon by the learned counsel for the complainant, is fully applicable to the facts of the present case, wherein the Hon’ble National Commission after analyzing various cases pertaining to HSVP(earlier known as HUDA) Ghaziabad Development Authority, HPUDA, held that allottees in case of delayed delivery of possession are entitled to interest compensation. The relevant part of the said judgment are reproduced as under:-

32.     There are stringent conditions while allotting a plot. It is not disputed that an affidavit is to be filed that the allottee has no other residential plot or house either in his/her name or in the name of his/her spouse or minor children a person  who applies  for allotment of the plot so that he can build a house for his residence. Pschye of an individual is always to move from rental accommodation to his own house. Government policy also favours house ownership which has resulted in coming into being of building societies and also various Authorities constituted like HUDA. When an allottee gives an application that he needs a plot of land to build a house for his residence he is not guided by any commercial consideration. In most cases his income would be stationary while inflation rises over the years. Award of interest is to enable him to buy a plot elsewhere if a situation arises where he is to be deprived of the plot he applied for. A consumer is in axiomatic position inasmuch as he has to wait for allotment of plot and he cannot acquire any other plot of land on account of onerous conditions that he should not possess any other property at the time of allotment. Award of interest at a particular rate should be such as to compensate the allottee who is deprived of the land and has to go elsewhere in the same or nearby area to buy a plot of land of the same measurement.  

33.     In fact the allottee is in a catch-22 situation. He has deposited his savings with HUDA to buy a plot. He has legitimate expectations that a plot of land will be allotted to him within a reasonable period for him to build his own house for his family. He cannot   go elsewhere since his money is blocked with HUDA. It would be too much to expect that an allottee can go for another piece of land elsewhere or buy house as he would have no extra money. Further by passage of time prices have rocketed. We take judicial notice of the escalation not only in the cost of land but also in cost of construction.  We do not think if the allottee has not specifically pleaded rise in cost of construction or cost of land, he is not entitled to damage on that account. A consumer who comes  before a Consumer Forum is not well versed  in the rule of pleadings as given  in the Code of Civil Procedure  when in fact the Act  itself  provides that provisions  of the Code of Civil Procedure would not apply to the proceedings before  the Consumer Forum. A Consumer Forum, is to take a pragmatic view of the whole situation guided as it is by rules of natural justice only in the matters. When the hope and expectations of an allottee are violated there is a legal injury or loss suffered by him. We may refer to Black’s Law Dictionary to understand what the expressions ‘loss’ and ‘injury’ would mean. Injury is ‘any wrong or damage done to another, either in his person, rights,  reputation or property, the invasion of any legally protected  interest of another’. ‘loss’: is generic and relative  term. It  signifies le act of losing  or the thing lost, it is not a word of limited, hard and fast meaning and has been held synonymous with or equivalent to, ‘damage’, ‘damages’, ‘deprivation’, detriment’, ‘injury’ and privation’.

          Further when Clause(i)of Sub-section (1) of Section 14 empowers the Consumer For a to provide for adequate cost of parties, it is not necessarily confined to litigation cost only.

34.     HUDA, GDA and other Urban Development Authorities, each one being an Authority  constituted under the law and being an extended arm, of the State Government a consumer has full faith  that when he has applied for allotment  of plot to build  his house the Authority  agreed to do so, he will be able to get the plot  fully developed  within a reasonable  period. He has no choice but to wait for fully developed plot/flat be allotted to him for him to start construction. He is not in a bargaining position. He has to apply for allotment of plot flat on dotted lines as required by HUDA/GDA. An allottee is not buying plot/flat for any speculative purpose. It is for him to build a house for residence of himself and his family. It is a well known fact that construction cost increase over the time. Why should allottee suffer for inaction on the part of HUDA and others in not developing a plot within a reasonable time after having received the amount as per it own requirement? Allottee has, therefore, to be compensated. Why HUDA is using his money and allottee is also deprived of earning interest on that? Rate of interest for delayed allotment of handing over possession of the plot of land is to be reasonable so as to properly compensate the allottee considering the decisions rendered by the Supreme Court in the cases referred to above, we have already taken the view in the case of Punjab Urban Planning and Development Authority Vs. Dr.Dalbir Kaur Dhillion, First Appeal No.157 of 1999, decided on 01.08.2021, that element of interest @18% per annum would take into account not only loss of interest but escalation in the cost of construction. There was certainly deficiency in service in depriving the complainant of the land for all these years with the result that the complainant could not construct her house for her own residence and meanwhile cost of construction escalated. We are thus of the opinion that in the circumstances of the cases before us award of interest @ 18% per annum is quite reasonable and equitable.   

9.             In the light of the observations made by the Hon’ble National Commission in the case ‘supra’, we find no force and substance in the contentions of the learned counsel for the OP that the instructions dated 20.08.2019(Annexure C-13) entitling the complainant to the interest compensation have been withdrawn on 30.05.2022. We find no logic and justification on the part of the OP to make the differentiation and discrimination between the allottees on or after 25.01.2007, who are entitled to interest compensation, whereas the allottees, who had been allotted the plots prior to 25.01.2007, has been denied the interest compensation. Therefore, the complainant is entitled to interest compensation as per the ratio of law laid down by the Hon’ble National Commission in the case ‘supra’.

10.            In view of the above stated factual as well as legal position, the complaint is partly allowed with the following directions:-

1. The OP is directed to pay interest @9% p.a. to the complainant on the deposited amount after the expiry of three years from the date of allotment till the offer of possession is made after completion of development works in and around the plot in question.

 

2.      To pay compensation to the tune of Rs.15,000/- for harassment and agony.

 

3.      To pay compensation to the tune of Rs.5,500/- as cost of litigation to the complainant.

               

11.            The OP shall comply with the order within a period of 90 days from the date of communication of copy of this order failing which the deposited amount will carry an interest @12% per annum instead of 9% per annum w.e.f. date of filing of this complaint till its realization. Further, in case of non-compliance of the order, the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:26.07.2022

 

 

        Dr.Sushma Garg                          Satpal          

                  Member                                   President

 

Note: Each and every page of this order has been duly signed by me.

 

                                         Satpal,                              

President