Haryana

StateCommission

A/419/2019

HARYANA SHEHRI VIKAS PRADHIKARAN - Complainant(s)

Versus

VEENA GUPTA - Opp.Party(s)

SAURAB SHARMA

22 Feb 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                         

                                                          Date of Institution: 29.04.2019

                                                          Date of final hearing:22.02.2023

                                                          Date of Pronouncement: 22.02.2023

 

 

FIRST APPEALNO.419 OF 2019

 

IN THE MATTER OF

 

Estate Officer-II, Haryana Shahri Vikas Pradhikikaran, Sector-34, Info City Gurugram.

 

                                      ….Appellant/Opposite Party

Versus

 

Veena Gupta wife of Shri S.K. Gupta, resident of House No.878, Sector-31, Gurugram.

 

….Respondent/Complainant

 

CORAM:   Hon’ble Mr. Justice T.P.S. Mann, President

                   ms. manjula, member                                                                      ­­                                        

 

Present:     Shri Saurabh Sharma, counsel for the appellant.

                   Shri Atul Aggarwal, counsel for the respondent.

                            

 

 

 

PER: T.P.S. MANN, J.

 

 

 

ORDER

 

 

1. For the reasons as mentioned in the miscellaneous application, the delay in filing of the appeal is condoned.
2. The opposite party, i.e. Estate Officer-II, Haryana Shahri Vikas Pradhikikaran, Sector-34, Info City Gurugram has filed the present appeal under Section 15 of the Consumer Protection Act, 1986 for challenging the order dated 21.11.2018 passed by the District Consumer Forum, Gurugram whereby the complaint preferred by complainant Veena Gupta was allowed and the opposite party was directed to refund the excess amount charged on account of extension fee while treating the date of deemed offer of possession as 13.01.2006  instead of 25.03.2002 along with interest @ 9% per annum from the date of deposit of the amount till realization. The opposite party was directed to compensate the complainant for harassment and mental agony as well as litigation expenses to the tune of Rs.20,000/-. The opposite party was also directed to comply with the order within 30 days from the date of receipt of copy of the order.
3. While filing the complaint, the complainant pleaded that the opposite party allotted plot No.920 in Sector-40 to Shri S.K. Gupta-husband of the complainant vide memo No.132 dated 25.03.2002, which defined the area of 22 mtr. x 10 mtr. (220 sq. mtrs.) and possession of the said plot was also offered. The complainant got the said plot transferred from her husband Sh. S.K. Gupta vide re-allotment letter dated 23.07.2016. The demarcation of the plots No.771 to 940 in Sector-40, Gurugram was carried out in the year 2006. On carrying out the re-demarcation, the actual area of the plot bearing No.920 was found to be 22 mtr. x 10.10 mtr. equivalent to 222.20 sq. mtrs. and the demarcation approved by the Chief Administrator, HUDA vide letter dated 18.01.2006. The possession of the said plot was taken by the husband of the complainant vide Memo No.SDE (S) 107 dated 28.01.2009. On account of approval of re-demarcation, the deemed date of offer of possession was taken as 18.01.2006 and as such extension fee was payable from the year 2008. At the time of taking of actual possession on 28.01.2009, the husband of the complainant deposited Rs.12,150/- towards the cost of extra area of 2.20 sq.mtrs. and extension fee for the year 2008 as at the time of taking the possession all the arrears were required to be cleared. The complainant’s husband explained the discrepancy regarding the date of possession which ought to have been 2006 but the opposite party had illegally shown offer of possession as 25.03.2002. The husband of the complainant paid the extension fee from the year 2004 onward which demand was illegal and under pressure to get the transfer of the said plot effected in the name of the complainant. Thereafter, the complainant requested to refund the same. It was further alleged that the opposite party neither corrected the date of possession nor refunded the extra charged extension fee. An application dated 04.10.2017 was also moved in that regard and in the said application, the example of plot No.4636 DSP, Sector-23A, Gurgaon was also mentioned but all in vain. Hence, the complaint preferred by the complainant.
4. Upon notice, the opposite party appeared through counsel and filed the written statement. In the reply, it was contended that the complaint had been filed on false, frivolous and baseless grounds. The plot No.920 Sector 40, Gurgaon was allotted to the husband of the complainant vide allotment letter dated 25.03.2002 and possession of the plot was offered as shown in Annexure R-I. The said plot was situated in the block of plot No.897-P to 918-P and 919-P to 940-P as per the demarcation plan. The development work in the said plot was completed much prior to issuance of allotment letter dated 25.03.2002. The husband of the complainant came to the office of the opposite party on 28.01.2009 in order to take possession of the said plot which was completed much prior to issuance of letter dated 25.03.2002 and the allottees of the same block completed their construction. However, due to negligence on the part of the complainant, the complainant did not take necessary steps to take the possession for raising construction prior to 28.01.2009 and up to the date of filing of written statement. Despite the issuance of offer of possession, construction had not been raised, which was clear violation of the terms and conditions of HUDA policy. As such, the claim of the complainant regarding date of deemed possession as 28.01.2009 was totally baseless and unwarranted. The opposite party admitted that the extension fee was chargeable after two years of offer of possession and in the present case, the offer of possession was issued on 25.03.2002. The extension fee had become chargeable after two years of the said date i.e. 25.03.2002. As such extension fee had rightly been charged as per HUDA policy. It was also contended that offer of possession was also made on 25.03.2002. However, the opposite party contended that no copy of Annexure V was attached with the complaint and as such the said document was fabricated. However, the application Annexure C was received on 09.10.2017. The matter of the complainant is different from plot No.4636 DSP, Sector 23-A as vide allotment letter, the demarcation had been shown tentative and likely to be increased or decreased at the time of giving possession. The opposite party admitted that re-demarcation plan regarding the plot falling in block of plot No.897-P to 918-P and 919-P to 940-P was done but it was contended that in the said block development work had been completed much prior to 25.03.2002. As such, the development work regarding plot No.920 was completed much prior to issuance of letter dated 25.03.2002.
5. In support of his case, the complainant placed reliance upon her affidavit Ex.CW1/A and documents Ex.C-1 to Ex.C-6 whereas the opposite party placed on record affidavit Ex.RW1/A of Shri Bharat Bhushan Gupta, Estate Officer-II, HSVP. In addition to it, the opposite party placed on record documents Ex.R-1 to Ex.R-3.
6. After hearing counsel for the parties and going through the record, the District Consumer Forum, Gurgaon allowed the complaint by givingaforementioned directions requiring the opposite party to refund the excess amount charged on account of extension fee and for payment of compensation for harassment and mental agony besides litigation expenses.
7. Aggrieved of the passing of impugned order, the opposite party filed the present appeal.
8. The State Commission has heard learned counsel for the parties and also examined the record which stands requisitioned.
9. It is not disputed that plot No.920 in Sector-40, Gurgaon was initially allotted to the complainant’s husband and possession was also offered vide letter dated 25.03.2002. The possession certificate was issued on 28.01.2009 in favour of earlier allottee i.e. husband of the complainant. The husband of the complainant transferred the said plot in the name of his wife in whose favour re-allotment letter dated 23.07.2016 was issued. At the time of re-allotment, all the dues were cleared by the original allottee and thereafter, on depositing of all the dues, re-allotment letter was issued. The earlier allottee i.e. husband of the complainant moved an application that the extension fee had been erroneously charged on the basis of wrong deemed date of offer of possession as 25.03.2002 despite the fact that the demarcation of the plot was approved by the Chief Administrator, HUDA vide letter dated 13.01.2006 as per which, the area of the plot was found to be 222.20 sq.mtrs. instead of 220 sq.mtrs which was originally allotted. The original allottee had raised the issue regarding the wrong charging of extension fee. After clearing all the dues by the original allottee to get the plot transferred in the name of complainant, the complainant raised issue by writing a letter dated 04.10.2017. It was specifically mentioned therein that the extension fee was charged on account of wrong taking of deemed date of offer of possession as 25.03.2002 instead of 28.01.2009 but no action was taken by the opposite party. However, the entire development work was completed in the said block wherein the plot of the complainant was situated and offer of possession was given vide letter dated 25.03.2002. As such, the date of offer of possession had been rightly taken as 25.03.2002 and thus, the complainant was entitled to treat the date of offer of possession as 28.01.2009 on which date the actual physical possession of the plot was taken by the complainant.
10. The stand of opposite party is not sustainable as the original actual size of the plot was 220 sq.mtrs. and after re-demarcation, the area of the plot was found to be 222.20 sq.mtrs. The demarcation was re-conducted and the demarcation plan approved by the Chief Administrator, HUDA. According to revised demarcation, the opposite party was allotted plot No.920 Sector-40, Gurgaon measuring 222.20 sq.mtrs. instead of 220 sq.mtrs. originally allotted which was on tentative measurement. Therefore, till the actual measurement of the plot, no valid date of offer of possession could be deemed as offer of possession. Thus, the letter dated 25.03.2002 could not be taken as offer of deemed possession. The approval of re-demarcation plan dated 13.01.2006 is thus to be taken as date of offer of possession. At the same time, taking of actual possession by the original allottee on 28.01.2009 could not be taken as deemed date of offer of possession and as such the deemed date of offer of possession would be 13.01.2006 when the demarcation plan was approved by the Chief Administrator, HUDA. As such, on account of final approval of re-demarcation plan, the area was found 222.20 sq.mtrs. instead of 220 sq.mtrs as is evident from the letter dated 13.01.2006 of Chief Administrator, HUDA and thus, the deemed date of offer of possession would be 13.01.2006.
11. According to the opposite party, the deemed date of offer of possession from the date of approval of re-demarcation plan is evident from the file of plot No.4626 DSP, Sector-23-23A, Gurgaon. Thus, the case of the complainant was similar to that pertaining to plot No.4626 DSP, Sector 23-23A, Gurgaon allotted in the name of one Avtar Singh. In the said case, the demarcation work stood completed in the year 1997 but deemed date of offer of possession was taken as 10.12.2013 when re-demarcation plan was approved. Thus deemed date of offer of possession would be in terms of the case of Avtar Singh aforementioned.
12. The complainant had deposited extension fee under pressure at the time of transfer of plot in favour of the complainant. The opposite party had charged extension fee while treating the date of offer of possession as 25.03.2002 which is unjust, illegal and unwarranted as the deemed date of offer of possession ought to have been taken as 13.01.2006 when the re-demarcation plan was approved by the Chief Administrator, HUDA. As such, the opposite party had charged extension fee in an illegal manner which amounted to deficiency in service on the part of the opposite party.
13. Counsel appearing for the appellant has submitted that that issue of “composition fee” and “extension fee” imposed by the authorities could not be gone into by the authorities under the Consumer Protection Act. In this regard he has placed reliance upon the two bench judgment of Hon’ble Supreme Court of India in HUDA Vs. Sunita 2005(2) SCC 479 decided on 14.01.2005.
14. Counsel appearing for the respondent has however submitted that a three bench judge of the Hon’ble Supreme Court of India in Punjab Urban Planning and Development Authority and Ors. Vs. Vidya Chetal and Ors.; SLP (C) Nos.4272 and 5237 of 2015 decided on 16.09.2019 has overruled the two judge bench judgment in the case of HUDA Vs. Sunita (supra).
15. In view of the above, the authorities under the Consumer Protection Act could go into the issue of composition fee and extension fee imposed by the authorities.
16. Hence, no case is made out for any interference in the present appeal. The appeal being devoid of merits stands dismissed.
17. Application(s) pending, if any, stand disposed of in terms of the aforesaid order.
18. The statutory amount of Rs.25,000/- deposited by the appellant at the time of filing of the appeal be disbursed in favour of complainant Veena Gupta against proper receipt and identification subject to appeal/revision, if any.
19. A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act. The order be uploaded forthwith on the website of the Commission for the perusal of the parties.
20. File be consigned to record room along with a copy of this order.

 

 

(T.P.S. MANN)

PRESIDENT

 

 

                                                     

(MANJULA)

MEMBER  

Pronounced On: 22.02.2023.

MS