Akash Kumar vs HARYANA URBAN DEVELOPMENT AUTHORITY

THIS revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 23.11.2010 passed by the Haryana State Consumer Disputes Redressal Commission (for short ''the State Commission'') in FA No. 465/2006, Haryana Urban Development Authority v. Akash Kumar, vide which while allowing the appeal, the order dated 27.12.2005 passed by District Consumer Disputes Redressal Forum, Faridabad, was set aside. Brief facts of the case are that Plot No. 902, Sector -2, Palwal, Haryana having an area of 160 sq. yards was allotted to the petitioner/complainant Akash Kumar by the respondent/OP Haryana Urban Development Authority (hereinafter referred to as ''HUDA'') vide allotment letter bearing Memo No. 835 dated 19.2.1998. The tentative price of the said plot was fixed at Rs. 1,88,190. It has been stated in the complaint filed by the petitioner before the District Forum that he deposited a total sum of Rs. 2,04,288 with the OP, as per terms and conditions of allotment letter and requested them several times to deliver the possession of the flat. However, the respondent/OP could not deliver the physical possession of the plot, because development works were not carried out on the site. The respondent, therefore, applied in writing for refund of the amount deposited with the OP, along with interest thereon. The respondent refunded a sum of Rs. 1,71,938 to the complainant after deducting an amount of Rs. 32,350 as 10% amount of the total sale -price and enhanced compensation, delayed interest, penalty, etc. The complainant then learnt that there was full development around the plot and he requested the respondent to hand over the physical possession of the said plot or to allot him alternative plot in the same sector. He then filed a consumer complaint in question before the District Forum and the District Forum ordered that the same Plot 902, Sector -2, Palwal be allotted to the complainant and in case, the same was not found vacant or unallotted, an alternative plot should be allotted to him on the same address. It was also ordered not to charge any kind of interest, penalty, extension fee from the complainant and to pay him an interest @ 12% p.a. on the amount deposited till realisation and also a sum of Rs. 20,000 as compensation for deficiency in service and Rs. 5,000 as litigation expenses. An appeal was filed before the State Commission against this order of the District Forum. The order of the District Forum was set aside by the State Commission vide impugned order, saying that the complainant was not a consumer of the OP, on the date of filing the complaint, as he had voluntarily surrendered the plot in question. In addition, the State Commission observed as follows: "Before parting with the judgment, the State Commission express its displeasure with respect to the manner in which the District Forum, Faridabad has acted in this case. We are unable to understand how the powers of allotment of plot are vested in the District Forum when the complainant himself had surrendered the plot long back. It appears from the facts and circumstances of the case that this allotment has been made for some extraneous consideration: We would have taken disciplinary action against the President and Members of the District Forum and asked them to explain their conduct but it would be a futile exercise as the President and Members of the District Forum have completed their terms and are no longer on the roll of the District Forum, Faridabad."

It is against this order that the present petition has been made.

AT the time of hearing before us, the learned Counsel for the petitioner/complainant stated that the said plot had been allotted to the complainant in the year 1998, but since development had not been carried out in the area, the complainant applied for refund in the year 2004. Although, the OP stated that possession of the said plot had been offered on 7.6.2002, but the said fact was not in the knowledge of the complainant. Learned Counsel further stated that although the refund had been sent by the OP, but the plot in question had not been cancelled and it stood in the name of the complainant only. When the District Forum decided the case in his favour, the same plot was again allotted to the complainant and the possession of the same was also handed over on 28.5.2008. The entire amount demanded by the OP had been deposited by the petitioner and non -encumbrance/no due certificate had also been issued in his favour by the OP on 23.6.2009. Further, the building plan for construction of a house on the plot had also been sent on 31.10.2009. Taking all these factors into account, there was no reason for the State Commission to set aside the order of the District Forum. The learned Counsel stated that the present revision petition should be disposed of as infructuous. He referred to order passed by another Bench of National Commission in "RP No. 847/2011, Dharamvir Singh v. HUDA & Ors., in this regard. Learned Counsel for the petitioner pleaded that there were a number of cases, with similar facts, in which the Hon''ble Apex Court and the National Commission had held that the allotment of surrendered plot in favour of complainant/consumer was in order. Learned Counsel for the respondent, however, stated that the respondent/OP had offered possession of the plot in question to the complainant on 7.6.2002, but they had chosen not to take the possession. Moreover, the complainant was not original allottee of the plot in question, but he had purchased the same from original allottee. Learned Counsel stated that the order of the State Commission should be upheld.

A careful examination of the facts and circumstances on record makes it very clear that it is an admitted case of the parties that the plot in question was voluntarily surrendered by the complainant to HUDA. In his letter dated 29.3.2004, as quoted in the impugned order, the complainant has not mentioned any reason whatsoever, as to why he was surrendering the said plot. He also deposited all necessary documents with HUDA and requested that surrender should be accepted according to the rules. The respondent/OP HUDA accepted the surrender and refunded the amount to the complainant, after deducting certain amount as per rules and regulations governing their policy. It appears that thereafter, when the complainant learnt that development had taken place in the area, he changed his mind and requested for re -allotment of the same plot or some other similar plot in the area. We have no reason to disagree with the findings of the State Commission that after the surrender of the plot, and acceptance of the refund amount from HUDA, the complainant has lost his status of consumer, vis -a -vis, HUDA. Learned State Commission, therefore, rightly decided that the order passed by the District Forum was not in accordance with law and they set aside the same. In fact, the State Commission went a step further and expressed their displeasure on the working of the District Forum and stated that they would have taken disciplinary action against the President and Members of the District Forum, but since they had already completed their term, it would be a futile exercise to call for their explanation. The State Commission rightly placed reliance on a judgment passed by the Punjab and Haryana High Court in HUDA v. M/s. Zuari Industries,, (2009) (3) RCR (Civil) 104 DB, in which it was held that making a request again for return of surrendered plot was nothing but abuse of the process of law. A cost of Rs. 50,000 was also imposed on the respondent, M/s. Zuari Industries for their conduct.

THE plea taken by the petitioner that even after obtaining the refund of the plot in question, the plot still remained in his name, is devoid of any force, because Once the plot is surrendered and refund is received, the allottee loses rights over the plot in question. The fact quoted by the petitioner that HUDA made allotment of the plot again, handed over the possession and sanctioned the building plan does not help them in any manner, because in the present petition, the primary task before this Commission is to adjudicate whether the order passed by the State Commission was a valid order in the eyes of law or not. The State Commission has passed their order with due diligence after taking the relevant legal principles into consideration. In the light of the discussion above, we do not find any illegality, irregularity or jurisdictional error in the impugned order passed by the State Commission and the same is ordered to be upheld with no order as to costs.