ASHU BHATIA vs HARYANA URBAN DEVELOPMENT AUTHORITY

THIS is a complaint filed by Ms. Ashu Bhatia through her father and authorized attorney, Dr. S.K. Bhatia against HUDA through the Chief Administrator and the Estate Officer, Gurgaon, seeking issuance of direction to the opposite parties (for short, hereinafter to be referred as O.Ps.), to hand over the possession of Plot No. 1055, Sector 31-32A, Gurgaon, which was reallotted to her vide letter of re-allotment and in case the O.Ps. are unable to hand over possession of the said reallotted plot to her, an alternative plot of equal size in the same sectors at the same rate be allotted to her. She has also claimed compensation of a sum of Rs. 16,29,365/- with interest, detailed in para 14 of the complaint. Compensation has been claimed for the payment of rent for the accommodation presently occupied by her @ Rs. 5,000/- per month. Apart from it, cost of escalation in construction material has also been claimed. A sum of Rs. 11,000/- has been claimed as costs of litigation. The aforesaid plot No. 1055 in Sector 31-32A, Gurgaon, measuring 220 sq. metres was originally allotted to Lt. Col. D.C. Ohlan (Retd.), a resident of A-17A, DDA Flats, Munerka, New Delhi, for a sale price of Rs. 3,02,500/-. THIS allotment was made vide letter Annexure C-1 which is dated 9.10.1989. The aforesaid allottee, namely, Lt. Col. D.C. Ohlan transferred the said plot to the complainant, Ms. Ashu Bhatia, a resident of 112-A, Pocket, Mayur Vihar, Phase-I, New Delhi and sent intimation about it to the Estate Officer, HUDA, Gurgaon vide Annexure C-6 which is dated 6.12.1994. Transfer fee of Rs. 7,095/- was attached in the shape of a Bank Draft No. 328013 dated 20.12.1994. The Estate Officer, HUDA, Gurgaon issued re-allotment letter, Annexure C-7, dated 31st March, 1995 to the complainant, Ms. Ashu Bhatia, wherein it was mentioned, inter alia, that she will have to abide by the terms and conditions of the allotment letter and the instructions/guidelines and rules/regulations as amended from time to time. In the conditions of re-allotment letter (Annexure C-7), after Condition No. 19, the following endorsement was made against Condition No. 20 : "20. The possession has already been offered and effected w.e.f. 30.3.1992."

THE complainant visited the plot and found that no development work had been undertaken in the area and consequently she wrote to the O.P. No. 2, the Estate Officer, HUDA, Gurgaon on 5.8.1995 that the site was still undeveloped and possession of the plot could not be given to her on this ground. She also mentioned that the endorsement made at Sr. No. 20 of the Memo No. 1132 dated 31.3.1995, which has been referred to above, was not valid and binding on her. THE O.P. No. 2 was requested to intimate to the complainant as soon as the development work was completed so as to enable her to take possession of the plot. THEreafter, several reminders were sent by the complainant to the O.Ps., who however, did not take any action thereon. THE complainant being dissatisfied by the attitude adopted by the O.Ps. sent a letter dated 8.4.1999 to the Estate Officer, HUDA, Gurgaon that if the said plot was still not developed, she may be allotted an alternative plot in the same sector immediately. Apart from this, the complainant discovered in the early part of the year 2000 that the said plot had been encroached upon and a room had been constructed thereon besides a trench dug up and a lot of Malba stored thereon. THE size of the plot was considerably reduced and the plot also lost its rectangular shape. This fact was also brought to the notice of the Estate Officer, HUDA, Gurgaon, but no action was taken thereon. The complainant was required to make constructions on the plot within 2 years of the handing over of the possession and if the same was not constructed within the time frame then extension of time had to be obtained from the O.Ps. upon payment of extension fees. It was under these facts and circumstances that the complainant applied for extension and reiterated her stand that the plot had not yet been developed and no extension fees should be charged from her. The said prayer was accepted by the O.Ps. and extension of time was allowed without payment of stipulated extension fees.

Since the O.Ps. did not pay any heed to the requests of the complainant, she thought of selling the plot and struck a deal with one Sh. Subhash Chander s/o Sh. Bharat Singh and obtained permission of the Estate Officer, HUDA, Gurgaon for transfer of the plot to the purchaser vide its memo dated 10.5.2001 after paying the requisite transfer fee amounting to Rs. 5,000/-. However Sh. Subhash Chander backed out of the transaction when he learnt the problems faced by the complainant and after visiting the site of the plot. It is alleged that the complainant attended Public Durbar of HUDA four times on 23.5.2001, 30.5.2001, 13.6.2001 and 27.6.2001 and presented her grievances to the Authorities of HUDA who gave oral assurances of action but no action was taken at the spot, nor any written communication was sent by the O.Ps., which eventually led the filing of the complaint.

UPON service of notice, the O.Ps. filed written statement, wherein preliminary objections were raised that the plot had been purchased by the complainant in an open auction and as such the complaint was not maintainable under the Consumer Protection Act, 1986 (for brevity to be referred as the C.P. Act). It was alleged that the complaint was barred under Section 50 of the HUDA Act. The complainant had no cause of action to file the complaint. Besides it, it was contended that the complaint contained false and frivolous allegations as possession of the plot in question had already been offered to the original allottee vide Office Memo No. 2964 dated 25.3.1992 after complete development in the area was made, vide Office Memo No. 114 dated 12.1.1995. The allegations of deficiency or negligence on the part of the O.Ps. were categorically denied. On merit, it was alleged that the complainant was not entitled to any alternative plot as the plot is clearly identifiable at the spot and there was no encroachment made on the plot as per the report of the Junior Engineer (Survey concerned) dated 2.7.2001. It was contended that the complainant herself had applied for extension of time to complete the construction which was granted and it meant that she had accepted the offer of possession. Even otherwise, it was contended that the possession of the plot had already been offered to the complainant and in the end it was contended that the complaint was liable to be dismissed with costs.

DR. S.K. Bhatia filed affidavit on behalf of the complainant, Ms. Ashu Bhatia and filed documentary evidence whereas the O.Ps. filed affidavit of Sh. Pradeep Kumar, HCS, Estate Officer, HUDA, Gurgaon. The complainant also filed Certificate of Sh. D.K. Nagpal and Associates, Approved Valuers, Surveyors and Loss Assessors as Annexure-B certifying that the existing size of the plot No. 1055, Sector 31-32A Gurgaon, Haryana is 196.90 sq. metres. Sh. Pradeep Kumar, Estate Officer, HUDA, Gurgaon filed fresh affidavit dated 10.8.2002 annexing therewith document showing offer of possession, possession certificate and office note of HUDA showing that the plot aforesaid at the spot measured 198.00 sq. metres and there was no encroachment on this area. We have heard Mr. R.D. Vinayak, Advocate for the complainant and Ms. Suraksha Sharda, Advocate appearing for the O.Ps. The learned Counsel for the complainant submitted that the preliminary objection regarding the non-applicability of the provisions of the C.P. Act to the case of the complainant has no merit inasmuch as the O.P. No. 2, the Estate Officer, HUDA, Gurgaon at the time of the original allotment in favour of Col. D.C. Ohlan (Retd.) i.e. on 9.10.1989 and even subsequently at the time of re-allotment of the said plot in favour of the complainant laid down terms and conditions to be abided by both the parties and thus, HUDA undertook to render service to the complainant as defined in Section 2(1)(o) of the C.P. Act, and urged that the service is of any description made available to the potential users and includes the provisions of facilities in connection with banking, financing etc. which includes Housing Constructions as well and the only exclusion is of the service the rendering of which is free of charge or under a contract of personal service. Mr. R.D. Vinayak, Advocate for the complainant, contended that the service to be rendered by HUDA would come under the housing constructions and the same is neither free of charge nor under a contract of personal service. Reference was also made to the Condition No. 6 of the Terms and Conditions, regarding the possession of the site allotted, to be offered on completion of the development works in the area. It was mentioned that in the case of building or undeveloped land, the possession, shall, however, be delivered within 90 days from the date of this letter. This is one of the services, which was promised to be rendered by HUDA to the allottees.

THE Hon''ble Supreme Court has in the case of Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=National Commission and Supreme Court on Consumer Cases (1986-94) page 278, while dealing with the definition of service in Clause 2(1)(o) of the C.P. Act held that the legislative intent is clear i.e. to protect a consumer against services rendered even by statutory bodies. It was held that the test, therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of duty and function performed by it is service or even facility. It was further held that "...In fact, the Act requires provider of service to be more objective and care taking. It is still more in public services.... a Govt. or semi Govt. body or a local authority is as such amenable to the Act as any other private body rendering similar service...". In Para 6 of the judgment, the Hon''ble Supreme Court observed, inter alia, as under : "...Construction of a house or flat is for the benefit of person for whom it is constructed. He may do himself or hire services of a builder or contractor. THE latter being for consideration is service as defined in the Act. Similarly when a statutory authority develops land or allots a site or construct a house for the benefit of a common man it is as much service as by a builder or contractor. THE one is contractual service and the other statutory service. If the service is defective or it is not what was represented, then it would be unfair trade practice as defined in the Act..."

IN our considered opinion, the O.Ps., HUDA in the instant case while allotting and subsequently reallotting the plot now to the complainant, Ms. Ashu Bhatia undertook to render service and it is not a case of out and out sale held in respect of the plot in question. We, therefore, find no substance in the objection taken as a preliminary objection about the non-applicability of the C.P. Act to the case of the complainant. Coming to the merit of the case, the learned Counsel for the complainant contended that the grievance of the complainant is that the possession of the plot allotted to her was not handed over despite several representations made in this regard and the area in which the plot was allotted was also not developed. Apart from it, the area of the plot which was allotted to her vide the letter of reallotment is 236.50 sq. metres, whereas the actual area of the plot as it is now available is much less and is only about 196.90 sq. metres. It obviously shows that the O.Ps. allowed the other persons either to encroach upon the area of the plot allotted or the other persons who were third parties encroached upon this land with no steps taken by the O.Ps. to oust them. The complainant got the actual area at the spot measured in respect of the plot allotted to her by Sh. D.K. Nagpal and Associates and they measured it as 196.90 sq. metres. The O.Ps. also got the plot aforesaid measured at the spot by a Junior Engineer, who submitted his report, a photo copy of which has been placed on record along with the affidavit of Sh. Pradeep Kumar, HCS Estate Officer, HUDA, Gurgaon, which is dated 10.8.2002. This report is dated 2.7.2001. The measurements of the plot No. 1055/31-32A, Gurgaon, were found as 198.90 sq. metres. The report mentioned that on this area, there was no encroachment. The O.Ps. have denied the averment of the complainant that there is encroachment on the area of the plot allotted to her i.e. Plot No. 1055/31-32A, Gurgaon. This report itself goes contrary to the claim of the O.Ps. and shows that the area of the plot re-allotted to the complainant was 236.50 sq. metres whereas according to the report of the Junior Engineer of O.Ps., area of plot on measurement was found as 198.90 sq. metres on 2nd July, 2001 and further reduced on 8.6.2002 from 198.90 sq. metres to 196.90 metres. In all the area was reduced by 39.6 sq. metres.

The complainant has, thus, been deprived of the total area, re-allotted to her i.e. 236.50 sq. metres and she has not been compensated by the O.Ps., who have claimed that possession of the plot allotted to her has already been offered and taken and reliance has been placed on the certificate of possession, a certified copy of which has been placed on record as Annexure to the affidavit of Sh. Pradeep Kumar, Estate Officer, HUDA, Gurgaon dated 10.8.2002.

A bare perusal of these documents i.e. offer of possession and possession certificate, will go to show that the same was offered to the original allottee, namely, Lt. Col. D.C. Ohlan (Retd.) and the same has been relied upon even with reference to the complainant on the ground that complainant is the successor-in-interest of Lt. Col. D.C. Ohlan (Retd.). Much reliance was placed on Sr. No. 4 of the letter of offer of possession dated 23.5.1992 that for all purposes date of offer of possession will be deemed as 30.2.1992. The possession certificate bears signature of Lt. Col. D.C. Ohlan (Retd.). This certificate mentions, inter alia, that Lt. Col. D.C. Ohlan, the allottee has taken possession of the said plot as per above dimension as allotted to him vide Estate Officer, Gurgaon allotment letter No. 2507 dated 9.10.1989. It also mentions that as per Regulation 10 of the HUDA (Regulation of Building) Regulations, 1979, Lt. Col. D.C. Ohlan (Retd.) noted that he will give at least one week notice to the Estate Officer, before actual commencing the erection of the building on the said site. On the deemed date of offer of possession or for that matter on the date of issuance of the possession certificate which has been dated as 12.1.1995, the complainant M/s. Ashu Bhatia was not re-allotted the plot. The letter of re-allotment (Annexure C-7) is dated 31.3.1995. The O.Ps. placed reliance on Condition No. 20. It is mentioned by them that the possession has already been offered and effected w.e.f. 30.3.1992. Mr. R.D. Vinayak, Advocate appearing for the complainant contended that this cannot be described to be either a term or a condition of the offer of possession w.e.f 30.3.1992 and will not in any case bind the complainant. The application submitted by the original allottee, Lt. Col. D.C. Ohlan (Retd.) to the Estate Officer, HUDA, Gurgaon for transfer of the plot bearing No. 1055/31-32A, Urban Estate, Gurgaon was moved in December, 1994. The transfer fee was attached in the shape of a Bank Draft dated 20.12.1994. The area of the plot has been mentioned as 236.50 sq. metres. Ms. Suraksha Sharma, Advocate appearing for the O.Ps. was unable to show from the record that the possession was offered to the complainant and it was accepted by her. She was also unable to satisfy us as to how the area of the plot re-allotted to the complainant i.e. 236.50 sq. metres was reduced to 198.90 as per the report of the Junior Engineer submitted in July, 2001 and subsequently found to be 196.90 sq. metres by the certificate of Sh. D.K. Nagpal and Associates, appointed by the complainant. We find considerable merit in the submission of Mr. R.D. Vinayak, Advocate for the complainant that the O.Ps. were deficient in rendering service to the complainant as the area of the plot allotted to her was encroached upon and reduced considerably to 196.90 sq. metres and the O.Ps. failed to restore the area encroached upon by the unauthorized persons, out of the area of the plot allotted to the complainant. We are unable to uphold the contention of the O.Ps. that offer of possession and the possession certificate signed by the original allottee should be treated to be as applicable to the complainant also. The averments made in the complaint as supported by the affidavit of the father and attorney of the complainant Dr. S.K. Bhatia would go to show that the complainant was unable to get possession of the area of the plot allotted to her and at one stage she thought of even transferring the plot to some other person and had struck a deal also and moved a formal application to the O.Ps. with the deposit of the requisite transfer fee but the prospective purchaser backed out when he learnt about the state of affairs relating to the plot aforesaid and the deal could not materialize.

MUCH reliance was placed by the learned Counsel for O.Ps. on the fact that the complainant had applied for extension of the period for making the construction over the area of the plot allotted to her and that the extension was allowed by the O.Ps. even without charging any extension fees and inferred from it that the complainant indirectly admitted the fact that possession had been offered to her and that she was in a position to raise construction thereon. The learned Counsel for the complainant, Mr. R.D. Vinayak, Advocate, on the other hand contended that the mere fact that the extension was allowed by the O.Ps., HUDA without charging the extension fees showed categorically that the plot was not ripe for handing over possession to the complainant. In our considered opinion, the submission of Mr. R.D. Vinayak, Advocate appears to be more credible than the contention of the learned Counsel for the O.Ps. HUDA. The complainant was unable to raise constructions on the plot allotted to her because she could not get possession of the plot and she was obliged to move an application for seeking extension of time, the fault did not lie on the part of the complainant. We, consequently hold that the O.Ps. have been deficient in rendering services to the complainant and this brings us to the various reliefs claimed by the complainant. The complainant has claimed interest on the amount of Rs. 32,500/- deposited by her with the Estate Officer, HUDA, Gurgaon on 9.10.1989 upto December, 2001 and Rs. 25,372.20 deposited on 15.5.1993 @ 12% p.a. She has claimed increase in the cost of construction materials and labour after 1995 which she has assessed at Rs. 6 lacs. She has also claimed rent paid by her from March, 1995 till December, 2001 and a sum of Rs. 2,36,900/- has been claimed on this count. She has also claimed refund of the transfer fee for selling of plot to Sh. Subhash Chander which is for a sum of Rs. 5,000/-. Expenditure on correspondence and personal visits have been claimed as Rs. 10,000/-, Rs. 1.00 lac has been claimed as compensation for mental and physical harassment, Rs. 11,000/- has been claimed as costs of present proceedings. These are the various amounts, which have been claimed by the complainant who has also prayed for issuance of a direction to hand over Plot No. 1055/31-32A, Gurgaon to the complainant in respect of the area allotted to her i.e. 236.50 sq. metres and in the alternative for issuance of a direction to allot an alternative plot of an equal size in the same sector on the same rate as paid for the present plot. In view of the finding recorded earlier, the complainant is entitled for issuance of the direction to the O.Ps., particularly, O.P. No. 2, i.e. the Estate Officer, HUDA, Gurgaon to hand over possession of the entire area of 236.50 sq. metres of the allotted plot No. 1055/31-32-A, Gurgaon after the removal of the encroachments and in case the O.Ps. are unable to hand over the aforesaid area of 236.50 sq. metres, the O.Ps. should be directed to allot an alternative plot of area of 236.50 sq. metres in Sector 31-32-A, Gurgaon, at the same rate as paid for allotted plot No. 1055 aforesaid.

NOW so far as the relief regarding interest on the amount deposited is concerned, the complainant is entitled for the same. The interest has been claimed @ 12% p.a. The complainant has also claimed compensation on account of escalation in the cost of building material. The Hon''ble National Commission has in the case of HUDA v. Darsh Kumar, I (2002) CPJ 35 (NC)=2002 CTJ 365 (CP) (NCDRC), held that the reasonable rate of interest to be awarded is @ 18% as the same will also take care of the escalation in the cost of construction, material and no separate compensation is required to be paid for the escalation of the cost of building material and limbs. We are of the considered opinion that the complainant be allowed interest on the amount deposited @ 18% p.a. which will also take care of the relief regarding the compensation on account of escalation in the cost of building material.

THE complainant has failed to prove by cogent evidence her claim regarding the payment of a sum of Rs. 2,36,900/- paid as rent from March, 1995 onwards and she is not entitled to get this amount in the absence of credible evidence. So far as the refund of the transfer for sale of plot to Sh. Subhash Chander is concerned, it is a voluntary act of the complainant and the complainant is not entitled to get a refund of this amount from the O.Ps. Merely because the prospective vendee Sh. Subhash Chander backed out and did not agree to have the plot reallotted to him on transfer. A sum of Rs. 10,000/- has been claimed regarding the expenditure on correspondence, personal visits and attendance at Public Darbars which is also quite general and vague and not proved specifically and the same amount is not admissible to the complainant. THE complainant is, however, entitled to compensation for physical and mental harassment and the same is assessed at Rs. 50,000/-. So far as the litigation cost is concerned, the complaint is allowed for the same and the costs are quantified at Rs. 4,000/. Resultantly, the complaint is allowed and the O.Ps. are, accordingly, directed to hand over the possession of the area of 236.50 sq. metres of allotted plot No. 1055, Sector 31-32A, Gurgaon to the complainant within a period of three months from the date of the receipt of copy of this order failing which they are directed to allot a plot of similar size i.e. 236.50 sq. metres preferably in the same sector and against the same rate as paid already in respect of the allotted plot No. 1055, Sector 31-32A, Gurgaon. The O.Ps. are directed to pay the complainant interest @ 18% p.a. w.e.f. 31.3.1995 (date of letter of re-allotment) on the amount deposited by her with them and to pay Rs. 50,000/- as compensation against mental and physical harassment and Rs. 4,000/- as costs of litigation. This shall be done within the aforesaid period of 3 months from the date of receipt of the copy of the order. The complaint stands decided in the aforesaid terms. Copy of the order be suplied to the parties free of charges. Complaint disposed of.