Haryana Urban Development Authority And Anr. vs Vipin Kumar And Anr.

THE complainants are sons of Ved Kumar, who were owners of agricultural land admeasuring 12150 sq. yards at Karnal, which was acquired by Gazette notification dated 4.6.1980 for development and utilization of the land in Sector 6, Urban Estate, Karnal as residential / commercial area. The petitioner / opposite party had formulated policy of allotment of plots to oustees in the year 1987 vide letter No. A -II -87/29034 -44. The said policy was modified by subsequent letters. Accordingly, the Complainants filed an application dated 28.12.1992 to the Opposite Party but the said request was declined vide order dated 3.2.1993 on the ground that the land of the complainants was acquired on 6.7.1981, while the oustees policy for allotment of plot was applicable w.e.f. 10.9.1987. In the case of Suman Aneja v. State of Haryana, (1993 -4) PLR 377, the Division Bench of Punjab High Court had held that the benefit of policy contained in circular dated 10.9.1987 is admissible to oustees whose land was acquired prior to framing of policy. Thereafter, the petitioner issued letter dated 27.3.2000 in which it was stated that where the land was acquired prior to 10.9.1987 and the plots were then available and while floating the plots on such land, the oustees claim was also to be invited and they had prior right for the allotment of plots. Subsequently, the Full Bench of Punjab & Haryana High Court in Sumer Pal & Anr. v. State of Haryana & Ors., 2003 HRR 445, C.W.P. No. 5917 of 1999 held that the policy framed by the petitioner vide letter dated 10.9.1987 was for the benefit of oustees who were entitled for allotment of plot under the policy and that oustees whose land was acquired prior to the said letter dated 10.9.1987 were also entitled for plots.

THE complainants thus approached Consumer Forum for directions to allot a plot of 500 sq. mt. each to them as also direction to pay Rs. 4,00,000 on account of escalation on construction prices due to not providing the plots, as well as compensation of Rs. 1,00,000 on account of deficiency in service and for causing mental pain, agony and harassment. The complainants had contended that they had come to know that HUDA has issued allotment letter or going to issue allotment letter to the owners whose land has been acquired prior to 1987 and as such, they had laid their claim for allotment of plot. They had also pleaded that the plots in Sector 6 or adjoining sectors were available with the opposite party. According to them since the plots were not allotted to them, there was deficiency in service on the part of the respondent.

THE District Forum came to the conclusion that Opposite Party had not denied the availability of residential or commercial sites in Sector 6 in the affidavit filed by the Estate Officer, Karnal. Accordingly, it was held that residential plots as well as commercial plots are available with the Opposite Party for allotting the same to the complainants. Therefore, directions were given to opposite parties to allot one residential plot of 250 sq. yards each to the complainants in Sector 6, Urban Estate, Karnal and in case two plots of 250 sq. yards are not available then the opposite party shall allot one residential plot of 500 sq. yards to both the complainants at the rates at which Sector 6 was originally floated. It was further directed that in case no residential plot of 250 sq. yards or 500 sq. yards are available with the opposite party in Sector 6 for allotment to complainants, then opposite party shall allot the plots to the complainants in the adjoining sector at the floating rate of that sector. The order of the District Consumer Forum was challenged before the State Commission. The State Commission referred to the policy framed by the petitioner which, inter alia, provided that where land was acquired prior to 10.9.1987 and plots are still available while floating the plots on such lands, the oustees claim shall be invited and that they will have the prior right for allotment of the plots. The State Commission also noted that it is apparent that the date fixed by the Authority themselves in determining the eligibility of oustees was the date on which the Sectors were floated for sale. The State Commission referred to the ruling of the Full Bench judgment of Punjab and Haryana High Court in Sumer Pal and Anr. (supra). Before the State Commission, plea of limitation was raised, which was rejected. On merits, the conclusions of the District Forum were confirmed. The petitioner has challenged the order of the State Commission before us.

THE petitioner has filed an application for condonation of delay, which as per office note is 64 days. The reason for delay, which has been given is stated to be on account of administrative delay in movement of the file of revision. Though there are no sufficient grounds for condoning delay, yet, in the facts and circumstances and especially since the impugned orders suffer from serious infirmity, the delay is condoned.

LEARNED Counsel for the petitioner urged before us that no plots were available; no advertisement had been issued and no claims had been invited and as such, the complaint filed was pre -mature and there was no occasion for issuing any direction for allotment of plots to the complainants. In support of his submissions, reliance was placed on the full bench decision of Punjab and Haryana High Court in Sumer Pal and Anr. (supra). It was also contended by the learned Counsel for the petitioner that the complainants are not consumers and in this respect reliance was placed on the judgment of this Commission in Prem Kanta and Ors. v. Haryana Urban Development and Anr., III (2008) CPJ 146 (NC), (R.P. No. 3326 of 2003 decided on 27.5.2008. It was also alleged that complaint was hopelessly barred by limitation.

LEARNED Counsel for the respondent urges before us that there are no pleadings of the petitioner that no plots were available; that in view of the order of this Commission in Karnail Kaur v. Punjab Urban Planning and Development Authority and Anr., I (2005) CPJ 48 (NC)=2005 (1) CPC 259 decided on 13.9.2004, the complainants are consumers. According to the learned Counsel for the respondent, there is no question of interference with the concurrent findings of the two Fora below.

THE Apex Court in Savitri Devi v. State of Haryana and Others, (1996) 7 SCC 729, has laid down that erstwhile owner whose land has been acquired is not automatically entitled to the allotment merely because land is not utilized after acquisition, but his claim should be considered subject to condition and guidelines provided in the land policy of the Government. The Full Bench of Punjab and Haryana High Court in Sumer Pal and Anr. (supra) has exhaustively dealt with the policy dated 10.9.1987 framed by the petitioner and the eligibility of the oustees for allotment. The Full Bench has laid down that the crucial date for determination of the eligibility of oustees for allotment is the date on which the Sector is floated and applications are invited for allotment of land by way of auction or otherwise (Emphasis supplied). Thus, the crucial factor for determining the eligibility of oustees is the date on which the Sector is floated and applications are invited for allotment of land by way of auction or otherwise. Admittedly, in the case before us, neither the Sector was floated nor applications were invited for allotment of land by way of auction or otherwise. The Full Bench has held: "20. In the result, the writ petition is allowed. It is declared that benefit of policy contained in circular dated 10.9.1987 is admissible to all the oustees irrespective of the date on which their land is acquired. However, such oustees will be entitled to allotment of residential plots/commercial sites only if the land of Urban Estate established/Sector floated out of the acquired land has not been utilized as a whole and unutilized land is available for the purpose of allotment. Respondent Nos. 2 and 3 are directed to consider the case of the petitioners for allotment of residential plot/commercial sites and take appropriate decision within a period of three months from the date of submission of a certified copy of this order. If no land is available in the Urban Estate established/Sector floated out of the acquired land, then the petitioners shall not be entitled to allotment of the residential plots/commercial sites.

(Emphasis supplied)

THE Estate Officer in his affidavit dated 7.8.2007, pursuant to the directions of this Commission has stated that after 27.3.2000 (framing of policy), no new plots have been floated in Sector 6, Urban Estate, Karnal. Likewise, in another affidavit dated 17.8.2007 filed by the Estate Officer pursuant to the directions of this Commission, which is also on record, it is confirmed that after 27.3.2000, no new plots have been floated in Sector 6, Urban Estate, Karnal, as no vacant clear land for floatation of new residential plot is available in Sector 6, Urban Estate, Karnal, till date. At this stage, we would like to refer to the judgment dated 10.12.2007 of the Punjab and Haryana High Court in Rattan Lal and Ors. v. State of Haryana and Ors., CWP No. 5706/05 wherein, the High Court has observed that any allotment of plot to any oustee without due advertisement in any case would be viewed seriously as the existing process without advertisement is likely to be misused.

THE Full Bench of Punjab and Haryana High Court in Sumer Pal (supra) has laid down the two conditions for allotment of plots to oustees whose land has been acquired prior to 10.9.1987. The said conditions are (i) plots are still available; and (ii) while floating the plots, oustees claim shall be invited and they will have the prior right for allotment of plots. In the absence of the fulfilment of the said conditions, any allotment made or direction for allotment cannot be sustained.

IN fact, in the complaint filed before the District Forum, no averment had been made by the complainant that the flats were available and floated and the claim of the oustees had been invited. In paragraph 5 of the complaint, vague allegations were made that the complainant had come to know that about a month back, HUDA had issued allotment letters or was going to issue allotment letters to owners whose land had been acquired prior to 1987. In fact, the complainants had placed reliance on the decision of the Full Bench of Punjab and Haryana High Court referred to above. The entitlement of the claimant for allotment of plots could be considered when the Sector is floated and applications are invited for allotment from oustees who have the prior right. Therefore, we are of the opinion that the complaint was premature and the orders passed by the two Fora below cannot be sustained. It may also be mentioned here that the Estate Officer in affidavit dated 15.5.2008 has stated in para 7: "7. That whenever the plots will be available in Sector 6, U.E., Karnal, due to resumption or surrender or any other reason, case of the respondents will be considered along with similarly situated person as per the policy. It is pertinent to mention that in Sector 16, U.E., Karnal, 15 plots measuring 100 sq. yards were floated in the year 2006 (Annexure -3) and claims of the oustees were invited as per the policy, whereas Sector 16, U.E., Karnal was floated in the year 1992. Hence, case of the respondents will also be considered as per law and policy applicable at relevant time."

IN this view of the matter, it is not necessary at this stage to consider the question whether the complainant is a Consumer or not in the light of two contradictory judgments of this Commission in Karnail Kaur (supra) and Smt. Prem Kanta and Ors. (supra). The argument of the petitioner that the complaint was hopelessly barred by limitation has been dealt with by the State Commission in appeal and we have no reason to take a different view of the same.

FOR the aforesaid reasons, the revision is allowed and the orders of Fora below are set aside. The case of the complainants may be considered in terms of para 7 of the affidavit dated 15.5.2008 of the Estate Officer as and when such eventuality arises. In the facts and circumstances of the case, there shall be no order as to costs. R.P. allowed.