HARYANA URBAN DEVELOPMENT AUTHORITY vs HARI RAM

THIS appeal is directed against the order dated 22.2.2006 passed by the District Consumer Disputes Redressal Forum, Panipat whereby while accepting the complaint of the respondent-complainant, direction has been given to the appellants-opposite parties to withdraw the demand of Rs. 1,21,000 in respect of plot No. 421-B located in Sector-6, HUDA, Panipat, made on the basis of floatation of rates of the said plot. The opposite parties have further been directed to pay compensation amount of Rs. 5,000 to the complainant along with litigation expenses of Rs. 2,200. The compliance of this order was to be made within 30 days of the receipt of the copy of the order.

IN order to focus the controversy involved in the present appeal, few facts need to be noticed. IN response to the advertisement made by the opposite parties the complainant submitted his application No. 012579 dated 11.11.1992 along with earnest money of Rs. 11,200 deposited vide receipt No. 996 on 11.11.1992 in the Union Bank of INdia Branch. Thereafter, the complainant was allotted plot No. 228 measuring 138.6 sq. metres situtated in Sector 13-17, HUDA, Panipat as per allotment letter bearing memo No. 6736 dated 24.9.1993 on a tentative price of Rs. 1,12,000. IN terms of the allotment letter the complainant deposited Rs. 16,800 vide receipt No. 300751 dated 18.10.1993 with the opposite parties. The balance price of the plot was paid in instalments of Rs. 14,000 by the complainant to the opposite parties on different dates, the details of which have been given in para No. 2 of the complaint. The possession of the plot was to be given to the complainant after completion of the development work in the area where the allotted plot is located. The complainant approached the opposite parties in the last week of November, 2004 for handing over the physical possession of the allotted plot but in reply received a letter bearing No. 667 dated 21.1.1999 whereby he was offered alternative plot No. 421-B, located in Sector-6, HUDA, Panipat, on the same terms and conditions at which the original plot was allotted, in lieu of the earlier plot allotted to the complainant which was under encroachment/litigation and sought the consent of the complainant in this regard. The complainant gave his consent and paid the last and final payment of Rs. 14,000 on 20.9.1999 of the original plot to the opposite parties. Thereafter, the complainant received another demand notice of Rs. 42,041 towards the additional price of the original plot on account of enhanced compensation of the land, which amount was also paid by the complainant to the opposite parties. Thereafter, the complainant approached the opposite parties for delivery of the possession of the alternative plot so allotted, but he was informed that it would be delivered on completion of amenities in the month of November, 2004. The complainant accordingly approached the opposite parties in the last week of November, 2004 for delviery of possession of the alternative plot but he was asked by the opposite parties to make the payment of Rs. 1,21,000 being the difference of rates of interest on the alternative plot given to him. Challenging the legality of the demand made, the complainant filed the present complaint. The complaint was contested by the opposite parties. In the written statement filed it was admitted by them that the possession of the plot No. 228 located in Sector 13-17, HUDA, Panipat so allotted initially to the complainant could not be delivered to him because of the litigation and after obtaining the consent of the complainant, he was allotted alternative plot for which the complainant was totally bound to pay the floating rates of the price of the allotted plot and justified the demand made in this regard from the complainant. They also averred that the complainant was liable to pay up-to-date price of the plot along with interest after making the adjustment of the amount already deposited by the complainant in respect of the original plot allotted to him. They further raised the plea of locus standi and estoppel. Accordingly, it was prayed that the complaint merited dismissal. On appraisal of the pleadings of the parties and evidence adduced on record, the District Forum found to substance in the stand taken by the opposite parties and while accepting the complaint issued the directions in its order dated 22.2.2006 noticed above. It is against this order, the present appeal has been filed by the appellant-opposite parties.

Learned Counsel representing the appellant-opposite parties has been heard at length.

LEARNED Counsel representing the appellants while assailing the order dated 22.2.2006 of the District Forum has vehemently urged that the District Forum has totally ignored the conditions contained in the notice bearing No. 667 dated 21.1.1999 for allotment of the alternative plot made in lieu of the earlier plot allotted to him and has grossly erred in directing the opposite parties not to charge the floating rate price of the alternative plot along with interest accured. In support of the stand taken he has placed reliance on the terms stated in the notice dated 667 dated 21.1.1999. Annexure A-4 which reads as under: "As per the existing policy of HUDA, alternative plots shall be allotted in lieu of such disputed plots by holding a draw of lots from the available vacant plots perferably within the same sector or if not abvailable in the same sector, then from any of the developed sectors. In the present circumstances, alternative plots are available with us for allotment in Sectors 13-17 and 6. Regarding pricing of the alternative plots, when the offer is made in the same sector, the same original price will be made applicable (as per the existing policy) and when the alternative allotment is offered in any other sector, the updated floatation rates of that sector or the rate at which disputed plot was allotted, whichever is higher, shall be charge from the allottess. In cases where rates of allotment of alternate plot work out to be higher then the original rate of allotment, then interest shall be allowed on the earlier deposit made by the allottee as per existing HUDA policy. The terms and conditions of original allotment shall, however, remain the same."

The complainant was also asked to give undertaking to the effect that he shall abide by the policy of the allotment of the alternative plot laid down from time to time and shall also accept the plot that shall be offered to him and shall not raise any litigation regarding the same. Thereafter, the allotment letter No. 6655 dated 23.6.1999 was issued to the complainant whereby he was informed that residential plot No. 421-B, Sector-6, HUDA, Panipat had been allotted to him in lieu of the earlier allotted plot to him and the other terms and conditions in the allotment letter issued by their office vide memo No. 6736 dated 24.9.1993 shall remain the same. In addition, it was intimated to the complainant that since the plot of the same category was not available in same sector, therefore, he had been accommodated in nearby developed sector by draw of lots and as such updated floatation rate of the sector or the rates at which disputed plot was allotted, whichever is higher shall be charged as already intimated vide letter No. 667 dated 21.1.1999. He was also informed that the possession of the plot could be taken on any working day. In this case, the complainant in para No. 4 of the complaint has admitted that the opposite parties had given an option before the allotment of the alternative plot either to get back the deposited amount after deduction of 10% of the deposited amount or to apply for the alternative plot and accordingly he had applied for the alternative plot and thereafter alternative plot was allotted to him. On the basis of this admission it was contended by the learned Counsel for the appellants that the complainant had given free consent to pay the total price of the alternative plot and cannot be allowed to back out and this position has also not been appreciated by the District Forum in the impugned order. Negating the stand taken by the opposite parties in this regard, the District Forum has observed in Para No. 5 of the judgment as under: "In the First Appeal No. 1441 of 2005 decided on 13.12.2005, the Hon''ble State Commission, Haryana, at Chandigarh has held "that it has been laid down by the Hon''ble Supreme Court in case HUDA v. Vijay Aggarwal, (2005) 9 SCC page 446, that whenever a body like appellant is not in a positon to deliver the possession of the plot, they must offer an alternative plot immediately at the same price. The alternative plot must be in the same and nearby sector. In the case in hand, intially, the O.Ps. allotted the plot No. 228, Sectors 13 and 17, HUDA, Panipat but were not able to deliver the possession of that plot due to litigation. Then they allotted the plot No. 421-B, in Sector-6, HUDA, Panipat but are charging the floating rates, which is wrong. Though, the O.Ps. have given the interest on the deposits of the petitioner. Whatever may be circumstances, the petitioner is entitled to a plot on the original rate and so far as the grant of interest is concerned, the non-delivery of the plot fetches the interest from the O.Ps. So, we find that the O.Ps. are gross negligent in their services and the petitioner is entitled to relief."

Needless to say, that the opposite parties are in a dominate position and merely because it had obtained the consent of the complainant before making the allotment of the alternative plot, would not justify to allow the opposite parties to take benefit of their own wrongs. Admittedly, in this case the earlier plot allotted to the complainant was under litigation and opposite parties had expressed their inability to deliver the possession of the same to the complainant. Thus, there was no contributory role on the part of the complainant in this regard. Under the circumstances of the case, the District Forum has rightly ordered the allotment of the alternative plot on the same price and aslo issued the necessary direction to the opposite parties to withdraw the demand of Rs. 1,21,000 in respect of the alternative plot, so made by them.

THE other submission made by the learned Counsel for the appellants is that the complaint was barred by time and could not be entertained in view of the provisions contained in Section 24-A of the Consumer Protection Act, 1986 (hereinafter to as the Act, 1986). In support of the stand taken reference was made to the letter dated 23.6.1999 whereby alternative plot was allotted to the complainant and accordingly it was contended that period of limitation has commenced from 23.6.1999 while the present complaint came to be filed on 16.3.2005. It appears that while advancing this submission the factual position has been ignored. After letter of allotment was issued to the complainant, possession of the same has not been delivered to him rather he has been asked to deposit amount of Rs. 1,21,000 before his request could be considered for delivery of possession of the alternative plot. THE appellants have also placed on record the statement of accounts in relation to the earlier allotted plot No. 228 Annexure A-9 and also the statement of accounts of the alternative plot No. 421-B Annexure A-10. According to Annexue A-10, the opposite parties have worked out the liability of Rs. 1,41,406 as on 18.6.1997. This data of the opposite parties itself shows that they are persisting with the demand of the floating price of the plot along with interest which they are not legally entitled to do so, as discussed earlier. Under the circumstances of the case it has to be taken that there is continuance cause of action for the complainant and for that reason the complaint was not barred by limitation when it was instituted on 16.3.2005 before the District Forum. THE objection so taken from the side of the appellant has to be rejected. For the aforesaid reasons there is no merit in the appeal and the same is consequently dismissed. Appeal dismissed.