HARYANA URBAN DEVELOPMENT AUTHORITY vs RAJ KUMAR

FEELING aggrieved against order dated 4.7.2003 passed by District Consumer Disputes Redressal Forum-II [for short hereinafter referred to as the District Forum] in Complaint Case No. 302 of 2002 ''Raj Kumar v. Haryana Urban Development Authority and Another'', both the complainant Shri Raj Kumar as well as the O.Ps. - Haryana Urban Development Authority [for short hereinafter referred to as HUDA] filed appeals bearing Nos. 590 and 513 both of 2003.

THE main appeal has been filed by the O.Ps. - HUDA impugning order of the District Forum whereas the prayer of the complainant is that the impugned order be modified and the O.Ps. be directed to offer physical possession of the plot which was originally allowed i.e., Plot No. 1048, Sector 11-12, Part-II, Panipat with immediate effect as it is and to charge interest as per the policy of HUDA i.e., after two years of the offer of possession and to pay interest @ 18% per annum on the deposit from the date of deposit till final payment; to waive of penalties, if any imposed; to pay escalation charges of Rs. 1.50 lacs and to pay Rs. 0.50 lac towards mental agony and harassment and Rs. 5,500/- as litigation charges. The contention of the learned Counsel for HUDA Mrs. Raminder Gadhoke, Advocate is that the District Forum committed an error in holding deficiency in service on the part of HUDA and in awarding compensation of Rs. 50,000/- for escalation in the costs of construction and in assessing the costs of litigation at Rs. 3,000/-. It is, however, not disputed that Plot No. 1048, Sector 11-12, Part-II, Panipat was allotted to the complainant vide allotment letter dated 13.12.1985 but the possession could not be offered to the complainant as there was litigation pending in respect of the plot allotted and the development works in the area could not be carried out due to pending litigation. HUDA decided to allot an alternative plot in Sector 12, P-II, Panipat if available or in Sector 24 by way of draw, which was conducted on 27.8.1997 and in this way, the complainant was allotted Plot No. 34-SP, Sector 12, Panipat vide memo No. 13290 dated 30.12.1997 as per HUDA policy. It has been further contended that the District Forum was in error in directing HUDA to charge the price of the alternative plot which was the price of the original plot and contended that the price of the alternative plot has been charged strictly as per HUDA policy and the same was contractually binding on the complainant.

The District Forum has after going through the evidence placed on record by both the sides, recorded a finding that the fault was entirely of HUDA for their failure to deliver possession to the complainant for about 18 years and the charging of enhanced price of the plot in August/December, 1997, the HUDA was not justified. The facts of the case are not much in dispute. It is undisputed that the complainant paid the price of the original plot, which was allotted to him and he did not get possession of the same for such a long period due to litigation and non-development of the area where the plot was situated. It may be pointed out that the complainant cannot be held responsible for the litigation or the non-development of the area where the original plot was situated, it was duty of HUDA to ensure that the plot which was considered and included for allotment at the auction was one which was free from all encumbrances which was available for being offered in possession to the complainant to whom it was allotted. The development of the area was also to be done within a reasonable period by HUDA and HUDA could not have waited for the non-development of the area because of the pending litigation.

AS a matter of fact, the authorities of HUDA should have seen for themselves that the plot, which was included in the draw of lots, was in fact involved in litigation and the same could not, in the case of allotment, be made to be offered in possession. Without ensuring this, the said plot was included in the auction and it was allotted to the complainant. This is a clear case of deficiency on the part of HUDA and the District Forum has rightly held that the HUDA was deficient in not delivering the possession to the complainant for a considerable long period of 18 years. The decision to allot the alternative plot was taken by HUDA themselves and the HUDA was required to offer for possession an alternative plot at the same price for which the original plot had been allotted and which could not be offered for possession for the own fault of HUDA and for no fault of the complainant. In this view of the matter, the District Forum has rightly held that HUDA cannot be allotted to charge enhanced price of the alternative plot for the complainant and they have clearly committed deficiency in service on its failure to deliver the original plot and also at the same price as that of the original plot. The first direction contained in Para 5 of the impugned order regarding the HUDA to charge from the complainant the price not more than the price of the original plot allotted to him which had already been paid by the complainant to HUDA and in directing HUDA to deliver physical possession of the Plot No. 34-SP, Sector 24, Panipat to the complainant. So far as the second relief regarding the compensation of Rs. 50,000/- for escalation in the costs of construction is concerned, it may be mentioned that the Hon''ble National Commission in the case of "Haryana Urban Development Authority v. Darsh Kumar", I (2002) CPJ 35 (NC)=2002 CTJ 365 (CP) (NCDRC), has held that the complainant is to be compensated for the escalation in the costs of construction due to the failure on the part of Urban Development Authorities to offer actual and physical possession of the plot allotted to him and in case the evidence is led for proving the actual costs of escalation for the price of construction, then the amount of compensation so proved or award interest @ 18% per annum on the amount deposited by the complainant which will take care of the escalation in the costs of construction.

IN the instant case, the District Forum assessed the amount of compensation at a sum of Rs. 50,000/- which could not be shown to be incorrect or in any way excessive. As a matter of fact, the complainant is claimed in cross appeal an amount much higher than the amount of Rs. 50,000/-. We are of the considered opinion that the order of the District Forum assessing the compensation at Rs. 50,000/- for escalation in the costs of construction is proper and no interference is called for in the aforesaid amount. The costs of litigation was assessed at Rs. 3,000/- and no material has been shown by the learned Counsel for the complainant from which it could reasonably and legally be inferred that the costs of litigation was grossly inadequate. There is no evidence referred to by the learned Counsel for the complainant to prove that he had actually incurred the costs of Rs. 5,500/-. Likewise, the learned Counsel for the complainant could not refer to any credible evidence to show that the complainant had actually suffered a loss of a sum of Rs. 0.50 lac. The order of the District Forum in awarding the compensation towards escalation in costs of construction and the litigation costs cannot be said to be in any way erroneous and unjust, keeping in consideration the material placed on record. So far as the cross appeal is concerned, the complainant had the discretion of accepting the alternative plot when it was offered to him or he could refuse the offer of the alternative plot, in case it was not to his likelihood or it did not suit him but the complainant accepted the offer of the alternative plot and now he cannot be heard saying that instead of the alternative plot, he should be given possession of the original plot which according to the complainant has become free for being offered in possession. Resultantly, we find no merit in the appeal filed by HUDA or in the cross appeal filed by the complainant and we dismiss both the appeal leaving the parties to bear their own costs of appeals. Copies of this order be sent to the parties free of charge. Appeals dismissed.