HARYANA URBAN DEVELOPMENT AUTHORITY vs Rakesh Sood

-THIS appeal is directed against the order dated 28. 1. 2005 passed by the District Consumer Disputes Redressal Forum, Gurgaon whereby while accepting the complaint of the respondent/complainant direction has been given to the appellants/opposite parties to restore original plot No. 284-P located in Sector 45 within one month and its possession be delievered to the complainant. It was further directed that in case the said plot is not available, in that event any other plot out of Plot Nos. 280 to 292 and 476 to 490 located in Sector 45, Urban Estate, Gurgaon or in Sectors 31-32a or in the sector of the choice of the complainant be allotted to him. The opposite parties were further directed to pay interest at the rate of 18% per annum on the deposits from the dates of deposits till delivery of physical possession of the plot at the site and the balance amount be received without any surcharge or penalty. The order of resumption of the plot in question was also quashed.

PUT shortly the facts as set out in the complaint are that plot No. 284-P measuring 1. 5 Kanal located in Sector 45, Gurgaon was allotted to the complainant as per letter bearing memo No. 430 dated 24. 2. 1998 on a tentative price of Rs. 29,83,783. According to the complainant he has paid 50% of the tentative price of the plot. Later on he found that no development works have been carried by the opposite parties in the area where the plot of the complainant was located and the basic amenities have not been provided. Complainant made a request to the opposite parties in this regard, but without any effect. Due to financial constraints and the circumstances beyond his control, the complainant could not make the payment of the instalment amount fixed in the allotment letter. The opposite parties as per letter No. 1798 dated 9. 3. 1999 demanded enhanced price on account of the land compensation amounting to Rs. 8,15,455 from the complainant. The complainant again approached the opposite parties with a request to provide the basic amenities in the area where the plot in question is located. He was assured at that time that necessary developments would be completed within a period of 6 months and the actual possession of the plot would be delivered to him. Thereafter, to the shock and dismay of the complainant, he received a notice bearing No. 3663 dated 10. 5. 2002, whereby plot in question has been resumed by the opposite parties on account of non-payment of the instalment amount. Complainant challenged the resumption order dated 10. 5. 2002 being illegal, arbitrary, unjustifiable and unwarranted under the circumstances, because no opportunity was given to him before resuming the plot. It was also stated that other influential persons have only deposited 25% of the tentative price of the plot, but no resumption orders have been passed against them, details of which has been given in para No. 5 of the complaint. Under these circumstances, the complainant invoked the jurisdiction of the District Forum by filing the present complaint seeking directions against the opposite parties for restoration of the original plot on the same price, terms and conditions or even on the new price as is fixed by the respondents, to pay interest on the huge amount deposited with the respondents and to adjust the same against the price of the plot besides the 10% illegally forfeited by the opposite parties, not to allot the said plot in question to any other person till the decision of the complaint by passing the interim order in this regard and to pay Rs. 5 lacs as compensation on account of mental agony and harassment caused to him. The complaint was contested by the opposite parties. In the written statement filed several preliminary objections were taken to the effect that complainant has no locus standi to file the complaint, complaint being bad for non-joinder and mis-joinder of the necessary parties and complainant being not a consumer has no right to invoke the jurisdiction of the District Forum. On merits it was prayed that after allotment of the plot No. 284-P, located in Sector - 45, Gurgaon was made to the complainant vide memo No. 430 dated 24. 2. 1998 and, thereafter, the offer of the possession was made to the complainant vide letter No. 152 dated 27. 2. 2001. It was specifically denied that any letter has been sent by the complainant complaining about not providing the amenities like road, sewerage, electricity, school, post office, etc. At the same time it was maintained that notice under Section 17 (1) and 17 (2) of the Haryana Urban Development Act, 1977 (hereinafter referred as Act) was issued to him vide memo No. 2149 dated 29. 3. 2001 along with the details of the amount payable by him towards the due instalment amounts. Thereafter, another show cause notice bearing No. 3501 dated 23. 4. 2002 was issued to him under Section 17 (4) of the Act. The complainant, then surrendered the plot in question as per his application dated 12. 5. 2002. The plot in question was resumed by the opposite parties vide letter bearing memo No. 3663 dated 10. 5. 2002. Accordingly it was prayed that complaint merited dismissal. On the basis of the above pleadings of the parties and evidence adduced on the record, the District Forum did not accept the version of the opposite parties and while accepting the complaint issued the directions in its order dated 28. 1. 2005 noticed above. It is against order the present appeal has been filed by the appellants/opposite parties. Learned Counsel representing the appellant has been heard at length. None has chosen to appear to argue the matter on behalf of the respondent/complainant at the time of arguments.

The order dated 28. 1. 2005 of the District Forum has been assailed by the learned Counsel representing the appellants/opposite parties on four counts. Firstly that the District Forum has failed to take into consideration that at the time when offer of possession of the plot was given to the complainant vide letter bearing memo No. 152 dated 27. 2. 2001, all the development works stood completed and the basic amenities have been provided in the area where the plot in question has been located. Secondly that complainant himself has admitted that due to financial constraint and other circumstances, he could not pay the due instalment amount and even did not reply to the various notices issued to the complainant to show cause with regard to the non-payment of the due instalment amount, the opposite parties had resumed the plot as per letter bearing memo No. 3663 dated 10. 5. 2002, which action of the opposite parties was fully justified. Thirdly that the complainant himself has admitted that he had received the balance amount after deduction of 10% amount out of the deposited amount at the time when plot in question was resumed and communicated as per memo No. 3663 dated 10. 5. 2002 and for that reason complainant has no right to file the present complaint. Fourthly that District Forum had committed illegality in issuing the direction to the opposite parties to allot specific numbers of plot to the complainant, which order is not sustainable under the law. In order to appreciate the submissions made, the factual position as spelt out from the record has to be noticed at the risk of repetition. The primary grievance made from the side of the complainant is that after the plot No. 284-P located in Sector 45, Gurgaon was allotted to him, the opposite parties failed to carry out any development work and provide basic amenities in the area where the plot in question is located and for that reason he had made several complaints to the opposite parties in this regard. Though the opposite parties had denied that any such request or complaint was made to them, facts remained that as per Clause 7 of the allotment letter bearing memo No. 430 dated 24. 2. 1998 issued to the complainant, it is provided that possession of the site would be offered to him on completion of the development work in the area. The opposite parties had placed on record letter bearing No. 152 dated 27. 2. 2001 whereby offer of possession of the allotted plot was made to the complainant. Through this letter he was informed that he can visit the office of the Estate Officer, Gurgaon either personally or some through authorised representative on any working day between 10-12 a. m. to take possession of the plot within a period of 30 days of the issue of the letter. The complainant has deliberately not chosen to refer to this letter of offer of possession of the plot made to him in the complaint, because he was duty-bound to explain as to why he had approached to the opposite parties to take possession of the said plot in terms of the above letter received by him.

THE other averment of the complainant that basic amenities to the plot in question have not been provided in the area where it is located stand belied on record. No doubt there has been some delay in this regard. In the allotment letter no period of offer of possession to the complainant has been mentioned, but it was conditional to the extent that after the completion of the development work in the area possession of the allotted plot was to be offered. The Courts have construed a normal period of 3 years to complete the development work in the area, where the period has not been prescribed. In the recent pronouncement of the Hon''ble Apex Court in case Bangalore Development Authority v. Syndicate Bank, II (2007) CPJ 17 (SC)=i (2008) SLT 761=2007 CTJ 689 (SC), it has been held that delay in construction or handing over the possession of flat or the house would not entitle the allottee to any compensation unless the time span is maintained in the agreement and happnes to be the essence of the contract. In this case allotment was made to the complainant on 24. 2. 1998, while letter of offer of possession was issued on 27. 2. 2001. Therefore, in this case the offer of possession of the plot has been made on completion of just three years. Except the bare allegations of the complainant that no development work was carried by the opposite parties, no other supporting evidence was led on the record to establish this fact. Under the circumstances of the case it has to be taken that at the time when offer of possession was made to the complainant, the development work in the area where the site of the complainant was located, was fully developed after providing all the basic amenities. Further, it cannot be ignored that the opposite parties had made a demand of additional price of the land on account of land compensation amounting to Rs. 8,15,455 as per letter bearing memo No. 1798 dated 9. 3. 1999. It is not the case of the complainant that he had deposited the said amount within the period mentioned in the notice issued under Sections 17 (1) and 17 (2) of the Act with the opposite parties. The opposite parties had issued notice bearing No. 2149 dated 29. 3. 2001 requiring the complainant to pay Rs. 7,45,946 plus interest upto the date of payment within 30 days of the show-cause notice and even also given an opportunity to show cause on 30. 4. 2001. Despite that the complainant had not appeard before the Estate Officer in response to the notice given to him. Consequently a notice of imposition of penalty bearing No. 4692 dated 12. 9. 2001 under Section 17 (2) of the Act whereby amount of Rs. 7,45,946 in additon to the already demanded amount was required to be paid by the complainant within a period of 30 days. The complainant has not referred to these notices sent to him nor challenged the legality of the same. The complainant is guilty of not approaching the District Forum with clean hands. The complainant received the order of the resumption bearing memo No. 3669 dated 10. 5. 2002, which was passed by the Estate officer, Gurgaon, in terms of the provisions of Section 17 (4) of the Act and further forfeited the 10% of the total cost of the plot.

EVEN on merits it is amply established on record that despite notices bearing No. 2149 dated 29. 3. 2001 under Sections 17 (1) and 17 (2) of the Act and No. 4692 dated 12. 9. 2001 under Section 17 (2) of the Act, complainant failed to pay the demanded amount in those notices and even failed to show cause. The reasons for non-compliance as can be spelt from the record is that complainant himself has stated in para No. 3 of the complaint that under the financial constraints and other circumstances beyond his power and control, he could not make the payment of due instalments and, thus, he has admitted his default in the payment of the due instalment amounts. The opposite parties were left with no choice but to pass the order of resumption bearing No. 3663 dated 10. 5. 2002. Additionally in this case the complainant himself has to be blamed because he had not even paid the additional price in respect of the enhanced compensation as well as the instalment amount, which had fallen due despite the notices given to him, providing him sufficient time to make the payment in this regard. Having failed to do so, he cannot challenge the order of the resumption of the plot passed by the opposite parties. In this case the opposite parties had rightly forfeited the 10% of the total cost of the plot in question as per letter bearing No. 3663 dated 10. 5. 2002. The complainant has also accepted the said amount as is spelt out from his letter dated 12. 5. 2002 received in the office of the opposite parties vide receipt No. 3848 dated 13. 5. 2002. No doubt he has stated that he has accepted the amount of refund without his prejudice his right. This reservation would not come to his rescue under the circumstances of the case. All these aspects have not been given due consideration by the District Forum and for that reason the order under appeal cannot be sustained. For the aforesaid reasons while accepting the appeal, the impugned order is set aside and the complaint is accordingly dismissed. Appeal dismissed.