HARYANA URBAN DEVELOPMENT AUTHORITY, GURGAON vs PANKAJ TOMAR

THIS revision petition is directed against the order dated 3.2.2006 passed by the District Consumer Disputes Redressal Forum, Gurgaon in Execution C.P. No. 143 of 17.6.2002 titled as "Pankaj Tomer v. Haryana Urban Development Authority, Gurgaon.

IN order to decide the present revision petition few facts need to be noticed. Pankaj Tomar had filed a complaint bearing No. 2190 dated 19.3.2001 against the Haryana Urban Development Authority, Gurgaon with the prayer that the opposite party be directed to allot two plots of 10 marlas each out of plot Nos. 1166, 1167 and 1168 located in Sector 46, Gurgaon in lieu of plot No. 448 at the same rate and in terms and conditions on which the complainant was allotted plot No. 448 located in Sector 39, Gurgaon or to allot the alternative plot and to pay interest @ 18% per annum on the deposited amount of the complainant from the date of deposit till delivery of actual physical possession of the plot besides compensation of Rs. 2 lacs on account of increase in the cost of construction and Rs. one lac compensation on account of harassment and mental agony caused to him. The case founded in the complaint is that the complainant was allotted residential plot No. 448 located in Sector 39, Gurgaon as per allotment letter dated 2.3.1995. He had regularly paid the instalments amount but the opposite party failed to offer the possession of the plot to him. After the expiry of period of two years it came to the notice of the complainant that the plot in question is "Shermukha" in shape, which is considered as inauspicious. Accordingly, he requested the opposite party to give him alternative plot of 20 marlas. Keeping in view the prayer made, the opposite party had recommended alternative plot Nos. 1166, 1167 and 1168 located in Sector 46, Gurgaon. The complainant also gave his consent to accept 2 plots of 10 marlas each in lieu of the original allotted plot. The opposite party failed to take any action in this regard, which forced him to file the complaint. The complaint was contested by the opposite party. It was pleaded in the written statement filed that as the development work in Sector 39, Gurgaon was under progress, the possession of the plot could be offered to the complainant on its completion. It was further stated that the plot in question was clear at the site and the request of the complainant made for allotment of the alternative plot had been sent to the Estate Officer, HUDA, Gurgaon but the same had been declined on the ground that there was no policy to allot two plots of 10 marlas in lieu of one plot. It was further stated that no plot of one kanal size was available in Sector 39 as well. Accordingly, it was prayed that the complaint merited dismissal. The District Forum on scrutiny of the evidence led by the parties concluded as under: "During the course of argument, it has come to our notice that some plots of one kanal each are lying vacant and available for possession in Sector 27 and the complainant is also agreed to accept the same. So, in our opinion and in the interest of justice, the complainant is entitled to have a plot of the same size in Sector 27. So far as the question of enhancement price is concerned, this Forum has no jurisdiction to entertain into the pricing matters. In these circumstances, the respondent is directed to allot an alternate plot to the complainant of the same size i.e. one kanal in Sectors 27, 28, 40, 45 and 46, Urban Estate, Gurgaon as the same rate at which the original plot was allotted to him. Further to compensate the complainant, the respondent shall pay interest on his deposits made by him against the original plot after two years from the date of deposits till the date of offer of possession as per HUDA policy. Compliance of the order be made within one month from the date of receipt the copy of this order."

Aggrieved by the said order, the complainant as well as the opposite party preferred appeals which have been numbered as F.A. No. 3461 of 2001 ''Pankaj Tomar v. HUDA'' and F.A. No. 3478 of 2001 ''HUDA v. Pankaj Tomar'' which were decided by common order dated 11.6.2002 by this Commission wherein it was observed as under: "We have considered the sub-missions of both sides and have also perused the impugned order from the perusal of the file, it is seen that plot to the complainant was allotted on 2.3.1995 and entire price of the plot was paid by the complainant. Since the complainant has paid the entire price and has completed all the formalities, it was incumbent upon the part of the HUDA to have delivered the possession of the plot No. 448, Sector 39, to the complainant within two years from the date of allotment after completing the development work. But in the case in hand, the possession of the plot was not offered to the complainant. The authorised agent of the complainant has stated that the complainant is willing to accept any alternative plot at the same rate at which the original plot was allotted. In view of the above discussions we are of the view that the HUDA authorities cannot escape from its liability to allot an alternative plot to the complainant at the same rate at which the original plot was allotted, and to deliver its physical possession. As a consequence, the appeal filed by the HUDA fails and is hereby dismissed. So far as the appeal filed the complainant is concerned, we find no substance in the appeal as the District Forum had already issue directions to the HUDA to allot an alternative plot to the complainant at the same rate at which the original plot was allotted. However, the complainant is entitled to interest at the rate of 12% per annum on the amount deposited, after two years from the dates of deposits till the possession is delivered. With this modification, the appeal filed by the complainant is also dismissed."

Against the said order the complainant had preferred R.P. No. 2437, Pankaj Tomar v. HUDA, before the Hon''ble National Commission which is stated to have been withdrawn by him. Thereafter, he moved an application addressed to the Chief Administrator, HUDA, Panchkula with the prayer that he was ready to accept the alternative plot at upto date price as per HUDA policy if corner plot is allotted to him facing sector road, Sector 26A, adjoining 10 metres wide road between 14 marlas and one kanal plots out of the block of 20 plots of one kanal in front of which word CHANNEL, is printed on the map of Sector 42 given in the application form for allotments of plots. He also stated that he would pay 10% extra cost of the preferential plot and he may be given interest @ 12% per annum on the deposited amount after the expiry of two years from the date of deposit till the date of alternative plot is offered. Thereafter, he moved an application which was received in the office of HUDA on 4.7.2002 wherein he had represented to the Chief Administrator, HUDA for allotment of alternative plot in lieu of plot No. 448, Sector 39, Gurgaon at the floating price as per HUDA policy. He also submitted his affidavit dated 7.9.2002 in this regard with further undertaking that he was ready to accept the interest on the deposited amount as per HUDA policy i.e. interest @ 12% per annum after the expiry of two years till the offer of possession of the alternative plot was made to him. Thereafter, the Estate Officer, HUDA, Gurgaon sent him a letter dated 18.11.2002 whereby he was informed that the alternative plot No. 19-SP located in Sector 45, Gurgaon was exchanged in lieu of the plot No. 448, Sector-39, Gurgaon at the rate as per HUDA policy but the complainant failed to deposit the price of the said plot as per HUDA policy with the result the offer of exchange of the plot so made to him in terms of the letter bearing Memo No. 22501 dated 18.11.2002 did not materialised. It is thereafter, the complainant filed an execution application dated 6.1.2006 before the District Forum during the pendency of the execution earlier filed by him with a prayer for issuing directions to the opposite parties to keep the status quo of plot No. 19-SP, located in Sector 45, Urban Estate, Gurgaon till the final implementation of the order of the District Forum and the State Commission. Thereafter, the District Forum passed order dated 3.2.2006 wherein following direction has been given to the petitioner-opposite party: "We have considered the above submission and it is ordered as under- (i) The respondent is directed not to cancel the allotment of plot No. 19 SP, Sector 45, Gurgaon; (ii) That HUDA cannot claim updated rates of alternative plot No. 19 SP, Sector 45, UE, Gurgaon in view of orders of this Forum as well as State Commission, Haryana; (iii) The respondent is also directed to deliver the possession of plot No. 19 SP, Sector 45, Gurgaon; (iv) The respondent is also directed to pay interest @ 12% P.A. as was ordered by the Hon''ble State Commission, Haryana. Compliance of the orders be reported on or before 10.2.2006, otherwise strict action will be taken. It is further observed that so many applications are pending relating to the same case. They be clubbed and taken together on each date of hearing and not separately Ahlmad is directed to attach the files having titled Pankaj Tomar v. HUDA, with this application."

CHALLENGE to the above order has been made from the side of the petitioner on four grounds. Firstly, that the above order has been passed by the District Forum without affording any opportunity of hearing to the petitioner-opposite party. Secondly, that the District Forum has relied upon Sub-clause (3) of Rule 2 of Order 21 of C.P.C. which were repealed w.e.f. 19.4.1935 and same are no longer on the statute book which shows lack of applicability of mind on the part of the executing Court. Thirdly, that the above order suffers from arbitrariness and non-application of mind as the same is not a speaking order. The Executing Court by passing the order has exercised the jurisdiction not vested in it by law as it could not have given direction contrary to the order passed by the State Commission. The representative for the respondent-complainant has opposed the submission made and justified the order of the District Forum. A cursory examination of the order dated 3.2.2006 would show that the Counsel representing the petitioner-opposite party was also present at the time when order was passed. It is also recorded in the order itself that notice of the application was not issued by the Ahlmad to the petitioner-opposite party. It is also recorded that the copy of the application was given to the Counsel representing the petitioner-opposite party and thereafter both the Counsel representing the parties have been heard and thereafter the impugned order was passed. Therefore, the submission made that no opportunity of hearing had been given to the petitioner at the time of passing of the order, is not substantiated on record. With regard to the other submission made, manifestly the Executing Court/District Forum while deciding the application moved from the side of the petitioner exceeded its jurisdiction while issuing the directions (i) to (iv) in its order dated 3.2.2006 noticed above. The District Forum has totally ignored that it was on account of the request made by the complainant that the Estate Officer, HUDA, as per Memo No. 22501 dated 18.11.2002 informed the complainant that alternative plot No. 19-DP located in Sector 45, Gurgaon was being exchanged in lieu of alternative plot No. 448 located in Sector 39, Gurgaon on rates as per HUDA policy. Manifestly, it was conditional exchange subject to the fulfilment of the condition of payment of the price so mentioned in the letter. It is not a case of the complainant that he had deposited the amount as per the demand made in this letter by the Estate Officer, Gurgaon thereafter. Rather it is the definite case of the opposite party that necessary amount has not been deposited by the complainant in terms of the above order and had rather backed out. Keeping in view the above stated position, the opposite party did not offer the possession of the plot to the complainant. The circumstances on record clearly spell out that the complainant had not acquired any vested right or claim in respect of the plot No. 19-SP, Sector 45, Gurgaon. It is somewhat surprising that seeking to get the allotment of the plot No. 19-SP, Sector 45, in execution filed by him in which he has granted altogether different relief as per common order dated 11.6.2002 of the State Commission quoted above. It is well settled that the District Forum has to execute the order so passed and cannot vary or change the order. In fact the district Forum by issuing the directions has gone beyond the purview of the relief granted to the complainant while executing order of the State Commission. The illegality committed by the District Forum is manifest on record and for that reason cannot be sustained. For the reasons recorded above, while accepting the revision petition, the impugned order is set aside. The application filed by the respondent-complainant is dismissed. Revision Petition allowed.