J.S. GUPTA vs HARYANA URBAN DEVELOPMENT AUTHORITY

-AGAINST the order dated 7.7.2004 of dismissal of Complaint No. 1011 dated 18.12.2002, passed by the District Consumer Disputes Redressal Forum, Faridabad, the appellant-complainant has come up in appeal.

IN order to focus the controversy involved in the present appeal the facts as set out in the complaint need to be noticed briefly. Plot No. 608 measuring 500 sq. yards located in Sector-15, Faridabad was allotted to the complainant as per allotment letter No. 3491 dated 30.11.1967, on a tentative price of Rs. 12,500. IN terms of Clause 6 of the allotment letter the possession of the allotted plot was to be delivered to the complainant after deposit of 25% of the tentative sale price. According to the complainant, he had deposited 25% of the tentative sale price of the plot in question on 21.2.1968 with the opposite parties. The grievance of the complainant is that possession of the plot thereafter was not offered or delivered to him till a letter dated 24.11.1997 was addressed to him by the opposite parties whereby he was offered the possession of the plot. The complainant then took the possession of the plot on the same day. Thereafter, the complainant was served with letter bearing Memo No. 5399 dated 5.2.2002 whereby he was required to pay Rs. 1,99,814 towards the extension fee on account of non-construction over the plot during the period 1967 to 2002. The complainant submitted the detailed reply dated 7.3.2002 whereby the opposite parties were informed that the offer of possession was given on 24.11.1997 and for that reason he could not have raised the construction over the plot earlier to that date and on that account he was not liable to pay the construction fee for the period in question. IN reply he was further informed as per letter dated 2.4.2002 that he had been offered the possession of the plot in question in the letter of allotment itself. Thereafter, he filed a representation to the Chief Administrator-opposite party No. 2 on 12.5.2002 and again on 14.9.2002. On 30.9.2002 he received a letter from the Chief Administrator-opposite party No. 2 whereby he was informed that extension fee had rightly been imposed upon him. Forced by these circumstances the complainant invoked the jurisdiction of the District Forum seeking setting aside the aforesaid demand made by the opposite parties for extension fee and in the alternative sought direction against the opposite parties to accept from him the extension fee only for a period of three years. The complaint was contested by the opposite parties. In the written statement filed it was pleaded that in terms of the allotment letter the complainant could take possession of the plot after making deposit of 25% of the tentative sale price as the possession stood offered from that date to him. Thereafter, it was for him to move to the opposite parties for taking possession of the plot. It was further stated that in pursuance to the letter dated 5.11.1997 received from the complainant, the opposite party No. 1 had informed vide letter dated 13.11.1997 that as he had deposited the extension fee in respect of the allotted plot, he could have taken the possession of the same on any working day and thereafter he had applied for taking possession on 15.11.1997 and the possession of the plot was delivered to him on 24.11.1997. They further stated that the provisions of Haryana Urban Development Authority Act, 1977 (hereinafter referred to as the Act, 1977), had come in operation and as per HUD A policy which had come into force in the year 1987, the extension fee was chargeable at the prescribed rate from the allottee who had not raised the construction within the period prescribed. Accordingly, it was prayed that the opposite parties were fully justified in issuing a notice bearing Memo No. 5399 dated 5.2.2002 requiring the complainant to deposit the extension fee for the delayed period and for that reason the complaint merited dismissal. The District Forum accepted the stand of the opposite parties and dismissed the complaint as per order dated 7.7.2004. It is against this order the present appeal has been filed by the appellant-complainant.

Learned Counsel representing the parties have been heard at length.

THE District Forum rejected the complaint primarily on the ground that the complainant had remained silent for a period of 30 years regarding taking possession of the plot in question and at no stage he had approached the opposite parties in this regard till 5.11.1997 and thereafter had taken the possession of the plot on 24.11.1997. THE further finding of the District Forum is that conveyance deed was got executed by the complainant on 25.11.1997 which was registered before the Sub-Registrar on 1.1.1998. On the basis of these findings it was concluded that the complainant had been guilty of not applying for the possession of the plot earlier and getting the conveyance deed executed after he had deposited 25% of the total price of the plot. THErefore, there was no deficiency of service on the part of the opposite parties. Learned Counsel representing the appellant-complainant during the course of arguments has assailed the above stated findings of the District Forum because the District Forum has misconstrued the terms of the allotment letter as there is no clause in the said letter that the possession stood delivered to the complainant on the date of payment of 25% of the tentative price of the plot whereas Clause 6 of the allotment letter specifically states that the opposite parties had to deliver the possession of the plot to the complainant after payment of 25% of the tentative sale price of the plot and in this case the opposite parties had offered the delivery of possession of the plot to the complainant as per letter bearing memo No. A-1597/2977 dated 24.11.1997 and for that reason the order of the District Forum deserved to be set aside. In order to appreciate the submissions made notice has to be taken of Clause 6 of the allotment letter bearing Memo No. 3491 dated 30.11.1967 which reads, "THE possession of the site shall be delivered to you after the payment of 25% of the tentative sale price". THE terms of the Clause 6 of the allotment letter are very clear because in order to obtain the possession of the allotted plot, the duty has been cast upon the complainant to pay 25% of the tentative price. This clause has been incorporated to ensure that payment of 25% of the sale price of the plot is deposited without any reasonable delay in case the complainant wants to take possession of the plot. This clause does not envisage performance of any duty on the part of the opposite parties and in fact the moment the allottee deposits 25% of the tentative price, he acquires the right to ask for possession of the plot from the opposite parties. THE complainant himself has stated in para No. 3 of the complaint that he had deposited 25% of the price of the plot in question by 21.2.1968. THErefore, in terms of the above Clause 6 of the allotment letter, he was entitled to approach the opposite parties to deliver the possession of the plot to him. THE stand taken from the side of the complainant that the opposite parties did not offer the possession of the plot or delivered the possession of the same to him after 21.2.1968, as such, is without any basis because such a requirement is not spellt out from the above said Clause 6 of the allotment letter. In fact, on 15.11.1997 the complainant had written a letter to the opposite parties with regard to delivery of the possession of the plot to him and as per letter bearing Memo No. A-1597/2977 dated 24.11.1997 issued by the opposite parties the complainant was informed that he could take possession of the plot on any Monday. THEreafter, the complainant took possession of the plot on 24.11.1997 itself as per possession certificate produced on record. THErefore, the letter dated 24.11.1997 cannot be construed as a letter of offer of possession of the plot to the complainant and in fact this is acknowledgement of the letter dated 15.11.1997 addressed by the complainant to the opposite parties. THE opposite parties as per letter bearing Memo No. 5399 dated 5.2.2002 had intimated to the complainant to pay the total amount of Rs. 1,99,814 payable by him towards the extension fee on account of non-construction on the plot for the period 1967 to 2002 because the HUDA policy had come into force in the year 1987. For the delayed period only 10% interest has been charged, the details of which have been mentioned in the notice bearing Memo No. 5399 dated 5.2.2002 issued to the complainant. THE complainant was thus duty-bound to pay the extension fee as mentioned in the letter because he has failed to pay the same as is fully established on record. In the given circumstances of the case the observations made in case of Raj Dulari Gupta v. Haryana Urban Development Authority and Another, 2003 (3) Con.LT 449, does not come to the rescue of the complainant because in that case it was proved that the opposite parties had failed to offer of possession of the plot to the complainant and for that reason they were not entitled to charge extension fee on behalf of non-construction of the house. For the aforesaid reasons, there is no merit in the appeal and the same is consequently dismissed. Appeal dismissed.