Kumaresh Kumar Gaur vs Haryana Urban Development Authority and Anr.

THE main issue involved in this case is whether provision of amenities is a condition precedent to the offer of possession of the plot. The petitioner was the complainant before the District Forum. Factual matrix of this case in brief are that the petitioner Kumaresh Kumar was allotted plot No. 2145 measuring 250 sq. yards in Sector -2, Faridabad on 18.11.1998. The petitioner appointed Shri Amit Garg, as her General Power of Attorney, who was authorized to take possession of the plot, which was not delivered to him. In this manner a period of 7 years had lapsed in -between. Therefore, in the complaint filed by the complainant through General Power of Attorney in which it was alleged that no development work in the area has been completed. Further possession was also not delivered. Therefore, prayer was made to direct the opposite party to deliver the possession of the allotted plot after completing the development work fully and to receive the remaining instalments from the date of the physical possession of the plot. Interest @ 18% per annum on the deposited amount till the date of delivery of possession was claimed. In addition he claimed Rs. one lakh as escalation in the cost of the construction; Rs. 50,000 on account of mental agony and harassment caused to him and Rs. 5,000 towards litigation expenses. Further claim was made that direction be given to the opposite parties not to charge any interest on the delayed payment of the instalment amount and extension fee.

ON contest, the opposite party filed written statement wherein it was submitted that possession of the allotted plot was offered to the allottee on 25.11.2002 after completing the development works in the area but the complainant never came forward to take possession of the plot. As the complainant wanted to know the details of the outstanding amounts, he was informed on 18.1.2005 that an amount of Rs. 2,83,281 was payable, which he has not paid till date. Accordingly, he has no right to file a complaint.

THE District Forum accepted the complaint and issued the following directions to the HUDA: "1. The respondents are ordered to deliver the actual physical possession of the plot after making necessary development and further providing basic amenities around the plot in question to the complainant;

The respondents are also to ordered to pay interest @ 12% p.a. on the deposited amount of the complainant w.e.f. its deposit till the delivery of the physical possession of the plot;

The respondents are also ordered not to charge any kind of interest, penal interest or penalty or extension fee of the plot in question from the complainant uptil the period of delivery of physical possession of the plot in question;

The respondents are also ordered to pay Rs. one lakh on account of escalation price of construction material, since the price of construction material have escalated manifolds;

The respondents are also ordered to pay Rs. 2,000 on account of mental agony to the complainant. The complainant is himself or through his G.P.A. is entitled to get the order of the Forum complied with. However, it is ordered that the respondents are entitled to charge the enhancement price along with interest but the interest shall accrue from the date when the first notice has been issued for the demand of enhanced price.

The respondents are also ordered to comply with the order of the Forum within 30 days after the receipt of the copy of the present order". Aggrieved by the order of the District Forum, HUDA filed an appeal before the State Commission. The State Commission examined the matter once again in greater depth and observed that the District Forum had primarily accepted the complaint on the basis of the report of the Local Commissioner after inspecting the plot on 19.7.2005, wherein it has been mentioned: "I inspected the spot and prepared rough site plan of plot No. 2145, Sector -2, Faridabad is not developed with basic amenities. The plot in question is not developed with basic facilities like park facilities, school, market are not there and rain water draining facilities are not provided at the spot and there is no development with basic amenities. Under these circumstances there is no any development in respect of amenities and at present the construction cannot be possible for residing."

THE State Commission observed that provision of basic amenities was not a condition precedent. Therefore, the State Commission allowed the appeal and set aside the order of the District Forum and dismissed the complaint.

DISSATISFI ED by the order of the State Commission, the complainant has filed this revision petition before us.

THE learned Counsel for the complainant submitted that the market, park, etc. were not provided at the site, is clear from the Local Commissioner''s report. He drew our attention to Clause Nos. 7 and 18 of the allotment letter dated 18.11.1998, which read as follows: "(7) The possession of the site will be offered to you on completion of the development works in the area; (18) You will have to complete the construction within two years from the date of offer of possession after getting the plans of the proposed building approved from the competent authority in accordance with the regulation governing for the erection of the building. This time limit is extended by the Estate Officer if he is satisfied that no constructions building was due to reasons beyond your control. Otherwise this plot is liable to be resumed and the whole or part of money paid, if any in respect of it forfeited in accordance with the provision of said Act. You shall not erect any building or make any alteration/addition without prior permission of the Estate Officer. No fragmentation of any land of building shall be permitted."

HE drew our attention to the letter of HUDA, addressed to him on 29.4.2002 wherein he was asked to pay Rs. 84,633 by attaching the calculation sheet. Earlier on 28.9.2001, he was asked to remit Rs. 1,06,830 subject to audit. He brought to our notice certain extracts of the District Forum''s order, which are as under: "Further it has been submitted that as per condition No. 7 of the allotment letter, the possession of the plot could be offered after completion of development work in the area. The respondents have also pleaded that the complainant is not entitled to any interest on his deposit. Both the parties have been adduced their evidence. During the proceedings of the case on the application of the complainant, local Commissioner was appointed who has visited the spot and given his findings about the existing conditions prevailing at the spot. It has been observed by the Forum that a plot bearing No. 2287, Sector -16 was allotted to the complainant. The complainant has also deposited sizable amount towards the price of the plot. The possession of the plot could not be delivered due to non -development of the area where the plot is situated on further due to non -providing of the basic facilities in the sector. This fact has also been reflected by the Local Commissioner in its report. More than seven years has passed the actual physical possession could not be delivered to the complainant. The possession which has been delivered by the respondent to the complainant cannot be said to be actual physical possession. Moreover, the respondents have also not specifically pleaded that these facilities have been provided as per the report of Engineering Branch which has not been placed on the file of the respondents in the shape of evidence. These all circumstances provide the deficiency in service of the respondents. Therefore, the respondents were and are not entitled to charge any kind of interest from the complainant on account of payment of instalments. Further, the respondents are also not entitled to charge any kind of extension fee or penalty."

THE learned Counsel for the respondents submitted that the revisional jurisdiction of the National Commission is limited. There is no material irregularity or jurisdictional error in the order passed by the State Commission. The petitioner/complainant was a defaulter. He has made only part payment and not full and final payment as on 9.1.2004.

IT is clear that the possession of the plot was offered to the allottee vide Memo No. 47621 dated 25.11.2002 but the complainant never came forward to take possession of the plot. As per letter bearing memo No. 1554 dated 18.1.2005, he was informed that the amount of Rs. 2,83,281 was payable by him on account of outstanding instalments amount which he was asked to deposit immediately. In this connection, it is useful to see clause No. 9 of the offer of the allotment letter dated 18.11.1998, which reads as follows: "(9) The above price is tentative to the extent that any enhancement in the cost of land awarded by the competent Authority/Court under the Land Acquisition Act, shall also be payable proportionately as determined by the Authority. The additional price determined shall be paid within 30 days of demand."

THIS shows that HUDA has every right to enhance the price. Further the report of the Local Commissioner clearly states that there is a road having access to the plot of the complainant, drinking water, sewerage and street lights had been provided. Clause -7 of the allotment letter only says that the possession of the site will be offered on completion of the development work in the area. The allotment letter placed on record cannot be construed that providing of these amenities are condition precedent.

IN this connection, we would like to draw inspiration from the judgment of the Hon''ble Apex Court in Municipal Corporation Chandigarh and Ors. Etc. v. Shantikunj Investment Pvt. Ltd. Etc., II (2006) SLT 592=(2006) 4 SCC 109, wherein it is held as follows: "On a plain reading of the definition "amenity" [in Section 2(b)] read with Rule 11(2) and Rule 12, it cannot be construed to mean that the allottees could take upon themselves not to pay the lease amount and take recourse to say that since all the facilities were not provided, they were not under any obligation to pay the instalment, interest and penalty, if any, as provided under the Act and the Rules. The providing of all the facilities or amenities was never the condition precedent. Although in order to fully enjoy the allotment, proper linkage is necessary and the providing of amenities as defined in Section 2(b) of the Act is a statutory obligation but that is not a condition precedent. The expression "premium" appearing in the present context does not mean that the allottees/lessees cannot enjoy the immovable property without those amenities. The word "enjoy" in the present context means that the allottees have a right to use the immovable property which has been leased out to them on payment of premium i.e. the price. That is only the price to enjoy that allotted/leased property. Otherwise, walking over that property would mean trespass. That is only a permissive possession. Allotment of the plot was made on an as -is -where -is basis and the Administration promised that the basic amenities will be provided in due course of time. It could not be made a condition precedent. That had never been a condition of the auction or of the lease. As per the terms of allotment upon payment of 25 per cent of the lease amount, possession was to be handed over and the rest of the 75 per cent was to be paid in a staggered manner i.e. in three equated annual instalments along with interest at the rate specified. If someone wanted to deposit the whole of the 75% of the amount, he could do so. In that case, he would not be required to pay any interest. But if a party wanted to make payment within a period of three years then it was under the obligation to pay interest on the amount of instalment and could not get out of the same by saying that the basic amenities had not been provided. Therefore, the term "amenity" in the context of real estate is to mean the facilities as provided under Section 2(b) of the Act but it can never be treated to be a condition precedent. That was for the better use of the allotted piece of land but that does not mean that it should be provided first as a condition precedent in the matter in the present case. Legitimate expectation does not mean illegitimate flight of fancy. Legitimate expectation means what has been held out in the terms and conditions of the auction and the lease deed. Legitimate expectation and the provisions of the Act cannot be read together to mean that the terms of the auction and the lease deed should be ignored."

THE ratio of the case quoted above is squarely applicable to the case on hand. Therefore, we do not see any merit in this revision petition. Accordingly, this Revision Petition is dismissed. There shall be no order as to cost. R.P. dismissed.