PARAM VIR RATHEE vs CHIEF ADMINISTRATOR, HARYANA URBAN DEVELOPMENT AUTHORITY

SHRI Param Vir Rathee alongwith his wife Smt. Poonam Rathee have invoked the original jurisdiction of this Commission by presenting the instant complaint, alleging deficiency in service on the part of the Haryana Urban Development Authority in the matter of delivering vacant physical possession of Plot No. 695-P, Sector 23-A, Gurgaon, since 1985.

ACCORDING to the complainants, the aforesaid residential Plot No. 695-P, Sector 23-A, Gurgaon, was allotted to them on 23.3.1985 vide allotment Letter No. 692/955. Even though the complainants have paid the entire price of the plot and nothing was due against them/yet HUDA failed to deliver the vacant physical possession of the plot to them. Repeated requests and reminders made by the complainants did not have the desired effect and HUDA could not deliver the possession of the aforesaid plot, as admittedly it had not been developed as per terms of the letter of allotment. The enquiries made ultimately revealed that there was a grave existing on the plot, which was a hurdle in the way of the delivery of its vacant possession. Thereupon, the complainants asked HUDA to allot them some other plot. As the plot earlier allotted had not been developed and there being a grave existing on the plot, the question of making construction thereon did not arise. However, instead of conceding to the request of the complainants, they received a communication dated 15.12.1995 for the deposit of Rs. 384.25 towards some outstanding dues, which the complainants immediately deposited on 19.12.1995 and they obtained no dues certificate'' from HUDA, having made full and final payment of the price of the plot. Despite all this, when HUDA failed to perform their part of the contract and discharge their obligation by handing over the vacant physical possession of the plot or to allot an alternative plot in lieu of the earlier one on the same price already paid by them, the complainants filed the present complaint alleging deficiency in service on the part of HUDA, wherein the following reliefs have been sought: (i) The opposite parties be directed to hand over the possession of the clean site, as agreed to during the course of negotiation. (ii) To pay interest at the rate of 18% on the amount so received being cost of the site. (iii) To pay a sum of Rs. 15,50,000/- as difference in the cost of construction from 1990 till the filing of the petition; and (iv) To pay a sum of Rs. 1,50,000/- for mental harassment and cost of the petition.

Huda filed their written statement after full one year of the issuance of notice to them, wherein the factual position stands admitted. It has been pleaded by Huda, that- "....as per the Condition No. 7 of the Allotment Letter, the respondent was to deliver the possession after complete development... However, since there was litigation going on the respondent-Board,- hence development work could not be undertaken in this pocket of area which has about 30/40 plots.. ...The complainant was well within his rights to apply for the possession of undeveloped plot if he wanted to raise construction thereon by raising loan. The respondents are not responsible for any escalation in the cost of construction as the complainant himself chose to have a developed plot".

Huda also admitted the - ".....existence of a grave at the site. However, mat does not exist at the plot of the complainant. It is at a distance from complainant''s plot. The Samadhi is coming in the alignment of road in Sector 23/23-A, Gurgaon, due to which the road work is held up..... Since the development in that pocket was beyond the control of the respondent, so the undeveloped plot was not offered".

Thereafter, the parties were afforded an opportunity to lead their evidence. Complainant Mr. P.V. Rathee filed his own affidavit and the affidavit of one Mr. M.S. Batra, in which the allegations made by the complainants have been substantiated. In rebuttal, Shri S.S. Dhillon, Chief Administrator, HUDA, Panchkula, filed his affidavit in which the stand of HUDA was reiterated. It was also stated therein that- "..... the complainant and his wife inspected the Plot No. 695-P, Sector 23-A, Gurgaon, alongwith the then Estate Officer, Mr. Balraj Singh (since transferred) and the S.D.O. (Survey). The vacant possession of aforesaid plot was offered to the complainant by the Estate Officer, HUDA, Gurgaon, on 22.5.1997..... The actual delivery of the possession has been held up due to inaction on the part of the complainant".

Towards the end of the affidavit, it was also added- "That there is no policy of HUDA to offer alternative plot as the original plot is vacant and there is no impediment in offering the same allotted plot and the same has been rightly offered for possession by Estate Officer, Gurgaon".

THEREAFTER, counter-affidavit was filed by complainant Mr. P.V. Rathce, in which the averments made by Mr. S.S. Dhillon, Chief Administrator, HUDA, were rebutted. It has been specifically stated that the Samadhi was very much in existence in the area of the plot in question allotted to the complainants. Alongwith the affidavit, 8 photographs Annexures P.2 to P.9 were also attached showing the existence of the Saniadhi. It is further stated in the affidavit that the plot in question was in fact not clear of impediment, i.e. Samadhi, upto 22.5.1997. As regards the question of allotment of an alternative plot was concerned, it has been stated that- "....the question of allotment of an alternative plot is concerned, it is submitted that Plot No. 695-P, in Sector 22/23-A was exchanged in lieu of Plot No. 975 in Sector 31-32A, Urban Estate, Gurgaon, vide order dated 7.5.1992 of the then Chief Administrator, HUDA, Panchkula, which stood in the name of Shri N.K. Jain, IAS. Similarly, Plot No. 1386-A in Sector 23, Urban Estate, Gurgaon, was exchanged in lieu of Plot No. 1602 in Sector 25, Urban Estate, Gurgaon, which was allotted to the original allottee of Sector 23/23-A. As far as the information of the complainant goes, there was neither any dispute nor any impediment with regard to the above referred two plots. Besides these, there are numerous other examples of the same nature. Moreover, the exchanged plots are situated in the prime areas of the Urban Estate of Gurgaon, whereas the claimants requested only for allotment of the same size of plot in Sector 55, Urban Estate, Gurgaon, which is certainly inferior in every respect in comparison to Sector 31-32A and Sector 15, as referred to above".

We have minutely gone through the entire record of the case and have also heard the learned Counsel for the parties at length. Having done that, we are of the considered view that HUDA has failed to deliver the vacant physical possession of the plot allotted to the complainants as far back as 1985. Whether this failure on the part of HUDA was on account of non- development of the plot due to pendency of litigation, existence of a grave thereon or some other reason, but the fact remains that the plot was never physically vacant, possession whereof could not be delivered to the complainants for a almost twelve years. The photographs filed by die complainants alongwith the affidavit clearly show the existence of Samadhi within the area of the plot and not outside the plot. Therefore, the complainants are very much within their rights to demand the allotment of an alternative plot in lieu of the old one for which they have already paid the entire price more than 12 years back. The instances cited by the complainant Mr. P.V. Rathee in his affidavit regarding the allottees, whom alternative plots have been allotted by HUDA in lieu of their earlier plots, speak volumes of the prevalence of the practice and the policy of making alternative allotments in case the earlier plots are either not physically vacant for the delivery of possession or there is some sort of encroachment thereon, or otherwise.

COMPLAINANT Mr. P.V. Rathee has also successfully established on record by filing his own affidavits and that of an expert witness Mr. M.S. Batra, that after 1990 there has been considerable escalation in the cost of construction in the vicinity of the area of the disputed plot. In addition to that, the learned Counsel for the complainants has also placed reliance on the decision of the Hon''ble National Commission in Rajnish Chander Sharda v. Haryana Urban Development Authority, II (1995) CPJ 70 (NC), wherein the Hon''ble National Commission has awarded compensation to the tune of more than Rs. 15 lacs to the allottee to compensate him for the escalation of the price of construction as HUDA failed to deliver possession of the plot allotted to him for a considerably long period. In view of the aforesaid circumstances and following the law laid down by the Hon''ble National Commission, we allow the complaint, direct HUDA to allot to the complainants an alternative plot of the same size in the same sector or in some adjoining sector, in lieu of the earlier allotted Plot No. 695-P in Sector 23-A, Gurgaon, on the same price already paid by them, and to deliver its vacant physical possession within a period of two months from the date of receipt of our order, so as to enable the complainants to start construction thereon without any impediment. The complainants have claimed interest at the rate of 18% p.a. on the amount deposited by them, but we are declining the same as the alternative plot shall be allotted by HUDA in lieu of the earlier plot on the price already paid by the complainants.

REGARDING the claim of the complainants for compensation for the difference in the cost or construction from 1990 due to escalation, though the complainants have claimed a sum of Rs. 15,50,000/-, we consider that a sum of Rs. 3,10,000/-, i.e. 1/5th of the claim, shall adequately meet the ends of justice. The complainants shall also be entitled to costs of this litigation, which are quantified at Rs. 2,000/-. Complaint allowed with costs. _________________