Parveen Goyal vs HUDA

THIS revision petition has been filed by Parveen Goyal (hereinafter referred to as the ''Petitioner '') being aggrieved by the order of the State Consumer Disputes Redressal Commission(hereinafter referred to as the ''State Commission '') in Appeal No.2078 of 2002 which was decided in favour of Haryana Urban Development Authority and another (hereinafter referred to as the ''Respondent '').

THE facts of the case according to the Petitioner are that he was allotted Plot No.1068 at M.I.E. Bahadurgarh vide allotment letter dated 08.06.1990 at a tentative price of Rs.55,495.60p. Petitioner paid Rs.18,550/- being 25% of the total cost of the plot and the balance amount was to be paid in 6 yearly instalments. The possession of the plot was offered to the Petitioner on 08.06.1990 but since there was an encroachment, it was re-offered after removal of the said encroachment on 12.12.1990. Petitioner took possession of the plot on 06.03.1991. He thereafter got the site plan approved and raised the construction upto the DPC level for which a certificate was also issued to him by the Respondent on 09.11.1991. According to the Petitioner, he did not undertake any further construction because he was verbally informed by the Respondent not to raise any further construction because of a dispute/litigation between the Respondent and one Smt.Sushila Aggarwal. Petitioner, therefore, stopped further construction and also sought information from Respondent/Authority whether any outstanding amount was pending against him to which there was no response. According to the Petitioner, he had paid an amount of Rs.2,50,150/- as demanded by the Respondent but since he felt that he had paid more than the amount due which was Rs.77,575/-, he wrote to the Respondent/Authority to specify the details and refund him the excess amount of Rs.1,75,574/- charged by Respondent on account of interest on delayed payment and extension fee. Since no development work had been carried out in the area and the Respondent/Authority itself had prevented the Petitioner from further construction over the plot, these levies were not justified. On non-receipt of any response to this plea, Petitioner filed a complaint before the District Forum and requested that the Respondent be directed to refund the excess amount of Rs.1,75,574/- received from him along with interest @ 18% per annum and to pay compensation on account of harassment caused to him besides litigation costs. Respondent/Authority while admitting that the possession of the plot was re-offered to the Petitioner on 12.12.1990 after physical removal of the encroachment on it, stated that Petitioner took possession of the plot without any objection. Further, it was not correct that the plot was not developed since more than 500 houses and 1000 industrial units were already under construction. On the other hand, it was the Petitioner who has not maintained the schedule of payments of instalment for which a Notice under Section 17(1), 17(2) and 17(3) of the HUDA Act, 1977 was also issued and therefore, interest on this due amount was rightly charged as per the terms and conditions of the allotment letter.

THE District Forum after hearing both parties and on the basis of evidence allowed the complaint by observing as follows: "After going through the file and hearing the parties, we are of the considered view that Ex.P4 shows that complainant deposited all the instalments in due time without interest because there is no mention of the actual amount, rate of interest. Physical possession was given to the complainant on 6.3.1991 when the area was not fully developed by the respondent. As per letter Ex-En., HUDA, Rohtak, the whole area was fully developed in 1998-99. Hence, it is wrong to say that the complainant failed to construct the building even after the long time. HUDA can not expect that the complainant start his construction without providing the basic amenities like road and sewerage etc. Keeping in view the above facts and circumstances of the case, we come to the conclusion that neither HUDA provided the basic amenities nor fulfill all the other formalities as per contract between the parties like mentioning the rate of interest. Complainant has successfully established deficiency in service on the part of the Respondent. We hereby allow the complaint by giving direction to the Respondent to refund the extension fee to the complainant. Respondent is further direct to charge simple interest per annum on the principal amount from the complainant as per Ex.R2 (terms and conditions of the contract in para No.6 of the allotment letter) because there is no mention of the rate of interest in the letter Ex.P4. Parties are directed to bear their own costs. "

AGGRIEVED by this order, Respondent/Authority filed an appeal before the State Commission which allowed the appeal by rejecting the Petitioner ''s contention that he had not carried out further construction over the plot beyond the DPC level because he had been verbally advised by the Respondent/Authority not to do so on account of pending litigation. State Commission also concluded that it was not correct that the area had not been developed and therefore, the extension fee was wrongly charged. The relevant part of the order of the State Commission reads as follows: "He(Petitioner) has tried to shift the responsibility on the opposite parties for not carrying out the construction work over the plot by saying that he was verbally directed by the opposite parties not to raise any construction over the plot because of the dispute between them and Smt.Sushil Aggarwal. No acceptable evidence in support of the stand taken in this regard has been adduced on the file. It is totally unbelievable that after the opposite parties had sanctioned the site plan and issue the D.P.C. certificate to complainant, they will convey the oral instructions to the complainant to stop the construction work over the allotted plot. The complainant had not specified the name of the official of the opposite parties who had issued direction to him in this regard. Therefore, this part of the version of the complainant deserves to be rejected out rightly. With regard to the other stand taken that no development work has been carried out, the same is falsified on the record because if no development work has taken placed, the complainant would not get his site plan sanctioned and carried out the construction over the plot upto the D.P.C. level. Even otherwise in terms of clause 7 of the allotment letter possession of the plot was to be offered to the complainant on completion of the development work in the area. An in the event of undeveloped land/area the complainant can raise objection, but he never raised any objection that development work has not been completed. Even otherwise it cannot be accepted as a general proposition that till the amenities become fully functional, the offer is not complete. Needless to say that allottee cannot take the recourse to say that till the facilities were provided, he is not bound to carry out the terms of the allotment letter issued to him. If such a proposition is accepted, then no allottee will pay any installment or interest or penalty amount. Because, such a requirement, cannot be taken as a condition precedent from the terms of the allotment letter issued to him. The evidence adduced on record clearly established that he failed to carry out the construction over the allotted plot within the prescribed period and the opposite parties were fully justified in claiming the extension fee and interest amount due thereon from the complainant for the default committed by him. "

Hence, the present revision petition. Counsel for both parties made oral submissions. Learned Counsel for Petitioner contended that the State Commission erred in concluding that the development of the area had been completed in 1990 when possession of the plot was handed over to the Petitioner on the grounds that Petitioner did not raise any objection about the same. In fact on 20.06.1990, Petitioner had written to the Estate Officer, HUDA, Bahadurgarh Circle that he was taking possession of the plot temporarily even though there is no approach road to his plot. Further, the fact that development in the area was completed only in 1998-99 is confirmed by the order of the Administrator, HUDA dated 20.03.2001 in which it has been stated as follows: "It is very clear that all development works have been completed in the year 1998-99. "

This makes it amply clear that at the time of handing over the possession of the plot on 06.03.1991, development works in the area had not been completed. Under these circumstances, the extension fee was wrongly charged from the Petitioner.

COUNSEL for Respondent challenged the above contentions and again reiterated that the State Commission had rightly reached the conclusion that since complainant had taken possession of the plot and a number of units were already either under construction or fully constructed therefore, the extension fee for non-completed constructed as well as interest amount claimed for the delayed period of the payment was rightly charged on the Petitioner.

WE have carefully considered the submissions made by Counsel for both parties and have gone through the evidence on record. We are unable to accept the contention of the Petitioner that he was not able to raise the construction over the plot because he was advised verbally not to do so by the Respondent because of some pending litigation. As observed by the State Commission, apart from there being no proof of the same it is also not tenable that after Respondent had sanctioned the site plan and also issued a certificate of completion upto the DPC level, Respondent would convey oral instructions to the Petitioner to stop full construction. However, we find force in the contention of Counsel for Petitioner that the development works of the area had not been completed at the time when the possession was taken by Petitioner and the Petitioner had written about this to the Respondent on 20.09.1990. Even more importantly there is an order dated 20.03.2001 (Annexure-A/7 of the paper-book) of the Administrator, HUDA admitting that the development works were completed only in 1998-99 including sewerage, storm water drain etc. It has been further stated in this order that the appellant (Petitioner herein) was not expected to start his unit without provision of basic amenities like road, sewerage, electricity and water supply. Under these circumstances, we are of the view that the State Commission erred in concluding that the Petitioner was liable to pay extension fee for delay in completing construction on his plot. However, so far as the delay in payment as per the schedule of the instalments is concerned, since it is established that Petitioner failed to deposit six yearly instalments on time, Respondent was justified in issuing notices to him on the delayed payment which he was legally and contractually bound to pay. The District Forum also acknowledging this fact, had directed that the Respondent should calculate simple rate of interest @ 10% per annum on the principal amount since in the allotment letter there was no mention of rate of interest to be levied on such delayed payment. In view of this, since admittedly the Petitioner did not pay 6 yearly instalments in time, he is directed to pay interest @ 10% per annum on the delayed amount to the Respondent. To sum-up, the order of the State Commission is modified as follows: (i)So far as the payment of extension fee by the Petitioner is concerned, in view of the admitted delay in the development of the area, there was adequate justification for the Petitioner not being able to complete the building within the stipulated two years '' period and therefore, extension fee cannot be charged from Petitioner. (ii)Petitioner is, however, liable to pay simple interest in respect of 6 yearly instalments for which there was a delay in payment. Respondent is directed to calculate the interest on delayed payment @ 10% interest per annum and refund the excess amount if any paid by the Petitioner to the Respondent within six weeks from the date of receipt of this order.