RAJNISH CHANDER SHARDA vs HARYANA URBAN DEVELOPMENT AUTHORITY

THE relevant facts of this Complaint are as under: The complainant Shri Rajnish Chander Sharda was allotted 250 sq. yds. plot, plot No. 1144 in Section 28 on 10th May, 1979 by HUDA (this plot was allotted in lieu of 160 sq. yds. plot allotted earlier in March, 1979). The Complainant asked for possession of the plot in 1982 so as to construct a house thereon. He was granted Possession Certificate. Thereafter, he approached a contractor and an architect for the purpose of construction of a house on the plot. But, on approaching the HUDA for actual physical possession, it was discovered that a factory existed on the plot. He was also told that the factory would be removed by December, 1982. However, the S.D.E., Faridabad, is said to have informed the complainant allottee after inspection that the possession of Plot No. 1144 in Sector 28 could be handed over to him as a factory exists on the plot and he was advised to ask for an alternative plot as Plot No. 1144 "cannot be vacated at all". He reported these facts to thee E.O. HUDA in September, 1983. The Opposite Party HUDA, however, did not make any alternative allotment at this point of time. On the other hand, the Opposite Party HUDA asked in 1986 a sum of Rs. 3,455/-towards enhancement of the compensation for the acquisition of the said plot whose possession could not be given because of the existence d( a factory thereon.

ON 18th May, 1990, i.e. after the elapse of 11 years the HUDA allotted a plot No. 2125 in Sector 28 to the Complainant in place of Plot Mo. 1144 allotted in 1979. From the letter of allotment of 18th May, 1990 it is seen that the fresh allotment was made in place of Plot No. 1144 allotted already unilaterally and without giving any reasons. Though allotment was made in 1990, possession was offered to the allottee only on Z6the April, 1993. The Opposite Party HUDA repeatedly asked the allottee to take possession of the new plot by the letters dated 13th July, 1993, 19th July, 1993 and 16th August, 1993. It was, however, found that there were many factories in this area where the plot was located and there was noise pollution. In his letter dated 7th April, 1993, the complainant brought to the notice of the HUDA that the area in which the plot was located belonged to Choudhary Rajinder Singh and that not a single house has been constructed in that area till then. In his letter dated 12th April, 1993 to HUD A the Complainant pointed out that besides noise pollution caused by factories, industrial waste is being dumped in Plot No. 2125 of Sector 28. He had, therefore, requested for removal of the factories and of the industrial waste or for the allotment of an alternative plot in the same sector or in Sectors 16-A and 15-A. In his letter of 28th June, 1993 he stated that saw mills viz., M/s. Bharti Woods and M/s. Melco Precision were located in this area which require removal before he could undertake the construction of the house.

HOWEVER , in spite of these communications from the Complainant, HUDA issued Possession Certificate to the Complainant on 25th August, 1993. According to the Complainant, thereafter he engaged an architect for the second time to make a house plan and paid fees for the approval of the said plan and also the penalty for extension for the time to build. But, HUDA did not sanction the plan because the plot was in the possession of Ch. Rajinder Singh. By its letter of 20th October, 1S93 the Respondent HUDA informed the Complainant that, inter alia, this plot belonged to Chaudhary Rajinder Singh and that it was not available for allotment. As such, the building plan could not be approved.

THEREAFTER , the Complainant filed this complaint before this Commission on 2nd December, 1993. He alleged that there has been gross negligence on the part of HUDA. The possession of plot allotted in 1979 could not be given till 1990 because of the existence of a factory which fact had been discovered at least in 1983. In 1990, an alternative Plot No. 2125 in Sector 28 was allotted whose possession was offered in 1993 which, however, could not be given eventually because this was in possession of another person. The plot also was unsuitable due to the existence of factories round about and that it was a dumping ground for industrial waste. The Complainant also submitted that he had often to take leave to pursue the case of allotment of the possession of plot by HUDA. He was on leave for 313 days from 1.1.1987 to 26th June, 1992 for different spells (see the table at page 74 of the paper-book). This is apart from other spells of leave which he was forced to take to pursue his case for allotment of possession. During this period when he was waiting for allotment of possession, he had to rent out private accommodation for residence of his family including his parents and widowed sisters and he has averred that he had to shift from one house to another because of landlords'' harassment. In his complaint petition, he has, therefore, claimed compensation of Rs. 30,70,000/- The broad break-up of the complainants claim is given below: (i) Increase in the cost of construction from 1982 to November, 1993 Rs. 17,01,000/- (ii) Compensation for mental agony and physical torture for pursuing the question of allotment in question of a plot from 1982 onwards till 1993 including the setback to his career and loss of promotion because of frequent absence from duty as HUDA had made him to run from pillar to post for securing the allotment of the plot. Rs. 11,00,000/- (iii) Rent for accommodation for his family members etc. from 1982 onwards at the rate of Rs. 1,600/- per month from 1982 onwards. Rs. 2,00,000/- (iv) Expenditure on journeys undertaken and correspondence with HUDA for the allotment and possession in a period of 14, years. Rs. 50,000/- (v) Payments to architect and contractor. Rs. 7,800/-

The Respondent HUDA in its reply dated 7th February, 1994 to the Complainant Petitioner explained that "possession of Plot No. 1144 Sector 28 in question could not be delivered to the Petitioner as there existed a factory and requisite efforts were made by the Respondent to deliver the possession of the plot in question to the petitioner, but all in vain". It was thus beyond the control of the petitioner to deliver the possession of the said plot as proceedings regarding getting the Plot No. 1144 in Sector 28 vacated would take considerable time.

THE Respondent HUDA further averred that the possession of the alternative Plot No. 2125 in Sector 28 allotted in 1990, was given to the Complainant Petitioner but, "later on it came to the notice of the Respondent (HUDA) that the area covered by the said plot besides other area, belonged to Chaudhary Rajinder Singh who had filed proceedings for release of the land in question in the Civil Courts and since the matter was sub-judice, the Petitioner could not start his construction. The Respondents tried their level best to satisfy the Petitioner in this behalf that it was beyond their control to evict Chaudhary Rajinder Singh etc. from the land in question of which Plot No. 2125 in Sector 28 was a part". It was further added by the Respondent that the area of plot had been released from the acquisition under the orders of the Court and as such it was not possible for the respondent to help the petitioner.

DURING the course of the hearings before this Commission, the Counsel for the Opposite Party, HUDA, stated on 29th July, 1994 that the Opposite Party, HUDA was prepared to allot a plot of 250 sq yards in Sector 28 or in any good adjoining sector which is free from any kind of legal obstacle in the way of possession being given to the Complainant within six weeks from 29th July, 1994. Not only the Opposite Party HUDA did not make any allotment as per the assurance of the 29th July, 1994 by their Counsel to this Commission, the Complainant was treated harshly and rudely when he went on 12th September, 1994 to the office of the Estate Officer, HUDA, for this purpose. He could also not get an appointment for a meeting with the Estate Officer either on telephone or through letters. The Complainant has filed his letter of 25th September, 1994 before this Commission along with a letter of the same date to the Estate Officer, HUDA, bringing out how his efforts to get the order of this Commission of 29th July, 1994 implemented had been frustrated and how he was humiliated. This is at pages 71 to 77 of the Paper Book. It makes a most distressing reading. At the hearing of 20th October, 1994, the Commission decided to close the arguments and allowed the Complainants as well as the Opposite Party to make detailed written submissions in supplementation of the oral arguments. The complaint made a written submission in supplementation of his oral arguments on 17th October, 1994 and the Opposite Party, HUDA made its supplementary submissions on 17th November, 1994.

IN its written submission of 17th November, 1994 the Opposite Party HUDA had stated that it becomes very difficult in a number of cases, to know as to whether any particular site has been encroached by certain persons because action against the trespassers has to be taken as per law and in some cases stays are granted by the Civil Courts and then it takes a considerable time for getting the same vacated". Again ".........it takes a considerable time in coming to know as to how the possession of the plot cannot be delivered. In some of the cases, the original land owner approaches various Civil Courts including the Hon''ble High Court and obtains stay and a considerable time is taken in the final decision of the said proceedings. The HUDA has never the intention of harassing the allottees because the plots are carved out by the Town Planner Department and in a number of cases even after the announcement of the award, the original land owners do not vacate the land and illegally cause hindrance in the allotment/possession of the plot to the actual allottees and proceedings have to be taken against such persons in the Courts by HUDA."

It has vehemently denied that there was

ANY mismanagement in the delivery of the possession of the plot to the petitioner. All this was without any mala fide intention on the part of officials/office of HUDA. It has also denied that the officials of the Estate Officer treated the Complainant harshly or behaved towards him rudely and that these allegations were false and frivolous. After considering the facts on record as well as the statements made at the hearings by the Counsel for the HUDA both in reply to the allegations levelled by the Complainant as well as to the queries from the Bench, we have come to the following findings: HUDA has been guilty of gross deficiency in service towards the Complainant beginning from 1979 to 1993. It is amazing that it made allotment of plots whose actual physical possession could not be given either because there was a factory thereon or because the land was already in the possession of another party and the area was totally undeveloped. It is, to say that least, most surprising that HUDA was unaware of the existence of the factory on the land or that the plot was unfit for house construction because of the existence of factories causing noise pollution, dumping of industrial wastes on the plot in question, total absence of roads, sewerage, lighting, etc. It is equally amazing that the HUDA should have been unaware of the fact that the owner of the plot had challenged the acquisition proceedings in Civil Courts and, therefore, it made allotment and granted possession certificate, yet refused to sanction the house plan when the same was submitted for its approval. The Opposite Party, HUDA, was quite vigilant in demanding the enhanced compensation for plot No. 1144 or the penal extension fee for approval of the house plan in 1993 on the ground that the house had not been constructed within the time allowed. We are also satisfied from the manner in which the complainant has presented his case in writing as well as in person before the Commission and keeping in view the conduct of the Opposite Party HUDA, that the Complainant has been dealt with harshly and rudely and has been humiliated by HUDA when he approached it for implementing its assurance to this Commission for allotment of an alternative plot; his allegations on this score are true and correct.

IN the result we find that HUDA has been guilty not only of deficiency in service but also of atrocious and callous behaviour towards the Complainant.

WE therefore order : That the HUDA. should allot and give possession of a plot of 250 Sq. Yards to the Complainant in the same sector or a neighbouring sector which has been reasonably developed and where the Complainant can undertake construction without delay. The HUDA shall not be entitled to any extra price for the allotment of this plot which will be in lieu of what had been allotted to him earlier.

The Complainant has claimed compensation on various counts from the HUDA.: (i) Rs. 17,01,000/- increase in the cost of construction from 1982 to 1993. The amount claimed has been calculated on the basis that he has to construct 3.5 floors (basement or underground plus 2.5 floors over the permissible area of construction of 4,725 Sq. ft). According to the Complainant, the cost of construction in Faridabad in 1982 was Rs. 40/-per Sq. ft. whereas in 1993, it was Rs. 400/-per Sq. ft. The escalation claimed appears to be excessive.

WE direct that HUDA should pay compensation for escalation in the cost of construction from 1982 to 1994 in accordance with construction done under : UNIFIED BUILDING BY LAWS NATIONAL CAPITAL TERRITORY OF DELHI". Though the Complainant can construct three and a half storeys including basement, the maximum ground coverage (viz. 60%) and the F.A.R. (Floor Area Ratio viz. 160) has to be limited to as laid down in the Bye Laws, 1992. The expenditure incurred on provision of services (Electrical, Sanitary, Water supply etc.) over and above the bare cost of the construction has also to be added in arriving at the cost of construction in 1982 and 1994. The escalation in the cost of construction of a house should be worked out on the basis of the cost of construction index of the C.P.W.D. in 1984 and 1994. The Compensation for escalation should, therefore, be got determined through the good offices of the C.P.W.D. Rs. 11,00,000/- claimed for mental agony, torture due to mismanagement of HUDA etc. at the rate of Rs. 1 lakh per year. This is exhorbitant. We consider it reasonable to allow a compensation of Rs. 2 lakhs. Rs. 2 lakhs claimed by way of rent from 1982 onwards at the rate of Rs. 1,600/- per month for having to live in a rented accommodation. Instead we direct that Complainant shall be paid interest @ 18% p.a. on the amount deposited from time to time by the Complainant from 1979 onwards till a new plot is allotted and possession given. Rs. 50,000/- claimed as expenditure for chasing the case with HUDA for a period of 14 years. This is reasonable and is allowed. Rs. 7,800/- claimed as payments made to the Architect and contractors etc. This appears reasonable and is also allowed. The original petition is disposed of with the above directions.