Reema Saharan vs HARYANA URBAN DEVELOPMENT AUTHORITY

THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 by the petitioner/complainant against the impugned order dated 19.10.2012, passed by the Haryana State Consumer Disputes Redressal Commission (for short ''the State Commission '') in FA No. 1513/2010, vide which, while allowing appeal, the order dated 18.08.2010, passed by the District Consumer Disputes Redressal Forum, Gurgaon, was set aside. The District Forum vide the said order had allowed the complaint filed by the present petitioner and ordered the OP to allot an alternate plot to the complainant.

BRIEFLY stated, the facts of the case are that the OP, Haryana Urban Development Authority (HUDA) allotted plot no. 123 measuring 135 sq. mtrs. in residential Sector -5, Part -3 of Gurgaon to Shri Dharam Singh Punia, original allottee and an allotment letter was issued by HUDA on 4.6.1990 vide their memo No. 1058 dated 05.06.90. It was stated in the said letter that the area of this plot was 135 sq. mtr. and its tentative price was Rs.86,010/ -. Further, there is a possession certificate on record saying that Shri VirenderSingh, Junior Engineer in the office of Estate Officer, HUDA, Gurgaon had delivered the possession of the said plot to the allottee Dharam Singh Punia through his General Power of Attorney (GPA) holder, Om Prakash Saharan on 11.05.2006. It is interesting to observe that in this possession certificate, the area of the said plot has been mentioned as 209.25 sq. mtr. instead of 135 sq. mtr. as mentioned in the allotment letter. The sale -deed was also executed by HUDA on 09.08.2006 in favour of the original allottee through his GPA holder Om Prakash Saharan. In the said sale -deed also, the area of the plot has been mentioned as 209.25 sq. mtr. The present petitioner/complainant purchased the said plot from the original allottee Dharam Singh Punia through his GPA holder Om Prakash Saharan and a sale -deed dated 20.11.2006 was affected in her favour. In the said sale -deed also, the area of the plot has been mentioned as 209.25sq. mtr. The permission for sale is also stated to have been given by the HUDA vide Memo No. 7334 dated 31.10.2006 in favour of vendee. A copy of the reallotment letter No. 448 dated 19.01.2007 issued by the Estate Officer, HUDA, Gurgaon in favour of the petitioner/complainant is on record saying that reallotment of plot No. 123 measuring 209.25 sq. mtr. was being done in favour of the complainant.

IT has been stated in the complaint that on 26.06.2007, the complainant submitted building construction plan on the said plot and deposited the necessary fees. She approached the concerned Junior Engineer in the office of HUDA for getting physical possession of the said plot but the said official did not take any affirmative action. She was informed by her architect that the plot was not available exactly as per the construction letter. She, then, alleged deficiency in service on the part of the OP HUDA for denial of plot measuring 209.25 sq. mtr. and filed a complaint before the District Forum, which was allowed and the OP was directed to allot an alternative plot of the same size in the same line and in the same sector and if the same was not available, then to allot in the adjoining sector on the same rates. The OP was also directed to pay interest to the complainant as per HUDA rates on the amount deposited by the complainant from the date of deposit till the delivery of the possession. The OP was also directed to pay Rs.10,000/ - to the complainant for harassment and also Rs.5,000/ - as cost of litigation. An appeal against this order filed by HUDA was, however, allowed by the State Commission on the ground that the complainant being a re -allottee,cannot be considered to be a ''consumer '' and that she had full knowledge about the factual position of the plot at the time of purchase. During the course of hearing on the revision petition, the petitioner filed copies of the allotment letter dated 04.06.1990, the possession certificate dated 11.05.2006, a copy of conveyance deed dated 08.08.2006 executed between HUDA and the first allottee Shri Dharam Singh Punia through his GPA holder Om Prakash Saharan, a copy of sale deed dated 20.11.2006 from the first allottee Dharam Singh Punia through his GPA holder Om Prakash Saharan in favour of the present petitioner Reema Saharan wife of Suraj Parkash Saharan, a copy of reallotment letter dated 19.01.2007, a copy of conditions of reallotment and a copy of letter dated 19.06.2006 from the OP HUDA in favour of Om Prakash Saharan asking him to deposit certain balance amount. The learned counsel for the OP HUDA was also given opportunities to present their written version about the alleged change in area of the plot. The Estate Officer, HUDA Gurgaon was also called in person but OP HUDA could not provide any clarification about the main issue regarding the change in area.

AT the time of final arguments before us, learned counsel for the petitioner argued that the plot had been purchased from the original owner Dharam Singh Punia, to whom the possession of the plot was given on 11.05.2006 for area measuring 209.25 sq. mtr. This possession was, however, ''Paper -Possession '' as per admission made by the OP itself. As per the policy governing the purchase of these plots, a purchaser is required to obtain permission from the office of HUDA, before execution of the sale -deed. In this case also, due permission was given by HUDA after which the sale -deed for area measuring 209.25 sq. mtr was executed between the petitioner and the original owner. However, at the time of preparing building plan by the architect, it was discovered that the area actually available at the site was only 140 sq. mtr. It is, therefore, the duty of the OP to make good this area and hence the order passed by the District Forum is based on a correct appreciation of facts and circumstances on record.

THE learned counsel for the respondent stated that the area of the plot at the time of original allotment is 135 sq. mtr. only as is clear from the allotment letter. The OP had not committed any deficiency in service vis -à -vis the petitioner. She, however, admitted that the documents produced by the petitioner were in accordance with record.

THE detailed examination of the facts of the case and the documents on record reveals that the original allotment letter dated 04.06.90 issued by the OP HUDA in favour of the first allottee Dharam Singh Punia mentions that area of plot No. 123 is 135 sq. mtr. and its tentative price is Rs._86,010/ -. The possession certificate dated 11.05.2006 mentions that possession of area measuring 209.25 sq. mtr. for plot No. 123 was delivered to Dharam Singh Punia through his GPA holder Om Prakash Saharan, s/o Jagdev Ram Saharan. The conveyance deed dated 08.08.2006 reveals that the plot was duly transferred from OP HUDA in favour of Dharam Singh Punia through GPA holder Om Prakash Saharan s/o Jagdev Ram Saharan for a consideration of Rs.1,98,386/ -. It has not been clarified whether there was increase in the price of the plot after the issuance of the original allotment letter in the year 1990 in which the price of the plot has been mentioned as Rs.86,010/ -. Just after about three months, the said plot was further sold by the first allottee Dharam Singh Punia through his GPA holder Om Prakash Saharan, s/o Jagdev Ram Saharan in favour of the petitioner/complainant Reema Saharan w/o Suraj Parkash Saharan for a consideration of Rs.6 lakh. The said SurajParkash Saharan has been stated to be s/o Jagdev Ram Saharan and he has signed the original sale -deed dated 08.08.2006 from HUDA to Dharam Singh Punia through his GPA holder Om Prakash Saharan. The second sale -deed from Dharam Singh Punia through his GPA holder Om Prakash Saharan in favaour of Reema Saharan w/o Suraj Parkash Saharan has also been signed by the said Suraj Parkash Saharan as a witness. It is very clear, therefore, that the husband of the petitioner/complainant Suraj Parkash Saharan is an active participant in the execution of both the sale -deeds and he is the real brother of the GPA holder Om Prakash Saharan of the original allottee Dharam Singh Punia. It is clear, therefore, that the said Suraj Parkash Saharan was supposed to be well -aware about the status of the plot in question including its area and size, at the time of execution of both the sale -deeds.

IT has not been explained anywhere how the area of the plot in question mentioned in the original allotment letter as 135 sq. mtr., got increased to 209.25 sq. mtr. at the time of delivery of the possession or at the time of execution of the registered deed. The area mentioned in the second registered deed and the reallotment letter in favour of the petitioner is also 209.25 sq. mtr. It was the duty of the OP HUDA to explain in detail whether the area of the plot is 135 sq. mtr., 209.25 sq. mtr. or 140 sq. mtr. Despite giving many opportunities and even calling the Estate Officer, no oral or written explanation has been furnished by HUDA to explain the situation.

MOREOVER , the petitioner has purchased the plot, in question, from the original allottee in resale and hence she cannot be stated to be a direct consumer, vis -à -vis, HUDA.

THE peculiar circumstances of the case make it clear that the husband of the petitioner/complainant Suraj Parkash Saharan was an active participant in the execution of both the sale -deeds. The first sale -deed was executed by HUDA in favour of his real brother Om Prakash Saharan, acting as General Power Attorney holder of the original allottee Dharam Singh Punia. It also sounds peculiar that just three months after the execution of the original sale -deed, the same plot was sold at three times the price of the same in favour of petitioner/complainant who happens to be a close relation of Om Prakash Saharan. It is obvious that the matter is concerned essentially between the petitioner/complainant and her own brother -in -law. It is also necessary as explained above, that detailed evidence should come forward indicating the exact area of the plot in accordance with the situation of the ground. It is evident, therefore, that to arrive at the depth of the matter, detailed evidence should be brought forward by the parties so that a definite conclusion could be drawn about the situation of the plot. The proper forum to deal with the question is, therefore, a civil court of competent jurisdiction and the parties should approach the same to have their rights decided.

BASED on the discussion above, this revision petition is disposed of with the observation that the petitioner should seek remedy in a civil court of competent jurisdiction. It shall be open to the complainant to take benefit of the provisions of Section 14 of the Limitation Act, in case such a benefit is otherwise available to it in law.