Sarvan vs HARYANA URBAN DEVELOPMENT AUTHORITY

THIS case revolves around the oustee policy floated by the Haryana Government. Sh. Rajesh Kumar S/o Sh. Banwari Lal, since deceased, was owner of 400 sq. yrds. The said land was acquired by the Opposite Parties, namely - Haryana Urban Development Authority, Panchkula -OP -1, Administrator, Haryana Urban Development Authority, Gurgaon -P -2 and Estate Officer, Haryana Urban Development Authority, Rewari -OP -3. Mr. Rajesh Kumar during his life time moved an application for allotment of 10 Marlas plot on the basis of the fact that he was entitled to that under the HUDA "oustee policy". As per HUDA oustee policy, Radjesh Kumar was entitled only for allotment of plot of 50 sq. yards. However his application was considered for allotment of plot under the General category. He was accordingly allotted plot No. 980 of 10 Marlas in Sector I, Part I, Urban Estate, Naurnaul vide allotment dated 18.08.2000.

SH . Rajesh Kumar failed to deposit Rs. 37525/ - towards 15% of the price of plot within the requisite period of 30 days from the date of issue of letter dated 17.08.2000. Consequently, his plot was cancelled by the OPs. Sh. Rajesh Kumar also passed away on 12.06.2000 prior to issuance of letter dated 17.08.2000 or cancellation of plot. The case was filed by his predecessor Smt. Sarvan Devi, his mother. The averments made by Smt. Sarvan are these. She was not called by the OPs to pay 15% amount and to face cancellation of the allotment. No letter was ever issued to Rajesh Kumar or the complainant and forfeiture of the 10% amount already paid. She contended that Sh. Rajesh Kumar and his family members were not aware of the said letter. The plot was, however, cancelled on 22.03.2004. When it was not withdrawn, the legal notice was sent on 20.04.2004 to the OPs. A revision petition was filed before the Financial Commissioner to the Government of Haryana, Town & County Planning Department Chandigarh, wherein vide order dated 09.09.2005, the case was remanded back to Administrator, HUDA, Gurgaon, to find out the reality as to why such a long time was taken by the Estate Officer when the Plot No. 1852 was earmarked in favour of the allottee. The Financial Commissioner to the Govt. of Haryana, Town & Country Planning Department, Chandigarh also directed the Estate Officer HUDA to consider the claim of the complainant under oustees category as per HUDA Rules/Policy. The Financial Commissioner to the Govt. of Haryana, Town & Country Planning Department, Chandigarh, however, upheld the cancellation of 10 Marla plot in General Category due to non -deposit of 15% amount.

THE Financial Commissioner to the Govt. of Haryana, Town & Country Planning Department, Chandigarh, on a Revision Petition directed the Estate Officer, HUDA, Rewari to consider the claim of the complainant under oustees category as per HUDA rules/policy. The complainant also filed a complaint before the District Forum, which was allowed vide order dated 31.08.2005, wherein the OPs were directed to allot plot No. 1852, Sector I, Part I, HUDA, Naurnal to the complainant or if not possible, allot some alternative plot.

THE appeal was preferred before the State Commission. The State Commission set aside the order of the District Forum and directed the OPs to re -consider the case of the complainant. The OPs reconsidered the case and found that the land earlier owned by Mr. Rajesh S/o Banwari Lal (since deceased) after his death was owned by six other co -sharers of the land measuring 3978 sq. yard falling under the same Khsra. The order further shows that as per HUDA policy guidelines, the appellant was entitled for allotment of 2 marlas plot under the Oustees policy but due to release of land to co sharers in the same Khsra No. 1053, the complainant Sarvan Devi is thus ineligible for 2 marlas plot under the Oustees policy. It came to the conclusion, the case of Sarvan Devi''s claim does not stand covered under the Oustees policy due to release of land to other co -sharers in the same Khsra No. 1053, as such the claim was rejected, accordingly. The State Commission placed reliance on various judgments, including judgment of this Commission and passed the following order: - - "So far as the claim of the complainant for allotment of two Marlas plot is concerned, the controversy cannot be decided under the Consumer Protection Act, 1986 in view of the latest pronouncement of the Hon''ble National Commission in case cited as OM PRAKASH & ANR versus HARYANA URBAN DEVELOPMENT AUTHORITY & ORS. IV : (1012) CPJ 2012 CPJ 288 (NC), wherein Hon''ble Mr. Justice, J.M. Malik, Presiding Member and Shri Vinay Kumar, Member relied upon the judgments of the Hon''ble Supreme Court and held the complainants not to be ''consumers'' qua the allotment of plot under the ''oustees quota''. The relevant part of the judgment OM PRAKASH & ANR versus HARYANA URBAN DEVELOPMENT AUTHORITY & ORS. (Supra) is as under: - -

........... The judgment passed by the State Commission is flawless. The learned State Commission has placed reliance on Ram Mehar & Anr. v. Vice -Chairman, D.D.A. & Ors. III, (1992) CPJ 59 (NC). In this authority it was held as under: - -

"The case of the Complainants is that under a Scheme for providing alternate sites to persons from whom land were acquired, they are entitled to get alternate sites. Even if that be so we fail to see how the Complainants can be said to be consumers, since the scheme does not operate to create any relationship in the nature of hiring of service for consideration as between the Complainants and the D.D.A."

Similar view was taken in Delhi Development Authority v. Manohar Lal Batra & Anr., I(1997) CPJ 43 (NC). The learned trial court has also referred to civil writ petition No. 6554 of 1997 decided on 5.5.1998 titled as "Haryana Urban Development Authority v. Smt. Raj Dhulhari" reported in, 1998 (2) P.L.R. 756 wherein the Division Bench of Hon''ble Mr. Justice G.S. Singhvi and Hon''ble Mr. Justice V.S. Aggarwal took the same view.

THE State Commission also referred to Surjit Singh v. State of Punjab, 1979 P.L.R. 413, wherein a full bench decision held that by filing of an application in accordance with law, the applicant only gets a right of consideration of his application but he does not get a vested right for allotment of plot. Similar view was taken in Prem Kanta and others v. Haryana Urban Development Authority, Panchkula and another, III 2006 CPJ 146(S.C.) in reference to revision petition No. 3326 of 2003 wherein it was held that the petitioners are not the consumers ....." The case is fully covered by Om Prakash''s case (supra). As the complainant does not fall within the definition of ''consumer'', the complaint filed by her before the District Forum, was liable to be dismissed. Hence, the impugned order passed by the District Forum cannot be sustained".

As a matter of fact, the case of oustees does not come within the domain of consumer fora. In a judgment of this Commission, titled HUDA v. Uday Singh, (RP No. 3456 of 2009), it was held :

"Learned counsel for the petitioner would also place reliance on a decision of this Commission in the matter of Premkanta & Ors., v. HUDA & Anr., for unsuiting respondents, they being not consumers, as defined under Section 2(1)(d)(ii) of the Act. We can take notice of the fact that since owners of land had received compensation for land acquired by HUDA, allotment of residential plot under the Scheme was only a gesture of goodwill and there being no element of ''hiring'' service for consideration of petitioner authority from respondents. The ratio of decision of the case in Premkanta (Supra) applies with all force with the case under consideration before us with identical factual backgrounds".

A Special Leave Petition (Civil Appeal No. 10379/2010, titled Udai Singh v. HUDA & Anr.) was filed before the Hon''ble Supreme Court against the above said order and the same was dismissed by the Hon''ble Apex court, vide order dated 16.04.2010. We have heard the counsel for the petitioner at length on 3 -4 hearings. He vehemently argued that if the complainant is not entitled under the outsees quota, she has come under the general category. He contended that his claim should be allowed under the general category. In this respect, he has invited our attention towards various documents. The petitioner has invited our attention towards the correspondence pending between the parties. There is a letter dated 22.03.2004 by the OPs wherein it was specifically mentioned that the petitioner could not deposit the amount of 15%. Ex. R -10/Annex. P -3 reveals that Rajesh Kumar was allotted plot No. 980. The allotment letter itself at para No. 4 mentions that this letter is in respect of General category and was issued on 17.08.2000. There is no evidence that the above said condition was complied with. The plot is not yet allotted to the complainant. Unless or until he/she is allotted, he/she cannot be said to be a consumer. Had he/she complied with this order, he/she would have got/assumed the status of a consumer.

AGAIN , the Estate Officer sent a letter to Rajesh Kumar, stating that the draw of lots of committed plots of Sector I, Naurnaul would be held on 16.05.2002 at 11 -00 A.M. in the office of the District Town Planner, Narnaul. He was requested to participate in the draw of plots. In the meantime, Smt. Saran Devi wrote a letter to the Estate Officer dated 18.03.2003 regarding plot No. 1852, sector I, Narunal. She submitted that Plot No. 980 measuring 10 marlas was allotted to Sh. Rajesh Kumar after it was converted to general category. She asked for payment of balance amount, but she got a reply on 22.03.2003, wherein she was informed that due to non -compliance of the above said condition No. 4, the allotment in his name was cancelled and their 10% earnest money was forfeited. All these facts are supported by Sh. Dharamvir Singh, Estate Officer, HUDA, Rewari through an affidavit sworn on 29.04.2005.

THE Revision Petition was filed before Shakuntla Jakhu, Financial Commissioner & Principal Secretary to the Haryana Govt., Town & Country Planning Department, Chandigarh, who vide order dated 09.09.2005 passed the following order: - - "If he finds that plot No. 1852 was earmarked in favour of the allottee in the mini draw then why the allotment of the same plot was not issued to the allottee. If the Administrator, in this exercise reaches a conclusion that the allottee was called for the mini draw and plot No. 1852 was earmarked in favour of the allottee in the draw then he will seek approval of the competent authority for allotment of plot No. 1852 to the legal heirs of the allottee of plot No. 980/1, Narnaul. This exercise is to be completed by the Administrator, within 4 months from the date of receipt of copy of this order after giving opportunity of hearing to the parties."

On 26.06.2006, the State Commission heard by Justice Kathuria passed the following order: - - "Under the circumstances of the case, the order of the District Forum under appeal is set aside and the complaint is rejected at this stage so as to enable the complaint to pursue her remedy with the opposite parties in terms of the directions given in the above order, without prejudice to her rights to invoke the jurisdiction of the District Forum thereafter. The appeal is disposed off accordingly."

THE appeal filed before the Chief Administrator, was dismissed with the following observation: - - "Keeping in view all the above facts and record available on file the appeal is hereby rejected. However, since the land of the appellant''s son has already been acquired so Estate Officer, HUDA, Rewari is directed to consider the claim of the appellant under oustees category as per HUDA rules/policy and decide the same within a period of 2 months after hearing the appellant. Departmental enquiry may also be held regarding not taking action for cancellation of plot within reasonable period. Appeal is disposed off accordingly."

THE matter went before Sh. D.S. Dhesi, Commissioner & Secretary to Govt., Haryana, Town & Country Planning Department. Vide his letter dated 11.01.2008, he passed the following order: - - "I am of the considered view that in a matter where, on the earlier Revision Petition, the case had been remanded back to the Administrator, HUDA, Gurgaon, the action in compliance of the remand orders should have been completed first and only thereafter the allottee should have again approached the revisional authority. However, in this case, the allottee has for a second time filed a Revision Petition without waiting for the Estate Officer to carry out the exercise as directed by the Administrator. For the reasons mentioned above, I am of the view that the ends of justice would be met if first of all the action contained in Administrator, HUDA''s order dated 29 -06 -2006 is completed. Therefore, the Revision Petition is disposed of with the directions that Estate Officer, HUDA, Rewari may consider the claim of the appellant under Oustees Category as per HUDA Rules/policy and decide the same within a period of 6 weeks after hearing the appellant. Orders had been reserved in this case after hearing arguments on 19 -12 -2007. The same is being announced today. May be communicated to the parties."

Vide order dated 19.05.2009, Sh. D.S. Dhesi passed the following order: - - "3. The history of the case reflects total lack of seriousness on the part of office of EO HUDA, Rewari to comply with quasi judicial orders passed by Government. The following action be taken in the matter: - -

EO HUDA, Rewari is directed to take a final decision in the matter in compliance with orders dated 11 -1 -2008, wherein the next four weeks.

CA HUDA to fix responsibility for non -compliance of the orders."

IN view of the above said discussion and the findings given above, we hereby decide the case as follows: - - "i) The petitioner is not entitled to ''oustees quota'' as rightly held by the State Commission and the counsel for the petitioner also did not press for the same.

ii) The petitioner is not entitled for general category as well. The said plot was never allotted in his favour. He will become the consumer when the plot is allotted in his favour. It must be borne in mind that the question of petitioner''s acquiring the plot from general category has arisen in view of oustess policy, otherwise there is no evidence that she is entitled to have plot under the General quota as per Law.

iii) However, a complicated question arise from the above said discussion. It is difficult to fathom, why the authorities of HUDA uptil Financial Commissioner are interested to harass the petitioner and cause mental agony to Smt. Sarvan, who is a widow. It has come to our notice, the said plot is still lying with the respondent authorities. This is not a direction but advise to the HUDA authorities to consider her application and if possible, take a sympathetic view and allot the plot in her favour as per Law."

KEEPING all the facts and circumstances of this case, with these observations, we dismiss the Revision Petition and the matter stands disposed of.