SOM NATH JAIN vs ESTATE OFFICER, HARYANA URBAN DEVELOPMENT AUTHORITY

SOM Nath Jain - Family Benefit Trust, has invoked the original jurisdiction of this Commission by filing the present complaint against Haryana Urban Development Authority, alleging deficiency in service in the matter of charging of interest and non-delivery of actual physical possession of Shop-cum-Office No. 10 in Sector 14, Gurgaon to the complainant.

ACCORDING to the complainant, he was allotted Shop-cum-Office No. 10 in Sector 14, Gurgaon in the year 1985, as a result of auction held by HUDA in which complainant was declared successful. He was required to pay Rs. 6,60,000/- as consolidated total price of the site as per terms and conditions of the allotment letter issued to him. Though the complainant paid his instalments towards price of the site allotted to him regularly, yet HUDA did not deliver the vacant physical possession of the site to him, as required by Clause 6 of the letter of allotment as under : "Clause-6. The possession of the site will be offered to you on completion of the development work in the area. In the case of building or undeveloped land, the possession shall however, be delivered within 90 days from the date of this letter."

Complainant issued repeated reminders by paying personal visits to the opposite party, despite that, the needful was not done. Obviously because the necessary development projects have not been completed and the HUDA was not in a position to hand over physical possession of the site for raising construction by the complainant thereon. On the other hand, HUDA was issuing show cause notice for the payment of various amounts demanded by them with penal interest thereon without delivery of the actual physical possession of the site. The complainant represented to HUDA authorities for recalling of the notice for making further demand as major portion of the demand towards price of the plot had already been made by the complainant. Despite that, needful was not done and the necessary development projects, which were condition precedent for completing the construction by the complainant, had not been provided. Aggrieved by the aforesaid deficiency in service, the complainant has filed the present complaint, claiming the following reliefs : "(a) To hand over the actual and physical possession of the site with immediate effect and execute all the relevant necessary documents together with all the agreed and promised amenities including total development. (b) To credit a sum of Rs. 9,99,345.44 towards interest on the amount paid by the complainant and enjoyed/ earned by the opposite party as the amount is being utilised since 1985 by the Haryana Urban Development Authority, Gurgaon. (c) To pay a sum of Rs. 8,34,127.94 to the complainant after adjusting the amount deposited and the interest accrued thereon totalling to Rs. 14,94,227.94 and thereafter deducting the amount of auction price of the plot of Rs. 6,60,100/-. (d) To pay a sum of Rs. 5.00 lakhs on account of being deficient in providing agreed and promised services and amenities fully developed and so also on account of unjustified and un-reasonable delay resulting into hypertension, physical pain and monetary loss caused by the opposite party and suffered by the complainant."

In the reply filed by HUDA-opposite party though the factual position regarding auction of the plots, allotment thereof, payment of the earnest money and subsequent instalments thereof have been admitted, yet the complaint has been contested on the ground, that possession of the site could be offered to the complainant only after clearing all the instalments. It is further pleaded, that in fact symbolic possession of the site had already been offered to the complainant and he had also been asked to obtain the physical possession of the site in due course and that the requisite development projects had already been completed in his locality. In the end, complainant was also sought to be non-suited on the ground, that the plot had been allotted by HUDA through public auction for commercial purpose, the complaint is liable to be dismissed as the complainant is not "consumer" within the meaning of the Consumer Protection Act.

Thereafter the complainant produced his evidence by filing affidavit and documentary evidence in support of his allegations that development projects and other amenities like construction of roads, laying of sewerage, water and electricity facility, provision for park and public places etc. had not been completed as yet. Evidence in rebuttal by way of affidavit has also been filed by the opposite party to substantiate their stand as taken in the written statement.

WE have gone through the record and have also heard the learned Counsel for the parties. Having done that, we are of the considered view, that complainant has successfully established deficiency in service on the part of HUDA and his complaint deserves to be allowed, as neither the development works have been completed nor was the vacant physical possession of the site offered to the complainant. All this has resulted in causing monetary loss to the complainant, who has already deposited huge amounts in the form of instalments towards total price of the site allotted to him. The opposite party has not produced any evidence to substantiate their plea that the possession was offered to the complainant after having completed their statutory duty under the HUDA Act, as well as according to the terms and conditions incorporated in the letter of allotment. Unless that was done, HUDA was not entitled to charge any interest on the unpaid instalments. In fact, it was the condition precedent for the Haryana Urban Development Authority at the time of offering of possession of the site to the allottees and the interest @ 10% per annum on the remaining amount was to accrue after the date of delivery of possession. The Haryana Urban Development Authority, however, while issuing the allotment letter in an illegal and mala fide manner, altered the statutory terms and conditions of the allotment which would be evident from the comparative study of the two : (i) Terms and condition No. 6 of the statutory form ''CC'' under Regulation 6(2) applicable to the complainant reads as under : "The possession of the site will be offered to you on completion of development work in the area." (ii) Terms and condition No. 6 in the impugned letter read as under : "The possession of the site will be offered to you on completion of the development works in the area. In the case of building or undeveloped land the possession shall, however, be delivered within 90 days from the date of this letter."

That as per the law, Haryana Urban Development Authority is not entitled for charging interest without development of the area and cannot change the condition in the allotment letter against the statutory provisions of the Act. In view of the aforesaid factual and legal position, we allow the complaint by directing HUDA : (1) to hand over actual physical possession of the site allotted to the complainant immediately, after ascertaining that necessary development projects have already been completed; (ii) to credit the amounts deposited by the complainant towards interest on the amounts paid by him; (iii) to pay a sum of Rs. 2 lacs by way of escalation in the cost of construction etc.;(iv) to pay a compensation of Rs. 20,000/- for the monetary loss, mental agony and harassment suffered by the complainant; and (v) to pay costs of litigation quantified as Rs. 2,000/-. This shall be done within a period of two months from the date of the receipt of the order.

Complaint allowed with costs. ______________