State Consumer Disputes Redressal Commission
1. Haryana Urban Development Authority ... vs 2. The Estate Officer, Haryana Urban ... on 29 November, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.400 & 401 of 2011 Date of Institution: 17.03.2011 Date of Decision: 29.11.2012 Appeal No.400 of 2011 1. Haryana Urban Development Authority through its Administrator, Sector-6, Panchkula. 2. The Estate Officer, Haryana Urban Development Authority, Sector 6, Panchkula. Appellants (Ops) Versus Mohan Lal s/o late Shri Chhajju Ram son of Shri Dasaundi Ram, resident of H.No.653, Sector-8, Panchkula. Respondent (Complainant) For the Parties: Shri A.K. Kansal, Advocate for appellants. Shri Anirudh Kush, Advocate for respondent. Appeal No.401 of 2011 1. Haryana Urban Development Authority through its Administrator, Sector-6, Panchkula. 2. The Estate Officer, Haryana Urban Development Authority, Sector 6, Panchkula. Appellants (Ops) Versus Hakam Singh son of Shri Ram Kishan, C/o Sh. Harash Vardhan Sood, 812-FF, Sector-7, Panchkula. Respondent (Complainant) For the Parties: Shri A.K. Kansal, Advocate for appellants. Shri Anirudh Kush, Advocate for respondent. BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. O R D E R
Justice R.S. Madan, President:
These two appeals bearing No.400/2011 and 401/2011 have arisen out of the common order dated 25.01.2011 passed by District Consumer Forum, Panchkula whereby two complaints bearing No.92/2010 and No.93/2010 filed by complainants (respondents herein) were decided on the following terms:-
I. In CC No.92 of 2010 titled as Mohan lal Vs. HUDA ETC: To allot plot in name of the complainant along with all the co-sharers of Khewat No.49/79 as per their entitlement according to the oustees policy of HUDA in sec 27, Panchkula, or, in the alternative, any other plot in an adjoining sector at the same price & the same conditions on which the Ops earlier allotted plot No.555-P Sec.27, Panchkula vide allotment letter 31/8/2007. However, in case the complainant submitted no objection certificate/affidavit on behalf of remaining co-sharers of his respective khewat numbers, the OP shall allot plot in sole name of the complainant as per oustees policy.
II. In CC No.93 of 2010 titled as Hakam Singh Vs. HUDA etc.: To allot plot in name of the complainant along with all the co-sharers of Khewat No.54/62 as per their entitlement according to the oustees policy of HUDA No.54/62 as per their entitlement according to the oustees policy of HUDA in sec.27 Panchkula, or, in the alternative, any other plot in an adjoining sector at the same price & the same conditions on which they earlier allotted plot no.555-P sect.27 Panchkula vide allotment letter 31/8/2007. However, in case the complainant submitted no objection certificate/affidavit on behalf of remaining co-sharers of his respective khewat numbers, the OP shall allot plot in sole name of the complainant as per oustees policy.
III. The HUD/opposite parties are entitled to recover dues in respect of plot in question, if legally due from the complainant after adjusting the amount already paid.
IV. It is made clear that complainant/share holder can be allotted only one plot each irrespective of his holding in various Khewat nos.
V. To pay rs.3000/- as lump sum compensation to the complainant in each case on account of deficiency in service mental agony harassment and costs of litigation.
For the sake of brevity, the facts have been taken from the complaint No.92 of 2010 filed by Mohan Lal.
The brief facts of the present case as emerged from the record are that Chhaju Ram-father of complainant Mohan Lal alongwith his brother and sisters was the owner in possession of agricultural land measuring 3 Kanals-11 Marlas situated within the revenue estate of Village Ramgarh Tehsil and District Panchkula. The said land was acquired by the opposite parties for the purpose of residential sector and market vide award no.6 dated 17.6.1992.
As per policy of the opposite parties dated 18.3.1992, the plots were to be offered to oustees by HUDA. Complainants father, being oustee, applied for allotment of 10 marlas plot in Sector-27, Panchkula vide application dated 01.03.2006 (Ex.C-5) and deposited Rs.1,24,982/- being earnest money alongwith all the necessary documents required for the purpose. The opposite parties allotted plot no.555-P, in Sec-27, Panchkula to complainants father vide allotment letter dated 31.8.2007 (Ex.C-6) but the same was allotted jointly in the name of Parkash Singh and other co-sharers including the complainant. The complainant made representation to the oustees adalat on this issue but the claim of the complainant was rejected on 17.7.2008 on the grounds that his claim had been adjusted with other co-sharers in Khewat No.56/64. Lateron on the District Forum vide order dated 9.4.2010 directed the opposite parties to allot plot no.555-P solely in the name of Parkash Singh. Complainant filed complaint before the District Forum with the prayer that he is solely entitled for a plot.
Complainant filed complaint no.93/2010 on similar situated facts.
Opposite Parties appeared and contested the complaint by filing written statement wherein they denied the claim of the of the complainant and took the plea that the plot was rightly allotted in the joint name of the complainant and the other co-sharers as per HUDA policy. It was prayed that the complaints merited dismissal.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Forum accepted both the complaints and granted relief as noticed in the opening para of this order.
Aggrieved against the order of the District Forum, opposite parties have filed these two appeals.
We have heard learned counsel for the parties and perused the case files as well as the written arguments submitted on behalf of the appellants.
At the very outset learned counsel for the appellants has contended that in view of the judgment rendered by Honble High Court of Punjab and Haryana, Chandigarh in Haryana Urban Development Authority & Ors. V. Sandeep & Ors, 2012(2) LAW HERALD (P&H) 1550 (DB), the following criteria have been laid down in respect to the oustees quota:-
56. Thus, the present appeal as well as the other connected matters are disposed of with the following directions, in addition to the decision on the questions of law discussed above.
(i) That date of notification under Section 4 of the Land Acquisition Act, 1894 is relevant to determine the eligibility of a land-owner for allotment of a residential plot, even if the acquisition is for the purposes of commercial, industrial or institutional;
(ii) That the entitlement of the size of the plot and the procedure for allotment shall be as on the date of allotment in pursuance of an advertisement issued inviting application from the oustees;
(iii) That the HUDA or such other authority can reserve plots up to 50% of the total plots available for all reserved categories including that of oustees. As to what extent there would be reservation for the oustees, is required to be decided by the State Government and/or by HUDA or any other authority, who is entitled to acquire land;
(iv) That the oustees are entitled to apply for allotment of plot along-with earnest money in pursuance of public advertisement issued may be inviting applications from the general public and the oustees through one advertisement. If an oustee is not successful, he/she can apply again and again till such time, the plots are available for the oustees in the sector for which land was acquired for residential/commercial purposes or in the adjoining sector, if the land acquired was for institutional and industrial purposes etc. The plots to the oustees shall be allotted only by public advertisement and not on the basis of any application submitted by an oustee;
(v) That the price to be charged from an allottee shall be the price mentioned in the public advertisement in pursuance of which, the plot is allotted and not when the sector is floated for sale for the first time;
(vi) That the State Government or the acquiring authority shall not advertise any residential plot for sale without conducting an exercise in respect of plots ear-marked reserved categories and after identification of the plots available for the oustees in each sector. Thereafter, the State Government or the acquiring authority shall publish an advertisement inviting applications from such oustees to apply for allotment of plots in accordance with law; and
(vii) If in any sector, more than 50% plots have been allotted by way of reservation including to the oustees, then such allotment shall not be cancelled or reviewed in view of the judgment of this court.
While taking the advantage of the aforesaid criteria laid down by Honble High Court, learned counsel for the respondents has submitted that HUDA has been directed to reserve the plots of the reserved categories including that of Oustees and therefore the complainants are entitled for allotment of plots under oustees quota.
So far as the right of the complainants is concerned, they had applied for plots under oustees quota. If under the reserved categories 50% quota has exhausted, even then the complainants are entitled for allotment of plots in another Sectors.
The next contention on behalf of the appellants is that in view of the latest judgments rendered by Honble National Consumer Commission, the complainants do not fall under the definition of Consumer. In support of his argument learned counsel for the appellants has referred to the following judgments:-
In Revision Petition No.2007 of 2011, Om Parkash (deceased) through Legal Representative Versus Haryana Urban Development Authority and others, decided on 03.09.2012, Honble National Commission has observed as under:-
5. We clap no value with all these arguments. The judgment passed by the State Commission is flawless. The learned State Commission has placed reliance on Ram Mehar & Anr. Vs. Vice-Chairman, D.D.A. & Ors.III(1992) CPJ 59 (NC). In this authority it was held as under:-
The case of 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.
6. Similar view was taken in Delhi Development Authority Vs. 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 vs. Smt. Raj Dhulari reported in 1998(2) P.L.R. 756 wherein the Division Bench of Honble Mr. Justice G.S. Singhvi and Honble Mr. Justice V.s. Aggarwal took the same view.
7. 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 vs. Haryana Urban Development Authority, Panchkula and another in revision petition No.3326 of 2003 wherein it was held that the petitioners are not the consumers.
The revision petition is devoid of force and therefore, the same is dismissed.
In Revision Petition No.3456 of 2009 titled HUDA versus UDAI SINGH decided on 02.02.2010, Honble National Commission observed as under:-
By filing complaints before District Forum, indulgence was sought by respondents for app0ropriate direction to authority to allot plots to them. Though claim was resisted by HUDA, lower for a having over-ruled contentions raised, accept complaints directing petitioner authority to allot plot of 500 sq. yds to respondents under oustees scheme in Sector-I, HUDA, after completion of requisite formalities. Compensation and litigation cost too were awarded by for a below. Suffice to say that contentions raised by petitioner authority negating claim of respondents for they having not filed No Objection Certificate from co-sharers, gets over rules in view of decision of a Division Bench of Honble High Court of Punjab & Haryana in LPA No.251/07. Learned counsel for petitioner would also place reliance on a decision of this Commission in the matter of PremKanta & Ors. Vs. 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) appalies with all force with the case under consideration before us with identical factual backgrounds. The finding of State Commission in the circumstances is set aside and the revision petitions succeed with no order as to cost.
The decision rendered by Honble National Commission in UDAI SINGHs case (Supra) was upheld by Honble Supreme Court while dismissing Special Leave to Appeal (Civil) No.10379/2010 titled UDAI SINGH VERSUS HARYANA URBAN DEVL.AUTH.& ANR vide judgment/order dated 16.04.2010.
Taking into consideration the facts and circumstances of the instant case and the authoritative pronouncements relied upon on behalf of the appellants, we find that the complainants do not fall under the definition of consumers and therefore they are not entitled for any relief by filing complaints under the Consumer Protection Act and their complaints before the District Forum were not maintainable. Hence, the impugned order is not sustainable in the eyes of law.
For the reasons recorded above, these appeals are accepted, impugned order is set aside and complaints No.92/2010 Mohan Lal vs. HUDA and No.93/2010 Hakam Sihgh vs. HUDA etc are dismissed.
The statutory amount of Rs.1500/- each deposited at the time of filing appeal No.400/2011 and Appeal No.401/2011 be refunded to the appellants against proper receipt and identification in accordance with rules, after the expiry of period of appeal and revision, if any filed in this case.
The original judgment/order be attached with Appeal No.400/2011 and certified copy be attached with appeal no.401/2011.
Announced: Justice R.S. Madan 29.11.2012 President B.M. Bedi Judicial Member