National Consumer Disputes Redressal
Haryana Urban Development Authority vs R.P. Chawla on 31 August, 2001
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 547 & 548 OF 1997 (From the order dated 31.3.1997 in F.A. No.8 & 34/96 of the State Commission, Haryana) Haryana Urban Development Authority through the Executive Officer, HUDA, Gurgaon .. Petitioner Vs. R.P. Chawla .. Respondent BEFORE: HONBLE MR. JUSTICE D.P. WADHWA, PRESIDENT HONBLE MR. JUSTICE C.L. CHAUDHRY, MEMBER HONBLE MR. JUSTICE J.K. MEHRA, MEMBER. MRS. RAJYALAKSHMI RAO, MEMBER. MR. B.K. TAIMNI, MEMBER For the petitioner : Mr. Ravindra Bana, Advocate For the respondent : N E M O ORDER
Dated the 31st August, 2001 PER JUSTICE D.P. WADHWA , PRESIDENT.
The question that arises for consideration is:
When the possession of the plot originally allotted in a particular sector could not be given to the allottee for any reason for no fault of his and HUDA (Haryana Urban Development Authority) is required to allot an alternative plot in lieu thereof in any other sector, what price HUDA is to charge for the alternative plot allotted in the different sector?
There are number of cases raising this question. However, we take the case of HUDA Vs. R.P. Chawla (Revision Petition No. 547-548 of 1997) as illustrative.
Respondent-Chawla was the complainant before the District Forum. His late father was allotted a plot of land in 1986 in the urban estate of Gurgaon in the State of Haryana at a price of Rs.40,480/- which amount was paid by the allottee in instalment as per time schedule fixed by HUDA. By letter dated 20.7.92 allottee was thereafter asked by HUDA to deposit a sum of Rs.39,494.85 on account of enhancement of price of land. Allottee wrote to HUDA on 7.12.92 that he was willing to pay the enhanced amount as well but possession of plot should be given to him. He did not get any reply from HUDA. During course of enquires, allottee came to know that plot allotted to him was under possession of one Usha Stud Farm. On 13.5.94 he wrote to Chief Administrator, HUDA. Still he did not get any reply. Waiting for allotment of the plot allottee died on 1.3.1995. By order of the Estate Officer plot was transferred in the name of son of the allottee R.P. Chawla, the complainant and respondent herein. Chawla was also asked to pay Rs.60.370/- out of which Rs.39,494.85 were said to be the arrears and the balance amount being interest thereon. In these conditions Chawla approached the District Forum with a prayer that HUDA be asked to deliver the plot originally allotted to him or he be given an alternative plot in the same very sector or in any other equally developed sector. Chawla also prayed for payment of interest to him @ 18% per annum on the amount of Rs.40,480/-
which had already been deposited with HUDA. Not only that Chawal claimed Rs.2.00 lakhs as compensation but also a direction to HUDA not to charge any other interest on the amount of Rs.39,494.85.
District Forum on consideration of the whole aspect of the matter ordered that Chawla be allotted a plot of the same size as originally allotted to his deceased father in the same sector or in any other developed sector on the price already paid by him and to pay to Chawla interest @ 18% per annum on the amount of Rs.40,480/- from 1.8.92 till the date of payment to him.
Chawla was also give cost of Rs.200/-.
HUDA went in appeal to the State Commission against the order of the District Forum. State Commission while affirming the order of the District Forum observed that the contention of the HUDA that due to pendency of litigation plot originally allotted could not be developed, was not tenable. State Commission said that it was not for the allottee to wait endlessly for litigation respecting the plot to end to which allottee was not a party. State Commission also said that rights of allottee could not be adversely affected by any litigation between HUDA and some other party. Plea of the HUDA that the case of Chawla was always under consideration and that he shall be allotted a plot after decision is taken, was negatived by the State Commission as being too vague, non-committal and without any meaning. State Commission dismissed the appeal of HUDA. Aggrieved, HUDA has come to this Commission in revision.
It was argued by Mr. Bana, learned counsel for HUDA that HUDA had framed a policy where an allottee could not be given possession of the plot of land allotted to him because the plot was involved in some litigation. He produced before us policy for exchange of plots that was existing in 1995, 1998 and 1999. The policy envisages as to how a register is to be maintained by Estate Officer where plots could not be allotted as they were not free from encumbrances. Under the scheme, alternative plot in lieu of disputed plot is to be given in the same sector out of additional carved out plots by draw of lots at the same rates, terms and conditions, in accordance with the policy on subject in force and interest @ 10% per annum is also to be allowed on actual deposit after three years of allotment or from the date of other allottees in that sector had been offered possession, which ever would be later. In case alternative plot is in the different sector the allottee will have to be charged the rate as prevalent in the other sector.
No such plea based on policy was raised before the District Forum or State Commission.
Mr. Bana was unable to show us as to under what authority HUDA was competent to issue such policy guidelines to bind the allottees who were given allotment of plot in an alternative sector when, HUDA failed to give possession of the plot originally allotted and having received the payments in terms of the allotment letter. HUDA is constituted under the Haryana Urban Development Authority Act, 1977. Its function are prescribed under that Act. Section 13 provides for objects and function of HUDA which Section we quote:
13. Objects and functions of Authority -
The objects of the authority shall be to promote and secure development of all or any of the areas comprised in an urban area and for that purpose, the Authority shall have the power to acquire by way of purchase, transfer, exchange or gift, hold, manage, plan, develop and mortgage or otherwise dispose of land and other property, to carry out by itself or through any agency on its behalf, building, engineering, mining and other operations, to execute works in connection with supply of water, disposal of sewerage, control of pollution and any other services and amenities and generally to do anything, with the prior approval, or on direction, of the State Government, for carrying out the purposes of this Act.
This provision does not give any power to HUDA to frame a policy charging price at a higher rate when allotment is made in a different sector in lieu of the plot originally allotted of which HUDA failed to give possession for no fault on the part of the allottee or even to fix rate of interest for payment on the deposit made by the allottee towards the price of the plot originally allotted and the period for which interest is to be paid. HUDA is to act within the parameters of the powers entrusted to it by the Act constituting it. However, the policy would at best be for guidance of the officers of HUDA managing the properties but it cannot have any validity in law so as to bind any allottee. The policy which has been shown to us is on the face of it anti consumer. We, therefore, do not take notice of the policy.
In the case of HUDA vs. Darsh Kumar - Revision Petition No. 1197/98, we have referred to rules and regulations constituting HUDA and two decisions, one of this Commission [Rajnish Chandder Sharda Vs. HUDA - II (1995) 70 NC)] and the other of MRTP Commission in Dhanesh Chander Goel Vs. Ghaziabad Development Authority (CA No.209/98) which met the approval of the Supreme Court in appeals filed in one case by HUDA ( Civil Appeal No.5970 of 1995) decided on January 12, 2001 by three Judges Bench), and the other by GDA ( Special Leave to Appeal (Civil) No.11315/2000 ) decided on January 12, 2001 by three Judges Bench.
From the decisions in the cases of Dhanesh Chand Goel and Rajnish Chander Sharda which had been affirmed by the three Judges Bench of Supreme Court following propositions can be culled out:
(1) By not handing over the plot/house/flat to the allottee to which he was entitled to, the allottee suffers pecuniary loss not only in terms of payment but also in terms of return which he could have earned on the amount deposited with the HUDA. This amount is to be refunded to him along with interest @ 18% per annum from the dates of payments of instalments till the dates of refund of the total amount in question.
(2) The allottee is to be entitled to award of certain amount towards harassment and litigation cost. A reasonable amount is to be allowed for mental agony, torture due to mismanagement of HUDA.
(3) HUDA is to give compensation for escalation in the cost of construction.
(4) Award of interest @ 18% per annum on the amount deposited by the allottee can take into account the rent paid by him for having to live in rented accommodation.
(5) Reasonable expenditure incurred by the allottee for going to the office of HUDA for getting the allotment of the plot is allowable.
(6) HUDA shall not be entitled to charge any extra price for the allotment of a plot which would be in lieu of what had been allotted earlier.
Our attention has also been drawn to a decision of the MRTP Commission in the matter S.P. Anand & Ors. Vs. Haryana Urban Development Authority - I(1999) CPJ 38 (MRTP) where the MRTP Commission held that where HUDA was unable to provide a plot of land in the sector where a person was originally allotted a plot of land at the same price and the alternative plot of land could be given only in a different sector where the price of land was much higher for various reasons, that person could not be extended undue advantage and he had to pay the higher price. MRTP Commission did not agree with the allottee that it was not his fault that possession of the plot originally allotted to him could not be given to him for no fault of his. MRTP Commission was of the view that in case a different price is charged from the allottee in the alternative plot that would be discriminatory to the other allottees in that very alternative sector and hence complainant could not say that he should pay only the price which he was to pay for the plot originally allotted to him.
We are, however, unable to agree with such sort of reasoning. Perhaps the reasoning may be good enough while deciding a matter under the MRTP Act but certainly not for us for redressal of the grievance of the allottee who could not be given the plot allotted to him and he had to wait for years and then told to get another plot at a higher price when persons similarly situated have got plots at original price. No question of discrimination vis-a-vis allottees in the alternative sector has arisen. We are here concerned with the right of that individual allottee like Chawla whose case is to be considered with those persons who applied along with him and got the plots at the original price when Chawla is deprived of his promised plot of land for no fault of his and when he had paid the whole of the amount as demanded by HUDA as price of the plot originally promised. It will be grave injustice to Chawla if he is compared to the allottees of the alternative sector. We are unable to comprehend as to who raised the question of discrimination before the MRTP Commission. Was it HUDA or were these the allottees of the plots in the alternative sector? Neither of them could have raised such an argument of discrimination.
Chawla is to be allotted a plot in the alternative sector in lieu of what he was promised. Once he was promised the plot of land and he had paid the full price thereof, within the time schedule as fixed he had legitimate expectation that he would be given possession of the plot as any other person who had applied for allotment of plot in the same sector like him. Chawla did not apply for the allotment of plot for any commercial consideration. He is to build his house for his residence and that of his family members. For that purpose he had stated he had to take loan from his department to construct his house. He is to be put in the same position as any other person who applied for allotment of plot at the same time but luck favoured them and Chawla was not that lucky as his plot was entangled in litigation for nine years. He was not even made aware of the fact that he could not be given possession of the plot allotted to him. Question of Chawla being asked to pay additional price of the plot in the alternative sector could not arise. He has to be given plot of land by HUDA either in the same sector where he was originally allotted and for which he paid the full price or in any other sector at the same price.
There has been a great deal of delay in handing over possession of the plot. Cost of construction has arisen all these years. In the case of HUDA vs. Darsh Kumar we have held that award of rate of 18% interest per annum would take into account not only the loss of interest by allottee on the amount paid by him but also the rising cost of construction. As pointed out in Darsh Kumar case, Chawla is in catch-22 situation. He was promised plot of land at a particular price which he paid. The plot he applied for was for his residence. He could not apply for any other plot in HUDA. After nine years of wait, he could not be asked to pay price of the plot allotted to him in a different sector at a higher amount.
The issue before us is the allotment of alternative plot. It is also to be seen that if for no fault of the allottee, he is deprived of his plot allotted to him and in lieu of that he is allotted some other plot in the same or any other sector he cannot be asked to pay the price over and above of original plot which he will have to pay. In this case allottee would be entitled to interest @ 18% per annum. The interest amount shall however be payable from the date of respective deposits of the amounts.
No other issue has been raised before us. We therefore, uphold the order of the State Commission and dismiss the revision petition with cost which we quantify at Rs.2000/-.
We have noticed that Chawla had filed his complaint before the District Forum on 17.7.95 and District Forum decided the matter on 17.11.95. We record our appreciation of the promptness with which District Forum decided the matter.
...J. (D.P. WADHWA) PRESIDENT ..J. (C.L. CHAUDHRY) MEMBER ..J. (J.K. MEHRA) MEMBER .
(RAJYALAKSHMI RAO) MEMBER ..
( B.K. TAIMNI) MEMBER