State Consumer Disputes Redressal Commission
Maya Lal vs Huda on 30 March, 2018
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No : 999 of 2016 Date of Institution: 21.10.2016 Date of Decision : 30.03.2018 Smt. Maya Lal w/o Sh. D.D. Lal, Resident of House No.369/12, New Railway Road, Gurgaon. Appellant-Complainant Versus 1. Estate Officer-II, Haryana Urban Development Authority, Sector-34, Gurgaon. 2. Administrator, Haryana Urban Development Authority, Gurgaon. 3. Haryana Urban Development Authority, Sector-6, Panchkula through its Chief Administrator. Respondents-Opposite Parties CORAM: Mr. Balbir Singh, Judicial Member.
Argued by: Shri Pardeep Solath, Advocate for appellant.
Shri Ram Chand, Assistant Estate Office-II, HUDA, Gurgaon alongwith Shri Vikas Arya, Advocate proxy for Shri Saurabh Sharma, Advocate for respondents.
O R D E R BALBIR SINGH, JUDICIAL MEMBER This complainant's appeal is directed against the order dated August 16th, 2016 passed by District Consumer Disputes Redressal Forum, Gurgaon (for short 'the District Forum') whereby complaint was dismissed.
2. Smt. Maya Lal - complainant (appellant herein) Resident of New Railway Road, Gurgaon filed complaint under Section 12 of the Consumer Protection Act, 1986 stating that pursuant to the advertisement made by Haryana Urban Development Authority (HUDA), she applied for allotment of a plot in Sector-28, Gurgaon after depositing an amount of Rs.1,02,258/- as booking amount vide Demand Draft No.446546 dated 20.06.2001 in favour of Estate Officer, HUDA, Gurgaon. She was successful at the time of draw of lots but the complainant neither received allotment letter nor received any information regarding allotment of plot measuring 8 Marlas. Ultimately, the complainant visited the office of HUDA, Gurgaon on 19.06.2003 and came to know that in fact plot No.131-P, Sector-28, Gurgaon had been allotted in her name. When the complainant came to know regarding issuance of allotment letter, on the same date June 19th, 2003 the opposite parties passed an order and cancelled allotment of plot in the name of the complainant mentioning that the complainant failed to make compliance of the terms and conditions of the allotment letter as she did not deposit 15% of the total sale price amount. The above mentioned plot is still un-allotted. The complainant earlier could not visit the office of HUDA in this regard due to family problems and ill health. Facing with this situation, the complainant could not deposit the required amount of 15% of the total sale price.
3. The complainant filed an appeal against the cancellation order dated 19th June, 2003 before the Administrator, HUDA, Gurgaon on 14.04.2004 mentioning that allotment letter dated 21.12.2001 was never received by her. The appeal filed by the complainant was dismissed vide order dated 28.09.2004. Thereafter, the complainant filed Revision Petition under Section 17 (8) of the Haryana Urban Development Authority Act before the Financial Commissioner and Secretary to Government of Haryana, Town and Country Planning Department but that revision petition was also dismissed on 30.09.2014 on technical grounds. The review petition filed by the complainant was dismissed vide order dated 19.01.2015. The opposite parties were not competent to forfeit the booking amount being 10% of the total sale price because the allotment letter was not received by the complainant. The complainant has taken plea that allotment of plot No.131-P, Sector-28, Gurgaon be restored in the name of the complainant and she is still ready and willing to pay the total sale price of the plot in lump sum.
4. The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 with a prayer to direct the opposite parties to issue fresh allotment letter regarding allotment of plot No.131-P, Sector-28, Gurgaon as the same has not been allotted to any other person by this time. In the alternative, the complainant has also prayed that the opposite parties be directed to allot an alternative plot of the same size in the same sector or adjoining sectors of the choice of the complainant on the same rates; to pay interest at the rate of 18% per annum on the amount already deposited by the complainant from the date of deposit; to pay an amount of Rs.2,00,000/- to the complainant on account of un-necessary harassment, mental agony and an amount of Rs.22,000/- as litigation expenses.
5. The opposite parties in their written version have taken plea that the complaint is not maintainable in the present form; that the complaint is barred by limitation; that the complainant has concealed the material facts and that the complainant is stopped from filing the present complaint by her own acts and conduct. It is pleaded that on the basis of open draw of lots, the complainant was allotted plot No.131-P, Sector-28, Gurgaon vide allotment letter dated 21.12.2001. Regarding issuance of the allotment letter, there is an entry in dispatch register, as mentioned in Annexure-A. The complainant/allottee could not deposit 15% of the total sale price amount as mentioned in the allotment letter within a period of 30 days without any sufficient cause and due to this reason the allotment of the plot in the name of the complainant was cancelled vide letter dated 19.06.2003 and booking amount stood forfeited. The appeal filed by the complainant against the order dated 19.06.2003 was dismissed by Administrator, HUDA, Gurgaon vide order dated 28.09.2004 after giving opportunity of hearing to both the parties. The revision petition filed by the complainant against the order dated 28.09.2004 was also dismissed vide order dated 30th September, 2014 passed by the Financial Commissioner-cum-Secretary to Government of Haryana, Town and Country Planning Department on the ground that 15% of the total sale price amount could not be deposited within 30 days from the date of issuance of the allotment letter. The complainant is not entitled to receive any relief as claimed in the complaint. It is prayed that the complaint filed by the complainant be dismissed with cost.
6. Parties led evidence in support of their respective claims before the District Forum.
7. After hearing arguments, vide impugned order dated August 16th, 2016 the complaint filed by the complainant was dismissed.
8. Aggrieved with the impugned order dated August 16th, 2016, the complainant has filed the instant First Appeal No.999 2016 with a prayer to set aside the impugned order and to allow complaint and to grant relief to the complainant as prayed in the complaint.
9. I have heard learned counsel for the parties and perused the case file.
10. During the course of arguments, it was common case in between both the parties that the complainant applied for allotment of eight Marlas plot in Sector-28, Gurgaon after depositing booking amount of Rs.1,02,258/- vide draft dated 20.06.2001. It is also admitted fact that at the time of open draw of lots, the complainant was successful applicant. As per version of the opposite parties, the allotment letter was issued on 21.12.2001 regarding allotment of plot No.131-P, Sector-28, Gurgaon in the name of the complainant. Admittedly, as per terms and conditions of the allotment letter, the allottee was required to deposit 15% of the total sale price amount within a period of 30 days from the date of issuance of the allotment letter. As per version of the complainant, she never received the allotment letter dated 21.12.2001 and due to this reason she could not deposit 15% of the of the total sale price amount as per terms and conditions of the allotment letter. As per version of the complainant due to her family problems and ill health during this period, she could not be able to visit the office of the opposite parties and ultimately on 19.03.2003 she visited the office of the opposite parties to enquire regarding her application regarding allotment of a plot.
11. As per version of the complainant she was told that the allotment letter dated 21.12.2001 had already been issued regarding allotment of plot No.131-P, Sector-28, Gurgaon. When the complainant desired to make payment of the amount as per terms and conditions of the allotment letter, on the same date the Estate Officer, HUDA passed an order and cancelled allotment in the name of the complainant vide memo No.11596 dated 19.06.2003 placed on the file mentioning that the booking amount stood forfeited. Appeal filed against the cancellation order by Maya Lal dated 14.04.2004 was dismissed by Administrator HUDA, Gurgaon vide order dated 28.09.2004. Similarly, revision petition filed by the complainant against the order dated 28.09.2004 was dismissed vide order dated 30.09.2014 passed by the Financial Commissioner and Secretary to Government of Haryana, Town and Country Planning Department. It will be pertinent to mention here that at the time of recording evidence before the District Forum, these documents were not tendered in evidence but there is no problem to rely upon the above mentioned documents at the time of passing of this order because there is no controversy of any type regarding passing of the above mentioned orders and regarding these documents. Facing this situation, the complainant filed a complaint under Section 12 of the Consumer Protection Act, 1986 before the District Forum on 18.05.2015.
12. Version of the complainant is that the order passed by the Estate Officer, HUDA, Gurgaon on 19.06.2003 regarding cancellation of the allotment and forfeiture of the booking amount is illegal because the complainant could not deposit 15% of the total sale preice amount which was required to be deposited within 30 days from the date of issuance of allotment letter because the complainant did not receive the allotment letter dated 21.12.2001. The complainant was required to deposit 15% of the total sale price amount on or before 20.01.2002 but the complainant appeared in the office of the opposite parties at Gurgaon on 19.06.2003 just after one year and five months. Version of the complainant is that she got information from some property dealers in the month of June, 2003 that plot No.131-P had been allotted in her name. During this period, she could not make any inquiry and could not get any information due to her family problems and due to her ill health. She has taken plea that during this period she herself and her brother-in-law Sumit Lal remained seriously ill and got treatment from hospital. Apart from it, her sister-in-law also died after prolonged illness. The above mentioned version of the complainant may be true keeping in mind certain medical prescription slips in the name of Sumit Lal-brother of her husband indicating his serious ill health placed on the file of the Districtg Forum at pages No.61 to 83.
13. Moreover, even if it be considered that the plea taken by the complainant regarding her ill health and ill health of her family members is not correct, even in that eventuality also it was the duty of the opposite parties to get the service of allotment letter effected upon the complainant-allottee. If the complainant failed to make inquiries immediately after draw of lots regarding allotment of the plot, in that eventuality also, the opposite parties cannot be exonerated from their duty to inform the original allottee regarding allotment of the plot in her name. During the course of arguments, I specifically asked number of times to the learned counsel for the opposite parties as well as Shri Ram Chand, Assistant to show any document regarding effecting service upon the complainant of the allotment letter dated 21.12.2001. The opposite parties were directed to produce entire record including the record to prove service of the allotment letter to the complainant. The opposite parties neither could place on the file nor could show any proof regarding service of allotment letter upon the complainant. No postal receipt or acknowledgment regarding service is available on the record. A photo state copy of some entries concerned with Department of Posts (Annexure OPW1/2 is placed on the file wherein at Sr.No.62 only name of the addressee as Maya Lal with reference number as 2408 is mentioned. Other columns are blank. Similarly, copy of the entries in dispatch register maintained in the office of the opposite parties Exhibit OPW1/1 has been adduced in evidence. No document has been adduced in evidence to prove that service of the allotment letter was effected upon the complainant or upon his any family member. Mere entries in the dispatch register are not sufficient to prove that the allotment letter was actually issued or that any effort was made for effecting service of the allotment letter upon the complainant.
14. Complainant as well as the opposite parties could not place on the file even original or copy of the allotment letter dated 21.12.2001. Complainant says that she never received allotment letter and the opposite parties say that the allotment letter is not available in the office record and the same is missing. It will be pertinent to mention here that the complainant during pendency of the complaint also number of times filed applications to produce the record concerned with allotment of the plot to the complainant. Number of opportunities have been given during pendency of the appeal also with specific directions.
15. Now situation is clear that the allotment letter is neither with the complainant nor with the opposite parties. Except one entry in the dispatch register without any comment regarding receipt, no other document has been adduced in evidence by the opposite parties to prove that service of the allotment letter was effected upon the complainant. In these circumstances, I feel no hesitation in holding that the complainant never received allotment letter allegedly issued on 21.12.2001. On 19.06.2003, the day the complainant visited the office of the opposite parties to make inquiry on the same date, instead of giving him opportunity to deposit 15% of the sale price amount, the allotment in the name of the complainant was cancelled and booking amount already deposited was forfeited.
16. After close perusal of the entire record on the file, I feel no hesitation in holding that the complainant or any of her family members were never informed regarding allotment of plot in her name and service of the allotment letter could not be effected. Except one entry in the dispatch register without any endorsement and further report or comments nothing is on the file that any effort was every made for effecting service upon the complainant of the allotment letter. During the course of arguments, learned counsel for the opposite parties argued that it cannot be believed that the complainant had no information and knowledge regarding allotment of the plot in her favour for such a long period. It is true that the public persons who remain involved in such type of transactions relating to property remain careful and keep watch regarding results of draw of lots and regarding issuance of allotment letters but each and every citizen cannot be expected to be of such like habits and to visit office of the opposite parties time and again. The public persons, who have faith in the system, may feel that in case the plot is allotted in his/her name, intimation certainly will be received in this regard. Anyhow, findings in such type of matters cannot be given on the basis of mere assumption and presumption. Legally and technically it was not the duty of the complainant to make inquiries as to whether the plot has been allotted in her name or not because it was the duty of the opposite parties officially to inform the complainant regarding allotment of the plot and to make compliance of the terms and conditions mentioned in the allotment letter.
17. I have no hesitation in making observations that all it happened due to carelessness and negligence on the part of officials and officers of the opposite parties posted in the office of Estate Officer, HUDA, Gurgaon. It is strange that after expiry of period of 30 days from the date of allotment letter, the Estate Officer did not think it proper to cancel the allotment of the plot and the Estate Officer took no time to pass an order cancelling allotment of the plot and forfeiting of the booking amount as and when the complainant visited the office of the Estate Officer, HUDA, Gurgaon. I feel when the complainant was ready and willing to deposit 15% of the total sale price amount and the allotment had not been cancelled prior to 19th June, 2003 when the complainant visited the office of the opposite parties, the allotment of plot should not have been cancelled, rather, the complainant should have been given more time to deposit 15% of the total sale price amount as per terms and conditions of the allotment letter. The complainant, certainly, cannot be allowed to suffer on account of carelessness and negligence on the part of the officials and officers of the opposite parties.
18. Keeping in mind all these circumstances, it is a fit case to set aside the order dated 19th June, 2003 passed by the Estate Officer, HUDA, Gurgaon regarding cancellation of allotment of the plot and forfeiture of the booking amount. The complainant is entitled for restoration of the allotment letter and for issuance of fresh allotment letter regarding the same plot No.131-P, Sector-28, Gurgaon as admittedly the above mentioned plot has not been allotted to any other person till now.
19. Learned counsel for the opposite parties has argued that the allotment of the plot in the name of the complainant was validly cancelled as the complainant could not deposit 15% of the total sale price amount within 30 days from the date of issuance of the allotment letter. In support of his this contention learned counsel for the opposite parties placed his reliance upon a decision of the Hon'ble Supreme Court in case law Chaman Lal Singhal versus Haryana Urban Development Authority & others, 2009(2) R.C.R. (Civil) 355.
20. I have closely perused the above cited case law and the same is of no help to the opposite parties in this case as the facts and circumstances of the case in hand are quite different from the facts and circumstances of the case in hand. As per facts of the case in hand, the complainant never received information regarding issuance of allotment letter in her favour and due to this reason she could not deposit the required amount within 30 days. As per facts of Chaman Lal Singhal's case (Supra), the allottee had received the allotment letter but he neither deposited the required amount as per terms and conditions of the allotment letter nor sent acceptance letter.
21. During the course of arguments, learned counsel for the opposite parties also argued that the complainant before filing the present complaint before the District Forum had availed the remedy available to challenge the order dated 19th June, 2013 regarding cancellation of the plot by filing an appeal before the Administrator, HUDA, Gurgaon and thereafter a revision petition before the Commissioner and Principal Secretary to Government, Haryana, Town and Country Planning Department, Chandigarh and when the complainant could not get relief from that channel, she preferred to file the present complaint before the District Forum which is not maintainable. In support of his this contention, learned counsel for the opposite parties placed his reliance upon case law cited as Atul Gupta versus Haryana Urban Development Authority and another, 2011 (4) C.P.J. 392 (N.C.) and a decision of State Consumer Disputes Redressal Commission, Haryana in case Haryana Urban Development Authority and others versus Saroj Ahalawat and another, 2012(1) C.P.J. 248. As per facts of above mentioned two case laws, the complainant had earlier adopted channel for redressal of his grievances available to him under HUDA Act. In the above mentioned cases, findings were given that Section 3 of the Consumer Protection Act, 1986 makes provision for additional remedy but the Consumer Fora cannot sit on judgment after a consumer has adopted some route on his own free will to get relief from another competent Forum. As per facts of case law Haryana Urban Development Authority and others versus Saroj Ahalawat and another (Supra), complaint was filed before the Consumer Forum after the claim of the complainant had been rejected by deciding a revision petition before the Financial Commissioner also. As per facts of case law Atul Gupta versus Haryana Urban Development Authority and another (Supra), a consumer complaint was filed when the complainant had already started proceedings adopting channel for redressal of his grievance available to him under HUDA Act. In these circumstances, findings were given that the consumer complaint was not maintainable.
22. On this point of controversy, learned counsel for the complainant argued that it makes no difference if the complainant availed remedy to redress her grievance available under the HUDA Act. There is no provision in the Act which bars filing of complaint by consumer after availing other statutory remedies. In support of his this contention learned counsel for the appellant-complainant placed his reliance upon a decision of the Hon'ble Supreme Court of India in case Dhanbir Singh versus Haryana Urban Development Authority, III(2012) CPJ 1 (SC) and a decision of the Hon'ble National Consumer Disputes Redressal Commission in case Haryana Urban Development Authority versus Dr. Maya Vaid, II(2009) CPJ 348 (NC).
23. I have closely perused the above cited case laws. Cited case laws above fully support the version of the complainant/appellant. As per facts of the above mentioned case laws also, the complainant had filed consumer complaint before the District Forum after availing alternative remedy available under the provision of HUDA Act. Keeping in mind the decision of the Hon'ble Supreme Court as well as of the Hon'ble National Commission in the above mentioned cases, I feel there must be no hesitation in holding that the consumer complaint filed by the complainant is maintainable. Keeping in mind the latest decision of the Hon'ble Supreme court in case law referred above Dhanbir Singh vs. HUDA, findings of this case cannot be based upon the case laws cited by the learned counsel for the opposite parties in earlier paragraphs of this order.
24. As per discussions above in detail, I have no hesitation in holding that the complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 is maintainable and it makes no difference that the complainant filed the consumer complaint after exhausting alternative remedies under the provision of HUDA Act. I have already given findings that the order passed by the Estate Officer, HUDA, Gurgaon dated 19th June, 2003 regarding cancellation of allotment and forfeiture of the booking amount is wrong, illegal and is hereby set aside. Similarly, order dated 28th September, 2004 passed by the Administrator, HUDA, Gurgaon and order dated 30th September, 2014 passed by the Financial Commissioner-cum-Secretary to Government of Haryana, Town and Country Planning Department are also held to be illegal and set aside and the original allotment stands restored.
25. Keeping in mind the above mentioned circumstances, I feel in this situation when everybody in public life is facing such type of difficulties, it becomes the duty of the court as well as of this Commission also to pass some effective, meaningful, relief giving and purposeful orders which should be based on equity and helpful for providing justice that is also natural justice. I feel courts as well as this Commission should pass orders as the situation demands and should not hesitate to come out a little out of the tight cordon of rules and procedure also if the situation so demands. It is not so difficult to decide a case but certainly it is not so easy to provide justice i.e. also natural justice. It is purposely provided under the provisions of the Consumer Protection Act, 1986 that provisions of Civil Procedure Code and Evidence Act shall not be strictly applicable in the proceedings of complaints filed under this Act.
26. As a result as per discussions above in detail, the appeal is allowed and the impugned order dated 16th August, 2016 passed by the learned District Forum stands set aside. Resultantly, the complaint is allowed. Allotment of plot No.131-P, Sector-28, Gurgaon in the name of the complainant stands restored on the same sale price as on the date of issuance of allotment letter dated 21st December, 2001. The opposite parties are directed to issue fresh allotment letter regarding the above mentioned plot within a period of two months from the date of receipt of copy of this order. The booking amount being 10% of the total sale price amount Rs.1,02,258/- already deposited by the complainant shall be adjusted as payment of the sale price amount. The opposite parties are also directed to pay an amount of Rs.25,000/- as compensation on account of un-necessary harassment, mental agony with interest at the rate of 12% per annum from the date of filing of the complaint and to pay an amount of Rs.10,000/- as costs of litigation.
27. From the past conduct and behaviour of the opposite parties, it can be expected that the opposite parties may be interested to cause more delay in issuance of the allotment letter in the name of the complainant. So, it is ordered that in case the allotment letter is not issued within two months from the date of receipt of this order, in that eventuality the complainant shall be entitled to receive an amount of Rs.25,000/- more as compensation and it shall be personal liability of the Estate Officer posted in this division and competent to issue allotment letter alone to make payment of an amount of Rs.25,000/- as compensation.
Announced:
30.03.2018 (Balbir Singh) Judicial Member CL