State Consumer Disputes Redressal Commission
1. Haryana Urban Development Authority ... vs Gurmeet Singh Son Of Late Shri Gurdial ... on 20 March, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA First Appeal No.801 of 2008 Date of Institution: 14.03.2008 Date of Decision: 20.03.2012 1. Haryana Urban Development Authority (HUDA) Sector 6, Panchkula through its Estate Officer, Panchkula. 2. The Chief Administrator, HUDA, Sector-6, Panchkula. Appellants (Ops) Versus Gurmeet Singh son of late Shri Gurdial Singh, Resident of Haripur, Sector 4, Panchkula through his duly appointed General Power of attorney Sh. Jasbir Singh s/o Sh. Kulwant Singh r/o H.no.87, Ashiyana Colony, Derabassi, District Mohali, Punjab. Respondent (Complainant) BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Pardeep Solath, Advocate for appellants. Shri Anirudh Kush, Advocate for respondent. O R D E R
Justice R.S. Madan, President:
This appeal has been preferred against the order dated 02.01.2008 passed by District Consumer Forum, Panchkula in complaint No.274/2007.
The brief facts of the present case as emerged from the record are that the land of the respondent-complainant as detailed in para No.2 of the complaint, was acquired by HUDA for the purposes of residential sector on 15.11.1976 vide award No.23. Complainant applied to opposite parties for allotment of a plot under the oustees policy which came in existence on 18.3.1992. Opposite Parties rejected the application of the complainant on the ground that complainants claim was not covered under the policy as the land of the complainant was acquired much prior to the date the oustees policy came in existence. Aggrieved against the action of the opposite parties, the complainant invoked the jurisdiction of the District Consumer Forum by filing complaint. Complainants claim was resisted by the opposite parties on the above stated ground and prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and the evidence adduced on the record, District Consumer Forum accepted complaint and issued direction to the opposite parties to allot a plot to the complainant as per eligibility in any sector developed by HUDA and to pay Rs.5,000/- as lump sum compensation.
Aggrieved against the impugned order, the opposite parties have come up in appeal.
We have heard learned counsel for the parties and perused the case file.
On behalf of the appellants it has been argued that complainants land was acquired in the year of 1976 i.e. much prior to the oustees policy which came in existence in the year 1992 and thus the complainant is not entitled for any plot under the oustees policy. Learned counsel for the appellants has further argued that the oustees policy came in existence in the year of 1992 whereas the complaint was filed by the complainant on 31.08.2007 i.e. beyond the period of limitation of two years as prescribed in Section 24A of the Consumer Protection Act, 1986, hence, the complaint filed by the complainant was hopelessly barred by limitation.
We find force in the arguments raised on behalf of the appellants in view of our earlier decision rendered in First Appeal No.2240 of 2008 titled as HUDA vs Subhash Chand decided on 02.02.2012, wherein the claimant was held not entitled for a plot under the oustees quota under the similar situated circumstances. The relevant part of the judgment rendered in Subhash Chands case (Supra) is reproduced as under:-
We find force in the contention raised on behalf of the appellants-opposite parties. Admittedly, complainants land was acquired in the year 1975, the oustees policy came in existence in the year 1987 amended in 1992 and the complainant applied for oustees plot in the year 2006 that too in Sector 27-28 Panchkula whereas his land was acquired for Sector-9, Panchkula i.e. after about 31 years from the date of acquisition of the land and after about 19 years from the date when the oustees policy came in existence for the first time. The purpose of the oustees policy is to rehabilitate the land owners and therefore by filing of complaint after a gap of 31 years the question of rehabilitation of the complainant does not arise. It is virtually a misuse of policy of oustee quota which is not permissible under the statute. Under the Limitation Act, a civil suit can be filed within three years from the date of issuance of policy and for the purpose of filing suit for declaration, the limitation is twelve years for cause of action. Both these conditions are not in favour of the complainants. Thus, taking into account the facts and circumstances of the case, we feel that the complainant is not entitled for the allotment of a plot under the oustees policy. In other words, oustees policy will not survive for years and from generation to generation. The District Consumer Forum has failed to appreciate the aforesaid facts of the case and as such the impugned order cannot be allowed to sustain.
Hence, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
The instant case is fully covered by our earlier decision in Subhash Chands case (Supra). The complainant cannot get the benefit of the policy of HUDA which was not in existence at the time when complainants land was acquired i.e. in the year 1976 whereas the oustees policy came in existence in the year of 1992 and the complaint was filed in the year 2007.
Thus, the complaint filed by the complaint was hopelessly barred by time from the date of cause of action which has accrued in favour of the complainant in the year of 1992 when the oustees policy was issued.
The other aspect of the case is that merely by moving an application for allotment of plot, the complainant does not fall within the definition of consumer unless and until the plot is allotted to him. It is well settled law that by filing of application for allotment of a plot grants the proposed allottee only a right to be considered for allotment. The applicant becomes a consumer under the Consumer Protection Act only after he/she is allotted plot as service is hired thereby by the applicant.
Reference in this regard is made to case law cited as Punjab Urban Planning and Development Authority and another versus Krishan Pal Chander, 2010 CTJ 415 (CP)(NCDRC) wherein the Honble National Commission has held that:-
The filing of application for allotment of a flat/plot grants the proposed allottee only a right to be considered for allotment. He becomes a consumer under the Consumer Protection Act only after he is allotted a flat/plot.
State Consumer Disputes Redressal Commission Orissa in case cited as Rourkela Development Authority versus Rourkela Consumers Front, 2009 CTJ 1166 (CP) (SCDRC) has held that:-
A sum of Rs.5,000/- deposited by one Sarat Chandra Padhee with the appellant for allotment of a MIG plot to him Neither any plot allotted nor the deposited amount refunded Complaint allowed by the District Forum Refund of the deposited amount of Rs.5,000/- with 15% interest ordered Appeal Only by depositing the earnest money for allotment of a plot of land or house would not make a person consumer as no service is hired thereby as in the present case Therefore, there could be no question of any deficiency in service Complaint itself being not maintainable before the Forum below, its direction for payment of 18% interest to the complainant set aside However, he would be entitled to get back the deposited amount.
The facts of the instant case are fully attracted to Krishan Pal Chanders case (Supra) and Rourkela Consumers Fronts case (Supra). This view has also been taken by this Commission in F.A. No.1026/2008 HUDA vs. K.C. Bhatia decided on 19.04.2010; F.A. No.1668/2005, HUDA vs. M/s Sarla Handicrafts decided on 22.12.2010 and Complaint No.54/2010 Ashok Khemka vs. HUDA and others decided on 10.03.2011. Thus, as the complainant has never been allotted plot, he cannot be termed as a Consumer. The applicant becomes a consumer under the Consumer Protection Act only after he/she is allotted plot as service is hired thereby by the applicant.
The next point which requires consideration is that the complainant had filed the instant complaint through G.P.A. Jasbir Singh son of Kulwant Singh Resident of House No.87, Ashiana Colony, Derabassi District Mohali (Pb.). Jasbir Singh has no interest and could not be treated as a Consumer and, therefore, complaint on his behalf is not maintainable. Complainant has not disclosed as to what is the relationship of the complainant with Jasbir Singh G.P.A. Honble Apex Court has taken a serious view in this regard. Reference is made to the observation made by Honble Supreme Court in Special Leave Petition (C ) No.13917 of 2009 titled as Suraj Lamp & Industries Pvt. Ltd. Versus State of Haryana and another decided on 11.10.2011 dealing with consequence of Power of Attorney holder acquiring rights, held as under:-
III-Effects of SA/GPA/WILL transactions
3. The earlier order dated 15.5.2009, noted the ill-effects of such SA/GPA/WILL transactions (that is generation of black money, growth of land mafia and criminalization of civil disputes) as under:
& quot; Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties, even when there is no bar or prohibition regarding transfer or conveyance of such property, by the following categories of persons: (a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.
(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions. The process enables them to hold any number of properties without disclosing them as assets held.
(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit margin.
Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption.
This kind of transactions has disastrous collateral effects also. For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such `power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of musclemen to `sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions & quot;
It also makes title verification and certification of title, which is an integral part of orderly conduct of transactions relating to immovable property, difficult, if not impossible, giving nightmares to bonafide purchasers wanting to own a property with an assurance of good and marketable title.
The facts of the instant case are fully attracted to Suraj Lamp & Industries Pvt. Ltd. versus State of Haryana and another case (Supra). Thus, the complaint filed by the complainant through G.P.A. is not maintainable.
As a sequel to our aforesaid discussions, it has been established on the record that the complainant is not entitled for the allotment of a plot under the oustees quota. District Consumer Forum has failed to appreciate the above stated facts. Hence, the impugned order cannot be allowed to sustain.
Accordingly, this appeal is accepted, impugned order is set aside and the complaint is dismissed.
The statutory amount of Rs.2500/- deposited at the time of filing the appeal 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.
Announced: Justice R.S. Madan 20.03.2012 President B.M. Bedi Judicial Member