State Consumer Disputes Redressal Commission
Ved Parkash vs Huda on 22 August, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA First Appeal No : 918 of 2016 Date of Institution: 04.10.2016 Date of Decision : 22.08.2017 Ved Parkash s/o Shri Kanshi Ram, Resident of House No.272, Sector-1, HUDA, Shahabad Markanda. Appellant-Complainant Versus Haryana Urban Development Authority through its Estate Officer, HUDA Kurukshetra, Sector-6, Kurukshetra. Respondent-Opposite Party CORAM: Hon'ble Mr. Justice Nawab Singh, President. Mr. Balbir Singh, Judicial Member.
Argued by: Shri Abhineet Taneja, Advocate for appellant. Shri Sikander Bakshi, Advocate for respondent. O R D E R BALBIR SINGH, JUDICIAL MEMBER
This appeal has been preferred against the order dated August 10th, 2016 passed by District Consumer Disputes Redressal Forum, Kurukshetra (for short 'the District Forum').
2. The present case has its long history. Initially plot No. 1380, Sector-1, Shahbad was allotted by Haryana Urban Development Authority (HUDA)-Opposite Party (respondent herein) in the name of one Megh Raj Sharma in the month of June, 1991. Thereafter, this allotment was allowed to be transferred in the name of complainant- Ved Prakash (appellant) on October 27th, 1992. The complainant made payment of all installments of the total sale price of the plot and last installment was to be paid in the month of September, 1996. The opposite party did not deliver possession of the plot and also did not execute the conveyance-deed in favour of the complainant. Facing this situation, the complainant-Ved Prakash filed a complaint No.189 dated December 21st, 1998 before the District Forum, U.T. Chandigarh with a prayer to direct the opposite party-HUDA to deliver possession of the plot in dispute to the complainant or in the alternative to allot another plot and to deliver possession thereof to the complainant and to pay compensation on account of un-necessary harassment. During the pendency of that complaint, the opposite party instead of the plot already allotted, delivered possession of another plot of the same size, bearing No.1352, Sector-1, Part-II, Shahbad, on May 12th, 1998. In this situation, the complaint was allowed directing the opposite party to pay an amount of Rs.2500/- as cost and to pay interest at the rate of 18% per annum regarding the total amount already paid by the complainant from the date of deposit till May 12th, 1998.
3. HUDA-Opposite Party filed appeal No.16 of 1999 against the impugned order dated December 21st, 1998 before the State Consumer Disputes Redressal Commission, Union Territory, Chandigarh. In that appeal, HUDA was given direction to pay an amount of Rs.50,000/- on account of damages after adjusting an amount of Rs.2248/- recoverable from the allottee. In this way, State Commission, U.T. Chandigarh awarded an amount of Rs.47,152/- in favour of complainant- Ved Prakash, as the opposite party caused un-necessary delay in delivery of possession. Revision Petition No.770 of 2000 filed by HUDA against the order dated September 24th, 1999 passed by the State Commission, U.T. Chandigarh before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi was later on dismissed as withdrawn on August 20th, 2015. Thereafter, during the pendency of execution petition for implementation of the order dated September 24th, 1999; the opposite party paid an amount of Rs.87,331/- already received by him from the opposite party with up to date interest. The above mentioned amount of Rs.87,331/- was received by the complainant in compliance of the order passed by the Hon'ble State Commission. Ultimately, the complainant had to deposit an amount of Rs.2,06,000/- with the opposite party on October 26th, 2012. Before execution of the conveyance-deed, an affidavit and an application were obtained from the complainant mentioning that the complainant himself was refunding the amount already received by him as per order of the Hon'ble State Commission with interest and he will not claim the amount in future from the Court.
4. From the pleadings and notings of the officers and officials in the official record of HUDA, it is clear that the complainant was compelled to make payment of the amount. Moreover, the opposite party refused to provide information to the complainant regarding these proceedings. The complainant was provided the required information regarding these proceedings under Right to Information Act and the necessary information was provided when ultimately Hon'ble State Information Commissioner, Haryana, gave necessary direction vide order dated March 13th, 2014. The complainant/appellant prayed that the complaint be allowed directing the HUDA-opposite party to refund an amount of Rs.2,06,000/- already deposited by him on October 26th, 2012 with interest at the rate of 18% per annum; an amount of Rs.5.00 lacs on account of punitive damages; an amount of Rs.2.00 as compensation on account of un-necessary harassment and mental agony; an amount of Rs.50,000/- on account of the money spent by the complainant for pursue his legitimate right and an amount of Rs.21,000/- as litigation expenses.
5. The Opposite Party-HUDA, in its written version had taken plea that the complaint is not maintainable in the present form; that the complaint is bad for non-joinder of necessary parties as Smt. Nidhi Baweja, subsequent purchaser has not been impleaded as party and that the District Forum, Kurukshetra has no jurisdiction to decide this complaint. As per version of the opposite party, the complainant is not covered under the definition of Consumer as provided under the Consumer Protection Act, 1986 as on the date of filing of the complaint, neither the complainant was owner nor allottee of the plot in dispute. In fact, on November 12th, 2012, the plot in dispute was sold by the complainant to Smt. Nidhi Baweja vide registered sale-deed dated November 12th, 2012. The re-allotment letter has already been issued in the name of Nidhi Baweja on January 16th, 2013. It was further pleaded that the complainant arrived at a settlement that with HUDA and gave his consent forgoing his claim and award given in his favour by the District Forum as well as the State Commission. In this regard, the complainant filed an application on October 26th, 2012 in the office of the HUDA alongwith a duly attested affidavit. The complainant willingly deposited the amount of Rs.2,06,000/- with the opposite party. The present complaint has been filed by the complainant just to harass the opposite party-HUDA and to extract money. Sale-deed is Annexure R-2, re-allotment letter in favour of Nidhi Baweja is Annexure R-3 and application and affidavit Annexure R-4 is on the file. The opposite party-HUDA has prayed that the complaint filed by the complainant is without merits and the same be dismissed with cost amounting to Rs.50,000/-.
6. Parties led evidence in support of their respective claims before the District Forum.
7. After hearing arguments, vide impugned order dated August 10th, 2016, complaint filed by the complainant was dismissed by the learned District Forum on the ground that the complainant is not covered under the definition of consumer as provided under the Act and it is not a case of deficiency in service.
8. Aggrieved with the impugned order dated August 10th, 2016, the complainant-appellant has filed the present appeal with a prayer to set aside the impugned order and to allow the relief claimed in the complaint.
9. We have heard learned counsel for the parties and have perused the case file.
10. During the course of arguments, there was no controversy of any type that initially in the month of June, 1991, Plot No.1380, Sector-1, Shahbad was allotted in the name of Megh Raj Sharma. Transfer of allotment of this plot in favour of the complainant was permitted by HUDA on October 27th, 1992. It is also admitted that the complainant made payment of the total sale price amounting to Rs.2,79,405/- in installments well within time up to the month of September, 1996. Thereafter, admittedly possession of plot No.1380 could not be delivered to the complainant despite his time and again requests to the HUDA. Admittedly, facing this situation, complainant-Ved Prakash filed consumer complaint No.183 dated December 21st, 1998 before the District Forum, U.T. Chandigarh with a prayer to direct the opposite parties to deliver possession of the plot in dispute or to allot and deliver possession of another alternative plot. During proceedings of that complaint, another alternative plot No.1352, Sector-1, Shahbad was allotted to the complainant in the same sector and possession thereof was delivered to the complainant on May 12th, 1998. The above mentioned complaint was decided by the District Forum, U.T. Chandigarh vide order dated December 21st, 1998 (Exhibit C-1). In that case, findings were given that the HUDA shall be liable to pay interest on the total amount deposited at the rate of 18% per annum from the date of deposit till May 12th, 1998. It was also directed that the complainant shall be entitled to receive an amount of Rs.2500/- as compensation on account of un-necessary harassment.
11. Against the order dated December 21st, 1998, the HUDA filed appeal No.16 of 1999 before State Commission, U.T. Chandigarh. In that appeal, vide order dated September 24th, 1999 (Exhibit C-2), directions were given that the HUDA shall pay an amount of Rs.50,000/- as damages after adjusting an amount of Rs.2848/- recoverable from the allottee. In this way, the complainant was awarded total amount of Rs.47,152/- as compensation with interest at the rate of 18% per annum from the date of decision of the appeal. It is also admitted fact that during execution proceedings, the awarded amount of Rs.47,132/- along with interest at the rate of 18% per annum total amount of Rs.87,331/- was received by the complainant from the HUDA through a cheque in implementation of order dated September 24th, 1999. Admittedly, Revision Petition filed before the Hon'ble National Commission against the order dated September 24th, 1999 was dismissed as withdrawn vide order dated May 20th, 2005 (Exhibit C-5).
12. There is no controversy of any type that after making payment of the above mentioned awarded amount and withdrawal of revision petition pending before the Hon'ble National Commission in the year 2005, conveyance-deed of the newly allotted plot No.1352 could not be executed. The complainant time and again requested the opposite party but the opposite party did not agree. The complainant had written letters dated September 27th, 2012, October 09th, 2012 as well as October 23rd, 2012 (Exhibits C-6 to C-8) but the opposite party did not agree to execute the conveyance-deed. From the record on the file it is clear that un-necessary delay was being caused by the opposite party regarding execution of the conveyance-deed because the opposite party was annoyed with the complainant as the opposite party-HUDA had to make payment of an amount of Rs.87,331/- in terms of the order passed by Hon'ble State Commission, U.T. Chandigarh.
13. From the pleadings and evidence on the file, it clearly appears that the opposite party agreed to execute the conveyance-deed in case the complainant agrees to refund the total amount of Rs.87,331/- received by him from the opposite party along with up to date interest at the rate of 18% per annum. Ultimately, the complainant agreed and made payment of total amount of Rs.2,06,000/- including interest amount. Not only this, the opposite party obtained in writing an application dated October 26th, 2012 (Exhibit C-9) and a duly attested affidavit of Ved Prakash-complainant dated October 26th, 2012 (Exhibit C-10) attested by an Executive Magistrate. In the application (Exhibit C-9) it is mentioned that the complainant is ready to refund the total amount received from the opposite party with up to date interest and in future he will not file any case or claim before any court regarding this amount. It is also mentioned in the application that as the complainant has deposited the total amount with interest, conveyance-deed be executed. In the affidavit dated October 26th, 2012 (Exhibit C-6), also an undertaking is given by the complainant that he will not file any claim or case in any court regarding the total amount refunded to him in view of the order (Exhibit C-2) passed by the Hon'ble State Commission. Exhibit C-11 is the receipt regarding deposit of Rs.2,06,000/-. Copies of few reports of the officials and orders of the officers concerned of HUDA, with respect to plot No.1352, have been adduced in evidence as Exhibit C-13.
14. It will be pertinent to mention here that the complainant could be able to receive copies of these noting/reports etc after obtaining an order dated March 13th, 2014 (Exhibit C-12) passed by the State Information Commissioner, Haryana. The opposite party-HUDA was avoiding to supply the copy of the reports and orders (Exhibit C-13) so that the complainant may not be able to bring true facts before this Commission. In the report dated September 20th, 2012 it is mentioned that the allottee has already deposited the dues as per HUDA policy but before executing the conveyance-deed, the allottee may be asked to submit an affidavit that he does not want any benefit awarded by court so that case may be sent to the Head Office after withdrawal of the revision petition. From the statement and reports dated October 09th, 2012 and October 26th, 2012, it clearly appear that the HUDA-opposite party agreed to execute the conveyance-deed after the complainant deposited the total amount of Rs.87,331/- received by him along with interest from the date of payment, total amounting to Rs.2,06,000/-.
15. As per discussion above, it clearly appears to be a case of high headedness on the part of the officials and officers of HUDA-opposite party. How the complainant a helpless senior citizen has been humiliated and extorted an amount of Rs.2,06,000/- from him under pressure. The complainant had to submit the application dated October 26th, 2012 (Exhibit C-9) and his duly attested affidavit dated October 26th, 2012 (Exhibit C-10) under compelling circumstances, as opposite party refused to execute the conveyance-deed in favour of the complainant despite this fact that total price of the plot had been paid by the complainant up to the month of September, 1996. Nobody, in the office of opposite party was ready to listen and redress the grievance of the complainant. It is a matter of great concern that plot was allotted to the complainant in the year 1992 and installments of the total sale price of the plot were made by him up to the month of September 1996 and the conveyance-deed could be executed on October 31st, 2012 after a period of 22 years from the date of allotment and after 18 years from the date of payment of the total amount. In this way, the HUDA-opposite party has been successful to frustrate the justice delivery system also by using pressurizing tactics. Equity from all angles, in this case is in favour of the complainant who deserves sympathy of this Commission as well as all others.
16. In this case learned District Forum, in fact, has not given findings on merits and dismissed the complaint only giving findings that the complainant is not covered under the definition of Consumer and it is not a case of deficiency in service as the plot in dispute has already been sold by the complainant in the name olf Smt. Nidhi Baweja w/o Sh. Ashish Baweja. Admittedly, the plot in dispute was sold by the complainant to Smt. Nidhi Baweja for a consideration of Rs.28.00 lacs vide registered sale-deed dated November 12th, 2011 (Exhibit R-2). Exhibit R-3 is re-allotment letter issued in favour of Mrs. Nidhi Baweja on January 16th, 2013. Exhibit R-1 is the transfer permission letter. The complainant had filed an application on November 07th, 2012 for permission to transfer the plot in favour of the complainant which was allowed vide letter dated December 31st, 2012.
17. Version of the opposite party is that after execution proceedings, the complainant is left with no right or interest in the plot in dispute and he cannot be considered as a consumer after sale of plot. In support of his this version, the complainant did not place reliance upon any case law. On the other side, version of the complainant is that it makes no difference that the plot in dispute has been sold by the complainant. In fact, the complainant is not seeking any relief regarding ownership or possession or permission for raising construction over the plot in dispute. The complainant wants relief as an amount of Rs.2,06,000/- was wrongfully extorted from the complainant by the HUDA by misusing its official duties. The opposite party made it a point that conveyance-deed can be executed only if the complainant is ready to refund the total amount of Rs.87,332/-, which the opposite party had to pay in compliance of an order passed by the Hon'ble State Commission. In fact, during execution proceedings of that earlier complaint case, the amount which the opposite party had to pay to the complainant, has been extorted from the complainant and in fact the complainant wants refund of that amount with interest so that compliance of the directions given by the Hon'ble State Commission while decided First Appeal No.16 of 1999 be completed in true spirit.
18. Learned counsel for the complainant also argued that relief claimed by the complainant is justified and in support of his contention, reliance is placed upon a decision of Hon'ble National Commission in case Revision Petition No.2603 of 2012, Punjab Urban Planning & Development Authority (PUDA) and another Versus Smt. Neelam Kumari, decided on February 12th, 2013. As per facts of case law referred above, the complainant was owner of the plot which she had decided to sell and for this purpose she had sought 'No Objection Certificate' from the petitioner. The complainant was asked by the Estate Office, Ludhiana to deposit an amount of Rs.2,66,350/- on account of extension fee/non-construction charges. In that case, findings were given that the District Forum has jurisdiction to decide the petition and it is a case of deficiency in service. Keeping in mind the facts mentioned above and findings of the Hon'ble National Commission in case law referred above, it is held that the District Forum has jurisdiction to decide this complaint and it is a clear case of deficiency in service. The findings of the learned District Forum while passing the impugned order dated August 10th, 2016 are not sustainable in the eyes of law and are liable to be set aside. Accordingly, findings of the learned District Forum stand set aside.
19. The facts and circumstances, as mentioned above, are quite clear that the opposite party-HUDA has been successful to compel the complainant to make payment of an amount of Rs.2,06,000/- on October 26th, 2012 although the HUDA was not entitled to receive that amount. Findings are given that the complainant is entitled for refund of the above mentioned amount of Rs.2,06,000/- with interest at the rate of 9% per annum w.e.f. October 26th, 2012 till recovery of the amount.
20. Keeping in mind the above mentioned circumstances, we feel in this situation when everybody in public life is facing such type of difficulties, it becomes the duty of the courts as well as of this Commission also to pass some effective, meaningful, relief giving and purposeful orders and awards. Moreover, this Commission is required to pass an order which should be based on equity and helpful for providing justice i.e. also natural justice. We feel courts should pass awards and 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 purposely provided that the provisions of Evidence Act shall not be strictly applicable in the proceedings of complaints filed under the provisions of the Consumer Protection Act, 1986. Keeping in mind all these circumstances and difficulties faced by the complainant since the year 1998, it will be justified to award an amount of Rs.20,000/- as compensation on account of unnecessary harassment and mental agony and an amount of Rs.11,000/- as litigation expenses to be paid by the opposite party-HUDA to the complainant. Resultantly, the impugned order dated August 10th, 2016 passed by the learned District Forum is held to be illegal.
21. As a result, as per discussion above in detail, the appeal filed by the appellant-complainant is allowed, the impugned order dated August 10th, 2016 passed by the learned District Forum is set aside. Consequently, complaint filed by the complainant is allowed directing the HUDA-opposite party to refund an amount of Rs.2,06,000/- to the complainant with interest at the rate of 9% per annum w.e.f. October 26th, 2012 till the date of recovery and an amount of Rs.20,000/- as compensation on account of un-necessary harassment and mental agony and Rs.11,000/- as litigation expenses.
Announced:
22.08.2017 (Balbir Singh) Judicial Member (Nawab Singh) President CL