Kavita Rawat vs HUDA & Anr

R.K. Agrawal, President Member

The present Miscellaneous Application No. 75 of 2021 has been filed by the Petitioner seeking a direction to the HUDA to allot an alternative Plot in lieu of the plot originally allotted to her.

Succinctly put, the material facts relevant for disposal of the Miscellaneous Application No. 75 of 2021 and I. A. No. 11126 of 2022 are that vide Allotment Letter dated 25.01.1999, HUDA had allotted a Residential Unit being Plot No. 262 admeasuring 359 sq. yards to the Petitioner, Kavita Rawat in Sector 31, Faridabad. Petitioner had deposited an amount of ₹3,00,000/- with agreed interest towards the sale consideration of the Plot in question. However, no physical possession along with all facilities and basic amenities was offered to the Petitioner despite the Possession Letter dated 05.05.2000. On repeated visits to the HUDA’s office, the HUDA issued a cheque in the name of the GPA of the Petitioner for an amount of ₹1,56,854/- out of the total deposit amount of ₹3,08,000/-.  The Petitioner prayed HUDA either to refund the deducted amount or re-allot the alternative plot in some developed area. However, HUDA did not accede to her request. Feeling aggrieved, the Petitioner filed Consumer Complaint No. 680 of 2005 before the District Forum seeking possession of any similarly situated plot along with compensation.

On appraisal of the facts of the case, the District Forum, vide its Order dated 04.01.2006, allowed the Complaint directing the HUDA to allot the Plot No. 261 in Sector-31, Faridabad in lieu of the originally allotted plot No. 262 in Sector 31 on the same terms and conditions and to hand over possession of the same immediately along with interest, compensation and adjustment of the amount deducted and value of the difference of area, if any.

The said Order was challenged by the HUDA by filing the First Appeal No. 463 of 2006 before the State Commission,  Haryana at Panchkula on the ground that on 22.11.2001 the Complainant/Applicant herein, surrendered her plot voluntarily stating that due to financial constraints she was unable to pay the balance due instalments of the plot in question. On receipt of the request for surrender of the plot, the Respondent HUDA had refunded the balance amount to the Complainant as per its policy vide Order dated 3.12.2001 and same was received by the complainant without lodging any protest. However, later on Complainant filed the complaint before the District Forum alleging that the plot originally allotted to her was surrendered in compelling circumstances as the basic amenities were not provided.

Having considered the material available on record and on perusal of the evidence adduced by the parties, the State Commission, vide its Order dated 10.12.2010 allowed the Appeal filed by the HUDA and set aside the Order passed by the District Forum observing as under:-

“   In the instant case the complaint has not moved any application to seek condonation of delay and as such the District Consumer Forum has committed great error while allowing the complaint, which was hopelessly, barred by time and as such the impugned order is not sustainable in the eyes of law.

Accordingly, this appeal is accepted, impugned order is set aside and compliant is dismissed.”

Dis-satisfied with the aforesaid order, The Complainant/Petitioner herein filed Revision Petition No. 1016 of 2011 before this Commission. However, by Order dated 19.07.2012, the Revision Petition was dismissed as withdrawn with the following observations:-

“ Counsel for petitioner on instructions states that petitioner does not want to pursue with the matter and as such, he wants to withdraw this petition with liberty to seek appropriate remedy available to him before the appropriate Forum.

In view of the Statement given by Counsel for the petitioner, petition is hereby dismissed as withdrawn. Liberty, as prayed for, is granted”

Now, the Applicant/Petitioner has filed the Miscellaneous Application No. 75 of 2021 before this Commission on the following grounds:-

(i)  Though the Revision Petition was dismissed as withdrawn but the liberty  was kept open to the Petitioner to approach this Forum or any other appropriate forum;

(ii)  10% of the amount towards sale consideration of the Plot in question is still lying deposited with the Respondent.

(iii)  The State Commission has failed to consider the law laid down by this Commission and affirmed by the Hon’ble Supreme Court in the case of HUDA Vs. Irish Print Services Pvt. Ltd. wherein in the identical circumstance, HUDA was directed to allot an alternative plot to the Complainant.

In the Miscellaneous Application No. 75 of 2021, the following prayers have been made by the Petitioner/Complainant:-

(a) Allow the application and direct the respondents to allot the alternative plot of the same size preferably the vacant and unallotted plot no. 262, Sector 32, Faridabad, Haryana or any other such vacant and unallotted plot in the same Sector 31, Faridabad, Haryana in lieu of the originally allotted Plot No. 262, measuring 359 square yards, Sector 31, Faridabad to the applicant and;

(b) Direct the respondent to not to alienate or transfer or create any third-party interest in the vacant and unallotted plot no. 262, Sector 31, Faridabad, Haryana until the disposal of the present application; and

(c) Allow the Revision Petition No. 1016 of 2011 in the light of the prayer (a) and set aside the judgment and order dated 10.12.2010 passed in Appeal No. 463/2006 by the State Commission Haryana and affirm the judgment and order dated 04.01.2006 passed by the District Forum in Complaint No. 680 of 2005;

(d) Direct the respondents to allot the said vacant and unallotted plot no. 262, Sector 32, Faridabad, Haryana or any other such vacant and unallotted plot in the same sector 31, Faridabad, Haryana to the applicant as per the rates decided by the Hon'ble Supreme Court of India in S.L.P. (Civil) No. 5140/2009 in the matter of HUDA VS. Irish Print Services Pvt. Ltd.; an

(e)  Pass any order or directions that the Hon'ble Commission may deem fit and appropriate in the facts and circumstances of the case to do complete justice.

Subsequently, the I.A. No. 11126 of 2022 was filed by the Complainant/Petitioner herein on the following grounds:-

“5. That with a view to rectify the error and to set the record straight in accordance with law, the applicant petitioner is filing the present application for amendments wherein amendments are being sought as under:-

“(i)  That in the Memo of Parties and the title of the application in place of “M.A.”, Review Application may be substituted:

(ii)  That the hearing of the application be substituted as :

“ Amended Application for review of the Order dated 19.07.2012 passed in Revision Petition No. 1016 of 2011 and for directions on behalf of the Applicant and Petitioner”

(iii)  That before prayer clause (a) in the application filed as M.A.No.13/2021, the following prayer clause (a-1) be added as under:-

“a-1) Recall the judgement and order dated 19.07.21 passed in Revision Petition No. 1016 of 2011.”

Considering the facts sated in the Miscellaneous Application No. 75 of 2021 and for the reasons given in I.A. No. 11126 of 2022, filed by the Petitioner, I deem it appropriate and in the interest of justice, to treat Miscellaneous Application No. 75 of 2021 as a Review Application seeking recall of the Order dated 19.07.2012, passed by this Commission dismissing the Revision Petition No. 1016 of 2011 as withdrawn.

I have heard the learned counsel for the parties at some length and also perused the material available of record as well as the evidence adduced by the parties.

While raising the Preliminary Objections, learned counsel for the Respondent HUDA has contended that; (i) Miscellaneous Application No. 75 of 2021 was filed at a belated stage after almost 10 years and this is liable to be dismissed on this ground alone as the Application is barred by limitation; (ii) The State Commission in its Order dated 10.12.2010 had arrived at a finding that Complainant had surrendered the plot in question voluntarily vide her application dated 22.11.2001 and received the refund of the deposited amount on 3.12.2001 without any protest and therefore, now the complainant cannot claim restoration of the plot; (iii) as per provisions of Section 15 of Haryana Shehri Vikas Pradhikaran Act, 1977 read with regulation 3 of Haryana Urban Development (Disposal of Land & Buildings), Regulations, 1978, plots can be disposed of either with or without development; (iv) as per terms and condition of the Allotment Letter if the allottee raises a request of refund, same is done after deduction 10% of the deposited amount; (v) the applicant at the time of seeking refund was aware of the provision in the allotment letter and therefore, cannot be allowed to challenge the same at this stage; (vi) Miscellaneous Application No. 75 of 2021 is not maintainable as there is no provision in the Consumer Protection Act 1986 which provides for filing of present application; and (vii) after withdrawal of the Revision Petition No. 1016 of 2011, the order dated 19.07.2012 passed by this Commission had attained finality and the same cannot be reviewed. It is prayed that the Petitioner is not entitled to any relief from this Commission and that the subject Miscellaneous Application is totally misconceived and an abuse of process of law, deserving to be dismissed with exemplary costs.

Per contra, Learned counsel for the Complainant/Petitioner placing reliance upon the decisions of the Hon’ble Supreme Court in the cases of Pradeep Sharma Vs. Chief Administrator, Haryana Urban Development Authority & Anr.,- Civil Appeal No (s).52-53 of 2016 decided on  07.01.2016; Pratap Singh Yadav Vs. Haryana Urban Development Authority & Anr., Civil Appeal No (s).10418-10419 of 2016 decided on  28.10.2016, and Ajay Mittal Vs. Haryana Urban Development Authority & Anr., Petition (s) for Special Leave to Appeal (C) No (s). 33890-33891/2016 decided on 07.12.2018, meticulously submitted that in the similar circumstances, the Hon’ble Apex Court had directed the Respondent HUDA to allot an alternative plot in lieu of the originally allotted plot which was surrendered in compelling circumstances on the price prevalent on the date of allotment of the original plot.  The Hon’ble Apex Court has further directed the HUDA to adjust/refund the amount of 10% deducted by it. In the present case also, the plot in question was surrendered as the offer of possession was made for a plot in an area which was not fully developed for construction of residential house and enhancement was being charged without giving the possession. Moreover, the amount of 10% of the total Sales Consideration for the plot in question is still lying deposited with the Respondents. It is further stated that the Complainant is willing to pay the rates decided by the Hon’ble Apex Court in SLP (Civil) No. 5140/2009 in the matter of HUDA Vs. Irish Print Services Pvt. Ltd.

Having bestowed my thoughtful consideration to the rival contentions of the parties, I am of the considered view that there is substance in the submissions made by the Learned Counsel for the Complainant/Petitioner and the Complainant he is entitled for allotment of an alternative plot in the peculiar facts of the case.

The Hon’ble Supreme Court in the case of Irish Print  Services Pvt. Ltd. (supra) has passed the following Order on the statement given by the learned Counsel for the Parties:-

“ In view of the statements made by the learned counsel for the parties, the special leave petition is disposed of in the following terms :-

Within two months from today, the respondent shall deposit the price of the plot at the rate of Rs.7894/- per square meter after adjusting the amount already paid pursuant to the allotment made in terms of the direction given by the District Forum.

If the respondent deposits the price in terms of Clause 1 above, the concerned authority of HUDA shall execute necessary documents in its favour.

If the respondent fails to deposit the amount in terms of Clause 1 above, the allotment made in its favour shall stand automatically cancelled and the concerned authority shall immediately take possession of the plot allotted to the respondent on 18.12.2007.”

In another case of Pradeep Sharma (supra), the Hon’ble Supreme Court after considering the entire facts and circumstances of the case has passed directed as under:-

“12. The impugned orders passed by the National Commission are set aside and these appeals are allowed. Respondent-authority/HUDA shall permit the appellant to retain the plot subject to the appellant’s depositing the amount at the current HUDA rate of the year 2014-15 i.e. Rs.10,500/- per sq. mtr. after adjusting the amount already deposited by the appellant. The appellant shall deposit the said amount within four months from the date of this judgment and on such deposit, HUDA shall execute the necessary document and issue no objection certificate and clearances as may be required within four weeks thereafter. It is further directed that the respondent-authority shall proceed against the delinquent officials/officers who are responsible for the lapses in accordance with law. In so far as action taken in the disciplinary proceedings, the respondent authority shall file compliance report before this Court within nine months. In the facts and circumstances of the case, we make no order as to costs.”

In the case of Pratap Singh Yadav (Supra) the Hon’ble Supreme Court held as under:-

“8. We accordingly allow these appeals but only in part and to the extent indicated above and set aside the order passed by the National Commission and the State Commission with the direction that subject to the appellant depositing the price of the plot at the rate of Rs.18,000/- per square meters within a period of six months from today the appellant shall be permitted to retain the plot. In case the needful is not done within the time allowed, this appeal shall stand dismissed and order passed by National Commission and the State Commission affirmed. In any such event  HUDA shall be free to dispossess the appellant from the property and resume the possession of the plot along with the superstructure, in case the superstructure is not removed by the appellants within the time granted by HUDA for that purpose.

Ordered accordingly. No costs.”

In another case of Ajay Mittal (Supra), it was observed by the Hon’ble Supreme Court as under:-

“We have heard learned counsel for the parties.

An affidavit has been filed by Mr. Amardeep Jain, Estate Officer, Haryana Urban Development Authority. The affidavit is dated 17th April, 2018.

It is stated in the affidavit that possession of the plot in question was handed over to the petitioner on 28th March, 2008 and the allotment rate at that time was Rs.6,200 per sq. m.

Learned counsel for the petitioner says that he is ready and willing to make the payment at the allotment rate of Rs.6,200 per sq. m. after adjusting any amount that has already been paid.

We direct accordingly.

The balance amount be paid within a period of four weeks from today.

The special leave petitions stand disposed of in view of the above.”

Without going into the various issues raised by the leaned Counsel for the Parties and taking into consideration that Haryana Urban Development Authority has been offering alternative plots in similar situation, in the interest of justice, it is an appropriate case, where the Miscellaneous/Review Application has to be allowed and the Complainant/Petitioner herein has made out a case for allotment of alternative plot.

Applying the principles laid down by the Hon’ble Supreme Court in the cases referred to above, which also applies to the facts of the present case, I am of the considered opinion that the Review Applications (MA/75/2021) filed by the Petitioner should be allowed and the Revision Petition be disposed of in the following terms:-

(i)  Vide Order dated 22.03.2021, the Respondent HUDA was directed not to alienate or transfer or create any third party interest in the vacant and unallotted Plot No.262, Sector 31, Faridabad till the disposal of the case;

(ii)  Respondent HUDA is directed to accept the balance payment of the plot No. 262, Sector 31, Faridabad after adjusting the 10% amount being earnest money (if not already refunded), lying deposited with them;

(ii)   HUDA is further directed to accept the then current prevailing rates as on the date of initial/original allotment.

(iii)  The Respondent is directed to allot the Plot No. 262, Sector 31, Faridabad to the Complainant/Petitioner herein and possession of the same be handed over and land conveyance deed be executed within one month from the date of receipt of this Order.

For the forgoing discussion, the Review Application is allowed and the Revision Petitions stands disposed of in the aforesaid terms.