Manish Vashishth & Anr vs HUDA & Anr

R.K. Agrawal, President Member

The present Execution Application No. 225 of 2021 has been filed by the Petitioners/Complainant u/s 72 of the Consumer Protection Act 2019 (for short, “the Act”) praying for compliance of the directions given by this Commission in the Order dated 12.07.2021 passed in Miscellaneous Application No. 239 of 2020 filed in Revision Petition No. 2046 of 2011.

Succinctly put, the material facts relevant for disposal of the present Execution Application No. 225 of 2021 are that on 08.03.1973, the HUDA had allotted a Residential Unit being Plot No. 619 admeasuring 500 sq. yards in Sector 21-B, Faridabad to one, Mrs. Parkash Kumar for a tentative price of ₹22,000/-. On death of the original allottee, the Plot was transferred in the name of her husband, Raj Kumar on 21.12.2003. Subsequently, the Plot was transferred by the HUDA in the name of the Complainants on 19.04.2005 vide Sale Deed No. 769. Though the possession letter was issued on 15.10.1974 but the Petitioners were made to run from pillar to post seeking physical possession of the allotted Plot with all basic amenities. There was no proper sewerage and the villagers were using the allotted plot for throwing the cow dung etc. Feeling aggrieved, the Petitioners filed Consumer Complaint No. 200 of 2005 before the District Consumer Disputes Redressal Forum, Faridabad (for short, “the District Forum”) seeking possession of any similarly placed plot along with compensation

On appraisal of the facts of the case, the District Forum, vide Order dated 06.06.2005, allowed the Complaint directing the HUDA to allot the Plot No. 9 in Sector-46, Faridabad in lieu of the originally allotted plot and to hand over possession of the same immediately along with interest, compensation and adjustment of the value of the difference of area, if any.

HUDA challenged the said Order by filing the First Appeal No. 1418 of 2005 before the State Consumer Disputes Redressal Commission, Haryana at Panchkula (for short, “the State Commission”).

Having considered the material available on record and on perusal of the evidence adduced by the parties, the State Commission, vide its Order dated 17.01.2011 allowed the Appeal filed by the HUDA and set aside the order passed by the District Forum. It was held as under:-

“  It has not disputed that plot was allotted to the original allottee on 08.03.1973 and possession of the plot was offered on 15.10.1974.  The Complainant purchased the plot on 19.04.2005.  Once the possession stood delivered to the original allottee without any objection, the contention by present complainant that the construction could not be carried out as the plot is being used by the villegers for putting cow dung etc. cannot be accepted, as complainant had purchased the plot from the original allottee with eyes wide open and after having inspecting the site.  Thus, the District Forum while allowing the complaint did not consider above aspect.  Therefore, impugned order cannot be sustained is set aside.  The appeal is allowed, complaint stands dismissed.

Dis-satisfied with the aforesaid Order, Complainants/Petitioners herein preferred Revision Petition No. 2046 of 2011 before this Commission which was dismissed as withdrawn vide order dated 12.03.13 with the following observations:-

“Counsel for Petitioner 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.”

Subsequently, the Complainants/Petitioners herein filed the Miscellaneous Application No. 239 of 2020 before this Commission seeking a direction to the Respondent HUDA to make allotment of an alternative plot, in lieu of the defective plot allotted to them as in identical cases the HUDA had allotted the alternative plots to the similarly situated Petitioners/Complainants. The Miscellaneous Application No. 239 of 2020 was disposed of by this Commission vide Order dated 12.07.2021 with the following observations:-

“14. A bare perusal of the afore-extracted letter dated 22.09.2015, would reveal that despite there being no specific direction from the Hon’ble High Court of Punjab and Haryana to the HUDA to allot any alternative plot to the Complainant and more particularly, the Order dated 17.01.2011 passed by the State Commission allowing their appeal and dismissing the Complaint of the Complainant, the Estate Officer, HUDA has considered the representation of the Complainants to allot an alternative plot and accordingly allotted Plot No. 99, Sector 31, Faridabad to the Complainants without any objection. However, by a speaking order dated 02.12.2016, the Estate Officer, HUDA, Faridabad rejected the said alternative allotment on the ground that as per the report of SDE (Survey) dated 01.12.2016 plot No.619, Sector 21B, Faridabad is not disputed and clear at site and allottees of the adjoining plots have already obtained completion certificates. It is shocking and surprising when the allotted plot was not in dispute and clear why the representation of the Complainants to allot an alternative plot was accepted by the Estate Officer, HUDA, especially in view of the fact that there was only a direction from the Hon’ble High Court to decide the representations of the Complainants.  If the allotted plot was not in dispute, the HUDA was at liberty to reject the representations made by Mr. Nitin Kumar, General Power of Attorney of the Complainants. Apart from this, in terms of its exchange policy as referred to by the Complainants, the HUDA has allotted alternative plots to the similarly placed Complainants in terms of the orders passed by the District Forum in execution proceedings. Vide Memo No. 10412 dated 17.06.2010, the HUDA, in compliance of the order dated 5.5.10 passed by the District Forum, had allotted alternative Plot No. 102, Sector 31, Faridabad to the Allottee in place of Plot No. 613, Sector 21B, Faridabad where the plot is question is also located. As per the policy of the HUDA dated 25.06.2004, 06.01.2010 and 18.02.2013 (Annexure A-2 of the M.A.No. 239 of 2020), an alternative plot can be given in lieu of originally allotted plot if possession could not given due to litigation pending in the court; where the plot is not actually available on the ground as per layout plan, where the dimension of plot are not uniform, the dimension of front/rear of the two sides of the plots differ atleast by 20% and the actual area of the plot is increased or decreased more than 20% of allotted area.  In the present case also though the paper possession was given on 15.10.1979 but the actual physical possession was never handed over to the Complainants and, therefore, they filed the Complaint before the District Forum and even approached the Hon’ble High Court of Punjab and Haryana.  Since, the matter regarding handing over the possession the allotted plot was under litigation before the Consumer Fora  and Hon’ble High Court of Punjab and Haryana, the HUDA cannot deny the allotment of alternative plot to the Complainants which they did vide Memo No. 9579/EO dated 22.09.2015.

For the reasons stated above, we are of the considered view that in terms of the exchange policy of the HUDA and Memo No. 9579/EO dated 22.09.2015, the Complainants are entitled for an alternative plot in lieu of the originally allotted plot which was in litigation. Consequently, we allow the Miscellaneous Application No. 239 of 2020 and recall the withdrawal order dated 12.03.2013.  Vide order dated 23.11.2020, this Commission has directed the HUDA not to create third party rights in respect of existing vacant/un-allotted Plot Nos. 350 and 352, both in Sector 31, Faridabad, Haryana. Therefore, we direct the Respondent HUDA to allot the Plot Nos.  350 and 352 admeasuring 250 sq. yards each to the Complainants in lieu of the originally allotted plot No. 619, Sector 21B, Faridabad admeasuring 500 Sq. yards on the original terms and conditions. Consequently, the I.A.No. 58 of 2021 filed by the HUDA seeking recall of the order dated 23.11.2020 is dismissed.

Since, the directions given by this Commission in the Order dated 12.07.2021 passed in Miscellaneous Application NO. 239 of 2020 filed in Revision Petition No. 2046 of 2011 have not been complied with by the HUDA, the Petitioners/Complainants have filed the present Execution Application No. 225 of 2021 seeking the following reliefs: -

(i) Allow the application and impose appropriate and befitting penalty upon the non-applicants for non-compliance of the judgement and order dated 12.07.2021 passed in MA/239/2020 in RP/2046/2011 and for their contemptuous and contumacious acts;

(ii)  Direct the cancellation of the auction sale, if any, conducted vide E-Auction dated 29.11.2021 of the Plot Nos. 350 and 352, Sector 31, Faridabad, Haryana by the Haryana Shahari Vikas Pradhikharan (HSVP),

(iii)  Direct the issuance of Regular Letter of Allotment for Plot Nos. 350 and 352, Sector 31, Faridabad in favor of the applicant in terms of the judgment and order dated 12.07.2021 passed in MA/239/2020 in RP/2046/2011; and

(iv)  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.

I have heard the learned Counsels for the parties at some length and also perused the material as well as evidence available on record. Despite liberty being granted vide Order dated 31.01.2023, the counsel for the parties have not filed the written submissions.

It is submitted by the learned Counsel for the Complainants/Petitioners that despite a specific direction from this Commission to allot Plot Nos. 350 and 352 admeasuring 250 sq. yards each, Sector 31, Faridabad to the Complainants in lieu of the originally allotted Plot No. 619, Sector 21, Faridabad, the HSVP (HUDA) has not bothered to comply with the said Order. He further submitted that vide order dated 23.11.2020, this Commission has directed the HSVP not to create third party rights in respect of the Plot No.350 and 352, Sector 31, Faridabad but in contempt of the said Order and the Order dated 12.07.2021, the HSVP had put the afore-mentioned Plots for E - Auction Sale on 29.11.2021. The Complainants have wrote a letter dated 29.11.2021 to the HSVP for allotment of the aforesaid plots but in vein.  Even, a Legal Notice dated 29.11.2021 was served upon the HSVP requesting to stop E-Auction Sale of the aforesaid plots and allot the same to the Complainants but the HSVP did not respond to the said legal notice. He further urged that the Complainants have filed a Caveat Petition before the Hon’ble Supreme Court and no notice of any such Appeal or passing of any such Stay Order against the order dated 12.07.2021, has yet been received.

As against this, Learned Counsel appearing for the HSVP submitted that an Execution Application for compliance of the Order dated 12.07.2021 has already been filed by the Complainants before the District Forum and hence, the present Execution Application deserves to be dismissed.

Having bestowed my thoughtful consideration to the rival submissions made by the learned Counsel for the parties, I am of the considered view that since nothing has been brought to my notice as to whether any Appeal has been filed against the Order dated 12.07.2021 by the Respondent HSVP before the Hon’ble Supreme Court or any stay order has been passed by the Apex Court, the Order dated 12.07.2021 directing the HSVP to allot Plot Nos. 350 and 352, Sector 31, Faridabad, to the Complainants, has attained the finality and as such the HSVP is under an legal obligation to comply with the directions of the Order dated 12.07.2021. Accordingly, the HSVP is  directed to immediately stop the E-Auction Sale of the aforesaid Plot Nos. 350 and 352 and to allot the same to the Complainants, within a period of four weeks from the date of receipt of a copy of this Order. However, it is made crystal clear that in case the HSVP fails to comply with the aforesaid direction within a period of four weeks from the receipt of a copy of the Order, I will be constrained to take the coercive and strict action against them u/s 72 of the Act or the Chief Administration can be summoned to explain as to why the said direction was not complied with within the stipulated period.

List on 17.05.2023 for compliance of the order.