Pairaya Kak @ Piyari Kak vs HUDA & Anr

Dr. Inder Jit Singh, Presiding Member

The present Revision Petition (RP) has been filed by the Petitioner against Respondents as detailed above, under section 21(b) of Consumer Protection Act 1986, against the order dated 28.03.2011 of the State Consumer Disputes Redressal Commission, Haryana (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 2045/2005 in which order dated 05.05.2005 District Consumer Disputes Redressal Forum, Gurgaon (hereinafter referred to as District Forum) in CPA No. 619/2.9.04 was challenged, inter alia praying for allowing the Revision Petition filed against the impugned order dated 28.03.2011 passed by the State Commission in FA/2045/2005.

While the Revision Petitioner  (hereinafter also referred to as Complainant) was Respondent before the State Commission and Complainant before the District Forum and the Respondent(s) (hereinafter also referred to as OPs/HUDA) were Appellant(s) before the State Commission in FA/2045/2005 and were Opposite Parties  before the District Forum in CDA No.619/29.04.

Notice was issued to the Respondent(s) on 08.11.2012.  Parties filed Written Arguments/Synopsis on 23.03.2023 (Petitioner) and 20.04.2023 (Respondents-1 & 2) respectively.   Initially this Revision Petition was filed by Mrs. Pairaya Kak @ Piyari Kak.  The Petitioner died on 03.02.2016.  Application IA/16213/2019 was filed for bringing on record the LR of the deceased Mrs. Pairaya Kak @ Piyari Kak.  I.A. was allowed vide this Commission’s order dated 16.10.2019 and amended Memo of Parties was filed.

Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that: -

Petitioner applied for allotment of a residential plot with the Respondents for a consideration of Rs.17,810/-. The Petitioner paid 10% of the consideration amount i.e. Rs.1781/-. The Petitioner was allotted a residential plot No. 1776 measuring 83.60 sq. mts. in Sector 23-23A, Gurgaon vide allotment letter dated 01.08.1986.  The Petitioner did not receive the said allotment letter for the reason as mentioned in the Petition that “the letter was not received by the petitioner as her house in Jammu and Kashmir was destroyed by militants and the Petitioner along with her family had to shift from one place to another under constant fear of the militants”.  As the Petitioner had not received the said allotment letter and was in dire need of a residential accommodation, the Petitioner contacted the office of Respondents, then the Petitioner came to know that plot No. 1776 was allotted in her name and she was issued a duplicate allotment letter dated 15.06.1988 stating that the Petitioner had to deposit 15% of the price of the plot along with interest.  The Petitioner deposited Rs.2226.25 on 27.06.1988. Petitioner deposited Rs.40,000/- on 13.03.2002 although the tentative price of the plot as mentioned in the allotment letter was Rs.17,810/-.  The Petitioner applied for delivery of possession vide letter dated 27.03.2003, the date of possession was 03.04.2002. The Petitioner did not get any response from the Estate Officer, HUDA, hence approached the Chief Administrator, HUDA, Panchkula personally and submitted application dated 17.09.2003 for handing over the possession as she had already paid the tentative and enhanced price of her plot. Upon her application, the Chief Administrator wrote the Administrator and Estate Officer, HUDA Gurgaon vide letter dated 13.10.2003 for handing over possession to the Petitioner but with no response from either Estate Officer, Gurgaon or from Administrator, HUDA, Gurgaon.  Another request was made vide letter dated 21.11.2003 to the Administrator HUDA but received no reply then the Petitioner visited the office of Estate Officer, HUDA, Sector -4, Gurgaon to know the reasons of non-delivery of possession and for not sending any reply.  Thereafter vide letter dated 29.10.2003, the representative of the Petitioner was intimated that the said allotment stood cancelled. Hence, filed complaint before the District Forum.

Vide Order dated 05.05.2005, in the CPA No. 619/2.9.04, the District Forum allowed the complaint and passed the following order:-

“ In view of the above facts and circumstances of the case, the respondents are directed to restore her originally allotted plot and deliver her its physical possession. In case it is not found lying vacant or un-allotted then an alternate plot in the same or adjoining sector or in sectors 27, 28, 43, 45, 47, 57, 31-32A, 40, Gurgaon or of the choice of the complainant be allotted to her on the same rate, terms and conditions as applicable to originally allotted plot. The respondents are directed to pay interest @ 18% PA on deposits from the date of deposits till the delivery of possession at site. The respondents are also further direction to receive the balance cost of the plot in instalment without adding interest/penalty or surcharge.”

Aggrieved by the said Order dated 05.05.2005 of District Forum, Respondents appealed in State Commission and the State Commission vide order dated 28.03.2011 accepted appeal No.2045/2005, set aside the order passed by the District Forum and dismissed the complaint.

Petitioner(s) have challenged the said Order dated 28.03.2011 of the State Commission mainly/inter alia on following grounds:-

The State Commission accepted the Appeal in contravention to the HUDA Act. The State Commission has mechanically relied upon Clause 4 and 5 of the allotment letter dated 11.07.1986 while passing the impugned order and failed to take notice of the fact that balance 15% amount was accepted by Respondents in the year 1988 without any demur.  Hence, the Respondents were stopped from raising the plea that as the balance 15% amount was not deposited, hence the allotment of the petitioner stood cancelled after about 15 years from the acceptance of the said 15% amount.   The said fact was specifically taken note by the District Forum while passing the order, whereas the State Commission totally ignored the same.

The State Commission failed to take notice of the fact that no allotment letter or cancellation letter was ever received by the Petitioner and that she obtained a duplicate copy of allotment letter from HUDA in the year 1988.  As per Section 42 of the HUDA Act, 1977, the onus was on HUDA to show that the relevant communications were sent by registered post to the Petitioner. No such document was placed on record which showed that the allotment letter or letter demanding 15% of the amount was sent through registered post to the Petitioner.  The State Commission failed to take notice of the fact that the Petitioner had already deposited a sum of Rs.40,000/- over and above 25% amount already deposited by the Petitioner and the said amount was duly accepted by the Respondent.

The State Commission condoned the delay of 131 days in filing the Appeal in a mechanical manner though no relevant or cogent reasons were given by HUDA for the said delay.  Only reason portrayed was that the delay has occurred because of departmental process.  The State Commission failed to notice that the Petitioner had already intimated her new address to the Respondents and hence the observation in the impugned order that the Petitioner had not intimated her new address is factually incorrect.  The impugned order suffers from patent illegality on the face of the record and deserves to be set aside.

Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

8.1 In addition to the averments made under the grounds (para 7), the Petitioner contends that the Petitioner had not received any allotment letter or cancellation letter as her house situated at Jammu and Kashmir was destroyed by the militants due to the riots and the Petitioner had to shift to another place.  It is further contended that there is a possibility that the Respondents had never sent the allotment letter or cancellation letter as the Respondent has also failed to file any supporting documents which prove that the allotment/cancellation letters were actually delivered to the Petitioner.  As per Section 42 of HUDA Act, 1977, the onus was on the Respondent to show that the relevant communications were sent by registered post to the Petitioner.  No such document was placed on record which showed that the allotment letter or demand letter of 15% was sent through registered post to the Petitioner. The Respondent failed to discharge the said onus, hence, the presumption of non-delivery of the said documents is against the Respondents.  It is also contended that the Petitioner deposited the balance amount of 15% with the Respondent which was also accepted by the Respondents. Therefore, there is deficiency in service on the part of Respondent by cancelling the allotment of the Petitioner after about 15 years from the acceptance of the said 15% amount.  The said fact was considered by the District Forum, however, the State Commission failed to do so.  The State Commission failed to appreciate that the Respondent has taken wrong plea before the District Forum that an amount of Rs.2,226.25 was refunded to the Petitioner against the cancellation of allotment letter of Petitioner.  However, the Petitioner never received the said amount.  The LR of the Petitioner has also filed his affidavit dated 21.03.2023 wherein he declares on oath that neither the Petitioner nor he has ever received an amount of Rs.2,226.25 from the Respondents.

8.2 On the other hand it is contended by the Respondents that the Petitioner was allotted a residential plot No. 1776 measuring 83.60 sq.mts. in Sector 23-23A, Gurgaon vide allotment letter dated 11.08.1986 in favour of Smt. Pairaya Kak.  As per clause No. 5 of the allotment letter, the Petitioner was to deposit an amount of Rs.2671.50 which accounts for 15% of the consideration amount of the plot that was required to be deposited within 30 days from the date of issue of allotment letter i.e. upto 09.09.1986.  But the allottee failed to deposit the said amount within the stipulated period.  As per clause 4 of the allotment letter, the complainant did not send her consent with respect to acceptance of the allotment within 30 days from the date of issuance of allotment letter.  Thus, the allotment of the plot stood automatically cancelled and 10% earnest money was forfeited.  It is further contended that that no effort was made by the Petitioner to communicate to the Respondents about the change of residential address and therefore, the Respondents were left with no option but to proceed with non allotment of plot after cancellation.  It was incumbent on the complainant to communicate any change of address.  The respondents sent the allotment letter on 11.08.1986 through Registry/Speed Post. After cancellation of the plot, petitioner deposited a sum of Rs.2226.25 with the Respondents on 23.07.1988, after a delay of almost 2 years, but the said amount was refunded to her through cheque dated 23.08.1988 and she was informed that plot was already cancelled as she did not comply with clause 4 & 5 of the allotment letter.  It is further contended that there is no evidence that her residence was dismantled by the militants in Sri Nagar due to which she could not get the allotment letter.  Mere pleadings of the petitioner in this regard cannot take place of proof.  In such a situation it was incumbent upon the Petitioner to inform and furnish her new residential address to the Respondents but she failed to do so.  The Petitioner herself gave the address ‘Lal Nagar, Channapura, Sri Nagar (J & K) while filing complaint before the District Forum, Gurgaon.  The petitioner gave the same address she had left in 1986 for filing a complaint in 2004.  The sole ground of the petitioner is that she did not receive the allotment letter, as she no longer lived in Lal Nagar, Channapura, Sri Nagar (J & K).  However, the address furnished was the same address for pursuing litigation from 2004 onwards.  It is also submitted that the respondents conducted auctions for plots in the vicinity in the year 2016, 2017 and 2020 but Plot No. 1776 Sector 23-23A, Gurugram  was not included in the auction process as the same was under litigation since 2004 and resulted in non-allotment or auction of the plot in question.

We have carefully gone through the orders of the State Commission, District Forum, other relevant records and rival contentions of the parties.  Allotment of Plot No. 1776 measuring 83.60 sq. mts. in Sector 22-23A, Gurgaon vide allotment letter dated 11.08.1986 of OP, in favour of Complainant  at a tentative price of Rs.17810/-  and receipt of 10% of tentative price (Rs.1781/-) as booking amount is not in dispute.  It is also admitted that no formal cancellation orders were issued by OP on account of non-payment of balance of tentative price as per terms and conditions of allotment letter. As per allotment letter, another 15% (Rs.2671.50) was payable within 30 days from the date of issue of letter and balance Rs.13357.50 was to be paid in lump-sum without interest within 60 days from the date of issue of allotment letter at 8/6 half yearly annual instalments with interest @10%.  The possession of the site was to be offered on completion of development works in the area.  The allottee was to convey the acceptance of allotment within 30 days along with an amount of Rs.2671.50 (15% of tentative price) or refusal to accept within 30 days, failing which allotment shall stand cancelled and earnest money shall stand forfeited.  It is the case of Complainant that she did not receive the said allotment letter dated 11.08.1986, as she had notified her address to OP in J & K and her house in J & K was destroyed by militants and Petitioner along with her family had to shift from one place to another under constant fear of militants. Complainants further contended that there is a possibility that OPs had never sent the allotment letter or cancellation letter as the OPs have failed to file any supporting documents which prove that the allotment/cancellation letters were actually delivered to the Complainant.  As per provisions of HUDA Act, onus was on OPs to show that said letters were sent by registered post.  When later on she contacted the office of OP that she came to know about the said allotment and she was issued a duplicate allotment letter dated 15.06.1988 stating that Complainant had to deposit 15% of the price of plot along with interest.  The Petitioner deposited Rs.2226.25 on 27.06.1988.  Further, the Complainant deposited Rs.40,000/- on 13.03.2002, although the tentative price of plot as mentioned in the allotment letter was Rs.17,810/-, and she claims to have deposited that amount was on account of enhanced price of plot as advised by OP officials. The complainant requested for delivery of possession vide letter dated 27.03.2003, 17.09.2003, 13.10.2003 but OP did not respond.  Thereafter vide letter dated 29.10.2003, Complainant was informed that said allotment stood cancelled.

The case of the OPs on the other hand is that as per Clause 4 of the allotment letter, the Complainant did not sent her consent with respect to acceptance of allotment within 30 days, thus the allotment stood automatically cancelled and 10% earnest money was forfeited, stating further that Complainant did not notify the OPs about change of her address.  OPs state that allotment letter was sent on 11.08.1986 through registered/speed post.  OPs admit that Rs.2226.25 was deposited by Complainant on 23.07.1988, but the same was refunded to her through cheque dated 23.08.1988 and she was informed that plot was already cancelled as she did not comply with clause 4 & 5 of the allotment letter.  OP further contends that Complainant has not adduced any evidence to show that her house in Jammu and Kashmir was destroyed by militants.

Vide order dated 01.09.2020, OPs were directed to file status report, on affidavit, about the status of plot and its allotment/cancellation/re-allotment and any other disposal/present use of the plot in question since 1986.  Vide  Affidavit filed on 13.04.2021, the OPs stated that in compliance of said order dated 01.09.2020, a site report of plot in question was obtained, as per which said plot is vacant and clear at site and the size of the plot is as per approved demarcation plan, the said plot is un-allotted after cancellation being pendency of litigation since 2004; due to which said plot was not included in the auctions made in the year 2016, 2017 & 2020.

In pursuance to orders dated 10.02.2012 of this Commission, the petitioner filed certain documents, stating that an RTI Application dated 24.02.2012 was filed for procurement of documents.  Vide reply dated 12.03.2012 to RTI Application, Petitioner was informed by Estate Officer, HUDA (OP) that letter bearing No. 9592 dated 15.06.1988 is not available in the allotment file as the original file was missing.  However, photocopy of the dispatched letter No. 9592 dated 16.06.1985 was submitted.

We have perused the following documents on record:

(a)  Letter dated 27.07.1988 from Complainant to OP vide which in response to Memo No. 9592 dated 15.06.1988, of OP, a bank draft for Rs.2226.25 has been sent.

(b) Receipt No. 29688 dated 13.03.2003, showing receipt of Rs.40,000/- from the Complainant by Opposite Party (Rs.20,000 towards enhancement and Rs.20,000/- towards instalment).

(c)  Letter dated 17.09.2003 from Complainant to Chief Administrator, HUDA (OP), seeking possession of plot and expressing willingness to pay arrears.

(d) Letter dated 13.10.2003 from Chief Administrator, HUDA to Administrator, HUDA and Estate Officer, HUDA with copy to Complainant.

(e)  Letter dated 29.10.2003 from Estate Officer, HUDA to Complainant, (in response to letter dated 17.09.2003) stating that Complainant has deposited amount of Rs.2226.25 & Rs.40,000/- dated 7/1988 and 3/2003 against the plot with malafide intention, since the plot has already been cancelled, the deposited amounts have also been refunded to Complainant vide cheque No. 009390 dated 23.08.1988 and No. 614371 dated 10.04.2003.

(f)  Letter dated 21.112003 from Complainant to Chief Administrator, HUDA, in which Complainant inter alia, stated that when he visited OP’s office to get possession of plot, some dues were pending, so these dues Rs.40,000/- were deposited on 13.03.2003, this amount included the enhancement cost also, which was demanded vide Memo No. 5275 dated 06.06.1990 for Rs.19,308/-.

After careful consideration of the entire facts and circumstances of the present case, especially considering the fact that the Respondent Authority has not formally cancelled the said plot in question and the same still remains available, un-allotted on account of pendency of litigation, Respondent Authority is not in a position to produce relevant records relating to issuance of original allotment letter dated 11.08.1986 and its duplicate letter dated 15.06.1988, Respondent Authority having accepted the amount of Rs.2226.25 on 15.06.1988 and Rs.40,000/- on 13.03.2003, which of course they refunded later on vide cheques dated 23.08.1988 and 10.04.2003 respectively but encashment status of which is not clear and Respondent Authority is not in a position to categorically state whether these cheques have been encashed by the Petitioner herein and the fact that prices have risen since its original allotment in 1986, even if we consider the case of Petitioner herein for a direction to Respondent authority to allot the plot in question and hand over the possession, the same cannot be at the original price at which it was allotted on 11.08.1986, nor can the Respondent Authority be made to charge the market rate for the said plot as per the price arrived through auction for similarly located/same size plots in the same sector.  Considering the entire facts and circumstances of the case, we are of the considered view that interest of justice would be served if Respondent Authority is directed to allot/re-allot the plot in question, which is remaining un-allotted as per their own affidavit and hand over the possession of the same at the reserved price fixed for the last auction of same/similar size plots located in the same sector.  Further, the Respondent authority shall be entitled to charge simple interest @6% p.a. from the date of such last auction till the date of receipt from the Petitioner.  Hence, if the Petitioner herein is still willing to accept the allotment/re-allotment and possession of the plot in question at the reserve price as per above orders, she (her Legal Heirs) needs to give a categorical willingness in writing within 30 days of this order.  On receipt of such willingness, the Respondent authority shall intimate the exact amount payable by the Petitioner herein (her Legal Heirs) in accordance with the above cited order, clearly stating the date of last auction conducted in the same Sector i.e. Sector 23-23A, Gurgaon for same/similar size plots and the reserve price for same size of plot in that auction, and details of calculations of total amount payable and giving them a minimum of three months’ time to pay the amount demanded vide such letter.

In case the Petitioner herein (her Legal Heirs) are not willing to accept the allotment/re-allotment/possession of the plot in question as per the above stated order, they will intimate their un-willingness to Respondent Authority within 30 days of this order and thereafter, the Respondent Authority shall refund the entire amount paid by the Petitioner herein alongwith interest @6% from the date of each deposit till the date of refund.  In case the Respondent Authority claims any amount having been refunded earlier, they will have to submit a proof to the Petitioner (her Legal Heirs) that the earlier refunded cheques issued by the Respondent Authority have been actually encashed by the Petitioner herein.  Such refund shall be made to the Petitioner herein within 45 days of receipt of un-willingness of the Petitioner herein.

The Revision Petition is disposed of accordingly. The pending IAs in the case, if any, also stand disposed off.