Praveen Chander Tandon & Anr vs HUDA

Subhash Chandra, Presiding Member

This revision petition under section 21(5) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 05.09.2011 in First Appeal No. 1086/2002 of the State Consumer Disputes Redressal Commission, Panchkula, Haryana (in short, the ‘State Commission’) arising from order dated 11.02.2002 of the District Consumer Disputes Redressal Forum, Gurgaon (in short, the ‘District Forum’) in Consumer Case no. 133 of 1994.

The facts of the case, in brief, as stated by the petitioner, are that the petitioners purchased plot no 893, Sector 21, Gurgaon which was allotted to one Smt. Kamla Khosla by the respondent, Haryana Urban Development Authority (HUDA) on 08.11.1985. The petitioners approached respondent for re-allotment of the said plot which was done on 04.07.1994 on the same terms and conditions as per which possession was to be offered to the petitioners after development of the plot. However, the respondent failed to do so despite payment of all installments including the enhanced cost despite several requests. Aggrieved, petitioners approached the District Forum in 2001 seeking possession, compensation and interest @24% p.a. on the amount deposited. The District Forum vide order dated 11.02.2002 directed possession within one month with interest as per HUDA’s policy. The respondent approached the State Commission in appeal which allowed the same and held that a re-allottee cannot be treated as a consumer who is entitled to reliefs claimed. Hence, this revision petition.

The case of the petitioner is that the District Forum had held the respondent guilty of deficiency of service since the respondent had duly transferred the plot in the names of the petitioners and issued a re-allotment letter. All installments had been paid including the enhanced amount and therefore the petitioners had stepped into the shoes of the original allottee with the same rights. It is contended that the State Commission has erred in relying upon Hon’ble Supreme Court’s judgment in HUDA Vs. Raje Ram, I (2009) CPJ 56 wrongly categorized the petitioners as a third party which is distinguishable from the instant case.

I have heard the learned counsel for both the parties and carefully considered the material on record.

The order of the District Forum is as under:

After hearing both the parties and going through the case file carefully, we come to a conclusion that the possession of the said plot has not been delivered to the complainant so far even after the lapse of 15 years. We fully agree with the contention raised by the counsel for the complainant. Though the respondent has issued offer of possession to the complainant and after receipt of this offer of possession, the complainant visited the site, where it was found that the area was not fully developed even after a lapse of long period. As per allotment letter, it was the bounden duty of the HUDA to deliver the possession of the said plot to the complainant at the earliest but it failed to do so which amounts to deficiency in service besides causing harassment to the complainant. In these circumstances, the respondent is directed to give the possession of the plot within one month from the date of receipt of copy of this order. The respondent is further directed to pay interest as per HUDA policy over the deposited amount of the complainant. The interest is to be calculated after two years from the date of deposit till the date of possession of the plot is delivered. The parties are left to bear their own costs.

The findings and the order of the State Commission read as under:

The facts of the present case are fully attracted to the ‘Raja Ram’ case (supra).

It is a case wherein the complainant had purchased a plot from the original allottee and on the date of purchase of the plot the Complainant had full knowledge about the factual situation of plot. In other words, he had purchased the plot in question with open eyes. A re-allottee cannot be treated as “consumer” and therefore cannot continue with complaint. A re-allottee has every right to claim and enjoy the plot which was purchased by him from the original allottee but has no right to comment upon status of payment position as such right is available only to the original allottee with whom HUDA has entered into contract. The re-allottee is a third party and thus cannot enforce the terms and conditions of agreement entered between the original allottee and HUDA.

Thus, under the facts and circumstances of the case, we are of the view that the complainant being a re-allottee is not entitled for any relief claimed. Thus we feel that Learned District Forum committed error while allowing the complaint. Therefore, order cannot sustain and set aside. The appeal is allowed, complaint stands dismissed.

The facts of the case are admitted by both the parties. Both the counsel agree that the only issue for consideration in the matter is whether the judgement of the Hon’ble Supreme Court in Raje Ram (supra) will apply in the instant case or whether the State Commission erred in relying upon it while allowing the appeal filed by the respondent. It is the view of the petitioner that the State Commission erred in relying upon it while the respondent contends that the impugned order rightly relied upon it.

The case of Raje Ram (supra) was examined by the Hon’ble Supreme Court in a bunch of Civil Appeals arising from the order of this Commission in HUDA Vs. Darsh Kumar in Revision Petition No. 1197 of 1998 dated 31.08.2001. The common issue in all these cases was whether interest could have been awarded against the appellant (HUDA), and if so, whether the rate of interest was excessive. The respondents in the three cases were not original allottees but had been reallotted plots by the appellant. There was delay on account of delivering the plot due to either formation of layout, delivery of the plot, encroachment, etc. It was held that their cases could not be compared to the cases of the original allottees who were made to wait for a decade or more for delivery and therefore put to mental agony and harassment. However, the re-allottees were aware that time for performance was not stipulated as the essence of the contract and the original allottees had accepted the delay. In these cases, this Commission had not considered the facts of the cases but upheld the award of interest up to 18% per annum in similar cases. The Hon’ble Supreme Court had held in Darsh Kumar (supra) that where possession is given at the old rate, the party has already got the benefit of escalation in price of land, and therefore, “there cannot and should not be award of interest on the amounts paid by the allottee on the ground of delay in allotment”. However, in view of the special facts of that case, compensation was awarded for harassment/mental agony.

In the instant case, it is an admitted fact that the petitioners are re-allottees of the plot in question who have been offered possession on payment of the requisite installments and the enhanced rate. However, they found that the development of the layout and plot had not been done and therefore sought compensation with interest for the delay. The District Forum has held that this constituted deficiency in service and awarded interest as per HUDA’s policy allowing a period of two years as moratorium. It has not been argued on the basis of any documents by the petitioner that time was of the essence in the re-allotment by the respondent. These facts are exactly similar to the facts in Raje Ram (supra) as discussed above. In view of the settled position as laid down by the Hon’ble Supreme Court in this judgment, the State Commission has rightly set aside the order of the District Forum.

For the reasons mentioned above, I do not see any reason to disagree with the impugned judgment of the State Commission. The revision petition dismissed as without merit and the impugned order is accordingly affirmed.