RAHUL KUMAR YADAV vs CHIEF ADMINISTRATOR & 2 ORS.

The present revision petition has been filed against the judgment dated 21.09.2016 of the Haryana State Consumer Disputes Redressal Commission, Panchkula (''the State Commission'') in First Appeal no. 973 of 2015.

The facts of the case as per the petitioner/ complainant are that the petitioner had purchased plot no. 33 in an open auction on 28.05.2007 as detailed in the complaint. Vide letter no. 1549 dated 06.09.2007 the petitioner was asked to take possession of the plot. When the petitioner visited the plot he found that the plot was encroached by the owners of house nos. 751 and 752 and two electricity poles were also standing therein. He brought this fact to the notice of the respondent/ opposite parties on 14.09.2007 and was assured that encroachment would be removed immediately. The petitioner deposited Rs.2832/- on 04.10.2007 in the office of the electricity department for removal of poles. Thereafter also he requested to remove encroachment of the neighbourers, who had filed a civil suit. Neither the encroachments were removed nor was the sale deed executed in his favour. Petitioner has requested that respondents be directed to remove the encroachment and deliver the possession of the vacant plot and pay compound interest on the amount deposit by him besides compensation for mental harassment etc.

The respondent/ opposite parties alleged that plot was auctioned ''as-on-where-basis" which was clear from perusal of condition no. 21. Owners of plot nos. 751 and 752 did not encroach the plot purchased by petitioner, so there was no question of any undertaking about removal of encroachment. He was not assured about removal of poles etc. Civil Suit filed by Doctor Rajesh was dismissed for want of prosecution on 23.02.2012. As the petitioner did not deposit the documents, the conveyance deed could not be executed in his favour.

The District Consumer Disputes Redressal Forum, Narnaul (''the District Forum'') vide its order dated 25.08.2015 gave the following order: 1. To deliver the possession of vacant/ encroachment free plot to the complainant;

To pay interest on the amount deposited by the complainant at the rate of 10% per annum from the date of deposit till the date of delivery of possession;

To pay Rs.20,000/- as compensation to the complainant;

To refund Rs.2832/- along with interest at the rate of 10% per annum from the date of deposit;

To pay Rs.2200/- as litigation charges to the complainant; and

To provide necessary amenities like road, water and sewer line etc., to the complainant".

Aggrieved by the order of the District Forum, the respondent/ opposite parties has preferred an appeal before the State Commission. The State Commission while allowing the appeal observed as under: "During the pendency of appeal appellants were directed to measure the area of the plot and deliver the possession. It was told by appellants that after measurement it was found that there was no encroachment on the plot in question. Before measurement, notice was also sent to complainant to be present at the spot. These facts are clear from the perusal of affidavit of Estate Manager, but learned counsel for the complainant vehemently argued that there is encroachment.

This argument cannot be accepted because as per report and affidavit of Estate Manager, it is clear that at the time of measurement area of plot in question, i.e., 150.09 sq yards (size 53''6" x 25''-3") was laying vacant and there was no encroachment. Appellants have also produced CD to prove this fact. Complainant has miserable failed to show that this report is altogether false. Even otherwise if after allotment third person encroaches upon the property, then authority is not responsible for the same and allottee should take appropriate action against the trespassers. Had there been encroachment at the time of allotment or when possession was offered then it could have been a different matter. Despite measurements complaints has not come forward to take possession so no further direction is required. Resultantly impugned order dated 25.08.2015 is hereby set aside. However, OPs deliver possession to complainant as and when he approaches them and fulfil all the requirements. With this direction, appeal is allowed".

Hence the present revision petition.

I have heard the learned counsel for the petitioner. Mr Dhamija contended that the State Commission has erred in concluding that there were no encroachments on the plots allotted to the petitioner. In fact the photographs submitted by him clearly show that there were encroachments. He also took us through the letters through which he repeatedly taken up the matter with the respondents. He had thereafter, served a legal notice on the respondents. The respondents in their reply to the legal notice took no action regarding the said encroachments.

I have carefully gone through the record. Admittedly, the petitioner bought the said plot through an open auction. As per the notice for the open auction, under the terms of auction, no. 2 clearly reads as under: " All the properties will be sold on the basis of ''as is where is basis'' ."

Also placed on file are the terms and condition in respect of selling the houses through an open auction. Condition no. 21 clearly states that " the houses will be auctioned on the basis of as is where is ". Even in their reply to the legal notice dated 10.06.2014, the respondents have categorically stated that there is no unauthorised possession or encroachments on any portion of plot no. 33. They have reiterated that plot was auctioned on "as is where is basis" and the petitioner can get execution of the conveyance deed in his favour as per the rules and instructions of the Housing Board. There is no unauthorised possession or encroachment on any portion of plot no. 33 and it is free from all encumbrances.

The State Commission has also in their order dated21.09.2016 has categorically noted that as per the affidavit of the Estate Manager, "it is clear that at the time of measurement the area of plot in question i.e., 150.09 sq yards (size 53''-6" x 25''-3") was laying vacant and there was no encroachment". Learned counsel for the petitioner has admitted that the petitioner had not raised any objection at any time to the report of the Estate Manager. The petitioner has also failed to produce any reliable evidence to support his contention that there is encroachment of plot, i.e., 150.09 sq yards allotted to him through open auction. Further, the plot was bought through open auction "on as is where is basis" and it is presumed that the petitioner bid for the plot after fully satisfying himself of the status and condition of the plot.

In view of the above, there is nothing on record to support the petitioner''s contention that repeated requests were made several times orally and in writing to hand over the vacant plot no. 33, Housing Board Colony, Phase I, Nasibpur (Narnaul) that the respondents had failed to do so.

In view of the forgoing, I find that there is, no jurisdictional or legal error or misrepresentation of facts have been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is dismissed and the order of the State Commission is upheld.