NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

 

REVISION  PETITION  NO. 1051 OF 1999

(from the order dated 7.4.99 in FA No.1/98  of the State Commission, Haryana)

 

H.U.D.A.                                                                    … Petitioner

 

Versus

 

Smt.Kamaljit Kaur Ahluwalia & Ors.                  … Respondents

 

 

REVISION  PETITION  NO.   1998    OF    1999

(from the order dated 7.4.99 in FA No.1/98  of the State Commission, Haryana)

 

Smt.Kamaljit Kaur Ahluwalia & Ors.                  … Petitioners

 

Versus

 

H.U.D.A.                                                                                … Respondent

 

 

BEFORE :

                   HON’BLE MR.JUSTICE M.B. SHAH,

 PRESIDENT.

                   MRS. RAJYALAKSHMI RO, MEMBER.

 

For the HUDA                        :           Mr. Neeraj Singh, Advocate

                                                            Mr.N.K. Jain, Advocate

 

For Smt.Kamaljit Kaur          :           Mr.Amrik Singh, Advocate

 

 

Date:   2nd June, 2005

 

O  R  D  E  R

 

M.B.Shah, J., President

 

 

                   This case illustrates how officers of the HUDA have acted negligently in discharge of their duties in not defending the case. Relevant points were also not highlighted before the District Forum constituted under the Consumer Protection Act, 1986.  We further reiterate that proceedings before the Consumer Fora are not adversary litigation but are inquisitorial and hence even if points were  not highlighted by the parties, even then, it was a duty/function of the consumer fora to appreciate the evidence brought on record and to arrive at a just and proper conclusion.

 

FACTS:

                    Complainant,  Smt. Kamaljit Kaur filed CPA No.625/15th July 1997 in the District Consumer Redressal Forum, Gurgaon, wherein  her main grievance was that HUDA wrongfully demanded enhanced price of the plot and the same was Rs.29,225/- and secondly for the interest charged.    It was prayed that HUDA be directed to refund the excess amount of Rs.26,134.42p. + Rs.3057.77p. which was the interest recovered by HUDA on the instalments.  She also prayed that HUDA be directed to pay compensation of Rs.10,000/- for mental and physical torture and harassment caused to the complainant. 

 

                   In written version it was pointed out by HUDA that even though the draw of lots was held on 7.2.1985, allotment letter of the plot could not be issued in favour of the complainant because Supreme Court  has granted stay order with regard to the land in dispute.  Finally, the allotment letter was issued on 27.1.1989 and the possession of the plot was delivered to her on 25.5.1992. 

 

                    The District Forum arrived at the conclusion that draw of lots took place in 1985 and as the possession was offered in April 1992, there was delay of about 7 years in delivery of possession.  The District Forum further arrived at the conclusion that normally for development activities, it should not take more than 3-4 years.  Thereafter, without specifying any amount, it vaguely ordered that the HUDA should not recover interest on the instalments of tentative price till the date of the offer of the possession.  If any amount is paid after the date of the offer of possession, HUDA can charge interest at the rate permissible under the Rules.  HUDA can also charge interest on the enhanced amount in case it was not paid within a month of the receipt of the demand notice.  Finally, it ordered that HUDA shall pay compensation for the delay in handing over possession from the date when HUDA had handed over possession to other plot-holders in Sector in question till the date of payment at the rate of 15%. 

 

                    Against that order, complainant preferred First Appeal No.46/1998.  That appeal was summarily dismissed by the State Commission by observing that there was no material on record for enhancing compensation.  That order was passed on 7.4.1999.  Against that order, complainant has preferred this Revision Petition No.1998/1999.

 

                    HUDA has also preferred First Appeal No.1/1998 against the order passed by the District Forum.  That appeal was dismissed on 7.4.1999 by the State Commission by observing that award of 15% interest was in conformity with the earlier decision rendered by the Commission.  Against that order, HUDA has preferred Revision Petition No.1051/1999.

 

                   At the time of admission of the Revision Petitions on 7.10.1999, this Commission admitted the matter and directed as under :

“There will be no order of stay except that petitioner (HUDA) will pay interest @ 12%.  The dispute as to payment of balance amount of interest will be decided at the time of final hearing.”

 

                    As the said order was not complied with, summons were issued to the Estate Officer as well as the Chief Administrator of HUDA on 2.12.2004 with further direction to HUDA to pay the amount with 12% interest instead of 15% interest as awarded by the District Forum. 

 

                    Learned counsel appearing on behalf of HUDA submitted that in compliance of the said order, HUDA, without prejudice to its rights and contention, had paid Rs.49,223/- by a cheque dated 8.2.2005.

 

                   Learned counsel, who is the husband of the complainant, submitted that the said amount is paid without giving exact calculation as per the order passed by this Commission on 4.12.2004. 

 

                    For this purpose, for finding out exact calculations and also to find out whether the excess amount was demanded by the HUDA, the matter was repeatedly adjourned.

 

Submissions:

 

                    The learned counsel Mr.Jain, for the HUDA submitted that : (a) the complainant is not entitled to any compensation  for the so-called dealy in delivering the possession of the  plot; (b) the complaint for compensation was  time barred   as the same was filed in 1997 after taking the possession of the plot on 14.10.1992.  The plot in question was sold by the  complainant in the year 2004 and he had got  a large amount  of more than Rs.14.00 lakhs; and (c)  complaint was mainly for refund of additional amount  of Rs.26,134/- recovered by the HUDA for the price of the plot which the complainant has termed as excess amount  and the District Forum has not specifically  arrived at the conclusion with regard to this grievance.  Enhancement of the price of the plot was because of the increase in the cost due to land acquisition proceedings.   The amount was paid without any objection by the complainant. 

 

                    The learned Counsel also submitted that admittedly, during the pendency of the proceedings the complainant has already disposed of the plot by recovering Rs.14 lakhs and odd.

 

Findings:

 

                    In our view,  from the facts stated above it is apparently clear  that in the present case there was no question of directing the HUDA to pay compensation for  delay in handing over  possession of the plot, firstly on the ground that possession was accepted by the complainant without any objection.  Secondly complainant has accepted the possession in 1992 and therefore, complaint after lapse of five years  for the said cause  was not maintainable.  Thirdly, there was no delay in allotment of the plot

 

                   Admittedly the draw of lots were held on 7.2.1985.  Thereafter complainant was informed by letter dated 15th July, 1986 that in the  draw of lots she has been declared successful for the allotment of plot No.176-P in Sector 22 Gurgaon.  However, the area of Sector 22 was under litigation before the Supreme Court in Writ Petition Nos.11016-27 of 1984 in the case of Ramphas &  Ors. vs. State of Haryana & Ors. and the Supreme Court has granted stay in this resp­ect.  She was specifically informed that allotment letter in her favour can only be issued as and when the said stay is vacated by the Supreme Court.   It was also clarified that the allotment  to be made to the complainant would  be subject to the final orders of the Supreme Court and this would not entitle the complainant to allotment  of plot automatically.  

 

                    Thereafter, HUDA issued allotment letter dated 27.1.89 with a specific statement that the tentative price  of the plot is Rs.71,434/- and other following relevant terms:

 

 “5.     In case you accept this allotment, please send your acceptance by registered post along with an amount of Rs.____ within 30 days from the date of issue of this allotment letter, which together with an amount of Rs.6,494/- paid by you along with your application form as earnest money, will constitute 25% of the total tentative price.

 

6.       The balance amount i.e. Rs.53,575-50 of the above tentative price of the plot/building can be paid in lump sum without interest within 60 days from the date of issue of allotment letter or in 8/6  half yearly/annual instalments. The first instalment will fall due after the expiry of one year of the date of issue of this letter.  Each instalment would be recoverable together with interest on the balance price at 10% interest on the remaining amount.  The interest shall, however, accrue from the date of offer of possession.

 

7.       The possession of the site will be offered to you on completion of the development works in the area. In the case of building or undeveloped land the possession shall however be delivered within 90 days from the date of this letter.

 

                   9.       The above price is tentative to the extent that any enhancement in the cost of land awarded by the competent authority under the land Acquisition Act shall also be payable proportionately as determined by the authority.  The additional price determined shall be paid within thirty days of its demand.

                  

                   26.     The rate of interest 18% will be charged on delayed payment after due date of instalments”.

 

                    From the above letter it is apparent that the Supreme Court vacated the stay order in the year 1988 and allotment letter was issued shortly thereafter, i.e. on 27.1.1989. Thereafter, the HUDA, after developing of the plot in May, 1992, i.e. within a period of three years from the date of issuance of the allotment letter, issued letter offering possession to the Complainant. As observed by the District Forum, it would take three to four years to develop the land. Hence, it is apparent that there is no delay on the part of the HUDA in delivering the possession of the plot. In those set of circumstances, there is no question of payment of compensation/interest for delay in handing over possession of the plot. Therefore, the order passed by the District Forum directing the HUDA to compensation in the form of interest at the rate of 15% p.a. on the deposits made by the Complainant for the delay in delivering the plot, cannot be justified and is required to be set aside.

 

                   Further, there is apparent error in passing the impugned order because before the District Forum the complaint was limited to refund of excess amount of Rs.26,134/- which was recovered by the HUDA.  Other prayer was refund of interest amount of Rs.3,057/- paid by the Complainant.

 

                    For this amount it has been pointed out  that it was increase in the cost because of enhancement of compensation payable to the original land owners, whose land was acquired by HUDA from which the plot in question was allotted to the Complainant.  This increase in the cost is referred to as  enhancement cost. This is inconformity with Para 3 of Notice dated 27.1.1989 for payment of additional price of the plot. It is to the following effect:

 

                             “According to condition No.9 of the allotment letter, the price of the said plot is subject to the variation with reference to enhancement of compensation of acquisition cost of land of this sector by the court. The enhanced compensation of this sector has since been deposited in the court for payment to the concerned parties and as such the same is recoverable from you.  It has been worked out that the enhanced is to be recovered @ Rs.83.50 per sq. mt./yard and such an amount of Rs.29,225/- is recoverable from you in respect of the above mentioned plot.”

 

                    Thereafter, allotment letter dated 27.1.1989 was issued. Therein also Term No.9 quoted above specifically provided that the price was tentative to the extent that any enhancement in the cost of land awarded by the competent authority under Land Acquisition Act shall also be payable proportionately and is required to be paid within 30 days of its demand. Even by letter dated 18.2.1989 the Complainant wrote to the HUDA that enhancement cost at the rate of Rs.83.50 per sq. mtr. Worked out at Rs.23,881/-  and not Rs.29,225/-. Therefore, this was required to be corrected. Thereafter, by letter dated 4th March, 1989 she had agreed to pay the amount and paid one-third of the amount. In this set of circumstances, there is no question of any unjustifiable or illegal demand by the HUDA.  The excess amount was on the basis of the cost of the land acquisition.

 

                   In the result, the Revision Petition No.1051 of 1999 filed by the HUDA is allowed.  Impugned orders passed by the District Forum which is confirmed by the State Commission is set aside. In this view of the matter, the Complainant is directed to refund  the amount of Rs.49,223/-  paid to her as per the interim directions of this Commission. The Complainant shall refund the said amount within a period of eight weeks from today.

 

                   In view of the aforesaid order the Revision Petition No.1998 of 1999 filed by the Complainant would not survive. The Complainant has prayed that the order passed by the District Forum dated 28.11.1987 which is confirmed by the State Commission be set aside and direct the HUDA to refund the amount of Rs.59,026.65 on account of excess amount of instalments illegally realised by the HUDA.

 

                    In the result, the Revision Petition No. 1998 of 1999 filed by the Complainant is dismissed.  The Revision Petition No. 1051 of 1999 filed by the HUDA is allowed. The impugned order passed by the District Forum which is confirmed by the State Commission is set aside. In the result,  the  complaint  filed by the Complainant is dismissed. There shall
 

be no order as to costs.

 

 

                                                                                           Sd/-

……………………………………J.

(M.B. SHAH)

PRESIDENT

 

                                                                                       Sd/-

………………………………………

(RAJYALAKSHMI RAO)

MEMBER