NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

 

Revision Petition No. 3166 of 2006

(From the order dated 18th July 2006 in FA No. 1303 of 2004 of the

Haryana State Consumer Disputes Redressal Commission, Panchkula)

 

 

Captain A. C. Mohan                                                                                         Petitioner

 

versus

 

1. Chief Administrator,

Haryana Urban Development Authority,

Panchkula, Haryana

                                                                                                                        Respondents

2. Estate Officer,

Haryana Urban Development Authority,

Sector 14, Urban Estate, Gurgaon

Haryana

 

BEFORE:

 

HON’BLE MR JUSTICE R. C. JAIN                                      PRESIDING MEMBER

 

HON’BLE MR ANUPAM DASGUPTA                                                          MEMBER

 

For the Petitioner                                        In person with Mr K. K. Mohan, Advocate

For the Respondents                                            Mr Gagan Deep Sharma, Advocate

 

 

19th May, 2008

 

ORDER

 

ANUPAM DASGUPTA

 

            The petitioner in this revision petition is a retired officer of the Indian Army and the respondents are the officers of an urban development authority with functional jurisdiction extending over an entire State of the Indian Union. The authority was established by a specific enactment of the State Legislature to undertake planned urban development in the State. It was enabled by the incorporating statute to receive and dispose of lands acquired from one set of ordinary citizens of the State, lands that were acquired by the State itself using its sovereign power to do so under the provisions of the Land Acquisition Act for “public purpose”. The duties entrusted to the authority included provision of sites/plots “developed” out of these acquired lands for housing of another set of needy and eligible citizens of the State – housing/shelter being recognised as one of the most basic needs of a citizen. The authority was also empowered to hire an army of officials for the discharge of its statutorily mandated duties/functions and, of course, meet the cost of this establishment, in addition to all other costs, out of the revenue it generated from the sale/lease/disposal of the properties to, once again, the people of the State. Most of the allottees of these housing plots/sites, who were/are also ordinary citizens of the State, would have perhaps deployed their entire life’s savings to pay for the gross cost(s) of these sites/plots and, therefore, also for the establishment employed by this authority. It was thus first and last a “public authority” established and paid - for the benefit of and out of the resources of the ordinary citizens of the State.

 

2          The questions, therefore, that this revision petition raises are, “Can such a public authority render “service” to a citizen of the State (who, as an allottee of a housing plot, is a consumer of its “service”) in a manner that the consumer is required to unquestioningly comply with the terms that the service provider lays down regarding disclosure of relevant information which casts significant financial and physical liabilities on such a consumer of the “service”? Can such a public authority consistently refuse to reply to any question that the consumer asks to clarify his reasonable doubts? Can the junior functionaries of this public authority repeatedly stonewall the attempts of the consumer to obtain physical possession of the plot of land for which he has paid the full price and obtained a “no dues” certificate? Can the consumer be held responsible by such a public authority for non-completion of construction on the allotted plot within the stipulated time from the date of offer of its possession and hence also liable to pay a heavy fine/fee (considerably higher than the price of the plot of land itself) for the alleged delay in construction even when the consumer had not been given physical possession of the land and could not have even started the construction, leave alone completing it?

 

3          In our opinion, each of these questions must be answered firmly in the negative. No service provider, much less a service provider which is a public authority, paid out of the funds raised collectively from the consumers whom it is statutorily mandated to serve, can be allowed to lay down so-called “conditions of allotment” which are not only manifestly inequitable but also opaque; consistently refuse to reply to queries that a consumer raises over a long period of time, on a mere say-so that it (the said service provider) did not receive any such communication from the said consumer; penalise the consumer for non-completion of construction when it fails to prove the existence of an offer of possession, leave alone giving physical possession of the land in question; and deny the consumer possession of the plot for more than a decade on one pretext or the other, each distinguished by one common characteristic – an attitude that the service provider is the sole arbiter of what the paying consumer deserves to get and when. And, all this happening in a democratic society, barely a few kilometers from the national capital.

4          The revision petition before us challenges the judgment and order dated 18.07.2006 of the Haryana State Consumer Disputes Redressal Commission, Panchkula (‘the Learned State Commission’) in First Appeal No. 1303 of 2004. By the said order the Learned State Commission set aside the order dated 16.09.2003 of the Learned District Forum, Gurgaon. In its order, the Learned District Forum had directed (a) the petitioner (original complainant) to pay the requisite “extension fee” to the respondents [Haryana Urban Development Authority – a public authority established by the State Government under a specific legislation enacted in 1977] (hereafter, HUDA) and (b) HUDA, in turn, to immediately hand over possession of the plot allotted to the petitioner, without charging once again the price of the extra area of the plot (vis a vis the originally allotted area), since (according to the Learned District Forum finding) the petitioner had already paid that amount to HUDA.

 

FACTS / CONTENTIONS

 

5(i)      The undisputed facts are that the petitioner had applied for and was allotted plot no. 49 measuring 286 sq. metres in Sector 23/23A, Gurgaon by HUDA under its allotment letter/memo no. 794 dated 20.03.1985. The petitioner paid the full price of Rs. 67,700/- to HUDA in time. The allotment letter (a printed letter with some blank spaces to be filled in appropriately) did state that this price was tentative and the allottee would be required to pay proportionate increase in the price as determined by HUDA, if the cost of acquisition of the land was later enhanced by any competent court, within 30 days of the date of such demand. This clause did not, however, specify if this additional sum would bear interest at any stipulated rate if the allottee failed to pay the amount within 30 days of the demand nor did it specify if the allottee could pay the sum in instalments, and if so, how many and at what rate of interest. Nor did it state that such a demand notice would be sent by registered post (as in the case of the allotment letter itself or as required in respect of the letter(s) of the allottee conveying acceptance or refusal of the allotment) to ensure that the demand notice did reach the allottee in good time. It also did not state that no queries would be entertained about the validity of this demand. On the other hand, the allotment letter did allow the allottee the option to pay a large part of the tentative price in half-yearly instalments with interest @ 10 per cent per annum, such interest to accrue on the balance due, with effect from the date of offer of possession of the land. The allotment letter also clarified that the offer of possession of the allotted plot would be made on completion of development works in the area, but did not clarify what basic amenities would constitute such “development works”. Further, the allotment letter cautioned the allottee, in stentorian phrases, on his responsibility to pay all dues on demand and in time and complete construction on the plot within two years of the offer of possession, without, however, assuming any responsibility that the authority, on its part, would expeditiously carry out the development works or that it would not allow its junior functionaries to stall or delay the chain of activities prior to construction, viz., demarcation of the plot on the ground and handing it over to the allottee well in time, passing the building plan, etc. The allotment letter further stated, “No separate notice would be sent for the payment of the yearly instalments. However, the information regarding the instalments, the amount, the due date, etc., may be sent, as a matter of courtesy.” In other words, the authority did admit, in all magnanimity becoming such an authority, that as a courteous dispenser of favours, it might condescend to part with such information (which might be a matter affecting the allottee’s life-long savings). Perhaps it forgot to add the touch of reality that “may” in this case meant, “may, at the sole discretion and convenience of the … functionaries like Junior Engineers, Assistants, etc....”

 

(ii)        HUDA issued a notice to the petitioner on 19.05.1990, i.e., well over five years after the letter of allotment, demanding a sum of Rs. 66,055.20 towards additional price on account of enhanced compensation for the lands acquired. It is worth noting that the additional price was almost equal to (to be exact, 97.6 per cent of) the “tentative” price already paid. This is where the “undisputed facts” end, more or less.

(iii)       The further contentions of the petitioner are that he wrote a letter dated 12.06.1990 to the Estate Officer, HUDA, Gurgaon (copy produced before the Learned State Commission during the appeal proceedings) in response to this notice, asking for a copy of the relevant court’s judgment/award enhancing the compensation for acquisition and seeking clarification as to how the additional price payable by him had been arrived at. He also wanted to know why, in this case, the rate of interest payable on the instalments was 15 per cent per annum when it was 10 per cent for the instalments of the tentative price paid initially. Thirdly, he wanted to know the validity and legality of straightaway charging interest on this additional price when, in the case of the tentative price, interest was to accrue on the balance amount only from the date of offer of possession of the plot and HUDA had not yet offered possession of the plot, even after five years of the allotment. Being an ex-Army officer, he probably thought he would get a satisfactory reply well in time. The undisputed fact, however, is that he never received a reply to this letter (because HUDA claimed subsequently that it never received any such letter). According to the copies of his letters produced before the Learned State Commission, the petitioner paid to HUDA (a) under protest, Rs. 20,000/- by bank draft with his letter dated 07.09.1990, (b) again under protest, Rs. 25,000/- by bank draft with his letter dated 05.12.1991, (c) Rs.2,815/- by bank draft with his letter dated 01.07.1994 and (d) Rs. 3,554/-, as “full and final settlement” by bank draft with his letter dated 26.11.1996 – in all, Rs. 51,369/-, i.e., an apparent reduction of Rs. 14,686.20 (22.23 per cent) in the additional price vis a vis that originally demanded (Rs. 66,055.20). It is not entirely clear from the documents on record if the petitioner was indeed able to secure this reduction in the additional price. If that is so, perhaps it was a compensation of sorts for the treatment he appears to have received from the HUDA officials, which he summarises in these words in his letter of 01.07.1994: “You haven’t yet made an offer to me to take possession of the plot whereas the language used in the notice seems as if it’s a directive to an undertrial. Please amend your language and be polite and courteous in your communication. It’s just a suggestion. Please take it in a good spirit.”

(iv)       The petitioner also produced before the Learned State Commission a photocopy of a printed document issued to him by HUDA (“Diary No. 5084/8WS/96; Ref. No. 49/23-23A; Recpt. Date: 21-11-96; Target Date: 2-12-96”, etc.) from its SINGLE WINDOW COUNTER with an initialled endorsement of the JE (Junior Engineer) dated 03.12.1996, stating, “No dues outstanding”. It is of some interest to reproduce the two printed captions on this letter: “LANDS WE DEVELOP RELATIONS WE MAINTAIN” (all in uppercase and bold fonts) at the top and “Confidence you Repose – Problems we Dispose” at the bottom. Incidentally, (the verb) “Dispose” (according to the Concise Oxford Dictionary) means: “1 (dispose of) get rid of. 2 arrange in a particular position. 3 incline (someone) towards a particular activity or frame of mind. 4 archaic or poetic/literary determine the course of events: man proposes, but God disposes.” The lofty assurances in this single window communication notwithstanding, what seems to have happened in this case corresponds, ironically enough, to the archaic meaning of the verb, “Dispose”. In its written statement before the Learned District Forum, HUDA flatly denied that the complainant was issued any “no dues” certificate and, simultaneously termed this document as a “slip that there is no outstanding against the said plot in the name of the complainant”. However, neither before the Learned District Forum nor before the Learned State Commission did HUDA clarify (nor was it directed to do so) what that slip was if not a “no dues” certificate. In fairness, it must be conceded, however, that HUDA did not aver/claim that the allottee / petitioner had forged this slip of paper or obtained it by coercing / otherwise influencing the JE.

 

(v)        Further, the petitioner produced before the Learned State Commission copies of his letters to the Estate Officer, HUDA, Gurgaon (a) dated 03.12.1996, referring to HUDA’s letter of 12.11.1996 (which required the petitioner to execute the conveyance deed for the plot) and stating that despite personal appearance on 21.11.1996 he was unable to take over possession of the plot, because of absence of the official concerned, and hence also unable to execute the conveyance deed; (b) dated 15.09.1998 drawing attention that despite personal appearance on at least four occasions in the past he had not been able to take possession of the plot because of absence of the official concerned and requesting that he be intimated a date on which the official would be available so that he could come and take over possession and further that the plot be demarcated on the ground; and (c) dated 30.07.2001 referring to HUDA’s notice dated 24.07.2001 (apparently levying fee / fine for non-construction within two years) and reiterating that he had not been able to take over possession of the plot despite several attempts in the past because of absence of the official concerned, was not even intimated – in response to his written request in that behalf - a date when he could come and do so, wondering how he could take up or complete construction if he had not yet been given physical possession of the plot which was yet to be demarcated on the ground, and questioning the validity of levying the fine in such circumstances.

 

(vi)       On record there is also a photocopy of the Possession Certificate dated 10.10.2001, which has two parts. The first part is a printed certificate of the Junior Engineer in the office of the Estate Officer, HUDA, Gurgaon to the effect that he has “carefully checked the relevant papers and the dimensions of Plot no. 49, Sector 23 – 23 A”, etc. and records in hand the plot no. and dimensions and area, the latter being 318.5 sq. metres. The second part is the printed certificate signed by the petitioner to the effect that he has “taken over the possession of the said plot as per above dimensions, as per Estate Officer Allotment Letter No. 794 dated 20-03-1985.” The same official who wrote the details in the first part of this certificate details also wrote those in the second, again, in hand. After signing the printed certificate (second part) regarding taking over possession of the plot, the petitioner also wrote in his hand, at the bottom of this certificate, “Possession Letter Received (by Hand) on 8 – 11 – 2001” and signed.

 

(vii)      The petitioner also produced before the Learned State Commission photocopies of his letters (a) dated 08.11.2001 to the effect that the area of the plot allotted to him was now shown as 318.5 sq. metres as against the area of 286 sq. metres in the original letter of allotment and seeking the details of the additional amount that he was required to pay as a result of the excess area; (b) dated 13.11.2001 enclosing a draft for Rs. 15,025/- towards the additional cost of the plot because of higher area (with details of calculation); (c) dated 04.10.2002 with reference to the possession certificate dated 10.10.2001, again pointing out that what was given on 08.11.2001 was only paper possession but physical possession of the plot had still not been given, requesting that physical possession be given after ground demarcation of the plot and also protesting against the levy of fine/interest, etc., despite physical possession not having been given; (d) dated 10.11.2002 reiterating the same points regarding physical possession of the plot. requesting waiver of the penalty and interest on the additional cost for the extra area and seeking two years time from 08.11.2001 for completion of construction of the house on the plot; (e) 13.11.2002 protesting against levy of interest of Rs. 900/- because of miscalculation by the Accounts Department of HUDA as he had obtained a “no dues” certificate from HUDA as long back as on 03.12.1996, levy of interest with retrospective effect on the cost of the extra area as he had paid the due sum within three days of the paper possession certificate and requesting a (misconceived) correction in the dimensions of the extra area: (f) dated 20.02.2003 again raising the same grievance of physical possession of the plot still not being given.

 

(viii)     It was at this stage (on 25.02.2003) that the petitioner filed a complaint against HUDA with the Learned District Forum, Gurgaon. The operative part of the Learned District Forum’s order dated 16.09.2003 was as under:

 

            “So far as the extension amount is concerned, this Forum is unable to pass any order as the possession was offered to the complainant in the year 2001. So, it was the obligation on the part of the complainant to take over possession. So, he is also liable to pay the extension fee.

 

In these circumstances, the respondent is directed to deliver the physical possession to the complainant without any further delay after receipt of copy of this order. Further the respondent shall not charge the cost of excess area. No costs. File be consigned.”

 

(ix)       It is not necessary to go into the Learned District Forum’s order dated 02.07.2004 on the review application of the complainant seeking clarification on the date with effect from which he was required to pay the extension fee. The Learned District Forum was not empowered to subsequently review/clarify its own order under the relevant provision of the Consumer Protection Act, 1986. However, the order dated 02.07.2004 is significant, if anything, to only highlight the confusion that the first part of the Learned District Forum’s own order dated 16.09.2003 had created about the date of effect of the extension fee.

 

6(i)      We have been constrained to discuss in detail the facts / contentions, as ascertainable form the documents filed before the Learned State Commission during HUDA’s appeal against the above-mentioned order of the Learned District Forum. This is because the Learned State Commission’s recording of the facts / contentions is not entirely complete (nor is it so in the Learned District Forum’s judgment and order). For reasons which would be clear in a short while, we are also constrained to reproduce large parts of the Learned State Commission’s analysis and findings and to sub-divide and mark the relevant parts of the judgment / order in order to facilitate our task.

 

(ii)        In the impugned order, the Learned State Commission has observed as under:

 

“(a) In terms of clause 7 of the allotment letter, the possession of the site was offered to him on completion of the development work in the area.

“(b) The complainant had also agreed to pay the enhanced price of the land awarded by the competent authority under Land Acquisition Act and the additional price determined was liable to be paid within 30 days from the demand made from the complainant.

 

“(c) Clause 18 of the allotment letter further requires the complainant to complete the construction over the plot within two years from the date of offer of possession after getting the plan of the proposed building approved from the competent authority in accordance with the regulations governing the erection for building.

 

“(d) It is the case of the opposite parties that the possession of the plot in question was made to the complainant on 29.12.1995.

 

“(e) Notice bearing memo No. 3738 dated 19.08.1992 was served upon the complainant whereby the complainant was asked to deposit Rs.66,055.20 towards the additional price of the allotted plot bearing No. 49 measuring 286 sq. metres, within 15 days from the receipt of the copy of the letter. The complainant instead of making the deposit addressed letter dated 12.06.1990 to the Estate Officer, HUDA, sought information with regard to the award of the judgment of the court by which the compensation for acquisition of the land had been determined. The complainant had sent the amount of Rs. 20,000/- as per bank draft under protest towards the adjustment of the enhanced price of the land with a request to furnish the details sought by him earlier. Thereafter, he enclosed another demand draft of Rs.25,000/- as per letter dated 25.12.1991 addressed to the opposite party No. 2. The complainant sent to the opposite party No. 2 another sum of Rs.2,815/- by demand draft, towards the additional price in terms of the notice received. He also paid the interest amount of Rs.3,554/- on the additional price of the land and Rs.700/- as per letter dated 16.11.1996 intimated to the opposite parties earlier.

 

“(f) The complainant has taken the possession of the plot in question on 10.10.2001. The possession certificate shows that he had taken the possession of 318.5 sq. metres. The complainant had deposited Rs.15,204.54 towards the enhanced cost of the plot of additional area with the opposite parties as per bank draft dated 12.11.2001.

 

“(g) The grievance of the complainant that he was delivered paper possession of the plot on 10.10.2001 cannot be accepted because his signature appeared on the letter. In addition he has also appended note that the possession letter was received by him on 08.11.2001. It is not understandable why he signed on the certificate and appended a note if factually he had not received the possession of the plot. Rather in his letter dated 08.11.2001 addressed to the Estate Officer he has admitted that he had been handed over the paper possession of the plot with the dimensions mentioned in its letter. He also admitted that he had been given additional area of 32.5 sq. metres more than the lay out plan and for that reason he had requested the opposite parties to intimate him about the extra cost involved.

 

“(h) These documents totally nullify the stand taken by the complainant in this regard. Therefore, from the date of the taking over the possession of the plot, the complainant was duty bound to carry out the construction in terms of the regulation 10 of the Haryana Urban Development Authority (Execution of Building) Regulations, 1979.

 

“(i) In his letter dated 06.10.2004 he again approached the opposite parties to grant him two years time for completion of the construction of the house. It is not the case of the complainant that the plot in question was under un-authorized occupation of any person or it was under litigation with the result that the possession of the plot could not have been delivered to him. Manifestly, the plot was lying vacant and on the date when he was issued the possession certificate, it is to be taken that he had taken the possession of the plot in question from the opposite parties otherwise there was no reason or justification for him to sign the possession certificate.

 

            “(j) The District Forum has not taken into consideration this factual position on record in the impugned order and for that reason direction of the District Forum to the appellant to deliver the physical possession of the plot to the complainant, as such, cannot be sustained. Admittedly, the construction has not been carried out by the appellant within the stipulated period and for that reason his liability to the extension fee so demanded by the opposite parties has to be upheld.

 

            “(k) The District Forum has already upheld the stand of the opposite parties with regard to the payment of the enhanced price of the land on account of land compensation. In view of the position explained, the impugned order, as such, cannot be sustained.

 

            “(l) For the aforesaid reasons while accepting the appeal, the impugned order is set aside and the complaint is accordingly dismissed.”

 

7(i)      The documents filed by HUDA in the appeal proceedings included application for condonation of delay of 46 days in filing the appeal, affidavit of the Estate Officer in support of the said application, application for stay of the order of the District Forum, affidavit of the Estate Officer in support of the second application grounds of appeal and copy of the written statement of the Estate Officer, HUDA before the Learned District Forum opposing the complaint, apart from the statutorily required copies of the impugned order of the Learned District Forum and the original complaint. Not a single document, original or photocopy, was filed by HUDA before the Learned State Commission in support of any of its crucial claims in the appeal, like the letter of possession dated 29.12.1995 claimed to have been sent to the complainant/petitioner; acknowledgement of receipt of the said offer of possession by the petitioner, the notice no. 3738 dated 19.08.1992 claiming to have asked the petitioner to pay Rs. 66,055.20 towards additional cost of the plot on account of enhancement of the compensation for the acquired lands by the competent court, subsequent notices levying non-construction/extension fee/fine; and demand notice for payment of interest with retrospective effect on the additional cost of the plot on account of court-enhanced compensation. The copy of the possession certificate dated 10.10.2001 was also not filed by HUDA – it was, in fact one of the documents that the respondent-petitioner filed before the Learned State Commission.

 

(ii)        While the respondent/petitioner filed a detailed counter affidavit and also copies of as many as 19 documents, there was no counter filed by HUDA either denying or clarifying any of the points in the respondent’s counter or commenting on the documents filed by him.

 

8          Now, we need to address the findings of the Learned State Commission:

 

(i)         First, with reference to para. 6 (ii) (a), what the Learned State Commission observes is based on clause 7 of the original allotment letter. Nowhere did HUDA aver that the development works had been completed before making the offer of possession of the plot no. 49 to the allottee. On the other hand, in his letter dated 30.07.2001 the petitioner clearly stated that proper development work had not been undertaken and even plots had not been demarcated for ground verification and taking over physical possession. That the plot had not been demarcated was contended in some more of the petitioner’s subsequent letters detailed in para. 5 (vi) above.

 

 

(ii)        Secondly, apropos observation of the Learned State Commission reproduced in para. 6 (ii) (b), once again, there is no evidence that the petitioner agreed to pay the extra cost on account of enhancement of the cost of compensation per court award. In fact, the petitioner’s first objection was to HUDA not giving him a copy of the said court award and the details of arriving at the extra amount on that score for which he wrote the letter dated 12.06.1990. It was not unnatural for an allottee of a plot to question the basis of the extra cost on account of enhanced compensation, particularly if the extra cost turned out to be nearly 98 per cent of the initial tentative price – in fact, for the cogent reasons stated in his aforesaid letter he had every right to demand a clarification from the Estate Officer, HUDA and the latter was duty-bound to furnish the same, even on principles of natural justice. Once again, therefore, this finding was not based on the records and was probably inspired by complete acceptance of clause 9 of the allotment letter. In fact, at the first two stages when the petitioner paid most of the amount demanded, he recorded his protest unambiguously and repeatedly sought the details from HUDA. That HUDA also allowed its payment in instalments (instead of lump sum payment within 30 days, as stipulated in the original letter of allotment) is clear, for all the relevant letters of the petitioner also referred to the unjust action of levying interest @ 15 per cent per annum on these instalments as against interest @ 10 per cent per annum for the instalments of the initial price, with effect from the date of offer of possession. In fact, the observations of the Learned State Commission reproduced in para. 6 (ii) (e) summarise the actions of the petitioner in response to this notice in some detail but without recording, even in passing, his reasons for asking clarifications or his payments under protest.

 

(iii)       Thirdly, as noted in para. 6 (ii) (d) above, the Learned State Commission records the “case of the opposite parties”, i.e., HUDA, regarding its claim of issuing the letter dated 29.12.1995 offering possession. Yet, despite the clear and repeated denial of the petitioner that any such letter offering possession of the plot was received by him, there is no finding on the validity of this claim. All that was required to arrive at the factual position was very simple - to direct HUDA to produce a copy of this notice/letter and acknowledgement of its receipt by the petitioner or proof of its service on the latter during the appeal proceedings, which remained pending from January 2005 to April 2006 due to adjournments for various reasons, not all very convincing.

 

(iv)       The most important observations of the Learned State Commission are those reproduced in para. 6 (ii) (g), (h) and (i).

 

            In rejecting the contention of the petitioner that what he received from HUDA under the certificate dated 10.10.2001 (claimed by the petitioner to have been delivered by hand on 08.11.2001), holds it against the petitioner that he signed the certificate and yet appended a note. The Learned State Commission goes on to observe that if the petitioner did not receive possession of the plot he should simply not have signed the certificate. This would show a bit of naiveté, if it may be so described, on the part of the Learned State Commission. Given the background of prolonged correspondence between the petitioner and the Estate Officer, HUDA ever since December 1991 on offer of possession, it should have been clear as to what the consequences could have been for the hapless petitioner if he had not signed the said possession certificate. He did, in our considered opinion, the only sensible thing that was possible for him to do – in addition to signing the “possession certificate” on the proverbial dotted lines, he appended a note in his own hand, “Possession Letter Received (by Hand) on 8 – 11 – 2001” and signed this note too. He did not state “physical possession” or “paper possession”; he merely recorded the factum of “receipt of the possession letter by hand”. In the ordinary sense, the term “possession letter” would mean just that – a letter of possession, recorded on a piece of paper – which would in ordinary parlance be also termed as “paper possession”.

 

            Semantics need not, however, detain us here from recognising the fact that the same day, 08.11.2001, he wrote a hand-written letter to the Estate Officer that what he had been given was “paper possession” of the plot of land not “physical possession”. It does not need much insight to see the validity of the distinction – one could be given a piece of paper signifying possession of a plot of land, without being taken to (or visiting) the site where the said plot was physically situated, with full demarcation of the boundaries of the plot for its identification on the ground and verifying its dimensions. Why physical possession is necessary is also clear. An allottee could be sent, by an all-powerful “public” (???) authority dispensing land, a letter offering possession of a plot of land with the condition that he must complete construction on the plot so offered within two years of the date of receipt of the offer or face penal consequences, including resumption of the plot of land and forfeiture of the moneys deposited, if the construction was not completed within the stipulated two years. Yet, the allottee may never get to see whether the said plot at all existed on the ground. One needs to also remember that for even commencing construction on the said plot of land, leave alone completing it, the allottee must get the plan of construction approved by the same “public” authority (read, its functionaries in the Estate Office) which (who) can, with complete impunity, reject the plan for one reason or the other or simply delay approval of the plan of construction without any limit. That this situation is not hypothetical is borne out by the facts of this case itself where, despite so many requests for handing over physical possession, in person and by letters, the allottee/petitioner was unable to secure physical possession since the omnipotent Junior Engineer did not find it convenient to remain present on any of these occasions.

 

            The Learned State Commission finds it ‘unacceptable” that the allottee did not receive possession of the plot allotted to him, having “admitted” to receiving paper possession in his own letter of 08.11.2001. The Learned State Commission, however, steers clear of the need to distinguish between a written offer of possession of the plot of land and handing over its physical possession (in the context of the possibility of an allottee having to commence and complete construction within a stipulated period) and does not refer to any of the letters of the petitioner other than that of 08.11.2001 before holding, “These documents totally nullify the stand taken by the complainant in this regard. Therefore, from the date of the taking over the possession of the plot, the complainant was duty bound to carry out the construction in terms of the regulation 10 of the Haryana Urban Development Authority (Execution of Building) Regulations, 1979.”

 

            The Learned State Commission also refers to the petitioner’s letter of 06.10.2004 where the petitioner sought time of two years from 08.11.2001 for completion of construction, in support of the finding on the petitioner receiving possession of the plot on 08.11.2001. It is unimportant that there was no letter dated 06.10.2004 of the petitioner in the records before the Learned State Commission – the relevant letter was actually of 10.11.2002. In this letter, the petitioner not only requested the Estate Officer, HUDA to give him time of two years from 08.11.2001 for completing construction on his plot but also added, “Physical possession request may please be considered which would enable me to plan layout / get the construction plan approved.” This latter part finds no mention in the observations of the Learned State Commission in the context of its holding, “These documents totally nullify the stand taken by the complainant in this regard.” We regret to observe that such findings simply frustrate the basic object and purpose of the Act under which the Learned State Commission is constituted and is enabled to function.

 

(v)        The Learned State Commission finally holds:

 

            “The District Forum has not taken into consideration this factual position on record in the impugned order and for that reason direction of the District Forum to the appellant to deliver the physical possession of the plot to the complainant, as such, cannot be sustained. Admittedly, the construction has not been carried out by the appellant within the stipulated period and for that reason his liability to the extension fee so demanded by the opposite parties has to be upheld.

 

“The District Forum has already upheld the stand of the opposite parties with regard to the payment of the enhanced price of the land on account of land compensation. In view of the position explained, the impugned order, as such, cannot be sustained.

 

            “For the aforesaid reasons while accepting the appeal, the impugned order is set aside and the complaint is accordingly dismissed.”

 

(vi)       The question that arises is: “Where does this order of the Learned State Commission leave the petitioner / respondent / complainant or, for that matter, the appellant, HUDA?” The prayer to the Learned State Commission in HUDA’s appeal was to set aside the order dated 16.09.2003 of the Learned District Forum and the Learned State Commission passing any order or direction that the “Hon’ble Commission may deem fit” to be granted to the appellants. Is it then to be inferred from the Learned State Commission’s order that the petitioner was not to be given physical possession of the plot or that he had already received the physical possession of the plot from HUDA on 08.11.2001 and was expected to commence construction forthwith and complete it within two years with effect from the date of the order of the Learned State Commission (it could not have been two years from the date of possession, viz., 08.11.2001 because the date of the order was 24.07.2006)? How much money was he supposed to pay to HUDA towards extension fee and till which date from 08.11.2001? By which date was the petitioner to deposit the extension fee to HUDA? When was HUDA to then give approve the construction plan so that the petitioner could complete construction, and would the petitioner have to pay extension fee till he actually completed construction? Was there any stipulation for HUDA to approve the petitioner’s building plan within a time limit? And many more questions on these lines. HUDA was, in effect, left with almost unfettered freedom to claim and charge as much as it thought fit by way of extension fee and allow construction to commence at its will – this would be the straightforward interpretation of this order. Inscrutable like the pronouncements of the (Greek) Oracle of Delphi as the order may seem, some of the answers to the resultant consequences have to be found from the proceedings relating to the revision petition before us.

 

9          This revision petition filed by the original complainant seeks setting aside the order of the Learned State Commission on several grounds. The petitioner has also filed copies of several documents that were already filed in the course of HUDA’s appeal before the Learned State Commission and, in addition, a copy of his letter dated 03.10.2006 to the Estate Officer, HUDA, Gurgaon. This letter shows that the petitioner’s building plan had been approved by HUDA and yet he had to request the Estate Officer to “authorise the Junior Engineer concerned to demarcate the plot on site and hand over the physical possession so that construction work could be undertaken at the earliest.”

 

10        In his petition, the revisionist has stated, inter alia, “... only after the said illegal and arbitrary demands of extension fee and penal interest amounting to Rs. 1,67,582/- was paid by the petitioner under protest on 8.9.2006 due to the indifferent and uncooperative attitude of the respondents, the respondents approved the site plan recently on 29.9.2006 and also handed over physical possession to the petitioner on 11th October 2006.” The petitioner has also averred in his revision petition that the respondents coerced the petitioner to deposit the arbitrary extension fee and penal interest w.e.f. year 1995.

 

11        in the proceedings before this Commission, the learned counsel for HUDA officers (respondents) appeared five times. However, no reply / rejoinder / pleading / written statement was ever filed by them. None of the contentions of the petitioner was thus controverted by the respondents nor was any controverting document ever filed. Even during the final arguments, the learned counsel for the respondents did not find it advisable to make much of a submission.

 

FINDINGS

 

12(i)    In the absence of any document to show that HUDA had indeed sent an offer of possession of the plot to the petitioner under its memo purportedly dated 29.12.1995, there does not appear to be any valid reason for HUDA to charge “extension fee” from that date. Similarly, in the absence of physical demarcation of the plot on the ground till as late as 03.10.2006 (as contended, without challenge, by the petitioner before us) it was simply not possible for the petitioner to even attempt to commence construction, leave alone completing it within two years of the date of “paper” possession on 08.11.2001. It is, in fact, a bit surprising how (according to the petitioner) HUDA found it feasible to approve the petitioner’s site plan (or, building plan?) on 29.09.2006 in the absence of demarcation of the plot – a position which has been, however, not even attempted to be controverted by HUDA before us. We also have to accept the petitioner’s contention that the physical possession of the plot was actually handed over to him on 11.10.2006 – once again, for the reason that HUDA has simply nothing to say in support of or against this contention. We have to similarly hold that the petitioner was made to pay, without justification, extension fee and interest of Rs. 1,67,582/- in all. Neither the rates of the extension fee and the interest nor the details of calculation are before us, particularly the principal amounts and the dates with effect from which these were levied. It is too late in the day to direct HUDA to furnish the details, particularly in view of HUDA’s complete silence over the contentions of the petitioner in this revision petition. Silence of HUDA on each of these issues is eloquent.

 

(ii)        In view of this, we hold that it was not permissible for HUDA, given the facts and circumstances of the case, to fasten on the allottee / petitioner any liability on account of extension (or, non-construction) fee and interest at whatever rate and from whichever date on the amount payable and paid by the allottee on account of additional cost of the plot resulting from enhancement of compensation for land acquisition by court and / or the amount representing the cost of the extra area of 32.5 square metres the plot. The latter amount was paid in full by the petitioner well within a week of his coming to know that the area of the plot was larger than that mentioned in the allotment letter of 1985. No interest

can thus be payable on this amount. There could have been a case for HUDA to charge interest because the petitioner considerably delayed the payment of instalments of the additional cost on account of enhancement of the cost of acquisition. However, as repeatedly pointed out by the petitioner, the rate of this interest and the date of commencement of its levy could not be, on grounds of equity and fairness, any different from those applicable to the instalments of the initial tentative price, under clause 6 of the allotment letter. Applying the principle enunciated in clause 6, the date of levy of interest on the instalments of this amount would have had to be reckoned from the date of offer of possession of the plot which, in this case, has to be taken as 08.11.2001. Well before that date the petitioner had paid all the dues demanded and also obtained a “no dues” certificate from the Estate Office, Gurgaon. Hence this demand can also not be sustained.

 

13        At this point, we also deem it necessary to discuss some of the terms and conditions in the letter of allotment that has come to our notice. In paragraph 5 (i) above, we have already alluded to the broad content of some of these conditions. Without hesitation, we observe that many conditions in the letter of allotment, as applicable to an allottee in this case, manifestly violate the principles of natural justice, the legal rights of consumers under the Consumer Protection Act, 1986 (the ‘Act’) and the spirit of the Right to Information Act, 2005 – all significant and inviolable principles / statutes for a public authority to adopt and comply with in conducting its affairs with the citizens of the State / country who come to it to avail of its services flowing from statutorily mandated functions. It is possible (in fact, we sincerely hope) that all these conditions have since been reviewed and suitably rectified and modernised – if so, that would be welcome. If not, HUDA would be well advised to urgently review some of the more glaringly objectionable conditions: clauses 7, 9, 10, 11, 13, 18, 24 and 25 come to mind, as examples. A quick look would show how each of these clauses casts an inequitable burden on the citizen / allottee, without any corresponding liability on HUDA to disclose adequate information, ensure service of all its communication to the allottee and discharge all responsibilities that devolve on HUDA well in time so that the allottee, in turn, could comply, within the time prescribed, with the requirements expected of him. Several examples of the inequity can be cited. But on the whole, the overarching feature of all these clauses is that none places any reasonable restrictions on the wide range of discretionary (and, hence prone-to-abuse) powers of the authority’s junior functionaries in dealing with such cases. The clauses which are prima facie most contentious relate mainly to (i) the rates and other details of calculation of the levies and charges payable by an allottee, (ii) the definition of what would constitute a set of minimum acceptable standards of development works before a plot of land could be considered ready for offer of possession, (iii) the procedure and time limits for delivery of physical possession, (iv) the basis of reckoning the start date of penal levies and charges, (v) the procedure and time limits for service of important communication on the allottee as well as by him, (vi) the procedure and time frame for submission and sanction of building plans, etc. In other words, what is necessary is an easy-to-understand list of the respective rights and obligations of the allottee and the authority. It is also necessary to spell these out in the letter of allotment instead of only the scheme booklets or the official websites. This is so because people would tend to read their allotment letters more closely than any general information. With these observations, we would leave it to the collective wisdom and experience of the governing / policy-making body of HUDA to review these clauses dispassionately and take appropriate remedial measures - after noting that it is rather easy in this age of information technology to research and ascertain the “good practices” (national as well as international) in such matters and adopt them after changes that suit the local realities.

14        Before parting, we would also like to observe that the officials of HUDA or their learned counsel in this case do not appear to have been aware, even in May 2004 when they filed their appeal before the Learned State Commission, of the order of the Apex Court in the case of Lucknow Development Authority versus M. K. Gupta, [(1994) 1 SCC 243], a landmark order in the true sense of the term. This order of the Apex Court laid down the law of the land on, inter alia, the question whether provision of housing (including plotted land for housing) by public authorities (or, private builders) to the people amounted to “service” under the Act. The officials of HUDA and such other bodies in the State of Haryana (and, elsewhere) as well as their local learned counsel would be well advised to go carefully through this order before raising “preliminary objections” on grounds of jurisdiction of the Consumer Fora in matters relating to housing provided by public authorities. Most important, this order of the Apex Court would help them appreciate the full range of legal implications of their duties and responsibilities in the field of their statutorily mandated activities and the principles of administrative law governing the implementation of the schemes by their officers and the numerous junior functionaries that they engage and pay – who, particularly the latter, unfortunately even now continue to harass the citizens endlessly.

 

15        In conclusion, we set aside the order dated 24.07.2006 of the Learned State Commission and direct HUDA to carefully work out and refund (through its Estate Officer, Gurgaon) to the petitioner the entire amount charged to and paid by the latter (a retired officer of the Indian Army and a senior citizen now) towards (i) extension fee / non-construction charges for the alleged delay in completion of construction on the land allotted him, (ii) interest charged on the amount of additional cost of the plot on account of enhancement of compensation by the court for initial acquisition of the lands and (iii) cost of the extra land (32.5 sq. metres). This should be completed before or by 31.07.2008 and a compliance report, along with receipt signed by the petitioner, shall be filed by HUDA before the Registrar of this Commission by 11.08.2008 to the latter to verify compliance. HUDA shall also pay by 31.07.2008 a sum of Rs. 25,000/- (Rupees twenty five thousand only) directly to the petitioner by demand draft, as costs, and file a similar compliance report, along with receipt signed by the petitioner, before the Registrar on or before 11.08.2008. The Registrar, in turn, shall report the status of compliance by the parties through an office report, by 18.08.2008. We also hope that there will be no occasion for us to take an adverse view for non-compliance.

 

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[R. C. JAIN, J]

PRESIDING MEMBER

 

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[ANUPAM DASGUPTA]

MEMBER