PARDEEP SHARMA Vs. CHIEF ADMN.,HARYANA URBAN DEVL.AUTH.&ANR

Tags Consumer

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 52-53 of 2016, Judgment Date: Jan 07, 2016

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 52-53 OF 2016
(Arising out of SLP (Civil) Nos.5567-5568 of 2012)

PARDEEP SHARMA ..Appellant

Versus

CHIEF ADMINISTRATOR
HARYANA URBAN DEV. AUTHORITY & ANR. ..Respondents

J U D G M E N T

R. BANUMATHI, J.

Leave granted.
2. These appeals are filed assailing the orders dated 19.07.2011
and 29.09.2011 passed by the National Consumer Disputes Redressal
Commission, New Delhi (for short ‘National Commission’) dismissing the
Revision Petition No.671/2011 and also the Review Application No.142/2011,
thereby confirming the order dated 02.12.2010 passed by the State Consumer
Disputes Redressal Commission, Haryana (for short ‘State Commission’)
whereby it was observed that the appellant-complainant having accepted the
refund amount of 10% and was no longer a consumer and has no locus standi
to seek possession of the plot allotted to him.
3. Brief facts which led to the filing of these appeals are as
follows:- The appellant/complainant was allotted a plot bearing No.1048 in
Sector 64, Faridabad measuring 250 sq. yds. vide Memo No. 399 dated
01.01.2001 at the rate of Rs.1,865/- per sq. yd. The appellant along with
the application form had deposited 10% as earnest money and 15% of the sale
consideration was deposited on 22.01.2001. Balance amount of 75% of the
total cost was to be deposited by the appellant in six yearly equal
instalments with 15% interest per annum to Haryana Urban Development
Authority (for short ‘HUDA’). HUDA issued the demand notice to the
appellant calling upon him to pay a sum of Rs.59,782.50 vide Memo No.38698
dated 04.10.2002 on account of enhancement of the cost of the plot, which
as per the terms of allotment they have right to do so. The appellant has
failed to deposit the said amount and hence the possession of the plot was
not delivered to him. Alleging that there was deficiency on the part of
HUDA for not delivering the possession, the appellant filed a complaint
before the District Consumer Disputes Redressal Forum, Faridabad (for short
‘District Forum’) praying for issuance of direction to HUDA to hand over
the possession of the plot by adjusting the amount already deposited.
During the pendency of the said complaint before the District Forum, the
amount deposited by the appellant towards price of the plot was refunded to
and accepted by the appellant. The fact that the appellant had taken
refund was however not brought to the notice of the District Forum which
passed the award on 19.12.2005. The District Forum vide Order dated
19.12.2005 allowed the complaint and directed the respondents to re-allot
the same plot to the appellant on the same price and hand over the
possession of the same to him. The District Forum ordered that the amount
already paid by the appellant to be adjusted against price of the plot now
to be allotted to the appellant as per the order. Additionally,
respondents were also directed to pay Rs.50,000/- on account of mental
agony, harassment and damages and also Rs.5,000/- on account of litigation
expenses.
4. Aggrieved by the said order, HUDA filed appeal bearing
No.708/2006 before the State Commission. When the appeal was pending
before the State Commission, the appellant filed execution petition and in
compliance of the order dated 02.09.2009 by the District Forum in Execution
Petition No.504 dated 12.05.2006, physical possession was handed over to
the appellant. The State Commission vide order dated 02.12.2010 allowed the
appeal and thereby set aside the award passed by the District Forum
observing that the respondent/complainant cannot claim any relief with
respect to the plot voluntarily surrendered by him and the District Forum
erred in accepting the complaint. The State Commission further held that
the complainant having accepted the refund amount of 10% after surrendering
the plot, the respondent/complainant was no longer a consumer. As against
the order passed by the State Commission, appellant preferred revision
before the National Commission and the same was dismissed by the impugned
order dated 19.07.2011. The review application No.142/2011 filed by the
appellant also came to be dismissed by another order dated 29.09.2011,
which is also now under challenge.
5. Mr. S.R. Singh, learned Senior Counsel for the appellant
submitted that the State Commission and the National Commission erred in
not taking into consideration that the appellant has already deposited the
total of sale consideration and that he obtained DPC completion certificate
after construction as per the sanctioned building plan. It was submitted
that the action of HUDA for cancellation of the allotment of the plot and
refund of the amount deposited by the appellant was without providing any
reasonable opportunity of hearing to the appellant which was totally
arbitrary and that the District Forum rightly passed the award directing re-
allotment of the plot at the same rate and the State Commission and
National Commission ought not to have interfered with the same.
6. Learned counsel for the respondents submitted that in
compliance of the order dated 02.09.2009 passed by the District Forum in
Execution Petition No. 504 dated 12.05.2006, physical possession of the
plot was handed over to the appellant. Learned counsel for the respondents
further submitted that having accepted refund of the amount, the appellant
was no longer a consumer and cannot seek for allotment of plot and the
State Commission and the National Commission rightly reversed the award
passed by the District Forum.
7. We have carefully considered the rival submissions advanced by
both the parties and perused the impugned orders and material on record.
8. As noticed above that even while the matter was pending before
the State Commission in appeal, the Estate Officer of the respondent-
authority in pursuance of the order passed by the District Forum in
Execution Petition No.504 and by letter dated 15.04.2008 regularized the
allotment of the plot and handed over the possession thereof to the
appellant. Possession was actually delivered to the appellant on
07.10.2009. Taking note of these facts, by order dated 01.11.2013, this
Court has directed the respondent-authority to hold an inquiry and identify
the person(s) responsible for issuing orders/certificates like
regularization, delivery of possession etc. We may usefully refer to the
relevant part of the order dated 01.11.2013 which reads as under:-
“We have heard learned counsel for the parties at some length. In the
ordinary course, we would have, in the light of the affidavit filed by the
respondent-Authority, disposed of the matter with a suitable direction
regarding payment of the extension of fee by the petitioner. What
dissuades us from doing so is the fact that consequent upon the order
passed by the District Consumer Forum and while the matter was still
pending before the State Commission in appeal, the Estate Officer of the
respondent-Authority had by letter dated 15th April, 2008 regularised the
allotment of the plot and offered the possession thereof to the petitioner.
This order, it appears, was passed either in ignorance of the fact that
the HUDA had challenged the order passed by the District Consumer Forum or
in deliberate suppression of the same. In the ordinary course if HUDA had
assailed the order passed by the District Consumer Forum, there was no
question of the Estate Officer going ahead with regularization of the
allotment or delivering possession of the plot-in-question. Not only that
we find that the possession was actually delivered to the petitioner on 7th
October, 2009 and a “no encumbrance certificate” issued on 9th August, 2013
while the matter was pending before the State Commission. Building plan
for the proposed construction was sanctioned on 21st September, 2010. All
this happened while the proceedings before the State Commission were
pending to which respondent-HUDA was a party. The State Commission
eventually set aside the order passed by the District Consumer Forum on 2nd
December, 2010. Even so the respondent-HUDA issued a DPC Certificate on
20th December, 2010, no matter the order passed by the District Consumer
Forum directing regularised/re-allotment and possession had already been
set aside by the State Commission.

We are told by learned counsel for the petitioner that construction over
the plot-in-question has since been completed. We however fail to
appreciate how despite orders passed by the State Commission and that
passed by the National Commission, the petitioner was granted a
regularisation certificate, given possession of the plot, issued a “no
encumbrance certificate”, granted a DPC certificate and given sanction for
the construction of the proposed building. It is obvious that utter
confusion and lack of communication prevails within HUDA for one section
does not appear to be knowing what the other section is doing which does
not speak well about the working of the Authority. At any rate, before we
pass any further direction in the matter we deem it just and proper to
direct that the Chief Administrator, HUDA, shall hold an inquiry into the
circumstances in which the developments, mentioned above, have taken place
and also identify the persons responsible for issuing orders and
certificates like regularisation, delivery of possession, “no encumbrance
certificate”, DPC certificate and sanction of the building plans for the
construction of the proposed building, despite the orders passed by the
State Commission and that passed by the National Commission. The inquiry
shall be expedited and a report to this Court submitted as early as
possible but not later than four months from the date of receipt of a copy
of this order.”

9. Inspite of the above order, there was delay in conducting
inquiry and also taking action against the officials of the HUDA
responsible for dereliction of duties. By order dated 17.11.2015, this
Court has directed the Chief Administrator, HUDA to be present in the Court
and also to file the response. Thereafter, HUDA has filed its response on
19.11.2015 indicating the names of the officials responsible for lapses
in this case and also the status of action taken and we are of the view
that the action taken against erring officials are to be taken to their
logical conclusion.
10. On behalf of the appellant, it was submitted that the appellant
is a retired government official and that before obtaining no dues
certificates from the respondent-authority, the appellant has deposited a
sum of Rs.6,79,557/- and that after obtaining actual physical possession,
the appellant has spent his hard earned money and also substantial part of
his retiral benefits in putting up the construction and that the appellant
be permitted to retain the plot and the building constructed over the plot
in question. It was also submitted that by so permitting the appellant to
retain the plot, HUDA may not loose in any manner. To substantiate the
contention that the appellant has put up the construction, photographs were
also filed by the appellant which shows that only finishing work is to be
completed.
11. Considering the facts and circumstances of the case and that
the appellant has put up substantial construction, we directed the
respondent-authority to file rate of the plot in Sector-64 at various
point of time so as to consider the claim of the appellant to permit him to
retain the plot in question with the construction thereon. Pursuant to the
order dated 19.11.2015, the respondent-authority has filed its affidavit,
relevant part of which is extracted herein below:-
“(1) It is submitted that the present circle rate of Sector-64 in which
the disputed plot is situated is fixed @ Rs. 22,000/- per sq. mtrs. for the
year 2014-15.

(2) That the last allotment in Sector-64, Faridabad was made @ Rs. 6200/-
per sq. mtrs. in the year 2010.

(3) That the current rate and circle rate of Sector-2 & 65, Faridabad
(which are in the vicinity of Sector-64) is as under:-

| Sector |Current HUDA Rate |Circle Rate |
| |(per sq.mtr.) |(per sq.mtr.) |
| 2 |Rs. 15,500/- |Rs. 22,000/- |
| 65 |Rs. 12,000/- |Rs. 22,000/- |

(4) That the year-wise rates of allotment of Sector-64 are as under:-

That the rate for the year 2010 was Rs. 6200/- per sq. mtrs. and
after the year 2010, the rate was not finalized till the year 2014-15,
hence the deponent is not in position to intimate the rate of the year
2011. Moreover it is submitted that the rate of the year 2014-15 is Rs.
10500/- per sq. mtr.”

Considering the fact that the appellant has deposited the then cost of the
plot way back in 2009 and other facts and circumstances and in the interest
of justice, we direct HUDA to permit the appellant to retain the plot
subject to the condition that the appellant pays the cost of plot at the
prevailing HUDA rate i.e. Rs.10,500/- per sq. mtr.
12. The impugned orders passed by the National Commission are set
aside and these appeals are allowed. Respondent-authority/HUDA shall
permit the appellant to retain the plot subject to the appellant’s
depositing the amount at the current HUDA rate of the year 2014-15 i.e.
Rs.10,500/- per sq. mtr. after adjusting the amount already deposited by
the appellant. The appellant shall deposit the said amount within four
months from the date of this judgment and on such deposit, HUDA shall
execute the necessary document and issue no objection certificate and
clearances as may be required within four weeks thereafter. It is further
directed that the respondent-authority shall proceed against the delinquent
officials/officers who are responsible for the lapses in accordance with
law. In so far as action taken in the disciplinary proceedings, the
respondent-authority shall file compliance report before this Court within
nine months. In the facts and circumstances of the case, we make no order
as to costs.

.…………………….CJI.
(T.S.THAKUR)

....…………………….J.
(R. BANUMATHI)

New Delhi;
January 7, 2016

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