Haryana

Ambala

CC/64/2022

Rajbir Singh - Complainant(s)

Versus

The Estate Officer HSVP/HUDA - Opp.Party(s)

Yadvinder Gupta

19 Sep 2023

ORDER

                                                                                                                                                                                                                                                                        BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	64 of 2022
Date of Institution	:	22.02.2022
Date of decision	:	19.09.2023

Rajbir Singh aged about 62 years son of Shri Hukam Chand, resident of House No.337, Sector-9, Part-2, Karnal District Karnal.

          ……. Complainant.

Versus

1. The Estate officer, HSVP/HUDA, Ambala office near Manav Chowk, Sector -9, Ambala City.
2. Chief Administrator, HSVP/HUDA, office at Sector-6, Panchkula District Panchkula.
3. Chairman HSVP/HUDA, office at Sector -6, Panchkula District Panchkula.

….…. Opposite Parties.

 Before:            Smt. Neena Sandhu, President.

                        Smt. Ruby Sharma, Member,

           Shri Vinod Kumar Sharma, Member.           

 

Present:        Shri Yadvinder Gupta, Advocate, counsel for the complainant.

                      Shri Chandeep Bindra, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To withdraw the demand of non construction charges of Rs.30,153/-.
2. To hand over the actual physical possession of plot No.223, Sector-32, Ambala Cantt., to the complainant, free from all encumbrances.

 

2.             Brief facts of this case are that  the complainant purchased plot no. 223, Sector-32, Urban Estate, Ambala Cantt from the original allottee Sohan Singh son of Shri Nathi Ram, resident of Naya Gaon District Panchkula. The complainant completed the necessary formalities in the office of Estate Officer, HUDA, Ambala. Permission for re-allotment was granted to the complainant vide letter bearing no. 11731 dated 16-10-2007. The Estate Officer, HUDA on completion of necessary formalities issued re-allotment letter bearing no. 13365 dated 23-11-2007 to the complainant in respect of the plot in question. The complainant after depositing entire amount approached OP No.1 and requested to deliver the possession of plot in question to him. The OP No.1 failed to deliver the actual and physical possession of the said plot to the complainant. There was delay on the part of official/officer of the OP No.1, as such under the then compelling circumstances, the complainant visited office of Estate Officer, HUDA, Ambala, who disclosed to the complainant that the plot in question has been allotted to some other person. OPs did not serve any notice nor allowed any opportunity of hearing to the complainant before selling the plot to some other person. The complainant made representations dated 18-2-2013, to the OP No.1, to deliver physical possession of aforesaid plot or for allotment of alternative plot in accordance with comprehensive policy relating to the allotment of alternative plot but to no avail.  Resultantly, the complainant was compelled to file a consumer complaint no.385 of 2019 before this Commission, Ambala, which was decided on 2-12-2021. During pendency of the complaint bearing no.385 of 2019, the OP No.1 issued a letter bearing memo no.39 dated 5-1-2021 which reads "It is intimated that the illegal structure has been removed on plot no. 223, sector-32, Ambala Cantt after dismissal order dated 12-10-2020 in CWP no. 2181 of 2017 titled as Kokali Devi Vs State of Haryana, hence it is requested to take the possession of plot no. 223, sector-32, Ambala Cantt from this office.” This Hon'ble Commission in view of letter dated 5-1-2021 issued by Estate Officer, HSVP, Ambala partly allowed complaint and directed the OPs to pay lump sum amount of Rs.1 lac to the complainant within a period of 45 days from the date of receipt of certified copy of the order, failing which they shall pay interest @5% per annum on the awarded amount, from the date of filing of complaint i.e. 18-11-2019 till its realization. The complainant approached the office of OP No.1 on 18-1-2021 and requested to deliver the actual physical possession of plot in question, but  it  demanded non construction charges of Rs.30,153/- from the complainant before delivery of actual physical possession, which was illegal. As such, the complainant moved a representation on the same day i.e. 18-1-2021 requesting the OP No.1  to recall the non construction charges of Rs.30,153/- but when no steps were taken, he was compelled to issue legal notice dated 30-12- 2021 to the OP No.1  to recall the non construction charges of Rs.30,153/- but to no avail. Hence, the present complaint.
3.           Upon notice, OPs appeared and filed written version wherein they raised preliminary objections to the effect that the present complaint is not maintainable, as the complainant has no locus standi or cause of action to file and maintain the present complaint; the present complaint is misuse of process of law; the complaint is not maintainable, as per clause 15 of the Re-allotment letter No. 13365 dated 23.11.2007 firstly all the disputes arising out of the plot in question was to be taken before Arbitrator; this Commission has got no jurisdiction to entertain and try the present complaint; the complainant has not come with clean hands and has suppressed material facts from this Hon'ble court. etc. On merits, while admitting factual matrix of the case, regarding sale of the plot in question to the complainant, in the manner and as per details given in the consumer complaint, it has been stated that  the OPs issued re-allotment to the complainant in year 2007 vide Memo No. 13365 dated 23.11.2007 and after that the offer of possession letter was issued to the complainant in year 2010 in respect of plot in question but the complainant failed to take the physical possession of the above referred plot for three years. Thereafter, one Mrs. Kakoli Dhar wife of Shri Parkash Chand Dhar had filed a CWP No. 2181 of 2017 against State of Haryana & others, in which a status quo order was passed on 22.02.2017 by Hon'ble Punjab and Haryana High Court, Chandigarh regarding the construction on her 7-1/2 marlas land out of Khasra No. 17//2/1 of village Nanhera Tehsil and District Ambala, in which plot in question also existsed. Due to this reason the OPs were are unable to give possession of plot in question to the complainant. The OPs never allotted the plot in question to some other person. The OPs have challenged the order dated 5.02.2021 passed by this Commission in earlier consumer complaint before Hon'ble State Commission, Haryana, Panchkula. The OPs issued letter dated 5.01.2021 to the complainant and as such have rightly demanded the non construction charges from him, as he failed to take the physical possession of the plot in question.  Rest of the averments of the complainant were denied by OPs and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure C-1 to C-7 and closed the evidence on behalf of the complainant.  On the other hand, learned counsel for the OPs tendered affidavit of Darshan Kumar, Estate Officer, HSVP, Ambala as Annexure OP/A alongwith documents as Annexure OP-1 to OP-3 and closed the evidence on behalf of the OPs.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that by levying non construction charges to the tune of Rs.30,153/- for the period i.e. from 23.11.2007 to  2021, the period when possession of the plot in question had not been physically delivered by the OPs themselves and it was ultimately offered vide memo no.39 dated 05.01.2021 only, the OPs are deficient in providing service.
7.           On the contrary, the learned counsel for the OPs while reiterating the objections taken in the written reply submitted that though possession of the plot in question had been offered to the complainant in the year 2010 yet he failed to take over the same. He further submitted that thereafter one Mrs. Kakoli Dhar wife of Shri Parkash Chand Dhar had filed a CWP No. 2181 of 2017 against State of Haryana & others, in which a status quo order was passed on 22.02.2017 by Hon'ble Punjab and Haryana High Court, Chandigarh regarding the construction on her 7-1/2 marlas land out of Khasra No. 17//2/1 of village Nanhera Tehsil & District Ambala, (in which plot in question exists), as a result of which, the OPs were not able to deliver possession of the plot in question to the complainant. He further submitted that thereafter the complainant was requested to take over possession of the plot in question. He further submitted that since there was delay on part of the complainant in taking over possession of the plot in question therefore he is liable to pay non construction fee to the OPs.  
8.           First coming to the objection taken by the OPs  with regard to Arbitration, it may be stated here that this issue has already been set at rest by the larger Bench of the Hon’ble National Commission in Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements/contracts cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and  Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon’ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard also stands rejected.
9.           Now coming to the merits of this case, it is necessary to mention here that earlier also, the complainant had filed consumer complaint bearing no.385 of 2019 before this Commission qua the same plot in question i.e. plot no.223, seeking possession of alternative plot from the OPs and also compensation and litigation expenses, on the ground that the OPs had sold the said plot to a third party. However, during pendency of that complaint, the OPs requested the complainant, vide letter dated 05.01.2021 (Annexure C-1/OP-3) to take over possession of the plot in question. Under these circumstances, the complaint was partly allowed vide order dated 02.12.2021 and the OPs were directed to pay lumpsum compensation to the tune of Rs.1 lac for the inordinate delay in offering possession of the plot in question. There is nothing on record that the OPs have obtained any stay against the order dated 02.12.2021 from the Appellate Court.  Thus, under these peculiar facts and circumstances, it can easily be said that the order of this Commission holding that there was delay on the part of the OPs in offering and delivering possession of the plot in question to the complainant has attained finality.
10.           It is significant to mention here that in the present stage also, the OPs have clearly admitted in the written version in para nos.2, 3 and 4 that they were unable to deliver possession of the plot in question to the complainant because one Mrs. Kakoli Dhar wife of Shri Parkash Chand Dhar had filed a CWP No. 2181 of 2017 against State of Haryana & others, in which a status quo order was passed on 22.02.2017 by Hon'ble Punjab and Haryana High Court, Chandigarh regarding the construction on her 7-1/2 marlas land out of Khasra No. 17//2/1 of village Nanhera Tehsil & District Ambala, in which plot in question existed.  Thus, under these circumstances, when it is still the admitted case of the OPs themselves that they were not in a position to deliver actual physical possession of the plot in question to the complainant because the same had been occupied by a third party by raising illegal structure thereon; the same was under litigation referred to above and it was only  thereafter that the said illegal structure had been removed by the OPs, whereafter, intimation to that effect was given to the complainant vide letter dated 05.01.2021, Annexure C-1/OP-3, as such, in our considered opinion, the OPs  were not entitled to levy non construction charges/fee upon the complainant. It is not the  case of the OPs that despite the fact that clear title of land of the plot was offered to the complainant, yet, he failed to raise construction thereon. In this view of the matter, it is held that the OPs by raising demand of non construction charges/fee in respect of the plot in question from the complainant, which was not free from all encumbrances, as discussed above, are deficient in providing service, thereby causing mental agony and physical harassment to the complainant.
11.           In view of the aforesaid discussion, we hereby allow the present complaint against OPs and direct them, in the following manner:-
    1. To withdraw the demand of non-construction fee/charges and also to deliver possession of the plot in question to the complainant complete in all respects and free from all encumbrances, immediately .
    2. To pay Rs.5,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.3,000/-, as litigation expenses.

The OPs are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

  Announced:- 19.09.2023.