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Saturday, February 6, 2016

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:- | Year |HUDA Rate (per sq. yard) | |2001 |Rs.2718/-including enhanced compensation. | |2005 |Rs. 2718/- including enhanced compensation. | 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.

                                                                  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:-

|    Year   |HUDA Rate (per sq. yard)                           |
|2001       |Rs.2718/-including enhanced compensation.          |
|2005       |Rs. 2718/- including enhanced compensation.        |


      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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