advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, October 28, 2016

in Pradeep Sharma vs. Chief Administrator, Haryana Urban Dev. Authority & Anr. in Civil Appeal Nos.52- 53 of 2016 in almost identical circumstances directed the continuance of allotment made in favour of allottee subject to his paying the prevalent HUDA rate for the plot of land upon which he had constructed a house in Sector 64 of Faridabad in almost similar circumstances and in connivance with HUDA officials. It is true that the appellant has been a beneficiary of what is and can be said to be a fraudulent allotment yet keeping in view the peculiar facts and circumstances of the case demolition of the house and restoration of the plot to HUDA may at this stage work rather harshly for him/them. The proper course, therefore, is to allow the allotment to continue subject to the appellant depositing the prevalent price of the plot at the rate of Rs.18,000/- per square meter as indicated above.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOS. 10418-10419 OF 2016
             (Arising out of S.L.P (C) Nos.30067-30068 of 2013)

Pratap Singh Yadav                           …Appellant

                                   Versus
Haryana Urban Development
Authority & Anr.                             …Respondents


                               J U D G M E N T
T.S. THAKUR, CJI.

1.    Leave granted.

2.    These appeals call in question the correctness of  orders  dated  25th
September, 2012 and 26th November, 2012  passed  by  the  National  Consumer
Disputes  Redressal  Commission,  New  Delhi  (for  short,   “the   National
Commission”) whereby the Commission has dismissed Revision  Petition  No.186
of 2011 and Review Application No.191  of  2012  in  the  process  affirming
order dated  4th  October,  2010  passed  by  the  State  Consumer  Disputes
Redressal Commission, Haryana  (for  short,  “the  State  Commission”).  The
State Commission had in turn  while setting aside the order  passed  by  the
District  Forum  declared  that  since   the   appellant   had   voluntarily
surrendered the disputed plot of land and accepted  the  refund  amount,  he
had ceased to be a consumer. He was not, therefore,  entitled  to  file  any
complaint and that the claim was time barred, hence not maintainable.

3.    The facts giving rise to the proceedings may be summarized  as  under:

Residential Plot No.2342 situate in Sector II, HUDA, Faridabad was  allotted
in favour  of  the  appellant  in  terms  of  allotment  letter  dated  18th
November, 1998.  The appellant had pursuant to the said allotment  deposited
25% of the tentative price of the  plot  in  installments  within  the  time
stipulated by the allotment letter.  On  receipt  of  a  letter  dated  30th
October, 2000 from the respondent-Haryana Urban Development  Authority  (for
short, “the HUDA”),  the  appellant  appeared  before  the  Estate  Officer,
Faridabad on 13th November, 2000 and filed an application for  surrender  of
the plot and the allotment n his favour.  That application  was  allowed  by
the Estate Officer and  after  deducting  10%  of  the  earnest  money,  the
balance amount deposited by the appellant was refunded to him  by  a  cheque
dated 1st December, 2000, which was received and encashed by  the  appellant
without protest.  A consumer complaint, all  the  same,  was  filed  by  the
appellant before District Consumer Forum, Faridabad, in which the  appellant
prayed for a direction against the respondent for restoration  of  the  plot
in question or for allotment of an alternative plot of similar size  at  the
same price besides compensation of  Rs.2,00,000/-  for  the  harassment  and
mental agony suffered by him.  By an order dated  26th  October,  2005,  the
District Forum allowed the complaint filed by  the  appellant  and  directed
the respondent-HUDA not only to pay interest at the rate of  12%  per  annum
on the deposit made by the appellant from the date of the deposit  till  the
amount was refunded but also to deliver the possession of the  plot  to  the
appellant.  The  District  Forum  further  ordered  payment  of  a  sum   of
Rs.50,000/- to the appellant towards compensation for the mental  agony  and
harassment caused to him.   Litigation  expenses  of  Rs.5,000/-  were  also
awarded in favour of the appellant by the District Forum.
Aggrieved by the order passed by the District  Forum,  the  respondent  HUDA
preferred  an  appeal  before  the  State   Consumers   Disputes   Redressal
Commission which appeal was allowed by the State  Commission  by  its  order
dated 4th October, 2010.  The  State  Commission  while  setting  aside  the
order passed by the District Forum and dismissing the  compliant  held  that
the appellant was  not  a  consumer  within  the  meaning  of  the  Consumer
Protection Act, 1986  (for  short,  “the  Act”)  since  he  had  voluntarily
surrendered the plot in question.  It was further held  that  the  complaint
filed by the appellant was  beyond  the  period  of  limitation  prescribed,
hence, liable to be dismissed on that ground also.

      Aggrieved by the order passed by the State Commission,  the  appellant
filed Revision Petition No.186 of 2011 before the National  Commission.  The
National Commission has, as noticed earlier,  dismissed  the  said  revision
and affirmed the order passed by the State  Commission.  Review  Application
No.191 of 2012 filed by  the  appellant  also  having  failed,  the  present
special  leave  petition  seeks  to  assail  orders  passed  by  the   State
Commission and the National Commission.

4.    We have heard learned counsel for  the  parties  at  some  length  and
perused the orders under challenge. When the matter earlier came  up  before
us for hearing on 13th September, 2013, our attention was drawn  by  learned
counsel for the appellant to a Conveyance  Deed  dated  9th  January,  2008,
whereby the disputed plot was transferred  to  him  pursuant  to  the  order
passed by the District Forum. Our attention was also  drawn  to  a  Sanction
Order dated 22nd July, 2008  passed  by  the  Estate  Officer  of  the  HUDA
whereby building plans submitted by the appellant for construction over  the
disputed plot were sanctioned. Occupation certificate  was  also  placed  on
record besides a no due certificate issued by the  Estate  Officer  on  15th
March, 2009. It  was,  on  the  basis  of  the  above  mentioned  subsequent
developments, argued on behalf of the appellant  that  since  the  appellant
had already constructed a house over the plot in question which  is  evident
from the photographs of the buildings filed by  him,  the  appeal  could  be
allowed and disposed off.  We had, taking note of  the  above  developments,
issued a direction to the Chief Administrator, HUDA to  hold  a  preliminary
fact finding inquiry as to how a Conveyance Deed in relation to the plot  in
question could have been executed in favour of the appellant even  when  the
order passed by the District Consumer  Forum  was  not  only  challenged  in
appeal  before  the  State  Commission  but  had  been  set  aside  by   the
Commission.  The  sanction  of  the  building  plans  culminating   in   the
construction of a building over the plot  in  question  without  any  formal
order of allotment was also found surprising by this Court  especially  when
HUDA was, on the one hand, challenging the entitlement of the  appellant  to
secure the allotment of the plot and  sanctioning  the  building  plans  and
transferring the title in the plot to the  appellant,  on  the  other.   The
operative portion of our  order  dated  13th  September,  2013  was  in  the
following words:

“We accordingly direct  the   Chief   Administrator,    HUDA   to    hold  a
preliminary  fact finding inquiry into  the  above  aspects   and  submit  a
report  to  this  court  setting  out  the  circumstances   in   which   the
developments referred to above have  taken  place  while the matter was  sub
judice before  the  State   Commission   and   the     National  Commission.
Those responsible  for  granting  permission and  executing  the  conveyance
deed  in  respect  of  the  plot  in          question without a proper  and
formal order of allotment in  favour   of the petitioner   shall   also   be
identified.     Pending    further    orders    from    this    Court    the
demolition/dispossession of the petitioner from the plot in  question  shall
remain stayed.  The   report of the Chief  Administrator  shall  reach  this
Court within three months.”


5.    Pursuant to the above direction an enquiry has been conducted by  HUDA
and a Report dated 16th December, 2013 relating to the same  filed  in  this
Court along with an affidavit sworn in by the Estate Officer,  HUDA.   On  a
perusal of the Report it appears that HUDA has found Smt. Sushma Gulati  and
Shri Bihari Lal, Assistant  and  Shri  Jai  Bhagwan,  Deputy  Superintendent
responsible for dereliction of their duties. The report suggests that  these
officers have failed to bring the full facts of the case to  the  notice  of
the then  Estate  Officer.  The  Report  further  suggests  that  Shri  J.S.
Ahlawat,  Administrator,  Faridabad  was  responsible  for   approving   the
allotment of the plot pursuant  to  the  execution  petition  filed  against
HUDA. This appears to  have  been  done  on  the  advice  of  Shri  Harkesh,
Assistant  District  Attorney  and  Shri  Mahinder  Singh  Kaushik,   Deputy
District  Attorney.  The  report  also   holds   several   other   officials
responsible for lapses in the matter of granting approval for the  allotment
of plot, execution of Conveyance Deed, approval of the  building  plans  and
issue of full occupation certificate. Suffice it  to  say  that  the  entire
process leading to the allotment of the plot, execution of conveyance  deed,
approval of building plan, issue of full occupation certification  has  been
vitiated by reason of complicity of the officials working in  the  HUDA  and
named in the Report.

6.    Two issues arise for consideration in the above  backdrop.  The  first
concerns the action which ought to be taken against the  officials  of  HUDA
found responsible for the mischief while the second relates to the  approach
that needs to be  adopted  with  regard  to  the  allotment  and  subsequent
construction of the house by the beneficiary of  the  mischief.  As  regards
the complicity of officials of HUDA in the entire process,  the  preliminary
report submitted to this court by the Chief Administrator,  HUDA  leaves  no
room for taking a lenient view either by HUDA or  by  this  Court.  HUDA  is
bound to take proper disciplinary action  against  those  found  responsible
and to suitably punish them in accordance with law.  To  that  extent  there
is no difficulty in issuing a direction, which we do hereby issue.

7.    Coming to the second aspect we had by  our  order  dated  29th  April,
2016 directed HUDA to file an affidavit indicating  the  prevalent  rate  of
land in Sector II, Faridabad for the period 2015-16 of plots of the size  of
235 sq. meter. HUDA  has  accordingly  filed  an  affidavit  by  the  Estate
Officer stating  that  the  rate  for  allotment  for  land  in  Sector  II,
Faridabad for the period 2015-16  is  Rs.18,000/-  per  sq.  meter.  It  was
contended on behalf of the petitioners, who happen to be the legal heirs  of
the deceased allotee that  this  Court  has  in  Pradeep  Sharma  vs.  Chief
Administrator, Haryana Urban Dev. Authority & Anr. in Civil  Appeal  Nos.52-
53 of 2016 in almost identical circumstances  directed  the  continuance  of
allotment made in favour of allottee subject to  his  paying  the  prevalent
HUDA rate for the plot of land upon which he  had  constructed  a  house  in
Sector 64 of Faridabad in almost similar  circumstances  and  in  connivance
with HUDA  officials.  A  reading  of  the  said  order  does  support  that
submission. That too was a case  where  the  complainant  had  received  the
refund of the amount deposited by  him  and  then  approached  the  District
Forum for restoration of his allotment. The District Forum  had  as  in  the
present case ordered restoration of the allotment to the  complainant  after
adjustment. While an appeal was pending before  the  State  Commission,  the
complainant had in that  case  filed  an  execution  petition  and  got  the
allotment restored  along  with  the  possession  of  the  plot.  The  State
Commission had subsequently set aside  the  order  passed  by  the  District
Forum and dismissed the complaint but the complainant had  in  the  meantime
constructed a building over the plot in question. It was in that  background
that  we  had,  as  in  the  present  case  directed  an  enquiry  into  the
circumstances in which the allotment  of  the  plot  and  other  steps  like
sanction of the building plans and  no  encumbrance  certificate  and  other
certificates were issued to  the  complainant.   The  HUDA  had  accordingly
conducted an enquiry as is the position in the instant case also  and  found
that some of the officials had  been  responsible  for  conniving  with  the
complainant in that case.  This Court had taking into consideration all  the
circumstances and especially the  fact  that  the  complainant  had  already
constructed a house over the plot in question directed the  appellant  would
retain the same on his  depositing  the  prevailing  cost  of  the  plot  in
dispute after adjusting the amount already deposited. We have no  reason  to
deny similar relief to the appellant in the instant case also.  It  is  true
that the appellant has been a beneficiary of what is and can be said  to  be
a  fraudulent  allotment  yet  keeping  in  view  the  peculiar  facts   and
circumstances of the case demolition of the house  and  restoration  of  the
plot to HUDA may at this stage work rather harshly for him/them. The  proper
course, therefore, is to allow the allotment  to  continue  subject  to  the
appellant depositing the  prevalent  price  of  the  plot  at  the  rate  of
Rs.18,000/- per square meter as indicated above.

8.    We accordingly allow these appeals but only in part and to the  extent
indicated above and set aside the order passed by  the  National  Commission
and the State Commission with the direction that subject  to  the  appellant
depositing the price of the plot at  the  rate  of  Rs.18,000/-  per  square
meters within a period of six months  from  today  the  appellant  shall  be
permitted to retain the plot. In case the needful is  not  done  within  the
time allowed,  this  appeal  shall  stand  dismissed  and  order  passed  by
National Commission and the State Commission affirmed.  In  any  such  event
HUDA shall be free to dispossess the appellant from the property and  resume
the possession of the plot  along  with  the  superstructure,  in  case  the
superstructure is not removed by the appellants within the time  granted  by
HUDA for that purpose.

9.    Ordered accordingly.  No costs.




                                                         ...............CJI.
                                                               (T.S. THAKUR)



                                                         .................J.
                                                                (U.U. LALIT)
New Delhi
October 28, 2016

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.