NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Manish Vashishth and Anr. – Appellants
versus
HUDA and Anr. – Respondents
Miscellaneous Application No.239 of 2020 in RP/2046/2011
Decided on 12.7.2021

IMPORTANT POINTS
(1) Revision Petition can be re-instated if it has been withdrawn in exchange of an offer of settlement.
(2) Mere possession on paper does not translate into actual possession.
(3) A court-mandated allotment cannot be cancelled in perpetuity just because mandated land had been allotted

Headnote:

(A) Consumer Protection Act, 1986 – Section 21(b)(Consumer Protection Act, 2019 - Section 58) – Revision Petition - Against the Order of State Commission in 2011, but then withdrew the petition in 2013 for seeking alternate dispute resolution with respondent – Petition was withdrawn due to offer of settlement by respondent – Right to cancel withdrawal and approach appropriate forum exists – NCDRC allowed Revision Petition. (Paras 1, 6, 7 & 15)

(B) Indian Constitution - Article 226 – Writ Petition – Petitioner Claimant filed writ petition before Punjab and Haryana HC for allotment of alternate plot – HC ruled in favour of claimant – Respondent did not follow the order providing contrasting ruling of State Commission as a reason and allotted the land to another person – Complainant withdrew Writ petition to approach NCDRC.

Held: Now, the Petitioners/Complainants have filed Miscellaneous Application No. 239 of 2020 before this Commission on the following grounds:-

(i) Petition was withdrawn on the submission of the Respondents that Petitioners can approach to them for settlement by means of allotment of an alternative plot. Further, the order of withdrawal kept open the right of the Petitioner to approach this Forum or any other appropriate forum;

(ii) In an identical case, two plots of smaller sizes had been allotted to a similarly situated Petitioner herein in lieu of originally allotted plot, which is at par with the policy guidelines of HUDA (now HSVP) dated 25.06.2004, 06.01.2010 and 18.02.2013 which authorizes the Competent Authorities to allow for exchange of plots by way of alternative allotment of another plot or plots. In some other case also, the HUDA, vide order dated 17.06.2010, had allotted an alternative plot being No. 102 in Sector 31, Faridabad in lieu of originally allotted plot No. 613 in Sector 21 B in compliance of the order of the District Forum and the said plot was in the same vicinity as the plot No.619 allotted to the Complainants. Only because of there being no development and encroachment in the entire block, the HUDA was constrained to allot alternative plot to the Allottee of Plot No.613, Sector 21B, Faridabad;

(iii) Only formal letter of possession was issued before execution of conveyance deed in their favour and no physical possession was ever handed over to the Petitioners with any basic amenity. The plot was not fit for construction;

(iv) The Complainants had approached the Hon’ble High Court of Punjab and Haryana by filing a Writ Petition being CWP No. 23151 of 2013, wherein, vide order, dated 22.10.2013, Respondents were directed to decide the representation of the Petitioners for allotment of alternate plot or plots, within three months;

(v) In terms of the Order, dated 22.10.13, passed by the Hon’ble High Court of Punjab and Haryana, the Complainants were allotted the alternative plot No. 99, Sector 31 Faridabad, vide Memo NO. 9579/EO dated 22.09.2015 in lieu of the original allotment;

(vi) As, the Respondents/HUDA did not hand over the physical possession of the alternative plot, the Petitioners had to initiate Contempt Proceedings against the Respondents, however, the Respondents had always relied upon the order passed by the State Commission against which the Petitioners had preferred the Revision Petition which was only withdrawn in view of a possibility of an amicable settlement, as assured by the Respondents;

(vii) The Estate Officer, HUDA, Faridabad, subsequently, vide order dated 02.12.2016 cancelled the alternative allotment of plot in view of the order passed by the State Commission;

(viii) Again, Writ Petition being CWP No. 4779 of 2017 was filed before the Hon’ble High Court wherein the Respondents/HUDA submitted that the representation of the Complainants for allotment of alternative plot as prayed for in the Writ Petition, is being duly considered. However, under RTI, the Complainants came to know that the alternative plot allotted to them was re-allotted to another person;

(ix) Nevertheless, the Petitioners again made another representation dated 10.10.2019 to the HUDA for allotment of two smaller vacant plots NO.350 and 352 admeasuring 250 sq. yards each in Sector 31, Faridabad as alternative plots in lieu of the originally allotted plot admeasuring 500 sq. yards;

(x) The Complainants withdrew the CWP No. 9601/2020 filed before the Hon’ble High Court with liberty to move before this Hon’ble Commission. The Hon’ble High Court of Panjab & Haryana had granted liberty to the Petitioner to reach this Commission and since the cause of action is continuing, the Petitioners are before this Commission by way of the present Miscellaneous Application, praying as under:

(a) Allow the application and direct the Respondents to make allotment of alternative plot or plots which are defect free, preferably vacant/unallotted Plot No. 350 and Plot No. 352 both in Sector-31, Faridabad, Haryana each of 250 square yards in lieu of the defective plot allotted to the applicant;

(b) Direct the Respondent to not to create any third party interest on the said existing vacant/unallotted Plot No. 350 and Plot No. 352 both in Sector-31, Faridabad, Haryana each of 250 square yards until the disposal of the application; and

(c) Allow the Revision Petition No. 2046/2011 in the light of the prayer (a) and set aside the Judgment and Order dated 17.01.2011 passed in Appeal No. 1418/2005 by the State Commission Haryana and affirm the Judgment and Order dated 06.06.2005 passed by the District Forum in Complaint no. 200 of 2005 with such modifications as deemed fit and appropriate;

The Complainants approached the Hon’ble High Court of Punjab and Haryana by filing CWP No. 23151 of 2013 wherein, vide Order, dated 22.10.2013, the Respondents/HUDA was directed to decide the representation of the Complainants for allotment of an alternative plot in lieu of originally allotted plot. In compliance of the said Order of the Hon’ble High Court, the Estate Officer, HUDA, Faridabad allotted alternative plot No. 99, Sector 31, Faridabad to the Complainants vide Memo No. 9579/EO dated 22.09.2015. The relevant portion of the said letter is reproduced below as under:-

“This order shall dispose of the representations made by Shri Manish Vashisth through his GPA, Sh. Nitin Kumar son of Sh. Om Prakash, R/O 2359-C, Sushant Lok, Gurgaon, in the light of the directions given by the Hon’ble High Court of Punjab and Haryana at Chandigarh while disposing the CWP No. 23151 of 2013.

That the applicant was given notice for hearing on dated 08.09.2015 who appeared before me and brought my attention towards the per Annexure P-8 and P-9 vide which the applicant has requested to exchange the plot No.619, Sector 21B, Faridabad and to allot the alternative plot No.93 or 99 in Sector 31, Faridabad.

The request for allotment of alternative plot no.93 or 99 in Sector 31, Faridabad was taken into consideration and it was revealed from the records that Plot No.93, Sector 31, Faridabad has already been allotted to someone else, so in the present circumstance HUDA can offer the allotment of Plot No.99, Sector 31, Faridabad to the Applicant which is vacant and available for the allotment and ready for possession.

In the present circumstances, HUDA, Faridabad has no issue or objections, if the Plot No.99, Sector 31, Faridabad is allotted to the Applicant as per his representations made vide Annexure P-8 and P-9 and the directions given by the Hon’ble High Court of Punjab and Haryana at Chandigarh while deciding the CWP No.23151 can be easily disposed and satisfied.”

A bare perusal of the afore-extracted letter dated 22.09.2015, would reveal that despite there being no specific direction from the Hon’ble High Court of Punjab and Haryana to the HUDA to allot any alternative plot to the Complainant and more particularly, the Order dated 17.01.2011 passed by the State Commission allowing their appeal and dismissing the Complaint of the Complainant, the Estate Officer, HUDA has considered the representation of the Complainants to allot an alternative plot and accordingly allotted Plot No. 99, Sector 31, Faridabad to the Complainants without any objection. However, by a speaking order dated 02.12.2016, the Estate Officer, HUDA, Faridabad rejected the said alternative allotment on the ground that as per the report of SDE (Survey) dated 01.12.2016 plot No.619, Sector 21B, Faridabad is not disputed and clear at site and allottees of the adjoining plots have already obtained completion certificates. It is shocking and surprising when the allotted plot was not in dispute and clear why the representation of the Complainants to allot an alternative plot was accepted by the Estate Officer, HUDA, especially in view of the fact that there was only a direction from the Hon’ble High Court to decide the representations of the Complainants. If the allotted plot was not in dispute, the HUDA was at liberty to reject the representations made by Mr. Nitin Kumar, General Power of Attorney of the Complainants. Apart from this, in terms of its exchange policy as referred to by the Complainants, the HUDA has allotted alternative plots to the similarly placed Complainants in terms of the orders passed by the District Forum in execution proceedings. Vide Memo No. 10412 dated 17.06.2010, the HUDA, in compliance of the order dated 5.5.10 passed by the District Forum, had allotted alternative Plot No. 102, Sector 31, Faridabad to the Allottee in place of Plot No. 613, Sector 21B, Faridabad where the plot is question is also located. As per the policy of the HUDA dated 25.06.2004, 06.01.2010 and 18.02.2013 (Annexure A-2 of the M.A.No. 239 of 2020), an alternative plot can be given in lieu of originally allotted plot if possession could not given due to litigation pending in the court; where the plot is not actually available on the ground as per layout plan, where the dimension of plot are not uniform, the dimension of front/rear of the two sides of the plots differ atleast by 20% and the actual area of the plot is increased or decreased more than 20% of allotted area. In the present case also though the paper possession was given on 15.10.1979 but the actual physical possession was never handed over to the Complainants and, therefore, they filed the Complaint before the District Forum and even approached the Hon’ble High Court of Punjab and Haryana. Since, the matter regarding handing over the possession the allotted plot was under litigation before the Consumer Fora and Hon’ble High Court of Punjab and Haryana, the HUDA cannot deny the allotment of alternative plot to the Complainants which they did vide Memo No. 9579/EO dated 22.09.2015. (Paras 7, 13 and 14)

(C) Consumer Protection Act, 1986 – Section 19 (Consumer Protection Act, 2019 – Section 24) - Appeal – Petitioner purchased land from descendent of original allottee vide sale deed for a transfer recognized by respondent – Original allottee allotted plot by Respondent Housing Authority in 1973, inherited by her descendent on her death – Descendent sold plot to complainant - Possession ltr. given in 1974 but actual possession never delivered, no basic amenities, property became a dumping ground – Petitioner filed before Distt. Forum which in 2005 Ordered for allotment of alternate plot – Respondent challenged the order in State Forum – State Forum put onus of verifying possession on petitioner – Petitioner cited identical case in which 2 plots of land were allotted in lieu of original piece of land – Petitioner cited identical case in which alternate land was granted – National Commission ruled that since actual possession was not given despite possession letter being issued to the earliest allottee and since provision of alternate land is valid even in respondent’s bye-laws, petitioner should be granted new alternate land as land sanctioned by HC has already been allotted to another person. (Paras 1, 4, 5, 6, 7 & 14)

Result: Petition allowed, withdrawal order for revision petition recalled and interim application of respondent dismissed.