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    IN THE SUPREME COURT OF INDIA     

 CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.9691 OF 2011          (Arising out of SLP(C)No.33789 OF 2010)           

HARYANA URBAN DEVELOPMENT AUTHORITY       .......APPELLANT  

VERSUS

VIRESH SANGWAN & ANR                          ......RESPONDENTS  

J U D G M E N T

Whether  the  appellant  -  Haryana  Urban  Development  

Authority (HUDA) is obliged to ensure that no encroachment is  

made on the plot allotted by it after possession thereof has  

been delivered to the allottee is the question, which arises  

for consideration in this appeal filed against the order of the  

National  Consumer  Disputes  Redressal  Commission  (for  short,  

'the National Commission') whereby the revision filed by the  

appellant  was  dismissed  and  the  orders  passed  by  the  State  

Consumer Dispute Redressal Commission, Haryana (for short, 'the  

State  Commission')  and  District  Consumer  Disputes  Redressal  

Forum, Gurgaon (for short, 'District Forum') were approved.

Plot No. 478 (measuring 335.50 square meters), Sector  

12-A was allotted by the competent authority of HUDA to Shri  

Champat  Jain  in  January  1986  subject  to  the  terms  and  

conditions specified in allotment letter dated 23.1.1986 issued

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under  Regulation  5  (3)  of  the  Haryana  Urban  Development  

(Disposal of Land and Buildings) Regulations, 1978 (for short,  

'the Regulations').  The possession of the plot was handed over  

to Shri Champat Jain on 27.2.1998 by Shri Om Prakash, Junior  

Engineer, HUDA, Gurgaon. The allottee accepted the possession  

and signed the possession certificate, the relevant portions of  

which are extracted below

“POSSESSION CERTIFICATE

Certified  that  I  Om  Prakash  Junior  Engineer  Office of the Estate Officer, Gurgaon have carefully  check the relevant paper and the Dimension of plot  no. 478 sector 12-A Urban Estate Gurgaon and the size  of  the  plot  allotted  to  Shri  Champat  Jain  s/o___________________ is given as under:-

1. Length of the plot 22.0 m

2.Breadth of the plot 17.0+13.50 - 15.25 m                              2

3. Area 335.50 sq.m.

4. Rear set Back As per demarcation plan

5. Front set Back

Accordingly, on the basis of above details the  possession of the plot has been given to the said  allottee/Authorised person.

  Sd/-

Junior Engineer  

For Estate Officer  

HUDA, Gurgaon.

I Champat Jain s/o Sh. J.C Jain the above named  allottee of the Urban Estate, Gurgaon have taken the  possession of the said plot as per above dimension,  as  allotted  to  me  vide  Estate  Officer  Allotment  letter No. 1309 dated 23.01.1986.

As per the provision of Regulation 10 of the  HUDA  (Erection  of  Building)  Regulations,  1979,  I  hereby note that I will give at least one week's  notice  to  the  Estate  Officer  before  actually

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commencing the erection of the building on the said  site.  

Memo No. 1477  

Dated 27.02.1998

Name & signature of allottee”    

After some time, Shri Champat Jain sold the plot to  

Devender Yadav and Narender Yadav (both sons of Karan Singh)  

and revised allotment letter dated 17.11.1999 was issued in  

their names.  After 6 years and 2 months, conveyance deed  

dated  18.1.2006  was  executed  between  HUDA  acting  through  

Estate  Officer,  Gurgaon  and  the  transferees  as  per  the  

requirement of Regulation 20 of the Regulations.   

Within a week of the execution of conveyance deed,  

the  transferees  sold  the  plot  to  the  respondents  by  

registered sale deed dated 24.1.2006 and re-allotment letter  

dated 3.3.2006 was issued in their favour.

At  the  time  of  execution  of  the  sale  deed,  the  

respondents did not raise any objection about the total area  

of the plot or any encroachment made by the villagers.  Even  

after receiving the re-allotment letter, they did not make a  

grievance  about  the  encroachment  allegedly  made  by  the  

villagers.  However, after 1 year and 3 months, they filed a  

petition  under  Section  12  of  the  Consumer  Protection  Act,  

1986 for issue of a direction to HUDA to allot alternative  

plot  to  them  by  asserting  that  there  was  deficiency  in  

service inasmuch as the actual area of the plot re-allotted

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to them was less than 335.50 square meters and there was  

encroachment on the plot.  In support of their plea, the  

respondents  relied  upon  report  dated  20.4.2007  allegedly  

prepared by the Junior Engineer of HUDA.   

In the reply filed on behalf of the appellant, the  

respondents' assertion about fresh demarcation of the plot by  

the Junior Engineer was disputed and it was  denied that  

gates of two houses of inhabitants of the village were found  

in the area of the plot and chabutra and chhajja had been  

constructed over the plot.  It was also denied that the plot  

was  being  used  as  passage  and  the  Junior  Engineer  had  

expressed his inability to get the encroachments removed.

By an order dated 19.11.2009, the District Forum  

allowed  the  petition  of  the  respondents  and  directed  the  

appellant to allot them alternative plot of the same size in  

the same sector or in an adjoining sector.  For coming to the  

conclusion that the plot re-allotted to the respondents had  

been encroached, the District Forum relied upon report dated  

20.4.2007 of the Junior Engineer.  This is evinced from the  

following portion of order dated 19.11.2009:

“A  perusal  of  case  file  shows  that  re-allotment  letter bearing no. 1280 dated 03.03.2006 regarding  plot  no.  478,  Sector  12-A  measuring  335.50  Sq.  Mtrs. was issued in favour of the complainants. A  perusal of report dated 20.04.2007 given by Junior  Engineer shows that he has gone to the plot No.478,  Sector  12-A  for  demarcation.  After  giving  demarcation  it  was  found  that  the  doors  of  the  houses of the villages were opened in the plot no.  478 Sector 12-A, Gurgaon and Chabutra and Chajje

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also existed there. The owners of those houses were  creating obstruction in the demarcation of the plot  no. 478 as there was no way going the their houses.  Previously, a rasta of the village existed at that  place.  

In  view  of  the  above  said  report  given  by  the  junior engineer of the opposite parties, we hold  that there was deficiency in service on part of the  opposite parties. The complainants are entitled to  an alternate plot of the same size in the same  sector i.e. Sector 12-A or in a sector adjoining  Sector 12-A on the same rates. The present order is  ordered to be complied with within one month from  the  date  of  passing  of  this  order.  File  be  consigned  to  the  records  after  making  due  compliance.”

The State Commission dismissed the appeal by simply  

repeating the observations made by the District Forum that as  

per the report of the Junior Engineer, there was encroachment  

on the plot allotted to the respondents.

The  National  Commission  negatived  the  appellant's  

challenge to the order of the State Commission and dismissed  

the revision filed by the appellant.

We have heard Ms. Anubha Agarwal, learned counsel for  

the appellant and Mr. Gagan Gupta, learned counsel for the  

respondents and carefully scrutinized the record.   

In our view, the finding recorded by the District  

Forum that there was deficiency in service on the appellant's  

part is ex facie erroneous and the Sate Commission and the  

National Commission committed serious error by confirming the  

direction  given  by  the  District  Forum  for  allotment  of  

alternative plot to the respondents.  Unfortunately, none of

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the consumer forums adverted to the fact that possession of the  

plot was delivered to the original allottee Shri Champat Jain  

on  27.2.1998  free  from  all  encumbrances  and  there  is  no  

provision in the Haryana Urban Development Authority Act, 1977  

and  the  Regulations  for  redelivery  of  possession  to  the  

transferees.  One  can  easily  visualise  that  after  taking  

possession of the plot allotted to him, Shri Champat Jain did  

not take steps to protect the same and by taking advantage of  

his absence at the site, the people from the neighbouring areas  

may  have  opened  their  doors  towards  the  plot  or  made  some  

encroachment.  However, the appellant cannot be blamed for the  

encroachment, if any, made after possession of the plot was  

delivered to the original allottee.  The respondents must have  

executed the sale deed after inspecting the site.  If there was  

any encroachment or the area of the plot was less than the one  

specified in the allotment/re-allotment letter, they would have  

immediately lodged a protest with the vendor.  However, the  

fact of the matter is that the respondents did not raise any  

objection  in  this  regard  and  by  taking  shelter  of  a  

manipulative report prepared by the Junior Engineer, they filed  

complaint and succeeded in convincing the District Forum to  

ordain allotment of an alternative plot.

In our considered opinion, the appellant cannot be  

held  responsible  for  the  encroachment,  if  any,  made  after  

possession of the plot had been delivered to Shri Champat Jain

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and neither Devender Yadav and Narender Yadav, who purchased  

the  plot  from  Shri  Champat  Jain  nor  the  respondents  could  

possibly accuse the appellant of deficiency in service in the  

matter of allotment of plot on the ground that some people had  

made encroachment on it.

In the result, the appeal is allowed, the impugned  

order as also orders passed by the District Forum and the Sate  

Commission  are  set  aside  and  the  complaint  filed  by  the  

respondents is dismissed.  The parties are left to bear their  

own costs.   

              ...........................J.          (G.S.SINGHVI)  

...........................J.         (SUDHANSU JYOTI  

MUKHOPADHAYA)  NEW DELHI; NOVEMBER 8, 2011.

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