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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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