PARDEEP SHARMAversusCHIEF ADMINISTRATOR HARYANA URBAN DEV. AUTHORITY & ANR

                             (2016] I S.C.R. 586



A                          PARDEEP SHARMA
                                      v.
          CHIEF ADMINISTRATOR HARYANA URBAN DEV.
                     AUTHORITY & ANR.

B                     (Civil Appeal Nos. 52-53 of2016)
                            JANUARY 07, 2016
            [T.S. THAKUR, CJI. AND R. BANUMATHI, J.)
           Consumer Protection Act, 1986 - Allotment of plot - Non-
    delivery of possession of plot to appellant on account of failure to
c   deposit the balance amount - Complaint by appellant before the
    District Forum seeking possession of plot from respondent-
    Development Authority - During pendency, complainant accepted
    the refund of the amount deposited by him towards price of the plot
    - However, said fact not brought to the notice of District Forum -
D   Direction by District Forum to respondent to re-allot the same plot
    to complainant on the same price - Appeal by respondent - During
    pendency of the appeal, execution petition by complainant allowed
    and in compliance thereof physical possession of the plot handed
    over to the complainant - State Commission allowed the appeal
    holding that the complainant cannot claim the possession of the
E
    plot allotted to him since it had accepted the refund amount of 10%
    after voluntarily surrendering the plot and as such the complainant
    was no longer a consumer - Said order upheld by National
    Commission - Review application also dismissed - On appeal, held:
    Since the appellant had deposited the then cost of the plot way
F   back in 2009 and other facts and circumstances and in the interest
    ofjustice, issuance of direction to respondents to permit the appellant
    to retain the plot subject to the condition that the appellant would
    pay the cost of plot at Rs.10,5001- per sq. mtr. after adjusting the
    amount already deposited by him - During the pendency of the
    matter before the State Commission, Estate Officer in pursuance of
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    the order passed in Execution Petitiori and by a letter regularized
    the allotment of the plot and handed over the possession to the
    appellant - Issuance of direction to respondent-Authority to proceed
    against the delinquent officials/officers responsible for the lapses
    in accordance with law.
H
                                     586
  PARDEEP SHARMA v. CHIEF ADMINISTRATOR, HUDA                               587



     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 52-53                  A
of2016.
       From the Judgment and Order dated 19.07.2011 and 29.09.2011
of the National Consumer Disputes Redressal Commission, New Delhi
in Revision Petition No. 671 of201 land Review Application No. 142/
2011 in Revision Petition No. 671 of201 I respectively.                     B
      S. R. Singh, Vibhut Sushant Gupta, Dr. Kailash Chand, for the
Appellant.
     Samar Vijay Singh, Dr. Monika Gusain, Manoj Sheoran, P. D.
Sharma for the Respondents.
                                                                            c
      The Judgment of the Court was delivered by
      R. BANUMATHI, J, I. 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          D
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
                                                                             E
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. I 048
in Sector 64, Faridabad measuring 250 sq. yds. vide Memo No. 399
                                                                             F
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 of75% 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              G
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.
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588            SUPREME COURT REPORTS                         [2016] I S.C.R.


A     Alleging that there was deficiency on the part of HUDA for not delivering
      th,e 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
B
      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
      wais 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-
c     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
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       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
 E    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 Farum observing that the respondent/complainant cannot
      claim any relief with respect to the plot voluntarily surrendered by him
 F    and the District Forum erred in accepting the complaint. The State
      Commission further held that the complainant having accepted the refund
      amount of I 0% 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.
 G    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
 H    in not taking into consideration that the appellant has already deposited
   PARDEEP SHARMA v. CHIEF ADMINISTRATOR, HUDA                               589
                [R. BANUMATHI, J.]

the total of sale consideration and that he obtained DPC completion          A
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
                                                                             B
directing re:arfotment 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
                                                                             c
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.                             D
      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 E
respondent-authority in pur.suance 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 F
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 ref~if'
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.
                                                                             G
      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     H
590      SUPREME COURT REPORTS                          [2016) 1 S.C.R.


A     in appeal, the Estate Officer of the respondent-Authority had by
      letter dated l 5'h 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
B
      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 7'h October, 2009 and a "no
c     encumbrance certificate" issued on 9'h August, 2013 while the
      matter was pending before the State Commission. Building plan
      for the proposed construction was sanctioned on 21" 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
D
      by the District Consumer Forum on 2"' December, 2010. Even
      so the respondent-HUDA issued a DPC Certificate on 20''
      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.
 E    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
 F    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,
 G    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
 H
   PARDEEP SHARMA v. CHIEF ADMINISTRATOR, HUDA                                  591
                [R. BANUMATHI, J.]

       certificate and sanction of the building plans for the construction      A
       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."
                                                                                B
        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, HUD Ahas filed its response on 19.11.2015
indicating the names of the officials responsible for lapses in this case       c
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.
        I 0. 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       D
sum ofRs.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          E
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 9ompleted.
       11. Considering the facts and circumstances of the case and that
the appellant has put up substantial construction, we direCted the               F
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:-
                                                                                G
       "(!) 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.
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592                SUPREME COURT REPORTS                        [2016] I S.C.R.


A            (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/-
B                   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.
c            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
D            year 2014-15 is Rs. I 0500/- 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
 E    prevailing HUDA rate i.e. Rs. I 0,500/- 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
 F    i.e. Rs. I 0,500/- 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
      cleara11ces as may be required within four weeks thereafter. It is further
      directed that the respondent-authority shall proceed against the delinquent
 G
      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 rio
      order as to costs.
 H    Nidhi Jain                                                   Appeals allowed.