Development Authority Vs. Viresh Sangwan & ANR
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 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
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:-
of the plot 22.0 m
of the plot 17.0+13.50 - 15.25 m 2
set Back As per demarcation plan
Accordingly, on the
basis of above details the possession of the plot has been given to the said allottee/Authorised
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
commencing the erection of the building on the said site.
Memo No. 1477
& 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 4to 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 5 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
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
6the 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
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
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 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.
(SUDHANSU JYOTI MUKHOPADHAYA)