Judgment
1. 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 Disputes Redressal Commission, Haryana (for short “the State Commission”) and the District Consumer Disputes Redressal Forum, Gurgaon (for short “the District Forum”) were approved.
2. Plot No. 478 (measuring 335.50 sq m), 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 the 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:
“Possession Certificate
Certified that I, Om Prakash, Junior Engineer, Office of the Estate Officer, Gurgaon have carefully checked 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 —
3. Area — 335.50 sq m
4. Rear setback as per demarcation plan
5. Front setback
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 Shri J.C Jain the abovenamed 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 23-1-1986.
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
Dated: 27-2-1998
Name & signature of the allottee”
3. After some time, Shri Champat Jain sold the plot to Devender Yadav and Narender Yadav (both sons of Karan Singh) and the 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 the 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 reallotment letter dated 3-3-2006 was issued in their favour.
4. 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 reallotment 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 reallotted to them was less than 335.50 sq m and there was encroachment on the plot. In support of their plea, the respondents relied upon the report dated 20-4-2007 allegedly prepared by the Junior Engineer of HUDA.
5. 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.
6. 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 reallotted to the respondents had been encroached, the District Forum relied upon the report dated 20-4-2007 of the Junior Engineer. This is evinced from the following portion of the order dated 19-11-2009:
“A perusal of the case file shows that reallotment letter bearing No. 1280 dated 3-3-2006 regarding Plot No. 478, Sector 12-A measuring 335.50 sq m was issued in favour of the complainants. A perusal of the report dated 20-4-2007 given by the Junior Engineer shows that he had gone to Plot No. 478, Sector 12-A for demarcation. After giving demarcation it was found that the doors of the houses of the villages opened in Plot No. 478, Sector 12-A, Gurgaon and chabutra and chhajja also existed there. The owners of those houses were creating obstruction in the demarcation of Plot No. 478 as there was no way of going to their houses. Previously, a rasta of the village existed at that place.
In view of the abovesaid 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.”
7. 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.
8. We have heard Ms Anubha Agarwal, learned counsel for the appellant and Mr Gagan Gupta, learned counsel for the respondents and carefully scrutinised the record.
9. 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 State 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 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.
10. 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/reallotment 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 the complaint and succeeded in convincing the District Forum to ordain allotment of an alternative plot.
11. 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.
12. In the result, the appeal is allowed, the impugned order as also orders passed by the District Forum and the State Commission are set aside and the complaint filed by the respondents is dismissed. The parties are left to bear their own costs.