there was no response from the respondent-HUDA. In this background, he submitted an application on the 14^thof February, 2003 to the Estate Officer, Faridabad, vide which he surrendered the plot and sought refund of his deposited amount. The Estate Officer after deducting 10% of the total consideration refunded the balance amount on the 29^thof April, 2003 and cancelled the allotment. The refunded amount was accepted by the complainant without any protest. However, contending that he had surrendered the plot under compelling circumstances, the petitioner filed a complaint before the District Consumer Forum on 13.12.2005 seeking a direction from the District Consumer Forum to the opposite party-HUDA to deliver the physical possession of the plot in question or allot any other alternate plot in the same sector at the same rate without charging any penalty or interest and also to direct payment of interest @ 18% per annum on the amount already deposited by him and award a compensation of Rs.1.00 Lakh for causing mental tension, agony and harassment etc., besides cost on account of escalation and litigation. The District Consumer Forum vide its order referred to earlier allowed the complaint and granted the reliefs as under :-

"i) The respondents are ordered to allot the same plot i.e. plot no. 2299 sector 2, Urban Estate Faridabad on the similar price to the complainant, if the plot in question is lying vacant an un-allotted so far. In case the aforesaid plot is not found vacant and un-allotted, then allot some other plot to the complainant on the similar price to that of originally allotted plot, as an alternate plot.

ii) The respondents are further ordered in case the area of the plot now to be allotted is found more or less, price of the same be charged similar to that of originally allotted plot.

iii) The respondents are ordered not to charge any kind of interest, penal interest, compound interest, extension fee and penalty from the complainant, uptill the delivery of the physical possession.

iv) The respondents are also ordered to pay interest to the complainant on his deposit @ 12% per annum w.e.f. its deposit till its realization.

v) The respondents are also ordered to adjust the deducted amount towards the price of the plot now to be allotted to the complainant alongwith interest @ 12% per annum, payable from the date on which the amount was deducted till its adjustment.

vi) The respondents are also ordered to pay Rs.50,000/- on account of escalation charges and Rs.50,000/- for mental agony and further Rs.5,000/- for litigation expenses.

The respondents are ordered to comply with the order of the Forum within 30 days after receipt of the present order."

Aggrieved upon the order passed by the District Consumer Forum an appeal was filed by the opposite party-HUDA before the State Commission. The main grounds advanced against the order of the District Consumer Forum were that the complainant having surrendered the plot of his own free will and having accepted the refund of his deposited amount without any protest ceased to be a 'consumer'. A plea of the complaint being barred by limitation was also advanced

2

contending that since the refund had been accepted on 29^thof April, 2003 and a complaint came to be filed before the District Consumer Forum on 13^thof December, 2005, clearly it was hit by the period of limitation provided under Section 24-A of the Consumer Protection Act, 1986. It was further argued before the State Commission that the petitioner being a re-allottee was not entitled to any relief since he had full knowledge about the status of the plot in question at the time of purchase from the original allottee and as such could not raise the bogie of non-development which is a pretext to justify the non-payment of the remaining cost of the plot/and its enhanced price. Referring to the request for surrender/cancellation of the plot by the petitioner, it was also submitted that the surrender in fact had been necessitated due to the bad financial position of the petitioner complainant and it was only an afterthought to seek return of the plot as the cost of the plot over the years had phenomenally appreciated.

On a careful consideration of the arguments advanced by the parties before it, the State Commission vide the order impugned has opined that the complaint was not only barred by limitation but held that the complainant had surrendered the plot of his free consent and was therefore not a 'consumer' and further relying upon the judgment of the Hon'ble Punjab & Haryana High Court in the case of Haryana Urban Development Authority Vs. M/s Zuari Industries [2009 (3) RCR (Civil) 104 (DB)], it was held that the allottee/complainant having surrendered the plot and taken refund has no right to get the return of the surrendered plot. The State Commission also rejected the plea of the petitioner complainant that he had surrendered the plot under compelling circumstances as he had himself submitted an application seeking refund of the deposited amount which he accepted without any murmur and has produced no evidence with regard to any representation/request to the competent authority for the development of the area prior to the surrender of the plot. The State Commission, therefore, felt that the District Forum has ignored the factual position on record and committed great error in accepting the complaint. The order of the District Forum in this backdrop was set aside and the complaint came to be dismissed. The petitioner complainant has now taken his turn to assail the order of the State Commission before us invoking our supervisory jurisdiction under Section 21(b) of the Consumer Protection Act, 1986. Learned counsel for the petitioner complainant has raised the same pleas advanced before the State Commission. According to him, the petitioner complainant having been re-allotted the plot originally allotted to Mrs. Meera Arora was entitled to treatment/relief which the original allottee could have received in her hand since the present petitioner had deposited the 25% consideration amount towards the cost of the plot. He contends that it was incumbent upon the opposite party-HUDA to have delivered the physical possession of the plot to the petitioner. Learned counsel has further submitted that since there was no development in the area and apprehending that possession will not be feasible in the near future and further that HUDA had started demanding payment of the balance price of the plot alongwith enhanced cost with penalty, the petitioner complainant had no option but to surrender the plot. Under these circumstances, the learned counsel submits that the order passed by the District Consumer Forum was fully justified. According to him, the State Commission has erroneously set aside the well reasoned order of the District Consumer Forum which needs to be set aside and in the interest of justice the order passed by the District Consumer Forum requires to be restored.

Reiterating the justification given by the State Commission in its order, learned counsel for the respondent-opposite party-HUDA has stated that the State Commission has very rightly observed that the District Consumer Forum has not only misdirected itself in arriving at the findings which it has given but has clearly held that the District Forum has committed great error in deciding the complaint and having granted the reliefs which are legally not sustainable and goes beyond what even the complainant had sought for.

We have heard the learned counsel for the parties and have carefully gone through the records of the case. Admittedly, the complainant had surrendered the plot due to his financial

3

constraints as would be obvious from his own letter dated 14.02.2003, which reads as under :-

"To The Estate Officer,

HUDA,

Faridabad. Sub:- Request for surrendering/cancellation of plot No. 2299, Sector-2, Faridabad.

Sir,

Due to my bad financial position, I shall not be able to carry on with the above mentioned plot. I, therefore, request you that the allotment of the above mentioned plot may be surrendered and the amount of money deposited by me may please be refunded at the earliest as I surrender the above plot.

All the document i.e. allotment letter and payment receipts etc. are enclosed herewith in original for your reference. Thanking you,

Yours faithfully,

Sd/-

(Budhi Ram)

H.No. 32, Aliganj, Kotla,

Mubarakpur, New Delhi."

As is obvious from this letter, the petitioner has neither referred to any under-development of the area nor has raised any protest with reference to demand of enhanced price. On the contrary, he has himself enclosed the original allotment letter and payment receipts, obviously to facilitate early refund of his deposit. Thus, his request is a letter of surrender simplicitor and the reason being 'bad financial position'. In the absence of any representation to the appropriate authority with regard to development of the area in question, it has been correctly held by the State Commission that the surrender of the plot was made by the petitioner of his free will. Once we so hold, the next point that requires consideration is as to whether the petitioner was entitled to file any complaint before the District Consumer Forum. Obviously, when he had received the refund without any protest of his deposit after deduction of 10% of the consideration, as per rules and without any protest on 29.04.2003, he ceases to be a 'consumer' of the respondent-HUDA thereafter. Even otherwise, the complaint was filed on 13.12.2005 while the refund had been received by him on 29.04.2003, after a period of more than two years, which is clearly beyond the limitation of two years provided under Section 24-A of the Consumer Protection Act, 1986. The District Consumer Forum, therefore, has clearly erred in entertaining the complaint, which should have been disallowed at the threshold.

We also observe from the order passed by the District Consumer Forum that it has not only directed the respondent-HUDA to reallot "the same plot i.e. plot no. 2229 sector-2, Urban Estate Faridabad on the similar price to the complainant, if the plot in question is lying vacant and un- allotted so far. In case the aforesaid plot is not found vacant and un-allotted, then allot some other plot to the complainant on the similar price to that of originally allotted plot, as an alternate plot". The District Consumer Forum has further gone on to direct the respondent-HUDA to "pay interest to the complainant (petitioner in this case) on his deposit @ 12% per annum w.e.f. its deposit till its realization". An escalation charge of Rs.50,000/- and another sum of Rs.50,000/-

4

for mental agony besides other reliefs too have been ordered. The reliefs granted were not only not warranted but perhaps could not even have been thought of by a judicious mind for the following reasons :-

(i) The District Forum has failed to consider the plea of the respondent-HUDA that the complaint was barred by limitation since the petitioner had received the refund of deposited amount on 29^thof April, 2003 and filed his complaint after more than two years on 13^thof December, 2005. There is no discussion on this point in the order of the District Forum.

(ii) While directing the respondent-HUDA to re-allot the same plot No. 2299, Sector-2, Urban Estate Faridabad even after the petitioner had accepted the refund, the District Forum has simultaneously awarded a compensation of Rs.50,000/- totally ignoring the fact that a huge benefit of appreciation of the value of the plot during the intervening period would accrue. This amounts to unduly enriching the petitioner complainant and runs counter the principle laid down by the Hon'ble Supreme Court in the case of

Bangalore Development Authority Vs. Syndicate Bank [(2007) 6 SCC 711].

(iii) The District Forum has further ordered the respondent-HUDA to pay interest to the complainant on his deposit @ 12% per annum with effect from his deposit till its realization. Clearly this amounts to a bonanza for the complainant since he had already accepted the deposited amount after voluntarily surrendering the allotment. The Hon'ble Apex Court in the case of Bangalore Development Authority (supra) have clearly held that even where there is delay in the delivery of the allotted plot for justifiable reasons, ordinarily the allottee will not be entitled to any interest or compensation. In the present case, the conditions stipulated that possession was to be handed over only after the development of the area and until then no interest was to be charged on the installments. This did not entitle the complainant not to pay installments. The Hon'ble Apex Court in the case of Municipal Corporation Chandigarh & Ors. Vs. M/s Shantikunj Investment Pvt. Ltd. [(2006) 4 SCC 109] has held that provision of all the facilities would not be a condition precedent for an allottee for payment of installments. The District Forum has clearly committed an illegality in overlooking the law laid down by the Hon'ble Apex Court.

(iv) The District Forum also has miserably failed to take note of the fact that the petitioner complainant is a transferee and was fully aware of the status of the plot at the time of repurchase from the original allottee. The case of Haryana Urban Development Authority Vs. Raje Ram [ I(2009) CPJ 56 (SC)] has been rightly relied upon by the State Commission. Therein it has been held by the Hon'ble Apex Court that a party gets the benefit of escalation in price of land and interest should not be awarded on amounts paid by the allottees due to delay in allotment. In the present case, the District Forum has failed to notice that the petitioner being a re-allottee has defaulted in the payment of the installments and the enhanced cost and, therefore, there was no deficiency on part of the respondent-HUDA and yet the District Forum has awarded not only interest but compensation.

(v) In the case of HUDA Vs. M/s Zuari Industries (supra) the allottee of an industrial plot had not paid the full amount but had taken possession of the plot but had not complied with the condition of raising the construction within a period of five years. He had surrendered the plot and his request for re-allotment was subsequently turned down by the HUDA. He had later approached the Hon'ble Punjab & Haryana High Court for its re-allotment. A Single Bench of the High Court had allowed his petition and ordered HUDA to restore the plot. In the appeal that was filed by the HUDA, the Division Bench of the Hon'ble High Court set aside the order passed by the learned

5

Single Bench and has clearly held that an allottee, surrendering the plot and taking refund, has no right to get return of the surrendered plot. In the present case, what to talk of taking possession and surrender thereafter but petitioner complainant has defaulted, according to his own admission in payment of the installments and cost of the enhanced price and had surrendered the plot which was a conscious decision on his part. The plea of compelling circumstances was only an afterthought arising perhaps out of greed as the price of the plot has appreciated manifold.

Thus, in our view, the order passed by the District Forum was totally perverse. The State Commission has been very mild in its opinion that the District Consumer Forum has committed a 'great error'. The order passed by the State Commission is a very well reasoned, objective, fair, just and legal order and needs absolutely no interference in revision. The revision petition, accordingly, is dismissed with no order as to costs.

......................J

R.C. JAIN

PRESIDING MEMBER

......................

S.K. NAIK

MEMBER

6