w w w . L a w y e r S e r v i c e s . i n



Sudesh Gupta v/s HUDA


Company & Directors' Information:- GUPTA CORPORATION PRIVATE LIMITED [Active] CIN = U40100MH2005PTC154038

Company & Directors' Information:- M R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1992PTC051324

Company & Directors' Information:- GUPTA INDIA PRIVATE LIMITED [Active] CIN = U51311DL1996PTC077255

Company & Directors' Information:- GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U52110DL1974PTC007339

Company & Directors' Information:- GUPTA AND GUPTA PRIVATE LIMITED [Active] CIN = U55204DL1954PTC002390

Company & Directors' Information:- S K GUPTA PRIVATE LIMITED [Active] CIN = U26900MH1973PTC016294

Company & Directors' Information:- R. K. GUPTA AND COMPANY INDIA PRIVATE LIMITED [Active] CIN = U74899DL1993PTC052138

Company & Directors' Information:- B R GUPTA AND COMPANY PRIVATE LIMITED [Active] CIN = U63013DL2000PTC107343

Company & Directors' Information:- T N GUPTA PVT LTD [Active] CIN = U02005WB1951PTC020141

Company & Directors' Information:- A V GUPTA AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U24239DL1999PTC102248

Company & Directors' Information:- Y P GUPTA AND COMPANY PVT LTD [Under Process of Striking Off] CIN = U74899DL1983PTC016661

Company & Directors' Information:- J S GUPTA AND CO PVT LTD [Strike Off] CIN = U20211UP1975PTC004078

Company & Directors' Information:- M K GUPTA AND CO PRIVATE LTD [Strike Off] CIN = U74999DL1979PTC009517

Company & Directors' Information:- A J GUPTA AND CO PRIVATE LIMITED [Strike Off] CIN = U74210UP1980PTC004986

Company & Directors' Information:- D. R. GUPTA & COMPANY PRIVATE LIMITED [Strike Off] CIN = U74899DL1944PTC000794

Company & Directors' Information:- S P GUPTA AND CO PVT LTD [Strike Off] CIN = U26932RJ1972PTC001459

    Revision Petition No. 3448 of 2011

    Decided On, 19 November 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. PREM NARAIN
    By, PRESIDING MEMBER & THE HONOURABLE MR. C. VISWANATH
    By, MEMBER

    For the Petitioner: Mahesh Thakur, Advocate. For the Respondent: Vishal Mahajan, Advocate.



Judgment Text

This revision petition has been filed by the petitioner Smt. Sudesh Gupta challenging the order dated 12.07.2011 passed in First Appeal No. 2909 of 2004 by the Haryana State Consumer Disputes Redressal Commission Panchkula (in short the State Commission).2. Brief facts of the case are that the original allottee of the plot Kasturi Lal Singla gave an application to Haryana Urban Development Authority (HUDA) on 03.01.2000 for transfer of the plot in the name of the complainant Smt. Sudesh Gupta. The HUDA vide its order dated 10.01.2000 permitted the transfer with certain conditions. The complainant complied with all conditions except that the complainant did not deposit Rs.5,258/- as was asked to be deposited within stipulated time on the ground that the original allottee had paid about Rs.37,0000/- in excess to the opposite party. The opposite party did not accept the assertion of the complainant and issued reminder to the complainant to deposit the amount. Later on, the complainant deposited this amount on 17.04.2000. However, in the meanwhile, the policy was changed on 08.03.2000 and it was required that the original allottee will execute a conveyance deed in favour of the transferee. There were certain other changes in the policy. Because of the change of the policy, the transfer could not be allowed as the amount was not deposited within the stipulated time in the letter dated 10.01.2000 before the commencement of the new policy. However, the opposite party did not cancel the application and kept the matter pending. The complainant then filed a consumer complaint bearing No.5 of 2002 before the District Forum, Ambala with the following prayers:-“(i) To transfer the plot in question bearing no.70-P, sector-10, Urban Estate, Ambala City in the name of the complainant as per policy of the opposite party as it existed on 10-1-2000 when the permission was granted for the transfer of the plot in the name of the complainant from the name of Sh. Kasturi Lal Singla.(ii) Not to charge any extension fee for non-construction after 10-1-2000 as residential building cannot be constructed for non-transfer of the plot on account of illegal grounds;(iii) To pay interest at the rate of 18% per annum w.e.f. when the permission to transfer the plot was granted on the amount deposited prior to 10.1.2000 till the date of transfer of the plot in favour of the complainant.(iv) To supply the detail of the amount along with break up paid and payable against the price of the plot in question charging simple interest @10% p.a. on the delayed payments made, if any, though there is no and refund the excess amount along with 18% p.a. interest thereon.(v) To pay escalation charges in cost of building material and labour charges on account of illegal action on the part of opposite party for the transfer of the plot amounting to Rs.one lac:(vi) To pay cost of proceedings amounting to Rs.5000/-;(vii) To pay Rs.30,000/- on account of mental torture and harassment.ORAny other relief which this Hon’ble Forum deems fit be granted to the complainant.”3. The complaint was resisted by the opposite party by filing the written statement. It was asserted that the case of the complainant can only be considered under the new policy, which commenced from 08.03.2000 as he did not deposit the required amount demanded vide letter dated 10.01.2000 within the stipulated time. The District Forum, however, passed the following order on 21.09.2004:-“12. In view of the position discussed above and with the above mentioned observations the complaint is accepted and is hereby allowed and the respondent is directed to comply with the following directions within 30 days from the receipt of this order:-(i) To transfer the plot in question in the name of Sudesh Gupta w/o R.K.Gupta as per policy of the respondent as it existed on 10.1.2000 when the permission was granted for the transfer of plot.(ii) Not to charge any extension fee for non construction after 10.1.2000 as residential building cannot be constructed for non transfer of plot on illegal grounds;(iii) To pay interest @ 6% p.a. on the amount deposited/paid for plot in question w.e.f 10.1.2000 till the plot in question is transferred in favour of the complainant;(iv) To supply the detail of the amount of the amount along with break up and by applying interest @10% simple interest p.a. or any other rate of interest as applicable from time to time.(v) To pay Rs.One lac as compensation on account of escalation charges in the cost of construction mental torture and harassment etc.(vi) To pay Rs.500/- as cost of the proceedings.”4. Aggrieved with the order of the District Forum, the opposite party preferred an appeal bearing No.2909 of 2004 before the State Commission. The State Commission vide its order dated 12.07.2011 allowed the appeal and set aside the order of the District Forum. The complaint was also dismissed.5. Hence the present revision petition.6. Here, it is important to note that during the pendency of the appeal before the State Commission, the complainant also filed an execution before the District Forum and in compliance of the District Forum order the opposite party issued a re-allotment letter in favour of the complainant Smt. Sudesh Gupta on 21.04.2005.7. Heard the learned counsel for the parties and perused the record. Learned counsel for the petitioner stated that the State Commission has dismissed the complaint on the basis that the complainant is not a consumer within the provisions of the Consumer Protection Act, 1986. Learned counsel stated that the Hon’ble Punjab & Haryana High Court had passed its judgment in Sanjay Arora Vs. State of Haryana & Ors. in CWP No.7316/2000 on 13.11.2000 and had decided that where the permission was granted before new scheme came into existence, the case shall be governed by the old scheme. Learned counsel referred to the observation made by the District Forum in this regard as under:-“The Hon’ble Punjab & Haryana High Court (DB) has decided in case ‘Sanjay Arora Vs. State of Haryana and others’ in CWP No.7316/2000 on 13.11.2000 where HUDA was party and held that “Policy Instructions dated 8.3.2000 issued by the Chief Administrator, HUDA not retrospective in operation – can have only prospective effect – policy instructions dated March 8, 2000 can govern transfers for which no permission has been granted prior to the issuance of the said policy i.e. 8.3.2000- In all other cases the matter should be governed by the policy as it existed on or before March 7, 2000.”8. On the basis of the above judgment of the Hon’ble High Court of Punjab & Haryana, the learned counsel for the petitioner complainant stated that there was no confusion in the matter and the District Forum had passed a right order allowing the transfer of the plot in favour of the complainant as well as granted some other reliefs. Even though the application for transfer was given by the original allottee Kasturi Lal Singla on 03.01.2000, but the transfer was to be made in the name of the complainant. Even permission letter dated 10.01.2000 issued by the opposite party also refers the name of the complainant as the transferee. Further the amount was also deposited by the complainant and other formalities were also completed by the complainant as per the permission letter dated 10.01.2000. Thus, clearly the complainant is a consumer of the opposite party. The complaint was filed by the complainant as the opposite party did not allow the transfer even though the complainant was fully entitled for the same. The reason given by the State Commission for not accepting the complainant as a consumer is not valid. As the order of the District Forum has already been executed and re-allotment letter dated 21.4.2005 has been issued in favour of the complainant, the appeal of the opposite party before the State Commission had become infructuous. In these circumstances, the order of the State Commission needs to be set aside and re-allotment letter dated 21.04.2005 is required to be upheld.9. On the other hand, learned counsel for the respondent/opposite party stated that the complaint has not been filed by the original allottee Kasturi Lal Singla to whom the letter dated 10.1.2000 was addressed. As there was no transfer in favour of the complainant, the complainant did not have any relationship of consumer and service provider with the respondent/opposite party, therefore, the State Commission has rightly dismissed the complaint on the ground that the complainant is not a consumer.10. We have carefully considered the arguments advanced by the learned counsel for the parties and examined the record. A perusal of the re-allotment letter dated 21.04.2005 shows that this letter is not subject to decision in the appeal that was pending before the State Commission. Therefore, it seems that the opposite party had accepted the decision of the Hon’ble Punjab & Haryana High Court and in that light executed the order passed by the District Forum for transfer of the plot in the name of the complainant. It seems that none of the parties had brought this information before the State Commission that order of the District Forum was already executed, otherwise the State Commission would have taken note of this and would have passed the appropriate order.11. So far as the question of complainant being a consumer is concerned, Section 2(1)(d) of the Consumer Protection Act, 1986 defines the consumer as:-“Consumer” means any person who-(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or(ii) [hires or avails ] of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose] [Explanation- For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment]”12. From the above definition, it is seen that the beneficiary is also a consumer if that beneficiary avails the services with the consent of the original consumer who has paid the amount. In the present case, the original consumer Kasturi Lal Singla has himself given an application for transferring the plot in favour of the complainant and therefore, his consent for the beneficiary is self-evident. From this aspect, the complainant also becomes a consumer under Section 2(1)(d) of the Consumer Protection Act, 1986.13. Thus, the order of the State Commission for not considering the complainant as consumer is not sustainable. As the matter is pending since the year 2000, we do not wish to remand the matter to the State Commission. The respondent/opposite party has already complied with the order of the District Forum dated 21.09.2004 in favour of the complainant and even the conveyance deed has been executed in favour of the complainant.14. The opposite party also objected that in any case the complainant is not entitled to any compensation from the opposite party as ordered by the District Forum. So far as the extension fee is concerned, the District Forum has ordered that no extension fee will be charged after 10.01.2000. This can only be accepted till the period allowed under Rules of HUDA from 21.04.2005 when the plot has been re-allotted in favour of the complainant. After that if the building has not been made, HUDA is legally entitled to charge extension fee. Thus, the extension fee would be payable from 10.01.2000 till 21.04.2005.15. The District Forum has also ordered payment of 6% per annum interest on the amount deposited by the original allottee for the plot. Hon’ble Supreme Court in Haryana Urban Development Authority Vs. Diwan Singh, (2010) 14 SCC 770 has observed that such subsequent buyers are entitled to receive interest only after the date of endorsement in their favour. Hon’ble Supreme Court has clearly stated that a transferee cannot get the advantage of interest on the amount paid by the original allottee before the date on which the plot came in the name of the complainant. On the basis of this judgment of the Hon’ble Supreme Court, the order of the District in respect of payment of 6% p.a. interest on the amount deposited for the plot with effect from 10.01.2000 till the plot in question is transferred in fav

Please Login To View The Full Judgment!

our of the complainant is not sustainable and is set aside. The direction No.(iv) of the order of the District Forum also deserves to be set aside being totally unclear. If this relates to only supplying of information, it has become infructuous because the re-allotment has already been done and conveyance deed also executed.16. So far as the order of the District Forum regarding payment of Rs.One lac is concerned, there is no basis for this order of the District Forum. The complainant herself was deficient in not depositing the amount in time as per letter dated 10.01.2000 and therefore, she cannot claim any compensation. Accordingly the order of the District Forum in respect of the award of compensation of Rs.One lac to complainant is set aside.17. Based on the above discussion, revision petition No.3448 of 2011 is partly accepted and the order dated 12.07.2011 of the State Commission passed in FA No.2909 of 2004 is set aside. The order dated 21.09.2004 of the District Forum in respect of the following points is upheld:-(i) To transfer the plot in question in the name of Sudesh Gupta w/o R.K.Gupta as per policy of the respondent as it existed on 10.1.2000 when the permission was granted for the transfer of plot.(ii) To pay Rs.500/- as cost of the proceedings.18. Remaining order of the District Forum is set aside. As the opposite party has already issued re-allotment letter dated 21.04.2005 in favour of the complainant, the same is upheld.
O R