JIWAN PARKASH KAPOOR Vs. HARYANA URBAN DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) CHALLENGE in this appeal is to the order dated 6. 8. 2003 passed by the District Consumer Disputes Redressal Forum, Panchkula whereby the complaint filed by the appellant-complainant against the respondent-opposite parties had been dismissed as time-barred. At the same time direction has been given to the respondent-opposite parties to refund the amount charged in respect of the excess area as per rules to the complainant.

(2.) IN order to focus the controversy involved in the present appeal essential facts have to be noticed briefly. A residential plot No. 1750 measuring 420 sq. mtrs. located in Sector-4, Panchkula was allotted to Shri Sudarshan Kumar Chaudhary as per letter bearing Memo No. 28. 9. 1974. Thereafter, the said plot was re-allotted to the complainant Jiwan Parkash Kapoor and his wife Smt. Shimla Devi as per Memo dated 24. 8. 1995 on the terms and conditions issued in the allotment letter. The complainant, thereafter, paid the extension fee of the said plot up to 31. 12. 1995. It was followed by another extension fee of Rs. 16,800 on 20. 8. 1997. On 23. 10. 1997 the complainant submitted an application to the opposite party No. 2 for delivery of possession of the plot to him so as to enable him to carry out the construction over the said plot. The possession certificate No. 6480 dated 24. 10. 1997 was issued to the complainant by Shri Ram Kumar, J. E. on behalf of the opposite party No. 2 wherein possession of 405 sq. mtrs. in respect of 420 sq. mtrs. was delivered to him. The complainant made a complaint to the opposite party No. 2 on 4. 11. 1997 regarding delivery of possession of less area than the allotted area as per allotment letter issued to him. The complainant also submitted a construction plan of building to the opposite parties. The opposite party No. 2 approved the building plan of the complainant vide letter dated 25. 11. 1997. The complainant also deposited Rs. 1,033 on account of Road Cut Fee vide receipt dated 26. 11. 1997. The complainant thereafter approached the opposite parties for demarcation of the plot in order to start the construction over it. The complainant made a representation dated 8. 12. 1997 to the opposite party No. 2 for removal of the encroachment of the portion of the plot made by the owner of the adjoining plot No. 1751 Sector 4, Panchkula. Taking into account the representation of the complainant the opposite party No. 2 issued notice to the owner of the plot No. 1751 Sector-4, Panchkula vide Memo dated 10. 12. 1997 directing him to remove the encroachment from the said plot but without any result. The complainant again sent a reminder to the opposite party No. 2 vide letter dated 16. 12. 1997 to demarcate the area of the plot and to remove the encroachment from the said plot. He also requested the opposite party No. 2 not to charge any extension fee but no action was taken by the opposite parties. In the meanwhile on the complaint of owner of plot No. 1751, Sector-4, Panchkula, the complainant was called by the S. H. O. Sector-2, Panchkula and had to face harassment on this account. The complainant approached the opposite party No. 2 to get the encroached area demolished and not to charge extension fee from him as per representation dated 29. 12. 1997 followed by other reminders dated 14. 1. 1998, 26. 3. 1998, September 1999, January 2000, May 2000, December 2000 and March 2001 but the opposite parties failed to demarcate the area and deliver the actual possession of the plot after removing the encroachment. According to the complainant, the encroachment is not only above the surface but it is beneath the land also and foundation of plot Nos. 1751 and 1753 has been laid in the encroached manner to provide passage between two houses. The owner of plot No. 1751 also encroached 9" area at the first floor of the house of the back side in the shape of the balcony in such a manner that the complainant cannot construct and erect the left side of the common wall of the plot for the purpose of construction. It was further alleged that as the encroachment was in the shape of passage, the complainant who had to build his personal room as shown in the site plan sanctioned by the opposite parties, would not be able to do so till the encroachment was removed. But the opposite parties failed to get the encroachment removed. Forced by these circumstances, the complainant invoked the jurisdiction of the District Forum by filing the present complaint seeking following directions against the opposite parties:

(3.) THE complaint was contested by the opposite parties. In the written statement filed preliminary objections with regard to the locus standi, want of cause of action and non-maintainability of the complaint in the present form were taken. On merits, it was pleaded that after the plot was allotted to the complainant, he was served with a notice vide Memo No. 5032 dated 22. 8. 2000 to deposit the extension fee up to 31. 12. 2000 which he did not deposit and for that reason the extension fee was payable by him. At the same time it was admitted that the complainant had submitted an application dated 23. 10. 1997 for delivery of possession and the paper possession was given to him on 24. 10. 1997 as per official record. It was also stated that the area of the plot allotted to the complainant was tentative and the encroachment made by the allottee of the plot No. 1751 on the plot in question was removed by the Naib Tehsildar on 23. 12. 1997. According to them the demarcation of the plot was given to the complainant on 2. 12. 1997 when physical possession of the plot was delivered to him. Accordingly, it was prayed that the complaint merited dismissal.