JUDGMENT 1. - These intra-court appeals have been filed by Jodhpur Development Authority - appellant ('JDA') aggrieved against the judgment dated 11.10.2011 passed by the learned Single Judge, whereby the writ petitions filed by the appellant seeking quashing of the judgment and order dated 26.10.2009 passed by the District Consumer Disputes Redressal Forum, Jodhpur ('the District Forum') and order dated 6.1.2010 passed by the State Consumer Disputes Redressal Commission, Jaipur ('the State Commission') were dismissed and certain directions were issued. 2. The respondents-complainants had approached the District Forum by way of complaint under Section 12 of the Consumer Protection Act, 1986 ('the Act') against the then Urban Improvement Trust ('UIT'). 3. It was inter-alia claimed in the complaints that they were allotted plots of land in 'Shyam Nagar Scheme' with the condition that they would be required to raise construction within five years else the allotment shall stand cancelled; the actual demarcation would be possible only after development of roads and after shifting the persons in possession. After allotment, the development charges have been deposited; lease deed has been issued, however, the physical possession of the plot was not handed-over and it was told that after removing the persons in possession, the actual demarcation would be possible and thereafter only possession would be handed-over. It was claimed that the development charges, premium and lease money etc., all have been deposited by the complainants, however, the possession of the plots have not been handed-over despite repeated requests in this regard. Where after, a legal notice was sent, despite that possession has not been handed-over, which amounts to deficiency in service. It was stated that the UIT has failed to comply with the conditions of allotment and therefore, the complainants were entitled to compensation as well. It was prayed that possession of the plots be handed-over and in case, the same was not possible, then plots of the same size at the same location be directed to be allotted. 4. The complaint was opposed by the UIT. It was indicated that lease deed was issued based on the resolution of UIT dated 9.1.1997, wherein it was stipulated that the responsibility for removing the encroachers would be of the allottees and the UIT would provide all possible help. It was claimed that in view of the said stipulation, the complainants were not entitled to any relief. It was indicated that lease deed was issued based on the resolution of UIT dated 9.1.1997, wherein it was stipulated that the responsibility for removing the encroachers would be of the allottees and the UIT would provide all possible help. It was claimed that in view of the said stipulation, the complainants were not entitled to any relief. It was alleged that the specific stipulation with regard to the removal of the encroachers in the agreement between the parties has been suppressed by the complainants and therefore, they were not entitled to any relief. It was prayed that the complaint be dismissed. 5. The complaint came to be decided by judgment dated 26.10.2009, whereby the District Forum came to the conclusion that the JDA, which had in the meanwhile succeeded UIT, was guilty of deficiency in service and was directed to handover vacant possession of the allotted plots and in case, on account of encroachment, it was not possible to give possession of the allotted plots, then at the same location plot of same measurement be allotted and its vacant physical possession be handed-over. Further the complainants were held entitled for compensation to the tune of Rs. 50,000/- for mental harassment and Rs. 3,000/- towards expenses and on failure to make payment, it was directed that the said amount would carry interest @ 12% p.a. 6. Further directions were given to the Divisional Commissioner, who was then Chairman of JDA to hold departmental enquiry regarding lapses of the officers and the employees and to recover the amount of compensation and expenses from the said officers. 7. Feeling aggrieved, the JDA filed appeal before the State Commission. The State Commission, after hearing the parties, by its order dated 6.1.2010, upheld the findings of the District Forum, however, reduced the amount of compensation from Rs. 50,000/- to Rs. 20,000/-. 8. The JDA then filed writ petitions aggrieved against the judgment of the District Forum and the appellate order passed by the State Commission. In the writ petitions, for the first time, an objection was raised that the complainants were not consumers and that the JDA was not a service provider besides all other objections on merit. 9. 20,000/-. 8. The JDA then filed writ petitions aggrieved against the judgment of the District Forum and the appellate order passed by the State Commission. In the writ petitions, for the first time, an objection was raised that the complainants were not consumers and that the JDA was not a service provider besides all other objections on merit. 9. The learned Single Judge, after hearing the parties, by the impugned judgment came to the conclusion that provisions of the Act did apply and were rightly applied to the case, the condition in the UIT's resolution dated 9.1.1997 regarding the responsibility of the allottees to remove the encroachment was void and against public policy and cannot be enforced against the complainants and based on its view regarding the condition of allotment being void and ultravires, the directions of the District Forum and the State Commission were held to be within jurisdiction and just and proper and based on the above findings, it was directed as under:- "38. Thus, this Court finds no force in the present writ petitions filed by the Jodhpur Development Authority and same are liable to be dismissed and are accordingly dismissed. 39. The following directions are issued:- (i) That the respondent no.3 - Divisional Commissioner, Jodhpur shall undertake execution of the judgments of District Consumer Forum and State Commission as regards fixing of responsibility on the officials of JDA and recovering the damages from their salaries as directed by Forum and report the said compliance to this court within a period of three months. (ii) That unless the petitioner JDA is able to comply with the directions given by the State Commission under the Consumer Protection Act, 1986 within a period of three months from today and question allotted to the respondent complainants or in the alternative allot alternative plot of land of same size in same locality at same price and hand over the same to the respondent complainants within three months, the matter may be placed before this court in January, 2012 for initiating appropriate action against the officials of petitioner JDA & for this purpose the matter shall be treated as pending. 40. The writ petitions are accordingly dismissed. No costs." 10. 40. The writ petitions are accordingly dismissed. No costs." 10. It was submitted by learned counsel for the appellant that the adjudication by the District Forum, State Commission and the learned Single Judge is ex-facie against the settled position of law and material available on record and as such, the same deserve to be quashed and set-aside. 11. On merits, it was submitted by Mr. D.S. Rajvi, learned counsel that in view of the resolution dated 9.1.1997 (Ex.-1), letter of surrender executed by the complainants along with the undertaking (Ex.-2), allotment letter (Ex.-3), which resulted in execution of lease deed (Ex.-4), it is ex-facie clear that the land in question which was subject matter of the resolution, surrender, allotment and lease was already in possession of the encroachers and the respondents-complainants with open eyes entered into agreement with the appellant based on the condition that if there was any encroachment on the plot, it would be responsibility of the allottee to clear the same and the UIT/JDA would provide every possible help and as such now on account of the fact that the land in question was under encroachment, which admittedly was under encroachment from before the resolution of 1997 was passed, the complainants were estopped from claiming otherwise. 12. It was submitted that the crucial condition contained in the resolution and other documents was suppressed from the District Forum and as such, the complaints filed by the respondents deserve to be dismissed. 13. It is further submitted that the learned Single Judge fell in error in declaring the above condition of allotment and the resolution as ultra-vires and based on it upholding the order passed by the District Forum and State Commission, the validity of the resolution and the condition of allotment was not in question at all either before the forums under the Act or before the learned Single Judge as the writ petition was filed by the appellant-JDA and therefore, the said finding could not have been arrived at by the learned Single Judge. 14. The jurisdiction of the authorities under the Act was questioned on the basis that the allotment/sale of plot of land simpliciter does not fall within the purview of the Act and on that count, the forum had no jurisdiction, therefore, the orders even otherwise being without jurisdiction deserve to be quashed and set-aside. 15. 14. The jurisdiction of the authorities under the Act was questioned on the basis that the allotment/sale of plot of land simpliciter does not fall within the purview of the Act and on that count, the forum had no jurisdiction, therefore, the orders even otherwise being without jurisdiction deserve to be quashed and set-aside. 15. It was pointed out that the allottees had in the past made attempts for eviction of the encroachers from the land in question by filing Public Interest Litigation, wherein it was held that the persons have taken licence with open eyes that there was encroachment on the subject land and no direction can be given to evict large number of families settled for number of years. 16. It was further submitted that in another PIL, the resolution dated 9.1.1997 had been upheld. Further submissions were made that instead of approaching the forum under the Act, it was required from the complainants to approach civil courts for seeking eviction of the encroachers from the land in question and the appellant as resolved would have supported their cause. It was also submitted that removal of encroachment as directed by the District Forum is not possible invoking the provisions of JDA Act and as the respondents themselves have agreed, there is no question of allotting any alternative plot to them. Therefore, the orders impugned deserve to be quashed. 17. It was also submitted that reliance placed by the respondents and the learned Single Judge pertaining to the dispute raised by one Laxman Khetani, whose complaint was accepted and directions were issued by the District Forum, the appeal was dismissed by the State Commission, the revision was dismissed by the National Consumer Disputes Redressal Commission and SLP was dismissed by Hon'ble Supreme Court. However, as none of the documents as relied on in the present case were before any of the authorities and the issue pertaining to the jurisdiction was not raised, the same is of no avail to the respondents. 18. Reliance was placed on Ganeshlal v. Shyam : (2014) 14 SCC 773 , U.T. Chandigarh Administration v. Amarjeet Singh : 2009 AIR SCW 2522, Haryana Urban Development Authority v. Anil Kumar : (2010) 14 SCC 778 and Haryana Urban Development Authority v. Viresh Sangwan & Anr. : (2012) 2 SCC 256. 19. Additional submissions were made by learned counsel Mr. Reliance was placed on Ganeshlal v. Shyam : (2014) 14 SCC 773 , U.T. Chandigarh Administration v. Amarjeet Singh : 2009 AIR SCW 2522, Haryana Urban Development Authority v. Anil Kumar : (2010) 14 SCC 778 and Haryana Urban Development Authority v. Viresh Sangwan & Anr. : (2012) 2 SCC 256. 19. Additional submissions were made by learned counsel Mr. Anil Bhandari that the Forum did not consider the issue of limitation in terms of Section 24A of the Act and the complaints were ex-facie barred by limitation and therefore, deserved to be dismissed on this count also. 20. Vehemently opposing the submissions made by learned counsel for the appellant, learned counsel for the respondents-complainants submitted that the learned Single Judge has thoroughly considered each aspect of the matter and the judgment, therefore, does not call for any interference. 21. With reference to the definition of "service" under Section 2(o) of the Act, it was submitted that the definition is not exhausted and the allotment of plot is, therefore, clearly included within the definition of service and consequently, the plea raised by the appellants regarding lack of jurisdiction has no basis. 22. It was submitted that in terms of Clause (1) of the letter of allotment, the UIT had agreed for removal of the persons in possession and it is now not open for them to claim otherwise. 23. An objection regarding alternative remedy was raised. It was submitted that against the order of the State Commission, a revision under Section 21 of the Act is provided before the National Commission and the appellants without availing the said remedy have invoked the jurisdiction of this Court under Article 226 of the Constitution of India, which writ petitions were liable to be dismissed on account of availability of alternative remedy. 24. In the context of the condition as indicated in the resolution passed by the UIT, which led to the allotment of the plots, providing for responsibility of the allottees to take steps for removal of the encroachers, it was submitted that the said condition was against law, non-est and against public policy and therefore, the same cannot be enforced. 25. The judgment in the case of Ganeshlal (supra) was sought to be distinguished with reference to the judgment of Supreme Court in Lucknow Development Authority v. M.K. Gupta : (1994) 1 SCC 243 . 25. The judgment in the case of Ganeshlal (supra) was sought to be distinguished with reference to the judgment of Supreme Court in Lucknow Development Authority v. M.K. Gupta : (1994) 1 SCC 243 . It was submitted that the said judgment in the case of Lucknow Development Authority (supra) was not considered. 26. It was submitted that once the order in the case of Laxman Khetani, which stood on the similar footing has attained finality, the order passed by the District Forum as upheld by the State Commission and the learned Single Judge does not call for any interference. 27. Reliance was also placed on Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha : (2004) 1 SCC 305 ; Secretary, Bhubaneshwar Development Authority v. Susanta Kumar Mishra : (2009) 4 SCC 684 and Mandira Mookerjee v. District Consumer Disputes Redressal Forum & Ors. : AIR 2005 Calcutta 108. 28. We have considered the submissions made by learned counsel for the parties and have perused the material placed on record. 29. So far as the jurisdiction of the Consumer Forum to deal with the dispute of present nature is concerned, the plea raised in the complaint as already noticed hereinbefore has been in relation to plot of land and the allegations therein pertains to 'deficiency in service'. Under Section 12 of the Act, a complaint can be made in relation to goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided and in case the District Forum comes to the conclusion that any of the allegations contained in the complaint about the goods/services are proved, it can pass directions in terms of Section 14 of the Act. The pre-requisite for jurisdiction to pass order is either the goods suffer from defects or the service suffers from deficiency. 30. 'Service' under the Act has been defined under Section 2(o), which reads as under:- "2(o) "service' means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;" 31. Dealing with contentions raised regarding jurisdiction under the Act, Hon'ble Supreme Court in the case of U.T. Chandigarh Administration (supra) after noticing the judgment in the case of Lucknow Development Authority (supra) noted the ground of challenge in para 9(i) and answered the same in para 13 and 14 as under:- "9(i) When the auction of sites (for grant of a lease for 99 years) was in exercise of the power of the Government (UT Chandigarh Administration) under the provisions of the Development Act in accordance with the Leasehold Rules, it involves neither sale of goods nor rendering of any service. The act of leasing plots by auction by the appellants therefore did not result in the successful bidder becoming a 'consumer' or the appellants becoming 'service providers'. In the absence of hiring or availing of any service, the question of deficiency in service or unfair or restrictive trade practice with reference to a service, did not arise and the complaint under the Act was not maintainable." "13. In Lucknow Development Authority, it was held that where a developer carries on the activity of development of land and invites applications for allotment of sites in a developed layout, it will amount to 'service', that when possession of the alloted site is not delivered within the stipulated period, the delay may amount to a deficiency or denial of service, and that any claim in regard to such delay is not in regard to the immovable property but in regard to the deficiency in rendering service of a particular standard, quality or grade. The activity of a developer, that is development of land into layout of sites, inviting applications for allotment by assuring formation of a layout with amenities and delivery of the allotted sites within a stipulated time at a particular price, is completely different from the auction of existing sites either on sale or lease. In a scheme for development and allotment, the allottee has no choice of the site allotted. He has no choice in regard to the price to be paid. The development authority decides which site should be allotted to him. The development authority fixes the uniform price with reference to the size of plots. In most development schemes, the applications are invited and allotments are made long before the actual development of the layout or formation of sites. The development authority decides which site should be allotted to him. The development authority fixes the uniform price with reference to the size of plots. In most development schemes, the applications are invited and allotments are made long before the actual development of the layout or formation of sites. Further the development scheme casts an obligation on the development authority to provide specified amenities. Alternatively the developer represents that he would provide certain amenities, in the Brochure or advertisement. In a public auction of sites, the position is completely different. A person interested can inspect the sites offered and choose the site which he wants to acquire and participate in the auction only in regard to such site. Before bidding in the auction, he knows or is in a position to ascertain, the condition and situation of the site. He knows about the existence or lack of amenities. The auction is an 'as is where is basis'. With such knowledge, he participates in the auction and offers a particular bid. There is no compulsion that he should offer a particular price. When the sites auctioned are existing sites, without any assurance/representation relating to amenities, there is no question of deficiency of service or denial of service. Where the bidder has a choice and option in regard to the site and price and when there is no assurance of any facility or amenity, the question of the owner of the site becoming a service provider, does not arise even by applying the tests laid down in Lucknow Development Authority or Balbir Singh. 14. Where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser/lessee participates in the auction after having an opportunity of examining the site, the bid in the auction is made keeping in view the existing situation, position and condition of the site. If all amenities are available, he would offer a higher amount. If there are no amenities, or if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction. If all amenities are available, he would offer a higher amount. If there are no amenities, or if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction. Once with open eyes, a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment, or the ground rent, on the ground that the site suffers from certain disadvantages or on the ground that amenities are not provided. With reference to a public auction of existing sites (as contrasted from sites to be 'formed'), the purchaser/lessee is not a consumer, the owner is not a 'trader' or 'service provider' and the grievance does not relate to any matter in regard to which a complaint can be filed. Therefore, any grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute and the for a under the Act will not have jurisdiction to entertain or decide any complaint by the auction-purchaser/lessee against the owner holding the auction of sites." (emphasis supplied) 32. In the present case, as would be noticed hereinafter, the petitioners were well aware of the fact of encroachments on the plots in question and the condition in the resolution dated 9.1.1997, thereafter executed letters of surrender and were allotted plots and lease was executed, as such, in terms of the law laid down above, the present case would clearly fall in 'as is where is basis'/'existing sites' category and therefore, the forums under the Act had no jurisdiction. 33. The learned Single Judge though cited the above judgment but did not take into consideration the ratio quoted above. 34. Besides the above, Hon'ble Supreme Court in the case of Ganeshlal (supra) while dealing with a issue pertaining to sale of a 'plot of land', observed as under:- "4. Mr. Lambat, learned counsel for the appellant submitted that the dispute between the parties was concerning the sale of a plot of land. 34. Besides the above, Hon'ble Supreme Court in the case of Ganeshlal (supra) while dealing with a issue pertaining to sale of a 'plot of land', observed as under:- "4. Mr. Lambat, learned counsel for the appellant submitted that the dispute between the parties was concerning the sale of a plot of land. A complaint as defined under Section 2(1)(c) of the Act was lodged to look into the allegations of (i) unfair trade practice or a restrictive trade practice adopted by any trader or service provider; (ii) the goods bought by him or agreed to be bought by him suffer from one or more defects; (iii) the services hired or availed of or agreed be hired or availed of by him suffer from deficiency in any respect; (iv) a trader or the service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price; (v) goods which are sold are hazardous to life and safety when used; (vi) services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety. 5. Learned counsel submits that a sale of plot of land simpliciter cannot lead to the complaint to the District Consumer Forum or to the State or National Consumer Disputes Redressal Commission. The jurisdiction of the District Consumer Forum under Section 11 of the Act is to entertain a complaint and as seen above, complaint is defined in a particular manner, and primarily it is with respect to the deficiency in making available the goods and services. The term "deficiency" is also defined under Section 2(1)(g) of the Act which reads as follows : "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service." 6. It is submitted that failure to hand over possession of the plot of land simpliciter cannot come within the jurisdiction of the District Consumer Forum, State Commission or National Commission. It is submitted that failure to hand over possession of the plot of land simpliciter cannot come within the jurisdiction of the District Consumer Forum, State Commission or National Commission. We quite see merit in this submission of Mr. Lambat, particularly having seen the definition of 'deficiency' as quoted above. We may, however, note that when it comes to "housing construction", the same has been specifically covered under the definition of 'service' by an amendment inserted by Act 50 of 1993 with effect from 18th June, 1993. That being the position, as far as the housing construction by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of land simpliciter is concerned, and if there is any complaint, the same would not be covered under the said Act." (emphasis supplied) 35. In view of the above law laid down by the Hon'ble Supreme Court also wherein it has been specifically held that a sale of plot of land simpliciter would not be covered under the provisions of the Act, as the dispute in the present case being lease of plot of land simpliciter, the judgment in the case of Ganeshlal (supra) would apply with all force and the forum apparently had no jurisdiction to deal with the complaint. 36. So far as the submissions made by learned counsel for the respondents regarding judgment in the case of Lucknow Development Authority (supra) is concerned, the said judgment dealt with the buildings, flats etc. and had not dealt with the issue of plot of land, whereas the judgment in the case of Ganeshlal (supra) specifically deals with the case of plot of land and therefore, irrespective of the observations made in the case of Lucknow Development Authority (supra), as the judgment in the case of Ganeshlal (supra) deals with the subject matter in dispute similar to the present case, the ratio of the said judgment only would be applicable to the present case. 37. The judgments cited by learned counsel for the respondents in the case of M. Lalitha (supra) and Mandira Mookerjee (supra) have no application to the present case as the said judgments deal with jurisdiction of Consumer Forum vis-a-vis remedies under other Acts or before civil courts. 38. 37. The judgments cited by learned counsel for the respondents in the case of M. Lalitha (supra) and Mandira Mookerjee (supra) have no application to the present case as the said judgments deal with jurisdiction of Consumer Forum vis-a-vis remedies under other Acts or before civil courts. 38. The another aspect raised by the respondents regarding the issue having been settled in the case of Laxman Khetani upto the Hon'ble Supreme Court is concerned, the Special Leave Petition was dismissed in limine. Hon'ble Supreme Court in Kunhayammed v. State of Kerala : (2000) 6 SCC 359 observed as under:- "44(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed." 39. The issue was not decided by the Hon'ble Supreme Court on merits and merely Special Leave Petition was dismissed, the judgment of National Commission does not become judgment of Hon'ble Supreme Court and the same does not have binding effect as far as the present case is concerned. 40. In view of above discussion, the complaint filed by the complainants under the provisions of the Act was, therefore, not maintainable and the forums under the Act had no jurisdiction to entertain the complainants. 41. Notwithstanding our finding above, we have examined the dispute on merits. 42. From perusal of the record, it appears that the Government agricultural land being Khasara Nos.771, 769 & 805 was set apart for residential purposes and the land was placed at the disposal of the then UIT, Jodhpur; certain persons disputed the land being Government land and claimed ownership based on transfer deeds/transactions from certain khatedars and the land having been converted under the provisions of relevant conversion Rules. 43. 43. The then UIT vide its resolution No.13(12) (Ex.-1) dated 9.1.1997, inter-alia resolved as under:- " ckn fopkj foe'kZ dj ;g Hkh fu.kZ; fy;k x;k fd 46 [kljks esa ls iksyks fyad lkslk;Vh ,oa [kljk uEcj 751@43 dh Hkwfe dks NksM+rs gq, 'ks"k [kljksa esa ls [kljk uEcj 771] 805@769] 809@771] 810@771] 811@771] 813@771] 813@1@771 dk lEiw.kZ ekufp= rS;kj fd;k x;k ftldh Lohd'fr iznku dh tkrh gSA bl ;kstuk ekufp= esa m|ku] lM+dksa bR;kfn lqfo/kk {ks= esa vk jgs vfrdze.kksa dks 'kh?kz gVkdj] iV~Vs/kkfj;ksa ,oa oS/k nLrkost okys dCts/kkfj;ksa dks xq.kkoxq.k ds vk/kkj ij U;kl izLrko la[;k 8 fnukad 9-1-1996 ds fu.kZ; ds vuq:i 560@& :i;s izfr oxZehVj ls jkf'k olwy dj Hkw[k.Mksa ls lEcfU/kr fookn] lekIr dj le>kSrk fdz;kUou gsrq v/;{k U;kl 'kh?kz dk;Zokgh djsa] rkfd {ks= dk fodkl gks lds bl {ks= dk ukedj.k ';ke uxj fd;k tkrk gSA mDr nksuksa {ks= leUo; uxj o ';ke uxj esa Hkw[k.Mksa ij ;fn dksbZ vfrdze.k gks rks bUgsa gVkus dh ftEesnkjh Lo;a Hkw[k.M/kkfj;ksa dh gksxhA U;kl mUgsa ;Fkk lEHko lg;ksx iznku djsxkA U;kl }kjk mDr izdj.kksa esa ls oSf/kr :i ls mfpr u ik;s tkus okys izdj.kksa esa mDr /kjksgj jkf'k fcuk C;kt ykSVkbZ tkus vf/kdkj U;kl esa fufgr gksxkA " (emphasis supplied) 44. Pursuant to the said resolution dated 9.1.1997, the respondents-complainants executed a surrender deed along with an undertaking, the part of the surrender deed in so far as the same is relevant, reads as under:- lsok esa] Jheku~ v/;{k egksn;] uxj fodkl U;kl] tks/kiqjA fo"k;% U;kl izLrko la[;k 13@12 fnukad 9-1-1997 dh vuqikyuk esa [kljk la[;k 771 xzke tks/kiqj esa fLFkr Hkw[k.M ds fookn dks vkilh le>kSrs ls fuLrkj.k djokus ds lUnHkZ esa leiZ.kukekA egksn; th] uez fuosnu gS fd izkFkhZ leiZ.kdrkZ 1 t;dqekj igkfM+;k iq= Jh nhipUn th igkfM+;k] mez 49 o"kZ] 2 ljkst tSu iRuh Jh t;dqekj th igkfM+;k] mez 47 o"kZ] fuoklh 485 ljnkjiqjk] IVth/V th jksM+] tks/kiqj orZeku irk bl leiZ.kukek ds tfj;s fuEu bdjkj djrk gwa fd%& 1- ;g gS fd leiZ.kdrkZ }kjk [kljk la[;k 771 xzke tks/kiqj esa vkoklh; mi;ksx gsrq Hkw[k.M la[;k 22 {ks=Qy 294-82 xt oxZehVj uke --- QqV dk dz; fd;k FkkA ftlds iM+ksl dze'k% mRrj esa ---- nf{k.k esa ---- iwoZ esa --- o if'pe esa --- gSA 2- ;g gS fd mDr [kljk la[;k 771 dh Hkwfe dks ftyk dysDVj] tks/kiqj }kjk vkns'k fnukad 3-3-1978 dks U;kl dh ckyksrjk pkSikluh jksM+ ;kstuk dh vkcknh foLrkj gsrq U;kl dks vkoafVr dh xbZ Fkh o U;kl }kjk bl Hkwfe dk dCtk fnukad 19-4-1978 dks izkIr dj fy;k Fkk ftldh iw.kZ tkudkjh izkFkhZ dks ugha gksus ls izkFkhZ us mDr LFkku esa Hkw[k.M dz; dj fy;k FkkA 3- mDr U;kl ;kstuk dh Hkwfe ds lUnHkZ esa o"kZ 1978 ls vc rd fofHkUu U;k;ky;ksa esa okn mRiUu gks x;s gSa ftUgsa lekIr djus ds fy;s tufgr ,oa uxj ds lqfu;ksftr fodkl ds fy;s Hkw[k.Mksa ds fu;eu gsrq U;kl }kjk ikfjr izLrko la[;k 13@2 fnukad 9-1-1997 ls eSa lger gwa o U;kl ls le>kSrs ds vk/kkj ij eSa vius Hkw[k.M ls lEcfU/kr ewy LokfeRo nLrkost le>kSrs dks lefiZr dj U;kl ;kstuk dk Hkw[k.M yht gksYM vk/kkj ij izkIr djus dk lger gwaA ............................................................................................... 7- ;g gS fd izkFkhZ dh Hkw[k.M ij ;fn fdlh vU; dk vfrdze.k dCtk ik;k x;k rks mlds ,ot esa vU; Hkw[k.M nsus gsrq U;kl ftEesokj ugha jgsxk rFkk izkFkhZ U;kl esa vHkh rd tek djkbZ xbZ iw.kZ jkf'k fcuk dksbZ C;kt vkfn ds iqu% izkIr djus dks ck/; jgsxkA mijksDr leiZ.kukek eSaus esjh jkth[kq'kh] vDy gksf'k;kjh] fcuk u'ks irs] lksp le>dj LoLFkfpRr o fcuk fdlh tksj tcjnLrh o ncko ds LorU= ,oa LoLFk efLr"d ds fy[kk gS tks lun jgs o oDr t:jr dke vkosA ,l0Mh0 gLrk{kj leiZ.kdrkZ " (emphasis supplied) 45. Further the undertaking filed along with the surrender deed also made a specific reference to the resolution dated 9.1.1997. Where after, the letter of allotment (Ex.-3) dated 31.3.2004 was issued by the UIT. The part of allotment letter in so far as relevant, reads as under:- " fo"k;%& U;kl izLrko la[;k 13@12 fnukad 9-1-1997 ds vUrxZr lefiZr Hkw[k.Mksa ds cnys Hkw[k.Mksa dk vkoaVu@fu;eu fnukad 9-1-1997 dks U;kl izLrko la[;k 13 ( 12 ) ,oa jkT; ljdkj ds i=kad fnukad 18-6-1998 o 25-9-1998] 29-3-2000 ,oa ekuuh; mPp U;k;ky; dh fjV ;kfpdk la[;k 3736@2000 ds fu.kZ; fnukad 30-1-2002 dh vuqikyuk esa vki ls gq, le>kSrs ds vuqlkj vki }kjk U;kl dk;kZy; dks izLrqr leiZ.k i=] v.MjVsfdax ,oa Hkw[k.M lEcfU/kr nLrkostksa ds vuqlkj [kljk uEcj 771 ds vUrxZr [ksr@pd@Hkw[k.M la[;k 22 dk jdck 246-49 oxZ ehVj Hkwfe dks lefiZr fd;k gSA le>kSrs ds vuqlkj lefiZr Hkwfe ,oa nLrkostksa ds cnys esa vkidks U;kl dh ckyksrjk ,os pkSikluh jksM+ ds e/; fLFkr ';keuxj ;kstuk dk Hkw[k.M la[;k 310 ftldh yEckbZ 60 pkSM+kbZ 28 " 6 " dqy {ks=Qy 158-85 oxZ ehVj dk vkoaVu fuEu 'krksZa ,oa vuqca/kksa ds vuqlkj vkoaVu fd;k tkrk gSA 1- mDr ;kstuk esa lM+dksa bR;kfn fodkl dk;Z ,oa ekSds ij dkfct O;fDr;ksa ds f'kfQ~fVax i'pkr~ ;kstuk,a i= ds vk/kkj ij Hkw[k.Mksa dk ekSds ij okLrfod fMekdsZ'ku lEHko gksxk ,oa ekSds ij Hkw[k.M ds eku esa ?kVr cM+r vuqlkj vkidks iznRr Hkw[k.M ds eki esa j)kscny gqvk rks rnkuqlkj vkidks tkjh yht MhM lkbZV Iyku esa vafdr eki esa la'kks/ku vkisf{kr gqvk mls vkidks Lohdkj djuk gksxkA vkidks tkjh yht MhM o lkbZV Iyku U;kl dk;kZy; esa nq:Lrh gsrq is'k djuk gksxk o bl lanHkZ esa fdlh U;k;ky; esa dksbZ mtjnkjh is'k ugha djus dh lgefr izLrqr djus gksxhA " (emphasis supplied) 46. Where after, the lease deeds were executed by the UIT in favour of the respective allottees. 47. A bare perusal of the above quoted parts of the documents, clearly reveal that the land allotted by the UIT/JDA to the complainants was already under encroachment, the title of the allottees was under dispute as the UIT was claiming the land as Government land having been set apart in its favour and the allottees were claiming the same as of their ownership based on the transfer deeds etc. in their favour by khatedars and therefore, the resolution dated 9.1.1997 was passed by the UIT to resolve the dispute and noticing the fact that the land was already under encroachment, it was made part of the resolution that in case of encroachment, it would be the responsibility of the allottees to remove the same and the UIT would provide all possible support. 48. The subsequent documents executed by the complainants made specific reference to the resolution dated 9.1.1997 and the letter of surrender specifically indicated the condition that if the plot was in possession of any encroacher, the Trust would not be liable to allot another plot and the amount deposited would be refunded without any interest. The undertaking along with the letter of surrender also noticed the resolution dated 9.1.1997. Further the letter of allotment specifically made reference to the resolution and in fact, the allotment itself was made pursuant to the resolution dated 9.1.1997. 49. The very fact that all the documents made specific reference to the resolution dated 9.1.1997, which contained the stipulation, regarding the responsibility of the allottees to take proceedings for eviction of the encroachers, it cannot be said that the complainants were issued the lease deeds without their being aware of the condition as indicated in the resolution and their specific agreement by way of letter of surrender, cannot be ignored. 50. The contents of clause 1 of the letter of allotment (quoted supra), on which heavy reliance was placed by learned counsel for the respondents, also cannot be read divorced from the context and in isolation. The reference to shifting of the persons in possession only pertained to the encroachers already in possession and the condition cannot be read to mean casting obligation on the UIT/JDA to remove them despite resolution dated 9.1.1997. 51. The reference to shifting of the persons in possession only pertained to the encroachers already in possession and the condition cannot be read to mean casting obligation on the UIT/JDA to remove them despite resolution dated 9.1.1997. 51. Learned counsel for the respondents during course of submissions frankly admitted before this Court that the respondents-complainants were aware of the said condition and gave undertaking in this regard. 52. In view of the above categorical material available on record and specific admission made before this Court regarding the respondents-complainants being well aware of the condition, the respondents having accepted the condition, entered into the contract with open eyes and aware of the grounds situation regarding the land in question being already in possession of the encroachers, cannot be permitted to now turn around and claim relief based on the allegations made in the complaints before the District Forum claiming deficiency in service on part of the UIT/ JDA on its alleged failure to deliver the vacant possession of the plot in question. 53. So far as the submissions made by learned counsel for the respondents and the finding recorded by the learned Single Judge regarding the condition being against the law, non-est, not enforceable, against public policy and ultra-vires is concerned, the said findings and the submissions may have substance in abstract only, however, in view of the admitted ground realities, wherein the land in question even before passing of the resolution dated 9.1.1997, was already under encroachments and the respondents despite being well aware of the said aspect acted on the resolution and entered into agreement, whereby they sought to surrender their encroached land in favour of the UIT/JDA and got lease deeds issued of the plots of land, whereby clearly the attempt on their part has been to convert their imperfect title, which was under cloud on account of the claim of UIT, to a perfect title, it cannot be said that the condition imposed vide resolution dated 9.1.1997, which was readily agreed to by the respondents- complainants would be void/ non-est, against public policy or ultra-vires. 54. The determination of the learned Single Judge regarding the condition of the resolution being ultra-vires and void in absence of any challenge in this regard by any of the parties, in a writ petition filed by the UIT/JDA, while exercising certiorari jurisdiction also cannot be sustained. 55. 54. The determination of the learned Single Judge regarding the condition of the resolution being ultra-vires and void in absence of any challenge in this regard by any of the parties, in a writ petition filed by the UIT/JDA, while exercising certiorari jurisdiction also cannot be sustained. 55. Besides the above, the complainants did not disclose the condition of resolution dated 9.1.1997 before the District Forum and the judgment was passed by the District Forum on the assumption that when the respondents surrendered the land, the same was not encroached, which aspect and consideration in view of the submissions made is factually incorrect. 56. Further when the said condition was relied on by the appellant JDA/UIT, the same was brushed aside by observing that the condition was unilateral and as the JDA/UIT has power under the JDA Act, it cannot get absolved from the liability of evicting the encroachers, such adjudication by the District forum dehors the material on record, cannot be sustained. 57. Hon'ble Supreme Court in the case of Susanta Kumar Mishra (supra) held that in absence of challenge to relevant terms, the complainant cannot approach the forum. It was observed as under:- "21. When a lessee signs without protest an agreement agreeing to pay interest at a given rate from a given date in given circumstances, and does not contend that the term relating to instalments or interest is invalid or inequitable, it is not open to the consumer forum to grant any relief. A demand for any amount due in terms of the unchallenged terms of an agreement, does not furnish a cause of action to the lessee/allottee to approach the consumer forum." 58. In view of the above even on merits, on account of unchallenged stipulation in the resolution, the letter of surrender and allotment letter, the complainants apparently were not entitled for grant of the reliefs as granted by the District Forum. 59. The submission made by learned counsel for the respondents that against the appellant order passed by the State Commission, the appellant had alternative remedy of revision before the National Commission and as such, the writ petitions filed by them itself were not maintainable, has apparently, no substance in so far as the present appeal is concerned, inasmuch as, no such objection was raised before the learned Single Judge. 60. 60. The Hon'ble Supreme Court in Hindustan Petroleum Corporation Ltd. v. Super Highway Services : (2010) 3 SCC 321 has held that unless the objection of alternative remedy is raised in the first instance, the exercise of writ jurisdiction cannot be questioned thereafter and therefore, the submission has no substance and the same is, therefore, rejected. 61. In view of the above discussion, the appeals filed by the JDA are allowed. The judgment passed by the District Forum, appellate order passed by the State Commission and the judgment of the learned Single Judge dismissing the writ petitions cannot be sustained and as such, the same are set-aside. The complaints filed by the respondents-complainants before the District Forum are dismissed.No order as to costs.Appeals allowed. *******