AVM J. RAJENDRA, AVSM, VSM (RETD.), MEMBER

1.      The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) against the Order dated 20.09.2016 passed by the Punjab State Consumer Disputes Redressal Commission (hereinafter referred as “the State Commission”), in Consumer Complaint No.95 of 2013, wherein the Complaint filed by the Complainant (Appellant herein) was dismissed on grounds of maintainability.

2.      There is 16 days delay in filing the present Appeal. For reasons stated in IA No. 3589/2018, the delay is condoned.

3.      For the sake of Convenience, the parties in the present case are being referred to as mentioned in the Complaint before the learned State Commission. “Shri Vijay Kumar Mahajan” is referred as Complainant (Appellant herein). While “The Chief Administrator, Punjab Urban Development Authority (PUDA).” is referred to as the Opposite Party/OP-1 (Respondent No. 1 herein), M/s Bajwa Developers Ltd, through its Managing Director is referred to as the Opposite Party/OP-2 (Respondent No. 2 herein) and Shri Hardip Singh is referred to as the Opposite Party/OP-3 (Respondent No. 3 herein) in this matter.

4.      Brief facts of the case, as per the Complainant/Appellant, are that that OP-3 was allotted a plot by OP-2, vide allotment letter dated 02.02.2011, at serial No.512 situated in Jandpur area, Sunny Enclave, Kharar, District Mohali, measuring 248.89 Sq Yds, for a total consideration of Rs.11,19,600. Relying on this letter and the layout plan presented by OP-3, which depicted roads on three sides, situated on 200 feet wide main road of Aero City and an adjacent vacant plot with a high-tension wire/pillar, the Complainant was convinced. Under an Agreement to Sell dated 11.02.2011, he agreed to buy the plot for total consideration of Rs.54,75,580 @ Rs.22,000 per Sq Yd. The Complainant paid Rs.27,50,000 in cash as earnest money, which was acknowledged in a receipt on the same day. The final transaction date was set for 10.04.2011. However, on 04.04.2011, the OP-3 insisted that he would retain 30% ownership of the plot, and the Complainant could acquire the remaining 70% by paying an additional Rs.10,82,906. Following this agreement, the Complainant issued a cheque for the that amount in favor of OP-2. This payment led to the Complainant becoming the owner of 70% of the plot, as indicated in the Receipt-cum-Agreement dated 04.04.2011, which was endorsed on the back of the original agreement.

5.      It was alleged by the Complainant that OP-3, with malicious intent, imposed a condition allowing them to sell the plot to any other party at the rate of Rs.23,000 per Sq Yd and receive the Sale amount in a 70:30 ratio or buy the remaining share themselves at the quoted rate. However, the Complainant being solely interested in utilizing the entire plot for constructing their house was unwilling to sell or purchase the remaining share. Despite investing substantial sum of Rs.38,32,906, the Complainant felt compelled to acquire the remaining 30% at an increased cost of Rs.17,17,000 from OP-3. This payment was acknowledged through a receipt at the last page of the agreement. Additionally, an outstanding balance of Rs.4,05,000 was agreed upon, payable during the registration of the Sale Deed after the development of the plot in compliance with OP-1's regulations. It was further alleged that the Complainant was always ready to pay the outstanding amount. However, OP-3 delayed the matter, citing the undeveloped status of the plots, including the disputed plot, by OP-2. Consequently, neither possession of the plot was transferred, nor the Sale Deed was executed, despite the complainant's consistent willingness to fulfil their contractual obligations. Subsequently, on 10.07.2013 he submitted an application under RTI Act, 2005, and received the following information: -

“Opposite party No.2, vide application No.1080 dated 10.03.2011, applied for grant of package of incentives for setting up Mega Residential Project in the Revenue Estate of Village Jandpur, Sihanpur, Hassanpur, Tehsil Kharar, District Mohali, in PUDA area with an estimated investment of 425 Crores. That proposal was considered by the empowered committee on Mega Project constituted under the Industrial Policy, 2009, under the chairmanship of the Chief Minister, in the meeting held on 22.06.2011 and on the recommendations of the Screening Committee in its meeting held on 21.07.2011, the project was approved, subject to the conditions mentioned in the Letter of Intent issued by opposite party No.1. As per Clause 6 of that letter, opposite party No.2 was to give its consent with regard to the terms and conditions mentioned therein and to sign the agreement within six months of the date of issuance of that letter. That agreement was executed by that opposite party with opposite party No.1 on 16.09.2011 and as per Clause 6 (i) of that agreement, it was made clear that opposite party No.1 agreed to provide concessions to opposite party No.2, as per the Letter of Intent, subject to the terms and conditions mentioned in the agreement itself. Thereafter, Notification dated 18.06.2013 was issued by the Secretary, PUDA, in the exercise of the powers vested in him, under Section 44 (2) of the PAPRA (Punjab Act No.14 of 1995) and all other powers, enabling him to act in that behalf. Vide that Notification, the Governor of Punjab pleased to exempt 159.28125 acres from the provisions of PAPRA, except Sections 5 (9) and 32, subject to the terms and conditions mentioned in the Notification itself.”

6.      The Complainant submitted that, as per the terms and conditions of the Letter of Intent, OP-2 was prohibited from advertising or launching any project and collecting money from public through land, plot, or flat allotments until the Layout Plan/ Zoning Plan received approval from the Competent Authority and exemption under Section 44 of the PAPRA was granted by the Govt. Therefore, OP-2 was not authorized to allocate plots, assign plot numbers, or collect money through allotment letters prior to the issuance of the Notification dated 18.06.2013. By issuing allotment letters to OP-3 and others, OP-2 engaged in fraudulent acts, selling plots in violation of the terms and conditions in the Letter of Intent, Agreement, and the Notification. Consequently, OP-1 is obliged to take appropriate action against OP-2 for such deceptive practices. Further, he discovered that OP-2 submitted a Layout Plan for approval on 15.05.2012, but it was sanctioned only on 09.07.2012 by the Senior Town Planner for calculation purposes. This did not include plot numbers 509-530. However, the Layout Plan approved by the Chief Town Planner on 26.04.2013 included plot No.512 as an ordinary plot of 200 Sq Yds, different from the 248.89 Sq Yds plot he had purchased. As per the approved plan, this was situated at a different location without promised roads. Consequently, OPs 2 & 3, through collusion, defrauded the Complainant by accepting a substantial amount of Rs.51,44,906 in order to cause wrongful gain to them and wrongful loss to the Complainant, based on a spurious layout plan without approval of the Chief Town Planner. He served notice to OPs 2 & 3, requesting the execution of the Sale Deed for plot No.512 within one month and failure to comply would require them to return of Rs.51,44,906 with interest @ 18% per annum, and Rs.5,00,000 as compensation. Despite the same, neither the Sale Deed was executed nor the specified amounts were paid.

7.      Being aggrieved due to fraud resulted in wrongful gain for OPs 2 & 3 and wrongful loss to the Complainant, he filed a consumer complaint before learned State Commission seeking:-

(a) To direct the Opposite Parties No.2 & 3 to make payment of Rs.51,44,906/- alongwith interest @ 18% p.a. on the above said amount from the date of payment till the date reimbursement.

(b) Compensation of Rs.5,00,000/- along with interest @ 18% per annum from the date of purchase of plot till the date of payment for mental as well as physical torture suffered by Complainant due to fraud played by the Opposite Parties No.2 & 3 with the Complainant by alluring him to purchase the Plot No. 512 measuring 248.89 sq. yds. by preparing forged and fabricated layout Plan which was neither Approved nor Sanctioned by Competent Authority and swallowed the huge amount the Complainant in connivance with each other.

(c)  Costs of complaint may also be allowed in favour of Complainant as against the Opposite Parties.

(d) Any other relief, which this Hon'ble Court may deem fit on the facts and circumstances of the present case may also be allowed to the Complainant in his favour and against the Opposite Parties.

8.      In the reply, OP-1 admitted the facts brought out in the inputs obtained by the Complainant under the Right to Information Act. However, OP-1 clarified that it functioned solely as a Nodal Agency. Issuance of the Letter of Intent did not confer any rights upon OP-2 for the sale or transfer of the property, without proper approvals and necessary Notification under Section 44 of PAPRA. The authority to issue such approvals and notifications rested with the "Department of Housing and Urban Development, Punjab." OP-1 asserted that it was not party to the agreement dated 16.09.2011 between OP-2 and the State of Punjab. OP-1 emphasized that the Layout Plan and Zoning Plan needed approval from the prescribed authority under PAPRA, and the Building Plans were to be sanctioned by the Competent Authority under relevant regulations. OP-1 further contended that the Complainant failed to exercise due diligence by not inspecting the project documents before entering into the alleged agreement with OP-3. Therefore, the Complainant cannot take advantage of his own oversight. According to OP-1, the notice served by the Complainant only sought redressal of his claim against other parties and did not involve a consumer dispute. OP-1 maintained that the Complainant is not a consumer, as he did not avail any services from it. OP-1 asserted that the complaint lacked a valid cause of action and requested its dismissal.

9.      In the reply, OP-2 admitted selling the residential plot to OP-3 and issuing the allotment letter indicating the total cost. OP-2 also admitted that the payment made by the Complainant through a cheque in its name was pending with them. However, OP-2 disputed the characterization of the document referred to by the Complainant as an Allotment Letter, and asserted that it was a "No Due Certificate" issued to OP-3, clearly indicating the full payment for the plot. OP-2 denied any involvement in the alleged Agreement to Sell between the Complainant and OP-3, asserting that the Complainant's relationship was solely with OP-3. According to OP-2, it had no privity of contract with Complainant. The responsibility for fulfilling the agreement rested entirely with OP-3. Emphasizing that it had issued a "No Due Certificate" to OP-3 for the residential plot in question, signifying completion of the payment process OP-2 further stated that the alleged violation of terms and conditions or allegations of fraud were matters to be decided in a criminal court and not within the jurisdiction of a Consumer Commission. The complaint lacked grounds for a consumer dispute, as it did not allege any deficiency in service or unfair trade practice on its part. It maintained that the dispute was of a civil nature, subject to resolution in a civil court through a Specific Performance suit. OP-2 insisted that the complaint should be dismissed on these grounds.

10.    In the reply, OP-3 admitted that the plot at Serial No. 512 was allotted to him by OP-2 and, however, disputed the authenticity of the Agreement to Sell presented by the Complainant. According to OP-3, the Complainant's attempt to portray himself as the absolute owner of the plot based on the alleged agreement was misleading. OP-3 pointed out the discrepancies in the claims, including issue of a cheque in favor of OP-2, which contradicted the Complainant's position as per the alleged agreement. OP-3 accused lack of transparency in the Complainant’s actions and asserted that he was aware of the dubious nature of the alleged Agreement to Sell, as evidenced by his failure to file a civil suit for enforcement. OP-3 highlighted the significant delay of two and a half years between the alleged agreement date and the filing of the complaint, suggesting mal-intent on his part. OP-3 submitted that the complaint did not constitute a valid "consumer dispute" and, therefore, was not within the jurisdiction of the Commission.

11.    After hearing the parties the learned State Commission on 20.09.2016, dismissed the Complaint with the following reasons:-

“14. Even if it is so, can it be held that the complainant had become the consumer of opposite party No.2, by virtue of that agreement or the endorsements thereon? Admittedly, opposite party No.2 was not a party to that agreement. No doubt, it is mentioned in the endorsement dated 04.04.2011 that complainant and opposite party No.3 had mutually decided that the complainant would pay an additional amount of Rs.10,82,906/- by cheque in favour of opposite party No.2 and accordingly paid that amount by means of cheque No.044111 dated 04.04.2011, but neither it has been alleged by the complainant in his complaint that the said amount was paid by the complainant to opposite party No.2, through opposite party No.3, nor he produced any evidence to that effect. This inter-se transaction between the complainant and opposite party No.3 is not binding upon opposite party No.2. It is pertinent to note that the document dated 02.02.2011, Ex.C-4, which has been termed by the complainant as letter of allotment, is in fact the “NDC” (No Due Certificate) issued in favour of opposite party No.3 by opposite party No.2. A perusal thereof shows that it was plot bearing Serial No.512, which was allotted to him and full consideration thereof had been received by opposite party No.2. After that full consideration had been received by opposite party No.2, there was no question of the payment of the further amount to that opposite party. It has been specifically alleged by that opposite party, in its written reply, that the said amount is lying deposited with it, but the same was in respect of the other property. Confidence is created in the correctness of that stand of opposite party No.2 from the evidence produced on the record by the complainant himself. There was no privity of contract between the complainant and opposite party No.2 and at no stage he ever became the consumer of that opposite party. Therefore, the complaint against that opposite party is not maintainable.

15. So far as opposite party No.3 is concerned, the remedy of complainant against that opposite party lies before the Civil Court, as he has based his case against that opposite party on the Agreement to Sell and it is not his case that opposite party No.3 had agreed to provide any service to him. No such jurisdiction vests in the Foras under the Act to enforce the Specific Performance of the Agreement.

16. It is pertinent to note that the complainant has nowhere alleged that he hired or availed of the services of any of the opposite parties and that there was any deficiency in service or that they adopted any unfair trade practice. His complaint is based upon fraud etc. and according to him, as a result of the act, so committed by the opposite parties, they caused wrongful gain to themselves and wrongful loss to him. For that, the complaint is competent, only before the Competent Court of Criminal Jurisdiction.

17. From the above discussion, we conclude that the complaint filed by the complainant is not maintainable under the Consumer Protection Act, 1986 and the same is hereby dismissed.”

12.    Aggrieved learned State Commission’s Order, the Appellant filed the Appeal No. 1450 of 2016 with the following prayer:

“it is, therefore, respectfully prayed that the appeal may be ordered to be allowed with costs, impugned order may be set aside and relief claimed in the complaint may be allowed as prayed for.”

13.    The Appellant raised following grounds in his Appeal:-

(a) The State Commission failed to consider the payment of Rs.10,82,906 by Appellant by cheque dated 04.04.2011, which was acknowledged by Respondent No.2. Also, the site plan approved showed the 200 Sq Yds plot in different location.

(b) The State Commission ignored that the plot was purchased by the Appellant from Respondent No.3, who, in turn, acquired it from Respondent No.2. Therefore, he stepped into the shoes of Respondent No.3, and all contractual obligations between Respondent No.2 & 3 should apply to the Appellant as well.

(c) The State Commission erroneously held that the Appellant should file a civil suit for specific performance despite the willingness of Respondent No.2 to execute the Sale Deed and thus filing of a civil suit is unnecessary.

(d) The State Commission failed to recognize deficiency in service by Respondent No.2, who sold the plot to Respondent No.3 before obtaining approval for layout plan from competent authority. Respondent No.2's claim that they sold the serial number and not the plot, is factually incorrect and contradicts the contents of Annexure A-4, explicitly mentioning 'plot.'

e) The State Commission overlooked the admission of the Respondent No.2 as regards execution of the Sale Deed in favor of the Appellant. It wrongly concluded that the complaint is not maintainable and that the Appellant is not a 'consumer' of Respondent No.2. The Appellant relied on Supreme Court case (M/s Name Construction Private Limited versus Union of India and others, Civil Appeal Nos. 4432-4450 of 2012) that the actual end user is considered a consumer.

14.    Upon being served notice on the Memo of Appeal, the Respondents (OPs) have not submitted any reply or objections.

15.    The learned Counsel for the Appellant/Complainant reiterated the grounds stated in the memo of appeal in his arguments and strongly contended that the learned State Commission erred in ruling that the Appellant is not a consumer and does not fit the definition of a consumer, in the absence of any direct contract with Respondent No. 2. He asserted that the State Commission failed to recognize that the Appellant, in essence, stepped into the shoes of Respondent No. 3, who initially acquired the plot from Respondent No. 2. He pointed that the Appellant had made a partial payment of Rs. 10,82,906 to Respondent No. 2 by cheque. This constituted the total consideration paid by Respondent No. 3 to Respondent No. 2. The situation presented amounted to fraudulent conduct on the part of both Respondent No. 2 and 3, who failed to fulfil their obligations and exhibited deficiency in their services. The learned Counsel asserted that due to this fraudulent activity, the Appellant was entitled to the allotment of the same Plot No. 512, located on the 200 ft. wide road of Aerocity. He further argued that the layout plan, allegedly approved and supplied by Respondent No. 3, indicated a vacant plot on the right side. He urged that the order of the State Commission dated 20.09.2016 be set aside and uphold the relief sought in the complaint.

16.    The learned Counsel for Respondent No. 1 argued that PUDA is not the developer or promoter of the project in question. PUDA has no agreement or relationship with the Appellant and has not received any monetary consideration. PUDA merely acts as a nodal agency to implement the scheme for special incentives under the Industrial Policy, 2009. Therefore, as previously determined by the State Commission in the Impugned Order dated 20.09.2016, there is no consumer-service provider relationship between PUDA and the Appellant. Hence, the complaint against PUDA is not maintainable. The Appellant failed to make any specific allegation of deficiency in service either before State Commission or in the present Appeal, nor did he seek any relief against Respondent No. 1. His grievance appeared to be that Respondent No. 2 allegedly violated the terms and conditions of the Letter of Intent dated 21.07.2011 issued by PUDA, and PUDA did not take action in this regard. However, the Appellant failed to prove any such violation. He emphasized that if it is found that Respondent No. 2 violated the terms and conditions of the Letter of Intent, agreement or notification, or sold plots based on an unapproved layout plan, appropriate action would be taken by PUDA. The learned Counsel sought dismissal of First Appeal No. 1450 of 2016 with costs.

17.    The Counsel for Respondent No. 2 argued that the Appeal be dismissed on the preliminary ground that the Appellant is not a 'Consumer' under Section 2(d) of the Act. He emphasized that the Appellant purchased the plot for investment and commercial use and acquired 70% stake, and Respondent No. 3 purchased 30%, as evident from the Agreement to Sell between them. No cause of action arose against Respondent No. 2 as there was no contract between them. He argued that the Appellant did not claim any deficiency of service against Respondent No. 2 at any stage. They issued an NDC dated 02.02.2011 in favour of Respondent No. 3 for allotment of plot No. 512. The transaction between the Appellant and Respondent No. 3 does not bind Respondent No. 2. Moreover, the dispute was not a consumer dispute within the scope of the Act. He contended that this is a civil dispute which should be decided by a Civil/Criminal court, as correctly held by the State Commission.

18.    The learned Counsel for Respondent No. 3 argued that the dispute raised by the Appellant against Respondent No. 3 is not a consumer dispute, and it cannot be decided in a summary trial. In addition, the original complaint is time-barred, as the agreement is dated 11.02.2011, and the complaint was filed on 17.09.2013, i.e., after a period exceeding 2 years without any application seeking condonation of delay. As per the allegations in the legal notice dated 3.06.2013, it was claimed that all the Respondents conspired and played fraud on the Appellant. This alleged conspiracy, along with the assertion that the layout plan was forged, cannot be adjudicated in a summary trial. Further, as the plot was purchased by the Appellant for commercial reasons.

19.    We have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned counsels for both the parties.

20.    The primary issue in the case revolves around the legitimacy of the property transaction involving the Appellant, Respondent No. 2, and Respondent No. 3. The moot points include the legality and relevance of agreement dated 11.02.2011 between the Appellant and Respondent No. 3 to purchase a plot (No. 512); the Appellant's allegation of fraud and conspiracy against Respondents No. 2 & 3 that they collaborated to deceive him by fabrication of documents and misrepresenting the details of property in question; whether the dispute falls under the purview of consumer protection laws; the nature of contractual relationship between the parties, especially between the Appellant and Respondent No. 2; and the role and scope of liability of Punjab Urban Development Authority (PUDA).

21.    It is an admitted position that the contract in question was between the Appellant and Respondent No.3. The Counsel for the Appellant argued that even in the absence of any direct contract with Respondent No. 2, in essence, the Appellant stepped into the shoes of Respondent No. 3, who initially acquired the plot from Respondent No. 2. It was the Appellant who made the partial payment of Rs.10,82,906 to Respondent No. 2 constituting total consideration paid by Respondent No. 3 to Respondent No. 2. Even if such argument is to be accepted, it cannot be held that the Complainant had become the consumer of Respondent No.2 even when the Agreement in question was not executed by them. While the endorsement dated 04.04.2011 states that he and Respondent No.3 had decided that he would pay an additional Rs.10,82,906 to Respondent No. 2 and thus he paid the amount by cheque dated 04.04.2011, neither the Complainant alleged in his complaint that the said amount was paid by him to Respondent No.2 through Respondent No.3, nor he produced any evidence thereof. Such private transaction between them does not bind others. Pertinently further, the No Due Certificate dated 02.02.2011 was issued in favour of Respondent No.3 by Respondent No.2 acknowledging that the plot Serial No.512 was allotted to him and full consideration thereof had been received by Respondent No.2. Clearly, after full consideration was paid there was no scope for further payment. In any case, there was no privity of contract between him and Respondent No.2 and at no stage he ever became the consumer of Respondent No. 2. Therefore, the complaint against Respondent No.2 is not maintainable. As regards Respondent No.3, the remedy for the Complainant lies before competent Court based on the Agreement to Sell as it is not his case that Respondent No.3 had agreed to provide any service to him. Consumer Fora under the Act have no jurisdiction to enforce Specific Performance of Agreements In any case, at no stage the Complainant alleged that he hired or availed services of any Respondent and that there was deficiency in service or that they adopted unfair trade practices. His complaint is of misrepresentation, fraud etc alleged to have been committed by the Respondents to cause wrongful gain to themselves and wrongful loss to him. Thus, the complaint is liable to be tried in appropriate Civil/Criminal court.

22.    In view of the foregoing deliberations, we find no material irregularity or illegality in the order dated 20.09.2016 passed by the learned State Commission in Consumer Complaint No. 95 of 2013. Consequently, the instant First Appeal No. FA/1450/2016 is dismissed.

23.     There shall be no order as to costs. All pending Applications, if any, also stand disposed of accordingly.