1.       The present Revision Petition (RP) has been filed by the Petitioner against Respondent as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the order dated 30.10.2018 of the State Consumer Disputes Redressal Commission Chhattisgarh (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 730 of 2018 in which order dated 26.06.2018 of Rajnandgaon District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum) in Consumer Complaint (CC) no.228 of 2017 was challenged, inter alia praying for setting aside the order dated 30.10.2018 of the State Commission.

2.       While the Revision Petitioner (hereinafter also referred to as Complainant) was Appellant before the State Commission and Complainant before the District Forum, the Respondent (hereinafter also referred to as OP) was Respondent before the State Commission and OP before the District Forum.

3.       Notice was issued to the Respondent on 09.09.2019. Petitioner filed Written Arguments/Synopsis on  04.08.2023.  On account of absence despite notice, Respondent was proceeded ex parte vide order dated  25.01.2024.

4.       Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that in an auction, the complainant stood highest bidder  for   the purchase of Shop No.G-5.  Accordingly, the complainant was successful bidder.  She deposited Rs.1,54,507/- as security amount and thereafter on 14.08.2014 she deposited a sum of Rs.5.00 lacs as premium in compliance of the terms and conditions.  It is alleged by the complainant that as per the terms and conditions of the OP, within 30 days from the sanction of appropriate authority, as the Complainant had not deposited the remaining cost of the shop i.e. Rs.13,45,493/-, the entire amount deposited was forfeited.  The complainant wrote many letters including letter dated 08.09.2015 through which the Complainant asked for return of money deposited by her.  Further, on account of condition of shop, situation and other connected circumstances, non installation of electricity and other insufficient service, the complainant gave proposal to the OP for return of her money as she did not want to purchase the said shop, but despite the letter dated 08.09.2015, the Municipal Corporation illegally forfeited the entire amount, though the sanction of the appropriate authority was granted vide order dated 17.07.2015 but according to the complainant, the same was communicated to her after more than one year, which shows that OP was avoiding to provide appropriate services.  Further, the 30 days limitation as per terms of Municipal Corporation is  not covered.  At the most, Municipal Corporation could have forfeited the security amount but for Rs.5.00 lacs deposited as premium, the same should have been returned to her as she had already tendered her request for return of money as she was not interested in purchasing the said shop.  Being aggrieved, the Complainant filed CC before the District Forum and District Forum vide order dated 26.06.2018 dismissed the complaint of the Complainant. Being aggrieved, the Complainant preferred an Appeal before the State Commission which was also dismissed.  Hence, the Petitioner is before this Commission now in the present RP.

5.       The appeal was dismissed by the State Commission primarily on account of maintainability, the complainant not being a consumer under Section 2(1) (d) of the Consumer Protection Act. The main issue to be considered in the present case is with respect to the maintainability, whether the complainant is a consumer under Section 2 (1) (d) of the Consumer Protection Act. The shop in question has been bought by the complainant in auction. The complainant contends that it was not for commercial purpose but for her livelihood. It is further contended that the auction was not on ‘as is where is’ basis but respondent Municipal Corporation was obligated to provide certain facilities like electricity and water etc. The petitioner has placed on record copies of the rules and regulations of the auction as well as copies of some communications addressed to Municipal Corporation to show that the requisite facilities were not there when the auction was done.

6.       The issue of maintainability of complainant / whether the Complainant is Consumer under section 2 ( 1) ( d) of the Consumer Protection Act, 1986 has been examined in the light of the observations / decisions of the Hon’ble Supreme Court / National Commission in following cases :

a.       UT Chandigarh Administration and Another Vs. Amarjeet Singh and Ors. (2009) 4 SCC 660

b.       Haryana State Agricultural Marketing Board Vs. Bishamber Dayal Goyal and Others (2014) 16 SCC 24

c.       Delhi Development Authority Vs. Parveen Kumar and Anr.- RP No. 3649 of 2014

7.       What emerges from the above cited cases is that where a Public Development Authority having invited applications for allotment of sites in a layout to be formed or houses to be constructed and delivered, fails to deliver possession by forming the layout of sites or by constructing the houses within the stipulated period, the delay may amount to a deficiency in service by treating the development authority as a service provider and the allottee as a consumer.  But where existing sites are put up for sale or lease by public auction by the owner and the sale/ lease is confirmed in favour of highest bidder, the resultant contract relates to sale or lease of immovable property.  There is no hiring or availing of services by the person bidding at the auction.  However, this condition applies when the auction is on ‘as is where is basis’ and when the sites auctioned are existing sites, without any assurance / representation relating to amenities, the question of deficiency of service does not arise.  However, when sale of sites / houses in public auction involve provision of certain amenities / facilities, in the event of failure on the part of such development authority to provide the promised facilities / amenities, it would amount to deficiency of service and purchaser of such site / house would a consumer under the Consumer Protection Act, entitled to seek relief under the provisions of the Act.

8.       In the present case on careful consideration of the entire facts of the case and certain communications to which our attention was drawn by the learned counsel for the petitioner during the hearing on 06.06.2024 under which, even a request was made to the Respondent Municipal Corporation to postpone the said auction on the ground that certain amenities / facilities were still lacking, we are of the opinion that in the present case notwithstanding that plot in question has been sold in auction, the Respondent Corporation was obligated to fulfil its assurances in terms of providing the required facilities / amenities and failure to do so would constitute a deficiency in service on their part.  Hence, the complaint in question would be maintainable.  Hence ,we are of the considered view that both the Fora below went wrong in concluding that Complainant is not a Consumer and the complaint is not maintainable.  Hence, the order of the State Commission cannot be sustained and same is hereby set aside.

9.       On merits, as regards the contention of the Petitioner herein with respect to refund of the security amount, it is contended by the Petitioner that they have paid a total amount of Rs.6,54,507/- and the whole amount is not the security amount. Out of this amount, only an amount of Rs.1,54,507/- constitute the security amount the remaining Rs.5 lakhs was towards premium. Hence even if the Municipal Corporation is to forfeit the amount on account of the petitioner not taking the shop and depositing the remaining amount, the maximum which can be forfeited by the corporation is Rs.1,54,507/- and not the entire amount. Although condition no. 1 of the rules and regulations relied upon by the complainant states that the security amount shall not be less than 25% of the estimated value of the property, which in the present case is Rs.20 lakhs, the petitioner contends that the auction was held on 07.08.2014, amount of Rs.5 lakh was deposited only after the auction on 14.08.2014 which will show that this amount was not part of the security deposit, as otherwise the deposit of the entire security amount is the condition precedent for participating in the auction. The petitioner contends that only an amount of Rs.1,54,507/- was deposited on the date of auction i.e. 07.08.2014 and hence only this constitutes the security deposit.

10.     After carefully considering  the entire facts of the case and all relevant records, in particular the rules of the auction and the fact that on the date of auction only an amount of Rs.1,54,507/- was deposited and the remaining amount of Rs.5.00 lacs was deposited subsequently on 14.08.2014, we hold that in the present case, agreeing with the contentions of the Petitioner, only an amount of Rs.1,54,507/- constitute the security amount and not the entire amount of Rs.6,54,507/-.  In the present case, as the petitioner herein defaulted in making the balance payments as per the required schedule, based on the demands raised by the respondent Corporation, the Respondent Corporation is entitled to forfeit the security amount only.  However, the maximum amount which they can forfeit towards security amount is Rs.1,54,507/- only.  Hence, their action of forfeiting the entire amount of Rs.6,54,507/- is  not correct.  Accordingly, Respondent Corporation is hereby directed to refund the amount of Rs.5.00 lacs to the Petitioner herein alongwith Simple Interest @ 9% p.a. w.e.f. date of deposit i.e. 14.08.2014 till the date of refund. The entire payment as per this order should be made within 45 days of this order, failing which amount payable at the end of 45 days of this order shall carry interest @ 12% p.a.  RP is disposed off accordingly.

11.     The pending IAs in the case, if any, also stand disposed off.