Rajasthan

StateCommission

A/490/2022

Rajasthan Housing Board - Complainant(s)

Versus

D.P. Sharma - Opp.Party(s)

P.S. Tomar

05 Jul 2023

ORDER

THE RAJASTHAN STATE CONSUMER DISPUTES REDRESSAL COMMISSION,JAIPUR

 

FIRST APPEAL NO: 490/2022

1. Rajasthan Housing Board through Dy. Housing Commissioner, Circle-II,Mansarovar, Jaipur.

2. Accounts Officer (Recovery), Jaipur Circle-II, Rajasthan Housing Board, Mansarovar, Jaipur. ….Appellants/Opposite parties

 

Vs.

D.P.Sharma s/o Sh.Umrao Prasad Sharma r/o C-11, Radha Nikunj Colony, Muhana Road, Mansarover, Jaipur.

…. Respondent/complainant

 

Date of Order 05.07.2023

Before:

Hon'ble Mr. Atul Kumar Chatterjee- Member Judicial

Hon'ble Mr. Ramphool Gurjar- Member

Present:

Mr. P.S.Tomar learned counsel for the appellants/opposite parties

Mr. Ravindra Sharma learned counsel for the respondent/complainant

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BY THE STATE COMMISSION ( PER HON'BLE MR.ATUL KUMAR CHATTERJEE, MEMBER JUDICIAL)

 

This appeal has been preferred by the appellants/ opposite parties against the judgment of learned District Consumer Commission,Jaipur 4^th Jaipur dated 18.7.2022 passed in Complaint Case No 318/2019. By this judgment the learned DCC has allowed the complaint filed by the respondent/complainant and has ordered to refund the amount received from respondent/complainant as ancillary service charges Rs.2,09,318/- alongwith interest @ 9% p.a. w.e.f. 19.9.2016 the date of receipt of this amount and Rs. 24,162/- received from the respondent/complainant as lease money alongwith interest @ 9% p.a. w.e.f. 22.11.2018 (the date of receipt). Besides this Rs. 40,000/- has been allowed in lieu of mental and physical pain/agony and Rs. 10,000/- as litigation expenses. It has also been ordered that on failure to pay this amount within two months of date of judgment, it would carry interest @ 9% p.a. w.e.f. the date of judgment i.e. 18.7.2022.

 

Briefly stated the facts of this case are that

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respondent/complainant had purchased in auction a commercial Plot No. CB/G/S/51 measuring 13.50 sq.mt. in the Convenient Shopping Center-G, Commercial Belt-B Scheme of appellant Housing Board for a consideration of Rs. 44,75,886/-. The respondent/complainant has alleged that the appellant Housing Board has wrongly received Rs. 2,09,318/- as ancillary service charges and Rs. 24,162/- as lease money despite depositing Rs.40,952/- as lease money upto July 2017 on 18.9.2016 and also depositing one time lease amount Rs. 3,29,665/- on 30.6.2017. As such alleging deficiency in service as well as adopting unfair trade practice the respondent/complainant demanded refund of the aforesaid amount alongwith interest, compensation @ Rs. 2 lakhs and litigation expenses @ Rs. 21,000/-.

 

The appellants/ opposite parties in their joint reply have, while referring to clause no. 23.2 of Principle of Costing, 2010 promulgated by appellant Housing Board and two office orders averred that the ancillary service charges are recoverable @ 5% from every applicant and have further averred that the respondent/complainant had deposited voluntarily this amount. As regards lease money it has been averred by the appellant

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Housing Board that as per rules the lease amount is chargeable half yearly in the months of January and July every year and it is calculated with effect from the date of possession by the allottee and since the respondent /complainant had taken over the possession on 22.11.2016, the lease amount was calculated w.e.f. January 2017 and the amount of Rs. 24,162/- was taken from the complainant as lease amount for January 2017 to July 2017.

 

The learned DCC having considered the pleadings and evidence of both the parties passed the impugned judgment allowing the complaint of respondent/complainant as stated above. Being aggrieved of this judgment this appeal has been preferred by the appellants/opposite parties.

 

We have heard the learned counsels of rival sides and have gone through the entire record.

 

The learned counsel for the appellants/opposite parties has more or less reiterated the contents of the memo of appeal and has also referred to various judgments mentioned in the memo of appeal itself. It is to be noted here that the learned

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counsel for the appellant Housing Board has in a way traversed beyond the established norms of law of pleadings wherein it is desirable from a party not to quote judgments which are suppose to be referred either in the written submissions or while submitting the arguments orally, in pleadings. In our humble view the reasons are best known to the learned counsel for the appellant Housing Board as to why his good self has quoted so many judgments of the Hon'ble apex court and the National Commission in the memo of appeal.

 

In the contentions the learned counsel for the appellant Housing Board has mainly tried to emphasize that the judgment of the learned DCC falls within the purview of “Per incuriam judgment” and for this purpose he has referred the judgment of Hon'ble NCDRC passed in Passport officer Vs. Richa Bhandari (2016 (3) CPJ 581. We have perused this judgment very respectfully and we find that the context in which this judgment has been passed by the Hon'ble NCDRC is entirely different because Hon'ble NCDRC has opined that “ If a decision is rendered without taking note of earlier decision of Co-ordinate or Larger Bench, such decision does not constitute a binding precedent.” It would mean that

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the principle of per incuriam is applicable for the purpose of arriving at a conclusion as to which decision can be said to be a per incuriam decision and this is a principle of regarding judicial precedents. As such it would not apply at all in respect of a judgment of learned DCC as referred by the learned counsel for the appellant Housing Board. In our humble view this contention is found to be totally misconceived.

 

Besides this the appellant Housing Board has raised certain legal points. The first objection is that the complainant purchased a commercial property and has no where in complaint stated that the said commercial property is for his livelihood as such the complainant does not fall within the meaning of 'consumer' under section 2 (d) of the Consumer Protection Act, 1986.

 

Since the objection regarding purchase of commercial plot or the transaction being done for commercial purpose has not been taken in the reply of the appellant Housing Board,the appellant Housing Board has tried to emphasize that this objection being a legal objection based on pure question of law as such this can be raised even at the stage of appeal. On this

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point the appellant Housing Board has referred following precedents:

 

2010 (9) SCC 157- Greater Mohali Area Development Authority Vs. Manju Jain

2007 (3) AIR Bom. R. 197 Kaushalyabai Biharilal Pateriya Vs. Heeralal Bhagwandas Gupta

2017 (5) RCR (Civil) 38, Haryana Financial Corporation Vs. Deepak Singhal and ors.

 

The second objection is that since the respondent/complainant has purchased commercial plot in auction as such he is not a 'consumer' under Consumer Protection Act, 1986. On this point appellant Housing Board has referred following precedents:

 

2015 (2)CPJ 36, Delhi Development Authority Vs. Praveen Kumar

2015 (1) CPJ 432, RHB Vs. Rahu Sen

1995(2)CPJ 3, Ashok Tayal Vs. DDA

1993 (2) CPJ 166, Ravin Bahti Land Development and Finance P.Limied Vs. PNB Bank

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2017 (4) CPJ 539, Col. M.S. Thapa & ors. Vs. SNG Developers

 

Another objection is regarding the complaint being filed beyond period of limitation saying that cause of action arose on 20.7.2016 when the amount of ancillary service charges and lease money were demanded and admittedly the complaint was filed on 17.5.2019 making it beyond limitation. On this point appellant Housing Board has referred following precedents:

2013 (4) CPR (SC) 427, SBI Vs. M/s. B.S. Agriculture

(2015 (1) CPR (NC) 558 ) ( 2015 (1) CPJ 672 (NC) Harbhajan Sharma Vs. HUDA

RP No. 3338/2007, Harpal Arya Vs. Housing Board Haryana

2015 (1) CPJ 691 (NC), HCL Ltd. Vs. Bureau of India Standards

2015 (1) CPJ 105 (NC), Pappy Mangaratanam Vs. Sai SHA Finance

 

During the course of arguments the learned counsel for the appellant Housing Board has also tried to emphasize that

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the respondent /complainant is a former District Judge and had been the President of Permanent Lok Adalat too as such he would know the niceties of the Consumer Protection Act and would make averments accordingly.

 

As such on the basis of memo of appeal and the above referred judgments of Hon'ble the Supreme Court or NCDRC the learned counsel has argued that the impugned judgment dated 18.7.2022 of learned DCC Jaipur 4^th Jaipur is not sustainable in the eye of law as such the appeal shall be allowed.

 

Per contra the learned counsel for the respondent complainant has vehemently opposed the contentions of the learned counsel for the appellant Housing Board and contends that admittedly no any objections regarding non-maintainability of the complaint or complainant not being a 'consumer' under the Consumer Protection Act, 1986 or non application of Consumer Protection Act in the matter of auction purchase and the complaint being filed beyond limitation has been taken in the reply of the appellants/ opposite parties before the learned DCC. According to him the

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various judgments cited by the learned counsel for the appellants/ opposite parties are entirely based on different sets of facts and circumstances as such not applicable in the case in hand. He also argued that the respondent/complainant has simply alleged deficiency/unfair trade practice against the appellants/ opposite parties in respect of charging ancillary service charges and the lease money of Rs. 2,09,318/- and Rs. 24,162/- respectively. The complainant has nowhere questioned about the amenities of physical condition of the property so purchased in auction as such he would not fall outside the purview of Consumer Protection Act, 1986 despite the property being of commercial nature and being purchased in auction.

 

We have pondered upon the rival contentions and have gone through the entire record.

 

It is more or less undisputed that the appellants/opposite parties have nowhere in their reply averred about the non-maintainability of the complaint because of the property being commercial nature and being purchased for commercial purpose by the respondent/ complainant. Further there is no

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objection in the reply regarding non-applicability of the Consumer Protection Act, 1986, in the matter of auction purchase. Also there is no objection regarding limitation in the reply as such we find that the above objections have been raised before the State Commission in the appeal for the first time.

 

Here we deem it proper to refer to the provisions of Sec. 12 (3) of the Consumer Protection Act, 1986 which reads as under:

“12.Manner in which complaint shall be made:-

(1) …........

(2)...............

(3) On receipt of a complaint made under sub-section (1), the District Forum may, by order, allow the complaint to be proceeded with or rejected;..............”

 

Further Sec. 13 of the Consumer Protection Act, 1986 provides for the procedure on admission of complaint.

 

From the bare perusal of the record of the learned DCC Jaipur 4^th Jaipur, we find that after filing of the complaint on

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17.5.2019 the learned DCC fixed the matter on 17.6.2019 and has ordered that after perusal of the complaint it has been held to be capable of being heard by the District Forum ( Now District Commission ) as such an order was made to register the complaint and issuance of notice to the opposite parties. From the record it is also clear that the appellants/ opposite parties filed their reply on 26.8.2019 wherein as stated above no objections, whatsoever, were taken regarding non-maintainability of the complaint on the basis of the property being of commercial nature or transaction being made for commercial purpose and/or, complainant being auction purchaser would not fall within the meaning of 'consumer', or complaint being filed beyond limitation.

 

In our humble view since the learned DCC has found the complaint admissible and capable of being heard by the learned DCC itself and has thus proceeded u/s 13 of the C.P. Act,1986 after admission of the complaint because there was no objection whatsoever regarding admission of complaint by the appellants/opposite parties, therefore, now at the stage of appeal the appellants/ opposite parties cannot be allowed to raise these issues as being pure question of law because in our

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humble view the above objections does not involve pure question/s of law but are on mixed question of facts and law thus, renders the objections not liable to be raised at this stage. Further legally the appellants/opposite parties cannot be allowed to put forth an entirely new case in appeal whereas nobody prevented them from raising these objections in the reply of the complaint.

 

It is also worthwhile to mention that as stated above the learned counsel for the appellants Housing Board has submitted that the complainant had been a former District Judge as well as Chairperson of Permanent Lok Adalat that would itself imply that the complainant/ respondent is not a business person. As such even if the property is of commercial nature, it cannot be assumed that the respondent/complainant would himself run any business in the premises. At the most he would let out the premises to a third person on rent which would provide him extra earning so that he can run his retired life smoothly with the aid of the amount so received as rent from the disputed property. Besides this admittedly since the appellants/opposite parties have not objected in their reply it would obviously imply that the appellants/opposite parties

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have admitted the eligibility of respondent/ complainant for being a valid 'consumer' under the Consumer Protection Act, 1986.

 

So far as the respondent/complainant being an auction purchaser, in our humble view all the judgments referred on this point revolved around the issue that since the auctions are being made for the property on “ As is where is basis” therefore, after purchase of such property in auction the complainant cannot allege deficiency regarding amenities related to the property. In the present case as stated above the respondent/complainant has nowhere raised any issue regarding the lack of amenities or any defect in the physical condition of the property but has alleged wrong charging of ancillary service charges i.e. Rs. 2,09,318/- and lease money i.e. Rs.24,162/-. In our humble view even if the respondent/ complainant has purchased the disputed commercial property in auction still he can raise objection regarding recovering of ancillary service charges and lease money wrongly against established norms by the appellants/ opposite parties.

 

Now we would ponder as to whether the finding of the

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learned DCC ( Commission ) regarding wrong recovery of ancillary service charges and lease money from the respondent/complainant can be disturbed on the basis of the grounds raised in the appeal.

 

As regard ancillary service charges the learned DCC has mainly based its finding on the fact that in the bid application format submitted by the respondent/complainant in the condition of auction at S.No. 17 it has been mentioned that charges payable under the rules as lease money, service tax and other miscellaneous charges would be recoverable alongwith the final bid amount.

 

During the course of arguments the learned counsel for the appellants/opposite parties has referred to clause no. 23.2 of the Principles of Costing , 2010 “Ancillary Service Charges” which provides as under:

“ The ancillary service charges shall be recovered in one installment before handing over possession from all categories of houses including SFS as follows:

EWS, LIG 0%

MIG-A, MIG-B, HIG & SFS 3%

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Commercial 3%

Institutional 3%”

 

From the bare perusal of the above provision at the out set it is revealed that this provision relates to various categories of houses including SFS and not to the properties sold as shops. Otherwise also even if the provision is taken as such, since there is no mention about applicability of such charges ( ancillary service charges) in the condition no. 17 in the bid application, the ancillary service charges under condition 23.3 cannot be recovered from the respondent/complainant.

 

On the basis of above discussions, we arrive at a conclusion that the basis upon which the finding of the learned DCC 4^th Jaipur is based regarding wrong recovery of ancillary service charges from the respondent/complainant is correct in the eye of law and is not liable to be disturbed on the grounds raised in the appeal.

 

As regards lease money it is admitted that in the letter dated 3.11.2016 a No Dues Certificate has been given. Besides this the respondent/complainant has deposited Rs. 3,29,665/-

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under the head of service tax Rs. 42,999/-, lease money (commercial ) Rs. 2,86,665/-. As such it would imply that on 30.6.2017 no lease money of any earlier period was lying due against the respondent/complainant. In our humble view had there been any lease money of January to June 2017 due as alleged by the appellants/opposite parties, it would have been included in the amount so deposited as one time lease money by the respondent/complainant on 30.6.2017. In such circumstances it can obviously be inferred that charging of Rs.24,162/- as lease money cannot be held to be correct as such on this point too the findings of learned DCC does not require any interference as prayed for in the appeal.

 

So far as the objection regarding limitation is concerned, we find that the respondent/complainant has in para no. 14 of the complaint mentioned that limitation starts from or cause of action arisen on 22.11.2018, the date on which the amount of Rs. 24,162/- was charged from the respondent/complainant and w.e.f. 16.9.2016 the date of charging Rs. 2,09,318/- as ancillary service charges and is continuing till the date of filing of the complaint i.e. 17.5.2019.

 

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In para 14 of the reply the appellants/opposite parties have simply mentioned that the facts contained in para 14 are completely false and incorrect as such not admitted. In our humble view the way in which the appellants/opposite parties have tried to emphasize that cause of action had arosen on 20.7.2016 cannot be held to be correct because the cause of action would definitely arise from the date of recovery and not from the date of demand of that money. In this way the objection regarding limitation is also found to be untenable.

 

On the basis of above discussions, we find that the objection raised by the appellants/opposite parties in the appeal are not tenable and the finding of the learned DCC regarding recovering of ancillary service charges and lease money wrongly/ inappropriately from the respondent/complainant are also not liable to be disturbed on the basis of the grounds raised in the appeal. As such the appeal does not deserve to be allowed on merits. Hence, the same is hereby dismissed. No costs.

 

(Ramphool Gurjar) (A.K.Chatterjee)

Member Member Judicial

 

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