JUSTICE V.K.JAIN (ORAL)

The petitioner invited applications for allotment of residential plots at Chandigarh.  The complainant applied for allotment of a 100 sq. yds. Plot under category ‘A’(General category) vide application No. 28758.  She was declared successful in the draw of lot held on 28.11.2011.  However, the allotment was later cancelled vide letter dated 31.05.2012 on the ground that she was not a resident of Punjab/Chandigarh which was an essential eligibility condition for allotment of the plot.  Aggrieved from the cancellation of the allotment the complainant approached the concerned District Forum by way of a consumer complaint. The complaint was resisted on two grounds that the complainant was not eligible for the allotment of the plot, and that she was not a consumer of the petitioner. 

2.      Vide order dated 25.09.2012 the District Forum allowed the consumer complaint and restored the allotment.  Compensation quantified at Rs. 50,000/- was also awarded to the complainant along-with cost of litigation quantified at Rs. 5,000/-. 

3.      Being aggrieved from the order passed by the District Forum, the petitioner approached the concerned State Commission by way of an appeal.  The said appeal having been dismissed vide impugned order dated 06.07.2015 the petitioner Authority is before this Commission by way of this revision petition. 

4.      The first submission of the Ld. counsel for the petitioner is that the complainant cannot be said to be a ‘consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. Reliance is placed upon the decision of this Commission in Nirmala Devi Vs. Uttar  Pradesh Awas Vikas Parishad II(2015) CPJ 36(NC).

5.      The decision of this Commission in Nirmala Devi (supra) to the extent it is relied upon reads as under:-

8. The first question which arises for our consideration is as to whether the complainant in these cases can be said to be consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act. The aforesaid provision, to the extent it is relevant provides that consumer means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised. The expression ‘service’ has been defined in Section 2(1)(o) of the Act to mean service of any description which is made available to potential users and includes though not limited to the provision of facilities in connection with housing construction. Therefore, the next question which arises for our consideration is as to whether the aforesaid complainants had hired or availed the services of the opposite parties in connection with housing construction.

9. The question of providing services in connection with housing construction, in our view would arise either on allotment of a residential plot or a residential flat which is yet to be constructed, to the applicant or if he is registered and placed in a waiting list, for such an allotment. There would be no question of a person availing or hiring a service in connection with housing construction till either such an allotment is made to him or he is registered for such an allotment. The development of the plots or the construction of houses will be undertaken only for those persons to whom a residential plot or house is allotted, or who is registered for and awaiting allotment of a yet to be developed plot or yet to be constructed house. Also there would be no occasion to undertake the construction of houses for the allottees in a case where a ready builtup house or a fully developed plot is allotted to him, unless, one or more facilities/amenities in relation to the said house/plot are yet to be provided by the concerned Development Authority.

The legal proposition which emerges from the above rendered decisions of the Hon’ble Supreme Court is that a person, who is allotted a flat or a plot to be developed by a statutory authority such as Delhi Development Authority or Avas Vikas Parishad as well as a person, who is registered with such an Authority for the purpose of allotment of such a flat/plot and is awaiting allotment would be a ‘consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. If however, the flat/plot is sold by such a statutory authority by way of a public auction on ‘as is where is’ basis and such sale is not accompanied by an obligation to carry out any further development such as providing/augmenting infrastructural facilities viz. roads, sewerage, electricity, water facilities, etc., the purchaser shall not be a ‘consumer’ within the meaning of Section 2(1)(d) of the said Act.

13. As far as a person who applies for allotment of a plot/flat is concerned, he will not be a ‘consumer’ within the meaning of Section 2(1)(d) of the Act, if neither any allotment is made to him nor he is registered for and awaiting such an allotment. Such a person cannot be said to have hired or availed the services of the concerned development authority in connection with housing. Mere submission of an application for allotment, which does not result either in allotment or registration and consequent inclusion in the awaiting list for such an allotment, does not confer upon him the status of a ‘consumer’ as defined under Section 2(1)(d) of the said Act.”

6.      It would thus been seen that in terms of the above-referred decision a person would be a ‘consumer’ even if he is registered for allotment of a residential plot and is waiting for his turn to mature.  In the present case, name of the complainant was included in the draw of lots held on 28.11.2011 and he was successful in the said allotment. The intimation in this regard was also sent to the complainant vide letter dated 02.12.2011.  Therefore, it would be difficult to dispute that the complainant would be a ‘consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act. 

7.      Coming to the merits of the case the relevant eligibility conditions inter alia reads as under:-

          "ELIGIBILITY

1. The applicant must be a Resident of  Punjab or Chandigarh as defined by the Govt. or has been residing in Punjab for the last 5 years and must be at least 18 years old on the last date of submission of the application.

3. Regular employees of Government of Punjab or its undertakings and Punjab & Haryana High Court are eligible. Adhoc, contractual, temporary or reemployed employees cannot apply under this category"

8.      It would thus be seen that a person was eligible for allotment if he was a regular employee of the Punjab & Haryana High Court even if he was not residing in Punjab for last five years or he was not a resident of Punjab or Chandigarh as defined by the government. However, an  adhoc, contractual, temporary or reemployed employee was not eligible for such an allotment.  Therefore, if the complainant was a regular employee of Punjab & Haryana High Court, the cancellation of the allotment would be illegal.  The petitioner has placed on record the minutes of the meeting of a committee held under the chairmanship of the Additional Chief Administrator of the Authority.  The relevant extract from the minutes of the meeting reads as under:-

“Ms Deep Shikha daughter of Shri S.K. Sharma was declared successful in Eco-City Scheme vide Form No. 28768 size 100 square yards, category A. Applicant was not considered as a resident of Punjab on the basis of Certificate of her service at Chandigarh. The case was put up today before the Discrepancy Committee. Applicant appeared before the Committee and heard. On perusal of Residence Certificate and Punjab & Haryana High Court Service Certificate submitted by the applicant, it is found that applicant Is not resident of Punjab/Chandigarh as per mandatory terms and conditions incorporated in Brochure. Upon due consideration, the Committee rejects the case of the applicant.”

9.      It would thus be seen that though the committee noted that the complainant had submitted a residence certificate as well as service certificate from Punjab & Haryana High Court it did not examine her eligibility on the basis of the service certificate issued by Punjab & Haryana High Court and rejected the application solely on the ground that she was not a resident of Punjab/Chandigarh. 

10.    The certificate which the petitioner had submitted to the Authority before cancellation of the allotment reads as under:-

“Certified that Ms. Deepshikha w/o Sh. Rohit Bhardwaj r/o 3382/2 Sector - 40-D, Chandigarh is working on the establishment of this Honhle Court continuously since 14.05.2010 (FN) which is common for the affairs of the States of Punjab, Haryana and U.T. Chandigarh. Presently she is working as Clerk.”

          There is nothing in the above-referred certificate to suggest even remotely that the complainant was an adhoc, contractual, temporary or reemployed employee of Punjab & Haryana High Court.  Though the certificate does not specifically refer to the complainant as a regular employee, in the absence of Punjab & Haryana High Court qualifying her as an adhoc, contractual, temporary or reemployed employee of the High Court, the above-referred certificate, in my opinion, should have been construed to mean that the complainant was a regular employee of the Punjab & Haryana High Court.  This is more so, when the words “continuous since 14.05.2010” were used in the certificate.  In any case, nothing prevented the petitioner from writing a letter to the Punjab & Haryana High Court to obtain a clarification as to whether the complainant was a regular employee or she was an adhoc, contractual, temporary or reemployed employee.  The petitioner being a statutory Authority was expected to act fairly and reasonably instead of rushing to cancel the allotment without appropriate verification.  More importantly no letter was sent to the complainant specifically asking her to obtain a certificate from the Punjab & Haryana High Court to the effect that she was a regular employee of the said High Court.  As noted earlier, the committee did not even consider her eligibility on the basis of the certificate which she had submitted.  Her application was rejected solely on the ground that she was not a resident of Punjab/Chandigarh. 

11.    The view being taken by me finds fructification from a certificate dated 25.08.2012 which the complainant filed before the District Forum and which reads as under:-

“Certified that Ms. Deepshikha w/o Sh. Rohit Bhardwaj r/o # 3382/2, Sector 40-D. Chandigarh Is working as regular employee on the establishment of this Hon'ble Court continuously since 14.05.2010 which is common for the affairs of the States of Punjab, Haryana and U. T. Chandigarh. Presently she is working as Clerk.”

12.    For the reasons stated hereinabove, the view taken by the Fora below as regards the eligibility of the complainant does not call for interference by this Commission in exercise of its revisional jurisdiction and to that extent impugned orders are confirmed.  However, in the facts and circumstances of the case, the order directing the payment of Rs.50,000/- as compensation to the complainant is set aside.  The complainant, however, will be entitled to the cost of litigation as awarded by the District Forum.  The revision petition stands disposed of.