BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KAITHAL.

Complaint no.272/13.

Date of instt.: 09.12.2013. 

                                                 Date of Decision: 30.07.2015.

1. Asha Nand son of Roop Chand R/o Cheeka, District Kaithal, GPA of Gurmit Singh S/o Bhagat Singh, R/o Cheeka.

2. Smt. Krishna Devi W/o Vir Bhan R/o Cheeka, District Kaithal.

……….Complainants.    

                                        Versus

1. Chief Administrator, HUDA, Sector-6, Panchkula.

2. Estate Officer, HUDA, Kaithal.

..……..Opposite Parties.

COMPLAINT UNDER SEC. 12 OF CONSUMER PROTECTION ACT, 1986.

Before:           Sh. Jagmal Singh, President.

                        Sh. Rajbir Singh, Member.

     Smt. Harisha Mehta, Member.

Present :        Sh. Dinesh Tayagi, Advocate for complainants.

Sh. S.S.Punia, Advocate for the opposite parties.

                       ORDER

(JAGMAL SINGH, PRESIDENT).

                       The complainant has filed the present complaint under Section 12 of Consumer Protection Act, 1986, with the averments that the booth No.419, situated in Subzi Mandi Cheeka (Mandi Township Cheeka) initially allotted to Sh. Gurmeet Singh vide letter No.8285 on 08.07.1980, an initial allotment price of Rs.19,700/-.  It is alleged that the complainant is the general power attorney holder of allottee Sh. Gurmeet Singh vide registered GPA dt. 01.02.1982.  It is further alleged that the complainant No.2 has agreement to sell in her favour executed by allottee Gurmeet Singh of booth No.419.  It is further alleged that since the year 1990, booth already constructed on the plot No.419 and Smt. Krishna along with her family members are running vegetable and fruit shop in this booth.  It is further alleged that the electricity meter connection already taken in booth No.419 in the name of Sh. Birbhan husband of complainant No.2 since the year 1992, which is still running at the spot.  It is further alleged that the complainants several times moved written applications to the Ops for executing and registering sale deed/conveyance deed in favour of Smt. Krishna Devi, but on one pretext or the other, the Ops delayed the same.  This way, the Ops are deficient in service.  Hence, this complaint is filed.   

2.     Upon notice, the opposite parties appeared before this forum and filed written statement raising preliminary objections with regard to maintainability; cause of action; locus-standi; that the complaint filed by the complainant is hopelessly time-barred.  Since they challenged the action of Ops occurred in the year 1980 to 1982 i.e. after a period of 31 years and no plausible explanation for such delay has either been explained in the complaint nor any application for condonation of delay has been filed along with the complaint; that even otherwise, the allottee/complainants have no legal right to invoke the jurisdiction of this Forum under the provisions of Consumer Protection Act because they are not consumers of Ops since they do not fall under the definition of consumer because plot/site in question was purchased for commercial purpose which is clearly mentioned in the form of notice and conditions of sale which was signed after read over the allottee and purchased the plot for commercial purposes notice and conditions of sale.  Moreover, the allottee/complainants did not compliance the terms and conditions of notice of sale/condition of sale and allotment letter Annexure RB because the allottee had to complete sale within 6 weeks from the date of issue of allotment letter.  The transferee had to obtain a deed of conveyance in form B from the administrator’s office and had to at least seven days before the date fixed for completion of sale the return the deed to the administrator’s office duly stamped at his own expenses and ready for execution and plans of construction would be got approved from Administration New Manid Township Haryana, Chandigarh and the allottee/complainants did not get the approved/sanctioned plan from the concerned authority of Ops; that the complainant admittedly purchased the plot/site in question in open auction/sale, hence, this Forum has no jurisdiction to entertain and try the present complaint because Hon’ble National Commission held in case titled as Rajasthan Financial Corporation Vs. M.K.Bhoot and another in revision petition No.740 of 2006 that “Where the transaction has arisen out of auction sale Tanta mounting to no arrangement of hiring of service of seller by the bidden (purchaser) for construction that being so the Consumer Forum cannot grant any relief and in the present case, it is admitted that that the site in question is purchased in open auction.  There is no deficiency in service on the part of answering Ops.  On merits, the contents of complaint are denied and so, prayed for dismissal of complaint.    

3.     In support of their case, both the parties led their evidence in the shape of affidavits and documents.  

4.     We have heard ld. counsel for both the parties and perused the case file carefully and minutely and also have gone through the evidence led by the parties.

5.     It is admitted case of the parties that the booth in question was purchased by one Gurmeet Singh in open auction vide letter Ex.C1.  Gurmeet Singh executed an agreement to sell the said booth with complainant No.2 Smt. Krishna Devi and photo-copy of the agreement is Ex.C3.  Gurmeet Singh appointed the complainant No.1 as his general power of attorney vide Ex.C4.  The said booth was purchased in the year 1980.  The counsel for the complainant has argued that they have constructed the booth and a shop is running in the same.  The licence of the Commission Agent has been obtained in the name of Sat Pal , the photo-copy of the same is Ex.C4 and said Sat Pal is son of complainant No.2.  He further argued that the complainants applied to the Ops for executing a registered deed in their name, upon which the Ops have issued

mletter dt. 20.11.2013 Ex.C13 vide which they demanded an amount of Rs.7,21,689/- on account of extension fee and increased area.  The said letter has been challenged by the complainant in the present complaint.  On the other hand, the counsel for the Ops argued that the complainants are neither the allottee nor transferee in the record of the Ops, so, they are not the consumers.  He further argued that the booth was obtained for commercial purpose and so, the complainants are not the consumers under the Consumr Protection Act, 1986.  He further argued that the booth in question has been cancelled by the Estate Officer, HUDA, Kaithal vide order dt. 01.10.1996 on account of non-deposit of the remaining dues.  Against the said order, the complainant No.1 has filed an appeal before the Administrator, HUDA, Panchkula which was decided vide order dt. 27.01.1998.  He further argued that before the appellate authority during the course of arguments, , the appellant had  undertaken at the very outset to deposit the total outstanding amount with interest in one go as per HUDA policy.  It is clear from the copy of order dt. 27.01.1998 Ex.RD that on the said undertaking, the appeal was accepted and the booth was restored on the above-said undertaking with the order that the appellant shall deposit the outstanding amount with interest upto date as per HUDA policy in one go within a period of one month from the date of communication of this order, failing which, the resumption order dt. 01.10.1996 will stand operative automatically without any further notice to the appellant and the Estate Officer, HUDA, Kaithal shall be at liberty to proceed against the allottee/appellant under the provision of the HUDA Act.  But inspite of that the complainant has failed to deposit the entire amount.  The counsel for the Ops further argued that vide letter Ex.RG dt. 17.02.2010 the Ops  demanding from the complainant, the evidence regarding the construction on the said site of booth but the complainants have failed to supply the requisite documents particularly the documents with regard to electric connection, water connection and telephone connection.  The counsel for the Ops has further argued that the site for booth was allotted in a public auction, so, this Forum has no jurisdiction to entertain and try the present complaint.  In this regard, he produced the citation 2009(2) CPC page 6, U.T. Chandigarh Administration & others Vs. Amarjeet Singh & others, wherein the Hon’ble Supreme Court of India has held that purchaser in open auction is not a consumer and consumer Fora have no jurisdiction to grant any relief under Consumer Protection Act.  On the same point, he produced another authority titled as Rajasthan Financial Corporation Vs. M.K.Bhoot and others, 2009 CTJ page 1248, wherein the Hon’ble National Commission has given the similar findings.

6.     Keeping in view the facts and circumstances of the case and arguments advanced by both the parties, we found that the complainants are neither the allottee nor re-allottee, so, they are not the consumers under the Consumer Protection Act, 1986.  Further the site of booth was auctioned for commercial purpose, from this point of view also, the complainants are not consumers under the Consumer Protection Act, 1986.  Moreover, the site of booth originally was allotted to Gurmeet Singh in the open auction and he then sold the same to complainant No.2 vide agreement to sell Ex.C3.  In this regard, we are guided by the  authority reported as HUDA Vs. Raje Ram, 2009(1) CPC page 727 (SC), wherein it has been held that Re-allotment-Re-allottees of plots are not entitled to same relief which original allottees are entitled to-Original allottees with present cases had to wait for decade-While re-allottee approached District Forum within a short period from the date of re-allotment-Award of interest in their favour by Consumer Fora is not justified-Impugned order awarding interest to re-allottees/respondents on ground of delay in allotment, set-aside.  Further as it is crystal clear from Ex.C1 and also admitted by both the parties that the site of booth was purchased in an open auction.  In view of the above authorities, the dispute between the parties is not a consumer dispute.  The authorities produced by the Ops are fully applicable to the facts of present case.  As per the ratio as applied in the above-said judgments, Consumer Forums cannot grant any relief in the matters where the transaction has arisen out of auction sale as it is in the present case.

7.     We, therefore, have no option to disagree with the ratio as applied in the above-said judgments by the Hon’ble Apex Court and by the Hon’ble National Commission.  Consequently, we see no merit in the present complaint and the same is hereby dismissed.  No order as to cost.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.

Announced.

Dt.30.07.2015.

                                                                (Jagmal Singh),

                                                                President.

                (Harisha Mehta),     (Rajbir Singh),       

                        Member.         Member.