JUSTICE V.K.JAIN (ORAL)

I have heard  the Ld. counsel for the respondent as well as the Petitioner who has appeared in person along with the Ld. Amicus Curiae. 

A residential flat bearing No. 4571/C in Sector 70 of Mohali was allotted by the respondent to one Ashok Kumar Garg.  He entered into an agreement to sale dated 27.10.1999 with one Anuresh Sharma s/o Sukhdev Sharma, in respect of the afore-said flat and also executed a power of attorney dated 28.10.1999 in favour of Rakesh Sharma and Sunita Sharma, son and daughter respectively of late Sh. Sukhdev Sharma.  The allotment was cancelled by the Estate Officer on 17.06.2009 and the cancellation was upheld by the revisional and appellate authorities.

2.      The petitioner/complainant filed a consumer complaint against the respondent making several allegations against the respondent and seeking compensation amounting to Rs.10,00,000/-.

3.      The complaint was resisted by the respondent which took a preliminary objection that the complainant was not a ‘consumer’ of the respondent, she being only an attorney of the original allottee.  It was also stated in the reply that unauthorized construction had been made in the flat and the allotment had been rightly cancelled.

4.      The District Forum vide its order dated 29.04.2013, directed as under:-

“Necessary steps for removing the material defects in the construction or design on the complex in which the fiat of the complainant is located includes providing amenities like access, to the top floor i.e. terrace are well meaning and deserves to be looked into by the OPs for the safety and security of the life of the residents of the complex Therefore, complaint of the complainant is partly accepted with the direction to the op to complete that exercise within the time frame i.e. within three months from the date of receipt of a certified copy of this order, certified copies of the order be furnished to the parties forthwith free of costs and thereafter the file be consigned to the record room.”

5.      Being aggrieved from the order passed by the District forum the respondent approached the concerned State Commission by way of an appeal. Vide impugned order dated 03.11.2014 the State Commission allowed the appeal and dismissed the consumer complaint primarily on the ground that the complainant was not a ‘consumer’ of the respondent. Being aggrieved from the order of the State Commission the complainant/petitioner is before this Commission.

6.      This revision petition was filed in the year 2014.  After filing this revision petition, Civil Writ Petition No. 19692 of 2015 was filed by the petitioner against the respondent and the original allotee Sh. Ashok Kumar Garg before the Hon’ ble High Court of Punjab & Haryana.  The afore-said writ petition was disposed of by a Division Bench of the Hon’ble High Court vide order dated 04.10.2015 with the following directions:-

3) Having heard learned counsel for the parties and the stand taken by GMADA through its counsel Mr. Naresh Prabhakar, it appears that some unauthorized construction raised in the subject flat is not compoundable and the authorities are inclined to restore and transfer the same in favour of petitioner or other transferee provided that non-compoundable unauthorized constructions are removed and further subject to fulfillment of other prescribed conditions.

4) The petitioner has explained some genuine difficulties like perennial seepage in the roof top of the flat for which she had to install make-shift stair-cases for carrying out the repairs. Some of the alterations made by her are essentially to keep the dwelling unit worth habitable, hence we direct the GMADA authorities to carry out a fresh inspection of the subject flat as well as all other flats in the same building/vicinity and thereafter take a holistic view as to what type of additions/alterations can be included amongst the compoundable and can be regularized for better living conditions of the occupants. Similarly, the inspecting team shall re-visit the site to find out as to how much unauthorized constructions can be regularized on deposit of compounding fee. The additions/alterations permitted to be retained/carried out would obviously be keeping in view the element of inconvenience likely to be caused to the occupants of ground floor or first floor of the building as well as the overall safety of the buildings.

(5) After such fresh inspections, if it is found that any part of the unauthorized construction cannot be made compoundable, in any circumstances, the petitioner shall have to remove that part of the unauthorized construction and (i) on removal of such unauthorized construction; (ii) on deposit of the requisite fee for transfer of the flat; (iii) on deposit of the compounding fee in respect of the constructions which are found compoundable; or (iv) on submission of other requisite documents as required by the authorities, the GMADA is directed to restore and transfer the flat in favour of the petitioner.

(6) The inspection team shall comprise (i) the Senior Architect of PUDA; (ii) the Assistant Town Planner from the Town and Country Pleinning Department; and (iii) the Sub Divisional Engineer, who shall carry out the inspection within one month. The petitioner shall be required to comply with the inspection report to the extent of removal of non-compoundable constructions within two months and after doing so, she may submit the documents/fee etc. as directed above within one month thereafter. The authorities shall then pass an appropriate order for restoration/transfer of flat within two months. If the inspecting team is of the view that stair-cases cannot be permitted to be retained, in that event, it shall be the sole responsibility of GMADA/PUDA to carry out necessary repairs on the roof top and ensure that there is no seepage into the top floor flats. The authorities shall also ensure and will issue appropriate directions to the residents to upkeep the roof top/water tanks and/other amenities.

7.      It is an admitted position that the above-referred flat has not been transferred in the name of the complainant/petitioner till date.  The Ld. counsel for the respondent submits that this could not be done as the complainant failed to comply with the conditions imposed by the Hon’ble High Court.

8.      Since the flat in question has not yet been transferred in the name of the complainant she is not a ‘consumer’ of the respondent as on today.  If the respondent has wrongly not transferred the flat in her name in terms of the directions issued by the Division Bench of the Hon’ble High Court she has to approach the Hon’ble High Court for appropriate relief.  As far as a consumer forum is concerned, it does not have jurisdiction to grant relief to a person who is not a ‘consumer’ within the meaning of the Consumer Protection Act.  Since the flat in question has not yet been transferred in the name of the complainant, no relief to her can be granted by this Commission.  The revision petition is, therefore, disposed of by directing that if and when the flat in question is transferred by the respondent in favour of the petitioner/complainant she will be entitled to avail such remedies as are available to her in law including a complaint before a Consumer Forum in terms of the Consumer Protection Act. The revision petition stands disposed of accordingly.

9.      The registry is directed to pay the fees of the amicus curiae, if not already paid, as per the guidelines adopted by this Commission.