MRS. NEENA SANDHU, PRESIDING MEMBER

1.   This is an appeal filed by the complainant received by transfer from Haryana State Consumer Disputes Redressal Commission under the orders of Hon’ble National Commission against order dated 18.3.2009 passed by District Consumer Disputes Redressal Forum, Kaithal (for short hereinafter to be referred as District Forum) passed in complaint case No. 292/A/2006.

2.     Briefly stated the facts of the case are that the complainant purchased a residential plot No. 287-C, LIG-I, Housing Board Cheeka measuring 41.03 Sq. Yards in an open auction held on 27.3.1998 for a sum of Rs.90,500/-. The complainant had paid Rs.22,625/- being 25% of the bid at the spot, 15% to the extent of Rs.13,575/-, 40% to the extent of Rs.36,200/- and also deposited Rs.25,728/- in four equal installments with interest @ 17.5% p.a.. The complainant also deposited Rs.40,000/- on 12.7.2000 and Rs.10,500/- on 13.7.2000 on the assurance given by Sh.Amir Singh, Clerk of H.B.C. for issuing ‘No Due Certificate’. It was submitted that inspite of deposit of excess amount, the respondent had failed to issue the No Due Certificate to the complainant and the OP illegally and unlawfully demanded Rs.961/- on 16.5.2001 and the complainant deposited Rs.1,000/- on 17.5.2001 and submitted the receipt in the office of the OP but the OP failed to issue No Due Certificate to the complainant inspite of written request letter to the respondent dated 13.7.2000, 27.12.2000, 4.1.2001, 16.1.2001, 27.2.2001, 30.3.2001, 16.5.2001, 9.8.2002, 6.3.2002, 18.3.2002, 24.9.2002, 11.11.2003, 12.1.2004, 19.2.2004, 17.3.2004, 15.4.2004, 28.4.2004, 29.4.2004, 2.6.2004, 15.7.2004, 24.8.2004 and 18.11.2004. It was submitted that complainant also requested to the OP to refund Rs.5570/- as OP charged excess amount from the complainant by demanding illegally from time to time. It was further submitted that OP only issued No Due Certificate on 30.12.2004 and the OP failed to refund the excess amount already charged from the complainant, till today. In the year 1998, the complainant came to know that the OP failed to issue the dimension of the area of plot when the complainant sent the allotment letter of the Draftsman Ambala for preparing the site plan and on the request of the complainant, the OP intentionally delayed for providing detail of dimension to the complainant near about 8 months and complainant submitted the site plan and fee in the office of the OP but the OP sanctioned the site plan after lapse of 20 months and supplied the copy on 20.8.2002. It was submitted that at the time of bid, the OP had promised to provide all the facilities including water supply, electricity supply, Water Disposal System, Sewerage, Green Parking, Street Light etc. to the complainant but the OPs totally failed to develop the area. The complainant requested the OP not to charge the interest from the complainant from the date of bid as the OP failed to develop the area but the OP charged the interest @ 17.5% p.a. illegally and unlawfully from the complainant without development. The OP cannot charge interest beyond 10% as per law laid down by the Hon’ble Supreme Court. The complainant is interested to construct his house from the date of physical possession but due to the failure of the OP, the complainant had deprived of the construction and due to that, the complainant suffered the losses i.e. Rs.1 lac because increase in raw material etc. The complainant suffered a lot at the hands of the OP by not providing the necessary facilities and also charged excessive rate of interest and excess amount. The aforesaid act of OP amounts to deficiency in service and hence, the complaint was filed.

3.     Reply was filed by the OP, in which the OP stated that Sh.Amir Singh, Clerk did not gave any assurance as alleged by the complainant and the OP did not demand any amount illegally from the complainant. It was pleaded that complainant deposited Rs.1,000/- on 17.5.2001 at his own sweet will and he was not entitled to any ‘No Due Certificate’ before 17.5.2001. Reply of the letters written by the complainant was given by the OP vide letters dated 28.2.2002, 1.10.2002, 11.10.2002, 23.1.2004, 11.2.2004, 13.2.2004, 8.11.2004, 23.4.2004 and 10.12.2004. It was further pleaded that although the case for balance payment was already sent to Executive Engineer, HBC, Sonepat vide letter dated 28.2.2001 for audit as well as checking of calculation. As and when case had been finalized by the Executive Engineer’s Office, HBH Sonepat, complainant informed accordingly vide letter dated 28.2.2002 that a sum of Rs.1166/- were recoverable as on 13.7.2000 but the complainant submitted the calculation of amount deposited by him vide his letter dated 15.4.2004 to the OP. The case of balance payment was again sent to the Executive Engineer, HBH Sonepat to recheck the calculation and no due certificate vide his letter dated 30.12.2004 subject to payment of extension fee as the complainant had to construct the building on above said plot upto 30.6.2000 within two years from the date of allotment i.e. 5.5.1998 but the complainant remained failed to construct the building within stipulated period. It was next pleaded that No Due Certificate was issued vide office letter No. 1404 dated 30.12.2004. On being finalized the case from Executive Engineer, complainant had been informed vide letter dated 13.6.2005 that Rs.2635/- was refundable to him and also advised him to get the conveyance deed executed in his favour after getting the extension fee adjusted from refundable amount and again advised vide letter dated 17.6.2005 but complainant remained failed to get the conveyance deed executed. The complainant was making one pretext or the other to avoid extension fee as he did not want to construct the plot allotted to him on 5.51998 and the necessary amenities such as road, electricity, sewerage and water supply etc. have been provided in the colony. The development work were got completed before auction in the colony and at the time of possession to the complainant, consent was given by the complainant that he had inspected the plot and found complete in all respects. It was next pleaded that complainant accepted the charging of interest @ 17.5% p.a. at the time of auction and agreement dated 29.6.1998 and the complainant could not enjoy the fruit of the plot due to his own act and conduct. Hence, it is prayed that complaint may kindly be dismissed with costs.  

4.   The parties led their evidence in support of their contentions.

5.   The District Forum allowed the complaint and directed the OP to refund the excess amount, if any, charged by the OP from the complainant together with interest @ 17.5% p.a. from the date of charging till the actual refund and not to recover the extension fee from the complainant till the facilities/amenities just as the sewerage, water pipe-line, street light, roads, parking etc. are provided to the complainant at the spot and also till the site plan submitted by the complainant is sanctioned by the OP. The OP also burdened to pay Rs.3,000/- to the complainant on account of cost of litigation and the compensation for harassment caused by the OP to the complainant. This order be complied with by the OP within one month.

6.    Aggrieved by the order of District Forum, the present appeal has been filed by the complainant. In appeal, the appellant submitted that the impugned order passed by the learned District Forum is not sustainable and has been passed without application of judicial mind and is liable to be set aside. It is further contended that ‘No Due Certificate’ was not issued to the complainant by the OP inspite of deposit of excess amount but even then OPs have not issued ‘No Due Certificate’ It was further contended that the OPs have not provided any basic amenities like sewerage, water pipe-line, street light, roads, parking etc. where the plot of the complainant is situated. It was next contended that he has requested orally and made many representations to the officials of the OPs but the OPs put no heed to his request. Hence, it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.

7.  We have heard Sh.Aftab Singh, Advocate for the respondent and perused the record.

8.  It is pertinent to mention here that the complainant in the complaint has taken a contradictory stand regarding the issuance of ‘No Due Certificate’. The complainant in the opening para of the complaint averred that the OPs have not issued ‘No Due Certificate’ to the complainant inspite of deposit of excess amount whereas in para No.4 of the complaint, the complainant averred that OPs have issued ‘No Due Certificate’ on 30.12.2004. It means the ‘No Due Certificate’ has been issued by the OPs and the learned District Forum has also mentioned in the impugned order that the ‘No Due Certificate’ is stated to have been received by the complainant. As regards to the other reliefs prayed for in the appeal are concerned, it is evident that the complainant had purchased the abovementioned residential plot No. 287-C, LIG-I, Housing Board Cheeka measuring 41.03 Sq. Yards was purchased by the complainant in an open auction which was held on 27.3.1998  for a sum of Rs.90,500/-. As this plot was purchased by the complainant in an open auction and the above said case is squarely covered by the law laid down in the case titled as U.T.Chandigarh Administration & Anr. Vs. Amarjeet Singh & Ors. II (2009) CPJ 1(SC) in which

“Jurisdiction of For a – Auction – Complainants successful bidders – 25% of premium paid – alleged, amenities not provided at site, huge loss suffered – rescheduling of lease premium installments directed by National Commission – Reliefs granted in respect of interest – Civil Appeal filed – National Commission proceeded on erroneous and baseless assumptions that there is no obligation to pay installments until amenities provided, consequently installment could be rescheduled – Once a person participates in auction with open eyes, he cannot thereafter be heard to say that he would not pay price/premium/stipulated interest/ground rent on ground that site suffers from certain disadvantages or amenities not provided – purchaser/lessee in public auction, not ‘consumer’ – owner not ‘trader’ or ‘service provider’ – Any grievance by purchaser will not give rise to complaint or consumer dispute – For a under the Act has no jurisdiction to adjudicate complaint by auction purchaser/lessee, against owner holding auction of site – Lessee/successful bidder cannot seek rescheduling of installments of premium or postponement of accrual of interest payable as per rule – Orders of National Commission set aside – No relief claimed.”

In the present case, the complainant is not a consumer under the Consumer Protection Act, 1986, hence the present complaint is not maintainable. Therefore the Fora under the Consumer Protection Act, 1986 have no jurisdiction to adjudicate upon such matters. Thus in view of the above discussion, we dismiss the appeal on the ground of maintainability. However the parties are at liberty to approach appropriate Forum for redressal of their grievances available to them under law. It is also made clear that period already taken in pursuing this matter may not be taken into consideration by the appropriate Forum, if so approached by the appellant.

9.    Copies of this order be sent to the parties, free of charge.