1.       This revision has been filed under Section 21(b) of the Act 1986 in challenge to the Order dated 30.04.2010 of the State Commission in appeal no. 1369 of 2002 arising out of the Order dated 08.05.2002 of the District Commission in complaint no. 2330 of 2001.

2.       Heard the learned counsel for the petitioner complainant. Perused the record.

3.       The complaint relates to an application made by the petitioner complainant to the opposite party housing board for allotment of a high income group (upper) category house.

4.       The District Commission vide its Order dated 08.05.2002 allowed the complaint and ordered the housing board to allot the subject house to the complainant on his depositing the sale consideration in lumpsum. 

5.       The housing board preferred appeal before the State Commission. The State Commission vide its impugned Order dated 30.04.2010 held that the complainant was not ‘consumer’ under the Act 1986. And it allowed the appeal and dismissed the complaint. For ready reference extracts of the appraisal made by the State Commission are reproduced below:

The present case is fully covered by our earlier decision in K.C. Bhatia’s case. Admittedly, the complainant had submitted for allotment of a house of HIG(U) category under the scheme of ‘First Come First’ basis, but on the day the  application of the complainant was received by opposite parties, house of HIG(U) category was not available.  However, as a goodwill gesture the complainant was asked to give his consent for allotment of HIG(L) category house to which he did not give his option and for that reason his application alongwith demand draft was returned. Thus, it is established on record that the complainant was not allotted any house and as such he does not fall under the definition of ‘Consumer’ as has been held by the Hon’ble National Commission in Krishan Pal Chander’s case (Supra).  Thus, the Consumer Fora have no jurisdiction to entertain and decide the present complaint when the complainant has failed to prove himself as a ‘Consumer’. 

As the complainant does not fall under the definition of ‘Consumer’, therefore, the question of availability of house of HIG(U) cateogry on the date of application of the complainant, needs not to be decided, being beyond the jurisdiction of this Commission. 

Accordingly, the present appeal is accepted, the impugned order is set aside and the complaint is dismissed.

6.       The complainant preferred revision before this Commission. Vide Order dated 10.02.2011 a two-membered bench of this Commission articulated the following question for consideration of a larger bench:

“whether a potential user/intending purchaser who has deposited earnest money along with the application for allotment of house can be considered to be a ‘consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986.”

Vide its Order dated 26.11.2021 a larger bench of this Commission comprising of three members answered the question as below:

“Filing of an application for allotment of a property along with prescribed amount cannot be termed as ‘earnest money’.  It is merely an amount paid for ‘application’ and a person who so deposits is not a consumer within Section 2(1)(d) of the Act at this stage. It is only when the application is accepted and allotment is made, the amount deposited becomes earnest money.  A person who deposits earnest money, is a consumer within Section 2(1)(d) of the Act.”

7.       In the present case, the complainant had made an application to the housing board for allotment of the subject house under a scheme for allotment of houses of different categories on first-come-first-served basis. A bank draft for Rs.43,000/- was attached with the application. The housing board had not accepted his application for allotment and had returned the said draft to him, for reason that the subject house indicated by the complainant was being used by the housing board as its office and no house in the said category was available for allotment. 

To recap, the term ‘service’ is defined under Section 2(1)(o) of the Act 1986 as ‘service of any description which is made available to potential users and includes…”. ‘housing construction’ falls under ‘service’. Term ’consumer’ is defined under Section  2(1)(d)(ii) as ‘any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised….’.

In the facts of the present case, no consideration in part or in full was ever accepted and no allotment or assurance was made by the housing board. As such the complainant had not hired or availed of its services for consideration paid or promised or partly paid and partly promised. Also, when only an application had been made, and when no consideration in part or in full was accepted and no allotment or assurance was made, the complainant did not qualify as a potential user.

Thus, the complainant did not fall within the definition of ‘consumer’ contained in Section 2(1)(d)(ii) of the Act 1986.

8.       Sequel to the position summed-up above, it is apparent that the State Commission had rightly dismissed the complaint as not maintainable.

The revision is without merit, and stands dismissed. 

9.       The Registry is requested to send a copy each of this Order to the parties in the petition and to their learned counsel within three days. The stenographer is requested to upload this Order on the website of this Commission immediately.