Haryana

Ambala

CC/146/2018

Ashwani Gupta - Complainant(s)

Versus

Huda - Opp.Party(s)

22 May 2019

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA

 

 

                                                                      Complaint case no.        : 146 of 2018

                                                          Date of Institution         : 09.05.2018

                                                          Date of decision    :  22.05.2019

 

 

Ashwani Gupta son of Sh. Surender Mohan Gupta, resident of Ward No.2, Chanana Colony, Naraingarh, District Ambala.

 

……. Complainant.

Versus

 

1.       Haryana Urban Development Authority through Additional Chief Secretary, New Secretariat Haryana, Chandigarh.

2.       XEN, Haryana Urban Development Authority, Ambala City, Ambala.

3.       The Estate Officer, Haryana Urban Development Authority, SCO-7 & 8, Sector-7, Ambala City, Ambala.

4.       J.E.Haryana Urban Development Authority, SCO-7 & 8, Sector-7, Ambala City, Ambala.

 

  ….…. Opposite Parties.

 

Before:        Ms. Ruby Sharma, Member,

Sh. Vinod Kumar Sharma, Member.

                  

                            

Present:       Sh. Amar Singh, Advocate, counsel for complainant.

Sh. Arvind Goel, Advocate, counsel for OPs

 

Order:        Sh. Vinod Kumar Sharma, Member.

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties(hereinafter referred to as ‘Ops’) praying for issuance of  following directions to them:-

1. To pay of Rs.5,00,000/- on account of compensation for mental agony and harassment suffered by him. 
2. To pay Rs.55,000/- as litigation expenses.
3. Ops be directed to handover the letter of physical possession.
4. Plot No.3 of the complainant situated at Naraingarh be demarcated.

Or

any other relief whichthis Hon’ble Forum may deemfit.

 

In nutshell, brief facts of the present complaint are that the complainant purchased a plot i.e. DSS No.3 having area of 75.625 Sq.Meters(5.50x 13.75) at Sector-4, Naraingarh for a total consideration of Rs. 6,42,000/- on free hold basis vide allotment letter /memo no.8577  dated 20.10.2003(Annexure C-1) as he wants to start Kiryana Store for earning his livelihood. Thereafter at the time of auction of the said plot, the complainant deposited a sum of Rs. 64,200/- (10% of total price) as bid money. The complainant deposited the remaining instalments of the allotted plot and made the complete payment of total price of the said plot i.e.Rs.6,42,000/-. After total payment of consideration amount of Rs.6,42,000/- the OP No.3 executed a Conveyance deed in favour  of the complainant vide deed no.2113 dated 20.12.2017 (Annexure C-2) before the Sub-Registrar, Naraingarh. The complainant made several requests to the Ops to handover the possession of plot in question and for demarcation of the said plot so that the complainant may submit the Naksha of the plot to Ops in order to complete the construction over the said plot but the Ops are lingering on one pretext or the other. The complainant gave representation on 09.02.2018(Annexure C-2) for redressal of his grievance. The Op No.3 forward his letter to the Revenue Tehsildar, Naraingarh regarding demarcation of back side of DSS No.1,2,3 & 4, Sector-4, Naraingarh vide memo no.350 dated 21.02.2018. Thereafter   when the complainant came to know about the said letter  dated 21.02.2018, he approached  to the Revenue Tehsildar, Naraingarh and concerned Kanungo. They informed the OP No.3 to come with record of the DSS for demarcation of the said plot but till date no record produced to the office of Revenue Tehsildar, Naraingarh. Under the above said circumstances, the complainant on 10.04.2018 served a legal notice to the to the Ops through his counsel but the Ops did not reply the same.  The area of the said DSS plot has shown  in the allotment letter as 75.625 Sq. Meters (5.50x 13.75) whereas on the spot the size of the DSS plot  has not been same as shown  in the allotment  letter. In other words, the previous owner of the land having possession over the some portion of the said DSS plot and a boundary wall was already constructed by the previous owner of the said land. The complainant has deposited the full and final price of the above said plot in the office of Ops but the Ops has not been handed over the possession letter and the demarcation of the said plot has not been done till date to which the complainant has suffered mental agony and financial loss. Hence, the present complaint.

2.                 Upon notice, Ops appeared through counsel and filed written version, raising preliminary objections qua complaint is not maintainable being non-joinder of necessary parties; no jurisdiction to entertain, as the plot was purchased for commercial use in open auction and time barred. On merits, it is stated that OP has issued allotment  letter  bearing memo no.8577 dated 20.10.2003 regarding DSS plot No.3, Sector-4, Naraingarh in favour of complainant and as per clause  no.6 of the allotment letter,  the possession of the plot/building may be taken immediately after making payment of balance 15% amount as demanded and complainant had deposited firstly 10% and then 15% with the OP against above plot, as such as per clause 6 the OP  had already  offered  for the possession of the plot and as per clause 16 of the allotment letter the complainant has to complete the construction within two years of the date of offer of possession  after getting  the plan of the proposed building approved  from the competent authority  in accordance with the regulations governing  the erection of building, but the complainant himself failed to start  construction within time, even then receiving the representation dated 09.02.2018 from complainant, the OPs wrote a letter to the Revenue Tehsildar, Naraingarh bearing memo no.350 dated 21.02.2018  requesting to them to demarcate the land of the back side of the said plot at the earliest and report to HUDA office but they had not submitted any report to the Ops. It is further stated that previous owner is having possession over the some portion of the said plot and there was already a boundary wall been constructed by the previous owner, as such previous owner is also necessary party in this complaint. It has also stated that as per allotment letter, the complainant failed to comply with the terms and condition of the allotment letter regarding Clause No.20 (Annexure C-1). Thus, there is no deficiency on the part of Ops and prayed for dismissed the present complaint.

3.                 To prove his version complainant tendered affidavit, Annexure C/A alongwith documents, Annexure C-1 to C-7 & C-7/A and closed the evidence. On the other hand, Counsel for OPs tendered affidavit, Annexure OP/A alongwith documents Annexure OP-1 to OP-3 and closed the evidence.

4.                 We have heard the learned counsel for the parties and carefully gone through the case file and the case laws given by the learned counsel for the parties.

5.                The learned counsel for complainant has argued that as per provision of the Consumer Protection Act mentioned in para no.2 of the complaint that complainant is a consumer because the plot was purchased for earning his livelihood by means of self employment as karyana store. It has been further argued that that the plot was allotted to the complainant in the year 2003 vide allotment letter dated 20.10.2003 and conveyance deed was executed in favour of the complainant on 20.12.2017, (Annexure C-2). The complainant gave representation on 09.02.2018 (Annexure C-3) for redressal of his grievance. The Op No.3 forwarded his letter to the Revenue Tehsildar, Naraingarh regarding demarcation of back side of DSS No.1,2,3 & 4, Sector-4, Naraingarh vide memo no.350 dated 21.02.2018. When the complainant came to know about the said letter dated 21.02.2018, he approached to the Revenue Tehsildar, Naraingarh and concerned Kanungo. They informed the OP No.3 to come with record of the DSS for demarcation of the said plot but till date no record produced to the office of Revenue Tehsildar, Naraingarh. Under the above said circumstances, the complainant on dated 10.04.2018 served a legal notice to the Ops through his counsel but the Ops did not reply the same. Thus complaint filed by the complainant may be allowed.

                     The learned counsel for the complainant has relied upon the judgements Rajnish Chander Sharda Vs. HUDA 1995 (1) CPC 564 (NC) and HUDA Vs Rajnish Chander Sharda Civil Appeal No.5970 of 1995 decided on 12.01.200, Anjum Hussain & ors vs. Intelicity Business Park Pvt. Ltd. & Ors., Sanjay Kumar Joshi vs. M.C.Laxmangarh and another 2014 (3) LAR 595. These judgements are not applicable to the present case as the facts are totally different from the case in hand.

6.                The counsel for ops argued that the complainant had purchased plot i.e. DSS No.3 in open auction from the Ops. The first and foremost question which is to be decided by this Forum is that whether the complainant falls within the purview of the consumer or not.  Learned counsel for the Ops has argued that the complainant has purchased the said plot in open auction therefore he does not fall within the purview of consumer. It has been further argued that that the plot was allotted to the complainant in the year 2003 and conveyance deed was executed in favour of the complainant on 20.12.2017. The complainant gave representation on 09.02.2018 for redressal of his grievance. The Op No.3 forwarded his letter to the Revenue Tehsildar, Naraingarh regarding demarcation of back side of DSS No.1,2,3 & 4, Sector-4, Naraingarh vide memo no.350 dated 21.02.2018. He vehemently argued that correspondence, representations and legal notice do not extend the time of limitation. The learned counsel for the Ops has argued that limitation is to be counted from the date of allotment letter.   

The learned counsel for the Ops has relied upon the judgement M/s Heights Trade (P) Ltd Vs. UCO Bank 2014 (1) page no. 481(NC), wherein Hon’ble National Commission has held that commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment”. The learned counsel for Ops has relied upon judgements Sheila Construction Pvt Ltd Vs. Nainital Lake Development Authority, 1997 (1) page no.330(NC), Major Vishwani Puri & Other Vs. DLF universal Ltd. 2015 (1) page no.282(NC).    

On this point, reliance can be taken from case law titled U.T.Chandigarh Administration & Anr.Vs. Amarjeet Singh & Ors. II (2009) CPJ 1 (SC) wherein Hon’ble Supreme Court has held that 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 sites suffers from certain disadvantages or amenities not provide-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. Fora under the Act has no jurisdiction to adjudicate complaint by auction purchaser/lessee against the owner holding the auction of sites.

It is admitted case that the complainant had purchased the said plot in open auction, therefore, he does not fall within the purview of consumer and this Forum has got no jurisdiction to adjudicate upon the present complaint keeping view the verdict given by Hon’ble Supreme Court of India in the above cited case. 

7.                    For the reasons and finding recorded above and keeping in view the verdict made by Hon’ble Supreme Court of India and the Hon’ble National Commission and in the above referred case, the present complaint is liable to be dismissed. Thus, we dismiss the complaint of the complainant leaving the parties to bear their own costs. Certified copies of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

 Announced dated: 22.05.2019        

 

          (Vinod Kumar Sharma)           (Ruby Sharma)        

                      Member                             Member