Haryana

StateCommission

CC/70/2016

DR.MADAN GOYAL - Complainant(s)

Versus

HUDA - Opp.Party(s)

SATISH GOEL

11 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,          PANCHKULA.

 

                                                Complaint No. 70 of 2016

                                                  Date of Institution: 18.03.2016                       Date of Decision: 11.05.2015

 

Dr. Madan Goyal S/o Mr. Kali Ram Goyal at Geeta Hospital Geeta Colony, Kurukshetra, Haryana.

…..Complainant

                                      VERSUS

1. Haryana Urban Development Authority (HUDA) through its Chief Administrator Kurukshetra 136118 Haryana.
2. The Estate Officer, office of the Estate Officer, Haryana Urban Development Authority, (HUDA), HUDA Complex, Near Jindal Chowk Sector-4, Urban Estate, Kurukshetra-136118 (Haryana).

          …..Opposite parties

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.                                   

For the parties:  Mr.Satish Goel, Advocate counsel for the complainant.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

The complainant has requested to declare that respondent Nos.1 and 2 are  guilty of unfair trade practice and deficiency in service and they be directed to pay Rs.80/- lacs for the loss suffered by him due to this reason  besides Rs.15/- lacs for mental harassment etc. and Rs.One lac as litigation expenses. 

2.      It is alleged that he is practicing doctor at Kurukshetra and as per advertisement published in the year 2001 by Haryana Urban Development Authority (HUDA) for auction of commercial both sites in Sector 17 Urban Estate, Kurukshetra, he participated in auction and purchased two booths bearing Nos.195 and 196.  He purchased those booths to open medical clinic and to earn his livelihood by way of self-employment.  The  land, adjoining booths in question, was allotted to one Punjabi Samaj Sabha (In short “Punjabi Sabha) who constructed  ‘Dharamshala’ on that land. After allotment he came to know that the site of the booths was partly encroached by Punjabi Sabha who had filed a suit in the court of Civil Judge (Jr.Division), Kurukshetra against HUDA for declaration to the effect that letter No.1290 dated 10.03.2002, letter No.350 dated 05.02.2000 and order/letter NO.CTP/HUDA/DTP/(N)/6893 dated 27.07.2001 were altogether illegal, null and void.  He was impleaded as defendant No.10 in that suit. It was also requested in that suit to restore disputed site in original position and restraining from raising any construction and changing it’s use except for pavement of the road and not to handover the possession of both Nos.185 A to 204.  Though HUDA issued possession certificates vide memo Nos.732 and 735 dated 24.01.2002 in respect of his booths, but, physical possession of the booths was not handed over due to pendency of the suit.  Vide order dated 23.05.2002 application filed by Punjabli Sabha for ad interim injunction was dismissed by the Ld. Civil Judge.  An appeal filed against that order by Punjabi Sabha was dismissed by learned Additional district Judge vide order dated 15.12.2004.  In revision filed against that order Hon’ble High court directed the parties to maintain status quo regarding that property. The said petition was dismissed by Hon’ble High court vide order  dated 11.11.2008. The Civil suit filed by Punjabi Sabha was dismissed by Ld. Civil Judge on 23.12.2009.  Appeal filed against that judgement was also dismissed by learned Additional Distt. & Session Judge vide judgement dated 03.08.2012. During pendency of suit an advocate was appointed as L.C. who submitted report dated 23.04.2004 wherein it was mentioned that projections were  coming outside the boundary wall towards HUDA road in the lintel/roof of Pubjabi Dharamshala.  Due to pendency of litigation, physical possession could not be delivered and letters dated 24.01.2002 and 22.02.2008 about handing over of possession are altogether null and void.  Due to pendency of litigation since the year 2001 up to 2012 he cannot raise construction for 11 years and aforesaid commercial booths remained unused. He could not derive any  benefit from them.  Vide letter dated 24.03.2008 HUDA asked all the allottees of the booths not to raise construction and maintain status quo, regarding construction over the commercial booths in view of the order passed by Hon’ble High Court.  Due to those instructions he did not raise any construction.  HUDA did not bother to verify actual status of the land earmarked for booths site.  HUDA also failed to deliver possession after removing encroachment.  It was wrongly alleged in letter dated 28.03.2013 that possession was already offer to him and wrongly demanded extension fees vide letter dated 25.06.2013.  He suffered not only monetary, but, also mentally and physically due to  non-delivery of possession. The site plans  were approved in the year 2014.    Initially cause of action accrued in the year 2001 when  publication was issued and further on 12.12.2001 when allotment letters were issued.  It was recurring cause of action till pendency of litigation.

3.      Arguments qua admission are heard.

4.      Learned counsel for the complainant vehemently argued that as per opinion of Hon’ble National Commission expressed in consumer case No.427 of 2014 titled as Satish Kumar Pandey & Anr. Vs. M/s Unitech Ltd., decided on  08.06.2015  it was a case of recurring cause of action till 05.05.2014 when the physical possession was handed over. On 14.07.2014 when the site plan were approved and further on 29.06.2015 when he sent legal notice to O.Ps. and finally on 24.07.2015  O.P.No.2 sent reply of that notice. Cause of action further accrued on 10.08.2015 when he sent rejoinder further arose on 10.08.2015 and he received rejoinder dated 24.10.2015. 

5.      He further argued that due to pendency of litigation he was directed to maintain status quo alongwith others. So letter dated 22.02.2008 about  possession is altogether null and void. As per orders of Hon’ble High court they were directed to maintain status quo regarding the property in dispute/including plots in question.  It was the duty of the O.ps. to verify  the site and handover the possession  of commercial booths.  For want of possession he could not raise construction for 11 years and suffered loss to the tune of Rs.80/- lacs as far as his business is concerned and Rs.15/- lacs as mental harassment etc. The booths were purchased in open auction for earning livelihood by running clinic for self-employment. So the complaint is maintainable and O.Ps. be directed to pay compensation, as mentioned above.

6.      As per facts mentioned above it cannot be presumed that he purchased these booths for the purpose of earning livelihood because he is already running Geeta Hospital in Geeta colony, Kurukshetra.  In the advertisement as well as auction it was clearly mentioned that the booths were sold for commercial purpose. The above said facts shows that he purchased two shops to expand his business.  As per opinion of Hon’ble National Commission expressed in Manu Talwar & Ors. Vs. BPTP Ltd. IV (2015) CPJ 396 (NC)  extension of business activities, which are already in existence, cannot be covered by the term self-employment and earning livelihood.  It is also mentioned therein that a person who has purchased a shop/space is on different footings.  All these facts clearly shows that the site in question was commercial in nature and the complainant did not purchase it for earning livelihood by self employment.  He cannot be considered as consumers as provided under section 2 (i) (d) of the Consumer Protection Act, 1986 (In short “Act”). 

7.      When complainant purchased booth in open auction, he is not covered by definition of consumer as opined by Hon’ble Supreme Court in U.T. Chandigarh Administration & Anr Vs. Amarjeet Singh & Ors. (2009) 4 S.C.C. 660.  It was held therein that:-

“…Where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser/lessee participates in the auction after having an opportunity of examining the site, the bid in the auction is made keeping in view the existing situation, position and condition of the site. If all amenities are available, he would offer a higher amount. If there are no amenities, or if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction. Once with open eyes, a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment or the ground rent, on the ground that the site suffers from certain disadvantages or on the ground that amenities are not provided. With reference to a public auction of existing sites (as contrasted from sites to be ‘formed’), the purchaser/lessee is not a consumer, the owner is not a ‘trader’ or ‘service provider’ and the grievance does not relate to any matter in regard to which a complaint can be filed. Therefore, any grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute and the fora under the Act will not have jurisdiction to entertain or decide any complaint by the auction purchaser/lessee against the owner holding the auction of sites.”

8.      Undisputedly, the complainant purchased the booths in question in an ‘Open Auction’ held by the opposite parties being the highest bidder on as and where basis and no assurance was given by the opposite party as service provider. This view was also expressed by this Commission in first appeal No.533 of 2014 titled as HUDA Vs. Raj Kumar decided on 18.12.2014. Thus in the present case  complainant cannot be termed as a ‘Consumer’ and this commission is not having jurisdiction to entertain and decide this complaint. Resultantly, complaint is hereby dismissed at the stage of admission.

 

May 11th, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.