Haryana

StateCommission

CC/22/2016

SAROJ SINGLA - Complainant(s)

Versus

HUDA - Opp.Party(s)

N.P.SHARMA

21 Mar 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                Complaint No.22 of 2016

                                                      Date of Institution: 01.02.2016                             Date of Decision: 21.03.2016

 

1.      Smt. Saroj Singla, aged about 61 years, W/o Shri Charan Dass Singla, R/o House No.357, Sector-6, Panchkula, Haryana.

2.      Shri Charan Dass Singla, (CD Singla) aged about 68 years, S/o Late Shri Ami Chand, r/o House No.357, Sector 6 Panchkula, Haryana.

…..Complainants

 

Versus

 

1.      The HUDA, through its chief Administrator, HUDA office complex plot No.C-3, Sector-6, Panchkula Haryana.

2.      The HUDA, through its Estate Officer (Panchkula), HUDA office Complex, Plot No.C-3, Sector-6, Panchkula, Haryana.

          …..Opposite Parties

 

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

                   Ms.Urvashi Agnihotri, Member.                                     

For the parties:  Mr.N.P.Sharma, Advocate counsel for the complainants.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

          Complainants alongwith one Neera Mehta purchased shop-cum-office No.404, Sector-20, Panchkula with equal shares in open auction for Rs.54,18,976/-.  Lateron Neera Mehta relinquished her right in favour of the complainants vide decree dated 06.09.2015. Initially the complainants filed complaint bearing No.134 of 2015 which was got dismissed as withdrawn on 27.11.2015.  Thereafter they filed this complaint on 15.02.2016.  It is alleged in the complaint that they had already deposited the entire amount with the opposite parties (O.Ps.), but, even then they raised the demand of Rs.40,50,000/-, which was altogether illegal.  Though, they deposited that amount with the O.Ps.  Though SCO in question was purchased in open auction but opinion of Hon’ble Supreme Court expressed in U.T.Chandigarh Administration & Anr. Vs. Amarjeet Singh & Ors. (2009) 4 S.C.C. 660 is not applicable because proper development was not done and this was their only source of income i.e. rent.  O.Ps. be directed to refund the aforesaid amount alongwith cost @ 18% per annum despite compensation for mental harassment and litigation expenses etc.

2.      Arguments heard. File perused.

3.      Learned counsel for the complainant vehemently argued that this property was the only source of income of the complainants.  Moreover, it was not sold on as-and-where-basis is it take was done lateron after removal of hutments, so opinion of Hon’ble Supreme Court in U.T. Chandigarh Administration’s case law (supra) is not applicable and this commission is having jurisdiction to try this complaint.

4.      This arguments are of no avail. Hon’ble Supreme Court has clearly opined in U.T. Chandigarh Administrate & Anr. case (supra)  that a property purchased in open auction is not covered by the provisions of the Consumer Protection Act, 1986 (In short “Act”).  For ready reference, the relevant portion is reproduced as under:-

“…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.”

5.      This opinion was also followed by this Commission in first appeal N. 1847 of 2007 titled as HUDA Vs.Suresh Kumar decided on 01.12.2011.  It may be mentioned that the property is in dispute is commercial property.  In these circumstances, when a property is purchased in an open auction which is commercial and not covered by exception clause, a consumer complaint is not maintainable. More so, C.D.Singla has attached the copies of his income tax return, furnished in the assessment year of 2015-2015 and 2015-2016.  In the assessment year 2014-2015 nature of business is shown as property dealing and consultants and salary is shown as Rs.72,000/-.  Income from other source is shown as Rs.2,41,024/-.  It shows that he was running business and was having other source of income. Likewise Saroj Singla-complainant alleged in the income tax return for the assessment year 2014-2015 that she was running business of designing and art working. In this way she was also  having the source of income and this property is not only the source of income. 

6.      Further more as per averments of the complainants they purchased property alongwith Neera Mehta. It is no-where alleged that they all purchased property  for self-employment and earning livelihood and lateron one partner stepped out. Regarding this fact order was passed by permanent Lok Adalat on 24.02.2015 wherein the complainant transferred plot measuring 435.5 sq. yard to Neera Mehta and also paid Rs.Ten lacs to her. As per allottee statement of account issued by O.Ps.,  it is a commercial property. The averments about self-employment is an improvement just to bring this complaint within the jurisdiction of this Commission.  In previous complaint No.134 of 2015 filed on 06.08.2015 and withdrawn on 20.08.2015, it was no-where alleged that this property was purchased for self-employment or earning livelihood.  The previous complaint was withdrawn on the basis of technical defect. 

7.      It may be mentioned that appeal filed against order dated 10.04.2003, initially passed by District Consumer Disputes Redressal Forum, Panchkula ( In short “District Forum”), was not decided on merits by this Commission. That was dismissed because HUDA did not deposit the requisite fee alongwith the appeal.  Had it been dismissed on merits, then it would have been a different matter. HUDA filed revision before Hon’ble National Commission against order dated 17.05.2006 after the delay of 901 days and that is why that was dismissed on the ground of limitation.  Petition filed against the order of Hon’ble National Commission was dismissed in limine.  It was also no-where alleged in that complaint that this shop cum office was purchased for earning livelihood.  Taking into consideration all the facts and circumstances it is clear that this case is clearly covered by opinion of Hon’ble Supreme Court expressed in U.T. Chandigarh Administrate & Anr. case (supra).  When it is not purchased for self-employment or earning livelihood, it cannot come under the exceptions clause under the provisions of consumer Protection Act, 1986 (In short “Act”) and this commission is not having jurisdiction to try this complaint.  Resultantly it is hereby dismissed.

 

March 21st, 2016

Mr.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.