Haryana

StateCommission

A/339/2016

SURENDER KUMAR - Complainant(s)

Versus

HUDA - Opp.Party(s)

PRAVEEN MEHTA

17 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

         

                                                         First Appeal No.339 of 2016

Date of Institution: 20.04.2016

Date of Decision: 17.05.2016

 

Surender Kumar S/o Bihari Lal R/o H.No.818/10, Mohan Nagar, Dyalpur Basti, Tehsil Thanesar, District Kurukshetra.

 

…..Appellant

Versus

 

1. Haryana Urban Development Authority, through its Chief Administrator, Panchkula.
2. Estate Officer, Haryana Urban Development Authority, Kurukshetra.

…..Respondents

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

                             Mrs. Urvashi Agnihotri, Member.                                                                                                                                        

Present:              Shri Praveen Mehta, Advocate counsel for   appellant.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER:-

          It was alleged by the complainant that in the year 2001 opposite parties (O.Ps.)-respondents conducted auction of booths in Urban Estate, Kurukshetra.  He also participated therein and was allotted booth No.186 A Sector 17 Kurukshetra vide letter dated 27.12.2001.  Rs.78,000/- were deposited at the time of the bid and Rs.1,17,000/- were deposited on 24.01.2002 as per allotment letter the remaining amount was to be paid as per schedule mentioned therein.  The possession was to be delivered after completion of development works etc. as mentioned in clause NO.6 of the allotment letter.  Land adjoining to booth concerned was allotted to Punjabi Sabha by Government of Haryana whereupon a ‘Dharamshala’ was constructed.  Pubjabi Sabha  carved one cantilever  towards booths area which was in existence.  It was the duty of the O.Ps. to demolish said cantilever and offer possession.   Punjabi Sabha and one Gian Chand filed civil suit against O.P. and others on 08.04.2002 which was still pending in the court of Ld. Civil Judge.  Application for ad- interim injunction  filed in that suit was dismissed on 23.05.2002. An appeal        filed against that order was dismissed by Ld. Additional District and Sessions Judge (ADJ) on 15.12.2014. Thereafter plaintiffs of that suit filed revision No.2834 of 2005 before Hon’ble High Court wherein interim order was passed.  Finally that revision was dismissed on 11.11.2008. Due to pendency of litigation O.Ps. were not in position to offer physical possession.  Due to this reason they were not entitled to charge interest or extension fee.  He applied for refund of amount deposited by him vide letter dated 25.06.2002 alongwith interest so that he could start another work.   O.Ps. neither refunded that amount nor offered possession of booth in question. Ultimately they issued letter of possession on 22.02.2008 and paper possession was taken by him on 28.02.2008 and also submitted site plan for proposed construction which was sanctioned vide memo No.3822 dated 05.03.2008.  On 24.03.2008 he received letter from O.P.No.2 vide which he was directed to stop construction and thus paper possession offered by O.Ps. stood withdrawn.  He suffered loss due to this reason.  After decision of Hon’ble High Court on 11.11.2008 the O.Ps. were supposed to deliver actual  physical possession which they failed to do. Vide letter No.2039 dated 30.09.2009 he was informed that Rs.9,13,167/- were outstanding against him and they were going to impose penalty of Rs.91316/-.  The said notice was altogether illegal because they were not having any right to issue the same till the litigation was pending with Punjabi Sabha. As possession was not delivered in time, so there was deficiency in service on the part of O.Ps. and he be granted relief as mentioned in the complaint.

2.      O.ps. filed reply controverting his claim and alleged that this complaint was not maintainable before the Consumer Fora because booth in question was purchased in open auction for commercial purposes. The consumer Fora was not having jurisdiction to try this complaint.  Complainant did not deposit installments as mentioned in allotment letter dated 27.12.2001 as far as remaining 75% amount was concerned. He deposited only initial 10% and thereafter 15%, as mentioned above.  He was being asked to pay interest on the delayed payment and not otherwise. They were very much entitled to recover Rs.926341/- from him.  Instead of making payment he filed this false complaint.  Initially revision petition filed by Punjabi Sabha was dismissed by Hon’ble High court but lateron the same was again restored.  During that period they offered possession to the complainant.  When physical possession was already handed over to him there was no question of offering possession again.  Objections about locus standi, accruing case of action, maintainability of complaint were also raised and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Kurukshetra partly allowed the complaint and directed complainant to pay Rs.9,13,167/- alongwith future interest to the O.Ps.

4.      Feeling aggrieved therefrom, the complainant-appellant has preferred this appeal

5.      Arguments heard. File perused.

6.      At the time of admission learned counsel for the appellant argued that from the perusal of letter dated 22.02.2008 it is clear that the possession was offered. Revision filed by Punjabi Sabha was dismissed by Hon’ble High Court on 11.11.2008.  Thereafter O.Ps. never asked him to come and take possession. As per condition NO.6 of allotment letter dated 27.12.2001. The possession was to be delivered within 90 days from the issuance of that letter, whereas no such offer was given.  It was also argued that as per instructions dated 25.01.2007 it was decided by HUDA that if offer of possession was not given within three years of allotment then interest @ 9% is to be paid and balance payment will start after the offer of possession.  In this way the O.Ps. were not entitled for interest alleging that there was delayed payment.  As Civil litigation was pending so it cannot be opined that the complaint is not maintainable.  Learned District forum wrongly directed to pay Rs.9,13,167/-.

7.      Before looking into other aspects firstly it is to be seen whether complaint is maintainable before the Consumer Forum or not. As per
Section 2 (i) (d) of the Consumer Protection Act, 1986 (In short “Act”), the provisions of this act are not applicable in cases of commercial purposes,  unless the same is for earning livelihood by means of self-employment.  From the perusal of allotment letter, it is clear that it was a commercial site. It is no-where alleged by complainant that he purchased this commercial booth for earning livelihood and self-employment.  When this fact is missing from complaint, it cannot be presumed that this was purchased for earning livelihood by way of self employment as per opinion of Hon’ble National Commission expressed in Pradeep Singh Pahal Vs. TDI infrastructure Pvt. Ltd.  1 (2016) CPJ 219.

8.  It is mentioned by learned District Forum in Para No.13 of the impugned order that in the present case the booth in question was purchased by complainant in open auction for commercial purpose but it was opined that due to this reason consumer forum was having jurisdiction, whereas the opinion should have been otherwise  i.e. due to commercial purpose consumer fora has no jurisdiction.

9.      More so when the commercial site was purchased in open auction the consumer fora is not having jurisdiction to try this complaint. 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.”

10.    Undisputedly, the complainant had purchased the booth 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.

11.    Taking into consideration every aspect, it is clear that the complaint was not maintainable before District Forum.  When  complainant is not a consumer, the appeal is not maintainable before this Commission.  When District Forum was not having jurisdiction to adjudicate upon this matter it was not supposed to go into the merits of the case because judgement without jurisdiction amounts to nullity as opined by Hon’ble National Commission expressed in Revision Petition No.317 of 1994 titled as Haryana Urban Development Authority Vs. Vipan Kumar Kohli decided on 19.01.1995. Resultantly impugned order dated 15.03.2016 is set aside and appeal is also dismissed in limine.

 

May 17th, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.