BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

O R D E R

SRI.P.V.SINGRI, PRESIDENT

The complainant has filed this complaint under Section 12 of Consumer Protection Act, 1986 against Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to refund him an Earnest Money Deposit of Rs.5,000/- with interest, Rs.50,000/- towards mental agony, physical strain, trauma with litigation cost of Rs.5,000/-.

2.      The brief averments made in the complaint are as under:

The OP-3 invited tender vide public notification dated 17.05.2013 for allotment of vacant land of size 3.00 x 3.00 square meter situated in survey No.18, Opposite to Sambhram College, Chikkabettahalli Village on ground rent basis for running a shop in the Board’s premises.  The complainant submitted the tender document on 04.06.2013 to OP-3 along with Earnest Money Deposit (EMD) of Rs.5,000/- by way of Demand Draft dated 04.06.2013 drawn on  Saraswath Bank, Gandhinagar, Bangalore in favour of OP-3.  The OP-3 opened the tender on 12.06.2013 and the tender was allotted to highest bidder name Mr.Balakrishnan.R.  Thereafter, OP-3 did not refund the EMD of which Rs.5,000/- to the complainant despite repeated oral request.

3. That on 25.04.2014 the complainant submitted representation to OP-3 for refund of EMD amount.  But, OP-3 did not comply the representation.  Therefore, the complainant got issued a notice dated 11.09.2014 to OPs to refund the EMD along with compensation of Rs.50,000/-.  The OP 1 & 2 did not respond to the said notice.  The OP-3 by his letter dated 18.09.2014 directed the complainant to come to their office to collect the EMD amount.  The negligence of OPs has resulted in deficiency in service for which the complainant has undergone mental agony trauma.  The OPs have also caused financial loss to the complainant by making him to initiate the present complaint.  Therefore, the complainant prays for an order against OPs directing them to refund the EMD of Rs.5,000/- with interest at 18% per annum, Rs.50,000/- for the physical strain and trauma suffered by him together with litigation cost of Rs.5,000/-.

4. The OPs appeared through their advocate and filed their version admitting the notification of tender for allotment of vacant land and also admitting the deposit of EMD of Rs.5,000/- by the complainant and further contended as under:-

The OPs denies that instrumentalities of the state fall under the definition of ‘service provider’ and the complainant is not a ‘consumer’ as defined under the Consumer Protection Act 1986.  The OP informed the complainant several times to come to their office and collect EMD amount but the complainant never visited the office of the OP-3 to collect the said amount.  Finally the OPs have issued a letter dated 18.09.2014 informing the complainant to collect the amount from their office.  In spite of the receipt of the said letter the complainant did not visit the office of OPs to collect the EMD amount.  There is no any deficiency on the part of the OPs in returning the EMD amount.  The complainant himself has failed to collect the EMD amount by visiting the office of the OPs.  Therefore, the OPs prays for dismissal of the complaint. 

5.  The complainant filed his affidavit evidence in lieu of oral evidence to substantiate the allegations made in the complaint.  The OPs despite sufficient time and opportunity given failed to file affidavit evidence to substantiate the averments made in the version filed by them. 

6. The points that arises for our determination in this complaint are as under:

1. Whether, the complainant proves deficiency in service on the part of the OPs as alleged in the complaint?

2. What relief or order the complainant is entitled to?

7.   The complainant has submitted his written arguments, OPs who failed to file affidavit evidence of their part also failed to submit written arguments or oral arguments. Heard the oral arguments advanced by the complainant. Perused the various documents produced by both the parties. 

8. Our answer to the above points:

9. POINT NO.1: The first and foremost objection raised by the OPs in their version is that the OPs being instrumentalities of the state does not fall under the purview of Consumer Protection Act 1986 and the complainant is not a ‘consumer’ as defined in the Consumer Protection Act and he cannot invoke the provisions of the Consumer Protection Act to file the complaint like the one on hand.  The complainant referring to the judgement rendered by the Hon’ble Supreme Court of India in case Lucknow Development Authority Vs M.K.Gupta in (1994) 1 SCC 243 argued that Karnataka Slum Development Authority which is engaged in allotment of sites carved out in the property belonging Government is a service provider and falls within the ambit of Consumer Protection Act 1986.  Perused the above said authority.  The Hon’ble Supreme Court while dealing with a similar situation involving in Lucknow Development Authority have held as under:-

        The legislative intention is clear to protect a consumer against services rendered even by statutory bodies. The legislature expanded the meaning of the word ‘service’ in Section 2 (o) to even such facilities as are available to a consumer in connection with banking, financing etc.  Each of these activities are discharged both by statutory and private bodies.  In absence of any indication, express or implied, there is no reason to hold that authorities created by the statute are beyond purview of the Act.  The test is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility.

        The Act requires provider of service to be more objective and caretaking.  It is still more in public services.  When private undertakings are taken over by the Government or corporations are created to discharge what is otherwise State’s function, one of the inherent objective of such social welfare measures is to provide better, efficient and cheaper services to the people.  Any attempt, therefore, to exclude services offered by statutory or official bodies to the common man would be against the provisions of the Act and spirit behind it.  A government or semi-government body or a local authority is as much amenable to the Act as any other private body rendering similar service. 

    The entire purpose of widening the definition of ‘service’ in Section 2(o) is to include in it not only day to day buying of goods by a common man but even to such activities which are otherwise not commercial but professional or service oriented in nature.  The provisions in the Acts, namely, Lucknow Development Act, Delhi Development Act or Bangalore Development Act clearly provide for preparing plan, development of land, and framing of scheme etc. Therefore if such authority undertakes to construct building or allot houses or building sites to citizens of the state either as amenity or as benefit then it amounts to rendering of service and will be covered in the expression ‘Service made available to potential service made available to potential users’.  A person who applies for allotment of a building site or for a flat constructed by the development authority  or enters into an agreement with a builder or a contractor is a potential user and nature of transaction is covered in the expression ‘service of any description’.  It further indicates that the definition is not exhaustive.  The inclusive clause succeeded in widening its scope but not exhausting the services which could be covered in earlier part.  So any service except when it is free of charge or under a constraint of personal service is included in it.  Since housing activity is a service it was covered in the clause as it stood before 1993.

10. In the instant case on hand the OP-3 with a  prior approval of the OP-1 invited a tender vide public notification dated 17.05.2013 for allotment of vacant land measuring 3.00 x 3.00 square meter in survey No.18 of Chikkabettahalli Village on ground rent basis for running a shop.  The complainant submitted tender document together with EMD of Rs.5,000/- on 04.06.2013 which is admitted by the OPs.  Admittedly, the complainant was not successful since highest bidder was allotted the said piece of land.  In view of the ratio laid down in the above cited authority the OPs fall under the purview of Consumer Protection Act 1986, looking to activities they are carrying out.  Therefore, we are of the opinion that the complainant is a ‘Consumer’ as defined under the Consumer Protection Act and the OP is liable to answer the claim of the complainant in the present complaint.

11. The tender document together with EMD amount of Rs.5,000/- was submitted by the complainant on 04.06.2013.  The tender has been opened on 12.06.2013 and the land was allotted to one Mr.Balakrishnan.R.  When the complainant failed to get the tender, the OP-3 ought to have refunded the EMD amount to the complainant immediately thereafter or within a reasonable time.  However, the material placed on record goes to show that the OPs failed to refund the EMD amount to the complainant for more than one year after the opening of the tender, despite repeated request made by the complainant.  Even after a notice dated 11.09.2014 the OPs failed to refund the EMD amount to the complainant.  It appears from the letter dated 18.09.2014 that the OP-3 called upon the complainant to collect the EMD amount from their office.  There is no explanation by the OPs as to why they failed to return the EMD amount to the complainant for more than one year from the date of opening of the tender.  The action of the OPs in failing to refund the EMD amount to the complainant certainly amounts to deficiency in services on their part.

12. The OPs have with-held the EMD amount paid by the complainant for more than one year without their being any valid reason.  Therefore, they are liable to pay interest on the said amount.  The OPs failed to substantiate the averments made in the version by filing their affidavit evidence.  From the material placed on record it is quite clear that the OPs failed to refund the EMD amount to the complainant despite repeated request and personal visit to their office.  Therefore, we are of the opinion that the OPs shall have to be directed to pay EMD amount of Rs.5,000/- together with interest at 9% per annum from 12.06.2013 till the date of realization.  Further, the OPs have to be directed to pay compensation of Rs.5,000/- to the complainant for mental agony, hardship and inconvenience caused to him for deficiency in service on their part together with litigation cost of Rs.2,500/-.   

13. The order could not be passed within the stipulated time due to heavy pendency. In the result we proceed to pass the following:-

ORDER

1. The complaint filed by the complainant u/s.12 of the Consumer Protection Act, 1986 is allowed in part.

2. The OPs are directed to refund EMD amount of Rs.5,000/- to the complainant together with interest at 9% per annum from 12.06.2013 till the date of realization.

3.  The OPs are further directed to pay compensation of Rs.5,000/- to the complainant for deficiency in service on their part together with litigation cost of Rs.2,500/-.  

4. The OPs shall comply the order of this Forum within a period of eight weeks from today.

5. Furnish free copy of this order to both the parties.

 (Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 13^th day of November 2015)

MEMBER                               MEMBER                              PRESIDENT

NRS* 

Witness examined on behalf of the complainant dated 06.05.2015

1. Sri.Prakash.R

Witnesses examined on behalf of the OPs - Nil

MEMBER                               MEMBER                              PRESIDENT