Haryana

StateCommission

A/791/2016

HARYANA STATE AGRICULTURE MARKETING BOARD - Complainant(s)

Versus

MANPREET SINGH GUJRAL - Opp.Party(s)

P.L.AHUJA

22 Sep 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                               

                                      First appeal No.791 of 2016

                                      Date of Institution:31.08.2016

                                      Date of Decision: 22.09.2017

 

1.      The Chief Administrator, Haryana State Agricultural Marketing Board, Sector-6, Panchkula.

2.      The Secretary-cum-E.O., Market Committee, Sector 20, Panchkula.

                                                                         …Appellants                   

Versus

 

1.      Sh.Manpreet Singh Gujral

2.      Sh.Charanjit Singh Gujral, S/o Sh.Balwant Singh, R/o H.No.264, Sector-16, Panchkula.

                                                                    …Respondents

 

 

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

                   Mrs. Urvashi Agnihotri, Member

 

Present:     Mr.P.L.Ahuja, Advocate for the appellants.

                   Mr.Surender Pal, Advocate for respondents.

 

                                       O R D E R

 

R.K. BISHNOI, JUDICIAL MEMBER

 

                    It was alleged by complainants that they purchased shop-in-question in open auction on 01.09.2008 for Rs.77,80,000/- and 25% of the same i.e. Rs.18,95,000/- were deposited at that time. After confirmation of allotment letter No.113 dated 03.11.2008 was issued and balance amount was to be deposited as mentioned below:-

Sr. No.	Due date	Amount	Interest @ 15% P.A	Total amount
i	1.5.09	947500	426377	1373877
ii	1.11.09	947500	355314	1302814
iii	1.5.10	947500	284251	1231751
iv	1.11.10	947500	213188	1160688
v	1.5.11	947500	142125	1089625
vi	1.11.11	947500	71063	1018563

 

OPs were responsible to provide facilities to start business in this apple market. Out of 44 shops OPs could sell only 11 or 12 shops. Different  type of businesses were being run in the shops. They sent letter dated 22.06.2009 to wave interest in respect of this shop because facilities were not provided, but, the same was declined. Only paper possession was offered without any facility. In these circumstances OPs be directed to refund the amount deposited by them alongwith interest at the rate of 24% p.a. from the date of deposit besides other compensation as prayed for.

2.                OPs filed reply, controverting their averments and alleged that property in question was purchased for commercial purpose, so they were not consumers as per provisions of Consumer Protection Act, 1986 (in short ‘The Act’). This complaint was barred as per provisions contained in Section 42 Haryana Agriculture Produce Market Act, 1991 (in short ‘Market Act’). They concealed true facts from Fora and were stopped from filing this complaint. They did not deposit even single installment after allotment of this shop. Ultimately, this shop was resumed vide memo No.181 dated 07.02.2014. Instead of availing any relief from competent authority, they filed complaint before Consumer Fora which was not maintainable. Possession of the shop was offered to them after allotment and thereafter they wrote letter in the year, 2008 to wave interest etc. which was denied vide letter dated 13.11.2009. Proper facilities were already provided  at the spot. Other averments were also denied and requested to dismiss the complaint.

3.                After hearing both the parties, learned District Consumer Disputes Redressal Forum, Panchkula (In short “District Forum”) allowed complaint vide impugned order dated 03.05.2016 and directed as under:-

“(i)     To refund the amount i.e. Rs.18,95,000/- deposited by the complainants alongwith interest @ 9% per annum from the date of filing of the complaint.

(ii)      To make payment of an amount of Rs.50,000/- to the complainants as compensation for harassment, mental agony, unfair trade practice and deficiency in service.

(iii)     To make the payment of Rs.10,000/- for litigation expenses.”

4.                Feeling aggrieved therefrom, OPs have preferred this appeal.

5.                Arguments heard. File perused.

6.                The main controversy swirls around the question that whether complainants are covered by definition of consumer or not, particularly when they purchased this shop in open auction.

3.  The learned counsel for complainants-respondents vehemently argued that complainants purchased this shop for earning livelihood. So they are covered by definition of consumer and complaint is maintainable. He placed reliance upon the opinion of Hon’ble Supreme Court expressed in State of Haryana Vs.Chandramani and others, 1996 SC 1623 and of Hon’ble National Commission expressed in Parikshit Parashar Vs. Universal Buildwell Private Limited and others 2016 (4) CLT 245.

4.      This argument is of no avail.  As per section 2 (i) (d) of the Consumer Protection Act, 1986 (In short “Act”) complainant is not covered by definition of consumer and consumer fora has no jurisdiction to entertain and decide the complaint. From the perusal of allotment letter it is clear that it was commercial property. It was not pleaded by complainants in complaint that they were not having any other source of income and this was the only source. Without any evidence it cannot be presumed that shop in question  was purchased for earning livelihood. If they were not having any other source of income then how they gave such a high bid in the year 2008 and purchased shop for business.. 

5.      All these facts clearly shows that the site in question was commercial in nature and the complainants did not purchase it for earning their livelihood.  It is opined by Hon’ble National Commission in Revision Petition No.4044 of 2009 titled as M/s JCB India Ltd. Vs. M/s Chandan Traders & Ors. decided on  19.02.2015 that complainant has to plead  and prove that commercial article was purchased for earning livelihood by way of self-employment. In that case complainant alleged that he purchased machine for earning livelihood, but, there was no evidence to prove this fact. When complainants were not covered by definition of consumer, this complaint was not maintainable because judgement without jurisdiction is nullity as opined by Hon’ble Supreme Court in Jagmittar Sain Bhagat Vs. Director, Health Services, Haryana and others (2013) 10 SCC 136 and 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.

6.      The complainant cannot derive any benefit from the cited case laws because they are based on altogether different facts.  Learned District Forum failed to take into consideration all these aspects.  Impugned order is altogether against law and cannot be sustained.   Hence impugned order dated 03.05.2016 is set aside and appeal is allowed. Resultantly complaint is dismissed.

7.        The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

September 22nd,     Urvashi Agnihotri    R.K. Bishnoi

2017                        Member                      Judicial Member

                                    Addl. Bench               Addl. Bench.

S.K.