Delhi

StateCommission

CC/1058/2018

COL (RETD.) K.M. JHA - Complainant(s)

Versus

M/S ANSAL HOUSING & CONSTRUCTION LTD. - Opp.Party(s)

KAUSTUBH SINHA

07 Sep 2018

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments : 07.09.2018

Date of Decision : 10.09.2018

COMPLAINT NO.1058/2018

In the matter of:

 

Co. (Retd.) K.M.Jha,

H.No. 1561, Sector-37,

Arun Vihar, Noida-201303.                                                                           .........Complainant

 

 Versus

 

M/s. Ansal Housing & Constructions Ltd.,

Through its Managing Director 

At their Corporate Office

606, 6^th Floor, Indra Prakash,

21, Barakhamba Road,

New Delhi-110001.   

 

Also at:

            15, UGF Indra Prakash Building,

21 Barakhamba Road, New Delhi-110001.                                     …..Opposite Party

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

 

1. Case of the complaint is that earlier he filed complaint which was registered as no.C-581/18. The same was dismissed as withdrawn from Bench No.1 vide order dated 01.06.18 copy of which is at page-41. The same shows that complainant stated that inadvertently some material facts could not be pleaded and she may be allowed to withdraw the complaint with liberty to file fresh complaint.
2. Now the complainant has come forward on the allegations that he purchased a shop in the year 1996 for his own use for the purpose of earning his livelihood by way of self employment. Thus he is consumer within the meaning of Section 2(1)(d) Consumer Protection Act. InPara-6 it is mentioned that complainant is subsequent allottee of a shop no.01-UG235 (earlier number as 01-UG240) on the upper ground floor in Megha Arcade Scheme Golf Links-II a Surajpur, Site-C, Greater Noida. The said shop was earlier allotted to Delhi Properties and Finance Corporation which  transferred the said allotment in favour of complainant in December, 1996.
3. It is not necessary to advert to remaining facts as the aforesaid averment is itself sufficient for disposal of the complaint. It appears that earlier complainant did not mention the fact that he purchased the shop for his own use for the purpose of earning livelihood by self employment in the earlier complaint and that is why he withdrew the same. Now the same have been added purposely to bring himself within the ambit of Section 2(1)(d). That is not permissible.
4. Anyhow one thing is clear that complainant is retired colonel. When did he retire is not known. Anyhow since  booking was done in 1996, it can not be that he had retired before 1996.
5. When the complainant was already employed and was in regular service, he could not book a shop for earning livelihood by self employment. He could not engage himself in a business, during service.
6. One thing more is clear that complainant is not the initial purchaser. Booking was done by Delhi Properties and Finance Corporation which is a company/ a juristic person. It could not engage itself in self employment. Only a natural person can engage himself in self employment. The booking which was bad, abnitio, cannot be allowed to be converted into a booking covered by Consumer Protection Act.
7. The counsel for the complainant submitted that similar complaint in same project was admitted by this Commission on 01.06.18. We took the particulars of that case from counsel for the complainant and summoned the file of that case. The same is complaint no.582/18 titled as M/s. Sukanya Bala Krishnan and another vs. M/s. Ansal Housing and Constructions Ltd. fixed for 20.02.19. Perusal of the file reveals that in said case complainant was not in service, complainant was not a transferee from a juristic person Thus the facts the said case are totally different. A case can be compared only because it relates to same project. It can not be compared only when the facts are same.
8. Counsel for the complainant relied upon decision of National Commission in Kaushal K. Rana vs. DLF Commercial Complex Ltd. 2014 STC online NCDRC 564. Para 21 and 22 of the said judgement reveal that facts of the said case are different. That was a case of individual and necessary averments of livelihood by self employment have been made.
9. Counsel for the complainant also relied upon decision of National Commission in M/s. City View Enterprises Shri Gopal Das (Partha) vs. Huda 2016 SCC online NCDRC 769. He relied upon observations in para-8 of the judgement that explanation to Section 2(1)(d) excludes use by a person exclusively purpose for earning livelihood by means of self employment.
10. The argument is deceptive. Ultimately the complaint was dismissed as the complainant was held not to be covered by Consumer Protection Act. In para-10 of the judgement it has been observed that complainant does not explain how complainant firm or for  that matter, it partner were to earn livelihood by raising construction on the plot purchased by them.
11. In view of the above discussion complaint is dismissed in limine. Complainant may have its remedy in other forum, may be Civil Court as per Law.
12. Copy of the order be sent to both the parties free of cost.
13. File be consigned to record room.  

 

 

(ANIL SRIVASTAVA)                                           (O.P. GUPTA)                                    

MEMBER                                                           MEMBER (JUDICIAL)