STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Appeal No.375 of 2010)

                                                                   Date of Institution:13.10.2010

                                                                   Date of Decision  :04.03.2011

Punjab Information and Communication Technology Corporation Limited. (A State Government Undertaking ) (Earlier Punjab State Electronic Department and Production Corporation Limited) through its Managing Director/Chairman, Udhyog Bhavan, 5^th & 6^th Floor, 18 Himalaya Marg, Sector 17, Chandigarh 160017.

……Appellant.

V e r s u s

M/s Future Innovations Pvt. Ltd., 2228, Sector 21-C, Chandigarh.

              ....Respondent.

BEFORE:            MRS. NEENA SANDHU, PRESIDING MEMBER.

                        S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:            Sh. S. S. Chauhan, Advocate for the appellant.

                    Sh. Deepak Aggarwal, Advocate for the respondent.

PER  JAGROOP  SINGH  MAHAL, MEMBER.

1.                 This appeal under Section 15 of Consumer Protection Act, 1986 has been filed by the complainant against the order dated 9.9.2010 passed by learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter referred to as District Forum) vide which the complaint was allowed and the OP was directed to refund the amount of Rs.1,92,718/- to the complainant, Rs.10,000/- as compensation and costs. The order was to be complied with within a period of 45 days from the date of receipt of certified copy of the order failing which OP was to pay the amount of Rs.2,02,718/- along with interest @12% per annum from the date of order till actual payment.

2.                 Briefly stated the case of the complainant is that the  complainant was allotted a plot measuring 5166.77 sq. yards in Eltop Estate, Phase-VIII, Mohali for 99 years lease.  The possession was handed over to the complainant on 11.10.1988.  It is averred that subsequently on 5.4.2001, the OP offered to allot some additional land to the complainant immediately behind the above said plot at the prevailing government rate i.e. Rs.700/- per sq. yard.  The terms and conditions for allotment were also laid down and the complainant was asked to give its consent so that the land could be allotted to it. The complainant did not take up the offer. As per the complainant, the OP vide letter dated 4.3.2003 (Annexure C-4) again offered the same additional land to the complainant but this time at a new and reduced rate of Rs.350/- per sq. yard and the total payment due as per this rate was Rs.5,82,684.50.  The payment was to be made within 15 days of the issue of the letter and no further outstanding amount was mentioned or demanded. As per the complainant, he put forth a submission to the OP that the additional land offered by the OP was a greenbelt and should be offered to it free of cost as it could be maintained as a greenbelt only. As per the complainant, he agreed to the offer of OP and paid the sum of Rs.5,83,334.50 for the plot, which was @Rs.350/- per sq. yard. It was further averred that OP was required to complete all necessary formalities to transfer the plot in the name of complainant but at this time, the complainant was instructed not to construct any permanent structure on the additional land.  The complainant, it was averred wrote a letter to the OP on 10.1.2008 and made a demand for issuance of a No Due Certificate as he wanted to sell the property.  The complainant also demanded Rs.12,191.80 from the OPs, which he paid in excess to the OP’s.  When this demand was made, the complainant was shocked to receive a letter dated 28.3.2008 from the OP wherein the complainant was told to deposit an amount of Rs.1,92,718/- by 10.4.2008 and this amount was on account of interest on delayed payment of cost of additional land given to the complainant. In the meantime, the complainant sold the said plot measuring 5167.67 sq. yards plus additional land measuring 1666.66 sq. yards to Sh.Ardaman Singh, Mr.Harminder Pal Singh, Mr.Mahipinder Pal Singh Sandhu and Y.S.Bains, residents of H.No.17, Officers Enclave, Phase-XI, Patiala (Annexure C-18).  The NOC was required at the earliest for transfer of the plot.  In order to get the NOC, the complainant deposited the amount demanded by the OP.  It is averred that after the sale, the complainant requested for the refund of Rs.1,92,718/-, which he deposited under protest but to no avail. Hence, the complainant filed the present complaint.

3.                In its reply, OP had taken a preliminary objection that the complainant was not a consumer of the OP and the present complaint was not maintainable before this Consumer Fora.  On merits, it was pleaded that the complainant was allotted an independent industrial plot and an adjoining land, for maintaining greenbelt at a concessional rate but the complainant sold this land at escalated price to another party and thus was not entitled to any relief from the OP.  It was further pleaded that they had only made an offer for allotment of additional land measuring 1666.66 sq. yds. on concessional rate of Rs.350/- per sq. yard to the complainant, who was free to accept or decline the offer.  As per the OP, the acceptance of the offer by the complainant gave birth to a contract between the parties, wherein it was specifically provided that the land was to be maintained as a green belt and thus kept vacant.  As regard the No Due Certificate demanded by the complainant, it was asserted by the OP that the same could be issued only after all payment due from the complainant had been received.  It was next asserted that on checking the records, it was found that the cost of the additional land calculated at Rs.5,83,334.50 was paid by the complainant on 29.11.2003.  According to the OP, as per the offer letter dated 5.4.2001 (C-3), the complainant was liable to pay interest @19% on this amount, if not paid in time.  The OP, it was submitted, supplied the relevant account statement to the complainant, whereupon he made the payment of interest of Rs.1,92,718/- on 7.4.2008. As per the OP, the complainant was bound to make this payment and hence there was no breach of contract by the OP.  Pleading no deficiency in service on its part, OP prayed for dismissal of the complaint.

4.                 The parties led evidence in support of their contentions. 

5.                 After hearing the learned counsel for the parties and perusing the record, the learned District Forum allowed the complaint vide the impugned order dated 9.9.2010 as already mentioned in the opening para of the judgment.

6.                 The OP has challenged the impugned order through this appeal.

7.                 We have heard the arguments of learned counsel for the parties and have perused the record.

8.                 The contention of the learned counsel for the appellant is that the primary question whether the complainant is a consumer under the appellant or not has not been decided by the learned District Forum. The learned counsel referred to Preliminary Objections No.1 and 2 of their reply in which it was alleged that the complainant is not their consumer and therefore, they are not entitled to the relief prayed for. The learned District Forum mentioned this fact in Para No.3 of the order but no finding was recorded thereon.

9.                 The contention of the learned counsel for the appellant is that a piece of land was lying near the plot of the complainant, which was allotted to them on payment of certain amount, that the allotment was complete without any deficiency on their part and therefore, the contract of sale was complete. Their contention is that they were not to render any service nor to develop that area or to provide any roads or sewerage for the purpose of allotment of the said piece of land because the same had already been developed a long time back. Their contention is that the appellant was not to render any service to the complainant nor have they sold any defective goods and therefore, the question of any deficiency in service on their part did not arise. On the other hand, the service was to be rendered by the complainant because the said piece of land was to be maintained by them as green belt, they were to arrange fencing of the land in such a way as its maintenance as green belt was visible to the general public and they were not to raise any construction or erect permanent/RCC construction thereon. In this regard, the learned counsel for the appellant referred to the letter (Annexure C-9) dated 17.3.2004. His contention is that since the appellant was not to render any service to the complainant and rather the complainant was duty bound to maintain the plot as green belt, the question of deficiency in service on the part of the appellant does not arise and therefore, the relationship of consumer and service provider did not exist between the complainant and the OP. We find sufficient merit in this argument. Where a piece of land is sold to the complainant, the contract of sale is complete with the letter of allotment. It is not a case where development authority takes a piece of land and then develops it by laying roads and sewerage pipes and other amenities, carves out plot and sells the same to different customers. In that case, if there is any defect in service in laying the roads or providing the amenities or delay in delivering the possession of the plot, the development authority would be liable for deficiency in service. However, in the present case, as discussed above, no such amenities were to be provided by the OP/appellant nor any service was to be rendered. We are, therefore, of the opinion that the complainant is not a consumer under the OP. It was a contract of sale, which was complete when the allotment letter (Annexure C-9) was issued to the complainant on 17.3.2004. In this respect, we may refer to the decision Bangalore Development Authority Vs. Syndicate Bank, II (2007) CPJ 17 (SC). In that case, the question as mentioned in Para No.19 of the judgment in this respect was left open. It was not held by the Hon’ble Supreme Court that even under such circumstances, the purchaser would be a consumer.

10.               The learned counsel for the complainant/respondent has referred to the case of Lukhnow Development Authority Vs. M. K. Gupta, III (1993) CPJ 7 (SC).  This authority has no application to the present case because in that case, admittedly, the Development Authorities were to carry on planned development of the cities in the State, they were undertaking housing activity and there was delay in delivery of possession of the house to be allotted to the allottees or non completion of flat within the stipulated time or defective and faulty construction etc. In the present case, it is not so. As discussed above, neither the plot was to be developed by the OP/appellant nor any construction was to be raised thereon nor any amenities were to be provided. The only thing to be done was that on payment of certain sum of money, the plot was to be allotted to the complainant, which was done without any delay. The transaction, therefore, came to an end with the issuance of the letter (Annexure C-9).

11.               The learned counsel for the complainant/respondent has argued that when the full price of the plot has already been paid, and there was no term of the contract to charge interest as is clear from Annexures C-6 and C-9, the demand of additional amount by the OP would amount to deficiency in service. It is also argued that the OP/appellant was to issue a No Due Certificate and the delay in issuing the same would also amount to deficiency in service. We do not find any merit in this argument. There is no agreement between the parties vide Annexures C-6 or C-9 that a No Due Certificate would be issued by the OP/appellant. When this service is not to be provided as per the agreement, the non providing of No Due Certificate would not amount to deficiency in service. As regards  charging of interest, if the OP has demanded or recovered any such amount towards interest, the remedy against the same lies somewhere else and not before the Consumer Fora.

12.               The plot was offered to the complainant by the OP/appellant  vide Annexure C-3 dated 5.4.2001. Under this letter, the plot was to be allotted @Rs.700/- per sq. yard of which 405 was to be paid within 30 days of the letter of allotment and the remaining 60% could either be paid in lumpsum within 60 days without interest or in six half yearly equated installments with 19% interest per annum. The complainant did not agree to these terms and therefore, subsequently, on 4.3.2003, the plot was offered at a reduced rate of Rs.350/- per Sq. Yard vide Annexure C-4. The total premium was to be paid within 15 days. There was no interest payable for the delay in making the payment. The total amount was paid by the OPs vide a cheque dated 29.11.2003 and the OP/appellant was informed on 30.11.2003 vide letter (Annexure C-6). The plot was accordingly allotted on 17.3.2004 vide Annexure C-9. The OP did not demand the interest on account of delayed payment for about four years.  No such demand was made till the complainant requested for No Due Certificate. The OP/appellant demanded Rs.1,92,718/- towards interest vide letter (Annexure C-24) dated 28.3.2008. The said amount was deposited under protest. Since, the payment of interest was not a term of the sale, the said amount could not be demanded by the OP.

13.               The learned counsel for the complainant/respondent has also  referred to the case of Tamil Nadu Housing Board & Ors. Vs. Sea Shore Apartments Owners Welfare Association, I (2008) CPJ 45 (SC) and argued that any attempt to  exclude  services offered by the statutory bodies to common man from application of the Act must be discouraged. He also referred to the case of Kishore Lal Vs. Employees State Insurance Corporation, I (2008) CPJ 13 (SC)  and argued that the jurisdiction of Consumer Fora would not be curtailed unless there is express provision prohibiting Consumer Fora to take up matter. The learned counsel for the appellant has no dispute with the law laid down in these authorities. However, what is to be proved by the complainant is that he falls under the definition of a ‘consumer’ and the OPs were liable to render any service. He has failed to prove any of the two. These authorities do not warrant that the Consumer Fora should assume jurisdiction even if there is no relationship of consumer and service provider or there is no deficiency in service or no consumer dispute arises from the facts of the case.

14.               In view of the above discussion, we are of the opinion that the complainant is not a consumer and the Consumer Fora, therefore, have no jurisdiction to try the dispute between the parties. The appeal is allowed and the complaint filed by the complainant/respondent being not maintainable is dismissed with litigation costs of Rs.5,000/-. The impugned order passed by the learned District Forum is accordingly set aside.

15.               Copies of this order be sent to the parties free of charge.

4^th March 2011.

Sd/-

[NEENA SANDHU]

PRESIDING MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Ad/-

STATE COMMISSION

(Appeal No.375 of 2010)

Argued by:            Sh. S. S. Chauhan, Advocate for the appellant.

                    Sh. Deepak Aggarwal, Advocate for the respondent.

Dated the 4^th day of March, 2011.

ORDER

                    Vide our detailed order of even date recorded separately, this appeal has been allowed.

(JAGROOP SINGH MAHAL)                                              (NEENA SANDHU)    

                MEMBER                                                            PRESIDING MEMBER