Chairman/Administrator, Market Committee, Uklana which was the Opposite Party before the District Forum, has filed these Revision Petitions against the impugned judgements and orders  dated 12.10.2009 passed by the State Consumer Disputes Redressal Commission, Haryana (for short, the State Commission), whereby by    State Commission has upheld  the orders  dated 4.5.2009 passed by the District Forum, Hisar.

          The Revision Petitions are being disposed of by a common order as the questions of  facts and law  involved are same/similar in all these cases. 

Respondents–Complainants in Revision Petition No.504, 511, 520, 526, 528, 531, 533, 535, 537, 539, 540, 545-550 of 2010 purchased shops/booth situated in New Grain Market at Uklana, District Hisar in open auction held on 25^th March, 2003.  Respondents-Complainants in Revision Petition Nos.505-510, 512-519, 522, 527, 529, 530, 532, 534, 538, 541-544 and 551 of 2010 purchased shops/booths in the market in question  by way of allotment through draw of lots.

          Chairman/Administrator, Market Committee, Uklana, Hisar issued allotment letters  to all the respondents in the present batch of Revision Petitions.  The said allotment  letter contained terms and conditions of allotment.  Conditions relevant for adjudication  of  these Revision  Petitions, reads as under:

“4.     The sum of Rs. xxxxx paid by you as 25% of the allotment price/bid cost of the plot has been adjusted in your plot account.   You are requested to remit a sum of Rs. xxxxx on account of 75% balance sale price of the plot either without interest within 30 days from the date of issue of this letter or in six half yearly instalments with 15% interest or at such rate of interest as may be specified by the Board from time to time.

5.      In case of failure to deposit the instalments in time penal interest@ 4% P.A. to be compounded half yearly shall be charged in addition to the normal interest.   In case of default of two successive instalments the plot and the building, if constructed, shall be resumed by the Market Committee after giving an opportunity of being heard to you.

7.      The possession of the plot shall be offered to you within 30 days from the date of issue of allotment letter provided that minimum basic facilities i.e. roads, water supply, sewerage and electrification are existing and if the said basic facilities are not existing then after providing the said basic facilites.

9. The allottee of shop plot shall not be permitted to use the premises for any purpose other than the marketing of notified agricultural produce.  In case of misuse of his premises, the allotment shall be cancelled and 10% of the value of the plot, interest and other dues payable, shall be forfeited and such as allottee shall be debarred from allotment of any other site”.

          After payment of 25% of the allotment price/ bid cost of the plots  Respondents chose to pay the balance 75% of the sale price by way of installment instead of remitting the same within 30 days, and therefore, they were liable to pay the balance amount by way of installment which included 15%  interest on the principal amount.  Most of the Respondents in the present  cases chose to pay only the principal amount component of the installment  leaving out  the interest part.  Thus they defaulted in making the payment of installment and Market Committee  became entitled  to recovery of  interest  on the amount paid by them as per the conditions of allotment.   In some of the cases Respondents did not even pay the entire  principal amount of the instilments.

          Respondents filed separate complainants before the District Forum alleging deficiency in service on the part of the Petitioner in not delivering the possession in time and not providing basic amenities like water, sewerage, electricity etc. and prayed that Petitioner be directed to pay interest @ 15% on the entire deposited amount by the Respondents against the plot in question and also to pay a sum of Rs.1,50,000/- on account of escalation in the cost of construction. It was also prayed that the Petitioner be directed  not to charge further installments and interest etc. from  Respondents till the actual delivery of the physical possession of the plot in question.

          During the pendency of the complaints the Executive Officer-cum-Secretary Market Committee, Uklana on 9^th July, 2008 offered possession to the Respondents in respect of shops/booths situated in New Grain Market  at Uklana.

Petitioner on being served filed its written statement.    In the complaints filed by the Respondents who had purchased the shops in open auction, a preliminary objection was taken that they were not “consumer” as defined under Section 2(1)(d) of the Consumer Protection Act, 1986.  In this respect reliance was placed on the judgement of the Supreme Court of India in U.T. Chandigarh Administration & Anr.  vs. Amarjeet Singh & Ors. – (2009) 4 SCC 660 wherein it was held that a person who purchases a property in  open auction, could not be termed as a ‘consumer’ and the  complaint filed by him would not be maintainable.   That the District Forum did not have the jurisdiction to deal with a complaint filed by the auction purchaser.  Further   plea taken was that complaints were barred for want of  statutory notice under Section 31 of the Punjab Agricultural Produce Market Act,  1961.  Complaints were barred under Section 31(2)  of the Punjab Agricultural Produce Market Act wherein it was provided that every such suit shall be dismissed unless it is filed within six months from the date of accrual of cause of action.  In the present cases , the complaints were filed in  2008 i.e. after six months  as provided under Section 31(2) of the Punjab Agricultural Produce Market Act.  It was further submitted that at the time of auction there was no condition that all facilities such as water supply; sewerage etc. shall be a condition precedent for the allotment of plot.  It was also submitted that Respondents did not avail of the remedy of appeal under the Haryana State Agricultural Marketing Board (Sale of Immovable Property)  Rules 2000 despite the fact that the allotment of booth/shop was made under the provisions of the said rules where  remedy of filing the appeal is provided under  rule 11 of the said Rules.

In the complaints filed by the Respondents who had been allotted the plots otherwise than by way of auction, plea taken was that the complaints were not maintainable as the plots had been purchased by the Respondents for commercial purposes and they did not fall   within the definition of “consumer” 2(1)(d) of the Consumer Protection Act.

On merits in all these Revision Petitions, it was submitted that providing all amenities was not a condition precedent for either paying the installments due  or interest on them.  It was submitted that all amenities including sewerage and water were made available at the site.   However, a little quantity of work remained which was most likely to be completed soon.  It was vehemently denied that Petitioner was guilty of negligence and deficiency in service.  It was submitted that all facilities and requirements had almost been provided at the site.  It was denied that Respondents had suffered any mental torture, harassment and financial loss.  Accordingly, it was prayed that complaints be dismissed.

District Forum by its order dated 4^th May, 2009 accepted the  complaints and granted the following relief:

“1.     The respondents are hereby directed to pay interest @ 9% per annum over the entire deposited amount after one month from the date of allotment i.e. from 22.2.2005 till the date of issuance of valid fresh offer of possession of the plot after providing all the amentias.

2.      The respondents are further directed not to charge any interest on the remaining due amount till the date of valid fresh offer of possession of the plot.

3.      The respondents are hereby directed to issue  fresh offer of possession of the plot to the complainant after completing  all the development works and amenities within a period of three months.

4.      The respondents are further burdened with cost of litigation which we quantify at Rs.500/-  (Rupees Five  Hundred Only) payable to the complainant”.

          Petitioner being aggrieved, filed appeals before the State Commission with a delay of 61 days along with an application for condonation of delay assailing the orders passed by the District Forum, which have been dismissed by similar  orders dated 12.1.2009.  The appeals were dismissed as barred by limitation as well as on merits.

          Learned counsel appearing for the Petitioner contends that the delay occurred as number of appeals were required to be filed.  That   the delay in filing the appeals was not intentional and the State Commission should have condoned the delay.

          After hearing the counsel for the parties, we are of the opinion that the delay of 61 days in filing the appeal in the given facts and circumstances, deserves to be condoned.  The delay was not enormous and moreover, more than 50 appeals were required to be filed which may have caused some delay in filing the appeals.  The State Commission in the present cases erred in not condoning the delay in filing the appeals.

          It is not disputed before us that electrification work in the market in question was completed on different dates between 12.4.2002 to 19.2.2009.  Facilities like sewerage and water were made available at the site on 14^th January, 2009.  Civil works at the market in question were completed on 5.6.2005 (development of  phase-I NGM at Uklana) and 10.09.2008 (development of phase-II NGM at Uklana).  From this it is evident that facilities and required amenities had almost been provided at the site at the time of handing over the possession to the allottees. Apart from this,  a perusal of the allotment letter  makes it clear that provisions of amenities by the Petitioner particularly mentioned  in Condition No.7 was not a condition precedent for making the payment of  consideration amount by the purchaser/allotees in accordance with condition No.5.  Further, the allotment letter did not provide that possession or the said amenities were to be provided within any specified time.  Time was not essence of the contract between the parties.  As per condition No.7 of the letter of allotment, it was made clear that possession of the plot shall be offered to the Respondents within 30 days from the date of issue of the allotment letter provided that minimum basic facilities such as  road, water supply, sewerage and electrification  were existing  and if the said basic facilities were not existing, then the possession shall be provided after providing the above said  basic facilities.  The Respondents could not allege any deficiency in service especially when they had voluntarily accepted the terms and conditions of the allotment letter at the time of allotment and no objection was raised by them at the time of allotment.  As enumerated all required facilities had almost been provided at the time of handing over the possession to the allottees in the year 2008.  Therefore, Respondents could not justifiably avoid  their liability to pay interest on the installments amounts .  They were not entitled to interest on  the deposited amount till a fresh offer of possession was made after providing of  basic facilities or amenities.

          Supreme Court in    Municipal Corpn., Chandigarh v. Shantikunj Investment (P) Ltd.,(2006) 4 SCC 109, coming down very heavily on such allottees  held that  it is not possible to accept a sweeping proposition that if all the  facilities or amenities are not provided, then the allottees/lessees can take upon themselves not to pay the lease amount, interest and penalty.  It was observed: 

“26. We have bestowed our best attention to the provisions of the Act and the Rules. On a plain reading of the definition “amenity” [in Section 2(b)] read with Rule 11(2) and Rule 12, it cannot be construed to mean that the allottees could take upon themselves not to pay the lease amount and take recourse to say that since all the facilities were not provided, therefore, they are not under any obligation to pay the instalment, interest and penalty, if any, as provided under the Act and the Rules. It is not possible to accept a sweeping proposition that if all the facilities or amenities are not provided, then the allottees/lessees can take upon themselves not to pay the lease amount, interest and penalty, would be going too far. It has never been the condition precedent. It is true that in order to fully enjoy the allotment, proper linkage is necessary. But to say that this is a condition precedent, that is not the correct approach in the matter. “Amenity” has been defined under Section 2(b) of the Act which includes roads, water supply, street lighting, drainage, sewerage, public building, horticulture, landscaping and any other public utility service provided at Chandigarh. That is a statutory obligation but it is not a condition precedent as contended by learned counsel for the respondents. It is true that the word “enjoy” appearing in the definition of the word “premium” in Rule 3(2) of the Rules means the price paid or promised for the transfer of a right to enjoy immovable property under the Rules. It was very seriously contended before us that the word “enjoy” immovable property necessarily means that the Administration should provide all the basic amenities as appearing under Section 2(b) of the Act for enjoying that allotment. The expression “premium” appearing in the present context does not mean that the allottees/lessees cannot enjoy the immovable property without those amenities being provided. The word “enjoy” here in the present context means that the allottees have a right to use the immovable property which has been leased out to them on payment of premium i.e. the price. This is only the price to enjoy that allotted/leased property. Otherwise, walking over that property will mean to trespass. This is only a permissive possession. Since the allottees had paid the price or promised to pay after the transfer of the right to enjoy the immovable property, this cannot be construed that the 237) as follows:

‘ REAL PROPERTY LAW, such circumstances, in regard to situation, view, location, access to a water course, or the like, as enhance the pleasantness or desirability of the property for purposes of residence, or contribute to the pleasure and enjoyment of the occupants, rather than to their indispensable needs. Extras or intangible items are often associated with property. They may be tangible. Often amenities in a condominium include swimming pools, landscaping, and tennis court.’

    (emphasis supplied)

          27.    ………………………

28. It is true that once allotment of the land has been made in favour of the allottee, he can take possession of the property and use the same in accordance with the Rules. That does not mean that all the facilities should be provided first for the so-called enjoyment of the property as this was not the condition of auction. The party knew the location and condition 313 which has an important bearing. In this case, the Punjab Urban Estates (Sale of Sites) Rules, 1965, the Punjab Urban Estates (Development and Regulation) Act, 1964 and the Haryana Urban Development Authority (Disposal of Land and Buildings) Regulations, 1978 came up for consideration and in that context, a three-Judge Bench of this Court categorically held as follows: (SCC pp.     489-90, para 8)

‘To decide the aforesaid submission of Shri Bhandare we would really be required to find out as to whether the offer was of developed plots or undeveloped plots. As the offer had stated that modern amenities noted above ‘will be provided’, it cannot be held that till the amenities as mentioned have become fully functional, the offer is incomplete. It is for this reason that the fact that full development has not yet taken place, even if that be the position as contended by Shri Bhandare, cannot be a ground to hold that interest has not become payable. It is true that the applicants were given to understand that the amenities noted above would become available (and within reasonable time), the fact that the same did not become available to the desired extent could not be a ground not to accept delivery of possession. From the order of the High Court which we have quoted above, we find that the offer of possession of the undeveloped plot was not accepted by the counsel of the appellant. That order being of 17-10-1980, we are of the view that interest did become payable from that date. The fact that the plot has not yet been fully developed, as is the case of the appellant, has, therefore, no significance insofar as charging of interest is concerned. We are not in a position to accept the submission of Shri Bhandare that equity would not demand charging of interest, even though the plots are yet to be fully developed. When parties enter into contract, they are to abide by the terms and conditions of the same, unless the same be inequitable. In the present case, question of equity does not really arise inasmuch as the condition relating to interest is founded on a statutory rule, vires of which has not been challenged. The provision in a cognate rule cannot                                                                              (emphasis supplied)

Supreme Court in Bangalore Development Authority v. Syndicate Bank,(2007) 6 SCC 711  has held that where no time is stipulated for performance of the contract i.e. for delivery or where time is not the essence of the contract  and the buyer does not issue a notice making time the essence by fixing a reasonable time for performance, and the buyer instead of rescinding  the contract on the ground of non-performance, accepts the belated  performance  in terms of the contract then the question of any breach or payment of damages under the  general law governing contracts did not arise.  In such circumstances, Respondents would not be entitled to any interest on the price paid by them from the date of  deposit  to date of delivery of possession.  Para 13 of the said judgement reads as under:

“13. As already noticed, where the grievance is one of delay in delivery of possession, and the development authority delivers the house during the pendency of the complaint at the agreed price, and such delivery is accepted by the allottee complainant, the question of awarding any interest on the price paid by him from the date of deposit to date of delivery of possession, does not arise. The allottee who had the benefit of appreciation of price of the house, is not entitled to interest on the price paid. In this case, the 11 houses 5.5 lakhs per corner HIG house and Rs  4.75 lakhs per other HIG houses). In view of it, the order of the Commission awarding interest at 18% per annum on the price of the houses is unsustainable and liable to be set aside”.                                           (emphasis supplied)

          In the present cases, Respondents did not pay part of the installments  on the ground  that some of the amenities were not  provided.  Supreme Court in Civil Appeal No.1550 –1587 of 2011 titled Haryana State Agricultural Marketing Board & Anr. vs. Raj Pal, decided on 10.2.2011,   relying  upon the principles laid down in  Bahadurgarh Plot Holders’ Association vs. State of Harya (1996) 1 SCC 485  and the Municipal Corporation of Chandigarh (supra),   has held that the allottees cannot  postpone the  payment  of installments merely on the ground that some of the amenities were not ready.   If they were not entitled for postponement of the installments, it follows that they will be liable to pay the normal interest on the delayed installments upto the date of payment.   The facts in Rajpal’s case (supra) are almost parallel to the facts of the present cases.  In the said cases as well the allottees/auction purchasers had paid only installment of auction price and did not pay interest.   Some of the allottees had also  defaulted in  payments of the installments as well.  Some of them had taken possession of the site and constructed shops and commenced business.  When called upon  by the Market Committee to pay the balance sale price and interest on the instalments @ 15% per annum as also penal interest the allottees/auction purchaser filed writ petitions  in Punjab & Haryana High Court seeking quashing of demand notice claiming interest and penal interest and sought direction to the  Haryana State Agricultural Marketing Board to accept only actual sale price without any interest.   It was contended that since Market Committee had not provided the basic amenities and the facilities at the market and the Market Committee did not offer the possession of the plots because the basic amentias were not ready when the plots were auctioned, Market Committee could not charge the interest on the plot value let alone penal interest.    The High Court allowed the writ petition.   Aggrieved against which the Haryana State Agricultural  Marketing Board filed appeal before the  Supreme Court.  Supreme Court allowed the appeals, overturned the decision of the High Court and held that the allottees could not postpone the payment of installments merely that some of the amenities were not  ready.  It was held as under:

“10.    The aforesaid decisions, when read with reference to the         provisions of the rules applicable make it clear that the   allottees   were   liable   to   pay   the   instalments   and simple   interest   thereon   in   terms   of   the   letters   of allotment. However, having regard to the admitted position emerging   from   the   counter   affidavit   filed   by   the appellants   before   the   High   Court,   the   basic   amenities   of water   and   sewerage   disposal   were   not   available   when   the allotment   letters   were   issued   and   the   said   works   were commenced only in 2001 and 2002 and were in progress even in   the   year   2007.   It   is   in   these   circumstances, apparently,   some   of   the   allottees   did   not   commence construction or did not commence their business.   Be that as it may.

11.    In   view   of   the   principles   laid   down   in  ahadurgarh Plot Holders’ Association (supra),  Shantikunj  (supra) and Amarjeet   Singh  (supra),   it   is   clear   that   the   allottees cannot   postpone   the   payment   of   instalments   merely   on   the ground that some of the amenities were not ready. If they were not entitled for postponement of the instalments, it follows   that   they   will   be   liable   to   pay   the   normal interest on the delayed instalments up to date of payment. However, having regard to the fact that the Rules did not contemplate   compound   interest   and   penal   interest   and   the Market   Committee   was   yet   to   complete   certain   infrastructural   work   like   water,   sewerage   disposal,   as held in  Shantikunj (supra), the Market Committee will not be   entitled   to   claim   any   compound   interest   or   penal interest.

12.    We, therefore, allow these appeals in part and permit the   Market   Committee   to   issue   revised   Demand   Notices claiming only simple interest at the rate 15% per annum. The   respective   respondent   shall   pay   the   interest   within three months from the date of receipt of the demand notice from   the   Market   Committee.   If   the   amount   of   interest   is not   paid,   the   Market   Committee   will   be   entitled   to   take such   action   as   may   permissible   in   terms   of   the   rules   in accordance with law.”

(emphasis supplied)

          In the light of the law laid down by the Supreme Court  in the aforementioned judgements,  the direction issued by the District Forums  directing the Petitioner  (i) to pay interest @ 9 % per annum over the entire deposited amount after one month from the date  of allotment  till the date of issuance of  valid  fresh offer of possession of the plot after providing all the amentias; and  (ii) not to  charge  any interest on the remaining due amount till the date of  valid fresh offer  of possession, cannot be upheld and are set aside.

          The Fora below have erred in holding that Petitioner was required to give possession within one month of the  letter of allotment, which is factually incorrect and not borne out from the terms and conditions of the letter of allotment.  Other findings  recorded by the Fora below that providing of the  basic facilities  like water, sewerage etc was  a condition precedent is also not borne out by  the terms and conditions  of the allotment letter.

          Respondents–Complainants in Revision Petition No.504, 511, 520, 526, 528, 531, 533, 535, 537, 539, 540, 545-55- of 2010 had purchased shops/booth situated in New Grain Market at Uklana, District Hisar  in open auction held on 25^th March, 2003.  A preliminary objection taken by the Petitioner that the complaints on their behalf were not maintainable in view of the law laid down by the Supreme Court in   UT Chandigarh Admn. v. Amarjeet Singh,(2009) 4 SCC 660.   The  State Commission brushed aside   the preliminary objection  raised by the Petitioner by holding thus:

“The observations made in case law relied upon  by the learned counsel for the opposite parties in U.T. Chandigarh Administrtion and another versus Amarjeet Singh and others, 2009 (2) C.P.C.6 (SC), are not attracted to the present case because in the above cited case, supra, the allotment was with respect to the sites located within the area of Chandigarh  which is a well planned city of India and the shop was leased out on as and when basis.  Thus the facts of the present case cannot be taken at par with the above cited case because the allotment relates to Uklana, a small town in Haryana State”  

          The finding recorded by the State Commission that the observations made by the supreme Court in the case of  Amarjeet Singh (supra)  is not applicable to the present cases,   is fallacious.  The Supreme Court in the said case  laid down broad  proposition that  an auction purchaser who purchases a plot  in public auction without any condition precedent for providing any specific amentias, is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act and that complaint filed by him is not maintainable   irrespective of whether the city  is big or small, planned or otherwise.  The Supreme Court in paras 14 and 15 of  the aforesaid case  held as under:

“14. A “complaint” is maintainable before a Consumer Forum under the Consumer Protection Act, 1986, by a “complainant” (“consumer” or others specified) against a “trader” or “service provider”. The terms “complainant”, “complaint”, “consumer”, “trader” and “service” are defined in clauses (b), (c), (d),(q) and (o) of Section 2 of the Act. Therefore, a Consumer Forum will have jurisdiction only when: (i) the complainant is a “consumer” as defined in clause (d) or a person specified in clause (b) of Section 2 of the Act; (ii) the respondent is a “trader” as defined in clause (q) or a provider of “service” as defined in clause (o) of Section 2 of the Act; and (iii) the “complaint” relates to any of the matters specified in clause (c) of Section 2, for obtaining any relief provided by order under the Act. It therefore follows that where the complainant is not a “consumer” [or a person specified in clause (b) of Section 2], or where the respondent is not a “trader” or “service provider” or where the complaint does not relate to matters enumerated in clause (c) of Section 2 of the Act, the Consumer Forum will have no jurisdiction either to entertain any complaint or grant any relief under the Act.

15. The respondents relied upon the decisions in LDA v. M.K. Gupta-(1994) 1 SCC 243, Sector-6, Bahadurgarh Plot Holders’ Assn. (Regd.) v. State of Haryana –(1996) 1 SCC 485, GDA v. Balbir Singh-(2004) 5 SCC 65 and Municipal Corpn., Chandigarh v. Shantikunj Investment (P) Ltd.-(2006) 4 SCC 109 to contend that the complaints were maintainable and relief sought could be granted. We may straightaway note that the decisions in Bahadurgarh2 and Shantikunj4 will not be of any assistance to decide the issue of maintainability, as those cases did not relate to complaints under the Consumer Protection Act, but arose out of writ petition”.

          We have already held that providing of any specific amenities by the Petitioner was not a condition precedent for purchase/giving possession of plots.  The Respondents in these cases have participated in the auction after examining the site and made the bid in auction, keeping in view the existing situation, position and condition of site.   Once a person participated in an auction with open eyes, he cannot be heard to say that he would not pay the balance of price or stipulated interest on the delayed payment, on the grounds that amenities are not provided.  Supreme Court in Amarjeet Singh’s case (supra) has clearly held that the auction purchaser cannot be termed as a consumer   under the Consumer Protection Act.  In the instant cases, the purchasers  are not consumer and the Petitioner  was not a trader or service provider, therefore, any grievance of the purchasers  would not give rise to complaints under the Consumer Protection Act.  The jurisdiction  of the Fora under the Consumer Protection Act was clearly barred and  the Fora below have erred in entertaining the complaints  filed by the Respondents.

          For the reasons stated above, we allow these Revision petitions, set aside the orders passed by the Fora below and dismiss the complaints.  Parties shall bear their own costs throughout.

             In terms of the directions issued by the Supreme Court  in para 12 in Rajpal’s case (supra),  we permit the Petitioner to issue revise demand notices claiming simple interest @ 15% per annum.  Respective  Respondents shall pay the interest amount/balance  of the installment amounts along with interest within three months from the date of receipt of demand notice from the Petitioner.   If Respondents do not pay the amount, the Petitioner would be entitled to take such action as is permissible in terms of the Rules in accordance with law.