DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.167/15.10.2008 Decided on : 22.04.2009 1.Tara Chand So Sh.Chetan Ram. 2.Vipin Kumar S/o Sh.Krishan Chand. 3.Jagjit Singh S/o Sh. Dhani Singh, all residents of Anaj Mandi, Bareta, Tehsil Budhlada and District Mansa ..... Complainants. VERSUS Nagar Council, Bareta through its Executive Officer, Tehsil Budhlada and District Mansa ..... Opposite Party. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.Naval Goel, Advocate counsel for the complainant. Sh.Zanny Kath, Advocate, counsel for the opposite party. Quorum: Sh.P.S.Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S. Dhanoa, President. This complaint has been filed, by Sarv Sh. Tara Chand, Vipin Kumar and Jagjit Singh, all residents of Bareta, against Nagar Council, Bareta, under Section 12 of the Consumer Protection Act, 1986 (herein after called the 'Act') . 2. Briefly stated, the case of the complainants is that, under open auction held on 19.1.1996, they were allotted plot bearing No.18 at Bareta, Contd........2 : 2 : because they were highest bidder, by the opposite party. They have deposited a sum of Rs.21,000/- with the opposite party and are willing to deposit the remaining amount of consideration, but the opposite party has failed to deliver the possession of the said plot, as such, the complainants are the consumers and there is deficiency in service on their part. The application filed by the complainants dated 12.9.2007 is received in the office of the the opposite party on 14.9.2007. They have also served legal notice dated 13.10.2007 upon the opposite party, but the same has not been responded, because of which the complainants have been subjected to mental and physical harassment and are entitled to seek Rs.50,000/- on account of damages and a sum of Rs.5500/- on account of costs in addition to delivery of possession of the plot. It is submitted that earlier complaint for the same relief, has been dismissed by this Forum. Aggrieved by the same, the complainants preferred appeal, but the same was dismissed by the Hon'ble Punjab State Commission. In the above said order, complainants have not been admitted to be consumers of the opposite party who have allotted 17 plots, and complaint by one Sudarshan Kumar was allowed by this Forum treating him as consumer. It is urged that the complainants, are 'consumers' within the purview of its definition given in the Act, as such, they are entitled to file fresh complaint. Hence this complaint. 3. On being put to notice, opposite party filed written version, resisting the complaint, by taking preliminary objections; that the complainants are not consumers, under them, within the purview of its definition, given in the Act, as such, this Forum has no jurisdiction to entertain and try the complaint; that opposite party is a statutory body and final approval about the allotment of any plot sold by the opposite party has to be given by the Government of Punjab and they are already pursuing the matter with the Government, but the complainants have concealed the said fact despite knowledge; that intricate questions of law and facts Contd........3 : 3 : are involved in the case, as such, it cannot be adjudicated in summary manner by the Consumer Forum, but only by the civil court after affording opportunities to the parties to lead their evidence; that complainants are estopped by their own act and conduct from filing the instant complaint; that it is barred by the principle of resjudicata, because of dismissal of earlier complaint filed by the complainant and appeal on the same subject matter and that complaint being false and frivolous, is liable to be dismissed with compensatory costs. On merits, it is submitted that plots were allotted by the opposite party in open auction to the general public and the complainants deposited 1/4th amount, of amount of sale consideration and they were liable to make the payment of the remaining amount and to secure possession, after approval by the Government of Punjab. It is contended that said fact was brought to the notice of the complainants, as such, there is no deficiency in service on the part of the opposite party on account of which he may be burdened with compensation and costs, as demanded in the complaint. It is also contended that the orders passed by the Forum in complaints filed by other allottees have been stayed by the Hon'ble State Commission, Punjab, in appeal preferred by the opposite party. Rest of the averments, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs. 4. On being called upon by this Forum, to do so, the counsel for the complainants tendered affidavit, Exhibits C-1 and copies of documents Ext.C-2 to C-6 before closing evidence. On the other hand, learned counsel for the opposite party has tendered in evidence, copies of documents, Ext.OP-1 to OP-20, and closed evidence, on their behalf. 5. We have heard the learned counsel for the parties and gone through the oral and documentary evidence, adduced on record, by them, carefully, with their kind assistance. 6. At the out set, learned counsel for the opposite party Sh.Zanny Contd........4 : 4 : Kath, Advocate, has submitted that after dismissal of the previous complaint and appeal preferred by them, they have not availed any further remedy open to them, as such, decision in the previous complaint has become final and binding upon the parties because of which the instant complaint is not maintainable and is liable to be dismissed with compensatory costs. 7. Learned counsel for the complainants Sh.Naval Goel, Advocate, has submitted that previous complaint was dismissed by this Forum on the ground of maintainability because complainants were not considered to be consumers within the purview of its definition given in the Act, but in the subsequent verdict delivered by the Hon'ble National Commission, it has been held that complaint is not barred by the Consumers of the plots purchased in open auction, as such, instant complaint is maintainable, even if, complainants have not availed any remedy against the order passed by the hon'ble State Commission in appeal preferred against dismissal of their complaint by this Forum. In support of his contentions , learned counsel has relied upon 2006(2) CPC (NC) 239 Delhi Cantonment Board Versus S.K.Kapoor & Associates wherein auction of shops in commercial place was held , but the Housing Board failed to provide basic amenities. It was held that there is deficiency in service with the observation because it is the duty of the board to provide facilities in the area and housing activities is covered under the word 'service' as defined in Section2(1)(o) of the Act. Learned counsel has further argued that Act is a social legislation which has been enacted by the legislature to advance the cause of justice, as such, relief, which is otherwise in order, cannot be denied on technicalities. In this regard, learned counsel has relied upon unreported judgment delivered by the Hon'ble Apex Court in Civil Appeal No.11439 of 1996 decided on 28.2.2000 titled as New India Assurance Co. Ltd versus R.Srinivasan wherein complaint and application filed by the complainant for restoration were dismissed in default. The Contd........5 : 5 : plea of the opposite party was that his complaint was dismissed in default, as such, second complaint does not lie especially when the same has not been restored. It was held by the Apex Court that interest of justice cannot be defeated by rules of technicalities, as rules of procedure, are intended to save the ends of justice and not to defeat the dispensation thereof. 8. We do not find merit in the argument advanced by the learned counsel for the complainants, because decision given by this Forum in the earlier complaint filed by them has gained finality due to non availing of further remedy open to them after dismissal of their appeal by the Hon'ble Punjab State Commission, within the period prescribed under the law. The complainants have filed complaint No.646 on 30.7.2007, which was dismissed on 3.2.1998 by this Forum on the ground that contract of sale and purchase of plot in public auction is enforceable in Civil Court and it is not maintainable before the Consumer Fora. As per the copy of the order dated 30.8.1999, passed by the Hon'ble State Commission, Punjab, in the appeal preferred by the complainants, the order passed by this Forum has been upheld and complainants have not availed further remedy open to them. Therefore, the order passed in the previous complaint has become final and binding upon the parties. The same controversy cannot be reagitated by the complainants, in view of any subsequent decision given by the Hon'ble National Commission, especially when cause of action and parties are same. We have carefully gone through the authorities relied upon by the learned counsel for the complainants, but their facts and circumstances are distinguishable from those in hand. The ratio of judgment delivered in these authorities does not advance the case of the complainants, since the fresh complaint filed by them, is not maintainable. Therefore, we do not consider it appropriate to adjudicate the controversy on merits. 9. In the light of the above, we have come to the conclusion, that the complainants are not entitled to payment of any compensation and Contd........6 : 6 : costs, incurred by them for filing the instant complaint. 10. Resultantly, we dismiss the complaint and leave the parties to bear their own costs. 11. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 22.04.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
