Punjab

StateCommission

FA/141/2014

HARINDER KUMAR - Complainant(s)

Versus

NEW MANDI TOWNSHIP (PUNJAB) - Opp.Party(s)

SANJEEV GOYAL

09 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB   DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

  First Appeal No.141 of 2014                                                    

Date of institution  :    17.02.2014 

Date of decision     :    09.03.2015

 

1.      Harinder Kumar S/o Om Parkash, SCF No.2,

2.      Om Parkash S/o Devi Diyal, SCF No.3,

3.      Jiwan Kumar S/o Jai Gopal, SCF No.72,

          All residents of Grain Market, Bhawanigarh, Tehsil and District         Sangrur.

…….Appellants/Complainants No.1, 3 & 4

 

Versus

1.      New Mandi Township (Punjab) SCF No.2437-38, Sector 22-C,         Chandigarh, through its Administrator.

 

                                                               …Respondent/Opposite Party

2.      Surjit Singh S/o Safa Singh, SCF No.1, Grain Market,     Bhawanigarh, Tehsil and District Sangrur. 

 

                                                        …Respondent/Complainant No.2

First Appeal against the order dated 09.12.2013 of the District Consumer Disputes Redressal Forum, Sangrur.

Quorum:- 

 

          Hon’ble Mr. Justice Gurdev Singh, President.

                        Shri Baldev Singh Sekhon, Member.

                        Mrs. Surinder Pal Kaur, Member.

 

Present:-

 

    For the appellants                :    Shri Sanjeev Goyal, Advocate.

    For respondent No.1  :    Shri Simarjot Singh Dhillon,

                                                 AAG, Punjab.

    For respondent No.2  :    Ex parte.

  

JUSTICE GURDEV SINGH,  PRESIDENT :

 

                    The appellants/complainants Nos.1,3 & 4 have preferred this appeal against the order dated 09.12.2013 passed by District Consumer Disputes Redressal Forum, Sangrur (in short, “District Forum”), vide which the complaint filed by them and respondent No.2/complainant No.2, under Section 12 of the Consumer Protection Act, 1986 (in short, “the Act”), for issuance of directions to respondent No.1/opposite party not to establish the Sabzi Mandi on the site earmarked for Rest House and canteen in the basic layout plan of New Grain Market, Bhawanigarh and to construct the Rest House and the canteen on the site as per that layout plan and to pay Rs.1,00,000/-, as compensation on account of the mental agony and harassment suffered by them and as litigation expenses, was dismissed.

2.                The complainants alleged, in their complaint, that on 06.12.1978, the Punjab Government, under the Town Planning Scheme and for establishing the New Grain Market at Bhawanigarh, auctioned plots/shops-cum-flats for commercial and residential purposes. The modern amenities were provided; by leaving open space for parking, gadda stand, sewerage, water work, rest house, canteen, separate roads and yards for the auction of the food grains.  In that scheme, they purchased one SCF, after paying the full price thereof and the possession was also delivered to them. They are running the Commission Agent shops for earning their livelihood by way of self employment in the SCF, where they are residing with their families. In the site plan of the scheme, the opposite party allotted and earmarked the site for rest house and canteen for the farmers and other people of the Grain Market. Now, illegally and in an arbitrary manner, it is going to establish Sabzi Mandi on that site, by violating the basic layout scheme. As they have purchased the SCF under the scheme, so they are beneficiaries thereof. They requested the opposite party not to establish the Sabzi Mandi at that site, as that will deprive the farmers, visiting their shops, of their rest and eating facilities. They also requested it to establish the rest house and canteen, but were not heard. In case, it succeeds in establishing Sabzi Mandi, the nature of entire basic layout plan would be changed and they would suffer irreparable loss, as the same would be creating pollution and nuisance. The act of the opposite party, in establishing the Sabzi Mandi in the said site, amounts to deficiency in service and unfair trade practice; as a result of which, they suffered mental agony and harassment.

3.                The complaint was contested by the opposite party, which filed written reply before the District Forum. In the written reply, it admitted that on 06.12.1978 under the Town Planning Scheme and for establishing New Grain Market at Bhawanigarh, plots/shops-cum-flats were auctioned for commercial and residential purposes and that the complainants also purchased one SCF and paid the full price thereof and that they are running the business of Commission Agent in the shops for earning their livelihood by way of self employment.  They also admitted that the steps are being taken to establish the Sabzi Mandi at the site, earmarked for the rest house and canteen. While denying the other allegations made in the complaint, it pleaded that it was in the public interest that the Punjab Agriculture Board (Punjab Mandi Board) received a proposal from the Market Committee, Bhawanigarh, through its Secretary, whereby it intended that vacant land, meant for rest house and canteen, was required to be re-planned for Sabzi Mandi Booths, measuring 10’ x 40’ and ½” and platform in front thereof, for which the Punjab Mandi Board sought approval from it and accordingly, the site plan was amended, vide letter No.STP/171 dated 02.02.2009.  Accordingly, it was written to District Town Planner, Mandi Division, Punjab to amend the sketch plan and the same was amended by the Senior Town Planner. Thus technically, the plan has got administrative approval and the site plan stands amended accordingly. The space left for the rest house and canteen was lying useless and no useful purpose was served and it was on that account that the new development was made, in order to serve the public interest at large. There would be no loss to the business of the complainants on account of this new development. The property, in dispute, is commercial one and, as such, the complainants do not fall under the definition of “consumers”. The same was purchased by way of public auction and, as such, the District Forum has no jurisdiction to entertain and try the complaint.  The complainants are not competent to file the complaint, as no interest has accrued on them in respect of the site in dispute.  The same is bad for non-joinder and mis-joinder of necessary parties. They prayed for the dismissal thereof.         

4.                Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, dismissed the complaint, vide aforesaid order.

5.                We have heard the learned counsel for both the sides and have also carefully gone through the records of the case.

6.                The District Forum committed an illegality, by first recording the findings on merits, while disposing of the complaint and then recorded a finding that the complainants are not consumers and that the complaint was liable to be dismissed on that ground also. It was required to determine that question before recording any finding on merits.

7.                It was submitted by the learned counsel for the complainants that the complainants do fall under the definition of “consumers”, as contained in Section 2 (1) (d) of the Act, as they are covered by the explanation appended thereto. They specifically alleged in Para No.3 (b) of their complaint that in the scheme, the SCF was purchased by them for running the business of Commission Agents for earning their livelihood by way of self employment and that fact was admitted by the opposite party in the written reply. As per the layout plan; the site, on which the opposite party is proposing to develop the Sabzi Market, was earmarked for the rest house and the canteen, which were to be used by the farmers, coming to their shops. No change could have been made in that basic layout plan and the opposite party is not competent to develop any grain market on the said site. Thus, the opposite party is deficient in service and, as such, the directions prayed for in the complaint are liable to be issued to it. In support of his arguments, he relied upon the following judgments:-

 

i)        Dr. G.N. Khajuria and Others Vs. Delhi Development Authority and Others (1996) AIR (SC) 253;

ii)       Kunj Bihari (since deceased) through his LRs: Anil Kumar         Aggarwal and Others Vs. Urban Improvement Company   Private Limited Revision Petition No.306 of 2013,           decided     on 05.03.2014 (National Commission);

iii)      Haryana Urban Development Authority and Others Vs.      M.G.A. (Mela Ground Sector Area) Welfare Association,          Hisar Revision Petition No.1776 of 2012, decided on        25.11.2013 (National Commission);

iv)      Rajinder Kumar Vs. Haryana Urban Development Authority        Revision Petition No.4347 of 2010, decided on 14.05.2012 (National Commission);

v)      Haryana Urban Development Authority and Another Vs.    Suneja and Sons IV (2011) CPJ 1 (NC);

vi)      Shiksha Vihar Sehkari Avaas Samiti Limited Vs. The           Chairman, Ghaziabad Development Authority and Another         Original Petition No.85 of 2002, decided on 27.08.2007        (National Commission);

vii)     Market Committee Bhawanigarh, through its Secretary Vs.         Harinder Kumar and others Revision Petition No.63 of 2012,       decided on 26.08.2013 (State Consumer Disputes Redressal     Commission, Punjab);

viii)    Municipal Corporation, Ludhiana Vs. Baldev Kaur First       Appeal No.27 of 2010, decided on 29.07.2013 (State     Consumer           Disputes Redressal Commission, Punjab); and

ix)      Tejinder Singh Atwal Vs. Ansal Properties and Infrastructure Limited & Others Complaint Case No.12 of          2010, decided on 01.03.2011 (State Consumer Disputes    Redressal Commission, U.T., Chandigarh).

 

8.                On the other hand, it was submitted by the learned counsel for the opposite party that it was correctly concluded by the District Forum that the complainants do not fall under the definition of “consumers” so far as the reliefs prayed for in the complaint are concerned. They purchased the SCF for running their business in the open auction, for which the pamphlets were issued and as per those pamphlets, the amenities to be provided in respect of the SCF were mentioned therein. There is no such amenity of providing of rest house or canteen. By no stretch of imagination, it can be held that the service of the rest house and the canteen was also to be provided to the complainants by the opposite party. There is no ground for upsetting the well reasoned findings of the District Forum.

9.                As far as the contention of the counsel for the complainants that the basic layout plan cannot be changed/amended by the opposite party is concerned, such a point cannot be raised before the Consumer Foras under the Act, unless the change in the layout plan, in any way, affects the service; which the opposite party had agreed to provide to the complainants. The complainants themselves proved on record the public notice, which was issued by the opposite party for the sale of the plots/SCFs, as Ex.C-3. The same were to be sold by way of public auction. It was clearly mentioned therein that all modern amenities; such as sewerage, water supply, metalled roads and open spaces etc. are being provided or have been provided by the Department in the township concerned at no extra cost. The use of word “etc.” means the other amenities similar to or synonymous with the amenities specifically mentioned therein. As per this public notice, no amenity by way of the rest house and the canteen was to be provided. Thus, the question, as to whether the opposite party was competent to make changes in the basic layout plan of the township, cannot be decided by the Foras under the Act.

10.              Before touching the merits of the case, it is to be seen whether in respect of the relief, as claimed in the complaint, the complainants fall under the definition of the “consumers”? They were required to prove that the opposite party, as a service provider, had agreed to provide the specific service and that the same was defective.

11.              It was held by the Hon’ble Supreme Court in (U.T. Chandigarh Administration and Another Vs. Amarjeet Singh and Others) AIR 2009 Supreme Court 1607 as under:-

 

14. Where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser/lessee participates in the auction after having an opportunity of examining the site, the bid in the auction is made keeping in view the existing situation, position and condition of the site. If all amenities are available, he would offer a higher amount. If there are no amenities, or if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction. Once with open eyes, a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment, or the ground rent, on the ground that the site suffers from certain disadvantages or on the ground that amenities are not provided. With reference to a public auction of existing sites (as contrasted from sites to be ‘formed’) the purchaser/lessee is not a consumer, the owner is not a ‘trader’ or ‘service provider’ and the grievance does not relate to any matter in regard to which a complaint can be filed……

 

It has already been held above that the opposite party never agreed to provide the amenity of the rest house or canteen to the purchasers of the plots/shops-cum-flats. Moreover, the same cannot be said to be for the use by those owners and it can easily be made out from the scheme that the same was for the farmers, who come to the grain market for the sale of their grains. By no stretch of imagination, it can be held that the opposite party had agreed to provide the amenity of the rest house or the canteen to the purchasers of the plots/shop-cum-flats. Therefore, it cannot be said that the complainants fall under the definition of the “consumers”. The judgments, so cited by the counsel for the complainants, are not applicable to the facts of the present case.

12.              In view of the above discussion, the appeal is dismissed and the order passed by the District Forum is upheld.

13.              The arguments in this case were heard on 02.03.2015 and the order was reserved.  Now, the order be communicated to the parties.

14.              The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

 

 

                                                        (JUSTICE GURDEV SINGH)

                                                                       PRESIDENT  

                                                         

 

 

                                                        (BALDEV SINGH SEKHON)

                                                                         MEMBER

                                                         

 

 

                                                      (MRS. SURINDER PAL KAUR)

March 09, 2015                                            MEMBER

(Gurmeet S)