1. The complainant has filed the present complaint under the Consumer Protection Act against the opposite party on the averments that the complainant is the consumer of the opposite party as the complainant had purchased a residential plot bearing No.49 measuring 200 sq.yards, situated at DIET, Sultanpur Lodhi Road, Kapurthala from the opposite party at the auction held on 16.3.2001 convened by the opposite party by giving the highest bid. In furtherance of the allotment to the complainant, allotment letter bearing No.6362 dated 25.9.2001 was issued to the complainant regarding the allotment of aforesaid plot. The aforesaid plot was purchased by the complainant for a total sale price of Rs.2,89,250/- including interest and Rs.65,000/- was deposited by the complainant immediately after the bid as required and remaining amount was to be paid in equated installment of Rs.65,000/- each alongwith interest which was due on 16.9.2001, 16.3.2002 and 16.9.2002. The complainant deposited Rs.26,000/- on 16.3.2001 and a receipt No.3, book No.1314 was issued by the opposite party and again Rs.39,000/- were deposited on 24.4.2001 vide receipt No.24, book No.873, further on 28.9.2001, the complainant deposited Rs.79,625/- vide receipt No.10, book No.928 and again on 20.3.2002, the complainant deposited Rs.74,750/- vide receipt No.75, book No.817. Further on 16.9.2002 an amount of Rs.69875/- was deposited by the complainant as final payment vide receipt No.37, book No.956. The complainant paid more than total sale price i.e Rs.2,89,250/- to the opposite party for the allotment of the plot and excess amount of Rs.20,375/- was paid by the complainant inadvertently. To the utter dismay of the complainant, the opposite party has not delivered the actual physical possession to the complainant till date despite the fact that the complainant had already deposited the entire amount. The opposite party failed to deliver the possession of plot No.49 allotted to the complainant despite the repeated request of the complainant and the opposite party were delaying the matter on one pretext or the other. It will not be out of place to mention that the opposite party had changed the lay out plan of the allotted plot, thereby changing the area of the plot allotted to the complainant as the area of the plot was decreased to 150 sq.ft from 200 sq.ft and in this regard a consent was sought by the opposite party from the complainant, so as to accept the plot with decreased area. Accordingly, the complainant conditionally agreed to accept the plot with decreased area on the condition that the excess amount received by the opposite party will be refunded alongwith interest. Despite that even the possession of plot with the decreased area was not delivered to the complainant and it has come to the knowledge of the complainant that due to lack of permission to issue the allotment letters, the possession of the plot could not be delivered to the complainant. The aforesaid information was received by the complainant through RTI Act, which show the callous attitude of the opposite party. Further the complainant was stunned to receive a cheque bearing No.723497 dated 1.8.2012 amounting to Rs.5,93,383/- which was received vide registered letter dated 2.8.2012 issued by opposite party mentioning refund of amount qua plot No.49, whereas the complainant never ever sought the refund of the amount, whereas the complainant always wanted to get possession of the plot in question and to raise construction of his house, even in the decreased area of the plot, but due to the reasons best known to opposite party and due to extraneous illegal considerations, the opposite party refunded the amount, which was never intended by the complainant, but has to accept the same under protest. The complainant is till date ready to get the possession of the plot in question. After receipt of the abovesaid letter dated 2.8.2012, the complainant approached the opposite party and requested them to deliver the possession of the plot in question to the complainant, but the opposite party refused to do so and even the request of the complainant to give details of the calculation of the amount refunded was denied by the opposite party, which is totally illegal. On such like averments, the complainant has prayed for directing the opposite parties to pay him compensation of Rs.5 Lacs or to handover the possession of the plot No.49 to him. He has also claimed litigation expenses.

2. Upon notice, opposite party appeared and filed a written reply raising preliminary objections regarding maintainability, complainant being not consumer being auction purchaser, limitation, estoppel, want of cause of action etc. On merits it denied that refund was not sought or it was accepted by the complainant under protest. It denied that any excess amount has been paid by the complainant. It further pleaded that terms and conditions mentioned in allotment letter are correct and price is to be paid by allottee as mentioned in it. It denied that complainant is a consumer. It denied other material averments of the complainant.

3. In support of his complaint, learned counsel for complainant has tendered affidavit Ex.CA alongwith copies of documents Ex.C1 to C17 and closed evidence.

4. On the other hand, learned counsel for opposite party has tendered affidavit Ex.OPA and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. First of all, we have to see, if the complainant is a consumer after having received the entire amount paid by him alongwith interest from the opposite party in respect of the plot in question? No doubt the auction purchaser can not be considered as consumer so far as development of area or facilities in the scheme area are concerned, in view of judgment of Hon'ble Supreme Court in Chandigarh Administration and Anr Vs. Amarjeet Singh and Ors, (2009) 4 SCC 660. However, if the grievance of the complainant relates to delivery of possession of the auctioned plot, he may be considered as consumer. In support of this view, reference may be made to Rajil Khod Vs. Haryana Urban Development Authority, Revision Petition No.729 of 2011 decided on 18.11.2011 by Hon'ble National Commission and Rajinder Kumar Vs. Haryana Urban Development Authority, Revision Petition No.4347 of 2010 decided on 14.5.2012 by Hon'ble National Commission. However, in the present case the situation is entirely different. The complainant has received the amount paid by him towards the plot purchased by him in open auction alongwith interest vide cheque dated 1.8.2012 amounting to Rs.5,93,383/- which was received by him on 2.8.2012. This fact is there in the complaint as well as affidavit of the complainant. The complainant has paid Rs.2,89,250/- as mentioned by him in para 9 of the complaint and has received refund of Rs.5,93,383/- vide cheque dated 1.8.2012 as pleaded by him in para 9 of the complaint. Learned counsel for the complainant contended that complainant has received the refund under protest. This version of the complainant can not be accepted. In case complainant was not interested in receiving the refund of the above said amount, he should not have got encashed the cheque sent by opposite party to him. After having received the entire amount paid by him alongwith interest from the opposite party, he ceases to be consumer of the opposite party. The matter would have been different if he has not accepted the refunded amount. So the complainant after having accepted the refund long time back can not be considered as consumer. As such, the present complaint is not maintainable.

7. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.