For the Appellant                 Mr Umesh Nagpal, Advocate

For the Respondent              Mr K L Janjani, Advocate

ORDER

PER SUBHASH CHANDRA

1.      The challenge in this appeal under Section 19 of the Consumer Protection Act, 1986 (in short, “the Act”) is to order dated 18.10.2019 in Complaint No. 60 of 2016 dismissing the complaint on grounds that the complainant had no privity of contract with the opposite party. 

2.      We have heard learned Counsel for the parties and perused the record carefully. 

3.      The relevant facts of the case, in brief, are that the respondent, which is a State level Housing Board, had floated a housing scheme viz., Kalpataru Scheme 1989 Jaipur. The father of the complainant had booked an MIG-B house in the said scheme on 25.08.1989 by depositing Rs 6,000/- and was allotted priority number JPR/M-2/89/0140209. Rs 15,000/- was deposited as seed money and thereafter various sums were paid in instalments. House no. 77/198 was allotted to him and a demand of Rs 1,71,006/- raised. A sum of Rs 1,50,000/- was deposited on 31.08.1999 with the respondent and possession of the said house delivered to the late Bhupsingh, the father of the complainant in 1999. Through a Power of Attorney to one J.P. Mathur, the allottee Bhupsingh sold the house to Smt Leela Gupta and received the full sale consideration. However, when Smt Leela Gupta went to the house, she found it occupied by one Shobha Khinvsar on the basis of an allotment letter dated 30.06.2000. Thereafter, Bhupsingh vide letter dated 26.08.2000 and payment of Rs 1,500/- filed an application with the respondent seeking for revival of registration.  In view of demise of the original allottee, Bhupsingh, the appellant who is his son, had approached the State Commission with the prayer to make house no. 77/198 available to him or in lieu thereof, another equivalent house at the same rate with interest @ 20% p.a., Rs 30,00,000/- for mental agony and Rs 1,00,000/- as litigation costs. The State Commission held that after having received possession of the house, the application for revival of allotment did not lie and was contradictory. It was also held that letters dated 07.08.2006 and 10.09.2006 stated to have been written by the allottee Bhupsingh seeking allotment of an alternate house were not tenable since the said Bhupsingh had admittedly expired on 06.11.2005. This order is impugned before us on the grounds that the order has failed to consider all the evidence and erred in holding that the appellant lacked any relation as a ‘consumer’ with the respondent. Appellant’s prayer is to set aside the impugned order and grant any other relief(s) deemed fit.

4.      From the records and the submissions made it is apparent that possession of the house in question was handed over to the late Bhupsingh, the allottee under the scheme. The contention of the appellant that a letter (No.5760 dated 06.11.1993) was sent to an incorrect address in Jaipur instead of Bikaner where Bhupsingh, his father, resided does not have much relevance at this stage since admittedly on 31.08.1999 a sum of Rs 1,50,000/- was deposited by Bhupsingh as per directions of the respondents by bank draft and possession of the house was handed over. It is also stated by the appellant that his father gave a Power of Attorney to sell the house.

5.      The issue which falls for consideration is whether the appellant is a “consumer” under the Consumer Protection Act, 1986.

6.      As per the Consumer Protection Act, a “consumer” is defined as in Section 2(1)(d) as under:

(d) “consumer” means any person who,—

(i)    buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)   hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;

Explanation.— For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;

The appellant has failed to establish by way of any evidence that there was any privity of contract between him and the respondent. The allotment of house no. 77/198 was to his father and the house not only stood handed over to him but had also been sold by him to one Smt Leela Gupta through his power of attorney, J.P. Mathur.  In view of the admitted fact that possession of the house in question was handed over to the appellant’s late father, and no revival application having been allowed (despite deposit of fee), the appellant cannot be considered a “consumer” under the Consumer Protection Act. No document has been brought on record to establish the promise of a ‘service’ against an agreed ‘consideration’ to substantiate by evidence that the appellant was promised a service within a period of time. In the absence of any such evidence, the contention of deficiency in service qua the appellant as legal heir of the late Bhupsingh cannot be sustained. The question of revival of a cancelled allotment therefore is a fabricated afterthought and cannot be sustained as it is not substantiated by any evidence on record. Therefore, the order of the State Commission cannot be faulted.

7.      For the aforesaid reasons and in the facts and circumstances of this case, we find no reason to disturb the finding of the State Commission. The First Appeal is therefore dismissed as being without merits. Parties shall bear their own costs. Pending IAs, if any, are also disposed of with this order.