Rajasthan

StateCommission

A/929/2017

Smt. Mamta Jain w/o Shri Ashish Jian - Complainant(s)

Versus

The Chairman Rajasthan Housing Board - Opp.Party(s)

K.K.Jain

04 Oct 2018

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

 

FIRST APPEAL NO: 929/2017

 

Mamta Jain w/o Ashish Jain

Ashish Jain s/o Rajendra Kumar Jain both r/o 82, Shakti Nagar, Gopalpura Byepass, Jaipur

Vs.

Chairman, Rajasthan Housing Board, Head office C-38 Bhagwan Das Road, Jaipur & ors.

 

Date of Order 4.10.2018

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

 

Mr. Rajendra K.Salecha counsel for the appellants

Mr.P.S.Tomar counsel for the respondents

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

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This appeal is filed against the order passed by the District Forum, Jaipur 4^th dated 20.7.2017 whereby the interim application is dismissed on the ground that the District Forum is not having jurisdiction in the matter as the residential plot is purchased in auction sale.

 

The contention of the appellant is that even in auction sale the District Forum has jurisdiction and further more in stay application this issue could not be looked into hence, the order be set aside.

 

Per contra the contention of the respondent is that when the District Forum was not having jurisdiction, it has rightly decided the issue and stay application has rightly been dismissed.

 

Heard the counsel for the parties and perused the impugned judgment as well as documents submitted by the appellant.

 

Broadly the dispute is in regard to the demand of lease money. It is not in dispute that the residential plot was

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purchased in auction sale and the Forum below has relied upon 2009 (4) SCC 660 U.T.Chandigarh Administration Vs. Amarjeet Singh. The appellant has relied upon II (2017) CPJ 438 (NC) Devinder Kumar Vs. Haryana Urban Development Authority where while distinguishing the judgment of the apex court in U.T.Chandigarh Administration Vs. Amarjeet Singh it has been held that where there is no demand for additional facilities or amenities the auction purchaser is a consumer.

 

Further reliance has been placed on the judgment passed by the apex court in Civil Appeal No. 9290/2014 Sanjay Kumar Joshi Vs. Municipal Board Laxmangarh. Per contra the respondent has relied upon the judgment passed by the apex court in U.T.Chandigarh Administration Vs. Amarjeet Singh (supra) and 2015 (2) CPJ 36 Delhi Development Authority Vs. Parveen Kumar where the issue of development and amenities was involved.

 

Further reliance has been placed on 1996 (3) CPJ 11 Shiela Constructions Pvt.Ltd. Vs. Nainital Lake Development Authority where complicated question of fact was involved. Further reliance has been placed on the judgment passed by

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this Commission in First Appeal No. 515/2017 Commissioner, Rajasthan Housing Board Vs. Rekha Agarwal where this Commission has held that auction purchaser is not a consumer.

 

The contention of the respondent is that even in stay application issue of jurisdiction could be decided and reliance is placed on 1998 (1) CPC 281 Nayak Parmar Associates Vs. Prakash M.Sanghvi where the Gujarat State Commission has held that point of jurisdiction and limitation should be decided first as a preliminary issue. There is no dispute about this preposition but here in the present case the District Forum has not decided the issue as preliminary issue but by way of stay application the issue has been decided which is not the mandate of the law.

 

Rival contentions have been submitted as regard to jurisdiction which should have been looked into and considered by the Forum below only and no opinion on the above should have been formed & expressed by this Commission.

 

The counsel for the appellant has further submitted that

 

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they have already deposited the lease deed and needs no stay in the matter.

 

In view of the above discussion, the appeal is allowed and the order of the Forum below dated 20.7.2017 is set aside with the direction that issue of lack of jurisdiction should be decided first in main complaint after giving opportunity of hearing to both the parties. The appeal is decided and disposed of on above terms.

(Nisha Gupta)

President

 

 

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