State Consumer Disputes Redressal Commission
The Haryana Urban Development ... vs Prem Bhutani on 5 May, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
UNION TERRITORY,
CHANDIGARH.
Appeal
case No.1235/2002(HRY)/RBT/1602/2008
The Haryana Urban Development Authority, through its Estate
Officer, Hisar.
Appellant
Versus
Prem Bhutani W/o
Sh.M.G.Bhutani R/o7- Bank Colony, Opp. Central Jail, Hisar.
--Respondent
Appeal U/s 15 of Consumer Protection Act,1986 against
order dated 12.02.2002 passed
by Consumer Disputes
Redressal Forum- Hisar
Argued by : Ms.Raminder Gadhoke, advocate
for appellant.
Sh.Dinesh Madra, advocate for
respondent.
Appeal case No.601/2002(HRY)/RBT/402/2009
Smt. Prem Bhutani W/o Sh. M.G.Bhutani, R/o 7- Bank Colony,
Opp. Central Jail, Hissar.
--Appellant
Versus
Haryana Urban Development Authority, Hisar through its
Estate Officer/Administrator.
--Respondent
Appeal U/s 15 of Consumer Protection Act,1986 against
order dated 12.2.2002 passed
by Consumer Disputes
Redressal Forum- Hisar
Argued by : Sh.Dinesh Madra, advocate for appellant Ms.Raminder Gadhoke, advocate for
respondent.
BEFORE : Honble
Mr.Justice Pritam Pal, President
Maj.Gen.S.P.Kapoor (Retd.),Member
Mrs.Neena Sandhu,Member
JUDGMENT
5.5.2010 Justice Pritam Pal, President
1. The aforementioned two appeals have arisen out of one and the same order dated 12.2.2002 passed by the District Consumer Forum, Hisar whereby complaint bearing No.589/2000 was allowed with costs of Rs.1100/- and Smt. Prem Bhutani, complainant was held entitled to compensation of Rs.1,20,000/- on account of harassment and damages. Complainant was also held entitled to interest @ 12% p.a. on this amount from the date of order i.e. 12.2.2002 till the date of realization.
2. In fact appeal No. 1235/2002(HRY)/RBT/1602/2008 has been filed by Haryana Urban Development Authority for setting aside the impugned order whereas appeal No. 601/2002(HRY)/RBT/402/2009 has been filed by the complainant for enhancement of compensation. Since, in both these appeals common questions of law and facts are involved, so, we are deciding these appeals by this common judgment.
3. The parties hereinafter shall be referred to as per their ranking before the District Consumer Forum.
4. The facts as set out in the complaint are that the complainant had purchased Plot No.740-P situated in Police Line Area, Hisar. The said plot was purchased in an open auction held on 25.3.1992 for a total consideration of Rs.8,65,000/- which was paid in installments alongwith interest. It was alleged that at the time of auction of the said plot the HUDA officials had shown the approved site plan of that area in which the plot of the complainant was situated and as per approved site plan, there was a block of 22 plots and said block was surrounded by roads from four sides. According to the site plan, in front of the plot of complainant, the site was reserved for commercial purpose. On the western site of the said plot, a road and a park had also been shown in the site plan.
Initially HUDA without the consent of complainant changed the plot and allotted an alternative plot NO.772-P but subsequently on the objection of complainant the said proposal was withdrawn. Then HUDA sent a letter to the complainant for resumption of the plot for constructing a town park in the said area and complainant was forced to file a civil suit at Hisar and only then the HUDA authorities released the plot. Complainant then filed complaint before the District Forum, Hisar as the development work was not completed within the stipulated period inspite of repeated requests. The said complaint was accepted vide order dated 31.12.97 and the learned District Forum directed HUDA to pay interest @ 18% p.a. for not developing the area within the stipulated period on the entire deposited amount including 25% amount with effect from 21.5.93. HUDA then filed appeal before the Haryana State Commission which was decided vide order dated 25.5.98 and the order of District Forum was modified by granting interest @ 15% on the entire amount for not developing the area within the stipulated period. The complainant then again filed another complaint seeking compensation of Rs.4,94,500/- on the ground that the HUDA had closed the road in front of her plot towards eastern side ; HUDA had closed the surrounding road and deleted 18 plots in the block of 22 plots ;
HUDA had constructed a town park in front of the plot instead of commercial shops ; no electricity poles/wires had been installed ; park towards the western side of the plot had been converted into water tank boosting station and in this way the HUDA authorities had changed the entire site plan of the said area without taking consent from the complainant. Hence, alleging deficiency in service and mala fide intention on the part of HUDA for harassing the complainant, a complaint was filed before the District Consumer Forum.
5. On the other hand, the case of OP before the District Consumer Forum was that the complainant had purchased the plot in an open auction held on 25.3.1992 at Hisar, so she was not a consumer. The complainant had earlier filed complaint NO.970/1998 on the same facts ,so, the second complaint was not maintainable on the ground of principle of res-judicata. The complainant had been offered possession of the plot on 16.11.99 after completion of the development work in the area and as per order of the District Forum and modified by the Haryana State Consumer Commission complainant had been paid a sum of Rs.5,96,039/- as interest on the amount deposited by her till 15.11.1999. It was further pleaded that the HUDA had changed the lay out plan of the plots for developing a park which was one of the biggest parks developed by HUDA in the whole of Haryana and this park was developed for the public in general and there was no need to take any consent from the complainant as interest of the public at large has to be seen and not the interest of an individual. Further the complainant had already accepted plot NO.740 in Police Line area and had not raised any objection. It was further pleaded that the complainant could construct a residential house on the aforesaid plot for which it was allotted.
A prayer was made for dismissal of the complaint.
6. The District Consumer Forum after going through the evidence and material brought on record and hearing the counsel for the parties, allowed the complaint as indicated in the opening part of this judgment. This is how feeling aggrieved, complainant as well as opposite party had filed their separate appeals before the Haryana State Consumer Commission which have been transferred to this Commission under the directions of Honble National Commission.
7. We have heard Ms.Raminder Gadhoke for HUDA, Sh.Dinesh Madra for complainant and have gone through the file carefully. The learned counsel for OP/HUDA contended that the complainant had purchased plot in open auction held on 25.3.92 and as per condition No.6 of the allotment letter dated 23.4.92, the possession of the plot was to be offered on the completion of development work in the area which was completed on 15.11.1999 and the possession was offered on 16.11.1999 as per order of the Fora passed in an earlier complaint of complainant bearing NO.970/1998 and modified by Haryana State Commission, complainant was paid interest of Rs.5,96,039/- till 15.11.1999 but instead of coming forward to take the physical possession, she had filed the second complaint demanding damages/compensation due to change in the site plan and nuisance due to construction of parking place and this stand could have been taken in the earlier complaint. Thus, the second complaint was stated to be barred by the principle of res-judicata. It was further contended that the complainant was offered an alternative plot but she refused to take the same. It was submitted that had she any problem with the existence of park etc. she would have accepted the alternative plot when it was offered to her ; rather due to existence of the park the value of the plots facing the park had increased and as such no loss had been suffered by the complainant. On the other hand, the learned counsel for complainant contended that the interest awarded by the District Forum @ 12% is inadequate and it should be awarded @ 18% p.a.
8. We have given our holistic view to the rival contentions and find that the complainant had been paid interest @ 15% on the amount which remained deposited with OP till the offer of possession which was offered on 16.11.1999. The second complaint filed by the complainant on the same cause of action was clearly barred by the principle of Res-judicata as defined in Section-11 of Code of Civil Procedure. If the complainant had any grouse about the change of site plan she could have raised the same in the earlier complaint and sought relief therein. The learned District Forum awarded the damages without any basis of actual loss and without considering the fact that complainant was offered alternative plot but she did not accept the same and due to development of park there was no change in the status/location of the residential plot of complainant.
9. Even otherwise there is another aspect of the case. It is an admitted fact that the complainant had purchased plot in question in an open auction with open eyes. The Honble Supreme court in U.T.Chandigarh Administration & Anr Vs Amarjeet Singh & Ors II(2009) CPJ 1(SC) held that once a person participated in auction with open eyes, he cannot be heard to say that he would not pay price/premium/stipulated interest/ground rent on the ground that the site suffers from certain disadvantages or amenities not provided. It was further held that the purchaser/lessee in public auction is not consumer and any grievance by purchaser will not give rise to complaint or consumer dispute and Fora under the Consumer Protection Act has no jurisdiction to adjudicate complaint by auction purchaser/lessee, against owner holding auction of site. It was further held in the above said ruling that where the complainant is not a consumer(or a person specified in clause (b) of Section 2), or where the respondent is not a trader or service provider or where the complaint does not relate to matters enumerated in clause ( c) of Section 2 of the Act, the Consumer Fora will have no jurisdiction either to entertain any complaint or grant any relief under the Act.
10. In view of the abovementioned ruling of the Honble Apex court the complainant being purchaser of plot in an open auction does not fall under the definition of consumer. On merits also there is no case made out as complainant has already received interest @ 15% on the amount deposited in terms of her earlier complaint and second complaint was barred by the principle of res-judicata and further the damages were awarded by the learned District Forum without any basis. Thus, Judging from any angle, the second complaint was not maintainable and complainant was not entitled to any relief under the Consumer Protection Act.
11. Hence , the impugned order dated 12.2.2002 passed by the District Consumer Forum is set aside and consequently the complaint is also dismissed. In the result, the appeal filed by HUDA bearing No. 1235/2002(HRY)/RBT/1602/2008 is accepted while appeal case No. 601/2002(HRY)/RBT/402/2009 filed by complainant for enhancement of compensation is dismissed. The parties are left to bear their own costs.
Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
Sd/-
Announced ( Justice Pritam Pal)(Retd.) 5th May,2010 President Sd/-
(Maj.Gen.S.P.Kapoor )(Retd.) Member Sd/-
(Mrs. Neena Sandhu) Member *js STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH.
Appeal case No.601/2002(HRY)/RBT/402/2009 Smt. Prem Bhutani W/o Sh. M.G.Bhutani, R/o 7- Bank Colony, Opp. Central Jail, Hissar.
--Appellant Versus Haryana Urban Development Authority, Hisar through its Estate Officer/Administrator.
--Respondent Appeal U/s 15 of Consumer Protection Act,1986 against order dated 12.2.2002 passed by Consumer Disputes Redressal Forum-
Gurgaon Argued by : Sh.Dinesh Madra, advocate for appellant Ms.Raminder Gadhoke, advocate for respondent.
BEFORE : Honble Mr.Justice Pritam Pal, President Maj.Gen.S.P.Kapoor (Retd.),Member Mrs.Neena Sandhu,Member JUDGMENT 5.5.2010 Justice Pritam Pal, President This appeal has been dismissed in terms of our detailed order of the even date recorded separately in connected appeal case No. 1235/2002(HRY)/RBT/1602/2008 titled Haryana Urban development Authority Vs Prem Bhutani. A copy of that order be placed on this file which shall be a part of this order.
Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
Sd/-
Announced ( Justice Pritam Pal)(Retd.) 5th May,2010 President Sd/-
(Maj.Gen.S.P.Kapoor )(Retd.) Member Sd/-
(Mrs. Neena Sandhu) Member *js