State Consumer Disputes Redressal Commission
Greater Mohali Area Development ... vs 1. Mrs. Anudweep on 3 December, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 313 of 2012 Date of Institution : 14.09.2012 Date of Decision : 03/12/2012 Greater Mohali Area Development Authority, Sector 62, S.A.S. Nagar (Mohali) through its Chief Administrator. Appellant/Opposite Party No.1 V e r s u s 1. Mrs. Anudweep, F-84, Army Flats, Sector 4, M.D.C. Panchkula (Respondent no.1/complainant). 2. IDBI Bank, Sector 8-C, Chandigarh (Respondent no.2/Opposite Party No.2). ....Respondents Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Anuj Kohli, Advocate for the appellant.
Lt. Col. L.S. Bedi, Advocate for respondent no1.
Respondent No.2 exparte.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 13.07.2012, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, filed by the complainant (now respondent no.1) and directed Opposite Party No.1 (now appellant), as under:-
In view of the above findings, this complaint is allowed and Opposite party No.1 is directed to -
(i) pay interest @ 9% per annum to the complainant on the amount of Rs.3,000/- from the date of its deposit till payment.
(ii) pay a sum of Rs.5,000/- to the complainant as compensation for mental agony and harassment suffered by her;
(iii) pay a sum of Rs.7,000/- as costs of litigation.
This order be complied with by opposite party No.1, within 45 days from the date of receipt of its certified copy, failing which it shall be liable to refund the entire amount with penal interest @ 18% per annum from the date of order till actual payment besides payment of costs of litigation.
2. The facts, in brief, are that that Opposite Party No.1, in order to survey the viability of some housing projects, issued advertisement Annexure C-1, in Hindustan Times, dated 26.12.2002, inviting applications, for allotment of plots or constructed houses. In response to the said advertisement, the complainant applied for the Higher Income Group (HIG) House, at Zirakpur, vide application No.3611 dated 13.01.2003. She paid a sum of Rs.3,000/-, to Opposite Party No.1, vide demand draft No.024915 dated 13.1.2003. According to Condition no. 8 of the advertisement, Opposite Party No.1, assured that, in case, the scheme was withdrawn or allotments were not made, within two years, from the date of closing of the demand survey, for any reason, whatsoever, PUDA would refund the application money to the applicants, within a maximum period of three months of the expiry of two years, without interest.
The scheme opened on 26.12.2002 and closed on 20.1.2003. It was stated that Opposite Party No.1, failed to refund the application money, within three months, of the expiry of two years, as per Condition no. 8, aforesaid. The complainant wrote letters to Opposite Party No.1, for refund of the earnest money of Rs.3,000/-, with interest. Vide letter dated 17.01.2011, Opposite Party No.1, asked the complainant, to surrender the original receipt of Rs.3,000/-, which was surrendered by her, on 27.01.2011, but, the amount was not refunded to her. It was further stated that the failure, on the part of Opposite Party No.1, to refund the amount, aforesaid, alongwith interest, despite the fact that the period mentioned, in the advertisement had expired, amounted to deficiency, in rendering service, as also indulged into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed on 31.05.2011, directing Opposite Party No.1, to refund the amount of Rs.3000/-, alongwith interest @10% P.A., from 20.01.2003 till realization; pay compensation, in the sum of Rs.5,000/-for mental agony and physical harassment; and pay cost of litigation.
3. Opposite Party No.1, in its written version, admitted the issuance of advertisement Annexure C-1. It was also admitted that, in response to the said advertisement, the complainant deposited a sum of Rs.3,000/-, with it, for allotment of a HIG house. It was stated that some land was acquired for the development of area, in pursuance of the said scheme. However, the farmers, whose land was acquired, challenged the said acquisition, before the Honble High Court, at Chandigarh, and, the matter had already been decided. It was further stated that, under these circumstances, the area could not be developed. It was further stated that the application money was refunded to the complainant, vide demand draft dated 15.07.2011 Annexure R-2. It was further stated that the complainant was not entitled to any interest, on the amount, as per the advertisement, referred to above. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. Opposite Party No.2, in its written version, stated that neither the legal notice was addressed to it, nor did the complainant ever approach it, with regard to the dispute, in question. It was further stated that the refund, if any, was to be made by Opposite Party No.1. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The Parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, was filed by the appellant/Opposite Party No.1.
8. On 27.11.2012, when the appeal was fixed for oral arguments, no legally authorized representative, put in appearance, on behalf of respondent No.2, as a result whereof, it was proceeded against exparte.
9. We have heard the Counsel for the appellant, respondent no.1, and, have gone through the evidence, and record of the case, carefully.
10. The Counsel for the appellant/Opposite Party No.1, submitted that the complainant did not fall with the definition of a consumer, because the HIG house, for which she applied, had not been allotted to her. He further submitted that since the complainant did not fall within the definition of a consumer, the question of any deficiency, in rendering service, or indulgence into unfair trade practice, on the part of Appellant/Opposite Party No.1 , did not at all arise. He further submitted that the complainant did not ask for the refund of the amount, after the expiry of a period of 2 years and 3 months, as per the advertisement, referred to above. He further submitted that later on, Opposite Party No.1, decided to refund the amount, and the same had already been refunded, in favour of the complainant. He further submitted that the complainant was not entitled to interest, as per the terms and conditions of the advertisement. He further submitted that the District Forum, wrongly, granted the interest, compensation and cost of litigation. He further submitted that the order of the District Forum, being illegal, and invalid, is liable to be set aside.
11. On the other hand, the Counsel for respondent no.1/complainant, submitted that the complainant, applied for the allotment of High Income Group (HIG) House, at Zirakpur, vide application No.3611 dated 13.01.2003, alongwith which, she deposited a sum of Rs.3,000/-, in pursuance of the advertisement Annexure C-1, on the top of which, it was mentioned as under:-
PUDA Demand Survey for Customised Housing.
He further submitted that the land was never acquired, by the appellant/Opposite Party No.1, for the purpose of floating the scheme, aforesaid, and, as such, the scheme never came into existence. He further submitted that the complainant hired the services of Opposite Party No.1/appellant, for consideration, and, as such, she fell within the definition of a consumer. He further submitted that according to Section 2(o) of the Act, the service made available to a potential user, also falls within the definition of service. He further submitted that, since the amount deposited by the complainant, was not refunded to her, as per condition no.8 of the advertisement Annexure C-1, and the same was illegally and improperly withheld, by the Appellant/Opposite Party No.1, the District Forum, was right, in granting interest @9% P.A., on the amount refunded. He further submitted that the District Forum was also right, in granting compensation and litigation costs. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
12. No doubt, no objection was taken by Opposite Party No.1, in the written version, filed by it, that the complainant did not fall within the definition of a consumer, yet, he advanced the arguments, in that regard, at the time of final hearing, in the appeal. Even, in the absence of any objection having been taken by the Opposite Party, in the written statement, that the complainant was not a consumer, this being a legal question, an onerous duty is cast on this Commission, to decide this question, as it goes to the very root of the case. In the instant case, the complainant availed of the services of Opposite Party No.1, by applying for the HIG house and depositing Rs.3,000/-, in pursuance of the advertisement Annexure C1. Section 2(d)(ii) and 2(o) of the Act reads as under ;
2(d)(ii) :
Consumer means any person who- (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promises, 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 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 purposes] 2(o): service means service of any description which is made available to potential (users and includes, but not limited to, the provision of) facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, (housing construction), entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
13. The perusal of the afore-extracted provisions of Section 2(d)(ii) and 2(o) clearly goes to show that service of any description, which is made available to potential users, is also a service. The complainant hired the services of Opposite Party No.1, for consideration. She was, thus, the potential user of the HIG House, which might have been allotted, to her, if the scheme had been floated, and, as such, she fell within the definition of a consumer. Not only this, in Punjab Urban Planning and Development Authority Vs. Bhupinder Singh, 2008 CTJ 926 (SC), in pursuance of the advertisement, the applications were invited from persons, who wished to acquire High Income Group (Single Story) category houses at Phase IX, S.A.S. Nagar. They were required to deposit a sum of Rs.4,000/- each, while making such applications. The complainant submitted an application for the allotment of aforesaid category of house and alongwith the same deposited a sum of Rs.4000/-. In the draw of lots, he was unsuccessful. He was, however, not desirous of withdrawing the money deposited by him. In the second draw of lot, which took place later on, he was again unsuccessful. The amount deposited by him, was refunded, but no interest was paid thereon, as per the terms and conditions of the advertisement, as in the present case. Feeling aggrieved, the complainant filed a Consumer Complaint and the District Forum granted interest @18% P.A., on the amount refunded, as also cost of litigation to the tune of Rs.550/-. An appeal was filed, before the State Consumer Disputes Redressal Commission, which was also dismissed. Thereafter, Revision Petition, filed before the National Consumer Disputes Redressal Commission, New Delhi, was also dismissed. Still feeling aggrieved, the Punjab Urban Development Authority (PUDA) filed Civil Appeal No.7727 of 2002, in the Hon`ble Supreme Court. An argument was advanced that the complainant had no vested right of allotment, unless he had succeeded in the draw of lots. It was also argued that since the complainant had not been allotted the house, there was no question of deficiency, in rendering service, on the part of PUDA, and, as such, complaint under the Consumer Protection Act was not maintainable. The Hon`ble Supreme Court rejected this argument of the Counsel for the appellant and held that the complainant was entitled to interest, but reduced the same from 18% P.A. to 10% P.A. It means, that the District Forum, State Consumer Disputes Redressal Commission, National Consumer Disputes Redressal Commission, and the Hon`ble Supreme Court, in the aforesaid case, considered the complainant as a consumer, found the Opposite Party, as deficient, in rendering service, and, it was only, on account of this reason, that interest was ordered to be granted, on the amount deposited, which had already been refunded. The facts of Punjab Urban Planning and Development Authority Vs. Bhupinder Singh`s case (supra) are similar and identical to the facts of the instant case. The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of this case. It is, therefore, held that the complainant/respondent is a consumer, and the Opposite Party was deficient, in rendering service, by not refunding the amount, after the expiry of 2 years and 3 months, from 13.01.2003, as per the terms and conditions of the advertisement Annexure C-1, especially, when the scheme had not been floated by it. ,
14. The Counsel for the appellant, however, placed reliance on Punjab Urban Planning and Development Authority and Anr. Vs. Krishan Pal Chander, I (2010) CPJ 99, decided by the National Consumer Disputes Redressal Commission, New Delhi, to contend that the complainant, being a prospective investor, did not fall within the definition of a consumer. No doubt, in Punjab Urban Planning and Development Authority and Anr. Vs. Krishan Pal Chander`s case (supra), it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the person, who had applied for allotment, could only be said to be a prospective investor, and did not fall within the definition of a consumer. However, in view of the principle of law, laid down, by the Hon`ble Supreme Court in Punjab Urban Planning and Development Authority Vs. Bhupinder Singh`s case (supra), no help can be drawn by the Counsel for the appellant from Punjab Urban Planning and Development Authority and Anr. Vs. Krishan Pal Chander`s case (supra). The submission of the Counsel for the appellant, thus, being devoid of merit, is rejected.
15. It is established that the complainant did not apply for refund of the amount, after the expiry of two years and three months, as per Condition no. 8 of the advertisement Annexure C-1, from the date of deposit i.e. 13.01.2003. There was, therefore, somewhat default, on the part of the complainant. Even Opposite Party No.1, did not refund the amount, deposited by the complainant, immediately, after the expiry of two years and three months, from 13.01.2003. The said amount was, therefore, illegally and improperly withheld by Opposite Party No.1, for a long time, as it was only on 15.07.2011, that the same was refunded to her (complainant). On account of non-refund of amount deposited by the complainant, immediately, after the expiry of 2 years and 3 months, from 13.01.2003, she suffered financial loss. The complainant, was, thus, entitled to interest, on this amount of Rs.3,000/- referred to above @9% P.A., but after the expiry of two years and three months, from 13.01.2003, and not from the date of deposit of the same. The District Forum, was, therefore, wrong, in awarding interest @9% P.A., on the amount of Rs.3,000/-, from the date of deposit. The order of the District Forum, deserves to be modified, to this extent.
16. Since the complainant, herself, did not apply for the refund of the amount, after the expiry of two years and three months, from the date of deposit, as per Condition no. 8 of the advertisement Annexure C-1, she was equally at fault. As such, it could not be said that she suffered mental agony and physical harassment, on account of non-refund of the amount upto 15.07.2011. The decision was taken by Opposite Party No.1, to refund the amount, after the decision of the litigation, pending before the High Court. As such, the complainant was not entitled to compensation, for the alleged mental agony and physical harassment. The District Forum fell into a grave error, in granting compensation of Rs.5,000/-, to the complainant. This direction of the District Forum is liable to be set aside.
17. In our considered opinion, the cost of litigation, to the tune of Rs.7,000/-, awarded by the District Forum, to the complainant, is also on the higher side. The same deserves to be reduced, in view of the peculiar facts and circumstances of the case, especially, when the complainant herself, was partly at fault, in not applying for the refund of the amount, immediately, after the expiry of 2 years and 3 months from 13.01.2003, as stated above. In our considered opinion, cost of litigation, if reduced to Rs.4,000/-, from Rs.7,000/-, would meet the ends of justice. The order of the District Forum, to this extent also deserves to be modified.
18. The District Forum granted penal interest @18% P.A., which, in our considered opinion, is also on the higher side. The Consumer Foras are not meant to enrich the consumers, at the cost of the service providers. The penal interest, being on the higher side, is reduced to 10% P.A., from 18% P.A. The order of the District Forum, to this extent, also deserves to be modified.
19. No other point, was urged, by the Counsel for the appellant and respondent no.1.
20. For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified, in the following manner:
(i) The appellant/Opposite Party No.1, is directed to pay interest @9% P.A. to the complainant, on the amount of Rs.3000/, after the expiry of two years and three months, from the date of deposit (13.01.2003) till 15.07.2011 (the date of refund of amount of Rs.3,000/-).
(ii) The direction given by the District Forum, for payment of compensation, for mental agony and physical harassment, to the tune of Rs.5,000/-, is set aside.
(iii) The cost of litigation, awarded by the District Forum, to the tune of Rs. 7,000/-, is reduced to Rs.4,000/-.
(iv) The penal interest granted by the District Forum @18% P.A., is reduced to 10% P.A.
(v) The other reliefs granted and directions given by the District Forum, shall remain intact.
21. Certified copies of this order, be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion Pronounced.
03.12.2012 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg STATE COMMISSION (First Appeal No. 313 of 2012) Argued by: Sh. Anuj Kohli, Advocate for the appellant.
Lt. Col. L.S. Bedi, Advocate for respondent no1.
Respondent No.2 exparte.
Dated the 3rd day of _December _2012 ORDER Vide our detailed order of the even date, recorded separately, this appeal has been partly accepted, with no order as to costs, with the modification.
(NEENA SANDHU) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Rg v It is settled principle of law, that every lis, should normally be decided, on merit, than by default.
v The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same.
v When the procedural wrangles, and the substantial justice, are pitted against each other, then the latter will prevail over the former.
v The Opposite Parties - - -Party----- (now respondent---s-----) was-----were---- duly served, but despite service, neither -----they----- nor -----any duly authorized representative, on -----their----- behalf appeared. Accordingly, the Opposite Parties - - -Party----- was---- were ----proceeded against ex-parte, by the District Forum, vide order dated_________.
He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
Despite service, neither OP-3 nor his duly authorized representative appeared, on his behalf. Accordingly OP-3 was proceeded against ex-parte.
The complainants fall within definition of consumer.
The submission of the Counsel for the appellant----, being devoid of merit, must fail, and the same stands rejected.
The submission of the Counsel for the appellant, in this regard, being devoid of merit, is rejected.
The remaining directions given and reliefs granted by the District Forum, subject to the aforesaid modification, shall remain unaltered.
In Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), no development work was carried out, at the site. Thus, the payment of further installments was stopped by the complainant. It was, under these circumstances, held that the builder could not be allowed to take shelter, under the agreement condition no., to usurp the money deposited by the complainant. It was further held that the builder cannot forfeit the entire money, paid by the complainant, on account of his own fault, in not carrying out the development work. Ultimately, the Honble National Commission, ordered the refund of amount with interest. The observation made in Prasad Homes Private Limited`s case (supra), are fully applicable to the facts of the instant case.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Appeal Case No. :
353of 2011 Date of Institution :
20.12.2011 Date of Decision :
19.04.2012 Lt. Col. Lakhbir Singh Bedi(Retd), Advocate F-84, Army Flats, Sec.4, MDC, Panchkula-134114.
Appellant V E R S U S
1. Greater Mohali Area Development Authority, Chief Administator now PUDA Bhawan,Sector 62, SAS Nagar Mohali, through its Estate Officer.
2. IDBI bank, Sector 8-C, Chandigarh through its branch head.
....Respondents.
Appeal U/s 15 of Consumer Protection Act, 1986 BEFORE: JUSTICE SHAM SUNDER, PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Present: Appellant in person Sh.Balwinder Singh, Advocate for respondent No.1 Sh.Jatin Kumar, Advocate for respondent No.2 .
PER JUSTICE SHAM SUNDER, PRESIDENT This appeal is directed against the order dated 16.11.2011, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which it dismissed the complaint, on the ground, that the same was not maintainable as the complainant was not consumer qua Opposite Party No.1.
2. The facts, in brief, are that the complainant applied for the allotment of a plot of 250 sq. yards at Zirakpur vide application No.3610 (Annexure C-2) alongwith draft No.024914 dated 13.01.2003 for Rs.3000/- as per the advertisement of Opposite Party No.1(now respondent No.1). According to the terms and conditions of the advisement, in case, the allotment was not made within two years of the date of closing of the demand survey, the Punjab Urban Planning & Development Authority (now Greater Mohali Area Development Authority), Mohali would refund the application money within a period of three months of the expiry of two years, without interest. According to the complainant, since the period of three months, after the expiry of two years expired on 30.04.05, Opposite Party No.1 was requested to refund the amount, with interest for five years @ 10% p.a. with effect from 20.01.03, vide registered letter dated 18.09.2010 (Annexure C-3). It was stated that vide letter dated 15.10.10 (AnnexureC-4), the complainant was asked to submit the original receipt for refund. The complainant sent the original receipt, alongwith the legal notice dated 03.06.2011 (Annexure C-5), but to no avail. It was further stated that the aforesaid acts of Opposite Party No.1, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, he filed a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only).
3. Opposite Party No.1, in its written version, pleaded that the complaint was not maintainable, on the ground, that the complainant was not a consumer qua it. It was further pleaded that the complainant had no locus standi to file the complaint. It was admitted that the complainant applied for the allotment of a plot aforesaid, on the basis of advertisement, got published by the Punjab Urban Planning & Development Authority (now Greater Mohali Area Development Authority), Mohali. It was stated that the amount of Rs.3000/-
deposited by the complainant, alongwith the application, for the allotment of a plot had already been sent to him vide cheque bearing No.371128 dated 11.08.2011 drawn on Axis bank, Phase-7, Mohali. It was admitted that the period of three months, after two years, from the date of advertisement, as per Condition No.8 of the same (advertisement) expired on 30.04.2005. It was further stated that the complainant approached the Opposite Parties, for the refund of amount in the year 2010 i.e. after 5 years and, as such, the complaint was barred by time. It was denied that the complainant was entitled to interest @ 10% p.a., as claimed by him. It was further denied that there was any deficiency, in rendering service, on the part of Opposite Party No.1, or indulgence into unfair trade practice. The remaining averments, were denied, being wrong.
4. Opposite Party No.2, in its separate written reply, stated that the complainant had no grievance against it, and, thus, the complaint was liable to be dismissed against it.
5. The parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence and record, the District Forum, came to the conclusion, that the unsuccessful applicant, in the draw of lots, being only the prospective investor, could not be termed as a consumer under Section 2(1)(d) of the Act, and, as such, the Consumer Complaint was not maintainable.
7. Accordingly, the complaint, as stated above, was dismissed, on this ground alone.
8. Feeling aggrieved, the instant appeal, was filed by the appellant/complainant.
9. We have heard the appellant in person, the Counsel for respondents, and have gone through the evidence, and record of the case, carefully.
10. The appellant, in person, submitted that he applied for the allotment of a plot of 250 sq. yards vide application No.3610 annexure C2, alongwith which he deposited a sum of Rs.3000/- in pursuance of the advertisement annexure C1, which reads as PUDA Demand Survey for Customised housing. He further submitted that the land was never acquired by respondent No.1, for the purpose of floating the scheme , and, as such, the same(scheme) never came into existence. He further submitted that, under these circumstances, the question of participation of the complainant, in the draw of lots, and his being unsuccessful therein, did not at all arise. He further submitted that he hired the services of respondent No.1 (Opposite Party No.1) for consideration, and, as such, he fell within the definition of a consumer. He further submitted that according to Section 2(o) of the Act, service made available to a potential user also falls within the definition of service. He further submitted that, since the amount deposited by him was not refunded to him, as per condition No. 8 of the advertisement C1, and the same was illegally and improperly withheld by Opposite Party No.1, it was liable to pay interest @ 10% p.a. He further submitted that the District Forum was wrong, in dismissing the complaint.
11. On the other hand, the Counsel for Opposite Party No.1, submitted that the complainant could, at the most, be considered to be a prospective investor, and, as such, he did not fall under the definition of a consumer under Section2(1) (d) of the Act. He further submitted that the District Forum was right, in coming to the conclusion, that he was not consumer qua Opposite Party No.1. He further submitted that the order of the District Forum, being illegal, is liable to be set aside.
12. After giving our thoughtful consideration, to the rival contentions, advanced by the appellant, the Counsel for respondent No.1, and, on going through the evidence and record of the case, in our considered opinion, the appeal is liable to be accepted, for the reasons, to be recorded hereinafter. Admittedly, the complainant applied for the allotment of a plot measuring 250 sq. yds. vide application No.3610, alongwith which, he deposited a sum of Rs.3000/-, as earnest money, in pursuance of the advertisement annexure C1, got published by the Punjab Urban Planning & Development Authority (now Greater Mohali Area Development Authority), Mohali. The land, in question, for floating the scheme, as is evident, from the letter annexure C4, sent by the Greater Mohali Area Development Authority to the complainant on 15.10.2010, was never acquired. Since the land for the allotment of plots was not acquired, the question of the complainant, participating in auction, and remaining unsuccessful, did not at all arise.
Under these circumstances, the District Forum was wrong in placing reliance on Haryana Urban Development Authority Vs Jagdish Chander Verma IV(2010) CPJ39(NC) ,in coming to the conclusion, that the complainant being an unsuccessful applicant, in the draw of lots, was only a prospective investor. The principle of law, laid down, in this authority, was not applicable to the facts of the instant case. In the instant case, the complainant availed of the services of Opposite Party No.1, by applying for the plot and depositing Rs.3,000/- in pursuance of the advertisement annexure C1. Section 2(d)(ii) and 2(o) of the Act reads as under ;
2(d)(ii) : Consumer means any person who- (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promises, 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 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 purposes] 2(o): service means service of any description which is made available to potential (users and includes, but not limited to, the provision of) facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, (housing construction), entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
13. The perusal of the afore-extracted provisions of Section 2(d) (ii) and 2(o) clearly goes to show that service of any description which is made available to potential users, is also a service. The complainant hired the services of Opposite Party No.1, for consideration. He was, thus, the potential user of the plot, which might have been allotted, to him, if the scheme had been floated. As such, he fell within the definition of a consumer. Similar principle of law, was laid down in Lucknow Development Authority Vs M.K.Gupta III(1993)CPJ &(SC).
As stated above, since the complainant fell within the definition of a potential user, he was a consumer, and the consumer complaint was maintainable by him, claiming the relief of interest.
14. For the reasons recorded above, the appeal is accepted with no order as to costs. The order of the District Forum is set aside. The complaint is remanded back to the District Forum, for deciding the same, on merits, after affording the parties, an opportunity of being heard.
15. The parties are directed to appear, before District Forum (I) on 30.4.2012 at 10.30 A.M.
16. The record of the District Forum, alongwith a certified copy of the order, passed in appeal, be sent immediately, so as to reach there well before the fixed date.
17. Certified Copies of this order, be sent to the parties, free of charge.
18. The file be consigned to the Record Room, after compliance.
Pronounced.
Sd/-
April 19, 2012 [JUSTICE SHAM SUNDER] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER *Js