National Consumer Disputes Redressal
Kunj Bihari Lal (Since Deceased) vs Urban Improvement Co. Pvt. Ltd. on 5 March, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 306 OF 2013 (From order dated 31.10.2012 in First Appeal No. 581/2009 of the State Consumer Disputes Redressal Commission, Delhi) WITH I.A. No. 542 OF 2013 (STAY) Kunj Bihari Lal (Since Deceased) Through His LRs:- 1. Anil Kumar Aggarwal (son) R/o H-20, 2nd Floor, Arjun Nagar Extension, Safdarjung Enclave, New Delhi-110029 2. Smt. Kusum Gupta (Daughter) R/o H-20, 2nd Floor, Arjun Nagar Extension, Safdarjung Enclave, New Delhi-110029 3. Mrs. Kanak Lata (Daughter) W/o Shri Arun Kumar Jain R/o H-20, 2nd Floor, Arjun Nagar Extension, Safdarjung Enclave, New Delhi-110029 4. Shri Sunil Kumar (Son) R/o H-20, 2nd Floor, Arjun Nagar Extension, Safdarjung Enclave, New Delhi-110029 5. Smt. Rekha Aggarweal (Daughter) W/o Shri Pradeep Kumar Aggarwal R/o H-20, 2nd Floor, Arjun Nagar Extension, Safdarjung Enclave, New Delhi-110029 6. Smt. Rajni Jain (Daughter) W/o Pawan Kumar Jain R/o H-20, 2nd Floor, Arjun Nagar Extension, Safdarjung Enclave, New Delhi-110029 7. Shri Ajit Kumar Aggarwal (Son) R/o A-44, SFS, Saket, New Delhi Petitioners Versus Urban Improvement Co. Pvt. Ltd. F-32, Connaught Place, New Delhi-110001 Respondent BEFORE: HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HONBLE DR. S. M. KANTIKAR, MEMBER For the Petitioner s : Mr. Joy Basu, Sr. Advocate with Mr. Jitender Vashisht, Advocate For the Respondent : Mr. D.S. Chauhan & Mr. Siddharth Aggarwal, Advocates Pronounced on : 5th March 2014 ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. Counsel for the parties present. Arguments heard. While placing reliance on Honble Supreme Court authority reported in the case of UT Chandigarh Administration vs. Amarjeet Singh and another II (2009) CPJ 4 (SCC) that the allottee/purchaser in auction is not a consumer within the meaning of Section 2(a)(d) of the Consumer Protection Act 1986, the complaint was dismissed.
2. Aggrieved by that order the present Revision Petition has been filed. In the said authority it was laid down:
19. Xxxxxxx xxxxx The auction is on as-is-where-is basis.
With such knowledge, he participates in the auction and offers a particular bid. There is no compulsion that he should offer a particular price.
When the sites auctioned are existing sites, without any assurance/representation relating to amenities, there is no question of deficiency of service or denial of service. Where the bidder has a choice and option in regard to the site and price and when there is no assurance of any facility or amenity, the question of the owner of the site becoming a service provider, does not arise even by applying the tests laid down in LDA1 or Balbir Singh.
20. Where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser/lessee participates in the auction after having an opportunity of examining the site, the bid in the auction is made keeping in view the existing situation, position and condition of the site. If all amenities are available, he would offer a higher amount. If there are no amenities, or if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction. Once with open eyes, a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment, or the ground rent, on the ground that the site suffers from certain disadvantages or on the ground that amenities are not provided.
21. With reference to a public auction of existing sites (as contrasted from sites to be formed), the purchaser/lessee is not a consumer, the owner is not a trader or service provider and the grievance does not relate to any matter in regard to which a complaint can be filed. Therefore, any grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute and the fora under the Act will not have jurisdiction to entertain or decide any complaint by the auction-purchaser/lessee against the owner holding the auction of sites.
22. The Complaint by the respondents proceeded on the assumption that there was an obligation on the part of the appellants to provide amenities in the nature of approach road, water supply lines, drainage system, rainwater drainage and electricity and that unless such amenities were provided, they were not liable to pay the premium or interest on the premium or the ground rent. As noticed above, neither the terms and conditions of auction, nor the advertisement relating to the auction, nor the letter of allotment contained any assurance regarding provisions of any such amenities with reference to the sites put up for auction. To get over the absence of such term or assurance, the respondents relied upon the definitions of the word site and amenity in the Development Act and the provisions of the Leasehold Rules to contend that there was a statutory obligation to provide the amenities and failure to provide such amenities gave a cause of action to approach the Consumer Forum with a complaint against the appellants and also withhold payment of the premium instalments and ground rent.
2. Further the Apex Court in the case of Narne Construction P. Ltd. etc. etc. Versus Union of India (UOI) and Ors. etc.(2012)5SCC359, was pleased to hold:-
7. In the light of the above pronouncement of this Court the High Court was perfectly justified in holding that the activities of the Appellant company in the present case involving offer of plots for sale to its customers/members with an assurance of development of infrastructure/amenities, lay-out approvals etc. was a service within the meaning of Clause (o) of Section 2(1) of the Act and would, therefore, be amenable to the jurisdiction of the fora established under the statute. Having regard to the nature of the transaction between the Appellant-company and its customers which involved much more than a simple transfer of a piece of immovable property it is clear that the same constituted service within the meaning of the Act. It was not a case where the Appellant-company was selling the given property with all advantages and/or disadvantages on as is where is basis, as was the position in U.T. Chandigarh Administration and Anr. V. Amarjeet Singh and Ors. MANU/SC/0389/2009 : (2009) 4 SCC 660. It is a case where a clear cut assurance was made to the purchasers as to the nature and the extent of development that would be carried out by the Appellant-company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchasers for valuable consideration. To the extent the transfer of the site with developments in the manner and to the extent indicated earlier was a part of the transaction, the Appellant-company had indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers like the Respondents.
3. Learned counsel for the petitioners has also cited other authorities, which are reported in the following cases:
1.
Madan Kumar Singh (D) Thr. L.R. Vs. Distt. Magistrate, Sultanpur & Ors. IV (2009) CPJ 3 (SC).
2. Civil Appeal No.of 2009 (arising out of SLP No.16886 of 2007) Haryana Urban Development Authority & Anr. Vs. Satish Hans, decided on 29.04.2009.
3. Rajit Khod Vs. Haryana Urban Development Authority, IV (2011) CPJ 669 (NC).
4. Kanpur Development Authority Vs. Shri Sheo Prakash Gupta & Anr, First Appeal No.42 of 2012 decided on 29.05.2012 (NC).
5. Kanpur Development Authority Thr. Vice Chairman Vs. Sheo Prakash Gupta & Anr., Civil Appeal No.6017 of 2012 (arising out of SLP No.23892 of 2012), decided on 24.08.2012.
6. Director, National Capital Project Area, Alwar, and Secretary Urban Improvement Trust, Alwar & Ors. Vs. Smt. Chitra Singh, RP No.131 of 2012, decided on 25.07.2012 (NC).
7. Punjab Urban Planning & Development Authority (PUDA) Vs. Jarnail Singh, RP NO.3184 of 2012, decided on 3rd October, 2012 (NC).
8. U.P. Avas Evam Vikas Parishad & Anr.
Vs. Green Field School through Manager, RP No.2637 of 2010, decided on 26.08.2011 (NC).
9. Bangalore Development Authority Vs. Sri Varghese George P., First Appeal No.8 of 2005, decided on 14.11.2011 (NC).
10.Haryana Urban & Anr. Vs. M/s. Suneja & Sons, RP No.2951 of 2009, decided on 18.08.2011 (NC).
11.Rajinder Kumar Vs. Haryana Urban Development Authority, RP No.4347 of 2010, decided on 14.5.2012 (NC).
12.Mr. Vasant Shankar Toraskar & Ors. Vs. M/s. Shreeji Builders Thro Partner Mr. Purshottam Odhavji Solanki, FA No.223 of 2006, decided on 23.4.2012 (NC).
13.Laxmi Engineering Works Vs. P.S.G. Industrial Institute, AIR 1995, SC 1428.
4. Now let us turn to the facts of the instant case. There was a publication in the Hindustan Times on Saturday February 22, 1986. Its relevant para germane to the present controversy runs as follows:-
OFFERS RESIDENTIAL PLOTS FOR PUBLIC AUCTION on fee hold basis in Section A of Green Fields Colony in National Capital Region (approved by Haryana Government and almost fully developed)
5. It further mentions Near wide road, Near Club & Park, Near Park and Shopping Centre, on 30.5 mtr. wide road. Advertisement also mentions about the Escalation Clause, which runs as follows:-
Escalation Clause: Escalation clause will be applicable to all bidders based on the rise in the cost of Index as accepted by the Government for development of residential land.
Inspection of Plots at site: Plots can be inspected at site by intending purchasers after making prior arrangements with the company around 80% development connected with internal services has been completed. Work on electrification is under progress.
6. Another document under the heading SALE OF PLOTS-BY AUCTION, its para No. 5 mentions as follows:-
5. Escalation clause will be applicable to all bidders based on the rise in the cost of index as accepted by the Government for development of residential land.
7. Another document under the caption URBAN IMPROVEMENT CO. (P) LTD. mentions in para no. 4, which is reproduced here as under:-
4. The Company, as per the terms and conditions of approval granted by the Haryana Govt. vide their Memo.
No. 5 DP-EG2-82/5376 dated the 5th April, 1982, shall continue to be responsible for the maintenance and upkeep of all roads, open spaces, sewerage, drain, public parks etc. and public Health and other Civic Services in the Colony for a period of at least 5 years from the date of issue of completion certificate by the concerned authorities, and, as such, you would also be required to remit .(not legible).
8. Again there is a memo from the Commissioner and Secretary to Government of Haryana, Town & Country Planning Department to M/s Urban Improvement Company Pvt. Ltd.-the OP. This is a very relevant document and its paras vii and xi are reproduced as follows:-
vii. That you shall be responsible for the maintenance and upkeep of all roads, open spaces, public parks and public Health Services for a period of 5 years from the date of issue by the Director in accordance with condition No. XI below unless earlier relieved of this responsibility and thereupon to transfer all such roads, open spaces, pubic parks and public Health-Services free of cost to the Government, Haryana Urban Development Authority or the Local Authority etc. as the case may be.
xi) That you shall have no objection to the Director or any Officer(s) authorized by him inspecting the execution of the layout and the development works in the colony and to carryout all directions issued by him for ensuring the compliance of the execution of the layout and development works in accordance with these terms and conditions.
9. In the light of the above, it is clear that the petitioner is a Consumer. He is not mere an auction purchaser.
Certain other conditions are also stand proved, which make him a Consumer under the Consumer Protection Act. The finding given by the learned State Commission is not legally tenable, therefore, the same order is hereby reversed. Other questions are yet to be decided by the State Commission. The case is remanded back to the State Commission to hear the case on other issues as per Law. No costs.
10. Parties are directed to appear before the State Commission on 27.03.2014.
11. The Revision Petition stands disposed of.
..
(J. M. MALIK,J.) PRES IDING MEMBER .
(DR.S.M. KANTIKAR) MEMBER Jr/18