State Consumer Disputes Redressal Commission
Neeru Garg vs Nagar Council, Kotkapura on 12 September, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1546 of 2006.
Date of Institution: 08.12.2006.
Date of Decision: 12.09.2011.
Neeru Garg W/o Sh. Kamal Kumar Garg, R/o Bansal Street, Kotkapura,
District Faridkot.
.....Appellant.
Versus
1. Nagar Council, Kotkapura, through its Executive Officer, District
Faridkot.
2. Naib Singh S/o Jangir Singh, R/o Village Matta, Tehsil Jaitu, District
Faridkot.
...Respondent.
First Appeal against the order dated
17.11.2006 of the District Consumer
Disputes Redressal Forum, Faridkot.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellant : Sh. Surinder Garg, Advocate.
For respondent no.1 : Ms Jarnail Kaur, Advocate.
For respondent no.2 : None.
INDERJIT KAUSHIK, PRESIDING MEMBER:-
Mrs. Neeru Garg, appellant/complainant (In short "the
appellant") has filed this appeal against the order dated 17.11.2006 passed by the learned District Consumer Disputes Redressal Forum, Faridkot (in short "the District Forum").
2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents, on the grounds that Improvement Trust, Kotkapura started a development scheme known as DTP (F) 43/75 (Guru Teg Bahadur Market) and plots were allotted to the general public and later on, Improvement Trust, First Appeal No.1546 of 2006 2 Kotkapura was abolished and charge of the said scheme was handed over to respondent no.1 and respondent no.1 stepped into the shoes of Improvement Trust Kotkapura.
3. One Naib Singh S/o Jangir Singh was allotted plot no.12 and the appellant purchased the same and applied to respondent no.1 for transfer of the plot in the name of the appellant and paid Rs.1271/- as transfer fee. Respondent no.1 transferred the said plot in the name of the appellant vide letter dated 26.07.2004 and as such, the appellant is a consumer.
4. As per terms and conditions of the site plan of the said scheme, an open place of about 70 feet width was left in front of the plot no.12 and its adjoining plots, for common use of the allottees. Now, respondent no.1 has illegally allotted a plot to Naib Singh S/o Jangir Singh in the said open space in front of plot no.12 which amounts to deficiency in service and unfair trade practice on the part of respondent no.1. By allotment of this plot in front of plot of the appellant, appellant has to suffer financial loss as the value of her plot has decreased and the appellant has been deprived of the open space. Now, the respondents are planning to raise construction which will diminish the value of the plot of the appellant. The appellant requested respondent no.1, but it was told that the plot would be allotted as it was already decided.
5. As per terms and conditions of the scheme, respondent no.1 is bound to provide civic amenities in the area such as roads, water supply, street lights etc., but they have failed to provide the same which is causing inconvenience, harassment and mental tension, and prayed that respondent no.1 may be directed to cancel the allotment of open space in front of plot no.12 and no construction over the space be raised, to provide civic amenities and pay a compensation of Rs.20,000/- and the costs be also awarded.
6. In the reply filed on behalf of respondent no.1, preliminary objections were taken that the District Forum has no jurisdiction to hear and decide the present complaint. The said plot no.12 was purchased by Naib Singh S/o Jangir Singh, respondent no.2 in open auction on 26.02.1990, who First Appeal No.1546 of 2006 3 further sold the same to the appellant. Another plot has already been allotted to respondent no.2 in lieu of the plot purchased by him in open auction because its area was less in measurement. The appellant is not a consumer of respondent no.1. The appellant applied for transfer of the plot but he is not a consumer.
7. On merits, it was admitted that development scheme at Guru Teg Bahadur Market, Kotkapura was started by the Improvement Trust, Kotkapura and the said Trust was abolished and it was taken over by respondent no.1. The open space left by Improvement Trust, Kotkapura is actually a platform which was being used for keeping 'Kapas' (Cotton) by the villagers for sale and it was used as Cotton Market and after the shifting of Cotton Market, plot out of that platform has been given to Naib Singh in lieu of the another plot purchased by him. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
8. In the reply filed on behalf of respondent no.2, similar preliminary objections were taken and on merits, it was pleaded that there was only a street 12 feet wide in front of plot no.12 and beyond the street, were the plots and one plot was allotted to the answering respondent, but its possession was not given. Respondent no.2 filed a complaint in the District Forum and that complaint was accepted and Improvement Trust, Kotkapura was ordered to be give possession of plot no.11 to the answering respondent, but respondent no.1 had constructed a road in that plot and the possession of plot no.11 could not be delivered and a compromise was effected and the space opposite the street was allotted to respondent no.2 and actual and physical possession was handed over and there is no deficiency in service nor there is any locus standi of the appellant to file the complaint. All other allegations were denied being wrong and incorrect and dismissal of the complaint was prayed.
9. Parties led evidence in support of their respective contentions by way of affidavits and documents.
First Appeal No.1546 of 2006 4
10. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the plot in question was purchased in open auction and the complaint is not maintainable, and dismissed the complaint.
11. Aggrieved by the impugned order dated 17.11.2006, the appellant has come up in appeal.
12. We have gone through the pleadings of the parties, perused the record of the learned District Forum, case law relied upon by the District Forum, perused the written arguments filed on behalf of the appellant and heard the learned counsel for respondent no.1.
13. None has appeared on behalf of respondent no. 2 at the time of arguments.
14. It is admitted case of the parties that the appellant purchased the plot no.12 from Naib Singh, who purchased the same in open auction and later on, he sold the same to the appellant and appellant stepped into the shoes of respondent no.2-Naib Singh. Thus, the appellant is deemed to have purchased the plot no.12 from respondent no.2 in open auction. The law is well settled that in case the plot is purchased in the open auction, the complaint is not maintainable. Hon'ble Supreme Court in "U.T. Chandigarh Administration & Another Vs Amarjeet Singh & Others", AIR-2009- Supeme Court-1607 held that where the plot in question was purchased in an auction, the District Forum/this Commission has no jurisdiction, as the auction purchaser is not the 'consumer'.
11. The Hon'ble National Commission, relying upon the above authority of the Hon'ble Supreme Court, in its latest order in case Revision Petition No.1603 of 2010 titled as "Rajinder Kumar & Another Vs New Mandi Township, decided on 20.05.2010, has held that:-
"Petitioner (auction purchaser) was not a consumer within the meaning of Section 2(i) (d) of the Act".First Appeal No.1546 of 2006 5
12. Learned counsel for the appellant has relied upon the following authorities:-
i) 'Allport International Private Limited Vs Haryana Financial Corporation' 2003(2) CLT-450(State Commission, U.T. Chandigarh).
ii) 'Delhi Development Authority Vs Smt. Renu Gauba', II(2003)CPJ-
4(Delhi State Commission)
iii) 'The Chief Administrator, HUDA, Panchkula & Anr. Vs Sadhu Ram', 2006(3)CLT-162(Haryana State Commission).
However, the same are not applicable in view of the latest law laid down by the Hon'ble Supreme Court and the Hon'ble National Commission
13. Once, the appellant do not fall within the definition of consumer, then no relief can be granted to him. There is no illegality or infirmity in the impugned order passed by the District Forum.
14. Accordingly, the appeal filed by the appellant is dismissed and the impugned order dated 17.11.2006 under appeal passed by the District Forum is affirmed and upheld. No order as to costs.
15. The arguments in this appeal were heard on 07.09.2011 and the order was reserved. Now the order be communicated to the parties.
16. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member September 12, 2011.
(Gurmeet S)