National Consumer Disputes Redressal
Harish Kumar Kochar vs Gillco Developers Pvt. Ltd., Kharar & ... on 27 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2386 OF 2011 (Against the order dated 19.4.2011 in First Appeal No.177/2010 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh) WITH INTERIM APPLICATION NO.5290 OF 2014 (FOR PLACING ADDITIONAL RECORD) Harish Kumar Kochar New Address: R/o House No.E/01, Sector-14, PU Campus, Chandigarh Old Address: C-28, PU Campus, Chandigarh ..... Petitioner Versus 1. Gillco Developers Pvt. Ltd., Kharar Through its Managing Director, District Mohali, Pubjab (Near Chandigarh)- 140 301 2. Chief Executive Officer Gillco Developers Pvt. Ltd., Kharar District Mohali, Pubjab (Near Chandigarh)- 140 301 3. GM (Estate), Gillco Developers Pvt. Ltd., Kharar District Mohali, Pubjab (Near Chandigarh)- 140 301 4. General Manager, Gillco Developers Pvt. Ltd., Kharar Through its Managing Director, District Mohali, Pubjab (Near Chandigarh)- 140 301 ...... Respondents BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MR. SURESH CHANDRA, MEMBER For the Petitioner : In person For the Respondents : Ms. Jyoti Chaudhary, Advocate PRONOUNCED ON 27th JANUARY, 2015 ORDER
PER MR. SURESH CHANDRA, MEMBER The facts leading to the filing of this revision petition are that the petitioner purchased the SCO Plot No.15 from respondent No.1 on 8.8.2005 through a registered sale deed. He got possession/demarcation of the said plot on 29th December, 2008. The petitioner completed the construction work upto 11 feet 5 inches of the basement boundary wall of RCC and was ready to put lintel for basement roof and completed the layout of plates on the basement boundary wall. As per allegation, as the construction work was going on, it was illegally stopped without any reason or cause citing dimension error. The officials of the respondent company told the petitioner that the construction work of the boundary wall was going on out of dimensions. The petitioner approached the officials of the respondent company including its Managing Director but the matter was not resolved. Aggrieved by this and alleging it to be a deficiency in service on their part, the petitioner filed a consumer complaint before the District Forum which was resisted by the respondents/opposite parties.
2. After going through the documents and material placed before it and hearing the parties, the District Forum vide its order dated 18.12.2009 observed that the demarcation of the site is a complex question for which the petitioner/complainant has to approach the Civil Court. The District Forum further held that the question of grant of cost of construction and further damages in the shape of loss of rentals to the complainant would arise only if it is found that the complainant had raised the construction on wrong site on account of the act of the respondents. The District Forum further observed in its order that the petitioner had not impleaded the seller company as respondent and as such no relief could be granted against the officials since petitioner/complainant is not their consumer. Finally, the District Forum concluded that the petitioner/complainant had purchased the site in question for commercial purpose and since he is already earning his livelihood by employment under the Punjab University, Chandigarh, he does not fall within the definition of Consumer under the Consumer Protection Act. In consideration of all these aspects, the District Forum dismissed the complaint vide its aforesaid order.
3. Aggrieved of the order of the District Forum, the petitioner challenged the same by filing an appeal bearing No.177/2010 before the State Consumer Disputes Redressal Commission, Punjab, Chandigarh. The State Commission vide its order dated 19.4.2011 dismissed the appeal and upheld the order of the District Forum. It is against this impugned order of the State Commission that the present revision petition has been filed by the petitioner/complainant.
4. We have heard the petitioner who has appeared in person and pleaded his case himself and Ms. Jyoti Chaudhary, Advocate appearing for the respondents. The petitioner has submitted that his grievance is in respect of the demarcation for which he had approached the respondents and the same had apparently been settled by them and yet they stopped the construction work which was going on at his own site and the same has resulted in unavoidable harassment and financial loss to him for which he had sent legal notice as also filed the present consumer complaint which has been wrongly and erroneously dismissed by the Foras below. Even the State Commission has not considered the case properly while dismissing the appeal and as such he has filed the present revision petition which may be allowed in the facts and circumstances of this case in the interest of justice. On the other hand the counsel for the respondents has strongly supported the impugned order and submitted that the complaint itself is not maintainable before the Consumer Fora because the petitioner/complainant does not fall within the definition of a consumer. She submitted that on this count alone the revision petition is liable for dismissal.
5. We have considered the rival contentions and perused the record. The first and foremost question which arises for our consideration is as to whether the petitioner is covered by the definition of a consumer and his complaint is maintainable before the Consumer Fora. It is not in dispute that the petitioner is in service under the Punjab University, Chandigarh. It is also not denied that the plot in question is a SCO plot and is being used for commercial purposes by construction of a shop and other utilities thereon. This being the admitted position, it cannot be denied that the purchase of the plot in question was for commercial purpose. The plea of earning his livelihood through proposed construction on this plot was neither taken by the petitioner nor can it be allowed in the face of his being in service already. Obviously, the property was purchased for commercial purpose with a view to earn additional income. Section 2 (1) (d) of the Consumer Protection lays down that a consumer means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, 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 partly promised, or under any system of deferred payment, when 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;
Explanation. For the purposes of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment
6. The case of the petitioner is hit by the provisions of Section 2 (1) (d) (i) which provides that any person who buys any goods for a consideration for resale or for any commercial purpose will not be covered by the definition of a consumer. Even if the petitioner treats the respondents as service providers whose services he had availed of by getting the plot in question allotted to him, still he cannot be called a consumer because apparently the services would have been hired or availed of for a commercial purpose. Since the petitioner is already in service, the exceptional situation provided under the explanation appended to the section will not provide any comfort to him and as such he cannot be covered in the definition of a consumer as envisaged under the Consumer Protection Act. In this view of the matter, his complaint in question is not maintainable before the Consumer Fora under the Consumer Protection Act and on this ground alone, the concurrent orders of the Fora below could not be faulted with. We, therefore, do not find any substance in the revision petition and the same stands dismissed but with no order as to costs. The petitioner, however, will be at liberty to seek his remedy before the appropriate forum.
Sd/.
(V.B. GUPTA, J) (PRESIDING MEMBER) Sd/.
(SURESH CHANDRA) (MEMBER) Raj/