State Consumer Disputes Redressal Commission
Haryana State Agricultural Marketing ... vs Rajinder Singh on 16 July, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA. First Appeal No. 2038 of 2008 Date of Institution: 25.11.2008 Date of Decision: 16.07.2010 1 Market Committee, Meham, through its Executive Officer-cum Secretary. 2 Haryana State Agricultural Marketing Board, C-6, Sector-6, Panchkula through its Chief Administrator. Appellants-Ops. VERSUS 1 Rajinder Singh s/o Sh. Ram Kishan R/o V.&.P.O. Balamba, tehsil Meham, District Rohtak. 2 Pala Ram s/o Sh. Ram Singh, R/o V.&.P.O. Barah Khurd, Tehsil & District Jind. Respondents / complainants. BEFORE:- Honble Mr. Justice R.S. Madan, President. Mr. Diwan Singh, Member.
Present:- Mr. Amit Sharma, Advocate for the appellants.
Mr. Ashwani Bakshi, Advocate for the respondent.
O R D E R:
JUSTICE R.S.MADAN, PRESIDENT:
Challenge in this appeal is to the order dated 15.10.2008 passed by the District Consumer Disputes Redressal Forum, Rohtak whereby complaint filed by the respondents-complainants attributing deficiency in service on the part of appellants-opposite parties for not delivering the physical possession and charging interest and penalty on account of delayed payment of the installments in respect of the plot purchased by them in an Open Auction was accepted by granting following relief:-
1 Opposite parties shall provide all the basic amenities/development works including water supply, sewerage, and electricity connection etc. to the shop/plot of the complainant at the earliest and maximum within a period of six months.
2 No interest shall be charged from the complainant uptill providing of complete above referred basic amenities. If the opposite party has already charged any interest amount upon the balance amount of 75% of the price amount, the same will be refunded immediately along with interest @ 9% p.a. from the date of deposit till its realization to the complainant.
3 To pay a sum of Rs.1500/- as litigation expenses to the complainant.
4 The opposite parties are directed to pay the above said awarded amount to the complainant within two months.
5 The complainant is directed to deposit the remaining/outstanding amount with the opposite parties at the earliest and maximum within two months without interest.
6 Copy of this order be supplied to both the parties free of costs.
It is an admitted case of the parties that respondents-complainants had purchased plot No.39 in New Grain Market at Meham, District Rohtak in an Open Auction held on 22.5.2001 being the highest bidder. The possession of the plot was offered to the complainants in the allotment letter. They deposited 25% of the bid money at the time of auction and the remaining price of the plot was to be deposited in installments. But they did not deposit the balance price as per terms and conditions of the allotment letter and also failed to raise construction on the plot in question within the stipulated period and for that reason the opposite parties demanded interest on the balance price along with penalty and extension fee from the complainant. Challenging the action of the opposite parties the complainants invoked the jurisdiction of the District Forum with the averments that they could not raise construction on the plot in question because the opposite parties did not deliver the physical possession of the plot after providing all the basic amenities in that area.
Upon notice, the opposite parties appeared and resisted the claim of the complainants on the ground that the complainant was offered possession of the plot in question after completing all the development works and as the complainants failed to raise construction on the plot in question they demanded the interest, penalty and extension fee as per terms and conditions of the allotment letter. They further took the plea that as the complainants had purchased the plot in question in an Open Auction therefore, complaint before the Consumer Forum was not maintainable. Thus, denying any kind of deficiency in service, they prayed for dismissal of the complaint.
On appraisal of the pleadings of the parties and evidence adduced on record, the District Forum accepted the complaint and granted relief as noticed above. Hence, this appeal.
Heard.
At the very outset the question for consideration before us is that Whether the complainants falls under the definition of Consumer or not?
The Honble Supreme Court in U.T. Chandigarh Administration & Anr Vs. Amarjeet Singh & Ors. (2009) 4 S.C.C. Page 660 has held that:-
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, of 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 he 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. 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 too 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.
Admittedly the complainants had purchased the plot in an Open Auction held by the opposite parties being the highest bidder on as and where basis and no assurance was given by the opposite parties as service provider. Thus, the present case is covered by Amarjeet Singhs case (Supra), wherein it has been made clear that any grievance of the purchaser/lessee who purchases the site in an open auction cannot be termed as a Consumer dispute and the Consumer Fora have no jurisdiction to entertain and decide any complaint.
It is contended by the learned counsel for the respondents-complainants that it is a case in which the appellants-opposite parties have entered into a contractual obligation with the auction purchaser and they are bound by the terms and conditions thereof.
Though, the arguments of the learned counsel for the respondents-complainants appears to be very attractive but the same lacks force for the reason that in order to claim this relief from the Consumer Fora, the complainants would have to prove first whether the auction purchaser falls within the definition of Consumer. The complainants who had given the highest bid during the auction proceedings cannot be terms as Consumers because they had given bid taking into account the factual position of the site and purchased their respective plots/sites with open eyes of their free consent. Thus, the question of Consumer and Service provider does not arise in the instant case as this question has already been answered in Amarjeet Singhs case (Supra).
As a sequel to our aforesaid discussion, it is established that the present complaint was not entertainable as the commercial site/plot was purchased by them in an Open Auction and there is no Consumer Disputes between the parties.
Accordingly this appeal is accepted, impugned order passed by the District Consumer Forum is set aside and consequently the complaint is dismissed with liberty to the complainants to approach the Court of competent jurisdiction to get their grievance redressed in this case on the same cause of action.
However, the complainant would be entitled to the benefit of the provision of Section 14(2) of the Limitation Act for the period during which proceedings under the Consumer Protection Act, 1986 remained pending before the District Consumer Forum as well as the State Commission, provided the complainants approach the Court of competent jurisdiction within 60 days from the date of passing of this order.
Copy of this order be sent to the parties under postal certificate without any delay.
The statutory amount of Rs. 750/-
deposited at the time of filing of the present appeal be refunded to the appellants against proper receipt and due verification as per rules on the subject after the expiry of period of revision, if any, filed in this case.
16th July 2010. Justice R.S. Madan, President.
Diwan Singh Chauhan, Member.
Kr.