State Consumer Disputes Redressal Commission
Improvement Trust Faridkot vs Suraj Mehta on 24 January, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
1. First Appeal No.705 of 2017
Date of institution : 11.10.2017
Date of decision : 24.01.2018
1. The E.O. Department of Improvement Trust, Kotkapura,
Faridkot.
2. The Chairman, Improvement Trust, Kotkapura, District
Faridkot.
.......Appellants-Opposite Parties Nos.2 and 3
Versus
1. Suraj Mehta aged 50 years son of Satpal Mehta, r/o Habowal,
Ludhiana, Tehsil and District Ludhiana.
......Respondent No.1/Complainant
2. The Chief Secretary, Department of Local Bodies, Sector 9,
Chandigarh.
...Performa Respondent No.2/Opposite Party No.1
2. First Appeal No.706 of 2017
Date of institution : 11.10.2017
Date of decision : 24.01.2018
1. The E.O. Department of Improvement Trust, Kotkapura,
Faridkot.
2. The Chairman, Improvement Trust, Kotkapura, District
Faridkot.
.......Appellants-Opposite Parties Nos.2 and 3
Versus
3. Suraj Mehta aged 50 years son of Satpal Mehta, r/o Habowal,
Ludhiana, Tehsil and District Ludhiana.
First Appeal No.705 of 2017 2
......Respondent No.1/Complainant
4. The Chief Secretary, Department of Local Bodies, Sector 9,
Chandigarh.
...Performa Respondent No.2/Opposite Party No.1
3. First Appeal No.707 of 2017
Date of institution : 11.10.2017
Date of decision : 24.01.2018
1. The E.O. Department of Improvement Trust, Kotkapura,
Faridkot.
2. The Chairman, Improvement Trust, Kotkapura, District
Faridkot.
.......Appellants-Opposite Parties Nos.2 and 3
Versus
1. Saurabh Garg, aged 30 years son of Bhushan Garg, r/o 2A,
Mall Road, Ludhiana, Tehsil and District Ludhiana.
......Respondent No.1/Complainant
2. The Chief Secretary, Department of Local Bodies, Sector 9,
Chandigarh.
...Performa Respondent No.2/Opposite Party No.1
4. First Appeal No.708 of 2017
Date of institution : 11.10.2017
Date of decision : 24.01.2018
1. The E.O. Department of Improvement Trust, Kotkapura,
Faridkot.
2. The Chairman, Improvement Trust, Kotkapura, District
Faridkot.
.......Appellants-Opposite Parties Nos.2 and 3
First Appeal No.705 of 2017 3
Versus
1. Saurabh Garg, aged 30 years s/o Bhushan Garg, r/o 2A, Mall
Road, Ludhiana, Tehsil and District Ludhiana.
......Respondent No.1/Complainant
2. The Chief Secretary, Department of Local Bodies, Sector 9,
Chandigarh.
...Performa Respondent No.2/Opposite Party No.1
5. First Appeal No.709 of 2017
Date of institution : 11.10.2017
Date of decision : 24.01.2018
1. The E.O. Department of Improvement Trust, Kotkapura,
Faridkot.
2. The Chairman, Improvement Trust, Kotkapura, District
Faridkot.
.......Appellants-Opposite Parties Nos.2 and 3
Versus
1. Saurabh Garg, aged 30 years s/o Bhushan Garg, r/o 2A, Mall
Road, Ludhiana, Tehsil and District Ludhiana.
......Respondent No.1/Complainant
2. The Chief Secretary, Department of Local Bodies, Sector 9,
Chandigarh.
...Performa Respondent No.2/Opposite Party No.1
6. First Appeal No.710 of 2017
Date of institution : 11.10.2017
Date of decision : 24.01.2018
1. The E.O. Department of Improvement Trust, Kotkapura,
Faridkot.
First Appeal No.705 of 2017 4
2. The Chairman, Improvement Trust, Kotkapura, District
Faridkot.
.......Appellants-Opposite Parties Nos.2 and 3
Versus
1. Jaswinder Singh, aged 42 years, s/o Nirmal Singh r/o Kartar
Nagar, Ludhiana, Tehsil and District Ludhiana.
......Respondent No.1/Complainant
2. The Chief Secretary, Department of Local Bodies, Sector 9,
Chandigarh.
...Performa Respondent No.2/Opposite Party No.1
7. First Appeal No.711 of 2017
Date of institution : 11.10.2017
Date of decision : 24.01.2018
1. The E.O. Department of Improvement Trust, Kotkapura,
Faridkot.
2. The Chairman, Improvement Trust, Kotkapura, District
Faridkot.
.......Appellants-Opposite Parties Nos.2 and 3
Versus
1. Jaswinder Singh, aged 42 years, s/o Nirmal Singh r/o Kartar
Nagar, Ludhiana, Tehsil and District Ludhiana.
......Respondent No.1/Complainant
2. The Chief Secretary, Department of Local Bodies, Sector 9,
Chandigarh.
...Performa Respondent No.2/Opposite Party No.1
First Appeal No.705 of 2017 5
8. First Appeal No.712 of 2017
Date of institution : 11.10.2017
Date of decision : 24.01.2018
1. The E.O. Department of Improvement Trust, Kotkapura,
Faridkot.
2. The Chairman, Improvement Trust, Kotkapura, District
Faridkot.
.......Appellants-Opposite Parties Nos.2 and 3
Versus
1. Gurtej Singh aged 42 years s/o Megh Singh r/o Village
Sandhwan, Tehsil Kotkapura, District Faridkot.
......Respondent No.1/Complainant
2. The Chief Secretary, Department of Local Bodies, Sector 9,
Chandigarh.
...Performa Respondent No.2/Opposite Party No.1
First Appeals against the different orders
dated 27.7.2017 of the District Consumer
Disputes Redressal Forum, Faridkot.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the appellants : Ms. Kavita Arora, Advocate. For respondent No.1 : Shri Navjot Singh, Advocate. For respondent No.2 : Service dispensed with, vide order dated 13.10.2017.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
All the above referred 8 First Appeals are being decided by this common order, as common questions of law and facts, except some First Appeal No.705 of 2017 6 minor variations, here and there, are involved in these appeals and the same are directed against the similar orders dated 27.7.2017 passed by District Consumer Disputes Redressal Forum, Faridkot (in short, "District Forum"). The facts are taken from FA No.705 of 2017.
First Appeal No.705 of 2017:
2. The instant appeal has been filed by appellants/opposite parties Nos.2 and 3 against the order dated 27.7.2017 passed by District Consumer Disputes Redressal Forum, Faridkot (in short, "District Forum"), whereby the complaint filed by Suraj Mehta, respondent No.1/complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "C.P. Act"), was allowed and they were directed to refund the amount paid by him for sale consideration of shop in question i.e. one fourth submitted by complainant as earnest money at initial stage and payment of remaining four instalments deposited by him with them along with interest at the rate of 9% per annum from the date of filing the complaint till final realization. They were further directed to pay ₹5,000/- as compensation for harassment and mental agony suffered by him besides ₹3,000/- as litigation expenses.
3. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.
Facts of the complaint:
4. Brief facts, as averred in the complaint, are that opposite parties gave advertisement for auction of shops under Ambedkar Nagar Vikas Scheme, near Ram Bagh, Kotkapura in easy First Appeal No.705 of 2017 7 instalments. Auction was held on 22.12.2011 at the office of Improvement Trust, Kotkapura. The complainant participated in that bid and he was allotted shop No.39, vide resolution dated 24.1.2012.
It is further averred that the opposite parties assured the complainant that market would be developed with all basic facilities like water, sewerage, pacca road, lighting, drainage system etc. to give good look. The complainant fell into trap of opposite parties by their false promises and in accordance with terms and conditions deposited ₹1,10,250/- i.e. 1/4th of total amount on the spot and remaining amount was to be deposited in five equal instalments. The complainant duly paid four instalments to the opposite parties but he did not pay the amount of fifth instalment as during the course of making payment of four instalments he kept requesting the opposite parties to develop the market but there are no signs of any development at that place. It is further averred that instead of developing the market, the opposite parties even did not remove the huge dumps of waste garbage lying at the spot. The opposite parties have not provided all the basic facilities at the site and sewerage treatment plant has not been installed. Even after completion of five years, the opposite parties have not initiated even a single step to make development for making market at that place. Repeated requests made by the complainant to the opposite parties to develop the market at that place have bore no fruit. Alleging deficiency in service and adoption of trade mal practice on the part of the opposite parties, the complaint was filed by the complainant before the District Forum seeking directions to opposite parties to First Appeal No.705 of 2017 8 refund the amount deposited by him along with interest, compensation and litigation expenses.
Defence of the opposite parties:
5. Opposite party No.1 did not appear before the District Forum despite service and as such, he was proceeded against ex parte, vide order dated 22.11.2016.
6. Opposite parties Nos.2 and 3 in their joint reply admitted that auction notice was issued by them and the complainant participated in the auction held on 22.12.2011. It was also admitted that Shop No.39 was allotted to the complainant and he deposited the amounts as mentioned in the complaint. However, no such promise was ever made by the opposite parties to provide any such basic civic facilities/amenities. The shops are situated in the fully developed area of the city and all the basic amenities/facilities have already been provided there. As per condition No.3 of the terms and conditions of the Auction Notice, the property was to be sold as it was lying at the spot on "as is where it is" basis. The complainant purchased the shop in question after fully understanding all the terms and conditions of the auction notice. It is further averred that the complainant was issued several letters and reminders to deposit the remaining amount but he did not pay the same. Therefore, the complainant himself has not complied with the terms and conditions of the notice and levelled false allegations against them. Denying all other allegations made in the complaint a prayer for dismissal of the same was made.First Appeal No.705 of 2017 9
Finding of the District Forum:
7. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide impugned order. Hence, this appeal.
8. We have heard learned counsel for both the sides and have carefully gone through the records of the case. We have also gone through the written arguments submitted by the learned counsel for the opposite parties.
Contentions of the Parties:
9. It has been vehemently argued by the leaned counsel for the appellants/opposite parties Nos.2 and 3 that the complainant purchased the shop in question and has not pleaded in his complaint that the same was purchased for earning his livelihood by way of self-employment and as such, he does not fall within the definition of 'consumer' as defined under the C.P. Act. The District Forum has not appreciated the facts on record. The Scheme was for constructing the shop, which was certainly commercial in nature.
Learned counsel for the appellants/opposite parties Nos.2 and 3 has made reference to the judgment dated 3.5.2017 passed by the 2nd Additional Bench of this Commission in FA No.569 of 2016 (Improvement Trust, Kotkapura and another v. Ritesh Mangal) in which similar view has been taken. It has further been argued that the shop in question was purchased by the complainant in open auction and it is settled law that auction purchaser is not a First Appeal No.705 of 2017 10 'consumer' under the C.P. Act. He also made reference to the following judgments:-
i) (Rishi Malhotra v. M/s Blue Coast Infrastructure Development Pvt. Ltd. and 5 Others) (NC) 2017(1) CPJ 541;
ii) (Kundan Balkrushna Deshmukh v. Empire Mall Pvt.
Ltd.) (NC) 2017(3) CPJ 229;
iii) (Rajneesh Malik v. BPTP Ltd. & Ors.) (NC) 2016(2) CPR 299;
iv) (Delhi Development Authority v. Parveen Kumar) (NC) 2015(1) CPR 454;
v) (U.T. CHANDIGARH ADMINISTRATION & ANR. v.
AMARJEET SINGH & ORS.) II(2009) CPJ 1 (SC); and
vi) "Rajasthan Housing Commissioner and Anr. v.
Jitendra Sharma" 2017(2) CPR 110 (NC).
10. On the other hand, it has been vehemently argued by the learned counsel for the complainant that the District Forum has passed a well reasoned order after duly appreciating the pleadings and evidence on record. There is no illegality or infirmity in the same and as such, the same is liable to be upheld.
Consideration of Contentions:
11. We have given our thoughtful consideration to the contentions raised by the learned counsel for both the sides.
12. Admittedly the complainant purchased the shop in question from the opposite parties in an open auction held on 22.12.2011 for which allotment letter dated 9.4.2012, Ex.C-6, was issued to him. First Appeal No.705 of 2017 11 There is also no dispute with regard to the payments made by the complainant to the opposite parties. The only question to be determined in this case is whether the complainant falls within the definition of 'consumer' as defined under the C.P. Act having been purchased the shop in question in open auction?
13. The definition of 'consumer' has been provided under section 2
(i) (d) of the Act, which reads as under:-
2. x x x x x x x
(d) "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;
(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 First Appeal No.705 of 2017 12 person who avails of such services for any commercial purpose];
[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;]"
10. In the present case, as per the proviso to the definition of 'consumer', reproduced above, if it is a commercial property, then complainant is required to plead and prove that the commercial property was purchased by him exclusively for the purpose of earning his livelihood by means of self-employment, otherwise commercial property does not come within the domain of 'Consumer' as defined under the C.P. Act. We have gone through the contents of the complaint carefully and we fail to find any averment in the complaint to that effect and as such, the complainant cannot derive the benefit of the above said proviso. In this regard reference may also be made to the judgment passed by this Commission in case 'State of Punjab Vs. Kasturi Lal', 1999 (1) C.P.J 436 in which the commercial property was purchased by the complainant in auction proceedings. It was held therein that the complainant does not come within the definition of 'Consumer'. The reference was made to the judgment passed by the Hon'ble National Commission in "Allied (Garments) Export Industries Pvt. Ltd. Vs. DDA", II (1992) CPJ 505 wherein it was observed as under:-First Appeal No.705 of 2017 13
"This is a case where the petitioner purchased in auction a commercial plot which was put to auction by the Delhi Development Authority. Though the petitioner is justified in pulling forward the grievance that the Delhi Development Authority after accepting the bid amount in full has failed to give him the delivery of possession of the plot since some other persons encroached the plot, we do not find it possible to grant any relief to him since the transaction was not one of allotment of plots as part of a scheme for providing housing facilities to the public but one of straight sale of immovable property at an auction. The original petition accordingly fails and is dismissed."
A reference can also be made to the judgment passed by the Hon'ble National Commission in 'Anil Dull Vs. Business Park Town Planners Ltd. (BPTP)', 2013 (4) C.P.J. 349 wherein it was observed that in case, the flats were purchased for commercial purposes, then the complainant is not the consumer. Similar plea was taken by this Commission in the judgment "Naresh Kumar Vs. Chief Administrator, PUDA and others", 2015 (1) CLT 596.
11. As referred by the learned counsel for the opposite parties, it was held by the Hon'ble Apex Court in Amarjeet Singh's case (supra) that in case of auction, there was no hiring or availing of First Appeal No.705 of 2017 14 service by the person bidding at the auction. It has been stated in the said order as follows:-
"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."
Similar view has been taken by the Hon'ble National Commission in Jitendra Sharma's case (supra) after relying upon the judgment of Hon'ble Supreme Court in Amarjeet Singh's case (supra). The facts of the other cases referred to by the learned counsel for the opposite parties are also applicable to the facts of the present case. From the facts and circumstances of the case, it is clear that besides the sale of shop in question by auction, the opposite parties had not offered or promised to provide any other amenities/facilities to the auction purchaser. It is, therefore, held that the complainant in this case did not come under the category of 'consumer' as he had not hired or availed of any service from the opposite parties. The complaint is, therefore, liable to be dismissed on this ground alone. First Appeal No.705 of 2017 15
12. In view of our above discussion, all the above mentioned appeals are allowed and the impugned orders passed by the District Forum dated 27.7.2017 are set aside. Resultantly the complaints of all the complainants are dismissed. However, a liberty is given to the complainants to avail any other remedy available to them before any appropriate Forum/Court in accordance with law for the redressal of their grievances, if they so advised.
13. The appellants had deposited a sum of ₹25,000/- at the time of filing of each appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to appellant/opposite party No.1 i.e. Executive Officer, Improvement Trust, Kotkapura, District Faridkot (Punjab) in each case, as per the undertaking given by the appellants at the time of filing of the appeals, after the expiry of 45 days of the sending of certified copy of the order to them.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER January 24, 2018 Bansal