National Consumer Disputes Redressal
Yashwant Rai Puri vs Bhatinda Development Authority & 2 Ors. on 1 August, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3193 OF 2015 (Against the Order dated 13/07/2015 in Appeal No. 686/2014 of the State Commission Punjab) 1. YASHWANT RAI PURI SH. JAGDISH RAJ PURI, R/O ST. NO. 13, RADHA SWAMI COLONY FAZILKA DISTT. FAZILKA PUNJAB ...........Petitioner(s) Versus 1. BHATINDA DEVELOPMENT AUTHORITY & 2 ORS. THROUGH ITS CHIEF ADMINISTRATOR, BHAGU ROAD, BATHINDA PUNJAB 2. STATE BANK OF INDIA THROUGH ITS BRANCH MANAGER, BRANCH ABUL KHURANA TEHSIL AND DISTT. MUKTSAR PUNJAB 3. STATE BANK OF INDIA THROUGH ITS BRANCH MANAGER,NEAR SABJI MANDI FAZILKA DISTT. FAZILKA PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
For the Petitioner : In person For the Respondent : Mrs. Rachana Joshi Issar, Advocate
Dated : 01 Aug 2016 ORDER JUSTICE V.K. JAIN, PRESIDING MEMBER
The petitioner / complainant applied to the respondent No.1 Bathinda Development Authority, for allotment of a residential flat in BDA Enclave, Phase IV & V of Bathinda. The application was submitted through State Bank of India. The Earnest Money amounting to Rs.1,10,000/- financed by State Bank of India was also deposited by him with the Authority. A draw of lots for allotment of the plots was held after fourteen months. The complainant could not get any allotment in the said draw of lots, and therefore, the Earnest Money was refunded to him, along with interest amounting to Rs.5,453/- after 01 year 04 months and 22 days. According to him, the Authority earned interest by way of 10% per annum on the amount which it had collected from the applicants by keeping the said amount in the Fixed Deposits. The complainant therefore, approached the concerned District Forum, seeking payment of Rs.8,282/- that being the extra interest he had to pay to the bank, along with compensation etc.
2. The complaint was resisted by the respondent on several grounds.
3. The District Forum vide its order dated 05.3.2014, ruled in favour of the complainant and directed the Authority to pay the amount of Rs.8,282/- to the complainant along with interest @ 9% per annum, compensation quantified at Rs.3,000/- and cost of litigation quantified at Rs.2,000/-.
4. Being aggrieved from the order of the District Forum, the Authority approached the concerned State Commission by way of an appeal. Vide impugned order dated 13.7.2015, the State Commission allowed the appeal and consequently dismissed the complaint. Being aggrieved, the petitioner / complainant is before this Commission by way of this Revision Petition.
5. It is an admitted position that no plot was allotted to the petitioner/ complainant in draw of lots held by the Authority. The legal question which therefore arises for consider in this case is as to whether in the absence of allotment to him, the petitioner / complainant can be said to be a consumer of the Authority.
6. In Morgan Stanley Mutual Fund Vs. Kartick Das, (1994) 4 SCC 225, dealing with a person, who had applied for allotment, but to whom no allotment had been made, the Hon'ble Supreme Court, inter-alia held as under:
"Therefore, it is after allotment, rights may arise as per the contract (Article of Association of Company). But certainly not before allotment. At that stage, he is only a prospective investor (sic in) future goods. The issue was yet to open on 27.04.1993. There is not purchase of goods for a consideration, nor again could he be called the hirer of the services of the company for a consideration. In order to satisfy the requirement of above definition of consumer, it is clear that there must be a transaction of buying goods for consideration under Clause 2(1)(d)(i) of the said Act. The definition contemplates the pre-existence of a completed transaction of a sale and purchase. If regard is had to the definition of complaint under the Act, it will be clear that no prospective investor could fall under the Act".
7. In Punjab Urban Planning and Development Authority & Anr. Vs. Krishan Pal Chander, I (2010) CPJ 99 (NC), the complainant / respondent applied for allotment of land but no allotment was made to him. He approached the concerned District Forum by way of a complaint, which was allowed. Being aggrieved, the petitioner before this Commission approached the concerned State Commission by way of an appeal. The State Commission held the complainant to be a 'consumer'. Being aggrieved, the Development Authority approached this Commission by way of the revision petition. Setting aside the order passed by the fora below, this Commission held that the respondent was not a 'consumer' as no allotment had been made in his favour. When the learned counsel for the respondents in the said case sought to rely upon the decision of the Hon'ble Supreme Court in Lucknow Development Authority (supra), this Commission was of the view that what had been held in the said decision of the Hon'ble Supreme Court was that the deficiency in service either in construction of the building or any other defect would fall within the meaning of Clause (o) of Section 2 of the Act. This Commission was of the view that till the allotment of the flat, the respondent had not become the consumer.
8. In Delhi Development Authority Vs. Krishan Lal, First Appeal No. 486 of 2006, decided on 27.09.2011, the complainant/respondent had applied for allotment of a plot under Rohini Residential Scheme of DDA but no allotment was made to him for more than fifteen years. This Commission took the view that mere registration by a person in any scheme for allotment of plots or flats would not make such person a consumer within the meaning of Consumer Protection Act.
In Delhi development Authority Vs. Sandeep Khatri, Revision Petition No. 710 of 2014, decided on 25.08.2014, the respondent submitted application for allotment of a flat under housing scheme, 2006 and a flat was allotted to him in due course. The possession of the flat to him, however, was delayed. Alleging deficiency in service on account of delayed possession, he approached the concerned District Forum. The State Commission having ruled in his favour, DDA approached this Commission by way of a revision petition. Noticing that the complainant in that case had been allotted a ready built up flat on 'as is where is' basis and the DDA had not promised to render any service in respect of the subject flat to the complainant, it was held that he was not a consumer within the meaning of Consumer Protection Act.
9. A similar question came up for consideration of this Commission in Revision Petition No.3649 of 2014 decided on 29.1.2015. In that case, the complainant had applied to Delhi Development Authority for allotment of the residential flat but no allotment was made to them. Rather, they received a letter from the DDA, alleging violation of the terms and conditions of the Scheme by them and forfeiting a sum of Rs.1,50,000/- on account of the said breach. Being aggrieved from the forfeiture, they approached the concerned District Forum by way of a complaint, impleading Delhi Development Authority as well as the bank to which the applications were submitted by them. The District Forum having ruled in their favour, DDA approached the concerned State Commission by way of an appeal. The said appeal also having been dismissed, the DDA approached this Commission by way of a revision petition. Placing reliance upon the above referred decisions and allowing the revision petition, this Commission, inter-alia observed and held as under:
11. The legal proposition which emerges from the above rendered decisions of the Hon'ble Supreme Court is that a person, who is allotted a flat or a plot to be developed by a statutory authority such as Delhi Development Authority or Avas Vikas Parishad as well as a person, who is registered with such an Authority for the purpose of allotment of such a flat/plot and is awaiting allotment would be a 'consumer' within the meaning of Section2 (1) (d) of the Consumer Protection Act, 1986. If however, the flat/plot is sold by such a statutory authority by way of a public auction on 'as is where is' basis and such sale is not accompanied by an obligation to carry out any further development such as providing/augmenting infrastructural facilities viz. roads, sewerage, electricity, water facilities etc., the purchaser shall not be a 'consumer' within the meaning of Section 2(1)(d) of the said Act.
13. As far as a person who applies for allotment of a plot/flat is concerned, he will not be a 'consumer' within the meaning of Section 2(1) (d) of the Act, if neither any allotment is made to him nor he is registered for and awaiting such an allotment. Such a person cannot be said to have hired or availed the services of the concerned development authority in connection with housing. Mere submission of an application for allotment, which does not result either in allotment or registration and consequent inclusion in the awaiting list for such an allotment, does not confer upon him the status of a 'consumer' as defined under Section 2(1) (d) of the said Act.
10. For the reasons stated hereinabove, I hold that since no allotment was made to the complainant, he did not hire or avail the services of the Bathinda Development Authority for housing construction, which is a service as defined in the Consumer Protection Act. Consequently, he cannot be said to be a consumer of the said Authority. Hence, no ground for interfering with the orders passed by the fora below is made out. The revision petition is therefore, dismissed. It is however, made clear that dismissal of the revision and the complaint shall not come in the way of the petitioner / complainant approaching a Forum other than a Consumer Forum for the redressal of his grievance.
......................J V.K. JAIN PRESIDING MEMBER