State Consumer Disputes Redressal Commission
Dr.Chander Rekha vs Improvement Trust on 22 May, 2012
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.825 of 2008
Date of institution: 07.08.2008
Date of decision : 22.05.2012
Dr.Chander Rekha wife of Shri Tarsem Singh resident of Opposite Sandhu
Sweet Shop, Barnala, Tehsil and District Barnala through its attorney
Dr.Tarsem Singh Mittal.
.....Appellant
Versus
1. Improvement Trust, Barnala through its Executive Officer.
2. Improvement Trust, Barnala through its Chairman/Administrator.
.....Respondents
2.
First Appeal No. 841 of 2008
Date of institution: 11.08.2008
Date of decision : 22.05.2012
1. The Barnala Improvement Trust, Barnala through its Chairman.
2. The Executive Officer, Barnala Improvement Trust, Barnala.
.....Appellants
Versus
Dr.Chander Rekha wife of Shri Tarsem Singh resident of Opposite Sandhu
Sweet Shop, Barnala, Tehsil and District Barnala.
.....Respondent
First Appeal against the order dated 2.7.2008
passed by the District Consumer Disputes
Redressal Forum, Sangrur.
Before:-
Mr.Jagroop Singh Mahal, Presiding Judicial Member
Mr.Jasbir Singh Gill, Member Argued by:-
For the appellant : Sh.Tribhuwan Singla, Advocate For the respondents : None JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER This order will dispose of two appeals filed under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) First Appeal No.825 of 2008 2 against the order dated 2.7.2008 passed by the learned District Consumer Disputes Redressal Forum, Sangrur (in short the Act) i.e. First Appeal No.825 of 2008 filed by the complainant for enhancement of compensation and the First Appeal No.841 of 2008 filed by the OPs to set aside the impugned order and to dismiss the complaint. Since both the appeals are against the same order, these are being disposed of through this common order. Parties are being referred to in this order by their status as they enjoyed before the learned District Forum.
2. The contention of the complainant is that she was allotted Nursing home site by the OP in 22 acres scheme vide allotment letter dated 25.6.1998. The complainant claims to have approached the OP many times to get possession and demarcation and to provide basic amenities but the OP gave the possession only on 4.9.2003 but has not provided any basic amenities i.e. sewerage, parking place, parks, water supply, metal roads, street lights etc. On 20.11.2002, the complainant filed a complaint before this Commission which was decided vide orders dated 29.8.2005 allowing Rs.4 lacs as compensation on account of loss of interest on the money the complainant had deposited. Both the parties are said to have filed revision petitions (Appeals ?) against the said order. The case of the complainant is that since the basic amenities have not been provided though the amount deposited by them is being used by the OP, the public notice issued in the paper to resume the plots/sites on which construction has not been raised is illegal and void and is liable to be set aside. The complainant, therefore, prayed for directions to the OPs to provide basic amenities like sewerage, parking places, parks, water supply, street lights, metalled roads and to maintain them. They also prayed for interest @ 18% per annum on the amount deposited by them with OP and also a direction to withdraw the First Appeal No.825 of 2008 3 notice dated 31.8.2007 published in Ajit newspaper for resuming the plot if the construction was not raised till 31.12.2007. The complainant has also prayed for Rs.10 lacs as compensation for not being able to run the nursing home for want of basic amenities, Rs.5 lacs towards escalation of construction expenses Rs.1 lac for mental agony and litigation expenses and further not to charge non-construction fee.
3. On notice given to the OPs, they opposed the complaint admitting that the site was purchased by the complainant in an open auction and, thereafter, the allotment letter dated 25.6.1998 was issued to her. It was alleged that the complainant has purchased the plot for commercial purpose and she does not fall under the definition of a consumer. It was also alleged that the complaint is barred because earlier the complainant had filed a complaint with respect to this very plot which has since been decided by this Commission and against the order of which a revision petition is pending before the Hon'ble National Commission and, therefore, the second complaint is not maintainable. They have contended that all the basic amenities have already been provided at the spot; that the complainant was to raise construction in accordance with the terms of the letter of allotment but she did not and, therefore, the present complaint had been filed to evade payment of non-construction fee. It was prayed that the complaint be dismissed.
4. Both the parties were given opportunity to adduce evidence in support of their contentions.
5. After hearing the arguments of the learned counsel for the parties and perusing the record, the learned District Forum vide impugned order dated 2.7.2008 accepted the complaint. The complainant and the OP have challenged the same through these two separate appeals. First Appeal No.825 of 2008 4
6. We have heard the arguments of the learned counsel for the parties and have perused the record.
7. The first question involved, in this case, is that as to whether the complainant is a consumer, firstly, in view of the allegation that they have purchased the site for a commercial purpose and secondly, that it was purchased in an open auction which excludes the purchaser from the definition of a consumer. As regards the first ground, the complainant has mentioned in para 3 of the complaint that the nursing home site was purchased by her for earning her livelihood through self-employment. This contention was opposed by the learned counsel for the OP alleging that she is not the only person who would be employed there but she would run the hospital to earn profits by employing a number of persons such as compounders and other supporting staff. The fact that it would be run on large scale is clear firstly because the area of the plot is 686 square yards and had been purchased by the complainant for Rs.14 lacs as mentioned in the allotment letter Ex.R7. In sub para 4 of para 7 of the complaint, she has claimed compensation of Rs.10 lacs for the loss of income suffered by her due to her inability to run the nursing home and she prayed for Rs.5 lacs as compensation for escalation of construction cost. The magnitude of the amount claimed as compensation also shows that the object of the nursing home is not only self-employment but it is to earn profits on large scale. Where the profit is a motive, we are of the opinion that the activity involves commercial purpose as held in as "Harsolia Motors v. National Insurance Co. Ltd., 2005 CTJ 141 (CP) (NCDRC)". The Hon'ble National Commission held as under : -
"25. Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the First Appeal No.825 of 2008 5 words 'for any commercial purpose' it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But, in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose."
8. As regards the second objection that the auction purchaser is not a consumer, the matter has already been decided by the Hon'ble Supreme Court of India in case "U.T. Chandigarh Administration & anr. v. Amarjeet Singh & Ors., 2009 (2) CPC 6".. In that case also, exactly similar were the facts between the parties wherein for want of amenities, the auction purchaser were alleging that they were neither liable to pay instalments nor non-construction fee. The Hon'ble Supreme Court held that any grievance by the purchaser will not give rise to a complaint and or consumer dispute and the Fora under the Act has no jurisdiction to adjudicate the complaint by the auction purchaser/lessee against the owner holding auction of site. In case "Haryana State Agricultural Marketing Board & another v. Raj Pal, III (2011) CPJ 20 (SC)", the Hon'ble Supreme Court held that the allottees cannot postpone payment of instalments merely on the ground that some of the amenities were not ready. In view of these facts, the complainant does not fall under the definition of a consumer and, therefore, cannot seek relief through the Forum under the Act.
9. The contention of the complainant that the basic amenities have not been provided also cannot be accepted as correct. The OPs have First Appeal No.825 of 2008 6 mentioned in their reply that the water and sewerage connection was provided in 1994 and roads in 1997 whereas the allotment to the complainant was made on 25.6.1998. In order to contradict these conditions, the learned counsel for the OP produced a letter dated 20.4.2012 issued by the Public Information Officer-cum-Executive Officer of Improvement Trust, Barnala issued to Dr.Tarsem Singh Mittal to the effect that no parking has been constructed in front of the site and no water supply and sewerage line has been laid in front of the plot. There is, however, another letter dated 10.11.2008 issued by the Sub Divisional Engineer, Punjab, Water Supply and Sewerage, Sub Division, Barnala in which it was mentioned that the water and sewerage connection can be given from the line falling in between Surjit Sadan and LIC office whereas the sewerage was laid in the area on 18.12.1994. The mere fact that no water supply and sewerage line is in front of the plot does not mean that no water supply and sewerage connection can be given to the plot from the line which falls on its back. In this manner, this contention of the complainant that the basic amenities have not been provided is not correct.
10. In view of the above discussion, we are of the opinion that the learned District Forum has wrongly allowed the complaint which was liable to be dismissed. We, therefore, accept the appeal (First Appeal No.841 of 2008 titled as Barnala Improvement Trust v. Dr.Chander Rekha) filed by the OP, set aside the impugned order and dismiss the complaint. First Appeal No.825 of 2008 titled as (Dr.Chander Rekha v. Barnala Improvement Trust) filed by the complainant is, accordingly, dismissed. Parties are left to bear their own costs.
11. A copy of the order be placed on the file First Appeal No.841 of 2008.
First Appeal No.825 of 2008 7
12. Copies of the orders be supplied to the parties free of costs.
(JAGROOP SINGH MAHAL) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER May 22, 2012.
Paritosh