AMRITSAR IMPROVEMENT TRUST vs SANJAY KUMAR

PETITIONER was the O.P. before the District Forum where on a complaint filed by the respondent/complainant the complaint was allowed and then an appeal filed by the petitioner was also dismissed.

BRIEF facts of the case are that the complainant was allotted a shop-cum-flat purchased through an open auction held on 5.10.1995 for a consideration of Rs. 8.61 lakhs. After paying 25% of the amount, the possession of the site was to be given within 30 days and rest of the amount was to be paid in five half yearly instalments with rate of interest @ 12% p.a. By 25.11.1995 the complainant had deposited 25% but possession was not delivered. In the meantime the complainant asked the petitioner to provide basic amenities like approach road, drainage and sewage. The complainant paid all the instalments except the last in spite of not getting the possession. Yet when he did not get possession and amenities were not provided, the complainant filed complaint before the District Forum, where in spite of repeated notices, petitioner remained absent, hence proceeded ex parte. After perusing the material on record and hearing the arguments the District Forum directed the petitioner to deliver the possession within two months, complete the works and provide the amenities within 6 months and cost of Rs. 1,000/- and also directed the petitioner to not to charge interest on the last instalment. On two separate appeals filed by the petitioner and the complainant, the State Commission awarded compensation of Rs. 50,000/- and further cost of Rs. 2,000/- on the appeal filed by the complainant and dismissed the appeal filed by the petitioner with cost of Rs. 2,000/-. Hence this petition. The only argument advanced by the learned Counsel for the petitioner that if plot/house is disposed off through open auction the bidder is not a consumer. For this he relied on the judgment of this Commission in Allied (Garments) Exports Industries (Pvt.) Ltd. v. D.D.A., wherein it is held : "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 putting 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 properly at an auction. The original petition accordingly fails and is dismissed."

This plea was least expected from Public Body who professes to work for the people.

BE that as it may we see that two changes have taken place since then, one, Amendment in Consumer Protection Act, 1986 to include "housing construction" under Section 2(1)(o) and secondly the examination of whole case of ''Housing'' by the Hon''ble Supreme Court in Lucknow Development Authority v. M. K. Gupta, III (1993) CPJ 7 (SC) = (1994) 1 SCC 243. In this judgment after quoting the above mentioned provision Section 2(1)(o) observed that : "It is in three parts. The main part is followed by inclusive clause and ends by exclusionary clause. The main clause itself is very wide. It applies to any service made available to potential users. The words ''any'' and ''potential'' are significant. Both are of wide amplitude. The word ''any'' dictionary means ''one or same or all''. In Black''s Law Dictionary it is explained thus, ''word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "same" or "one" and its meaning in a given statute depends upon the context and subject-matter of the statute''. The use of the word ''any'' in the context it has been used in Clause (o) indicates that it has been used in wider sense extending from one to all." And goes on to observe that; "The test, therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility."

And goes on to observe further that : "When possession of property is not delivered within stipulated period the delay so caused is denial or service. Such disputes or claims are not in respect of immovable property as argued but deficiency in rendering of service."

IN view of changes brought about by these two citations, the order passed by the Commission in 1990 retains little value after the amendment in C.P. Act, 1980 referred to earlier judgment of the Hon''ble Supreme Court cited. In view of these changes, one view necessarily has to change. The test is not whether the said property is covered under scheme or not, but whether it is covered by the definition given out in 2(1)(o). We have no doubt that it is covered under this definition. Not giving possession after the complainant has fulfilled his part of terms of sale and not providing the basic amenities which were promised to be given are, in our view, certainly fall within the "deficiency of service". In the instant case 25% payment was made immediately after which, as per term of the sale, possession was to be given. The complainant had completed his part of the deal on 20.11.1995, but the possession has reportedly not been done on the flimsy ground that complainant has not paid the full amount. The terms of the sale is a matter of fact which has been gone into by both the lower Forums and found the petitioner deficient in service. In such a situation the petitioner cannot take shelter under a flimsy pretext that last instalment has not been paid. This is not what the sale arrangement was. What is most interesting is that possession has not been given even after almost seven years and yet the petitioner feels aggrieved by Rs. 50,000/- awarded as compensation in lieu of interest on the deposits. It is pity that the complainant is not before us, otherwise, we would have granted interest @ 18% from the date of deposits on the deposited amount. We find no merit in this petition which is dismissed with cost of Rs. 5,000/-.