Bangalore Development Authority vs Vasumathi

THESE two appeals arise out of one and the same order dated 27.6.1997 passed by II Additional District Forum, Bangalore Urban, in Complaint No. 3227/ 1993. By the said order, the District Forum directed the opposite party to grant an alternate site of the description referred to in the operative portion of the order, alongwith compensation of Rs. 5,000/- towards mental agony.

BEING aggrieved by the said order, the opposite party-BDA has preferred Appeal No. 495/1997. The complainant, being aggrieved by the fact that the District Forum has not awarded any amount towards the expenses incurred by her as a direct consequence of the alleged negligence of the opposite party, has preferred Appeal No. 521/1997. A few facts need to be stated for the disposal of these appeals : The complainant was a purchaser of corner site bearing Number 2009 at 2nd Phase, Sarakki Layout, in a public auction held by B.D.A. for Rs. 2,61,200/-. It appears that the possession certificate was given on 21.6.1990. Since it was noticed that the said site had been allotted to someone else even before the auction, B.D.A. it appears, gave her another site at B.T.M. Layout. It appears that the amount was also reduced to Rs. 2,23,391/-. We may point out here that this development took place after the complaint was filed. It is further noticed that there was problem even with that site. When a submission was made to B.D.A. with reference to the problem relating to the second site, the B.D.A. is shown to have allotted still another site on 23.3.1996. However, even before the second site was allotted, the complainant had approached the District Forum, praying for direction to the opposite party-B.D.A. to give her alternate site alongwith compensation as prayed for by her.

The opposite party, no doubt, was represented by an Advocate before the District Forum. However, the opposite party did not file any version before the District Forum, much less its affidavit.

THE District Forum, on the basis of the materials on record and for the reasons reflected in its impugned order, took the view that there was deficiency in service. In the result, the District Forum directed the opposite party-B.D.A. to hand over an alternate site to the complainant as reflected in the operative portion of the order. THE District Forum also directed the opposite party to pay compensation of Rs. 5,000/- towards mental agony. Being aggrieved by the same, both the parties have preferred the aforesaid two appeals as stated hereinabove.

IN the course of arguments, Mr. Ranganath, representing the appellant in Appeal No. 521/1997, submitted that the question relating to the direction to give alternate site does not survive any more for consideration. Mr. Kulkarni, the learned Counsel appearing for the appellant in Appeal No. 495/1997, also submitted that having regard to the fact that possession has already been given by the B.D.A. with reference to the third site, the question relating to the direction to give alternate site does not survive any more. Under these circumstances, the only aspect which would fall for consideration is as to whether the District Forum was justified in directing the opposite party to pay compensation of Rs. 5,000/- towards mental agony and/or the District Forum was required to give also the amount sought for by the complainant under different heads. The main thrust of the submission made by Mr. Kulkarni is that the complaint filed by the complainant before the District Forum was not maintainable inasmuch as the complainant is not a ''Consumer'' at all. Dilating on this aspect, it was argued by Mr. Kulkarni that the complainant was only a purchaser of a site in an auction. In that view of the matter, there was no question of the complainant hiring the services of the opposite party. In this connection, the learned Counsel Mr. Kulkarni has relied on the decision dated 11.7.1990 rendered by the Hon''ble National Commission in O.P. No. 45/1990. (NCDRC) Reliance is also placed on the decision of this Commission in Complaint No. 22/1991 decided on 23.3.1991 (KSCDRC) Reliance is also placed on the decision in Shiela Constructions Pvt. Ltd. v. Nainital Lake Development Authority & Ors., reported in III (1996) CPJ 11 (NC). Pressing into service these decisions, in particular, Mr. Kulkarni contended that the complaint itself was liable to be dismissed on the ground that it is not maintainable and that therefore the question of deficiency in service would not arise for consideration. On the other hand, Mr. Ranganath contended that there is no distinction between immovable and movable property in relation to deficiency in service when the question for consideration is, as to whether there is deficiency in service. In other words, what Mr. Ranganath wanted to contend is that it is Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 (for short ''the Act'') which will hold the field in such a situation. In this connection, Mr. Ranganath has placed reliance on the decision of the Hon''ble Supreme Court in Lucknow Development Authority v. M.K. Gupta, reported in III (1993) CPJ 7 (SC)=AIR 1994 SC 787. He has also relied on the decision in Shiela Constructions Pvt. Ltd. v. Nainital Lake Development Authority & Ors., reported in III (1996) CPJ 11 (NC)=1997 (5) CTJ 137. {Corresponding to the decision reported in 1996 (3) CPR 136 and relied on by Mr. Kulkarni}. Reliance is also placed on the decision in Punjab Tourist Development Corporation Ltd. & Anr., I (1997) CPJ 26 (NC) reported in. Pressing into service these decisions, Mr. Ranganath contended that the District Forum ought to have awarded to the complainant the refund of registration expenses incurred by the complainant in connection with the registration of the first site and other expenses including the taxes paid by the complainant in relation to the first site. Making his submissions on these lines, Mr. Ranganath contended that the order passed by the District Forum deserves to be modified.

WE have given our anxious consideration to the submissions made on either side.

IT is not in dispute that what is purchased by the complainant is a corner site in an auction sale. In other words, it was a case of out-right sale for consideration. We have already alluded to the rival submissions with reference to this aspect. In our view, this aspect will have to be resolved in the context of the various decisions, pressed into service before this Commission. IT would be indeed, in fitness of things, to refer to the decision of the Hon''ble Supreme Court at the very outset, which is pressed into service by Mr. Ranganath. At para 3 of the said judgment, the Hon''ble Supreme Court, among other things, has observed that the jurisdiction of the Commission could not be ousted on the ground that even though it was service it related to immovable property. We bow down to the observation of the Hon''ble Supreme Court as is duty-bound. However, it is necessary to remember that before a person can be said to be a ''Consumer'' in relation to an immovable property, it is necessary that he should hire the services of the opposite party. What is therefore relevant for consideration is as to whether the complainant, in the instant case, can be said to have hired the services of the opposite party. Insofar as this aspect is concerned, we are guided by certain direct decisions of the Hon''ble National Commission. In the decision in Allied (Garments) Exports Industries Pvt. Ltd. v. DDA, reported in 1986-94 National Commission & SC on Consumer Cases 152, the Hon''ble National Commission, in its short judgment, has held as under: "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 property at an auction. The original petition accordingly fails and is dismissed."

The observation of the National Commission is self-explanatory and it is not necessary for us to risk a repetition by dilating on the same.

Further, in the very decision cited before us by Sri Ranganath, viz., in the decision in Shield Constructions Pvt. Ltd.''s case (supra) the Hon''ble National Commission has held that there is no hiring of services for consideration when it is an out-right sale of immovable property in an auction. Further, this very aspect has been considered by this Commission in Complaint No. 22/1991. This Commission, in its order in the said complaint, has held as under: "Thus, it is clear that the complainant is the purchaser of the corner site in the public auction held by the respondent No. 1. Hence, it is clear that he is neither a purchaser of goods for consideration nor hirer of services for consideration. Therefore, he will not be a consumer and his complaint cannot be entertained by this Commission. The said view finds support from the decision of the National Commission in Allied (Garments) Exports Industries Pvt. Ltd. v. D.D.A., Original Petition No. 45 of 1989 decided on 11.7.1990. In that view of the matter, the complaint is dismissed. No costs."

IN our view, the observations made by the National Commission in two decisions and the observations made by this Commission on an earlier occasion are clear on the aspect that whenever a property is purchased in an auction by way of an out-right purchase, the question of hiring of services does not arise at all. Mr. Ranganath, however, has relied upon certain other portions reflected in the judgment of the National Commission (1997 (5) CTJ 137). However, after going through the portion, particularly at para 8 therein which are underlined by Mr. Ranganath on the xerox copy of the said judgment to supply the emphasis, we are of the view that the said observation at para 8 has no nexus relating to the question as to whether there is hiring of services in the case of sale of a plot in auction. Mr. Ranganath however vehemently contended that it is certainly permissible to read into the decision of the Hon''ble Supreme Court in Lucknow Development Authority''s case, n proposition that even when a property is purchased in the auction, the same would amount to allotment of property. Dilating on this aspect, it was contended by Mr. Ranganath, that mere was no difference between a purchase of a corner site and the allotment of a property by the B.D.A. After reading the judgment of the Hon''ble Supreme Court in Lucknow Development Authority''s case, we are unable to persuade ourselves to reach a conclusion in conformity with the submissions made by Mr. Ranganath. Further, having regard to the direct decision of the Hon''ble National Commission on the point, it is not necessary for us to go beyond that unless, of course, there is an observation to the contrary by the Hon''ble Supreme Court. Under these circumstances, having regard to the fact that we are bound by the-decision of the National Commission, on the question in controversy, the same will have to be followed by us. For the reasons stated hereinabove, it is clear that the complainant before the District Forum cannot be construed as a ''consumer''. If she is not a ''consumer'' she is not entitled to maintain a complaint before the District Forum. Mr. Ranganath, however, submits that even if this Commission comes to the conclusion that the complainant is not a ''consumer'', a clear finding will have to be given by this Commission on the question relating to the negligence of the B.D.A. with reference to the sale of the site back in the year 1989. We are in a position to appreciate the anxiety of Mr. Ranganath, who has argued the case on behalf of his daughter. We have also perused the observations made by the District Forum with reference to the aspect immediately under consideration. However, when we have taken the view that the complaint is not maintainable and that therefore the District Forum has no jurisdiction to entertain the said complaint, the question of giving any finding with reference to any other aspect does not arise. In that view of the matter, notwithstanding the persuasive submission made by Mr. Ranganath that a finding to that effect is required to be given by this Commission, we have restrained ourselves from giving any finding on that aspect when the Commission or the Forum constituted under the Act has no jurisdiction to entertain a complaint like the one which was presented before the District Forum.

FOR the reasons stated hereinabove, the appeal preferred by the B.D.A. deserves to be allowed and the appeal preferred by the complainant deserves to be dismissed. At the same time, we make it clear that the third site (No. 1057) which is given to the complainant at B.T.M. Layout stands confirmed. As a matter of fact, Mr. Kulkarni, the learned Counsel appearing for the B.D.A. submitted that it is not the intention of the B.D.A. to take back the site front the complainant. In that view of the matter, it is clear that the allotment of third site at B.T.M. Layout by the B.D.A. stands confirmed by the statement made before us at the bar. Therefore, the question relating to the direction to the B.D.A. to give alternate site to the complainant does not survive for consideration. Before we proceed to pass the final order, we would like to make it clear that it is certainly open to the complainant to approach the appropriate Court for the reliefs like compensation, etc. Further, we are also of the view that the question relating to limitation is also not likely to hit the complainant in the context of the decision of the Hon''ble Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute, reported in AIR 1995 SC 1428 at para 26.

IN the result, we pass the following : ORDER The order passed by the District Forum, directing the opposite party-B.D.A. to give an alternate site to the complainant does not survive for consideration since the B.D.A. has already given the site bearing number 1057 at B.T.M. Layout to the complainant. However, the order of the District Forum, directing the B.D.A. to pay an amount of Rs. 5,000/-by way of compensation to the complainant, is set aside since we have taken a view that the complaint itself is not maintainable. IN view of the same, the appeal preferred by the complainant stands dismissed. We make no order as to costs. Both the appeals are disposed of as above, subject to the observation made hereinabove. The original judgment shall be kept in Appeal No. 495/1997 and a copy thereof shall be kept in Appeal No. 521/1997. Appeal 495/1997 allowed. Appeal 521/1997 dismissed.