Devinder Kumar Anand and others vs Haryana Urban Development Authority and another

The three revision petitions as detailed in the heading above, have been filed challenging the order dated 8.7,2011. passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (hereinafter referred to as ''State Commission'') in F.A. No. 482 of 2006, Smt. Sudesh Kumari and Others v. Haryana Urban Development Authority, F.A. No. 843 of 2006, HUDA v. Devinder Kumar Anand and Others and F.A No. 465 of 2006, Devinder Kumar Anand and Others v. HUDA . The State Commission vide this order, accepted Appeal No. 843 of 2006 filed by HUDA and set aside the order passed by the District Consumer Disputes Redressal Forum, Karnal in C.C No. 221 of 2004 dated 31.1.2006 and dismissed the said consumer complaint. A copy of this order be placed on each of the files in the three revision petitions. 2. The factual matix of the case states that the Estate Officer, HUDA, Kamal held an auction of booths on 23.12.2003, situated in Sector-8, Urban Estate, Karnal. The complainants, Devinder Kumar Anand,his wife Monika, Janak Raj and Smt. Sudesh Kumari gave the highest bid in the auction for booth Nos. 97 and 98 in Sector-8, Karnal. Devinder Kumar Anand signed the bid sheet as a token of completion of the bid in their favour. As per the terms and conditions of the bid, 10% of the total consideration I or both the booths amounting to Rs. 1,74,800 was deposited with HUDA (out of which Rs. 87,000 was meant for booth No. 97 and Rs. 87,800 for booth No. 98 being 10% of total consideration Rs. 8.00 lakh and Rs. 8.78 lakh respectively). Out of this amount, a total sum of Rs. 1,40,000 had already been deposited h as security amount. It is alleged that the Estate Officer, HUDA issued an allotment letter for one booth only, bearing No. 97 through Memo No. 919 dated 4.2.2004, but the said letter was issued in the name of three persons only and the name of one complainant Sudesh Kumari seems to have been left out inadvertently. The Estate Officer asked the complainant to deposit a sum of Rs. 1,30,500 as 157o amount for the said booth within a period of 30 days in accordance with the terms and conditions of the allotment. However the complainants sent a legal notice to HUDA vide letter dated 1.3.2004, asking them to amend their allotment letter Consequently, HUDA issued Memo No. 5471 dated 11.3.2004, saying that the name of Sudesh Kumari, w/o Janak Raj had been added in the allotment letter and they also issued a revised allotment letter which included her name as well. On the other hand, the allotment for booth No. 97 was cancelled by HUDA vide their letter dated 4.3.2004 and amount of Rs. 87,000 in respect of booth No. 97 was ordered to be forfeited, taking the plea that the allottees had failed to deposit 15% of the allotment money within time. The case of the petitioners/complainants is that once the allotment letter was revised on 11.3.2004, the said period of 30 days for the deposit of 15% of the cost of the booth should have started from 11.3.2004 only. The cancellation of booth No. 97 made by HUDA was, therefore, not justified. The petitioners have also stated that they prepared a bank draft dated 12.4.2004, bearing No. 821469 from the Bank of Punjab Ltd., Karnal for an amount of Rs. 1,30,500 and deposited it with HUDA. The HUDA prepared a receipt No. 42674 dated 12.4.2004 and the same was signed, but it was cancelled later and the tendered amount was not accepted. The case of the petitioner is that the action of HUDA in cancelling the allotment of booth No. 97 was therefore not justified. 3. Regarding booth No. 98, the stand taken by the HUDA is that out of an amount of Rs. 87,800 received by them, Rs. 20,000 was meant for booth No. 404, Sector-4, Kamal for which the complainant Devinder Kumar had also given the bid. However, since the complainants failed to deposit 107. for the amount for booth No. 404, Sector-4, Karnal, they cancelled the bid for booth No. 404 and forfeited the amount of Rs. 20.000. In this way, the amount deposited for booth No. 98 was left as Rs. 87,800 minus Rs. 20.000, equal to Rs. 67,800. The HUDA sent a letter dated 24.3.2004, saying that sum of Rs. 20,000 more should be deposited with them, failing which they shall take steps to cancel the bid for booth No. 98. On the failure of the complainants in depositing further amount of Rs. 20,000, HUDA forfeited a sum of Rs. 20,000 from Rs. 67,800 as well, and refunded an amount of Rs. 67,800 - Rs. 20,000, equal to Rs. 47,800 through cheque No. 384293 dated 20.4.2004. The said cheuqe was not encashed by the complainants as per their version and admitted by HUDA also. Consequently, the allotment letter for booth No. 98 was not issued. The stand of the complainant is that they never made any bid for booth No. 404 and the entire amount of Rs. 87,800 was made for booth No. 98 only and hence, the action of HUDA in transferring the amount of Rs. 20,000 for the bid for booth No 404 v/as totally unwarranted The forfeiture of Rs. 20,000 plus Rs,20,000 equal to Rs,40,000 of HUDA therefore, was not called for and they have indulged in deficiency of service towards the complainants The complainants stated that booth Nos. 97 and 98 both should be allotted to them. 4. The District Forum after taking into account the contentions raised by the parties, passed an order on 30.1.2006, directing the OP-HUDA to issue letter of allotment to the complainants relating to booth Nos. 98 within 30 days of the receipt of the said order. However, the District Forum upheld the cancellation of booth No. 97 and forfeiture of earnest money of Rs. 87,000 deposited for the said booth. 5. Being aggrieved against the said order, the complainants as well as HUDA challenged Ore same before the State Commission by filing separate appeals. The State Commission accepted the appeal filed by HUDA and dismissed the consumer complaint in question on the plea that the said booths had been taken in auction and hence, the complainants were not ''consumers'' under Section 2(d) of the Consumer Protection Act, 1986. The State Commission relied upon the judgment of the Hon''ble Supreme Court in U.T, Chandigarh Administration and Another v. Amarjeet Singh and Others, as reported in II (2009) SLT 736=11 (2009) CPJ 1 (SC)=(2009) 4 SCC 660 in support of the view taken by them. 6. Being aggrieved against the order of the State Commission, these revision petitions have been filed before us by the complainants 7. At the time of arguments before me, it was contended by learned Counsel for the petitioner that the judgment given by the Hon''ble Apex Court in U.T. Chandigarh Administration and Another v. Amarjeet Singh (supra) was not applicable to the facts of the present cases. In support of his arguments, he cited the orders made by this Commission in Rajil Khod v. HUDA, Hisar in R.P. No. 729 of 2011, decided on 18.11.2011 and HUDA v. M/s. Suneja and Sons in R.P. No. 2951 of 2009 decided on 18.8.2011, saying that the National Commission had clearly differentiated in these two orders that the judgment of the Hon''ble Apex Court was not applicable in the situation involved in these two cases. In the present case as well, the facts and circumstances indicate that the view taken in U.T. Chandigarh v. Amarjeet Singh (supra) is not applicable. The order passed by the State Commission was, therefore, not based on a correct appreciation of the facts and circumstances on record. The learned Counsel also stated that for booth No. 97 as well, a defective allotment letter was issued by HUDA which was later on corrected by them The time allowed for depositing of 15% of the money should have started from the date of carrying out such correction. The present petitions should, therefore, be accepted and t he consumer complaint in question allowed. 8. Per contra, the learned Counsel appearing for HUDA stated that the order passed by the Hon''ble Apex Court had an overriding effect on the views expressed by the National Commission in the two eases quoted by the petitioners. The order of the State Commission was therefore, in accordance with law and should be upheld. 9. The main issue that merits consideration in the present case is whether the view taken by the State Commission that the complainants are not ''consumers'' relying upon the judgement of Hon''ble Apex Court in U.T. Chandigarh Administration and Another v. Amarjeet Singh (supra) is in accordance with law or not. In this regard, it shall be worthwhile to quote the relevant portion of the said judgment as below. "Where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser/lessee participates in the auction after having an opportunity of examining the site, the bid in the auction is made keeping in view the existing situation, position and condition of the site. If all amenities are available, he would offer a higher amount If there are no amenities, or if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction. Once with open eyes, a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment, or the ground rent, on the ground that the site suffers from certain disadvantages or on the ground that amenities are not provided. 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 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." 10. A plain reading of the above judgment indicates that the Hon''ble Apex Court took the view that where public auction is held without assuring any specific particular amenities and the purchaser/lessee participates in the auction, fully knowing the amenities available on the ground, he does not have any right to agitate the matter in future on the ground that certain amenities were not provided. The Hon''ble Court took a view'' that the bid price offered shall depend upon the facilities/amenities provided ''as on where is basis''. The said purchaser or lessee will not have any reason for complaint thereafter and hence, any grievance by such person shall not give rise to a consumer dispute. The facts involved in the present case are entirely different because the issue involves sending the allotment letters pursuant to the said public auction. There is no demand for any additional facilities or amenities being made by the complainants. The only point to be decided is whether the auction by HUDA in cancelling the allotment of one booth and not issuing the allotment of another booth was justified or not The position has been made very clear in the orders passed by this Commission in Rajil Khod v. HUDA, Hisar (supra) in which it has been held that the auction purchaser will certainly be a ''consumer'' in accordance with Section 2(1 )(d)(ii) of the Consumer Protection Act, 1986, because OP is required to provide the promised service to the complainant. The view taken by the State Commission, therefore, is perverse in the eyes of law as the State Commission failed to differentiate the facts involved in the present cases and those in the case U.T. Chandigarh Administration and Another v. Amarjeet Singh and Others (supra). The order of the State Commission deserves to be set aside, therefore. 11. The admitted facts are that the four complainants participated in the proceedings for auction of booths by the HUDA in Sector -8, Kamal and that they deposited a total sum of Rs. 1,74,800 with HUDA In the written reply filed by HUDA, it has been stated that the complainants gave bid for three booths i.e. for booth No. 97 costing Rs. 8.70 lacs, for booth No. 98 costing Rs. 8.78 lacs and for booth No. 404 in Sector-4, costing Rs. 6.82 lacs. A bidder is required to deposit 10% of the value of the booth before the auction. The total value of booth Nos. 97 and 98 comes to Rs. 17.48 lacs, 10% of which comes to Rs. 1,74,800. Had the complainants participated in the auction for booth No. 404 as well, HUDA should have asked them to deposit 10% of the money for booth No. 404 as well, it is not understood how HUDA asked them to participate in the auction for booth No. 404 as well, without making them deposit 10% of the amount for that booth. The District Forum in their order examined the bid sheets produced by HUDA before them and came to the conclusion that the complainants never participated in the auction for booth No. 404, Sector-4, Karnal. The District Forum also concluded that OP-HUDA had wrongly adjusted Rs. 20,000 out of the bid money relating to booth Nos. 97 and 98, Sector-8, Urban Estate, Kamal. The auction of the HUDA for forfeiting the sum of Rs. 20,000 stating that it was meant for booth No. 404, Sector-4, Karnal and that the complainants failed to deposit the rest of the money, is not in order. I have no reasons to disagree with the conclusion reached by the District Forum that the sum of Rs. 20,000 was meant for booth No. 98 only. Having said so, the stand taken by the HUDA that they asked them to deposit a further sum of Rs. 20,000 to complete the amount of Rs. 87,800 for booth No. 98 was totally unwarranted. The action of HUDA in forfeiting sum of Rs. 20,000, saying that it was meant for booth No. 404 and forfeiting another sum of Rs. 20,000 saying that the balance money for booth No. 98 was not deposited is uncalled for and hence, there is no reason to disagree with the finding of the District Forum that HUDA should have issued allotment letter for booth No. 98 to the complainant. 12. Insofar as booth No. 97 is concerned, the facts on record speak for themselves that the HUDA issued a wrong allotment letter dated 4.2.2004 in favour of three complainants, whereas they should have issued the same in favour of four persons. When the complainants sent legal notice to them which was received by HUDA on 1.3.2004, they issued the corrected allotment letter dated 11.3.2004 in favour of four complainants. It is not understood, therefore, how they cancelled the allotment of booth No. 97 on 4.3.2004 saying that the complainants had failed to deposit the balance 15% of the amount of the bid within a period of 30 days from the date of their original defective allotment letter dated 4.2.2004. This action of HUDA reflects a total deficiency in service by them towards the complainants because on one hand, they are issuing the revised allotment letter to them on 11.3.2004 and just one week before, they cancelled the said allotment. The complainants are, therefore, entitled for the allotment of booth No. 97 as well. 13. Based on the aforegoing discussion, it is quite clear that the OP-HUDA have indulged in huge deficiency in service towards the complainants by wrongful cancellation of one of the booths and not issuing the allotment letter for the second booth. The present revision petitions are, therefore, allowed. The order passed by the State Commission is set aside and the order passed by the District Forum is modified with the direction that the OP-HUDA shall issue allotment letters for booth Nos. 97 and 98 to the complainants and such allotment shall be governed by the terms and conditions as were prevalent on the date of the auction. Needful shall be done by the OP-HUDA within six weeks of the receipt of this order. 14. There shall be no order as to cost. Revision Petition allowed.