Faqir Chand Gulati vs UPPAL AGENCIES PVT. LTD.

THE present appeal has been filed by the appellant under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') assailing the order of the District Forum No. II dated 10.5.1996, passed in Complaint Case No. 1866/96 - entitled Sh. Faqir Chand Gulati v. M/s. Uppal Agencies Pvt. Ltd. & Anr.

THE relevant facts in brief are that the complainant was the owner in occupation of the premises built on free-hold plot of land, measuring 308 sq. yard, bearing No. L-3, Kailash Colony, New Delhi-110048. THE appellant and the respondents entered into a ''Collaboration Agreement'' (hereinafter referred to as ''the Agreement''), dated 17.5.1991. In terms of the said Agreement the respondents were to demolish the existing structure and in its place were to raise a three storey building, at their own costs. In lieu of the appellant''s providing the plot of land, the respondents were to allocate, the entire ground floor alongwith a servant room, in the proposed building, to be raised on the said land, as well as were to pay a non-refundable amount of Rs. 8,00,000/- to the appellant. THE remaining portion of the building, i.e. first floor and the second floor including the servant room were to fall to the share of the respondents, who were given the right to either retain or sell the said first and second floors to any third party. In pursuance of the abovesaid Agreement the building was constructed and the appellant was also put in possession of the portion allotted to him as well as was handed over a cheque for the amount of Rs. 8,00,000/-. However, certain disputes arose between the parties and thereafter the complainant filed a complaint under the Act, before the District Forum praying for the following reliefs/directions to the respondents : (i) to return original sale deed and other connected papers/documents relating to property No. L-3, Kailash Colony, New Delhi-110048; (ii) to supply C and D Forms to be obtained by the respondents from MCD or other Authorities to the appellant; (iii) to supply to the complainant Security Deposit Receipts for installation of electricity meter; and (iv) to pay a sum of Rs. 4,266.64 paise, to the complainant being charges paid to DESU for change of electricity meters.

The respondents in their reply/written version filed before the District Forum took several preliminary objections regarding the maintainability of the complaint under the Act, and also offered to redress grievances of the complainant in the complaint, regarding return of original documents as well as Security Deposit Receipts for installation of electricity meter and also expressed their willingness to pay Rs. 4,266.64 paise to the appellant on his giving certain undertakings, as requested for by the respondents. Since the appellant refused to give undertaking as desired by the respondents the matter was decided on merits and the District Forum dismissed the complaint of the complainant on the preliminary ground that the case of the complainant being based on the ''Collaboration Agreement'' was not maintainable under the Act, as the said Agreement provided for a specific remedy in terms of Clause 23 for specific performance of the Agreement and as such, the said Agreement could not be construed as a contract for performance of a ''service'' hired or availed of for consideration as defined in Section 2(1)(d)(ii) of the Act, and thus the complaint was not maintainable under the Consumer Protection Act.

The appellant aggrieved by the said order, has filed the present appeal before us. On notice the respondents have put in their appearance through Mr. Arun Mohan, Senior Advocate with Mr. A.H. Narang, Advocate.

WE have carefully perused the documents/material placed on record, as well as, have heard the detailed arguments addressed on behalf of both the parties. In view of the pleadings and documents/material on record as well as the contentions advanced at the Bar on behalf of both the parties, the following questions arise for our consideration in the present appeal : (1) Whether the appellant is a consumer under Section 2(1)(d)(ii) of the Act ? (2) Whether the respondent is a provider of ''services'' as defined in Section 2(1)(o) of the Act ? (3) If the answer to the above propositions is in the affirmative, whether the appellant is entitled to any relief ?

Questions 1 and 2 : Since both the abovementioned questions are inter-connected, we would be considering the same together. In order to decide the question as to, whether the appellant, in the given facts was a ''consumer'' as defined in Section 2(1)(d)(ii) of the Act, it has to be established that the appellant had hired or availed of the ''services'' of the respondent for consideration. The Agreement dated 17.5.1991 would provide a key to the said question. According to Clauses (2) and (3), of the Agreement, read together, the appellant was to place at the disposal of the respondents, the vacant possession of the plot of land, with structure thereon, and the respondents were to demolish the same and construct a residential building consisting of ground, first and second floor, at their own costs, expenses and resources. Clause (6) of the Agreement further determined the rights and liabilities of the parties in the new building to be so raised, as well as, the land on which it was to be built. The said clause reads as under : "6. (a) That in lieu of the owner providing the plot of land, the owner shall be allocated the undermentioned portion of the proposed building : (i) The entire ground floor comprising three bedrooms with attached bathrooms, one drawing-cum-dining, one store room, one kitchen and one servant room under overhead water tank on rear terrace. (ii) In all there shall be space for parking three Indian cars, intended for parking one car by each floor owner/occupant of ground, first and second floors. (b) The remaining part of the building, i.e., first floor and second floor (including servant rooms) shall belong to the builders as their share in lieu of the payment made/to be made as per Clause 8 hereto, cost of construction of the entire building, initiative and all other services rendered by them in connection therewith. The owner and the builders shall also have undivided, indivisible and impartible proportionate ownership rights of land in the said building. Front half of terrace shall be for exclusive use by the owners/occupants of second floor. Overhead water tank and three servant rooms shall be constructed in the rear portion of terrace. If at any stage further construction over second floor and above is allowed and undertaken only after due sanction by the concerned Authorities, owners of all the floors shall have equal rights for construction in which case the rights for use/construction of third/top floor terrace shall be on the same basis as for second floor terrace."

THUS it becomes apparent that the nature of transaction envisaged in the Agreement was not where the appellant had hired the ''services'' of the respondent, for constructing his house for consideration of amount to be realised by selling of first and second floors, but a ''contractual obligation'', in the nature of a joint venture, whereby the plot of land was to be provided by the appellant on the one hand and the cost of demolishing the existing structure and raising a three storied building was to be borne by the respondents on the other hand, and the building so constructed was to be shared as per Agreement and both the appellant and the respondents were to have an indivisible and impartible proportionate ownership rights of land underneath the said building, which establishes the fact that both the parties to the Agreement were co-owners of the land and premises. Clause (7) further reinforces the said view and the use of the word ''share'' is of utmost significance : "7. That in consideration of this Agreement, the builders shall be entitled to own, retain, sell or agree to sell their share of the building as allocated hereinabove, in parts or whole, as deemed desirable by them. Likewise, owner will be entitled to own, retain or sell his share of the proposed building as allocated hereinabove. It is in consideration of this agreement for development and construction that the owner agrees to transfer his interest in the land (308 sq. yds.) to the builders or their nominee(s). The owner shall complete requisite formalities and execute all such documents as may be required for effecting transfer of builders share of the subject property in favour of builders or their nominee(s)."

Thus we see that ''consideration'' has changed hand both ways. The appellant has received the ownership rights in the ground floor plus Rs. 8,00,000/- (Eight lakhs) whereas respondent has received the ownership rights in the first and second floor as well as the land underneath the building. Even the very nomenclature of the Agreement as "Collaboration Agreement" is suggestive of the intent of the parties. The dictionary meaning of the word "collaborate" is to come together; to aid or to co-operate; which in itself reflects that both the parties intended to come together to co-operate in a joint venture on sharing basis. Therefore, there was no element of hiring of services simplicitor in the facts of the present case and as such neither was the appellant a ''consumer'' nor was the respondent a provider of ''service'' under the Act. In fact Clause 23 of the Agreement provides for a specific remedy in case of failure/default/defect on the part of any party, by way of specific performance of the agreement, which further dispels the idea that the dispute in the present case could fall within the ambit of the Act, as a consumer dispute.

THE appellant has placed reliance on two decisions of the National Commission in support of his case, Dr. Rameshchandra, Ramniklal Shah and Smt. Ila Rameshchandra Shah v. Lata Construction & Ors., reported as I (1996) CPJ 81 (NC); and P.R. Menon v. M/s. P.A. Construction, reported as III (1995) CPJ 77 (NC). In both these cases the complainants had purchased flats built by the builder after paying the sale price, and it was held that the complainants were ''consumers'' within the meaning of the Act. However the facts of the present appeal are entirely different, as the land belonged to one party and the other party had to raise construction by using its funds and resources and thereafter both were to obtain ownership rights on sharing basis, in the land and building raised thereon.

THE same proposition of law came up for consideration before the National Commission in case - entitled C. Narshimha Rao v. K.P. Neela Kundan & Anr., reported as I (1994) CPJ 160 (NC), wherein, on similar facts it was held that the dispute did not fall within the ambit of the Consumer Protection Act, 1986. THE said decision of the National Commission was relied upon by this Commission in case Har Swaroop Gupta & Ors. v. M/s. Kailash Nath and Associates, reported as II (1995) CPJ 275. THE facts of the said case were also similar to the facts of the present case, as the parties had entered into a contract for the construction of flats on the plot of land owned by the complainant, with the agreement that the built-up area would be shared by both the parties in the proportion as mentioned in the agreement entered into between the parties in that case. It was held by this Commission in the case of Har Swaroop Gupta (supra), that such an agreement does not amount to rendering of services on the part of the builder and cannot be adjudicated upon under the provisions of the Act. Therefore, in view of the above decisions we uphold the view taken by the learned District Forum that the present dispute does not fall within the ambit of the Act, as the appellant is not a ''consumer'' and the respondent is not a provider of ''services'' under the Act. Question 3 :

However, at this stage it would be pertinent to point out that keeping in view the old age of the complainant, efforts were made by this Commission to have the matter settled amicably between the parties and the respondents were requested to explore the possibility of providing the reliefs as claimed by the complainant in his complaint. The respondents also assured that most of the grievances of the appellant had already been redressed but despite the same the appellant was dissatisfied. Therefore, the present appeal, is being decided on merits.

THOUGH we have held that the present dispute is not covered under the provision of the Act. However, without going into the technicalities of the matter even on merits the appellant is not entitled to the reliefs claimed as all the four reliefs prayed for by the appellant, have already been complied with by the respondents inasmuch as the documents relating to the property No. L-3, Kailash Colony, New Delhi-110048 alongwith original sale deed have already been returned to the appellant by the respondents. The Security Deposit Receipts for installation of electricity meters as well as the cheque of Rs. 4,266.64 paise as charges paid to DESU for change of electric meter have also been handed over to the appellant by the respondents. The correctness of the said facts was admitted by the appellant during the course of arguments. The sole point of controversy remaining in the present appeal is non-supply of C and D Forms by the respondents after obtaining the same from the MCD. However, in this regard Clause (12) of the ''Collaboration Agreement'' is very relevant : "That the Builders shall apply for completion certificate to the Competent Authority and be liable to pay penalty, if any, imposed/levied on the deviations, if any, made in the said building."

(underlined by us) In view of the above clause, the respondents'' duty was only to the extent of applying for C and D Forms to the Competent Authority and to pay penalty if any, imposed/levied for any deviations in the building to be constructed in terms of the agreement. In consonance of the said clause, the respondents have already applied for the C and D Forms to the Competent Authority and are pursuing the matter and have also undertaken to hand over the same to the appellant as and when made available to them, and as such nothing more is required to be done on the part of the respondents.

SINCE, all the questions have been decided in the negative and against the appelant, therefore, in view of the above discussion, the present appeal, filed by the appellant, being devoid of merits is liable to be dismissed. Accordingly, the same is dismissed. In the facts and circumstances of the case, however, there is no order as to costs. Appeal dismissed.