G.S.KUSHWAHA vs SUSHIL ANSAL

BRIEFLY, the facts of the case are that M/s Ansal Properties and Industries (P) Ltd., New Delhi (hereinafter referred to as ''the Builder'') advertised in the newspapers for the sale of commercial offices/flats etc. in its shopping complex known as Bhikaji Cama Place @ Rs. 1,25,000/- per flat. Defendant No. 1 is the Chairman/Managing Director of the said Company. Defendant No. 2 is the Estate Manager, Star Estates Management (P) Ltd., defendant No. 3 the Executive Engineer, Delhi Electric Supply Undertaking and defendant No. 4 the Municipal Corporation of Delhi.

THE complainant in March'' 81 booked a flat bearing number 148 in 6-Bhikaji Cama Place Building, by depositing Rs. 15,000/- as initial payment through the builders'' agent S.P. Bhatia of Zenith Estates. He was further liable to pay rupees one lac only on account of the balance price. It is pleaded that subsequently instead of charging rupees one lac, the builder required the complainant to pay Rs. 2,15,356.12/- and he had to deposit the same. It is further pleaded that this act of the builder amounts to unfair trade practice and cheating on their part. THE complainant was also required to sign another agreement illegally by the builder on 30.4.88 when he had deposited Rs. 2,09,911.00/-, in which many conditions of sale were changed by them unilaterally. It is next pleaded that the builder further cheated the complainant by giving him area measuring 108 sq. feet as against 166 sq. feet as promised earlier. Thus the price of the 58 sq. feet which was given short @ Rs. 1,150/- per sq. feet comes to Rs. 67,700/-. The flat, it is averred is unserviceable and unusable as it is too small.

The builder had declared a special discount of 5% initially, but the complainant was given 2% discount and he is entitled to additional 3% discount which comes to Rs. 69,680/-. The complainant has pointed out various defects in the flat and claimed refund of certain amounts on account of those defects. He has also pointed out several imperfections and short comings in the quality and workmanship of the flat and performances of service. He claimed the followed reliefs against defendant No. 1: 1. That the builder be directed to give a good quality flat measuring 155 sq. feet without any pillar for an amount of Rs. 1.25 lakhs only to him. 2. That the builder be directed to purchase the defective flat at the current prevalent market rate from him. 3. That the builder be directed to pay to the complainant an amount of Rs. 5,42,040.00/- on account of various defects pointed out by him.

THE complainant further claimed that defendant Nos. 1 & 2 be directed not to charge any transfer fee or maintenance charges from him. Against defendant No. 4 he prayed that they be directed to decide the representation of the complainant against the assessment orders dated 31.12.86 and 8.3.88 in terms of the directions of the Supreme Court Judgment reported as AIR 1985 Supreme Court 339 and refund the excess house-tax charged by them. Against DESU defendant No. 3, he prayed that the electric bills issued by them be cancelled, as the bills were illegal and they be restrained from sending any future bills to him. Respondent No. 2 has been proceeded against ex part Respondents No. 1, 3 & 4 contested the claim of the complainant. Defendant No. 1 in their written statement pleaded that the complainant was not a consumer as defined in Consumer Protection Act and consequently the complaint was not maintainable. They also denied the allegations of the complainant on merits. Defendant No. 3 denied the claim of the complainant and pleaded that he applied for electric connection in the second week of June'' 88 and the connection was energised on 22nd July'' 88 against connection No. 1260528. The first bill of Rs. 128/- was raised against him in October'' 88 on the basis of minimum charges. Further bills in the months of March, June, August and December'' 89 were also raised on minimum basis as per the existing tariff for non-domestic use. It is alleged that the complainant was not entitled to any relief against them.

DEFENDANT No. 4 denied the allegations of the complainant against them. They pleaded that the Commission had no jurisdiction to try the case. Defendant No. 1 filed a writ petition in the Delhi High Court in which an order was passed on 5.2.91 that the petitioner should raise the question regarding jurisdiction of the State Commission before the Commission itself, and it would be proper that the question of jurisdiction be decided first by the Commission. In view of the observations of the High Court it was ordered by the Commission that the question of jurisdiction be decided first. Consequently we heard the arguments of the parties on the question of jurisdiction.

IT is contended by the learned Counsel for respondent No. 1 that as the complainant was a purchaser of a flat from defendant No. 1, he cannot be said to be a consumer as defined in the Consumer Protection Act and therefore the complaint was not entertainable by the Commission. On the other hand the learned Counsel for the complainant vehemently argued that the defendant No. 1 was rendering service for consideration to the public by selling built houses and consequently the complainant became a consumer. In support of his contention he placed reliance on a judgment of the National Commission in U.P. Avas Evam Vikas Parishad v. Garima Shukla & Ors. (Appeal No. 5 of 1989) decided on 27th August'' 89).

WE have given our thoughtful consideration to the arguments of the learned Counsel. The problem of housing in this country is becoming very acute. The plots are becoming very costly and it is not possible for an average person to purchase a plot and construct house there on. Moreover, the house construction is becoming very difficult and time consuming job on account of shortages of material and labour. The builders, no doubt, are carrying on the business of building houses for earning profit, but simultaneously they are rendering service to the public at large by providing accommodation to them. The word ''consumer'' has been defined in the Consumer Protection Act and it reads as follows:- "(4)(1)(d) ''Consumer'' means any person who, (i) xxx xxx xxx xxx (ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes......"

The word ''Service'' has also been defined in Section 2(1)(o) of the said section as follows: - " ''service'' means service of any description which is made available to potential users and includes........... but it does not include the rendering of any service free of charge or under a contract of personal service. The word ''service'' as is evident from the definition, has a very wide meaning. It, in our view, includes building of houses for the purpose of providing accommodation to the public. The purchaser of a house from a builder, therefore, becomes a consumer.

In the above said view we are fortified by the observations of the National Commission in U.P. Avas Evan Vikas Parishad'' s case (supra). In that case it was observed by the National Commission: "The Housing and Development Board is engaged in serving the public in the matter of providing housing by acquisition of land, development of sites, construction of houses thereon and allotment of plots/houses to the public. The Board is clearly engaged in rendering service for consideration to the public and therefore those who are allotted plots/ houses from the Board are clearly consumers falling within the definition. In Section 2(d)(ii) of the Act. Again under Section 2(o) of the Act the definition of the term "Service" is very comprehensive; it means "service of any description" including banking, financing, insurance, transport, processing, supply of electrical or other energy, entertainment etc. This leaves no room for doubt that the type of service which the Board renders to the public for a consideration is clearly covered by Section 2(o)".

AFTER taking into consideration all the above said circumstances, we are of the view that the complainant has a right to file complaint against defendant No. 1. The question of jurisdiction of the Commission against defendants No. 3 & 4 regarding the reliefs claimed has not been argued by either of the parties before us. Consequently, we leave this question open. To come up for further arguments on merits on 22nd April, 1991. Ordered accordingly