HARMANADAR SINGH SETHI vs J.K. MEHRA

WE are proceeding to dispose of both of these appeals at the stage of their admission itself. Respondents-org. O.Ps. are present through their Advocates in response to the notices before admission issued by us on 23rd September, 2003.

WE are proceeding to dispose of these appeals on hearing the learned Advocates for the parties as above and on perusal of the material available in the appeal paper book with common judgment since the factual aspects involved in both the matters are identical. Respondents are also common in both the appeals and status of the complainant in both the appeals is also identical being flat purchasers. (For brevity''s sake parties are hereinafter referred to as appellants-org. complainants as ''Flat Purchasers'' and respondents-org. O.Ps. as ''Builders''). The flat purchasers are the appellants in both the appeals who have filed these appeals being aggrieved by the order dated 22nd July, 2003 passed in the respective complaints by the District Forum, whereby District Forum proceeded to dismiss both the complaints with a view that the disputes being the subject matters thereof were not amenable to its jurisdiction. Inter alia it is perceived by the District Forum that the subject matters of both the complaints was of a civil nature and as such it declined to entertain the same as consumer disputes.

It is noticed that the flat purchasers alleged various grievances against the Builders such as non-payment of electricity bills, non-refund of refunded deposit, etc.

THE Builders-O.Ps. appeared before the District Forum in response to the show-cause notices issued and resisted the claims raising several contentions, which are reflected even in the impugned orders. District Forum however took the view that the nature of disputes as raised in the complaints was not amenable to its jurisdiction.

WE are of the view that the perception of the District Forum in both the matters as above, is not proper as also justified as pointed out herein below. It is to be stated that the disputes as filed and as averred in the complaints will be against the Builders as provider of the services. In this respect, Sub-section (o) of Section 2(1) of Consumer Protection Act, 1986, which defines service proceeds in this manner: "2(1)(o)-''Service'' means service of any description which is made available to potency users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction], entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"

[Emphasis supplied]. It would be noticed that "housing construction" has been included as one of the kind of services so as to be falling within the ambit of the Consumer Fora under Consumer Protection Act, 1986. The said kind of service has been incorporated in the said definition clause by way of amendment affected in the year 1993.

EXPRESSING "Housing construction" as appearing in the above definition clause cannot be given a narrow meaning. In our view, the same would include various aspects concerning and pertaining the housing construction, such as, deals between the parties. viz., Builder and Flat Purchaser, execution of relevant documents, such as Agreements, Final Sale Deed, payment of consideration, related contractual as also statutory obligations between them, and so on as more particularly specified in Maharashtra Flat Ownership Act, 1963 under which statutory rights have been provided and various obligations and the duties are caste upon the flat purchasers as also the Builders.

THAT being so, dispute between the flat purchasers and the Builders as is the case in the matters in hand have to be considered in the light of provisions of Maharashtra Flat Ownership Act, 1963. That being so, the view taken by the District Forum that the disputes herein are not amenable to its jurisdiction cannot be sustained.

Across the learned Advocate for the Builders-O.Ps. submitted that the claim of the complainants-flat purchasers would be barred by Law of Limitation. However, it needs to be stated that District Forum in the concluding paragraph 12 of its judgment in A-1292/2003 has clearly rejected the said plea about the limitation against which no appeal has been filed.

THAT being so, as far as point of limitation is concerned, same has to be taken as concluded. Therefore, in interest of justice, we think it appropriate that both the matters should go back to the District Forum for consideration afresh on merits except on point of limitation on the footing that the disputes being the subject matters thereof squarely falls within the purview and ambit of Consumer Protection Act, 1986 as consumer disputes. ORDER 1. Appeals are allowed and their respective impugned orders dated 22nd July, 2003 are set aside. 2. Matters are remitted to the South Mumbai District Forum for consideration afresh on merits except point of limitation in accordance with the provision of the Law and the Rules and on giving proper opportunities to the parties thereunder. 3. Appellants'' Advocate shall furnish copy of the order herein to the South Mumbai District Forum immediately. 4. By consent the date of appearance before the South Mumbai District Forum by parties is fixed on 7th January, 2004 on which date the parties shall ensure their appearances before the District Forum without fail and seek the directions with regard to the fixation of date of hearing. 5. It is made clear and distinctly understood to the parties that no further notices for appearance will be required to be issued by the District Forum to the parties. 6. The District Forum shall proceed to dispose of the complaints totally uninfluenced by its earlier findings or any observations of ours in the judgment herein concerning the merits of the matters treating the same as our prima facie views and observations thereof. 7. District Forum to ensure expeditious disposal of the matters after remand. 8. As far as these appeals are concerned, no order as to costs. 9. Office shall furnish copies of the order to the parties.

Appeals allowed.