Jayanand vs U.P.AVAS VIKAS PARISHAD

THIS is an original complaint for compensation of a sum of Rs. 9,63,000/- (Rupees Nine lacs sixty three thousand only).

THE brief facts of the case are that the complainants Sh. Jayanand, Sh. Tikka Ram and Sh. Khemraj, all real brothers have jointly purchased a plot on 27.1.1994 on instalment. THEy were given the possession on 13.3.1995. THEy deposited the entire price by 17.10.1997. On 22.5.1995 the map was also sanctioned. It was the duty of the opposite party to provide civil amenities, namely electricity, water, sewer, road. Several applications were given but the opposite party did not provide the amenities. THE complainants had to spend Rs. 15,000/- (Rupees Fifteen thousand only) for water by getting it through tankers at the time of construction. THE shops have been constructed but are not being taken on rent for want of these amenities. THErefore, the complainants have suffered a loss of Rs. 6,00,000/- (Rupees Six lacs only) besides the complainants claimed a sum of Rs. 1,00,000/- (Rupes One lac only) for non-giving of 9 metres wide road. THEy have claimed a sum of Rs. 13,000/- (Rupees Thirteen thousand only) for taking water connection from a distance of 200 feet. THEy have suffered a loss of Rs. 2,00,000/- (Rupees Two lacs only) as given in Para 6 of the complaint. The opposite party contested the complaint and inter-alia alleged that this Commission has got no jurisdiction to give any relief to the complainants because this was an out right purchase at an auction sale which does not come within the purview of the Consumer Protection Act.

Before taking any other plea we shall first discuss whether the complaint shall lie before the Consumer Courts or not ?

THE learned Counsel for the opposite parties referred the ruling reported in IV (2003) CPJ 362, Ajit Singh Sodhi v. Estate Officer, Union Territory Chandigarh, which is the recent authority given by the Chandigarh Commission on the subject. In this ruling the previous case-laws have been discussed and the State Commission has given the finding that : "In view of the law settled by the Hon''ble State Consumer Commission, a complaint filed in respect of a plot of land purchased at an auction sale being an outright sale, would not be maintainable as there was no hiring of service of the concerned development authority. In this view of the matter, the District Forum-II was right in holding that the complaint filed by the appellant under the provisions of the C.P. Act was not maintainable. Consequently we uphold the finding of the District Forum that the complaint under the C.P. Act is not maintainable."

Admittedly this was also a case of auction purchase and outright sale. In the above ruling of Ajit Singh Sodhi, the rulings given by the National Commission namely, Shiela Construction Pvt. Ltd. v. Nainital Lake Development Authority & Anr. reported in III (1996) CPJ 11 (NC)=1997 (1) CON.LT 330, and Tamil Nadu Housing Board v. R. Sivasubramaniyam, reported in III (1998) CPJ 39 (NC)=1991 (1) CON.LT 16, were referred. In these two rulings also it has specifically held that : "Consumer Forum could not grant any relief in matters where the transaction had arisen out of auction sale, which amounted to outright sale of immovable property and there was no arrangement of hiring of service for consideration between the parties."

IN the ruling reported in I (1999) CPJ 436=1999 (2) CON.LT 437, State of Punjab v. Kasturi Lal, the ruling of the National Commission given in the case of Allied (Garments) Export INdustries Pvt. Ltd. v. D.D.A., was referred and it was held by the Punjab State Consumer Commission that : "It could be said that in the cases of auction of S.C.F., the complainant had hired the services of opposite party by payment of one-fourth of the auction money and thereafter allege deficiency in rendering service. At the most it could be a case of breach of contract enabling the complainants to approach the Civil Court."

In the case of Allied (Garments) Export Industries Pvt. Ltd. v. D.D.A., it has been held by the National Commission that : "This is a case where the petitioner purchase 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 anction."

It was argued by the learned Counsel for the complainant in this case that in the case of lease of 90 years on the same subject the National Commission has held in the case of Ashok Tayal & Anr. v. Delhi Development Authority & Ors., reported in II (1995) CPJ 3 (NC)=1996 (1) CPC 114 that : "The cases involving perpetual lease were not cognizable by the Consumer Disputes Redressal Agencies under the provisions of the C.P. Act."

IN the ruling Tamil Nadu Housing Board v. R. Sivasubramaniyam (supra), the National Commission has held that : "This case is one where the allotment of the plot has been made for the highest bidder in a public auction. We do not intend to go into the merits of the case as we consider that the matter does not fall within the jurisdiction of Consumer FORA. We have held in similar matters vide Panjim Planning & Development Authority v. Mrs. Rashmi A. Sirsat & Ors., (Revision Petition No. 258 of 1992 decided on 10.1.1994) (1986-96 Consumer Vol. I pp. 8-9), and Shiela Constructions Pvt. Ltd. & Anr. v. Nainital Lake Development Authority & Ors. (Original Petition Nos. 230 & 249/1993 decided on 21.6.1996) [III (1996) CPJ (PP 11-13) (NC)] that Consumer Fora cannot grant any relief in matters where the transaction has arisen out of auction sale which is tantamount to outright sale of immovable property and, therefore, there is no arrangement of hiring of service for consideration between the parties."

THE learned Counsel for the complainant referred the ruling reported in III (2003) CPJ 90 (NC), Smt. Leelawati v. Dr. Sukhmal Jain, in which the amenities were not provided to the complainant and the relief was granted to the complainant. On the analogy of this ruling it was argued that the complaint shall lie but this was not the case of auction purchase and outright sale but in our case there was out-right sale in auction purchase, therefore, this ruling shall not apply to the facts of the present case. The learned Counsel for the complainant also referred the ruling reported in I (1995) CPJ 210 (NC)=(1999) NCJ (NC) 106, Skipper Bhawan v. M/s. Skipper Sales (Pvt.) Ltd. & Anr. In this ruling flats in multi-storeyed building were allotted. There was delay in completion of the building. Compensation was claimed by the complainants for loss suffered on account of blocking of their investment which was allowed by the Commission. We have gone through this ruling, this is a case of commercial flats constructed by the builders and construction was not completed within the time bound, there was delay and the compensation has been allowed to the claimants for blocking of their investment. There was definitely hiring of service by retention of the amount of the complainants but in our case price was paid, possession was taken, this was an outright sale and there was nothing like hiring of service.

The learned Counsel for the complainant referred the ruling reported in III (2000) CPJ 163, Housing Commissioner, U.P. Housing and Development Board & Ors. v. Hirdaya Narain Singh. This ruling in fact is against the complainant wherein in the very first line it has been held that : "No doubt, if it is an outright sale then the complainant will not be a consumer as per Consumer Protection Act."

Here in this case although some instalments were agreed but these were all paid, possession was also taken, construction has also been made and property has out-rightly purchased by the present complainant. Here in the case of U.P. ruling, there was dispute regarding refund of amount deposited along with interest and compensation which was said to have been deposited in excess. The learned Commission held that the complainant was entitled for the refund of the extra charge. There is no such dispute in case before us.

THE sale deed, lease deed, brochure agreement, etc. do not show of any civil amenities but it is true that in a developed colony the purchasers are entitled to that but this being not a consumer dispute we will not go into the merits of the case and will in the line of judgment given by the Punjab State Consumer Commision can only hold that at most it can be a case of breach of contract enabling the complainant to approach the Civil Court. As this is not a consumer dispute, we resist from entering into the merits of the complaint and advise the complainant to approach the Civil Court. This complaint is liable to be dismissed as not maintainable. ORDER The complaint is hereby dismissed as not maintainable. Cost of the complaint shall be easy. Complaint dismissed.