J.P. MITTAL vs HARYANA HOUSING BOARD & ANR.

Since, facts are similar and common question of law is involved in above revision petitions, same are being disposed of by this common order. Facts of Consumer Complaint No.389 of 2006, J.P. Mittal Versus Housing Board Haryana etc, shall be taken as the lead case.

Petitioner/Complainant''s case is, that he purchased House No.1487-HIG (U) situated in Sector-10, Housing Board Colony, Ambala City in an open auction vide Allotment No.6593 dated 1.8.2002. It is stated that he had paid entire amount of instalments. Accordingly, Respondents/Opposite Parties issued him ''No Dues Certificate'' dated 11.10.2002. It is further stated that he received notice bearing Memo No.10174 dated 9.12.2005, from the respondents vide which he was asked to make payment of Rs.55,256/- on account of additional enhancement of land compensation @ Rs.368.13 per sq. yard. Petitioner is not liable to pay this amount, as there is no such clause in the allotment letter, nor the amount mentioned in the allotment letter is tentative. Since, respondents refused to consider the demand in question, petitioner filed a consumer complaint before District consumer Disputes Redressal Forum, Ambala (for short, ''District Forum'') praying that respondents be directed to withdraw the illegal demand of Rs.55,256/-.

In the written statement, respondents took preliminary objection starting that the pricing policy cannot be challenged, after petitioner has taken the possession of the house. On merits, it is stated that petitioner had accepted the terms and conditions of auction wherein it was made clear that purchaser shall have to pay, "Any escalation in price due to the amount of enhanced land compensation as a result of Judicial Order or Arbitrator''s Award." It was also incorporated in the allotment letter as Condition No.7, that purchaser will also be liable to deposit the land award or arbitrator''s award. It is further stated that "No Dues Certificate" was issued with a stipulation that ''You shall be liable to make the payment of the enhanced cost as a result of Judicial Order or Arbitrator''s Award if any". Therefore, petitioner is liable to pay enhanced land compensation and also liable for action under the provisions of Haryana Housing Board Act 1971, in case of default in making the payment of demanded amount.

District Forum vide order dated 25.6.2007, allowed the complaint and directed respondents; "i) To refund the amount of Rs.61,978/- (Rs.55.256/- as demanded amount and Rs.6,722/- as interest) deposited by the complainant on 13.10.2006 alongwith interest @ 6% p.a. from the date of deposit till its realization.

ii) To pay Rs.500/- on account of harassment mental torture and agony.

iii) To pay Rs.200/- as costs of proceedings.

Being aggrieved, petitioner preferred appeal before State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, ''State Commission'') which vide impugned order dated 20.12.2010, allowed the appeal and dismissed the complaint.

Hence, this revision.

We have heard the ld. counsel for the parties and gone through the record.

It is submitted by ld. counsel for the petitioners that petitioners are consumer as per Consumer Protection Act,1986( for short, ''Act'') since they had paid entire consideration in an open auction. Further, the price being final, they are not liable to make payment of enhanced land compensation. It is further submitted, that in the allotment letter no mention has been made about charging of additional amount due to enhanced land compensation. The house was sold on ''as is where is basis''. Thus, conduct of respondents in demanding additional amount on account of enhanced land compensation later on, is not sustainable. In support, ld. counsel has relied upon a decision of this Commission, "Haryana Urban Development Authority Vs. Jitender Nath Joshi (R.P. No. 176 of 2006) decided on 25.5.2010".

On the other hand, it is submitted by ld. counsel for respondents, that petitioner had purchased the house in question in an open auction. In view of decision of Hon''ble Supreme Court in " UT Chandigarh Administration and another Vs. Amarjeet Singh and others, 2009(4) SCC 660" , petitioners are not consumer. Ld. counsel further submitted, that as per terms and conditions of the auction, petitioners are liable to pay additional sum due to enhancement of land compensation, as per orders of the Court and enhancement due to Arbitrator''s award. Thus, there is no infirmity or illegality in the impugned order.

The State Commission in its order observed; " At the very outset the question for consideration before us is that "whether the complainant falls under the definition of ''Consumer'' or not? The Hon''ble Supreme Court in U.T. Chandigarh Administration and & Anr. Vs. Amarjeet Singh and Ors. (2009) 4 S.C.C. 660 has held that

" ...... where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser/lessee participates in 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 he 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 provider and the grievance does not relate to any matter in regard to 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 ."

Undisputedly, the complainants had purchased the house in question in an ''Open Auction'' held by the opposite parties being the highest bidder on as and where basis and no assurance was given by the opposite parties as service provider. Thus, the present case is covered by Amarjeet Singh''s case(supra), where it has been made clear that any grievance of the purchaser/lessee who purchases the site in an open auction cannot be termed as a ''Consumer Dispute'' and the Consumer Fora have no jurisdiction to entertain and decide any complaint. Accordingly this appeal is accepted, impugned order is set aside and complaint is dismissed ."

Condition No. 24 of terms and conditions of ''Auction'' read as under; " 24. Enhancement of land compensation as per the orders of the court and enhancement in price due to Arbitrator''s Award shall be payable in addition to the bid price by the successful bidder ."

Moreover, in the allotment letter dated 1.8.2012, it has been specifically mentioned, that; " Any escalation in price due to judicial order or Arbitrator''s Awards will be payable in addition to the price of the house ."

In addition, as per letter dated 29.9.2005 of the respondents, addressed to Chief Administrator, Housing Board Haryana, Chandigarh, enhanced payment had been sought and it reads; " No.E.O./AMB/2002 Dated 29.09.05 The Chief Administrator Housing Board Haryana, Chandigarh.

Subject:- Payment of enhanced compensation of Allotted land H.B.C. Sector-10,Ambala

Plot No. Allotee land H.B.C. measuring 9586.90 Sq. yard in Sector-10, Urban Estate, Ambala allotted to you vide Allotment letter No.9838 dated 4.11.92 at a tentative rate.

According to condition No.9 of the Allotment Letter the price of the said plot is subject to variation with reference to enhancement of compensation of acquisition cost of this sector by the court or otherwise.

The compensation enhanced by the court of this sector has since been deposited in Court for payment to the concerned parties and the same alongwith the expenditure incurred in connection with the litigation is recoverable from you. It has been worked out that the amount is to be recovered @ Rs.44.77 p. sq. yard & as such an amount of Rs.4,29,206/- is recoverable from you in respect of the above mentioned plot in accordance with the aforementioned conditions of the allotment letter. 3. You are therefore, requested, to pay this amount by means of bank drawn in favour of Estate office, HUDA, Ambala payable at Ambala City within 30 days from the date of issue of this letter. The additional price now demanded is recoverable in the same manner as an instalment and in case you fail to remit the amount within the stipulated period the action under section 17 of the HUDA Act can be initiated against you and interest @ 15% per annum shall also be charged. Note:- Calculation Sheet on reverse Page

Sd/-

Estate Officer,

Haryana Urban Development Authority,

Ambala City"

Thus, it is manifestly clear from the terms and conditions of the auction, that in case there is enhancement of land compensation as per order of the court or due to Arbitrator award, the same shall be payable in addition to the bid price by the successful bidder. Therefore, the impugned demand made by the respondents is legally justified and petitioners are liable to pay the same.

Decision of Jitender Nath Joshi (supra) , is not applicable to the facts of the present case at all. In Jitender Nath Joshi (supra), enhancement had already been accounted for while determining the price of the plot before its allotment. In the present case, enhancement had not been accounted for at the time of allotment of the plots.

Hence, we do not find any jurisdictional error on the part of the State Commission. The present revision petitions having no merit, stand dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only) each.

Petitioners are directed to deposit the cost by way of demand draft in the name ''Consumer Legal Aid Account'' of this Commission, within four weeks from today.

In case, petitioners fail to deposit the cost within the prescribed period, then they shall be liable to pay interest @ 9% p.a., till realization.

List for compliance on 10.4.2015.