Kamlesh Gulati vs HUDA

THIS revision is directed against the order of the State Haryana, Punjab dated 22.11.2010 whereby the State Commission allowed the appeal of the respondent opposite party; set aside the impugned order and dismissed the complaint.

BRIEFLY put, facts relevant for the disposal of this revision petition are that pursuant to the scheme floated by the respondent opposite party, the petitioner had applied for allotment of 10 marlas plot in general category in Sector 12 -A Panchkula. As per the scheme, oustees applicants were to be given priority over the general category applicants in allotment of plots. There were only 10 flats available for allotment in Sector 12A Panchkula and the oustees applicants outnumbered the available plots. Thus, the opposite party vide notice dated 01.09.2013 as also general notice published in Indian Express and the Tribune dated 25.09.2003 informed the general applicants that in view of number of oustees applicants being more than the plots available, there would be no draw of plots in the general category in respect of plots in Sector 12 -A Panchkula. Vide notice, general category applicants were called upon to give their option for consideration of allotment of plots in other sectors failing which earnest money deposited by the applicant was to be refunded without interest. The complainant did not give any option. Therefore, her earnest money was refunded. Being aggrieved of the refund of money, the complainant filed a consumer complaint alleging that the respondent opposite party has committed deficiency in service and unfair trade practice inasmuch as the complainant was never served with the above referred notice. The complainant also took the plea that as she had applied for 10 marla plot in Sector 12 -A Panchkula and deposited the booking amount, the opposite party was bound to include her application in draw of plots. The complainant thus prayed that the respondent opposite party be directed to allot her 10 marla plot in Sector 17, 21 -Part III, 23, 27, 28 or any other sector in Panchkula.

ON appearance, the opposite party filed written version denying the allegations of deficiency in service and justified its stand. On perusal of the pleadings of the parties and evidence on record, the District Forum allowed the complaint and directed thus:

"1. To pay interest at the rate of 9% p.a. on the amount of earnest money w.e.f. the date of deposit till refund was made.

To allot a ten marla plot to the complainant if lying vacant in sectors 17, 21 Part III, 23, 27 and 28, Panchkula and if not then in any other adjoining equally developed Sectors but the complainant shall first re -deposit the earnest money with the Ops within one month from today.

c. Also pay cost of Rs.2000/ -

Let the order be complied with within a period of one month from the date of communication of this order".

BEING aggrieved of the order of the District Forum, the respondent opposite party preferred an appeal. The State Commission Haryana on the basis of record came to the conclusion that the petitioner does not fall within the definition of consumer and allowed the appeal resulting in dismissal of the complaint. Being aggrieved of the order of the State Commission, the petitioner complainant has filed this revision.

LD . Madhurendra Kumar, Advocate for the petitioner has assailed the impugned order on two counts; firstly it is contended that the State Commission has failed to appreciate that the petitioner falls within the definition of ''consumer'' because by accepting the registration amount alongwith application form, the respondent authority had agreed to provide service to the petitioner complainant inasmuch as his name shall be considered in the draw of lots. It is further contended that the State Commission has failed to appreciate that the opposite party has indulged in unfair trade practice by inviting application for the plots which were not meant for allotment to the general public and by misleading, the petitioners and other general category applicants, the respondent opposite party has extracted huge amount as registration fee and utilized the same.

MS . Anubha Aggarwal, Advocate for the respondent on the contrary has argued in support of the impugned order.

WE have considered the rival contentions. On careful scrutiny of the record, we do not find merit in the contention of the petitioner. Undisputedly, the petitioner had applied for allotment of 10 marla plot in Sector 12 -A Panchkula pursuant to the terms and conditions detailed in the brochure. On perusal of the brochure inviting applications for allotment of residential plot, we find that in Sector 12 -A, only 10 plots of 10 marla area were offered for allotment. There is a condition in the brochure which clarifies that plots required for settlement of oustees claim will be deducted from the total number of plots available for allotment and remaining plots would be allotted through draw of lots to the eligible applicants under general and various reserved categories. Undisputedly, the number of oustees who had applied for allotment of 10 marla plot was more than 10. This obviously has resulted in the opposite party writing letters to the applicants of the general category and publishing a general notice in newspapers calling upon them either to give their option for being considered for allotment of plot in other sectors or obtain refund. It is not the case of the petitioner that he had applied for being considered for allotment of plot in alternate sector. Admittedly, the booking amount deposited by him was refunded to the petitioner. Therefore, it cannot be said that the respondent opposite party has committed any deficiency in service. As regards the plea of unfair trade practice, it is suffice to say that when the applications were invited, it was clarified that first right for allotment would be of eligible oustees applicants and surplus would be offered to general / reserved category applicants. At the time of floating the scheme, the opposite party could not have known as to how many oustees eligible for priority allotment would apply. Therefore, it cannot be said that the opposite party has indulged in unfair trade practice particularly when it was made clear in the brochure that first priority will be that of oustees applicants.

THE next question arises for our consideration is whether the petitioner is a consumer within the definition of consumer. Undisputedly, the petitioner had applied for allotment of plot and his application had not matured into allotment. Thus, it cannot be said that a contract of providing service had come into existence between the petitioner and the opposite party. That being the case, the State Commission has rightly held in the light of the judgment of coordinate Bench of this Commission in the matter of Punjab Urban Planning and Development Authority and Another Vs. Krishan Pal Chander, 2010 CTJ 415 that the petitioner is not a consumer and as such he had no right to maintain the consumer complaint.

IN view of the discussion above, the impugned order of the State Commission cannot be faulted. Counsel for the petitioner has not been able to point out any jurisdictional error or material irregularity in the impugned order which may call for interference in revisional jurisdiction. Revision petition is, therefore, dismissed.