KANPUR DEVELOPMENT AUTHORITY vs PRAMOD KUMAR TIWARI & ANR.

The petitioner opposite party no.1 being aggrieved of the order of the State Commission, Uttar Pradesh dated 07.05.2014 in appeal No. 1959 of 2005 has preferred this revision petition.

Briefly stated the facts relevant for the disposal of the revision petition are that respondent no.1 Pramod Kumar Tiwari filed a consumer complaint in District Forum alleging that he was

allotted plot No. 93, Block X-1, Scheme-II, Krishnapuram measuring 356 sq. yards by the petitioner Authority. The allotted plot was a corner plot. There was additional surplus land of 60 sq. yards adjoining the said plot. The said plot was also allotted to the respondent no.1 complainant and the petitioner Authority executed a registered Deed for the area of 416 sq. yards including the additional land in favour of the complainant on 14.11.1973. It is alleged by the complainant that the petitioner Authority in collusion with respondent no.2 Narendra Kumar Gupta despite of having knowledge that the additional land of 60 sq. yards was leased to the complainant, constructed a HIG House H-1/32, Krishna Puram, Kanpur covering the additional 60 sq. yds. as also the road adjoining the same and the HIG house was sold to respondent no.2. The complainant wrote several letters to the petitioner Authority to undo the wrong but in vain. Being aggrieved, the respondent no.1 raised the consumer dispute.

Opposite Party no.1 in its written statement raised a preliminary objection that dispute raised by the complainant being of civil nature does not fall within the jurisdiction of District Consumer Forum. On merits also, opposite party no.1 resisted the complaint. It was, however, admitted that plot No.93, Block X-1, Scheme II, Krishnapuram alongwith additional 60 sq. yds. was allotted to the complainant and lease deed was executed in his favour. It was denied that subsequent to the execution of the lease deed, HIG house was constructed on land forming part of the land allotted to the complainant and the adjoining road, which house was sold by the Authority to opposite party no.2.

District Forum on consideration of the pleadings and the evidence allowed the complaint and ordered as under: "Complaint of the complainant is hereby allowed. Opposite Party No.1 Kanpur Development Authority is hereby directed to pay the entire money deposited by the complainant in connection with the disputed plot admeasuring 45.26 sq.mtr. with interest at the rate of 18 percent per annum from the date of deposit as well as compensation of Rs.50,000/- (Rupees fifty thousand only) within two months from the date of the order and in case of default in payment of compensation, the Opposite Party shall pay interest at the rate of 8 percent per annum form the date of passing of the order.

Opposite Party can recover the aforementioned amount of compensation from the concerned officer/employee. Copy of this order be sent to Vice Chairman, Kanpur Development Authority, Kanpur for information and necessary action."

Being aggrieved of the order of the District Forum, respondent no.1 complainant preferred an appeal and the said appeal was disposed of with following directions:

"Instant appeal is hereby allowed and impugned judgment and order dated 22.10.2005 passed by the District Consumer Disputes Redressal Forum, Kanpur Nagar is hereby confirmed in its modified form.

Complaint filed by the complainant is hereby allowed. Kanpur Development Authority is hereby directed to deliver peaceful possession of the disputed plot ( 416 sq. yard) to the complainant within two months or allot an alternate corner

plot of same size and similarly situated roads in any other developed colony in Kanpur City at the old rates and execute registry of the same at the cost of the KDA.

Respondent no.1 Kanpur Development authority is also directed to pay Rs.5,00,000/- ( Rs. Five lakh only) as compensation to the complainant within two months from this order. In case of default in payment of compensation, the respondent shall pay additional interest at the rate of 12 per cent per annum from the date of passing of the order till actual realization.

Respondent / Opposite Party Kanpur Development Authority is also directed to pay Rs.20,000/- ( Rs. Twenty Thousand only) as cost of litigation to the complainant separately."

Being aggrieved of the order of the State Commission, the petitioner Authority preferred this revision petition.

Learned counsel for the petitioner Authority has contended that orders of the Fora below are not sustainable for the reason that Fora below have failed to appreciate that respondent no.1 after execution of the lease deed of the plot in his favour ceased to be a consumer qua the petitioner Authority and if at all the grievance of the complainant is regarding encroachment of land forming part of his plot, the dispute is only of civil nature, for which the remedy of the complainant was to file civil suit. Learned counsel has thus submitted that orders of the Fora below being without jurisdiction are not sustainable.

Learned counsel for respondent no.1 on the contrary has argued in support of the impugned order. It is contended that undisputedly, the petitioner Authority had undertaken development of Krishna Nagar project and the plot in question was allotted to the complainant. Therefore, the petitioner Authority by later on constructing on the part of the said plot has obviously committed deficiency in service and as such, the Fora below did not lack jurisdiction to entertain the complaint and appeal.

We have considered the rival contentions and perused the record. The first and foremost issue which needs consideration in this revision petition is whether or not , respondent no.1 is a consumer as envisaged under section 2 (1) (d) (ii) of the Act or whether he can maintain the consumer complaint?

The facts of the case are almost admitted. It is undisputed that complainant was allotted a plot measuring 356 sq. yds. by the petitioner opposite party no.1. Thereafter, he requested for inclusion of surplus 60 sq. yds. adjoining to the said plot in his plot, which request was accepted and ultimately lease deed in respect of Plot No.93, Block X-1, Scheme-II, Krishna Puram measuring 416 sq. yds. was executed and registered in favour of the complainant. From the pleadings, it is obvious that service promised by the petitioner opposite party no.1 to the complainant was development of the plot and delivery of possession as also execution of the lease deed in his favour. Copy of the Lease Deed dated 14.11.1973 has been placed on the record of the District Forum by the complainant himself. Thus, it is clear that with the execution of lease deed in favour of the complainant, petitioner opposite party no.1 had fulfilled the promise of service offered vide the allotment letter. Therefore, the contract of service came to an end on 14.11.1973 and thereafter the status of complainant as a consumer came to an end and as such, he could not

have maintained the consumer complaint. Both the Fora below have failed to appreciate this aspect of the case and, therefore, their orders cannot be sustained. It may be noted that if after the delivery of possession of plot to the complainant, he has not been able to protect his possession and same part of the plot has been encroached upon, remedy of the complainant is to raise a civil dispute by moving a civil court of competent jurisdiction.

It is pertinent to note that opposite party no.1 Narendra Kumar Gupta alongwith his reply dated 08.03.2016 filed before this Commission, has forwarded copies of the orders passed by District Judge in Civil Appeal No. 155 of 2009 and 127 of 2012 as also order of High Court of Allahabad in Second Appeal No. 166 of 2015. On perusal of the aforesaid documents which have not been denied by the learned counsel for the complainant, it is obvious that complainant has also approached Civil Court for seeking relief on the same cause of action which is the basis of said consumer dispute. On perusal of order of the District Judge in First Appeal, we find that District Judge has decided the appeal against the petitioner Authority, which order has been challenged by opposite party no.1 in Second Appeal. Thus, it is obvious that complainant had been pursuing the same remedy in parallel forums, which is not permissible.

In view of the discussion above, it is clear that Fora below have entertained the consumer dispute ignoring the fact that at the time of filing of complaint, the complainant had ceased to be consumer. Therefore, impugned orders being without jurisdiction are not sustainable. Revision Petition is accordingly allowed and the consumer complaint is dismissed. It is made clear that this finding shall have no bearing on the civil litigation going on between the parties.