KAPOOR SINGH vs IMPROVEMENT TRUST BATALA

THIS complaint filed under the provisions of the Consumer Protection Act for claiming compensation to the tune of Rs. 11 lakhs against the Improve abuse of process of law, barred by time and having no merit even on the facts pleaded, deserves to be dismissed at the preliminary stage without issuing notice to the opposite parties.

KAPOOR Singh, complainant is an employee of the Improvement Trust, Batala. As per the Punjab Town Improvement (Utilisation of Land and Allotment of Plot Rules, 1983), he applied for allotment of a plot under a special quota fixed for employees of the Improvement Trust. The allotment was sought for 6 Marla plot. The Improvement Trust passed the resolution allotting one plot No. 21 (ii) in Radhey Krishan Scheme and referred the resolution to the State Government for approval. Since possession of the plot aforesaid was not delivered, a civil suit was filed by KAPOOR Singh for mandatory injunction, directing the Improvement Trust to issue the allotment letter in respect of the aforesaid plot. When notice of the suit was received by the Improvement Trust, the suit was contested by filing written statement wherein it was asserted that the State Government had declined to grant approval. Hence no allotment could be made in favour of the complainant. The suit was dismissed by the Trial Court. Appeal filed against that judgment and decree was dismissed the Appellate Court. The complainant filed Regular Second Appeal in the High Court, which was admitted on February 2, 1995. On an application made in the aforesaid appeal, an order was passed on July 14,1995, restraining the Improvement Trust from making further allotment of the plot to any other person. Subsequently, the matter of allotment having already been made to Malkiat Kaur, the application filed by KAPOOR Singh was dismissed as in fructuous on September 12,1995. In the present case, it is asserted that the Regular Second Appeal in the High Court would take about 20 or 25 years for disposal and the complainant being aged about 60 years is not expected to wait so long and hence he was filing the present complaint alleging deficiency on the part of the Improvement Trust in not delivering possession of the plot putting him to suffer damages. Some details of such damages likely to suffer are mentioned in para 17 of the complaint. In the prayer clause, compensation to the tune of Rs. 11 lacs was made. The FORA established under the Consumer Protection Act are supposed to act within the four comers of the Act itself. The Act has been made to help the consumer as defined and to protect his rights which are exploited by the traders or others whose services are hired and they commit deficiency in rendering the same. The consumer as defined has been to be a person who has purchased the goods and on defect having been found therein, deserves to be granted the relief regarding such goods or compensation for loss suffered etc. Likewise, a person can be a consumer, if he hires services of the opposite party on consideration and points out any deficiency in rendering service. At the outset, it may be stated that the complainant in the present case cannot be considered as a consumer as defined to invoke jurisdiction of the FORA established under the Act. The basis of the complaint is a resolution alleged to have been passed by the opposite party, the Improvement Trust, deciding to allot a particular plot as mentioned above to the complainant. No allotment letter in response to the aforesaid resolution was issued to the complainant. The resolution was sent to the State Government for approval, which was not granted. Thus, by merely passing of a resolution by the Improvement Trust, which was not implemented or even communicated in the form of allotment letter to the complainant, no right vests in the complainant with respect to the aforesaid plot. At the most, status of the complainant before actual allotment is merely that of a prospective applicant for allotment. Reliance placed on some of the decisions of the National Commission in the complaint itself is misplaced. II (1994) CPJ 67 (NC) "HUDA of karnal v. Mahabir Singh and Another". This is a case where Mahabir Singh and another had applied for allotment of plot who were unsuccessful in the draw of lots. The HUDA did not pay them interest on the initial amount deposited and the District Forum and the State Commission allowed the complaints directing the refund of the amount with interest. It was in such circumstances that the National Commission held that by making applications for allotment, the complainants were consumers and entitled to refund and the interest. The ratio of the decision aforesaid cannot be applied to the case in hand. No prayer for refund of earnest money, if any or interest thereon is being claimed in the complaint. The only right that an applicant has is for consideration of his name alongwith others in the matter of allotment and if unsuccessful to get the money back with interest. The present is not a case of that type. Present is a case where application of the complaint stands rejected and the grouse of the complainant is that he was wrongly denied the allotment. In such circumstances, he could be held to be consumer with respect to the plot in dispute only when allotment letter is issued to him. Admittedly in the present case, no allotment letter was issued. As a consequence, the complainant cannot claim any compensation for non allotment of the plot when his right to allotment has not been established.

The other judgment referred to is of the State Commission, Haryana in "Chief Revenue Officer, Haryana Housing Board v. Arvind Pathak and Another", II (1994) CPC 112. In that case, the name of the applicant was not considered alongwith others for allotment out of the reserve category of houses. Thus ultimately, relief was granted. Again, it may be observed that such is not the case in hand. The other case on which reliance has been placed is of this Commission in "Dr. Ms. Swati Dhir v. Ludhiana Improvement Trust and Another", I (1994) CPC 449. The ratio of this decision cannot be applied to the case in hand as the complainant was allotted plot No. 239-D in the year, 1993. Plan of the house was not being sanctioned, which was alleged to be deficiency in rendering service.

VIEWED from other angle that two remedies being available under the law to the complainant, one to approach the Civil Court has already been availed, the complainant cannot reagitate the matter in the Consumer FORA. Substance of the pleadings is to be taken into j consideration and not the camouflaged language used. In para 7 of the complaint, the complainant alleged that he had filed the suit for mandatory injuction for ordering the opposite party to issue allotment letter as per resolution. The Trial Court and the first Appellate Court decided that approval of the Government was necessary and the complainant had filed Regular Second Appeal in the High Court which stands admitted. Some reference to the grounds of appeal taken therein were also given. He did not specifically state as was expected that this suit stood dismissed by the Trial Court and appeal filed against the judgment and decree also stood dismissed by the lower Appellate Court. Copies of the order passed by the Trial Court and the lower Court were not produced alongwith the complaint. However, copies of the plaint, written statement and orders passed by the High Court were produced. It is persual of copy of the order passed by the High Court, Annexure C3 that makes it clear that the suit was dismissed by Sub-Judge First Class on March 31,1992 and the appeal was dismissed by the Additional District Judge, Gurdaspur on April 11, 1994. The application filed by the complainant in the High Court restraining the Improvement Trust from allotting the plot in dispute to some other person stood dismissed as infructuous as the plot already stood allotted to Malkiat Kaur as is clear from the copy of order Annexure C 6. The legal position as exists is that Kapoor Singh, complainant cannot claim any right to the plot for which decision was taken initially by the Improvement Trust to allot the same to the complainant. The complainant''s suit having been dismissed, the complainant would be bound by that decision unless that decision is set aside in appeal. The position at present exists is that Kapoor Singh, complainant had failed to establish any right qua. the said plot and thus he cannot be held to be a consumer to claim any relief under the Act. He chooses to knock at the door of Civil Court and has failed. He cannot reagitate the same matter before the FORA established under the Consumer Protection Act. It is in this matter that it deserves to be noticed that resort to the provisions of the Consumer Protection Act after the complainant had failed to seek remedy in the Civil Court is nothing but abuse of process of law. In order to find out as to whether the present complaint is within the period of limitation as provided under Section 24(a) of the Consumer Protection Act, which provides period of two years, we have to see as to when the cause of action or part thereof accrued entitling the complainant to move the complaint. Taking the case as set up by the complainant that it was in the written statement filed by the Improvement Trust in the civil suit that for the first time, it was brought to his notice that allotment letter could not be issued to him as the State Government had not approved the resolution passed by the Improvement Trust. Annexure C 2 is the copy of the written statement filed by the Improvement Trust in the suit referred to above. It is dated March 13, 1996. The present complaint has been filed on February 11,1997. Section 24(a) of the Consumer Protection Act providing limitation was inserted by Consumer Protection Amendment Act of 1993 w.e.f. June 18, 1993. It provided a limitation of two years from the date on which cause of action has arisen. Obviously, if the aforesaid provision is applied the present complaint is barred by time. Assuming for the sake of argument that Section 24(a) will not be attracted as the cause of action had accured prior to the amendment Act of 1993 and the period of limitation of three years would be attracted, even then the present complaint is hopelessly barred by time. There is no request for condoning delay much less supported by any reason cogent or plausible. In para 14 of the complaint, it is mentioned that from the written statement filed in the civil suit, he had come to know that the State Government had not granted approval and that legally no such approval was necessary. If the stand of the complainant is taken that legally no such approval was necessary, he should have approached within the period of limitation prescribed from the date of passing of the resolution by the Improvement Trust or when the Improvement Trust declined to issue allotment letter. On the admitted facts, it was more than three years that the Improvement Trust had repudiated the so-called claim of the complainant. The present petition being barred by time, otherwise cannot be entertained.

IT was argued by learned Counsel for the complainant that the deficiency in rendering service entitling compensation for the loss suffered to the complainant arose when the aforesaid plot was allotted to Malkiat Kaur. If after several years when Regular Second Appeal is disposed of, the complainant is held to be entitled to the plot, the Improvement Trust having allotted the same, would be unable to deliver the possession of the same and thus the complainant would be left hither, thither and thus he is entitled to the amount of Rs. 11 lakhs as claimed towards compensation. There is no merit in this case. Firstly the complainant could have made a claim for damages in the civil suit itself. He could not split the cause. One for merely a direction to the Improvement Trust to issue allotment letter and second ultimate sufference of loss on account of non issuing of the allotment letter. For the reasons recorded above, this complaint is dismissed in limine as being not maintainable and barred by time. Complaint dismissed.