KASHYAP CONSTRUCTIONS (PVT.) LTD. vs DELHI DEVELOPMENT AUTHORITY

THE complainant has filed the abovementioned five complaints under Section 17 of the Consumer Protection Act (hereinafter referred to as ''the Act''), in respect of five shops/kiosks allotted to him by opposite party No. 1 in auction. Since the parties to all the abovementioned complaints are the same and the issues of fact and law involved are common in all the 5 complaints, the same with the consent of the learned Counsel for the parties have been finally heard together and are being disposed of by this common order.

THE relevant facts, in brief, are that the complainant had participated in an auction held by opposite party 1/DDA on 7.8.1996 for the grant of conveyance-cum-perpetual lease hold rights in respect of built-up shops/kiosks allotted in District Park, Janakpuri (Musical Fountain), Delhi on the basis of terms and conditions of auction under the Delhi Development (Management and Disposal of Housing Estate) Regulations, 1968. THE complainant''s bid for shops/kiosk Nos. 1 to 5 being highest was accepted and thereafter on payment of the balance premium and fulfilling the required formalities, the possession of the said shops/kiosk Nos. 1 to 5 was handed over by opposite party No. 1/DDA to the complainant on 28.10.1996. THE ''no objection certificate'' for obtaining the electric connection in the said shops/kiosks had also been issued to the complainant earlier vide letter dated 14.10.1996. However, as per the case of the complainant it was on taking over the possession of the shops/kiosks that the complainant realised that the same had neither electrical fittings nor any electric connection, thereby rendering the same useless for the purpose of running the kiosks. As such, the complainant approached the officials of opposite party No. 1/DDA who informed that the electrical fittings were to be installed by the complainant and thereafter was required to approach opposite party 2/DVB for the electric connection. It is stated by the complainant in his complaint that he had to thereafter carry out the installation of electrical fittings itself and then on the basis of the NOC provided by opposite party 1, approached opposite party 2/DVB for providing a new electric connection in the shops/kiosks in question and also deposited with them the required amount in respect of shops/kiosk Nos. 1 and 2, but was informed that the connection could be provided only on applications made by opposite party 1/DDA and not by allottee of the shops. THEreafter, the complainant was made to run from pillar to post between the offices of opposite party Nos. 1 and 2. THE complainant even approached the Bijli Adalat on three occasions but with no results. Eventually, the complainant filed a complaint before this Commission praying for directions to the opposite parties either to take back the possession of the shops/kiosks allotted to it and refund the bid amount of Rs. 7,27,225/- alongwith the other incidental charges of Rs. 21,000/- together with interest @ 24% per annum from the date of payment till refund. In the alternative it was prayed that the opposite parties be directed to provide electricity in the shops/kiosks of the complainant immediately and pay a compensation for loss of business of Rs. 1,000/- per day from April, 1997. THE complainant had also prayed for compensation of Rs. 20,000/- on account of harassment, mental agony and humiliation undergone by the complainant.

On notice both the opposite parties appeared through their respective Counsel and filed their written version/reply. Opposite party No. 1/DDA, in its written version/reply, had taken several preliminary objections that the shops/kiosks were purchased by the complainant in an auction and, therefore, the transaction being one of contract relating to sale of immovable property without any element of hiring of services did not fall within the ambit of the Act and as such, should have been filed before a Civil Court and cannot be adjudicated upon by this Commission under the Act; that under the provisions of Section 14(1)(d), damages can be awarded only in case the opposite party is held to have acted negligently and that mere loss or injury without negligence is not contemplated by the said provision of the Act; that opposite party 1 had already handed over the possession of the shops and as well as the no objection certificate for taking electricity from DVB and as such, had discharged its obligation under the terms and conditions of the auction. On merits, it was stated by opposite party No. 1 that it had already handed over the possession of the shops/kiosks in question to the complainant and the complainant had not pointed out any deficiency in verification list at the time of taking over possession of the shops and that opposite party 1 had provided the electrical fittings and temporary connection of water in the shops/kiosks allotted to the complainant and so it was for opposite party No. 2/DVB to provide the permanent electric connection on the basis of NOC furnished by opposite party No. 1.

The defence of opposite party 2 in its reply/written version, was that as per the DVB rules either DDA should apply for electricity connection or the respective owner should approach it through DDA for installation of their electric meter. It was also stated that in the month of December, 1997 it was decided in the Bijli Adalat that the area had to be electrified, on opposite party No. 1/DDA depositing an amount of Rs. 74,750/- and thereafter the electrification had to be done on priority basis.

THE parties have adduced their evidence by means of affidavits. THE complainant filed the affidavit of its Director Shri S. Sunder Kashyap, whereas, opposite party 1 filed the affidavit of Shri Amar Chatterjee, Director (Commercial Land), DDA and opposite party 2 filed the affidavit of Shri M.C. Sharma XEN (D) JKP, DVB. We have gone through the evidence and documents/material placed on record. We have also heard the arguments addressed on behalf of the parties.

THE opposite party 1/DDA in its written version had taken the preliminary objection that the shops/kiosks were purchased by the complainant in an open auction and, therefore, the transaction being one out of the right sale of immovable property, without any element of hiring of service did not fall within the ambit of the Act and as such should have been filed before a Civil Court and could not be adjudicated upon under the Act. In the given facts of the case the issue involved pertains to the electrification of the shops/kiosks purchased by the complainants from opposite party 1 in auction and the consistent view of the National Commission in a catena of decisions has been that in cases of purchase of property in auction there is no hiring of services and, therefore, disputes regarding such transactions are outside the purview of the Act. In the case - entitled Tamil Nadu Housing Board v. R. Sivasubramaniayan, reported as III (1994) CPJ 137 (NC)=1986-99 Consumer 3587 (NS), the National Commission has held : "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 and Development Authority v. Mrs. Rashmi A. Sirsit & Ors. (Revision Petition No. 258/92 decided on 10.1.1994) (1986-95 Consumer Vol. I pp. 8-9); and Shiela Constructions Pvt. Ltd. & Anr. v. Nainital Lake Development Authority & Ors. (Original Petition Nos. 230 and 249/93 decided on 21.6.1996) (1996 (2) CCC 743 (NS)=III (1996) CPJ (NC) PP 11-13), that the Consumer FORA cannot grant any relief in matters where the transaction has arisen out of the 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."

(Emphasis supplied) Thus, in the present case, the shops/kiosks having been purchased in an auction, this Commission has no jurisdiction to entertain complaints regarding the said transaction. However, even on merits the complainant has no case so far as opposite party 1 is concerned. It is the admitted case of the complainant that the bid in the auction for the shops/kiosks was subject to the terms and conditions of the auction. The Condition No. 2 of the terms and conditions of auction (copy placed on record as Annexure ''A'') was that the "shop/built up units are being auctioned on as is where is basis. It is presumed that the bidder has inspected the property before giving bid". Thus, in view of the said specific term, the complainant cannot now turn around and state that the shops/kiosks were devoid of electrical fittings and that it was only on taking over the possession of the said shops that the above fact was revealed to it. Further, the complainants had also admitted that at the time of taking over the possession the factum of the shops being without any electrical fittings and fixtures was not pointed out or mentioned in the verification list which was duly signed, as having received the possession with all fittings and fixtures. In the given facts of the case, it can also not be denied that on handing over the possession and no objection certificate for obtaining water and electric connection, the opposite party 1 had discharged its obligations under the terms of the auction. Opposite party 1 has also stated in the affidavit of Shri Amar Chatterjee, Director (Commercial Lands) D.D.A. that electrical fittings and temporary water connection had been duly provided by opposite party 1 in the shops/kiosks purchased by the complainant and further that the permanent electrical and water connections were to be taken by the complainants from opposite party 1 themselves. Therefore, in the circumstances of the case opposite party 1 cannot be held guilty of deficiency in service rather the complainant had itself admitted in para-9 of its complaint that on approaching the Zonal Office of opposite party 2/DVB at Nazafgarh, the Area Incharge informed the complainant that it was the duty of DVB to provide electrical connection on the basis of test report and no objection certificate of opposite party 1/DDA. Further, in para-15 of the complaint it has been mentioned that the electrical connection would have been sanctioned in its favour by opposite party 2 if the illegal gratification of Rs. 30,000/- as demanded by one Shri M.L. Anand, AE-E Zone 1004, Janakpuri, had been paid. Therefore, in view of the own admission of the complainant and the reply filed on behalf of opposite party 2, it is apparent that the electrical connection was to be provided by opposite party 2 to the complainant in the shops/kiosks in question. The opposite party 2 had also filed an affidavit of Shri M.C. Sharma, XEN (D) JKP, DVB who had acknowledged the fact that a cheque for the sum of Rs. 74,750/- had been received from opposite party 1/DDA on 7.2.1998 for electrification of the area and that the process of electrification would be completed within 2 months, i.e. by October, 1998 whereas the needful was not done till even much later. The complainant, had as per affidavit of its Director Shri S. Sunder Kashyap, deposited the required amount for shop Nos. 1 and 2 alongwith the prescribed application from duly filled in respect of all the shops purchased by it, with opposite party 2 on 14.5.1997 and thereafter, despite persuing the matter, with the concerned officials of opposite party 2, as well as the Bijli Adalat, the electrical connections as requested for, were not sanctioned. Therefore, in the given facts of the case, it is apparent that opposite party 2 has been guilty of deficiency in service in not providing the connection for such a long period despite the opposite party 1/DDA having deposited the required amount as per the own admission of opposite party 2/DVB.

AS such, the present complaint is allowed against opposite party 2/DVB only but the same is however, dismissed as against opposite party 1/DDA. The opposite party 2/DVB is directed to provide electric connection to the complainant in the shop Nos. 1 to 5, located in the District Park, Janakpuri (Musical Fountain), Delhi, if not already electrified and pay to the complainant a sum of Rs. 20,000/- as compensation for harassment and mental agony undergone by him and a further sum of Rs. 5,000/- as cost of the present proceedings, in all the abovementioned five matters. Opposite party No. 2 is further directed to comply with the above directions within a period of 60 days from the date of receipt of this order failing which the complainant would be at liberty to file an application under Section 25 or 27 of the Act, as may be advised seeking implementation of this order. It is further directed that if payment in terms of the above order is not made by opposite party 2 to the complainant within the abovesaid period of 60 days, in that event, the abovesaid amounts shall carry interest @ 12% p.a. from the date of order till payment. The present complaint is disposed of in above terms. Complaint allowed with costs.