OMSHANKAR GUPTA vs BABA SAHEB AMBEDKAR GRIH NIRMAN SAHAKARI SAMITI Maryadit

THIS is an appeal under Section 15 of the Consumer Protection Act, 1986 by the complainant against order dated 22.1.2007 passed in C.C. No. 418/2004 by the District Consumer Disputes Redressal Forum, Jabalpur (for short ''Forum'').

IN the complaint, filed under Section 12 of the Consumer Protection Act, the complainant (appellant here) has stated that he was enrolled as a member of the opposite party No. 1 society (respondent No. 1 here) for allotment of a residential plot after he deposited Rs. 100 as membership fee on 3.9.1986. After receipt of Rs. 3,500 as cost of the plot excluding development and diversion charges, on 19.10.1988, plot No. 7 as shown in the layout of "Dr. Ambedkar Complex-2, Shantinagar, Gohalpur", Jabalpur was allotted to him by the opposite party No. 1 by executing a transfer deed on 17.3.1989. Later on he deposited Rs. 1,000 as development charges with the opposite party No. 1 on 10.12.1994, he was issued a certificate of allotment on 11.12.1994 subject to the decision of the management committee. After taking possession of the plot, he partly started construction by filling up the foundation. IN the meantime, he was transferred to Bhopal and could not continue the construction. On 23.9.2004, when he visited the said plot, he came to know that the opposite party No. 1 had allotted the same plot to opposite party No. 2, who had constructed a house thereon. The opposite party No. 1 despite promise did not allot another plot to him. The complainant, therefore, requested the Forum for direction to opposite party No. 1 to pay him (i) Rs. 4,50,000 as present cost of the plot in quesiton, (ii) Rs. 45,000 as compensation for mental torture and Rs. 5,000 as costs. The opposite party in its reply before the Forum stated that the various acts done and documents executed by previous president of opposite party No. 1 (Late Shri Yograj Meshram) between 4.7.1986 and 31.12.1989 were declared illegal, null and void by Board of Revenue, (M.P.) vide order dated 22.5.1990 passed in Revision No. 135-II/89 and, as such, the allotment of the plot in question, being one of those acts was also rendered invalid. Besides, the said plot/land was neither in possession or ownership of opposite party No. 1 on 17.3.1989, which was in fact purchased and acquired only on 3.1.1994. Thus the complainant was not entitled to hold the said plot. It was also contended that the complainant is not a consumer as defined under Section 2(1)(d) of the Consumer Protection Act and that the complaint is not maintainable. After hearing both the parties, the learned Forum rejected the complaint summarily only on the ground that since "plot" does not come within the definition of "goods" as defined in Sale of Goods Act, 1930 and referenced in Section 2(1)(d) of the Consumer Protection Act, the complainant cannot be treated as a consumer entitled to any relief under the Consumer Protection Act.

The learned Counsel for both the appellant and respondent No. 1 were heard. Respondent No. 2 remained absent. Documents on record were also perused.

IT appears that the learned Forum restricted-examination of the case only in the light of provisions contained in Section 2(1)(d)(i) and did not proceed further to have a look at Section 2(1)(d)(ii) dealing with "hiring or availing of any services for a consideration......." IT is true that Section 2(1)(d)(i) deals with ''goods'' and that a plot of land cannot by any stretch of imagination be brought under the definition of or called ''goods''. But applying for allotment of a plot and paying necessary fee, therefore, is very much a case of ''availing of a service for a consideration'' and a dispute pertaining to allotment of plot/house is very much a consumer dispute and that is how there are any number of cases pertaining to plots/houses which were registered under the C.P. Act and went right up to the National Commission and the Supreme Court. We, therefore, do not agree with the learned Forum that the appellant cannot be treated as a consumer as defined in Section 2(1)(d) of the C.P. Act and to that extent, in our view, the imugned order is obviously erroneous. However, coming to the facts of the case, as revealed from the documents on record, we find that the land in question comprising the said plot No. 7 was purchased by respondent No. 1 only on 3.1.1994 by a registered sale-deed from Mr. Mahadeo Jee Mandir Trust as is evident from the copy of the registered sale-deed dated 17.5.2005 executed in favour of respondent No. 2. Thus as claimed by the appellant, the respondent No. 1 could not have any legal title thereon on that date. Besides the said transfer deed dated 17.3.1989 is not registered and as per provisions of Transfer of Property Act, no transfer of land is valid unless the same is registered. These facts as well as the preliminary objections raised by the respondent-opposite party No. 1 have not been contradicted by the appellant. The documents filed by the latter before the Forum, which are, in fact, copies of the orders of the Hon''ble High Court, Board of Revenue (M.P.) and other authorities pertaining to the working of the respondent-opposite party No. 1 society, also remains unchallenged. The contention of respondent-opposite party No. 1 that its ex-President late Shri Yograj Meshram lacked vires to transfer the plot in question in the first instance, in favour of the appellant and that the said allotment was rendered invalid as per Board of Revenue order dated 22.5.1990 which has also not been contested. The appellant also did not specify on what dates, the possession of the plot was taken, foundation laid and he was transferred. These are all very material points having direct bearing on the case. It appears the appellant has deliberately avoided giving clear details about them. Obviously, in the case there are questions of title, vires of ex-President of the respondent-opposite party No. 1 society to transfer the plot, and the very validity of the said transfer which can best he decided only by a competent Civil Court rather than the Forums constituted under the C.P. Act. However, it is an admitted fact that the appellant had deposited Rs. 3,500 on 8.9.1986 with the respondent No. 1 for allotment of a plot, and as such he is entitled to get it back with due interest. That is what he had prayed for before the Forum.

FOR the aforesaid reasons, the appeal is allowed and the impugned order of the learned FORum is set aside. It is further directed that the respondent No. 1 shall refund Rs. 3,500 to the appellant with interest @ 12% p.a. thereon w.e.f. 8.9.1986 till the date of payment within a month and shall also pay Rs. 5,000 as compensation and Rs. 2,000 as cost, failing which additional interest @ 8% p.a. on the entire amount shall be payable w.e.f. the date of this order to the date of actual payment. Appeal allowed.