P. PURI vs HUDA & ANR.

This revision petition has been filed by petitioner, Mrs. P. Puri, against the order dated 16.01.2012 of the Haryana State Consumer Disputes Redressal Commission, (in short ''the State Commission'').

Brief case of the complainant is that the complainant was allotted a plot for double storey shop and basement measuring 5.5 x 13.75 meters vide letter of allotment no.9059 dated 05.07.1999 by the OP No.2/Respondent No.2. The said plot is situated as plot No.3, Sector 4, Mansa Devi Complex, Panchkula. The total tentative price of the plot was assessed at Rs.12,10,000/-.

There was an electric poll on the plot and that is why its possession could not be taken. As the pole was not removed inspite of various requests made by the complainant, the complainant filed a consumer complaint before the District Forum, Panchkula, Haryana, (in short ''the District Forum'') praying for the following reliefs:-

"a) Direct the opposite parties to remove the electricity pole and deliver vacant physical possession of the plot in question.

b) Direct the opposite parties to pay interest @ 18% per annum (simple) on the various amounts deposited by the complainant, from their respective dates of deposit till the delivery of the vacant physical possession of the plot in question.

c) Direct the opposite parties to pay a sum of Rs.25,000/- as escalation in the cost of construction.

d) Direct the opposite parties to pay a sum of Rs.25,000/- for unnecessary harassment, mental tension and agony.

e) Direct the opposite parties to pay a sum of Rs.11,000/- as cost of litigation."

In the written statement reply filed by the opposite parties the following main points were raised:-

That the allotment of the site was made in the year 1999 and possession was delivered on 16/8/99. The present complaint has been filed on 21.7.2003. Hence the present complaint is badly time barred and is liable to be dismissed on this ground alone.

That the complainant purchased DSS in open auction. It has held by Hon''ble National Commission that a person who purchases the plot in open auction does not fall under the definition of consumer under the consumer Protection Act.

That the site is a commercial site and it does not fall under the Consumer Protection Act. The said site was purchased in open auction for commercial purpose which is an out right sale. Thus the complainant is not the consumer under the Consumer Protection Act and as held by Hon''ble National Commission 1995 (3) CPJ-3.

The District Forum vide its order dated 25.11.2004 passed the following orders:-

"a) To offer vacant physical possession of the plot after removing the underground electric cable afresh and

b) refund whole of the interest whatever charged after supplying a complete statement of account to the complainant

c) And also pay a sum of Rs.1000/- as costs of proceedings.

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

Aggrieved with the above order of the District Forum, the opposite parties/respondents as well as the complainant both preferred appeals before the State Commission. The State Commission vide impugned dated 16.01.2012 passed the following order setting aside the order of the District Forum and dismissing the complaint:-

" As a sequel to our aforesaid discussions, it has been established on the record that the complaint filed by the complaint is barred by limitation and also that the complainant does not fall within the definition of ''consumer'' as she had purchased the DSS site in an ''open auction'' for commercial purpose, without there being any assurance on behalf of the opposite parties for developing the site. District Consumer Forum has failed to appreciate all these aspects and erred in allowing the complaint. Hence, the impugned order is not sustainable in the eyes of law.

Accordingly, appeal No.639/2005 filed by HUDA is accepted, impugned order is set aside and the complaint is dismissed. Consequently, appeal No.3314/2004 filed by complainant for enhancement of compensation is dismissed."

Hence the revision petition by the complainant/petitioner.

Heard the learned counsel for the petitioner and perused the documents.

Learned counsel for the petitioner stated that the State Commission has dismissed the complaint on the basis of three grounds. The first ground was that the complaint was time barred. The second and third being that the complainant was not a consumer because she purchased the plot in an open auction and it was for commercial purpose. The learned counsel argued that there was an electric pole and underground electric wire on the plot and therefore, it was not possible to take possession and raise construction. Hence the cause of action continues till the same was removed. This view has been upheld by the District Forum as has been observed in para No.8 of the order of the District Forum, which reads as follows:-

"8. At this stage, learned counsel for the Ops has argued with vehemence that the complaint is time barred as allotment was made in the year 1999 and possession was offered on 16.8.99 and complaint filed on 21.7.2003. Again, we do not accept this contention inasmuch as the electricity pole was not removed and as such the complainant had to write letters dated 6.11.2001, 26.11.2001, 26.3.2002, 27.9.2002 and 8.7.2003 and in this view of the matter, the complainant is having recurring cause of action. Even otherwise, mere technicalities of law should not come in the way of dispensation of justice for which the Consumer Protection Act is meant. After due consideration, we reject the objections so raised."

In respect of the plot being for commercial purpose, the learned counsel argued that the State Commission has failed to appreciate that the question of the plot being commercial in nature did not arise at that point in time as it to be the subsequent usage of the said building constructed on that plot which would determine the fact as to whether the said plot was being used for any commercial purpose or otherwise. In this regard reliance has been placed upon the judgment of this Commission in the case titled as HUDA Vs. Usha Vohra; cited as IV (2009) CPJ 304 (NCDRC). So far as the question of plot having been purchased in an open auction is concerned, learned counsel argued that the auction of the plot was made in the year 1990 and the entire consideration was paid by January, 1994 and there was assurance on the part of the opposite party/respondents to develop the site in a proper way. Therefore, strictly speaking, the decision of the Apex Court in UT Chandigarh Administration & Anr. Vs. Amarjeet Singh & Ors. (2009) 4 SCC 660 will not be applicable to the facts and circumstances of the case.

I have carefully considered the arguments advanced by the learned counsel for the petitioner and have gone through the records. So far as the limitation in respect of filing of the complaint is concerned, I agree with the opinion expressed by the District Forum. The complaint was not time barred and cause of action continued because the plot in question was not handed over free from all encumbrances as the electric pole and underground electric wire were not removed from the plot inspite of various letters sent by the complainant. In this respect, the order of the State Commission is not sustainable so far as it relates to limitation of the complaint filed. However, I find substantial force in the order of the State Commission in regard to its observations and findings on the issues of complainant being an auction purchaser and purchase of plot being for commercial purpose. In the complaint itself, it is clearly stated that the complainant was allotted the plot for double storey shop and basement measuring 5.5. x 13.75 meters. The opposite parties in the reply have also clearly stated that the site is commercial site. The allotment letter dated 5.7.1999 itself mentions the subject as ''Allotment by Sale of Commercial site/building No.D.S.Shop (With Basement) 3, Sector 4 MDC at Panchkula on free hold basis''. Moreover, the complainant has not specified anything in her complaint about the proposed use of the plot purchased for earning her livelihood by self-employment. In fact the complainant has purposely not mentioned anything in the complaint about the fact that the plot was purchased by her in an open auction. It is settled position that an auction purchaser does not come under the purview of ''consumer'' as defined in the Consumer Protection Act, 1986 as per principle of law laid down by the Hon''ble Supreme Court in the case of UT Chandigarh Administration & Anr. Vs. Amarjeet Singh & Ors. (2009) 4 SCC 660.

The main grievance of the complainant has already been redressed as she herself has mentioned in this revision petition under ground No.V as under:-

"(ii) On 31.07.2003; the Local Commission inspected the site and observed that the Electric Pole has been freshly uprooted and there was an underground electric cable on the plot of the petitioner;

(iii) on 03/10/2003; when the Demarcation after removal of the Electric Pole and Underground Electric Cable was offered to the petitioner by the JE of HUDA it was found that there was an Underground Water Pipe running through the plot of the petitioner which finally was removed on 13.10.2003."

Based on the above discussion, I agree with the finding of the State Commission with regard to complainant being auction purchaser and acquiring the property for commercial purpose and hence not being a consumer. Accordingly, the revision petition having no force is hereby dismissed in limine.