PAWAN KATIAL vs ANSAL HOUSING AND CONSTRUCTION LTD., PANCHKULA

WHETHER the considered judgment of the National Commission would cease to hold the field, the moment a special leave petition is admitted against it by the Hon''ble Supreme Court? WHETHER the consumer jurisdiction is ousted in a situation where the promoter-builder chooses to frame the ultimate agreement with its allottees in the phraseology of a lease-hold betwixt a proposed lessee and the lessor? These are the two significant threshold questions in this set of two connected complaint Nos. 20 & 22 of 1992.

FOR the limited purpose of this order disposing of the preliminary jurisdictional objections raised by the opposite parties, it is unnecessary to delve deeply into the facts. It suffices to mention that M/s. Ansal Housing and Construction Limited on their own showing are part of a well reputed group of promoter-builder companies at the national level. According to the complainant, they advertised in ''The Tribune'' dated 7th of February, 1989 for the sale of the show-rooms and office flats on free hold land in a scheme styled as Sampark Shopping-cum-office complex in City Centre at Panchkula vide Annexure C-1. The five complainants applied for the allotment therein and the project sale note given by the opposite party is Annexure C2. It is their case that the agreement for the transaction was not available at that time, and was made available only nine months after the applications alongwith initial deposits had been submitted. The commitment conveyed to the complainants by the opposite party was that the constructed spaces allotted to them were to be handed over in the month of October 1990, but possession infact was offered only in February 1992 and that too without water supply, sewerage and electricity. The opposite party by a letter dated the 26th of February, 1992 demanded enhanced price from the complainants from what they had agreed to and it is their case that a sum of Rs. 3,41,707.50p was claimed as the additional amount. Aggrieved thereby the present complaint has been preferred making a grievance with regard to the increase in super area, the charges for covered balcony, escalation charges, electric connection charges, delay in handing over possession and charging of interest and charges for Star Estate Services Private Limited. Reliance was placed on documents Annexure C-1 to C-9. (The representative facts are taken from complaint case No. 20). On notice being issued the opposite party confined its reply to raising preliminary jurisdictional objections alone whilst craving leave to file a detailed parawise reply to the complaint on the 8th of June, 1992 after their disposal, if necessary. The relevant part of preliminary objection No. 1 deserves notice in extenso as under:- "That this Hon''ble Commission does not have jurisdiction to try this case as the complainant herein is not a ''consumer'' as defined under Section 2(1)(d) and the activity of the respondent as a ''builder'' does not constitute a ''service'' under Section 2(1)(o) as defined under the Consumer Protection Act."

It is then the plea that whether the activity of a builder constitutes a service under the Act is a question pending consideration before the Hon''ble Supreme Court against the order passed by the National Commission in ''Lucknow Development Authority v. M.M. Sud'' wherein the Supreme Court has stayed the operation of the order passed by the National Commission. It is stated that subsequently the National Commission by an order dated 24th of April, 1992 (Annexure R-1) has postponed the consideration of certain revision petitions.

The pecuniary jurisdiction of the Commission has been assailed on the ground that the aggregate quantum of relief on behalf of all the five complainants amounts to more than Rs. twelve lacs as per Annexure C-8, and thus beyond the prescribed limit of Rs. ten lacs.

A reply to the preliminary objections was filed on behalf of the complainants and the matter was argued by the learned Counsel in part, wherein reliance on behalf of the opposite parties for the first time was placed on I (1992) CPJ 3 (NC) ''Laxmiben Laxmichand Shah and Others v. Sakerben Kanji Chandan & Ors.'' However, it is manifest that the objections of the nature covered by the said precedent had not even been remotely taken in the reply filed by the opposite party. Mr. Gupta, therefore, sought leave to add to the pleadings in the preliminary objections and subsequently filed additional preliminary objections, therefor. Therein this fresh plea has been taken that the arrangement between the complainants and the opposite party is only one of a lessor and a lessee of immovable property and for this added reason, it does not fail within the ambit of the definition of ''a service'' and is consequently outside the scope of the consumer. A reply to this additional plea has also been filed by the complainants. The somewhat significant issues arising have been argued at considerable length by the learned Counsel for the parties. Now the first primal and forceful submission of Mr. Gupta is that the opposite party M/s. Ansal Housing & Construction Ltd. is engaged in the activity of a promoter-builder and this arena does not come within the ambit of ''a service'' as defined under the Act under Clause (o) of subsection (1) of Section 2. The foundational base for this submission is that the National Commission in Lucknow Development Authority v. M.M. Sood (First Appeal No. 10/92) had in accordance with its earlier decision taken the view that the activity of a promoter-builder does constitute a service under the Act. However, a special leave petition was taken against the said judgment before the Hon''ble Supreme Court and their Lordships have admitted the same and granted stay of the operation of the specific order in that case. The gravamen of the contention is that by virtue of the said admission, the ratio of the whole line of earlier decisions of the National Commission holding that the activity of a promoter-builder is a service ending with Lucknow Development Authority (supra) now stands oblitrated or suspended till the decision of the case by the Hon''ble Supreme Court. It was therefore, the prayer that either the complainants be non-suited entirely on this ground or in any case in the alternative, the complaints be adjourned sine die till the final decision of the Apex Court.

THE contention aforesaid undoubtedly raises a point of considerable and indeed vital significance in the consumer jurisdiction. THErefore, it deserves a somewhat exhaustive examination in depth even at the cost of some prolixity in the context of a decision of preliminary objections. As noticed already, the learned Counsel for the parties have been very vehement in their rival stands. It is first necessary to view the matter in a somewhat larger perspective. No great erudition is needed to notice that the Act has created a hierarchy of redressal agencies beginning from the bottom rung of the District Forum and rising to the apex level of the Hon''ble Supreme Court to which appeals lie as a matter of right against the orders of the National Commission in original complaints by virtue of Section 23 of the Act. The working of the consumer jurisdiction over the past five years would again leave no manner of doubt that this hierarchy of redressal agencies perform quasijudicial functions. Therefore, they have stood squarely governed by the concept and theory of precedent which is the linch-pin of our legal system. Indeed this Commission has taken a view that the State Commission is bound by its own previous judgments in its somewhat exhaustive order now reported in I (1992) CPJ 127, S.D.O. AEE Sub-Division Hissar v. M/s. Hotel Palki Hisar. It has been held as under:- "To finally conclude in the light of the aforesaid discussion the answer to the question posed at the out-set is rendered in the affirmative. It is held that the State Commission must be bound by its own previous decisions on pure questions of law."

Once it is held as above, it is axiomatic that this Commission is doubly bound by the considered decisions on issues of law rendered by the National Commission. Should it refuse to be so bound merely on the ground that an appeal has been taken against them to the Supreme Court, is therefore, the crucial question.

NOW there is no again-saying the fact that ever since the decision of the National Commission in I (1991) CPJ 1 (NC), U.P. Avas Evam Vikas Parishad (Housing & Development Board) v. Garima Shukla & Ors., rendered way back the 27th of July, 1989, it has been consistently held in the consumer jurisdiction that persons or bodies engaged in the activity of promoter-builders for the public are rendering a service within the meaning of its definition under the Act. The material observations in the judgment are as under:- "The mere fact that the Housing Development Board is a statutory body does not mean that it is outside the purview of the Consumer Protection Act. The Housing & Development Board is engaged in serving the public in the matter of providing housing by Aquisition of land, development of sites, construction of houses thereon and allotment of plots houses to the public. The Board is clearly engaged in rendering service for consideration to the public and therefore those who are allotted plots/ houses from the Board are clearly consumers falling within the definition in Section 2(1)(d)(ii) of the Act. Again under Section 2(1)(o) of the Act the definition of the term "service" is very comprehensive it means "service of any description" including banking, financing, insurance, transport, processing supply of electrical or other energy, entertainment etc. This leaves no room for doubt that the type of service which the Board renders to the public for a consideration is clearly covered by Section 2(1)(o)."

THE aforesaid view was sought to be challenged soon thereafter in I (1991) CPJ 7 (NC), U.P. Avas Evam Vikas Parishad (Housing & Development Board) v. C.P. Sharma & Ors. However, the National Commission rejected the challenge and reiterated its view in no uncertain terms therein. THEreafter this view has consistently held the field and the orders of the National Commission and the State Commissions as also of the District Forum granting relief on that basic premise are legion, to which individual reference would be wasteful. Suffice it to mention that the National Commission in the Lucknow Development Authority (supra) has again adhered to that view. It would be evident from the above that the core of issue is whether the admission of the special leave petition against the aforesaid cases by the Supreme Court has rendered the consistent stream of the precedents of the National Commission and the State Commission wholly otiose till the decision is rendered in the said appeal by their lordships. We do not think so. It is well-settled on the larger theory of precedent that a judgment of a Court holds the fields and is binding on the Courts below till it is expressly reversed or over-ruled by a larger Bench or a Superior Court. The mere filing of an appeal or the admission of a special leave petition by their Lordships of the Supreme Court does not ipso facto obliterate its reasoning, or the ratio thereof. It is merely as yet put in issue but is in no way wiped off the slate. Nor does the stay of a specific judgment whilst admitting the appeal against it (which is some times a matter of course), would be of any further significance in this context. Such an order operates as a stay of the particular judgment. It cannot operate as a stay of the ratio, reasoning and the principle which forms foundation of that judgment till it is actually set aside and substituted by that of the Appellate Court. Were it to be otherwise, the situation in the well-ordered field of a legal system governed by precedent would be rendered chaotic. We are of the view that the basic premise of Mr. Gupta''s argument is fallacious and runs contrary to the hallowed theory of precedent which governs our legal and quasi judicial Systems. Consequently this submission that the admission of special leave petition against the judgment in Lucknow Development Authority''s case (supra) has obliterated all earlier judgments of the National Commission on the crucial point or in any case has suspended their effect appears to us as patently unsustainable. Once that is so it would necessarily follow that this Commission continues to be bound by the precedents of the earlier orders of the National Commission on the point.

Indeed it appears to us that the stand taken on behalf of the opposite party if subscribed to would lead to startling and inequitous results. Taking the particular example in hand the precedents of the National Commission have brought the promoter-builder and the allottee''s relationship squarely within the consumer field. If it were to be held that because of the pendency of the case aforesaid before their Lordships of the Supreme Court, the earlier ratio of the judgments no longer holds the field, the consumers in this class would be left without redress and remedy meanwhile. Inevitably their Lordships are pre-occupied with Constitutional matters of great import and national legal issues of equal significance and the resolving of the relatively less important consumer issues must bide their time. Meanwhile if the judgments of the National Commission under appeal cease to hold the field, the consumer jurisdiction for this particular class would ham-strung if not rendered nugatory as against its professed ideal of expeditious disposal of complaints within 90 to 150 days. The matter has to be viewed not merely in the context of the Apex Court but equally with regard to the challenges made in the various High Courts as well. The National Commission in its recent land-mark judgment in M/s. Cosmopolitan Hospitals & Anr. v. Smt V.P. Santha and Ors. First Appeal No. 48 of 1991, decided on April 21,1992 has held that the Doctor-patient relationship is equally within the field of a service and therefore, subject to consumer jurisdiction. This issue as evident from the recent press report has been carried before the Delhi High Court in the writ jurisdiction and stands admitted. Would it then follow that the order of the National Commission would cease to hold sway by virtue of the pendency of the said writ petition which inter alia challenges the very Constitutionality of the Act and would inevitably take sometime for final decision. Meanwhile would the meaningful arena of medical accountability remain stalled? We are not inclined to think so. For this additional reasoning also even if two views are possible we must avoid one which leads to such anomalous results.

IN the alternative, Mr. Gupta had then fallen back on the ancillary plea that the National Commission in an interim order dated April 24, 1992, passed in Sushil Ansal v. G.S. Khushwaha & Ors. (apparently a sister concern of the opposite party ) Revision Petition No. 7682-83 to 8894 of 1992 had itself adjourned the said case sine die on this score. We have been taken through the few lines of the said brief order but are wholly unable to construe it as a warrant for adjourning all the consumer disputes betwixt promoter-builders and their allottees sine die all over the country. It is well-settled that an interim order is not a judgment nor would it have a ratio which is applicable as a matter of law. INevitably, such orders are tailored to the particular exigencies before the Court. It is well-settled since the hallowed decision in Quin v. Leathem, 1901 Appeal Cases, 495 in the immemorable words of Lord Halsvur that a decision is an authority for the ratio and reasoning thereof and not for all matters ancillary thereto. We must record our inability to construe the short order in Sushil Ansal v. G.S. Khushwaha & Ors. (supra) as a mandate for halting the consumer jurisdiction qua promoter-builders and their allottees in its tracks, and to forbid the somewhat harassed class of consumer-allottees, to avail the beneficent jurisdiction extended to them by the Act as authoritatively enunciated by the National Commission. On a closer analysis however, it appears to us that the reliance on Sushil Ansal v. G.S. Khushwaha & Ors. (supra) by the opposite party would indeed boomerang strongly on their case. This would be so when the order is construed in is proper perspective. By a reference to I (1991) CPJ 662, G.S. Khushwaha v. Sushil Ansal & Ors., it would appear that a complaint was filed before Delhi State Commission by Shri G.S. Khushwaha against Sushil Ansal and others with regard to their shopping complex known as Bhikaji Cama Place. During the pendency thereof a writ petition was carried before the Delhi High Court apparently M/s. Sushil Ansal & Ors. challenging the jurisdiction of the State Commission. The Delhi High Court passed an order that the promoter-builder should raise the question regarding the jurisdiction of the State Commission before the Commission itself and this should be decided as a preliminary issue. In conformity therewith, the Delhi State Commission in the aforesaid case considered the matter in depth and concluded as under:- "The word ''service'' as is evident from the definition, has a very wide meaning. It in our view, includes building of houses for the purpose of providing accommodation to the public. The purchaser of a house from a builder, therefore, becomes a consumer. After taking into consideration all the above said circumstances, we are of the view that the complainant has a right to file complaint against defendant No. 1."

IN holding as above, the Delhi State Commission placed reliance on the basic judgment of the National Commission in U.P. Avas Evam Vikas Parishad v. Garima Shukla & Ors. (supra). It would appear that against the said order of the Delhi State Commission and similar orders revision petitions were taken before the National Commission in Sushil Ansal v. G.S. Khushwaha & Ors. (supra) relied upon by the opposite party. It was in this situation that the National Commission has declined to re-consider its consistent view and adjourned the revision petitions sine die. Therefore, viewed in the proper perspective, this order is indeed a re-affirmance of the earlier view that the promoter-builder and allottee''s relationship constitutes ''a service'' as defined under the Consumer Protection Act and the National Commission has refused to review or re-consider the same until and unless the Supreme Court holds otherwise. Therefore, this interim order far from helping the opposite party, seems to go directly against their stand. In the light of the somewhat exhaustive discussion the answer to the first question posed at the outset is rendered in the negative. It is held that a considered judgment of the National Commission does not cease to hold the field merely because a special leave petition is admitted against it by the Hon''ble Supreme Court. Once it is held as above, the primal preliminary objection must fail and is rejected. Nor do we find any merit in the ancillary submission that meanwhile all the cases including the present complaints must be adjourned sine-die.

ONE may now advert to the second meaningful objection and issue raised on behalf of the opposite party. In the alternative an additional preliminary objection to the maintainability of the complaint has been filed on the basic ground that the arrangement between the complainants and the opposite party is only one of the lease of immovable property. It is sought to be contended that any alleged default or omission on the part of the opposite party which is complained of pertains to its obligations under the agreement between a lessor and a leasee of immovable property. It is the case that such a grievance would not fall within the scope of the consumer dispute, but is one which arises entirely out of a breach of a lease agreement and, therefore, cognizable only by a Civil Court or under the relevant provisions of the rent Acts applicable. Basic reliance is on I (1992) CPJ 3 (NC) Laxmiben Laxmichand Shah and Others v. Sakerben Kanji Chandan & Ors. (supra).

IN supporting the aforesaid submission, the basic reliance of Mr. B.R. Gupta, the learned Counsel for the opposite party is on the standard form of the agreement to lease betwixt the allottees and the opposite party. The execution of such an agreement is not contested on behalf of the complainant. Referring to the somewhat exhaustive thirty clauses thereof with two schedules attached thereto, Mr. Gupta contended that the said agreement or the face of it stated itself to be a lease and the opposite party was therein labelled as a lessor and the complainants as proposed lessees. Reference was made to the phraseology of letting out the areas to he allottees and the fact that the lease deed purported to be only for ten years. It was the case that this also provided for the payment of rent, and the fact that all ownership rights in the plot and the building shall continue to remain with the lessor. The aforesaid submission though somewhat attractive on the first flush on a closer and indepth consideration is fallacious in the context of the consumer jurisdiction. What first deserves the most prominent notice is the fact that the opposite party in their original reply to the complaint have themselves taken the firm plea that their business activity is one of a builder which does not constitute a "service". The relevant pleadings had already been quoted in para No. 3 and need not be repeated. Indeed the whole gravamen of the basic reply and the aforenoted first preliminary objection is itself rested wholly on the ground that the opposite party is a promoter-builder and for that reason does not come within the ambit of a service. Therefore, on their own showing the opposite party comes within the category of promoter-builders and it does not lie in their mouth now to turn down and take a contradictory stance that they are either landlords giving properties on rent or lessors leasing them out. Indeed, they are estopped to take this contradictory alternative plea and can plainly be non-suited on that ground alone.

However, since the issue has been raised and argued, and is one which is not without significance, and is likely to recur in other cases as well, it is apt to dispose of the same. It deserves recalling that the Magna-Carta of the consumer jurisdiction in this field is the ''U.P. Avas Evam Vikas Parishad (Housing & Development Board) v. Garima Shukla & Others''. The terse ratio of the said case bears repetition: "A housing and Development Board is engaged in serving the public in the manner of providing houses by acquisition of land, development of site, construction of houses thereon and allotment of plots and houses to the public."

FROM the above, it would be somewhat manifest that the National Commission has held that the acid test for determining whether a person or a body is a promoter-builder extending the services to the public depends on the activities of such a nature and certainly not on the niceties of legal drafting, which may be resorted to at the middle or the end stage of the transaction. The question is one of substance and not of form. The acid tests therefore, to be applied herein are whether the opposite party is engaged in the activity of acquiring land, developing the site thereon, making building constructions thereat and subsequently offering and allotting the same to the public. There is no gain saying the fact that the opposite party satisfies virtually all these tests. Once that is so, the ratio of the aforesaid case is attracted to the situation and in our view cannot be ousted by the subsequent subtlety of legal drafting which may wish to give the garb of a lease to a clear-cut transaction between the promoter-builder and his allottees. Viewing the matter in the aforesaid perspective, it would appear that there are a host of factors which point an unerring finger to the real nature of the transaction or the arrangement betwixt the complainants and the opposite party. As the very name of the company indicates, it is the Ansal Housing and Construction Limited on virtually their own showing, the entity is a promoter builder of great repute and a part of a group of companies engaged in such an activity at the national level. They are apparently a sister concern of the Ansal Housing Finance and Leasing Company Limited, which originally launched the Ansal Sampark Shopping-cum-office complex at Panchkula-. The admitted advertisement at the threshold stage even before the construction, deserves notice in their own words :- "You have seen how Panchkula has grown over the years. Throwing up demands for amenities like a shopping centre. HUDA, rising to the occasion has rightly planned the city centre in Sector 5 of Panchkula. With plans to develop commercial space to meet the growing demand. A Sector 17 of Chandigarh in the making in Panchkula. And right here in the middle, Ansals locate their prestigious shopping-cum-office complex-Sampark. The first of its kind offering you the right place at the right time."

IT would be manifest from the above that the opposite party held itself out as a promoter-builder of the Ansal Shopping Complex and offered space in the proposed construction therein to the public on the terms and conditions to be specified. These are again a significant pointer to the nature of the transaction. Annexure C-2 undisputedly issued by or on behalf of the opposite party gave the nature of the proposed structure consisting of a basement and three floors thereon. The rate offered to the public was at a premium of Rs. 315/-, Rs. 1250/-, Rs. 445/- and Rs. 425/- per sq. ft. Note 4 in this document deserves notice in extenso: "The rates quoted above are for covered area plus proportionate share of area under common passages, lifts, staircase and the recessed space below window sell etc. super area basis, Covered balconies will be charged at half rate."

Reference may next be made to the documents Annexures C-3 to C-7 patently issued by the opposite party No. 1 on their letter-head. These are the statements of accounts with regard to each one of the complainants. The entries therein are significantly tell-tale. Item No. 1 mentions in terms the cost of the flat. This cost is further sub-divided according to the final area allotted in sq. ft. and the rate in terms so mentioned is variable from Rs. 400/- to Rs. 425/- per sq. ft. The total cost of each flat is then worked out to the tune of approximately Rs. three lacs each varying on the basis of the precise area and the rate chargeable for each of the complainants. The balance due after giving credit for the amounts already received against this cost is then struck. In as many as three of these statements of accounts, no lease, rent at all is mentioned. Turning now to the standard form of the agreement which is the sheet-anchor of the opposite party. What deserves highlighting is the fact that the firm case of the complainants is that for the first nine months from the advertisement when the major incidents of the transactions were completed, no such agreement was available far from being actually executed. It was only at the later stage that the complainants were confronted with a fait-accompli and required to sign at the dotted lines of the printed agreement. This apart even a reference to some of the clauses of this agreement gives the lie-direct to the stand taken on behalf of the opposite party. In particular clause 3 thereof obliges the proposed leasee to pay the premium for the space to be calculated on the basis of the rate per sq. ft. of covered area and was payable in any one of the three modes in plans ''A'' ''B'' and ''C. Plan ''A'' in terms refers to a payment of 10% after the completion of excavation work and thereafter 10% on the completion of basement foundation; basement roof slab; ground floor roof slab; 1st floor roof slab; second floor roof slab; superstructure; internal plaster ;external plaster; internal painting and white wash; and the last instalment of 5% at the time of giving possession.

YET again Clause 11 of the said agreement provided that if after the date of its execution the cost of development of construction of buildings increases for any reason, the increased cost will be treated as part of the premium to be paid by the allottee pro-rata. Particular reference was made to the prevailing prices of cement, tor-steel average and unskilled labour. It was provided that the escalation on this basis of increased cost shall be binding on the parties, if a certificate to that effect is issued by the architect of the opposite party.

IT would be somewhat manifest from the above that the transactions prior to the execution of the agreement and equally the afore-noted terms of the agreement itself would leave no manner of doubt that the constructed space which the opposite party was offering to its allottee was at a price calculated at the prevalent rate of construction liable to be enhanced by any future rise of such construction cost, and the charges to be made for covering balconies etc., and all other incidents of allotting office and commercial space to the public. Plainly enough, when viewed in the larger perspective, these are patent and unerring incidents of promoter-builder activity alone. These are wholly inconsistent with any renting out transaction of ownership premises. Merely labelling them as such would in substance be of no consequence. The background against which the said standard form agreement has been drafted provides a clue to the legal nicety and the phraseology employed therein. On their own showing the opposite party had participated in the public auction held by the Haryana Urban Development Authority (HUDA) and acquired the site as per the terms and conditions of the allotment letter and subject to the provisions of the HUDA Act, 1977 and the regulations framed thereunder. The said site was to be transferred to the opposite party only on the payment of its full price. Regulation 5(3) provides that the allotment of letter in case of commercial plots/ buildings disposed of by allotment are to be in the shape of the prescribed from ''C thereof. Para 17 of the said form lays down conditions within which the construction is to be completed and expressly provides that no fragmentation of any land or building shall be permitted. Inevitably the opposite party had, therefore, to remain within the para-meters of the letter of allotment issued in their favour by HUDA and in particular with regard to the forbidding of any fragmentation of the building constructed thereon. It is to conform to the said necessity of the situation that the standard form agreement has been modulated and labelled as a proposed lease. However, the compulsions of the opposite party in this context cannot alter the basic transaction betwixt them and allottees nor can they be allowed to merely cloak it for their unilateral benefit.

It remains to advert to ''Laxmiben Laxmichand Shah and Others v. Sakerben Kanji Chandan & Ors. (supra), which is the main plank of Mr. B.R. Gupta in the context of this objection. However, a close reading of the said order would clearly indicate that it is in no way attracted to the present situation. Therein the basic factual matrix was noticed by the National Commission in the following orders :- "The complainant occupied the flat as a tenant soon after the construction of the building was completed on a monthly tenancy basis. The gist of the grievance put forward by the complainant is that the respondents have neglected and refused to provide most of the amenities which were agreed to be made available to the tenant and it is alleged that the complainant and the members of her family have suffered mental agony, ill health and injury to their reputation "by reason of the respondent''s failure and refusal to perform her contractual and legal duties of maintaining the building in tenable condition fit for human residence. On this ground she has prayed for the recovery of a sum of Rs. 65,14,143/- from , the respondent by way of compensation.

IT was in the aforesaid context that the National Commission took the view that it was patently a case of landlord-tenant dispute, which would obviously not fall within the purview of the consumer jurisdiction. Plainly enough that is not even remotely the situation here. The complainants far from having occupied any flat are yet crying-hoarse about the escalation of the costs thereof by the opposite party. No question of any grievance with regard to the amenities in the flat after occupation thus arises. The ratio of the aforementioned decision is thus totally off the mark herein. We are unable to read the same as any warrant for the proposition that an essentially promoter-builder and allottee relationship can be so cloaked by a subsequent agreement in order to oust the consumer jurisdiction. In the end one most notice in the larger perspective that the Act is a beneficient statute and particularly orientated against any hypertechnicalities. The definitions of a consumer and a service is wide-rangingly drafted to grant relief to the larger class of consumers created thereby. Equitable consideration in its application are the more significantly relevant ones as against the legalistic hair-spliting with regard to its applicability. It is well settled that the equity Court will always pierce the veil of form in order to arrive at the real nature and substance of the transaction. In the basic case of ''U.P. Avas Evam Vikas Parishad (Housing & Development Board) v. Garima Shukla & Others'' (supra), the National Commission did not even remotely lay down that the promoter-builder relationship would turn on the legal niceties of the form in which the last agreement is couched. It went by the larger and broader consideration of judging the matter on the ground whether the opposite party was providing the service to the public with regard to housing by means of the acquisition of the land, development of sites, construction of houses thereon and later allotment of plots and houses to the public. That description fits the opposite party like a glove. Even otherwise, it has been shown above and concluded in para 29 that even the terms of the agreement were patent and unerring incidents of promoter-building activity alone and wholly inconsistent with any landlord, tenant relationship.

IN the light of the aforesaid discussion, the answer to the second question posed at the out-set has to be necessarily rendered in the negative. It is held that the consumer jurisdiction is not ousted in a situation where the promoter-builder chooses to frame the ultimate agreement with its allottees in the phraseology of a lease-hold betwixt a lessor and a proposed lessee. Once it is held as above, it is obvious that the second preliminary objection of the opposite party must fail and is rejected. Lastly a reference must be made to the grievance made on the point of pecuniary jurisdiction in complaint case No. 20 of 1992 only. What deserves highlighting is the fact that the complainants themselves assessed the jurisdiction valued at approximately rupees nine lacs and the individual claim of each complainant being more than rupees one lac in the very heading of the complaint itself. Significantly in the ultimate paragraph with regard to reliefs no computed sum of compensation was at all mentioned. It is well settled that the preliminary question of pecuniary jurisdiction has to be on the basis of its evaluation by the party which seeks relief by way of a plaint or a complaint. The complainants had clearly evaluated the same within the bounds of rupees ten lacs which is the financial para-meter of the State Commission. In this situation the opposite party''s objection on the basis of C-8, which in detail worked out the excess/unjustified charges separately from the compensation claim is hardly tenable. This was sought to be so on the ground that if the two items were totalled, the amount would exceed rupees ten lacs. However, on this score also the matter is now simplified by the clear-cut statement of the learned Counsel for the complainants that he would confine the total monetary relief herein to within rupees ten lacs. This plainly enough takes care of any technical quibbling on this score. The challenge to the jurisdiction on this score, therefore, must be repelled.

FOR the fore-going reasons, all the preliminary objections are hereby rejected. The case will now proceed on its merits. Preliminary objections dismissed.