PREET MOHINDER PAL SINGH vs HUDA

Petitioner/Complainant in the year 2001,purchased two plots bearing sites no.2 and 3 in Sector-1, Ambala City, in an auction conducted by Respondent/Opposite Party, for sum of 9 Lac each. Petitioner made entire payment of the aforesaid plots in the year 2003/2005. Since, petitioner wanted to raise construction over the sites in question, he deposited sum of 2,000/- each, on account of Malba security, vide receipt nos.161 and 162 dated 11.02.2005. On 30.05.2005, petitioner wrote to the respondent for demarcation of the aforesaid plots. Consequently, J.E. of respondent went for demarcation. But to the utter surprise of the petitioner, the allotted plots were not existence at the site. Therefore, physical possession of the plots could not be delivered to the petitioner by the respondent. This amounts to gross deficiency of service on the part of the respondent. Thereafter, legal notice was sent on behalf of the petitioner. The respondent vide its letter dated 6.6.2005, directed the petitioner to pay enhanced cost of the plots and fee for raising construction. Hence, petitioner filed Consumer Complaints (No.354 and 359 of 2005) before the District Consumer Disputes Redressal Forum, Ambala(for short, ''District Forum'').

Respondent in its written statement has taken a legal objection, that petitioner is not ''Consumer'' as per, the Consumer Protection Act, 1986(for short ''Act''), as sites in question are commercial one and had been purchased for commercial purposes.

On merits case of respondent is, that due to some technical reasons demarcation of the sites in question could not be done, as the layout-cum-demarcation plan at the sites had become wrong. The competent authority was requested to change the layout-cum-demarcation plan of the shopping centre, where the plots in question exists. Necessary permission is likely to be granted by the competent authority very shortly. As soon as, the amended/changed layout-cum-demarcation plan is received from the competent authority, plots in question would be got demarcated and physical possession would be delivered. Due to some mistakes, the layout-cum-demarcation plan of shopping centre, where plots in question exist has been got changed.

District Forum, vide its separate orders dated 16.10.2006, allowed both the complaints and passed common following directions to the respondent; " (a) To offer and deliver the possession of the plot after demarcating the same on the site to the Complainant;

(b) Not to charge any interest on the amount of instalment if any remains to be paid till the possession of the plot is offered and delivered to the complainant;

(c) To refund the amount of interest charged and received from the complainant by the O.P., to the complainant alongwith interest @ 18% p.a. from the date of deposit till its payment;

(d) to pay interest @ 12% p.a. on the principal amount of instalments paid by the complainant from the date of deposit till the possession of the plot in question is offered and delivered to the complainant;

(e) To pay 25 ,000/- on account of escalation in the cost of construction material.

(f) To pay 2000 /- for causing mental torture and harassment etc.

(g) To pay 1 ,000/- as litigation expense ."

Since, directions passed by District Forum were not complied by the respondent within the time, the petitioner filed (Execution Petitions No.187 and 188 of 2006) before the District Forum, for execution of its order dated 16.10.2006.

During pendency of the execution petitions, respondent filed (First Appeal Nos.966 and 967 of 2007) before the State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, ''State Commission''), in which there was delay of about 135 days. However, petitioner had no knowledge of the appeals.

In execution proceedings, on 07.06.2007 Mr.B.S. Kunda, AEM (an official of respondent) appeared before the District Forum. He handed over two cheques for the sum of 9,19,802/-and 9,75,750/-in the respective complaints, and prayed for some time to give possession of the plots. Thereafter, in pursuant to the order of District Forum, respondent handed over physical possession of plots to the petitioner on 14.01.2008.

After getting possession of the plots, petitioner did not pursue the execution proceedings. Consequently, the same were dismissed in default.

Since, no occupation certificate was granted to the petitioner, he filed(Complaints No.428 and 429 of 2009) before the District Forum. In year 2010, occupation certificate was granted. Therefore,(Complaints No.428 and 429 of 2009) were withdrawn by the petitioner.

Thereafter, State Commission vide impugned orders, allowed both the appeals of the respondent, on the ground that plots in question had been purchased for commercial purposes and being an auction purchaser, petitioner is not a ''consumer''. It further observed; " That since complaints itself were not maintainable and anything granted during the compliance of the order, has to be returned by way of restitution in terms of decision in the appeal. However, liberty was given to the petitioner, to seek remedy before the Civil Court . "

After above order of the State Commission, respondent sent demand letters to the petitioner seeking refund of the amount, which was paid during the execution proceedings, as per the directions of the District Forum.

Hence, these revisions.

We have heard the learned counsel for the parties and gone through the record.

It is an admitted fact, that plots in question were sold in auction in the year 2001, i.e., prior to the amendment of Section 2(1)(d)(ii) of the Act. The aforesaid amendment was made by the Act 62 of 2002, applicable w.e.f. 15.3.2003. By the aforesaid amendment, any person who avails any services for consideration for any commercial purposes was excluded from the purview of the Act. Therefore, prior to 15.3.2003, a person who avails service for consideration for commercial purpose was treated as ''Consumer'' as defined under Section 2(1) (d) (ii) of the Act.

Since, petitioner had purchased the plots though an auction, for commercial purposes in the year 2001, i.e., prior to the aforesaid amendment, the petitioner has to be considered as a ''Consumer'' as per provision of the Act, prevailing as in the year 2001. Therefore, there is no merit in this plea of the respondent.

Admittedly, as per written statement of the respondent, due to some mistakes and technical reasons, demarcation of the plots in question could not be done. It was done later on only when revised layout-cum-demarcation plan was received by the respondent from the competent authority. Thus, as per respondent''s own case, it was itself negligent in these cases.

In view of the aforesaid facts as admitted by the respondent, we fail to understand that when respondent was itself at fault, then how it can penalise the petitioner for its (Respondent''s) wrong.

Therefore, deficiency on the part of respondent is writ large in this case. The petitioner, on the other hand having paid the entire amount as demanded by respondent, was not allotted the plots for a large number of years.

Therefore, we have no hesitation in holding, that the State Commission has committed grave error in allowing the appeals of the respondent. The impugned order passed by the State Commission is patently wrong and illegal. Accordingly, we set aside the same. Consequently, the complaints filed by the petitioner stand allowed. The present revision petitions stand disposed of accordingly.

No order as to cost.