Ramesh Chowdhary vs HARYANA URBAN DEVELOPMENT AUTHORITY

THIS appeal is directed against the order passed as Zimini order dated 8.12.2004 by District Consumer Disputes Redressal Forum -II, U.T., Chandigarh (for short hereinafter to be referred as District Forum) vide which the complaint was disposed of by directing the complainant to get the Redressal of his grievances against the O.Ps. by filing a regular civil suit on the ground that the District Forum had got no jurisdiction to decide the complaint case as the service booth site No. 175, Sector 16, Panchkula was purchased from the original allottee Shri Bhim Sain Bansal, Sh. Mohinder Pal Bansal, Smt. Vidya Rani and Smt. Krishna Rani for commercial purpose.

THE short question before us in this appeal is whether the complaint filed by the complainant before the District Forum raises a question for hiring and availing service for commercial purpose and not covered by the explanation appended to Section 2(1)(d) of the Consumer Protection Act, 1986 (for short hereinafter to be referred as C.P. Act). At the very outset, it may be mentioned that the District Forum did not take into consideration the facts pleaded in the complaint case and while admitting the complaint vide order dated 6.10.2004, the complaint was admitted after hearing the learned Counsel for the complainant Shri P.K. Kukreja, Advocate. Section 12 of the C.P. Act as amended by Amendment Act 62 of 2002, which has been enforced w.e.f. 15.3.2003, deals with the manner in which the complaint shall be made. Section 12(3) provides ,''On receipt of a complaint made under Sub -section (1), the District Forum may, by order, allow the complaint to be proceeded with or rejected; Provided that a complaint shall not be rejected under this sub -section unless an opportunity of being heard has been given to the complainant; Provided further that the admissibility of the complaint shall ordinarily be decided within twenty -one days from the date on which the complaint was received.''

SUB -section (4) of Section 12 of the C.P. Act provides ''Where a complaint is allowed to be proceeded with under Sub -section (3), the District Forum may proceed with the complaint in the manner provided under this Act; Provided that where a complaint has been admitted by the District Forum, it shall not be transferred to any other Court or Tribunal or any authority set up by or under any other law for the time being in force.''

IN this case, the District Forum heard the learned Counsel for the complainant on 6.10.2004 and passed an order about the complaint being admitted and registered. The notice was ordered to be issued to the respondent for 8.12.2004. On 8.12.2004, assistant of O.P. No. 1 Shri Malkiat Singh was present. Shri P.K. Kukreja, Advocate was present for the complainant and vide impugned order passed on 8.12.2004, the complaint has been held to be not within the purview and jurisdiction of the C.P. Act being for commercial purpose and the complainant was directed to file a Civil Suit before a Civil Court of competent jurisdiction for redressal of his grievances. This order has been passed in contravention of the proviso appended to Section 12(4) of the C.P. Act. Once the complaint was admitted after hearing the learned Counsel for the complainant, then it was to be proceeded in the manner provided under the C.P. Act. In the second place, the District Forum did not take into consideration the earlier round of litigation, which was held in respect of this property before the District Forum, State Commission and the Honble National Consumer Disputes Redressal Commission, New Delhi (for short hereinafter to be referred as National Commission). The earlier complaint, which was registered as No. 19 of 1998 was allowed by the District Forum and appeal against it being No. 21 of 2002 was dismissed by this State Commission and a revision preferred before the Honble National Commission bearing No. 521 of 2002 was also dismissed. It is also not disputed that the respondent complied with the order passed by the District Forum and the aforesaid service booth site No. 175, Sector 16, Panchkula was transferred in the name of the complainant who are transferee from original allottees. It thus abundantly clear that in the instant case, there was no dispute directly relating to the service booth site No. 175, Sector 16, Panchkula and there are no allegations made against the respondent regarding hiring and availing the services for or in connection with the said service booth site No. 175, Sector 16, Panchkula directly.

THE dispute, which has been raised in this complaint, is that the respondent -Haryana Urban Development Authority was approached by the complainant for sanctioning the building plan, which was unnecessarily delayed and, as such, the respondent -Haryana Development Authority rendered deficient service and adopted unfair trade practice for which compensation was claimed. These averments made in the complaint do not in any way relate directly regarding the service booth site No. 175, Sector 16, Panchkula, which is said to have been purchased for commercial purpose.

THE Honble National Commission in the case of ''M/s. Harsolia Motors v. M/s. National Insurance Company Limited'' I (2005) CPJ 27 (NC)=First Appeal No. 159 of 2004 decided on 3.12.2004 as held that it is to be found out, (i) whether goods are purchased for resale or for any commercial purpose? Or (ii) whether the services are availed for any commercial purpose? By way of illustration, the Honble National Commission cited an example of a manufacturer who was producing one product ''A. It was held that for such production, he may be required to purchase articles, which may be raw -material, then purchase of such articles would be for commercial purpose. As against this, the same manufacturer if he purchases a refrigerator, a television or an air -conditioner for his use at his residence or even in his office, it cannot be held to be commercial purpose and for this purpose he is entitled to approach the consumer Forum under the Act. The other example cited is of a hospital. A hospital, which has hired the services of a medical practitioner, it would be a commercial purpose but if a person avails of such services for his ailment, it would not be a commercial purpose. The Honble National Commission observed as under : ''Further, from the aforesaid discussion, it is apparent that even taking wide meaning of the words ''for any commercial purpose it would mean that goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose.''

In the instant case, the hiring and availing of the service of the respondents by the appellant for sanctioning a building plan cannot be held to be directly intended to generate profit and, consequently, it would not be a commercial purpose. The District Forum, it would appear, did not take all these facts into consideration. The impugned order is unsustainable in law for violation of the proviso appended to Section 12(4) of the C.P. Act and also contrary to law laid down by the Honble National Commission in the case of M/s. Harsolia Motors (supra).

RESULTANTLY , the appeal is allowed. The impugned order is set aside. The complaint case is remanded to the District Forum -II, U.T., Chandigarh for proceeding in the manner as prescribed under the C.P. Act. The parties are directed to appear before the District Forum -II, U.T., Chandigarh on 31.5.2005. The parties are left to bear their own costs. Copies of this order be sent to the parties free of charge. Appeal allowed.