Tara Singh vs Municipal Corporation

WE are deciding a bunch of four appeals bearing Nos. 500 to 503 all of 2003 vide this common order which is being passed in Appeal No. 503 of 2003, as the District Consumer Disputes Redressal Forum-II [for sort hereinafter referred to as the District Forum] has passed the main order dated 13.8.2003 in Complaint Case No. 288/2003 out of which the present Appeal No. 503 has arisen.

THE District Forum dismissed the complaint cases for want of jurisdiction and held the complaints not being maintainable under the Consumer Protection Act, 1986 [for short hereinafter referred to as the C.P. Act] as amended upto date. THE District Forum held that the complainants did not fall within the definition of a ''consumer'' as defined under Section 2(d) of the Consumer Protection Act, as amended up-to-date as the purpose for which the commercial site had been purchased by the complainants was commercial purpose and the site in question is situated in a commercial locality. THE District Forum further held that it was not pleaded by the complainants nor stated in their affidavits that they had purchased the commercial plot exclusively for earning their livelihood by way of self-employment. THE District Forum dismissed all these complaint cases in limine and left the complainants to their remedy of approaching the appropriate Court, Forum or Authority of competent jurisdiction. Notice of these appeals was served on the respondents, who put in appearance through Ms. Deepali Puri, Advocate. The short point to be considered for us in these bunch of appeals is that whether the appellants/complainants are consumers or not. The learned Counsel for the appellants contended that the District Forum has not followed the procedure laid down under the Consumer Protection Act and should have issued the notice to the O.P. for filing the reply and thereafter giving opportunity to both the parties to adduce their evidence. It has been further contended that the District Forum has not taken into consideration the fact that it has been pleaded by the appellant that the plot in question was purchased by the appellants to earn their livelihood. It is next contended that the District Forum has not taken into consideration that the O.P. is stopped by their own act and conduct from raising such a plea of commercial purpose as the parties had been already litigating since 1999 and the complaint filed by the complainant pertaining to the same plots of the same complainants, for providing basic amenities had been allowed by the State Commission vide order dated 9.5.2002. The learned Counsel for the appellants placed reliance on the authorities in 2003 (1) CPC 25, whereby the Hon''ble National Commission allowed the complaint of an SCF which was purchased in open auction and 2003 (1) CON.LT 553, wherein it was held by the Hon''ble National Commission that if the goods are purchased for earning livelihood, the same falls within the definition of consumer.

It is pertinent to mention here that earlier cases of these very complainants pertaining to the same plots were decided by this State Commission vide order dated 22.12.2001 passed in case of Shri Narain Dass Budhi Raja (Complaint Case No. 95 of 1999) whereby five other connected complaints bearing Nos. 96 to 100 all of 1999 were also decided and all the complaints were dismissed by the State Commission. The complainants filed first appeal bearing Nos. 31 to 35 and 44 all of 2001 before the Hon''ble National Commission, which were allowed vide order dated 29.11.2002 and the order of the State Commission was set aside. The complaint cases were remanded for decision in accordance with law and after giving opportunity to the parties to lead further evidence if any.

THE Hon''ble National Commission while deciding the first appeals approved the finding of this Commission recorded in the earlier order against which the appeals had been filed. Apart from this, the complainant was treated to be a consumer within the definition of the term consumer as contained in Section 2(1)(d)(ii) of the Consumer Protection Act and the Municipal Corporation, the provider of the service. The Hon''ble National Commission further held, inter alia, as under: "...It was incumbent on the Municipal Corporation to develop the area and to provide basic amenities for construction to be made. The area development takes into account many factors and many enactments contained in the definition of development as well..."

Thus the preliminary objection aforesaid had not been upheld and the complaints had been to be maintainable under the provisions of the Consumer Protection Act after treating the complainant as consumer and Municipal Corporation the provider of service.

THIS State Commission after detailed discussion and after taking into consideration the firm view taken by the Hon''ble National Commission in the first appeals holding the complainant as consumer and Municipal Corporation the provider of service, allowed the complaint cases vide order dated 9.5.2003 passed in Complaint Case No. 95 of 1999 disposing of connected Complaint Case Nos. 96 to 100 all of 1999. In view of the above, once the complainants have been held to be the consumer and the Municipal Corporation the provider of the service by the Hon''ble National Commission, the District Forum has totally ignored the findings of the Hon''ble National Commission. The complaint cases out of which these bunch of appeals have arisen are the continuation of the same cause of action and pertains to the same plots purchased by the same complainants. Once the preliminary objections regarding the complainants being consumers have been decided by the Hon''ble National Commission vide its earlier order dated 29.11.2002, this matter could not justifiably be reopened. The learned Counsel for the respondent Ms. Deepali Puri, Advocate in view of the findings of the Hon''ble National Commission on the preliminary issues, states her no objection if the cases are remanded back to the District Forum for decision on merit.

IN view of the foregoing discussion, the impugned order dated 13.8.2003 is set aside and the Complaint Case Nos. 288 to 291 all of 2003 are remanded back to the District forum-II, U.T., Chandigarh for decision on merit in accordance with law and in view of the firm finding of the Hon''ble National Commission on the preliminary objections. The parties are directed to appear before the District Forum-II, U.T., Chandigarh on 27.11.2003.

VIDE our detailed order of the even date recorded separately, this appeal along with connected Appeal Nos. 500 to 502 all of 2003 have been allowed and the impugned order dated 13.8.2003 has been set aside. The Complaint Case Nos. 288 to 291 all of 2003 have been remanded back to the District Forum-II, U.T., Chandigarh for decision on merit in accordance with law and in view of the firm finding of the Hon''ble National Commission on the preliminary objections. The parties have been directed to appear before the District Forum-II, U.T., Chandigarh on 27.11.2003. Appeals allowed.