ANUP K. THAKUR

1.      This Revision Petition No.3254 of 2013 challenges the impugned order of the State Consumer Disputes Redressal Commission, Circuit Bench at Jodhpur, Rajasthan (for short, ‘State Commission’) dated 4.6.2013 in Appeal No. 39 of 2013. Vide this order, the State Commission had confirmed the order of the District Consumer Disputes Redressal Forum, Jodhpur 1, Rajasthan (for short, ‘District Forum’) dated 25.1.2012. In turn, the District Forum had directed as below:

“ So plaint of complaint is accepted and it is directed that defendant jointly or separately according to rule after receiving rest amount from complainant to be given physically possession on land No. 7-A-S-11 after issuing allotted letter within one month date of order. If defendant has allotted dispute land another then be provided same size and rate of other business land of Kudi Bhagtani Housing Scheme to complainant. Apart from it mental compensation Rs.5000/- and expense of Rs.3000/- total Rs.8000/- paid to complainant.”

2.      This matter was heard on 4.2.2021.  No one appeared on behalf of the respondent/complainant-Babu Ram Chaudhary.   Advocate on record appearing for the respondent/complainant was contacted. He however informed that he had since joined government service and was no longer representing the respondent.  Notably, no such information had been shared with the Commission or with the petitioner/petitioner’s Counsel either by the Counsel or by the respondent/complainant. Even on the last date, 20.10.2020 no one had appeared for the respondent. It was clear therefore that the respondent/complaint was not interested in contesting this revision petition.  In order not to delay the matter any further, counsel for the petitioner was heard ex-parte.

3.      His brief submissions were that a similar matter has already been decided by the National Commission in Revision Petition Nos. 1319 and 1320 of 2013. The said two revision petitions arose out of the same auction proceeding as is the case with the present Revision Petition No. 3254 of 2013.  Facts are similar.  In the instant case, brief facts are that on 28.06.2010, the respondent/complainant took part in an auction and offered his bid at Rs.22,111/- per sq. metre. This was the highest bid received by the petitioner/OP.  The reserve rate of the land under auction was Rs.21,500/-.

4.      The auctioneer committee sent  their recommendations to the petitioner no.3/OP3 - Housing Commissioner, Rajasthan Housing Board.  The same however was not accepted and in this way, the respondent/complainant was denied the auction plot. A consumer complaint was therefore filed before the District Forum, seeking directions to allot the above said land No.7-A-S-11 and give possession thereof along with a compensation of Rs.50,000/- and cost of litigation Rs.2500/- and other expenses of Rs.1000/-.

5.      This was contested through a written reply.  It was contended that while admittedly the respondent/complainant bid was the highest, the same had been rejected as it appeared to the competent authority that the submitted rate was not competitive.  It was argued that until the bid proposal is accepted, the contract is not completed. It was further argued that the Rajasthan Housing Board has the power to accept and reject of any proposal without assigning any reason thereof as per condition number 12 of the public advertisement. So arguing, it was prayed that the complaint be dismissed with heavy cost.

6.      As noted earlier, this consumer complaint was allowed by the District Forum as also upheld by the State Commission.  Hence, this revision petition.

7.      Admittedly, the respondent/complainant participated in the auction for allotment of Kiosks.  Sealed bids were received from 16.06.2010 to 28.06.2010. The bid was higher than the reserve price.  On opening of the bids on 28.06.2010, it was found to be the highest among all the proposals for the said plot number 7-A-S-11. 10% of the said amount was paid on 28.06.2010 through a draft and the remaining 15% was paid on 29.06.2012 by the respondent/complainant. The respondent/ complainant was informed however through registered letter that the allotment had been refused and that on submission of original receipts, the amount deposited could be collected.

8.      Learned counsel made two main arguments as to why the State Commission and the District Forum had apparently erred in law by allowing the complaint.

          First, the complainant was not a consumer under the Consumer Protection Act, 1986 as the Kiosks were clearly purchased for commercial purpose. He relied upon the decision of the Hon’ble Supreme Court in U.T. Chandigarh Administration & Anr. V/s Amarjeet Singh & Ors. (2009) 4 SCC 660.  

Second, it further contended that the bid had not been accepted by the competent authority and in the absence thereof, there was no allotment made, and so it could not be said that consequent to the auction, any contract of service had resulted. Further, it was argued by the counsel that clause 12 of the conditions of the auction had clearly laid down that “Rajasthan Housing Board reserves right to reject anyone or all sealed tenders without assigning any reason.  In this connection no dispute whatsoever shall be entertained.”

9.      I find much merit in the arguments of the learned counsel. In the order of the National Commission in R.P. Nos.1319 and 1320 of 2013 (RHB Vs. Ghanshyam Jaswani) a similar view had been taken.  It is reproduced for ease of reference:

“5. It is an admitted position that the bid given by the complainants at the auction was never accepted by the Competent Authority and no allotment of the Kiosks was made to them. In the absence of acceptance of the bid by the Competent Authority and consequent allotment of Kiosks to them, the complainants in my opinion, cannot be said to be consumers of the petitioners. Unless allotment is made after acceptance of the bid by the Competent Authority, it cannot be said that the bidders had hired or availed the services of the seller/developer. Therefore, the respondents/complainants cannot be said to be consumers of the petitioners. The consumer complaints filed by them were liable to be dismissed on this ground alone.

6. Since the consumer complaints are otherwise bound to be dismissed, I need not examine the contention of the petitioners at the time the revision petitions were admitted.  Relying upon the decision of the Hon’ble Supreme Court in U.T. Chandigarh Administration & Anr. Vs. Amarjeet Singh & Ors. (2009) 4 SCC 660, it was contended by the petitioners that the respondents cannot be said to be the consumers and the Kiosks in question was purchased tor commercial purpose.

7. For the reasons stated hereinabove, the impugned orders cannot be sustained and the same are hereby set aside. The complaints are consequently dismissed...”

10.    In view of the discussion above, this revision petition is allowed and the impugned order of the State Commission and consequently that of the District Forum is set aside.