Rajasthan

StateCommission

A/515/2017

Commissioner Rajasthan Housing Board - Complainant(s)

Versus

Rekha Agarwal w/o Subash Agarwal - Opp.Party(s)

P.S.Tomer

29 May 2018

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

FIRST APPEAL NO: 515/2017

 

Commissioner, Rajasthan Housing Board, Head office Rajpath, Near Vidhan Sabha, Jaipur & ors.

Vs.

Rekha Agarwal w/o Subhash Agarwal r/o B 46 Gole Market, Jawahar Nagar, Jaipur.

 

FIRST APPEAL NO: 498/2017

 

Rekha Agarwal w/o Subhash Agarwal r/o B 46 Gole Market, Jawahar Nagar, Jaipur.

Vs.

Rajasthan Housing Board, Head office Rajpath, Near Vidhan Sabha, Jaipur through Commissioner & ors.

 

Date of Order 29.5.2018

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

Hon'ble Mrs. Meena Mehta -Member

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Mr. P.S.Tomar counsel for the Housing Board

Mr. Vizzy Agarwal counsel for the complainant

 

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

Both these appeals are filed against the single order hence, are decided by this common order.

 

The contention of the Housing Board is that the case relates to auction purchase hence, the respondent is not a consumer and further more the Housing Board are not deficient as vide letter Ex. 3 they have asked to complete some formalities which never been complied by the respondent. The claim should have been dismissed.

 

Per contra the contention of the complainant is that no reason was assigned for cancellation of the bid. No opportunity of hearing or notice was issued to him. As per office note of the Housing Board the bid was cancelled as the reserved price was less than cost price but in 2014 on the same reserved price

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the property was put to auction hence, the reason seems to be farcical and the possession of the property should be handed over to the consumer.

 

Heard the counsel for the parties and perused the impugned judgment as well as original record of the case.

 

There is no dispute about the fact that vide Anx. A 1 public auction was made. The complainant has deposited the requisite amount but vide Anx. 3 the bid was cancelled and he was intimated to comply the formalities to have the refund of the money. Nothing has been shown that formalities mentioned in Ex. 3 were ever complied. It has also been shown that bid was cancelled due to less reserved price in 2009 but again it was put to auction in 2014 on the same reserved price but this was not the contention of the consumer before the Forum below. Per contra his contention was that now the Housing Board want to sale the property on higher cost. The contention as regard to the cost is now raised is contrary to the earlier pleadings.

 

The Housing Board has relied upon WLC 2015 (2) Raj.

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507 where the Hon'ble High Court has clearly concluded as under:

 

“ It is always for the authority to decide whether the price offered in an auction is adequate and accepting or rejecting a bid it is merely performing on executive function. The correctness of its conclusion is not open to judicial review unless the decision making process is unfair or the action of the State or its instrumentality is contrary to public good,public interest, unjust or unreasonable or violative of Article 14 of the Constitution which the appellants have not been able to justify from the material on record in the instant bunch of appeals.”

 

Further the Housing Board has relied upon 2009 (2) Supreme 650 U.T.Chandigarh Administration & anr. Vs. Amarjeet Singh where the apex court has held that with reference to a public auction of existing site the purchaser/lessee is not a consumer.

 

Further reliance has been placed on 2015 1 CPR (NC) 454 Delhi Development Authority Vs. Parveen Kumar & ors and judgment passed by the National Commission in Revision

 

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Petition No. 4719/2008 Rakesh Jhunjhunwala Vs. Rajasthan Housing Board and contention of the Housing Board is that complainant is not a consumer.

 

Per contra the contention of the complainant is that it is not the view of the apex court to put unqualified exclusion in case of auction purchase from the purview of Consumer Protection Act and reliance has been placed on 1 (2014) CPJ 295 (NC) Delhi Development Authority Vs. Efficient Offset Printers and judgment passed by the apex court in Civil Appeal No. 9290/2014 Sanjay Kumar Joshi Vs. Municipal Board, Laxmangarh & anr. where the apex court and the National Commission were of the view that exclusion in case of public auction of sites is not unqualified and in case of Sanjay Kumar Joshi (supra) sale consideration of 25% were forfeited without any fault of the consumer inspite of the fact that the plot in question was under litigation and the seller could not have concluded the contract and confirm the sale and executed the sale deed in favour of the consumer.

 

Hence, in view of the facts the law laid down in

 

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Amarjeet Singh (supra) was distinguished and so also in case Efficient Offset Printers (supra) where the earnest money was forfeited after acceptance of the full bid amount from the auction purchaser but here in the present case admittedly the bid was never accepted by the competent authority and this may also be noted that as per the condition of the auction the Housing Board has reserved the right to accept or reject the proposal. Further more the full sale price was not asked or deposited by the complainant and this is not the case of the complainant that decision making process is unfair or contrary to public interest.

 

A new fact has been tried to set up that reason which was available to the Housing Board for cancellation of the bid was never intimated to the complainant and reason was unfair as on the same reserved price property was put to auction again but as already been considered in appeal the complainant could not raise a new plea which is contrary to her earlier pleadings. In view of the above it can very well be concluded that it was a case of auction purchaser and complainant could not be held a consumer.

 

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The other contention of the complainant is that earlier by way of application the issue regarding jurisdiction was decided by the Forum below but at that time Housing Board has not chosen to object on it by filing an appeal. Be that may be the case the Housing Board is entitled to raise the issue of jurisdiction in the first appeal. The contention of the complainant is not acceptable. In view of the above the Forum below was not having jurisdiction to entertain the complaint and further more inspite of the communication Ex.3 the complainant has not fulfilled the requirement. The delay in refund of the money could not be attributed to the Housing Board.

 

The complainant has also raised the plea that possession of the property should be handed over to her but no such relief is asked in the main complaint even prior to the filing of the complaint the amount deposited with the Housing Board was refunded to the complainant and only loss for interest, mental agony etc. were claimed by the complainant.

 

In view of the above discussions the appeal filed by the

 

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Housing Board is allowed and the order of the Forum below dated 23.3.2017 is set aside. Consequently the appeal filed by the complainant stands dismissed.

 

(Meena Mehta) (Nisha Gupta)

Member President

 

 

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