RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 501 OF 2015
(Against judgment and order dated 16-01-2015 in Complaint
Case No. 527/2013 of the District Consumer Forum, Kanpur Nagar )
- U. P. Avas Evam Vikas Parishad
Through Housing Commissioner
104, Mahatma Gandhi Marg
Lucknow
- Estate Management Officer
U.P. Avas Evam Vikas Parishad
Scheme No.2, Hanspuram,Naubasta
Kanpur Nagar
- Executive Engineer
Construction Division-18
U. P. Avas Evam Vikas Parishad
C-111, Scheme No.2
Hanspuram, Naubasta
Kanpur Nagar
...Appellants
Vs.
Shalini Tripathi
House No.2
Village & Post Sanigawan
Kanpur Nagar
...Respondent
BEFORE:
HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
HON’BLE MR. JITENDRA NATH SINHA, MEMBER
For the Appellant : Sri N N Pandey, Advocate.
For the Respondent : Sri K K Mishra, Advocate.
Dated : 10-02-2017
JUDGMENT
PER MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
Present appeal has been filed under Section-15 of the Consumer Protection Act 1986 before Stat Commission against judgment and order dated 16-01-2015 passed by District Consumer Forum, Kanpur Nagar in Complaint Case No. 527 of 2013;Shalini Tripathi V/s U. P. Avas Evam Vikas Parishad and others.
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Learned Counsel Mr. N N Pandey appeared for appellants.
Learned Counsel Mr. K K Mishra appeared for respondent.
In brief relevant facts for determination of appeal are that the respondent/complainant has filed above complaint before District Consumer Forum with allegation that she has purchased house in question from appellants but the basic amenities shown in plan have not been provided and the house is in an inhabitable condition. As such respondent/complainant has claimed following reliefs:-
- विपक्षी को आदेशित किया जाय कि उपरोक्त आवंटित भवन/भूखण्ड के लिए मूलभूत सुविधाएं जैसे घर के सामने सड़क निर्माण, पानी की पाईप लाईन व सीवर लाइन, विद्युत लाइन की व्यवस्था करें एवं सम्पूर्ण विकास कार्य अतिशीघ्र कराये।
ब) यह कि विपक्षी को आदेशित किया जाये कि परिवादिनी द्वारा भवन के सम्बन्ध में व्यय की गयी धनराशि रू0 1697700/- पर रजिस्ट्री की दिनांक 30.05.2011 से विकास कार्य पूर्ण होने तक रू0 16977/- प्रतिमाह की दर से ब्याज दें।
स) यह कि परिवादिनी की हुई मानसिक, शारीरिक एवं आर्थिक क्षति हेतु मुबलिग रू. 20,000/- विपक्षी से दिलाया जाये ।
द) यह कि परिवाद व्यय मुबलिग रू. 5000/- परिवादिनी को विपक्षी से दिलाया जाये।
घ) यह कि अन्य कोई उपशम जो माननीय न्यायालय उचित समझे परिवादिनी को विपक्षी से दिलाया जाये।
Appellants/opposite parties have opposed said complaint by filing written statement. In written statement appellants/opposite parties have stated that the respondent/complainant has purchased the house in question in auction. As such she is not a consumer. In written statement they have further stated that the respondent/complainant had inspected the house in question before auction
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and agreed to purchase house as it is and where it is. Therefore she is not entitled to any relief.
After having gone through pleadings of parties and evidence on record the District Consumer Forum has allowed complaint and ordered opposite parties now appellants to provide amenities of electricity poles, metalled road, sever line and water pipe line to complainant/respondent within three months. The District Consumer Forum has further ordered opposite parties/appellants to pay compensation of Rs.10,000/- per month to complainant/respondent in case said amenities are not provided by opposite parties/appellants within stipulated period.
Feeling aggrieved with judgment and order passed by District Consumer Forum opposite parties/appellants have filed this appeal with 14 days delay. Application for condoning delay of appeal has been moved. The appeal has been admitted vide order dated 10-07-2015 subject to condition that the objection of respondent against delay condonation application shall be heard at the time of final hearing. Respondent has filed objection against delay condonation application. We have considered objection. Appellants have shown reason for delay and both parties have put in appearance. As such considering all facts and circumstances we are of the view that the reason assigned for delay of appeal is sufficient and appeal should be heard on merit.
We have heard learned Counsel for the parties on merits of appeal.
Learned Counsel for appellants have assailed impugned judgment and order passed by District Consumer Forum and contended that it is against law and evidence as well as without jurisdiction.
Learned Counsel for the appellants has contended that the respondent/complainant has purchased house in question after inspection in open auction on the principle of as it is where it is. As such she is not a consumer under the Consumer Protection Act 1986 and complaint is not maintainable under the Act.
Learned Counsel for appellants has placed reliance on judgment of honourable Apex court rendered in the case of U. T. Chandigarh Administration and another V/s Amarjeet Singh and others reported in II(2009) CPJ 1(SC).
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Learned Counsel for the respondent/complainant has opposed appeal and contended that basic amenities shown in plan of the house have not been provided. As such respondent/complainant is entitled to claim amenities shown in plan of the house.
Learned Counsel for the respondent/complainant has further contended that respondent/complainant is consumer within Section 2(1)(d) of the Consumer Protection Act 1986 and the complaint filed by her is maintainable before District Consumer Forum. The impugned judgment and order passed by District Consumer Forum is in accordance with law and evidence. Appeal has no merit and is liable to be dismissed.
We have considered the submissions made by learned Counsel for the parties.
In view of submissions made by learned Counsel for the parties the following points for determination arise in this appeal.
- Whether the respondent/complainant is not a consumer within Section 2(1)(d) of the Consumer Protection Act 1986 and the complaint filed by her is not maintainable under the Consumer Protection Act 1986.
- Whether the impugned judgment and order passed by District Consumer Forum is erroneous and against law.
Both points for determination are taken together for the sake of convenience.
First of all it appears relevant to refer paragraph 1 of the written argument of appellants which reads as follows:-
'' यह कि अपीलार्थी ने मार्च सन् 2011 को दैनिक समाचार पत्र अमर उजाला में जहॉं है जैसे है के आधार पर 25 वर्ष पूर्व निर्माण की गई कालोनियो को नीलामी द्वारा आवंटित करने का विज्ञापन प्रकाशित किया। विज्ञापन की शर्तों को पूरा करते हुए उत्तरदात्री ने नीलामी द्वारा आवंटन के लिए आवेदन किया।''
In the case of U. T. Chandigarh Administration and another V/s Amarjeet Singh and others (supra) the Hon’ble Apex Court has held as under:-
“….Where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser/lessee participates in the
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auction after having an opportunity of examining the site, the bid in the auction is made keeping in view the existing situation, position and condition of the site. If all amenities are available, he would offer a higher amount. If there are no amenities, of if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction. Once when open eyes, a person participates in an auction, he cannot thereafter be heard to say that he would not pay the balance of the price/premium or the stipulated interest on the delayed payment or the ground rent, on the ground that the site suffers from certain disadvantages or on the ground that amenities are not provided. With reference to a public auction of existing sites (as contrasted from site to be ‘formed’), the purchaser/lessee is not a consumer, the owner is not a ‘trader’ or ‘service provider’ and the grievance does not relate to any matter in regard to which a complaint can be filed. Therefore, any grievance by the purchaser/lessee will not give rise to a complaint or consumer dispute and the Fora under the Act will not have jurisdiction to entertain or decide any complaint by the auction purchaser/lessee against the owner holding the auction of sites.”
In impugned judgment and order the District Consumer Forum has referred application dated 14-03-2004 moved by respondent/complainant before appellants wherein respondent/complainant has stated that she has seen the house in question. She is ready to purchase it on the principle of as it is where it is. This fact has not been denied by respondent/complainant before us. Appellants have permitted respondent/complainant to participate in auction of house in question on the basis of her said consent letter dated 14-03-2004 and respondent/complainant has participated in auction proceeding. Her bid was accepted by appellants and ultimately the sale deed was executed in favour of respondent/complainant and possession was delivered to her. The propositions laid down by Hon’ble Apex Court in the case of U. T. Chandigarh Administration and another V/s Amarjeet Singh and others (supra) are fully applicable on the facts of present case.
It is relevant to note that the submission made on behalf of respondent/complainant in written argument as noted above itself shows that the house in question was more than 25 years old and the advertisement was
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made for auction in daily news paper Amar Ujala on the principle of as it is where it is. Indisputably in response to said advertisement respondent/complainant has participated in auction and got sale-deed of house in question.
In view of discussion made above considering facts and circumstances of the case as well as propositions laid down by Honourable Apex Court in above case we are of the view that respondent/complainant being a purchaser in auction is not a consumer under Section 2(1)(d) of the Consumer Protection Act 1986 and the dispute raised by her in complaint is not a consumer dispute. As such we are of the view that the impugned judgment and order passed by District Consumer Forum is erroneous and against law as well as without jurisdiction.
In view of conclusion drawn above we are of the view that appeal should be allowed and after having set aside the impugned judgment and order passed by District Consumer Forum the complaint should be dismissed but the respondent/complainant should be given liberty to raise her grievance before competent court or authority in accordance with law.
The appeal is allowed accordingly. The impugned judgment and order passed by District Consumer Forum is set aside and the complaint is dismissed with liberty to respondent/complainant to raise her grievance before competent court or authority in accordance with law.
Parties shall bear their own costs.
Rs.5,000/- deposited by appellant under Section-15 of the Consumer Protection Act 1986 in this appeal shall be refunded to the appellant alongwith interest accrued, if any, in accordance with rules.
Let copy of this order be made available to the parties within 15 days positively as per rules.
( JUSTICE A H KHAN )
PRESIDENT
( J N SINHA )
MEMBER
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