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M/S. Namash Automobiles & Another v/s Commissioner Of Industries & Another

    First Appeal No. 272 of 2009

    Decided On, 12 January 2016

    At, Delhi State Consumer Disputes Redressal Commission New Delhi

    By, MEMBER

    For the Appearing Parties: ---------------------

Judgment Text

O.P. Gupta, Member (Judicial)

1. The complainant has come in the present appeal against order dated 18.3.09 passed by the District Consumer Dispute Redressal Forum (East). The District Forum directed the OPs/respondents to pay interest @ 6% per annum on Rs. 1,20,000/- from the date of deposit i.e. 27.12.96 to date of refund i.e. 29.4.03 alongwith Rs. 2,000/- as compensation for physical and mental harassment as well as Rs. 1,000/- as costs of litigations.

2. The fact of the case are peculiar. The complainant/appellant has applied for allotment of alternative plot in lieu of closer of his industry (functioning in residential/non confirming area) in pursuance of order of Hon’ble Supreme Court. He applied vide application No.24813. He deposited Rs. 1,20,000/- as application money. OP-2 asked for some more documents which were supplied. The –plot was not allotted to him. OP-2 sent refund of earnest money without any proper and valid reason. Hence the complaint for allotment of land and compensation of Rs. 15 lacs in lieu of investment for increasing the business in the hope of allotment. Further compensation of Rs. 4 lacs for physical and mental harassment was claimed.

3. OP-1 filed written statement pleading that industries depart-ment is not working for any profit/building services for any profit. It is extending service for the welfare of people in Delhi and complaint is not maintenable.

4. OP-2 pleased that it was implementing decision taken by OP-1. Review application of the complainant was dismissed by Commissioner of Industries.

5. The District Forum observed that application of the complainant was rejected because it was not covered by guidelines of Hon’ble Supreme Court. It is not mandatory to allot plot to every applicant because there are number of applications whereas plots are limited in number. Thus prayer for allotment of plot was not allowed.

6. We have gone through the material on record and heard the arguments.

7. Counsel for the appellant wanted it to make out of the fact that OP-1 pleaded that the case was not covered under section 5 (A) of Consumer Protection Act. We are unable to full in the line of appellant. Citing wrong provision of law is not sufficient to throw the case. There is no section 5 A in the Act. It should have been Section 2 (d)(i) & (ii).

8. Counsel for the appellant wanted to point out that shortage of land is no ground to deny allotment to the appellant. He drew our attention to status of applicants down loaded from the inter-net which is available at page 73. That pertains to application number 239 of Vinod Sharma, Jewelle Rs. The application was for 100 yds but allotment was made for 250 yds. It may be a case of mistake in uploading the information on the inter-net. It may also be a case of error in allotment of land. To err his human. This is the only single case pointed out by Counsel for applicant from 45 datas filed by him.

9. The appellant has not filed the list of applicants who were not allotted land. There must be hundreds, even thousands of persons who were not allotted alternative land. It ia a matter of common knowledge that DDA announces residential scheme in which lacs of applicants apply for limited number of flats running into thousands only. Does it mean that all are entitled to allotment or those who are denied allotment can come to court for directing DDA to allot flat to them? The obvious answer is in negative.

10. As per decision of National Commission in HUDA Vs. Jagdish Chander Verma IV (2010)CPJ 39 unsuccessal applicant in allotment is not consumer.

11. The Course for the respondent has relied upon the decision of the National commission in RP No. 3811/2007 titled as Rajasthan State Industrial Development and Investment Corporation Ltd. Vs. M/s. Diksha Enterprises decided on 9.7.10 in which it was held that after amendment of definition of consumers in section 2 (d) in 2002, any person who hire or avail of any services in consideration for commercial purpose would not fall within the definition of consumer. The said case pertains to allotment of industrial plot for the purpose of setting up factory. It was held that intention of the complainant was far from earning livelihood by self employment. The same was purely intended to setting up a manufacturing unit to earn profit. The complaint was dismissed.

12. Counsel for the respondent drew our attention to para 17 of the complaint, copy of which is at page 35 to 38. The same incorporates that complainant planned for running business on a wide scale and arranged the funds for the planned business. The complainant wanted to start automobile workshops which is nothing but commercial. Automobiles workshop can not be run with the help of 2-3 persons. It must have staff of 10-20 persons. In letter dated 23.3.04, copy of which is at page 33, complainant had written that they had eight workeRs.

13. The Counsel for the respondent also relied upon decision of the National Commission in RP No. 4171 of 2012 titled as Dharam Pal Vs. Haryana Urban Development Authorities. In that case the complainants’ father was allotted industrial plot in Bahadurgarh and the respondent did not sanction Building Plan. The State Commission dismissed the complaint on the ground that the complainant purchased property for commercial purpose and the complaint was not maintainable. In doing so the State Commission relied upon decision of the National Commission in Monstera Estate Pvt. Ltd. Vs. R.D. Infrastructure Pvt. Ltd. IV (2010) CPJ 299,SKG Engineering Pvt. Ltd. Vs. EMAAR MGF Land Pvt. Ltd. III (2010) CPJ 260 and Rajasthan State Industrial Development & Investment Corporation Ltd. vs. Diksha Enterprises III (2010) CPJ 333. The decision of the State Commission was confirmed by the National Commission.

14. The Counsel for the Complainant urged that section 2 (i) of the Act which defines consumer includes case of purchasing goods or hiring service for consideration paid partly. He submitted that in the present case complainant paid Rs. 1,20,000/- towards part payment. The arguments are misconceived. Said payment was for price of the plot and not for service rendered by OP. Moreover, the argument misses explanation of the sub clause (i) and sub clause (ii) of section 2 (d). Those were expressively states that consumer does not includes a person who hires service for any commercial purpose.

15. Last but not least argument of the Counsel for the respondent is that allotment was denied in 2002 whereas the complaint was filed in 2007 whi

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ch is bared by limitation. The Counsel for appellant refuted the arguments by stating that the respondent has not taken any such plea in the written statement It may be so but the question of limitation goes to the root of the case and court owes a duty to see that the complaint is within limitation. Apparently, the complaint is after seven years and is hit by limitations of two years prescribed under section 24 A of Consumer Protection Act. 16. For the forgoing reasons the complaint is not maintainable. So there is no scope of allowing the appeal filed by the complainant. The appeal is dismissed. 17. A copy of this order as per the statutory requirements be forwarded to the parties free of charge.