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Shalini Tripathi v/s U.P. Avas Evam Vikas Parishad & Others


Company & Directors' Information:- N M TRIPATHI PVT LTD [Active] CIN = U22120MH1943PTC003900

Company & Directors' Information:- VIKAS R & D INDIA PRIVATE LIMITED [Active] CIN = U73100DL2012PTC232875

Company & Directors' Information:- G C A AVAS PRIVATE LIMITED [Active] CIN = U70102UP2014PTC065187

Company & Directors' Information:- VIKAS PVT LTD [Strike Off] CIN = U99999MH1949PTC007334

Company & Directors' Information:- THE VIKAS LIMITED [Strike Off] CIN = U24231UP1934PLC000592

    Revision Petition No. 868 of 2017

    Decided On, 01 November 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. PREM NARAIN
    By, PRESIDING MEMBER

    For the Petitioner: K.K. Misra, Advocate. For the Respondents: Pankaj Singh, Advocate.



Judgment Text

This present revision petition has been filed against the judgment dated 10.02.2017 of the Uttar Pradesh State consumer Disputes Redressal Commission, Lucknow (‘the State Commission’) in Appeal no. 501 of 2015.

2. The brief facts of the case are that the petitioner/ complainant had submitted an application on 14th March 2011 for purchasing house no. A 2293 in an open auction. A MIG house no. A 2293 was allotted to the petitioner. The petitioner had deposited the full and final payment of the house and sale deed was executed and registered on 30.05.2011. The petitioner got the physical possession of the house on 06.09.2011. On 29.09.2011, when the work of boring for water and construction of boundary wall was started on the open land which was allotted by the respondent/ Housing Board, a farmer Chandika Singh got stopped the work forcibly. On enquiry it was found that there was some dispute on the possession of land and compensation for land acquisition between the respondent/ Housing Board and the farmers. On 23.12.2011, the respondent admitted that there was some dispute of possession of land and compensation with the farmers and assured that the work of development will be done soon with the help of police force. On 03.12.2013, the Executive Engineer of UP Avas Evam Vikas Parishad, Hanspuram, Kanpur had informed that there was a dispute of possession of land and compensation with the farmers and that the efforts are going on for providing basic amenities. Then the petitioner filed Complaint Case no. 527 of 2013 before the District Consumer Disputes Redressal Forum, Kanpur (‘the District Forum’) and the District Forum allowed the complaint vide its order dated 16.01.2015 and passed the following order:

“Within three months from the date of this decision, the opposite parties will lay down electric poles with electric wires, paved road, sewerage line, pipe line for drinking water for building no. MIG A 2293, Hanspuram, Yojna no.2 of the complainant. If the opposite parties do not make available the above facilities within three months, the opposite parties shall pay @ Rs.10,000/- per month towards compensation till the above facilities are made available. The payment of compensation will start after three months of this decision”.

3. Aggrieved by the order of the District Forum the opposite party preferred an appeal before the State Commission being Appeal no. 501 of 2015. The State Commission allowed the appeal on the ground that an auction purchaser was not a consumer in the light of the decision of the Hon’ble Supreme Court in the case of U T Chandigarh Administration and Another vs Amarjeet Singh and Ors – (2009) 4 SCC 660.

4. Hence, the present revision petition.

5. Heard the learned counsel for both the parties and perused the record. Learned counsel for the petitioner states that the plot in question was purchased by the petitioner/ complainant in an auction from the UP Awas Evam Vikash Parishad. However, no facilities were provided for undertaking the construction on the plot. Moreover there was a dispute with the farmers who were not satisfied with the compensation provided for acquisition of their lands and therefore, the farmers did not allow the construction on the plot. The petitioner requested the OP to create the basic facilities for the plot like road, electricity and other such facilities, however, the OP did not give any heed to these requests.

6. Learned counsel for the petitioner argued that the complainant was kept in the dark while auctioning the plot and it was never disclosed to the complainant that the basic amenities and facilities will never be provided by the opposite party and that there was a dispute going on with the local farmers. It may be true that an auction purchaser may not be considered a consumer, but if correct information is not provided to the auction purchaser then this is a case of adopting unfair trade practice and deficiency in service on the part of the opposite party. Learned counsel requested that the order of the State Commission be set aside and the order of the District Forum be upheld.

7. On the other hand, the learned counsel for the respondent/ OP has stated that the petitioner/ complainant is an auction purchaser and it was her duty to participate in the auction with open eyes and she should have seen the condition of the plot as well as the amenities and facilities. There was no obligation on the part of the respondent to provide any additional facilities in respect of the auctioned plot. The plot was auctioned on ‘as is where is basis’ and therefore, the petitioner cannot complain of the wanting amenities and facilities. The fact is that the facilities are already there and it is not correct to say that there is no road or the electricity pole. It is true that the electric pole is slightly far from the plot, however, it is the responsibility of the complainant to get the connection from the competent authority. The legal position is that the complainant being an auction purchaser is not entitled to any relief in the consumer complaint. The State Commission has rightly relied upon the decision of the Hon’ble Supreme Court in the case of U T Chandigarh Administration and Anothers vs Amarjeet Singh and others (Supra).

8. I have carefully considered the arguments advanced by the learned counsel for the parties and perused the material on record. The prayers made in the consumer complaint are as follows:

1. The respondent/ Development authority be directed to provide the basic amenities for the allotted building and complete all the development work within three months;

2. The respondents/ Development Authority be directed to pay the petitioner an interest of 10% per annum on amount of Rs.16,97,700/- spent by the petitioner relating to the building from 30.05.2011, being the date of registry, till the completion of development work by the respondents/ Development Authority;

3. That the respondents/ Development Authority be directed to pay to the petitioner a sum of Rs.80,000/- towards mental agony, physical torture and economic loss;

4. That the respondents/ Development Authority be directed to pay to the petitioner an amount of Rs.50,000/- towards the cost of filing complaint and revision petition;

5. And any other relief which the Hon’ble Commission may deem just and proper be also passed in favour of the petitioner.

9. From the above, it is clear that all the relief sought is for amenities and facilities and in respect of the condition of the plot. The auction was made on ‘as is where is basis’, and therefore, the petitioner should have assessed the condition of the plot and the amenities and facilities being provided there. There was no promise made in the allotment letter to provide any additional facilities or amenities along with the plot or to develop the same afterwards. The Hon’ble Supreme Court in the U T Chandigarh Administration and Anothers vs Amarjeet Singh and others (supra) has held that in public auction of existing land sites, purchaser/lessee is not a consumer as defined in the Consumer Protection Act 1986 as under:

“Where there is a public auction without assuring any specific or particular amenities, and the prospective purchaser/lessee participates in the 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, or if the site suffers from any disadvantages, he would offer a lesser amount, or may not participate in the auction. Once with 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 18site 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 sites 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 which a complaint can be fi

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led. 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.” 10. From the above decision of the Hon’ble Supreme Court, it is clear that an auction purchaser is not a consumer under the Consumer Protection Act, 1986, so far as the position of the auction of plot is concerned. The State Commission has rightly relied on the above judgment of the Hon’ble Supreme Court and has rightly dismissed the complaint. However, if the petitioner is aggrieved by any action of the opposite party, the petitioner can seek remedy from a competent civil court. 11. Accordingly, the revision petition no. 868 of 2017 is dismissed with liberty to the petitioner to seek remedy from a civil court, if so advised.
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