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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 3053 OF 2018
(Against the Order dated 02/02/2017 in Appeal No. 238/2013 of the State Commission
Rajasthan)
1. URBAN IMPROVEMENT TRUST & ANR.
THROUGH ITS SECRETARY URBAN IMPORTMENT
TRUST,
BIKANER
RAJASTHAN
2. CHAIRMAN URBAN IMPROVEMENT TRUST
BIKANER RAJASTHAN ...........Petitioner(s)
Versus
1. MAGHA RAM
S/O. RATAN LAL, THROUGH ATTORNEY HOLDER SHIV
CHARAN S/O. BUDH RAM R/O. MANGAL NIKETAN OPP.
WATER TANK, NEAR POLICE LINE,
BIKANER
RAJASTHAN ...........Respondent(s)
BEFORE:
HON'BLE MR. SUBHASH CHANDRA,PRESIDING MEMBER
FOR THE PETITIONER : MR ARUNESHWAR GUPTA, SR ADVOCATE WITH
MR ABHISHEK SHARMA, ADVOCATE
FOR THE RESPONDENT : MR MUKTESH MAHESHWARI, ADVOCATE
Dated : 03 August 2023
ORDER
1. This revision petition under section 19 of the Consumer Protection Act, 1986 (in short,
the ‘Act’) assails the order dated 02.02.2017 in First Appeal no. 238 of 2013 of the State
Consumer Disputes Redressal, Delhi (in short, the ‘State Commission’) which dismissed the
appeal against order dated 30.07.2007 of the District Consumer Disputes Redressal Forum,
New Delhi (in short, the ‘District Forum’) in Consumer Complaint no. 254/2005 that had
allowed the complaint filed by the respondent.
2. I have heard the learned counsel for both the parties and perused the material on record
carefully.
3. According to the petitioner the facts of the case are that it published an advertisement
notifying sale by auction of residential plot no. C-78, Sardulganj scheme, Bikaner
admeasuring 5974 sq. ft on 27.04.1970. Respondent’s father made the highest bid of Rs.
11,960/- which was accepted by the petitioner. Respondent deposited 25% of the bid amount
of Rs.2990/- as part payment of the total sale consideration amount of Rs. 11,960/-. On
09.12.1970 petitioner informed the respondent that a ‘stay’ order had been issued by the
court qua the plot auctioned in his favour and that once this order was vacated, he would be
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informed by way of demand notice to deposit the balance consideration amount. On
09.03.1971 a demand notice was sent by the petitioner to the respondent to pay the balance
amount along with the lease amount totaling to Rs.9004.30/- within one month from the date
of receipt and that failure to do so would amount to automatic cancellation of the auction
including forfeiting the amount paid. As the respondent failed to deposit the balance amount,
on 17.07.1971 petitioner cancelled the allotment and the respondent's father was informed of
the cancellation when he visited the office of the petitioner. A letter dated 23.08.1971 was
sent by respondent's father for return of the amount deposited which was Rs.2990/-. On
29.10.1982 respondent's father Ratan Lal expired. A Will was executed by respondent and an
Agreement to Sell was executed between the respondent and other legal heirs of late Ratan
Lal. However, the plot in question had been sold to one Satyendra Kumar through auction by
petitioner on 26.05.1998. The respondent therefore, does not have any title qua the property
in question.
4. In view of copy of decision dated 03.07.2003 a Compromise Committee was setup by
petitioner wherein it was held that complaint of the respondent was time barred since more
than 33 years had passed from the date of auction. The matter was transferred to the State
Government on 03.07.2003. On 15.10.2005 the decision of the Compromise Committee was
reiterated by the petitioner.
5. Aggrieved by the said orders, respondent filed Consumer Complaint no. 254/2005
before the District Forum on 14.09.2005 alleging deficiency in service on the part of the
petitioner and praying for allotment of plot no.B-44 in place of plot no.C-78 with
compensation of Rs.20,000/-. The District Forum upheld the complaint and directed the
petitioner to allot an alternate plot of the same size as was previously allotted within 3
months and pay Rs. 1000/- as compensation. The order of the District Forum dated
30.07.2007 reads as follows:
(i) That any other plot of the size of plot no. C- 78 of Sardulganj, Bikaner in
the said colony be provided to the complainant at the rate of 27.04.1970 and if
the plot of the same size is not available in the said colony, then any other plot
of the same size in any other developed colony be provided to the complainant
at the prevalent rate of 27.04.1970. The opposite party is at liberty to receive
remaining 3/4th amount from the complainant along with interest as per rules of
the trust;
(ii) If there is any difference in the size of plot, then the opposite party would
be entitled to receive price of the differential land from the complainant at the
present trust rate;
(iii) The opposite parties are ordered to pay Rs.500/- towards complaint cost
and Rs.500/- towards compensation to the complainant, thus additional total
sum of Rs.1000/- be provided;
(iv) The above order will be complied with by the opposite parties within a
period of three months; and
(v) The complaint is dismissed relating to other reliefs.
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6. An appeal was filed by the petitioner before the State Commission in Appeal No.
238/2013. On 30.11.2015 a contempt application was filed by respondent alleging non-
compliance of judgment dated 30.07.2007. Subsequently on 23.01.2017 an impleadment
application was filed by Satyendra Kumar on the ground that the property in question was
purchased by him by way of an agreement dated 25.05.1993 from the legal heirs of Shri
Ratan Lal. On 02.02.2017 the State Commission held that the petitioner erred in informing
the respondent about the cancellation and the amount deposited by the respondent should
have been returned to him with interest. The order of the State Commission reads as follows:
“It is an admitted fact that Urban Improvement Trust had advertised the auction of the
disputed sale. It is also admitted fact that Ratan Lal, father of the complainant, was
the highest bidder in the said auction. It is also admitted fact that the father of the
complainant had deposited the ¼ amount. It is also an admitted fact that there was
dispute between Urban Improvement Trust and the other parties. Stay order was
issued by the Civil Court which was later dismissed. It was the duty of the opposite
parties to give information of getting the amount deposited to the parties but they did
not give information nor returned the deposited amount on cancellation of allotment.
When this allotment was cancelled, the information of cancellation of allotment ought
to have been given along with the principal amount with interest which was not
returned. Under these circumstances, it was an immaterial ground and any kind of
delay cannot be accepted.
There is no fault in order passed by the learned District Forum, therefore, appeal is
liable to be dismissed and is dismissed.”
7. Aggrieved by this order petitioner filed S B Civil Writ Petition no. 4633/2017 before the
High Court of Judicature, Jodhpur, Rajasthan which was withdrawn with permission to
approach this Commission which was permitted.
8. The petitioner contends that the complainant is barred by limitation and relies upon
judgments of the Hon'ble Supreme Court in (i) Anshul Aggarwal vs New Okhla Industries
Development Authority (2011) 14 SCC 578 wherein it was held that delay in filing a
complaint cannot be condoned unless a just and a sufficient cause is shown by a party
seeking condonation; (ii) in Basawaraj & Anr. vs Special Land Acquisition Officer and
Basawaraj and Ors., vs Special Land Acquisition Officer in Civil Appeal nos.6974 and
6975 of 2013 decided on 22.08.2013 - (2013) 14 SCC 81 wherein it was held that:
Sufficient cause is the cause for which defendant could not be blamed for his absence.
The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be
necessary to answer the purpose intended. Therefore, the word "sufficient" embraces
no more than that which provides a platitude, which when the act done suffices to
accomplish the purpose intended in the facts and circumstances existing in a case,
duly examined from the view point of a reasonable standard of a cautious man. In this
context, "sufficient cause" means that the party should not have acted in a negligent
manner or there was a want of bona fide on its part in view of the facts and
circumstances of a case or it cannot be alleged that the party has "not acted
diligently" or "remained inactive". However, the facts and circumstances of each case
must afford sufficient ground to enable the Court concerned to exercise discretion for
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the reason that whenever the Court exercises discretion, it has to be exercised
judiciously. The applicant must satisfy the Court that he was prevented by any
“sufficient cause” from prosecuting his case, and unless a satisfactory explanation is
furnished, the Court should not allow the application for condonation of delay. The
court has to examine whether the mistake is bona fide or was merely a device to cover
an ulterior purpose.
9. In the instant case it is argued that sufficient cause has not been shown to justify
condonation of delay. The contention of petitioner is also that a purchaser in an auction
cannot be treated as a ‘consumer’ in terms of the judgment of the Hon’ble Supreme Court in
U T Chandigarh Administration & Anr. Vs. Amarjeet Singh & Ors. (2009) 4 SCC 660
wherein it was held that an auction purchaser cannot be termed as a consumer under the CP
Act, 1986 for the following reasons:
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 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 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 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.
[ Emphasis added ]
10. The case of the respondent is that the delay in filing the complaint is because the service
of the demand letter dated 09.03.1971 which was allegedly sent to the respondent to deposit
the balance 3/4th amount is not proved. The complaint before the District Forum was filed
after exhausting all other remedies and after approaching the concerned offices for allocation
of the plot in question. It is contended that the petitioner was a service provider and
respondent was a consumer and that the sale of the land related to a plot constructed by the
petitioner specifically for residential purpose. It is also stated that no letter conveying the
vacating of the stay order was sent in the name of late Ratan Lal during his lifetime or even
after his death. The legal heirs of late Ratan Lal were unaware of the existence of the said
property and came to know about it only during 1993 from old papers of the late Ratan Lal.
The State Commission in its order dated 02.02.2017 has recorded that it was the duty of the
petitioner to give information regarding depositing of money to the respondent. However, the
alleged demand notice dated 09.09.1971 was never served on the respondent during his
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lifetime. This fact had been noted by the Compromise Committee on 03.07.2003. The,
District Forum vide order dated 30.07.2007 had also allowed the complaint of the respondent
holding that the service of demand notice dated 09.03.1971 was not clear. It is argued that
since the respondent never got the possession of the land due to the petitioner’s fault, the
amount deposited by the respondent cannot be forfeited.
11. The respondent relied upon judgment of the Hon'ble Supreme Court in Collector, Land
Acquisition, Anantnag and Ors. vs Katiji Ors. 1987 (2) SCC 107 wherein it was held that
“when substantial justice and technical considerations are pitted against each other, cause of
substantial justice deserves to be preferred for the other side cannot claim to have vested
right in injustice being done because of non-deliberate delay”. Reliance was also placed on
the Hon’ble Supreme Court’s judgment in Esha Bhattacharjee vs Managing Committee
Raghunathpur Nafar Academy, (2013) 12 SCC 649 wherein principles for condonation of
delay were laid down including:
(i) There should be a liberal, pragmatic, justice – oriented, non-pedantic
approach while dealing with an application for condonation of delay, for the
courts are not supposed to legalise injustice but are obliged to remove injustice;
(ii) The terms ‘sufficient cause’ should be understood in their proper spirit,
philosophy and purpose regard being had to the fact that these terms are
basically elastic and are to be applied in proper perspective to the obtaining
fact situation;
(iii) Substantial justice being paramount and pivotal the technical
considerations should not be given undue and uncalled for emphasis;
(iv) No presumption can be attached to deliberate causation of delay but,
gross negligence on the part of the counsel or litigant is to be taken note of;
(v) Lack of bona fides imputable to a party seeking condonation of delay is a
significant and relevant fact; and
(vi) It is to be kept in mind that adherence to strict proof should not affect
public justice and cause public mischief because the courts are required to be
vigilant so that in the ultimate eventuate there is no real failure of justice.
12. It is contended by respondent that the petitioner was a service provider and respondent
was consumer as held by this Commission Kunj Bihari Lal (since deceased) vs Urban
Improvement Co. Pvt., Ltd., RP No. 306/2013. Reliance was also placed on this
Commission’s order in Sheo Prakash Gupta & Anr. vs Kanpur Development Authority in
FA No. 374/2015 wherein the facts are stated to be similar to the present case and it was held
that complainants were consumers qua the Kanpur Development Authority.
13. On the issue that the petitioner cannot forfeit the amount of the respondent, the
respondent has relied upon the order of this Commission in Sheo Prakash Gupta & Anr.
(supra) that since petitioner failed to discharge its service diligently, the petitioner has no
right forfeit the amount.
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14. According to the petitioner late Ratan Lal was not a 'consumer' as the property was
purchased through auction. Therefore, the consumer fora do not have jurisdiction to entertain
the complaint. The settled law as per Hon’ble Supreme Court in U.T. Chandigarh
Administration & Anr. (supra) is that public auction with reference to existing sites does not
qualify a purchaser to be a ‘consumer’ as below:
“14. 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 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 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 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.”
[ Emphasis added ]
15. The orders of the lower fora are concurrent on facts. Both the District Forum and the
State Commission have reached concurrent findings based on the pleadings by both the
sides. The petitioner has, however, raised the issue of jurisdictional error in that the late
Ratan Lal as an auction purchaser was not a ‘consumer’ qua the petitioner in terms of the
judgment of the Hon’ble Supreme Court in U.T. Chandigarh Administration and Anr.
(supra). In view of the settled law in regard to an auction purchaser not being entitled to be
treated as a ‘consumer’ under the Act, the lower fora have certainly acted without
jurisdiction in entertaining and adjudicating in this matter in the Consumer Complaint and
First Appeal respectively.
16. In view of the facts and circumstances of the case and for the aforesaid reasons, the
revision petition is found to have merits and is liable to succeed. Accordingly, revision
petition no.3053 of 2018 is allowed. The impugned order of the State Commission as well as
District Forum is set aside. Parties shall bear their own costs. Pending IAs, if any, stand
disposed of with this order.
......................................
SUBHASH CHANDRA
PRESIDING MEMBER
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