AI Structured Summary
Not yet generated for this judgment
Judgment
R.K. Agrawal, President Member
The present Miscellaneous Application No. 106 of 2021 has been filed by the Complainant seeking a direction to the Opposite Parties to issue Occupation/Completion Certificate in respect of the building constructed on SCO Plot No. 61, Sector 29, Gurugram, regularize the sewerage connection, develop dedicated parking space etc.
Succinctly put, the material facts relevant for disposal of the Miscellaneous Application No. 106 of 2021 and I. A. No. 11854 of 2022 are that one Shri D.P. Sharma purchased a shop-cum-office bearing No.5, Sector -12A, Gurgaon in an open auction held on 08.02.1990. On 01.04.1992, the aforesaid site was re-allotted in the name of one Shri Ranbir Singh Dahiya, who deposited the sale consideration. Since the Opposite Party, Haryana Shahari Vikas Pradhikharan (hereinafter referred to as the “HSVP”) failed to deliver physical possession of the said site, the re-allottee Shri Ranbir Singh Dahiya filed a Consumer Complaint seeking allotment of alternative site in lieu of Site No.5, Sector 12A, Gurgaon. The District Forum vide its Order dated 04.05.2001 directed the HSVP (HUDA) to allot Site No.61, Sector 29, Gurgaon in lieu of Site No.5, Sector 12A, Gurgaon to the said Re-allottee. Since the aforesaid direction despite having been affirmed by the Appellate Fora was not complied with, execution proceedings were initiated by the said Re-allottee and matter reached to this Commission by way of filing a Revision Petition. By an interim Order, this Commission directed the HSVP (HUDA) to deliver possession of the plot in question to Shri Ranbir Singh on deposit of ₹80 lakh. On 21.11.2006, the subsequent re-allottee applied for issuance of Conveyance Deed. However, the Conveyance Deed was not executed in his favour. The said re-allottee also applied for issuance of Building Plan which was sanctioned only on 25.05.2007. However, meanwhile, possession to the re-allottee was delivered on 25.01.2007. This Commission vide Order dated 02.02.2007 directed the payment of additional amount by the said re-allottee which came to be deposited on 09.02.2007. The Conveyance Deed in favour of the Ranbir Singh was executed through the GPA holder Shri Krishan Lal on 01.03.2007.
On 07.08.2007, Shri Krishan Lal GPA holder of re-allottee Shri Ranbir Singh Dahiya applied for transfer of the aforesaid plot in the name of Complainant Firm, M/s City View Enterprises (hereinafter referred to as the “Complainant Firm”). On 12.12.2007, re-allotment letter was issued in favour of the Complainant Firm. On 01.04.2008, a new partnership deed was executed inducting a new partner in the firm which was followed by execution of a retirement deed dated 04.06.2008 whereby one of the Partners namely Satish Kumar retired from the firm and then a fresh partnership deed between remaining partners namely Gopal Dass and Smt. Lakshmi Bai was executed. On 03.09.2008, the Complainant Firm applied for issuance of the Completion Certificate of the building constructed by them on Site No. 61, Sector 29, Gurgaon, however, the same was not issued. Feeling aggrieved, the Complainant Firm filed the Consumer Complaint No. 202 of 2010 before this Commission seeking a direction to the Opposite Party to issue the Completion Certificate and to pay an amount of ₹5,18,40,000/- towards loss of business income etc.
On appraisal of the facts of the case, this Commission, vide its Order dated 01.02.2016, dismissed the Complaint with the following observations:-
“ The complainant is before us as a partnership firm which consisted of three persons at the time plot in question was purchased from its re-allottee Shri Ranbir Singh Dahiya through his attorney. After purchase of the plot by the aforesaid firm, a new partner Smt. Kailash Bai was inducted and exiting partner Shri Satish Kumar retired from the firm. Though, it is vaguely claimed that the construction on the plot was raised by the complainant for earning his livelihood, there is no such averments with respect to purchase of plot from the re-allottee Shri Ranbir Singh Dahiya through his attorney. The complaint does not explain how the complainant firm or for that matter its partners were to earn their livelihood by raising construction on the plot purchased by them from Shri Ranbir Singh Dahiya. There is no allegation in the complaint that the partners of the complainant firm were unemployed and were not engaged any business profession or vocations at the time the plot was purchased and/or construction was raised on it. In the absence of such pleadings and elucidation, it would be difficult for us to hold on the basis of bald averment made in the complaint that the plot in question was purchased and/or construction on it was raised by the partners of the complainant firm for the purpose of earning their livelihood. The plot in question was purchased and constructed spending crores of rupees. Moreover, in order to bring his case within the purview of the explanation below section 2 (1) (d) of the Consumer Protection Act, the complainant has also to claim and prove that he was seeking to earn his livelihood by means of self-employment, in availing the services of the OPs. The complaint does not explain how the complainants were seeking to earn their livelihood from the building which they constructed on the plot purchased by them from the re-allottee Shri Ranbir Singh Dahiya through his attorney. A perusal of the photograph of the building constructed by the complainant on the plot in question clearly shows that the said building is a huge commercial building and not a small office where one may possibly carry on a business or profession for the purpose of earning his livelihood.
In fact even “housing construction” was included in the definition of service given in Section 2 (1) (o) of the Act only w.e.f. 18.06.1993 whereas the auction had taken place much earlier, on 08.02.1990. We are therefore satisfied that the complainant is not a consumer as defined in Section 2 (1) (d) of the Consumer Protection Act.”
Dis-satisfied with the aforesaid order, now, the Complainant Firm/Applicant has filed Miscellaneous Application No. 106 of 2021 before this Commission on the following grounds :-
(i) The Complainant is not carrying on any commercial activity but was self- employed with a view to earn the livelihood. Complainant Firm is neither indulged in any construction activity nor dealing of properties by sale and purchase of plots;
(ii) The approval of the sanction plans is not in dispute, therefore, the question of grant of occupation/completion certificate becomes a necessary outcome upon completion of the construction activity as per approved plans unless, there is a deviation from the approved plans and such deviation has not been compounded or rectified as the case maybe. So far, no objection has been raised by the HSVP pointing out any deviation from the approved/sanctioned Building Plans. Therefore, the Occupation/Completion Certificate has to be granted by the HSVP.
(iii) The HSVP has not only deliberately installed the issuance of Completion Certificate but has also issued a Notice dated 27.01.2021 with regard to sewerage connection which is an essential service consequent to allotment and subsequent approval of construction plans and carrying out of construction. The HSVP has also left out the development of parking space adjacent to and catering to the plot allotted to the Complainant whereas the parking space in respect of other neighbouring plots has been completed and the completion certificate has also been issued.;
By filing the Miscellaneous Application No. 106 of 2021, the Complainant Firm have sought the following reliefs:-
(a) Direct the respondents to issue the Occupation/Completion Certificate in respect of the building constructed on S.C.O. Plot no. 61, Sector 29, Gurugram, Haryana; and
b) Direct the respondents to regularize the sewerage connection already functioning in respect of S.C.O. Plot no. 61, Sector 29, Gurugram, Haryana
(c) Direct the respondents to develop the dedicated parking space adjacent to and catering to S.C.O. Plot no. 61, Sector 29, Gurugram, Haryana as carried out in respect of other neighbouring plots in the same sector; and
(d) Direct the respondents to not to take any coercive action to interfere with the lawful possession of the complainant in respect of the building constructed on S.C.O. Plot no. 61, Sector 29, Gurugram, Haryana and
(e) Allow the Complaint Case No. 202 of 2010 in the light of the prayer (a) hereinabove and in terms of the prayer clauses (ii),(iii),(iv),(v),(vi),(vii) and (viii) of Complaint in Consumer Case No. 202 of 2010
(f) Pass any order or directions that the Hon'ble Commission may deem fit and appropriate in the facts and circumstances of the case to do complete justice.
The Miscellaneous Application No. 106 of 2021 has been contested by the HSVP on the grounds that; (i) the Consumer Complaint No. 202 of 2010 had already been dismissed by this Commission vide a detailed judgment and order dated 01.02.2016 based on the proper appreciation of the facts and evidence and holding that the Complainant is not a “Consumer” as defined in Section 2(1)(d) of the Act; (ii) a Consumer Complaint in respect of a Commercial property purchased in open auction is not maintainable under the provisions of the Consumer Protection Act; (iii) Complainant had failed to remove the zoning violations in the elevation despite having repeatedly been asked to do so and therefore the occupancy certificate was refused to them; (iv) the present MA has been filed by the Applicant in the year 2021 in the Complaint Case No. 202 of 2010 which was dismissed by this Commission on 01.02.2016 hence, the same ought to have been dismissed on the ground of limitation as no application seeking condonation of delay of more than five years had been filed along with the Miscellaneous Application; (v) the present Complainant had no connection with the past litigations on issuance of Conveyance Deed and they were not the party to the previous litigation. It is prayed that the Applicant/Complainant Firm is not entitled to any relief from this Commission inasmuch as the Miscellaneous Application is totally misconceived and an abuse of process of law.
Subsequently, the Complainant Firm has filed I.A. No. 11854 of 2022 praying for the amendment of the Miscellaneous Application No. 106 of 2021 and for treating it as Review Application and for condoning the delay in filing the said Review Application. Following amendments are sought in the Miscellaneous Application No. 106 of 2021 by the Applicant:-
“5. That with a view to rectify the error and to set the record straight in accordance with law, the applicant petitioner is filing the present application for amendments wherein amendments are being sought as under:-
“(i) That in the Memo of Parties and the title of the application in place of “M.A.”, Review Application may be substituted:
(ii) That the hearing of the application be substituted as :
“ Application for review of the order dated 01.02.2010 passed in consumer case No. 202 of 2010 and for directions on behalf of the Applicant and Petitioner. ”
(iii) That before prayer clause (a) in the application filed as M.A.No.106/2021, the following prayer clause (a-1) be added as under:-
“a-1) Recall the judgement and order dated 01.02.16 passed in Consumer Case No. 202 of 2010.”
I have heard the learned Counsel for the parties at some length and perused the material as well as evidence available on record.
Considering the facts sated in the Miscellaneous Application No. 106 of 2021 and for the reasons given in I.A. No. 11854 of 2022, filed by the Petitioner, I deem it appropriate and in the interest of justice, to treat Miscellaneous Application No. 106 of 2021 as a Review Application seeking recall of the Order dated 01.02.2016, passed by this Commission dismissing the Consumer Complaint No. 202 of 2010.
Having carefully gone through the facts of the case, evidence adduced by the parties and after hearing the learned Counsel for the Parties, I am of the considered view that there is no merit in the submission made by the Learned Counsel for the HSVP that since the Plot was purchased in an open auction for commercial purposes, the Complainant is not a “Consumer” as defined in the Consumer Protection Act. It is a fact that the original Complainant, Mr. D.P. Sharma had purchased the shop-Cum-Office-Plot in an open auction on 08.09.1990. The said plot was re-allotted to one, Shri Ranbir Singh. Since, the possession of the plot purchased in auction was not handed over to Shri Ranbir Singh, he filed a complaint before the District Forum for allotment of an alternative plot. The District Forum allowed the complaint and allotted the Site No.61, Sector 29, Gurgaon to the Ranbir Singh. The said order was finally affirmed by the Supreme Court and conveyance deed was executed on 1.03.2007 through GPA Holder Krishan Lal. On 07.08.2007, the GPA holder applied for transfer of the said plot in favour of the Complainant firm. Hence, the question to purchase the plot in an open auction is not relevant in the matter. Recently, dealing with this question, this Commission in the case of Bankey Bihari Social Welfare Society Vs. DDA (Consumer Complaint No.1381 of 2018 decided on 13.03.2023) has held as under:-
“ So far as the contention of the Opposite Party Authority relying upon the decision of this Commission in ‘Allied (Garments) Exports Indus Tries Pvt. Ltd vs. DDA, 1990 SCC Online NCDRC41, that if the plot of land has been purchased in auction it is on ‘as is where is’ basis as such the Complaint is not maintainable, is concerned, it may be mentioned here that the Complainant had paid for a Plot of land admeasuring 3000 sq. mtr. but for the reasons best known to the Opposite Party Authority, the said plot was not allotted. Instead, another Plot with lesser area admeasuring 2940 sq. mtr. had been handed over and that too after a long delay and the Complainant’s office bearers were made to run from pillar to post to get the possession of the Plot and that too with lesser area. Despite having received entire consideration for plot of land admeasuring 3000 sq. mtr., the Opposite Party Authority allotted plot admeasuring 2940 sq. mtr., therefore, the Opposite Party Authority is liable to refund the amount of short area of 60 sq. mtr. alongwith compensation. Therefore, the decisions relied upon by the Opposite Party would not be applicable to the facts of the present case and the contention is rejected.
Similarly, in the present case the Plot purchased by the Complainant Firm was an alternative plot allotted to one Ranbir Singh in terms of the Order passed by the District Forum and hence, the said contention is rejected.
The another plea taken by the Learned Counsel for the HSVP that since the Complainant Firm is engaged in commercial activities, it is not a “consumer, it also does not hold any water. The Hon’ble Supreme Court in the case of Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers and Ors. – (2020) 2 SCC 265 has held as under:-
“19. To summarize from the above discussion, though a straightjacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial purpose’:
(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose’ is understood to include manufacturing/industrial activity or business – to -business transactions between commercial entities.
(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity.
(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.
(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self-employment’ need not be looked into.”
Recently, the Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Harsolia Motors & Ors. (Civil Appeal No. 5352-5353 of 2007 decided on 13.04.2023) dealing with the question of commercial purpose, has held as under:-
“39. Applying the aforesaid test, two things are culled out; (i) whether the goods are purchased for resale or for commercial purpose; or (ii) whether the services are availed for any commercial purpose. The twofold classification is commercial purpose and noncommercial purpose. If the goods are purchased for resale or for commercial purpose, then such consumer would be excluded from the coverage of the Act, 1986. For example, if a manufacturer who is producing product A, for such production he may be required to purchase articles which may be raw material, then purchase of such articles would be for commercial purpose. As against this, if the same manufacturer purchases a refrigerator, television or airconditioner for his use at his residence or even for his office has no direct or indirect nexus to generate profits, it cannot be held to be for commercial purpose and for aforestated reason he is qualified to approach the Consumer Forum under the Act, 1986.
Similarly, a hospital which hires services of a medical practitioner, it would be a commercial purpose, but if a person avails such services for his ailment, it would be held to be a non-commercial purpose. Taking a wide meaning of the words “for any commercial purpose”, it would mean that the goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose, but in a case where goods purchased or services hired is an activity, which is not directly intended to generate profit, it would not be a commercial purpose.
In other words, to make it further clear, let us have certain illustrations, as to whether the transaction falls for commercial purpose or whether the complainant can be held to be a “consumer” within the scope and ambit of Act, 1986.
(i) A CT scan machine was purchased by a Charitable Trust and that was found to be defective, the question raised whether the machinery was purchased for a commercial purpose and whether the appellant was a consumer. From the narration of facts, this Court in Kalpavruksha Charitable Trust v. Toshniwal Brothers (Bombay) Pvt. Ltd. and Another held that the machine was purchased by the Charitable Trust for commercial purpose as every person who takes a CT scan has to pay for it and the services rendered are not free and thus the Trust was not a consumer.
(ii). In Rajeev Metal Works and Others v. Mineral & Metal Trading Corporation of India Ltd., a manufacturer imported raw material through statutory authority that acted as a canalizing agency for manufacture and sale of the finished product. The appellant approached the National Commission alleging that the respondent had not supplied the required quantity demanded by the appellant. This Court held that the purchase was for a commercial purpose and the manufacturer was not a “consumer” for the purpose of the Act, 1986.
(iii). The bank which had taken bankers indemnity insurance policy from the insurance company and suffered loss owing to some of transactions in one of its branches, raised an insurance claim stating that it is owing to dishonesty of Branch Manager and the claim was repudiated by the insurance company stating that the alleged loss was because of some dishonesty of the Branch Manager and this being for commercial purpose, may not be a consumer.
(iv). The complainant is a private limited company running a diagnostic clinic and alleges that Xray machine purchased by the complainant from the opposite party was defective. If an objection is raised that as machine was purchased for commercial purpose and the complainant cannot be said to be a consumer as defined under the Act, 1986 as he has been employed for commercial purpose and has been carrying out business for profit indeed the complainant is not a consumer under the Act, 1986.
(v). A company purchased the EPBX system for the better management of the business of the company for commercial purpose and the complaint filed for alleged supply of defective system may not be covered by the explanatory clause of Section 2(1) (d) of the Act, 1986 as the transaction has no nexus to generate profits.
Thus, what is finally culled out is that each case has to be examined on its own facts and circumstances and what is to be examined is whether any activity or transaction is for commercial purpose to generate profits and there cannot be a straightjacket formula which can be adopted and every case has to be examined on the broad principles which have been laid down by this Court, of which detailed discussion has been made.”
A bare perusal of the afore-extracted orders of the Hon’ble Supreme Court would reveal that there is no straightjacket formula to determine as to whether the person/company is engaged in commercial activities and it has to be determined on the facts and circumstances of the case. The Hon’ble Supreme Court in the clear words has held that even if a manufacturer purchases a refrigerator, television or air-conditioner for his use at his residence or even for his office, has no direct or indirect nexus to generate profits, it cannot be held to be for commercial purpose and for afore-stated reason, he is qualified to approach the Consumer Forum. It means the goods purchased or services hired should not be used in any activity directly intended to generate profit otherwise it would be for commercial purposes. Profit is the main aim of commercial purpose, but in a case where goods purchased or services hired is an activity, which is not directly intended to general profit, it would not be a commercial purpose.
In the present case also, the HSVP has failed to adduce any cogent evidence to substantiate that the Complainant Firm has purchased the plot for gaining profit or running a business of profit gaining. Moreover, it has already been held by the Hon’ble Supreme Court as well as this Commission in catena of judgments that “housing” is a service. The Complainant has purchased the office Plot in question from the HSVP and after getting approved the Building Plans from them, they started the construction over the Plot. After completing the Construction they applied for Completion Certificate which was refused by the HSVP and it amounts to deficiency in service. The ground taken by the HSVP for refusal of Occupancy/Completion Certificate was that zoning violation in the Elevation were not removed by the Complainant Firm. However, according to the Complainant Firm, there is no violation and the construction was done in terms of the Building Plan approved by the HSVP.
For the aforesaid reasons, I allow the Review Application (MA No.106 of 2021) and recall the order dated 19.01.2016 passed by this Commission in Consumer Complaint No.202 of 2010. I direct the Respondent HSVP to issue Occupation/Completion Certificate to the Complainant Company in respect of the building constructed on SCO Plot No.61, Sector 29, Gurugram Haryana. We further direct the HSVP to regularise the sewerage connection after imposing the penalty in terms of its policy. They are also directed to develop the dedicated parking space as has been done for neighbouring plots.