Municipal Corporation, Faridabad vs Renu Gupta

This revision petition has been filed against an order dated 16.06.2011 passed by Haryana State Consumer Disputes Redressal Commission, Panchkula ( in short, the State Commission) in First Appeal no. 775 of 2011. Vide the impugned order, the State Commission had confirmed the order of the District Forum dated 09.12.2010, whereby the complaint of the complainant / respondent was accepted and following directions were issued:

".... The respondent corporation is directed to refund an amount of Rs.13,75,000/- to the complainant with interest @ 9% p.a. from the date of its deposit i.e. 30.04.2008, till the date of payment. The respondent is also directed to pay Rs.2200/- as litigation expenses to the complainant."

The appeal of the petitioner vide the impugned order was dismissed on merits as well as on the ground that it was barred by limitation. Counsel while arguing the matter has not pressed the argument on the limitation but has argued that impugned order whereby the appeal was dismissed on merit, suffers with illegality and vital facts were not taken into consideration and, therefore, impugned order is liable to be set aside. It is argued that findings of the Fora below that there was a sewerage line underneath the shop is a wrong finding and there was only a service connection. On behalf of the respondent, it is argued that there is concurrent finding of fact that at the time when the subject property was put to auction by the petitioner, they had concealed the material facts relating to the existence of the sewerage line underneath the shop and also misrepresented about the size, condition and location of the shop. It is submitted that this Commission has no jurisdiction to re-assess and re-appreciate the evidence led before the Fora below and cannot substitute its own opinion on the findings of the facts.

We have given our thoughtful consideration to the rival contentions.

The brief facts of the case are that respondent was allotted a shop No.21, B K Chowk, NIT, Faridabad in an open auction. The shop was advertised to be having an area of 257.8 sq. ft. and auction price was Rs.55 lakhs. However, she had succeeded in the auction and purchased the said shop for Rs. 30,75,000/-, which money was duly paid to the petitioner. When she visited the shop, she found the area of shop was 170 sq. ft. instead of Rs.257.8 sq. ft. and that there was a sewerage line underneath the shop, which could cause collapse of shop at any time. The electricity bill of Rs.20,026/- was also found outstanding against the shop in the name of one Sh. Vikas Sharma. She also came to know that construction of the shop was declared illegal by the Consumer Forum, Faridabad vide its decision dated 15.02.2006 in complaint titled Vikas Sharma vs MCF and that all these facts were not brought to her notice. The plea taken by the petitioner before the District Forum was that the shop was sold in an auction to the petitioner as per the bid procedure of the Government and that she was not entitled for any refund. After recording the evidence, the District Forum reached to the following conclusion :

"7. There is no dispute that the shop in question was earlier sold in open auction in favour of one Vikas Sharma, who filed a complaint before Consumer Forum, Faridabad, levelling allegation of deception, fraud and concealment of actual position of the shop against the respondent corporation. That complaint was decided against the corporation. But concealing the factum of previous litigation, the respondent corporation again put the shop for sale in open auction. Since auction proceedings took place in the office of MCF, the complainant came to know of the actual position of the shop only when she opened the shutter of the shop and found electricity bill in the name of Vikas Sharma lying therein. The respondent corporation, thus, adopted an unfair trade practice by putting the shop for sale in open auction without disclosing the factum of earlier litigation and the decision rendered in that litigation against the corporation by the Consumer Forum. The sewer line has been existing underneath the shop which can cause collapse of shop any time but this fact was not disclosed by the respondent corporation at the time of putting the shop on auction. In these circumstances, when the respondent corporation is itself at fault, it could not have asked for payment of balance amount of the sale price of shop from the complainant. Not only that, when the corporation put the shop for sale by concealing material facts regarding earlier litigation as well as condition and location of shop, the corporation is liable to refund an amount of Rs.13,75,000/- to the complainant which was paid by her as 25% of total cost of shop alongwith interest.

So, the respondent corporation is directed to refund an amount of Rs.13,75,000/- to the complainant with interest @ 9% p.a. from the date of deposit i.e. 30.04.2008 till the date of payment. The respondent is also directed to pay Rs.2200/- as litigation expenses to the complainant. A copy of this order be sent to the parties concerned free of costs. File be consigned to record room.

In appeal, after re-assessing and re-appreciating the evidences led before the District Forum, the State Commission reached to the following conclusion :

"Even on merit, there is no force in this appeal. In the present case by allotting a shop no. 21, B K Chowk, NIT, Faridabad to the complainant in an open auction, fraud has been played with him. The auction was held in the office of the opposite parties for the allotment of a shop having area of 257.8 sq. ft. for a tentative sum of Rs.13,75,000/-. The complainant had deposited 25% of the total cost with the opposite parties. However it was to the utter surprise of the complainant when she had gone to her shop for the first time, the area of the said shop was found 170 sq. ft. instead of 257.8 sq. ft. The sewerage line was also found underneath the shop, which could collapse of shop at any time. An electricity bill for a sum of Rs.20,026.64 was also found outstanding against this shop in the name of one Sh. Vikas Sharma. On verification, it came to the notice of the complainant that construction of the said shop was declared illegal by the Consumer Forum, Faridabad by its decision dated 15.02.2006 in the complaint titled 'Vikas Sharma Vs. MCF. But these facts were never brought to the notice of the complainant before the auction of the shop in question.

Taking into account the above admitted facts of the case, the District Forum was of the view that when the corporation has put the shop for sale in an open auction, it has concealed the material facts and misrepresented about the size, condition and location as well as sewerage line underneath the shop. Hence corporation is liable to refund the amount of Rs.13,75,000/- to the complainant paid by her as 25% of total cost of shop along with interest. With this observation the District Forum has accepted the complaint and issued the directions as noticed above in the impugned order, which does not call for any interference in this appeal.

Vide this revision petition, the petitioner has urged us to re-assess and re-appreciate the evidences once again and give our own findings on the facts.

It has been held by the Hon'ble Supreme Court in the case of Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., (2011) 11 SCC 269 that this Commission has no jurisdiction to re-assess and re-appreciate the evidences where there is concurrent findings of fact by the Fora below. Hon'ble Supreme Court has held as under:

"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."

Counsel for the petitioner has failed to bring to our notice any illegality or infirmity in the impugned order. It has also failed to point out that finding of fact is not based on the evidences led before the Fora below but are based on conjectures and surmises. We found no reason to interfere with the impugned order. Revision Petition has no merit and is, therefore, dismissed.