Ashok Bhan J., President:— Punjab Urban Planning and Development Authority (hereinafter referred to as ‘PUDA’ for short)-petitioner herein, which was the Opposite Party before the District Consumer Disputes Redressal Forum, Ropar (hereinafter referred to as ‘the District Forum’ for short), has filed the present Revision Petition against the Order of the Punjab State Consumer Disputes Redressal Commission, Chandigarh (hereinafter referred to as ‘the State Commission’ for short) in Appeal No. 1004 of 1996.

Briefly stated, the facts of the case are:—

Complainant/respondent, Shri Krishan Pal Chander applied for allotment of 10 Marlas plot in the Urban Estate Jalandhar on 09.11.1971 at Jalandhar and, thereafter, he left for Canada in the year 1974. In the year 1974, Government framed its Policy for allotment of plots and it was decided that before any fresh applications were considered for allotment of plots in any Urban Estate, the old applications be given the chance of purchasing the plot as per the revised system of payment. Also, direction was given to the Director Housing to prepare a detailed list of old applicants. This Policy was revised in the year 1981 and, as per the revised Policy, the plots measuring more than 200 square yards were to be sold by auction. An advertisement to this effect was published in the local Dailies for the old applicants to participate in the auction to participate in the auction. In the year 1983, the Policy of 1981 was changed/discontinued and old applicants who had applied for allotment of plots at Jalandhar and Phagwara were asked to give their option to participate in draw of lots. An advertisement to this effect, dated 25.08.1983, was got published. In the year 1994, a fresh Policy was framed and an advertisement was given in the Press as well as the individual applicants were informed by registered post. At every stage, whenever there was a change in the Policy, the Government considered the old applicants and a notice to the general public was given.

Petitioner informed the respondent about the revised Policy through letter dated 06.04.1981 and directed the complainant to remit the balance amount within the stipulated period. However, the respondent did not deposit the requisite balance amount and, hence, respondent was not considered for allotment of plot. Again, on 03.05.1994, a letter was written to the respondent to deposit the balance amount before 16.05.1995 which respondent did not deposit.

Vide letter dated 12.12.1995, respondent stated that he be allotted a plot either at Ludhiana or SAS Nagar which falls within the area of Mohali. Thereafter, respondent filed a Complaint before the District Forum, Ropar on the ground that petitioner had branch office but did not implead Jalandhar Office as a party-respondent. In the Complaint, he admitted that he has not been in India since 1974. It was stated that he had not received the letters written by the petitioner and that the petitioner had failed to render services to the respondent.

Petitioner filed its Written Statement denying all the allegations. It was categorically stated that the respondent had been put to notice on two occasions and that he had failed to fulfill the terms of the proposed allotment and deposit the balance amount. That he had not replied to either of two communications. It was also stated that the District Forum did not have the jurisdiction. It was further stated that the respondent was not a ‘consumer’ within the meaning of Section 2(d) of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ for short) as no allotment had yet been made in his favour.

District Forum allowed the Complaint and gave the following directions:—

“(i) The opposite parties are directed to allot a 10 Marlas plot in favour of the Complainant in any of the Urban Estates of Jalandhar or SAS Nagar (Mohali) within 3 months in accordance with Policy/Scheme of the year 1981 as well as the prevailing rates.

(ii) The OP's are directed to pay a Compensation of Rs. 1 lakh to the Complainant to compensate him for an inordinate delay over 20 years in processing his application as well as to compensate him for a steep escalation in the cost of construction besides harassment caused to him.

(iii) In case of non compliance of direction at Serial No. (1) the OP's would be liable to lay further compensation to the complainant at the rate of Rs. 50,000 per month.

(iv) The complainant is directed to get in touch with the Opposite parties in order to assist it in compliance of the said direction No. (i) above.”

Petitioner, being aggrieved by the Order passed by the Order passed by the District Forum, filed an Appeal before the State Commission. The State Commission passed an Interim Order on 12.02.1997 and directed the petitioner to allot a plot of 10 Marlas to the complainant, if available. The possession of the plot was directed to be given after the decision of the Appeal.

Petitioner, being aggrieved against the Interim Order passed, filed a Revision Petition before this Commission. This Commission modified the Order of the State Commission and directed the petitioner to reserve a 12 Marlas plot in the Urban Estates of Jalandhar for allotment to the respondent, in case the respondent succeeds in Appeal.

State Commission finally disposed of the Appeal by the impugned Order. Objection raised by the petitioner that the respondent was not a ‘consumer’ was overruled. Relying upon an Order passed by this Commission that a plot be kept reserved for the respondent and handed over to him in case he succeeds, the State Commission upheld the Order of the District Forum except that the grant of compensation of Rs. 1,00,000/- was set aside.

Aggrieved by the Order passed by the State Commission, petitioner has filed this Revision Petition.

Counsel for the parties have been heard at length.

In our considered view, the Foras below have erred in holding that the Policies of the government or the letters written by the petitioner to the respondent were not communicated to him. It is a matter of record that Policies were made public by advertisement in the newspapers, in response to which, thousands of persons had applied. Respondent was also communicated by registered letters to deposit the balance amount, which he did not do. It was only in the year 1995 that the respondent informed the petitioner that he had shifted to Canada and further communications be addressed to his Attorney, Shri B.I.C Rajput at House No. 730, Sector-IIB, Chandigarh. The letters were sent by registered post at the address given in the Complaint. There was no intimation given by the respondent regarding the change of address or that he had shifted to Canada. As the letters were sent by registered post, it would be presumed that the respondent had received the same. It would be seen from the facts narrated above that the respondent-complainant remained silent for 21 years. He did not deposit the balance amount.

The last cause of action had arisen to the respondent on 03.05.1994 when the petitioner had made an offer to the respondent. Respondent did not agitate his rights till the filing of the Complaint on 20.09.1996 At that point of time, limitation for filing the Complaint under the Act had expired. Hon'ble Supreme Court in V.M Salgaocar and Bros. v. Board of Trustees of Port of Mormugao reported in (2005) 4 SCC 613, has held that even if the defendant does not raise the plea of limitation, if the suite is ex-facie barred by limitation, the Court has no choice but to dismiss the same. It was observed in paragraph 20 as under:—

“20. The mandate of Section 3 of Limitation Act is that it is the duty of the Court to dismiss any suit instituted after the prescribed period of limitation irrespective of the fact that limitation has not been set up as a defence. If a suit is ex-facie barred by the Law of Limitation, a Court has no choice but to dismiss the same even if the defendant intentionally has not raised the plea of limitation.”

The Complaint, being barred by time, is liable to be dismissed on this account as well.

Foras below have erred in not appreciating that mere application for allotment did not give the respondent, any right to the allotment of the plot. It is well settled that filing of application for allotment at the highest, grants the proposed allottee, only a right to be considered and no higher right than that accrues to him. This question has been examined by Hon'ble Supreme Court in Morgan Stanley Mutual Fund v. Kartick Das. reported in (1994) 4 SCC 225 in which it was held as under:—

“31. Therefore, it is after allotment, rights may arise as per the contract (Article of Association of Company). But certainly not before allotment. At that stage, he is only a prospective investor (sic in) future goods. The issue was yet to open on 27-4-1993. There is not purchase of goods for a consideration nor again could he be called the hirer of the services of the company for a consideration. In order to satisfy the requirement of above definition of consumer, it is clear that there must be a transaction of buying goods for consideration under Clause 2(1)(d)(i) of the said Act. The definition contemplates the pre-existence of a completed transaction of a sale and purchase. If regard is had to the definition of complaint under the Act, it will be clear that no prospective investor could fall under the Act.

32. What is that he could complain of under the Act? This takes us to the definition of complaint under Section 2(1)(c) which reads as follows:

“2(1)(c) “complaint” means any allegation in writing made by a complainant that—

(i) as a result of any unfair trade practice adopted by any trader, the complainant has suffered loss or damage;

(ii) the goods mentioned in the complaint suffer from one or more defects;

(iii) the services mentioned in the complaint suffer from deficiency in any respect;

(iv) a trade has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods, with a view to obtaining any relief provided by or under this Act.”

33. Certainly, Clauses (iii) & (iv) of Section 2(1)(c) the Act do not arise in this case. Therefore, what requires to be examined is, whether any unfair trade practice has been adopted. The expression trade practice as per rules shall have the same meaning as defined under Section 36-A of Monopolies and Restrictive Trade Practices Act of, 1969. That again cannot apply because the company is not trading in shares. The share means a share in the capital. The object of issuing the same is for building up capital. To raise capital, means making arrangements for carrying on the trade. It is not a practice relating to the carrying of any trade. Creation of share capital without allotment of shares does not bring shares into existence. Therefore, our answer is that a prospective investor like the respondent or the association is not a consumer under the Act.”

(Emphasis Supplied)

In view of the aforesaid observations of Hon'ble Supreme Court, it has to be held that the respondent was not a ‘consumer’ within the meaning of the Act as no allotment had yet been made in favour of the respondent.

The State Commission has relied upon a Judgment of this Commission in Haryana Urban Development Authority v. Smt. Veena Kakkar reported in II (1995) CPJ 43 (NC), wherein this Commission has held that the depositor of earnest money for allotment of plot is a ‘consumer’ and the process of rendering service commences when HUDA invites applications for allotment of plot in response to which, an offer was made to the respondent. We have gone through the said Judgment. The same has not applicability to the facts of the present case. Counsel for the respondent has relied upon a Judgment of this Commission in Punjab National Bank v. Merrut Development Authority reported in IV (2008) CPJ 284 (NC) to contend that the ‘housing’ falls within the ambit of the Consumer Protection Act, 1986. Persons, who apply for allotment, are consumers and are entitled to relief. In the said Judgment, the case of the complainant was that he had been allotted a flat but without some of the basic facilities. In the aforesaid circumstances, this Commission held as under:—

“6. We heard the learned Counsel for the parties at some length and perused the material on record. Dealing with the preliminary objections raised by the opposite party; first, the law is by now well settled by the Hon'ble Supreme Court in the case of Lucknow Development Authority v. M.K Gupta., III (1993) CPJ 7 (SC) : (1994) 1 SCC 243 : AIR 1994 SC 787 that housing, per se, falls within the ambit of the Consumer Protection Act, 1986, and also the fact that anybody who applies for allotment of a house is a ‘Consumer’ therein. Hence, we see no merit in the preliminary objections raised on the point of litigation being of ‘civil nature’ as also the complainant not being a ‘consumer’.”

Learned Counsel for the respondent has also relied upon the Judgment of Hon'ble Supreme Court in Lucknow Development Authority v. M.K Gupta. reported in (1994) 1 SCC 243 : AIR 1994 Supreme Court 787 wherein Hon'ble Supreme Court held as under:—

“6. What remains to be examined is if housing construction or building activity carried on by a private or statutory body was service within meaning of Clause (o) of Section 2 of the Act as it stood prior to inclusion of the expression ‘housing construction’ in the definition of “service” by Ordinance No. 24 of 1993. As pointed out earlier the entire purpose of widening the definition is to include in it not only day to day buying and selling activity undertaken by a common man but even to such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer. Contraction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire services of a builder or contractor. The latter being for consideration is service as defined in the Act….”

It was contended by him that housing construction or building activity carried on by a private or statutory body was a ‘service’ within the meaning of Section 2(o) of the Act. There is no quarrel about this proposition. In both these cases, the plots had been allotted but without providing basic facilities. What has been held in these two Judgments is that the deficiency in service in either construction of the building or any other defect would fall within the meaning of Clause (o) of Section 2 of the Act. The facts of these two cases were not similar to the present case in which no allotment had been made. In the present case, the respondent had only applied for allotment of the plot and he was a prospective investor only. Till the allotment of the flat, the respondent had not become a ‘consumer’.

For the reasons stated above, this Revision Petition is accepted. Orders passed by the Foras below are set aside and the Complaint filed by the respondent is dismissed. Parties to bear their own costs.