1. THIS appeal is directed against the order of the District Forum, Ludhiana dated October 16, 1998. The appellant has challenged this order on the grounds of both jurisdiction and facts.
2. THE facts of the case in brief are as follows :
The appellant had applied for allotment of EWS House at Samara Road, Ludhiana and had deposited Rs. 1,000/- as advance money. He was allotted house No. EWS-2185 but was not given possession. He completed all the formalities and executed a lease deed in favour of the opposite party but the opposite party failed to deliver the possession of the house. Hence he filed a complaint before the District Forum, Ludhiana for a direction to the opposite party to deliver possession of the house and to pay compensation of Rs. 5, 000/- and Rs. 1,000/- as costs of litigation.
The complaint was resisted by the respondent by contending inter alia the District Forum had no jurisdiction to entertain the complaint as the complainant had filed a similar complaint on the same cause of action, but it was dismissed and the complainant is not a consumer; on merit, the opposite party stated that when survey conducted on the spot in the months of June and July, 1995, the complainant was not actually found residing in the Jhugies of Sector 39-A, Urban Estate, Samrala Road, Ludhiana. The opposite party-PUDA had laid down a criteria for allotment and delivery of possession of EWS Houses, as detailed below :
"(i) That applicant must be actual Juggi-dweller in Sector 39-A, Samrala Road, Urban Estate, at the time of re-settlement and delivery of possession. (ii) That the applicant must be a citizen of India. (iii) That the applicant must be above 18 years of age. (iv) That the applicant must be having income less than Rs. 1,250/- per month."
3. IN the month of June, 1995, the work of survey and demolition of Jhuggies on the land of PUDA was started, which continued upto July, 1995. At that time a list of actual dwellers was prepared. The persons, who were not found actually residing in the Jhuggies in June and July, 1995, their names were not included in the list. The allottees, who were having allotment letter and were found residing in the Jhuggies were re-settled and possession of respective houses of EWS category was delivered to them. Even the persons who were not having allotment letters, were issued yellow cards and they were adjusted in EWS houses by giving them a temporary shelter. At the time of re-settlement and delivery of possession, the complainant was not found actually residing in the Jhuggies of Sector 39-A, Samrala Road, Urban Estate, as such he was not eligible for possession of house in question allotted to him, otherwise also, he failed to get the lease deed registered in favour of PUDA. The complainant filed his own affidavit and the documents, and on behalf of the opposite party, affidavit of Sh. Jagmel Singh, Junior Engineer, Office of the Estate Officer, PUDA, Ludhiana was filed. The District Forum, Ludhiana placing reliance on the decision of this Commission in Sh. Chaman Lal v. The Superintending Engineer, UBDC, Amritsar & Ors., dismissed the complaint.
The learned Counsel for the PUDA has vehemently contended that there was no deficiency in service on the part of PUDA as a lessee of land, can not be a consumer as defined under the Consumer Protection Act. We have heard the Counsel for the parties. The point that arises for determination in this case is whether the complainant is a consumer and whether his complaint is maintainable. According to the Act, Section 2(1)(d), ''consumer'' means any person who-
(i) buys any goods for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person."
4. THE issue with regard to the maintainability of complaint and lessee as a ''consumer'' was discussed at length. THE learned Counsel for the appellant placed reliance on various judgments. On going through these authorities, we find that these are of no help to him. This point has also been discussed in Chaman Lal v. THE Superintending Engineer, UBDC, Amritsar & Ors., II (1997) CPJ 302=1998 (1) CON.LT 346, it has been held by this Commission in the following terms :
"A lessee of land or immovable property cannot be a consumer as defined under the Consumer Protection Act. By taking the property on lease, it cannot be said that the lessee had hired the services of the lessor on consideration. Under the lease, the lessee gets permission or right to use the property of course on payment of rent. Qua that the lessee may have certain rights which can be enforced in the Court of law. But a lessee does not acquire the status of a hirer of the services of the lessor. THE element of rendering service in such like matters is lacking. A consumer as defined under the Act can be a person who purchases goods or hires services of the opposite party for consideration. Present cannot be treated as a case of purchase of goods or hiring service of any person."
Orissa State Consumer Disputes Redressal Commission, Cuttack, in Dubraj Pandey of Sambalpur v. Municipality of Jharsuguda & Anr., I (1997) CPJ 278, has held that lessee is not a consumer in the following terms :"It is needless to mention that a person to become a consumer in respect of services must have availed of or hired the services of another. THE case of the complainant is that he applied for grant of lease of two shop plots which according to him was allotted in his favour and he deposited the premium and other necessary charges. Whether the allotment so made could be cancelled by the Municipality or if the order of cancellation is sustainable is a different matter with which the Consumer Forum has no concern. THE legality or otherwise of the cancellation of the lease if any can be and should be taken up before the Forums and Courts created by law for the purpose. THE complainant is, otherwise, not a consumer as he entered into a transaction of lease if at all his allegations are accepted. But assuming that a lease came into existence by the allotment order issued by the Municipality and by deposit of the premium by the complainant, the law defines the rights and duties of the lessor and the lessee and the terms of the lease can be enforced by either side in an appropriate Court of law. THE complainant will not be a consumer inasmuch as he does not avail or hire the services of the Municipality for consideration by any stretch of imagination. THE question of buying goods for consideration is out of question inasmuch as the subject matter of lease is not goods. Thus the complainant not being a consumer, his grievances cannot be entertained by a Consumer Forum."
In view of the principle laid down by this Commission as referred to above, we decline to exercise our jurisdiction and refer the complainant/appellant to his ordinary remedy if so advised. For this very reason, it is not necessary to examine other questions raised by the complainant and the opposite party. We uphold the preliminary objection to the extent that the complainant will not be a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986.
For the reasons recorded above, the appeal is dismissed without going into the merits of the case. There will be no order as to costs. Order of the District Forum is affirmed. Appeal dismissed.
