PRELIMINARY QUESTION OF MAINATAINABILLITY BE DECIDED FIRST

But question of law is to be explained when required

Prior to the amendment 2002 in the consumer protection act 1986,it was often observed that cases were dragged till the end and finally found either complainant not a consumer or the forum/commission does not have the jurisdiction to hear the case. For this very reason a special provision was made in the act through amendment 2002 to have preliminary hearing done by the forum to check three things-

1.      Whether complainant is a consumer

2.      Whether complaint has been filed within limitation of two years .

3.      Whether the forum/commission has the jurisdiction to hear the case.

Recently Ministry of consumer affairs ,Govt. of India organized one day seminar on 18^th of March 2015 on the occasion of  World Consumer Day which is celebrated all over the world on 15^th of March every year. During the discussion an issue was raised by one of the Presidents from the state  as to whether complaint can be rejected for admission at  the preliminary stage if prima facie it appears meritless case.

Answer is –No. In order to assure that complainant shall get final verdict at the end ,these three things are to be strictly seen . If filing is done beyond limitation,application for condonation of delay is to be considered first . But the act never empowers the court to decide it whether case has merit or not . It will be the other party to object or raise question who has to defend the case and it is the complainant to establish his case by providing the forum suffecient evidence . Court has to judge on the basis of material produced on record and then can come to the conclusion whether complainant could prove his case or not . It is a general principal of law that every person in litigation has a right to be heard . If it is left to the forum to take up or reject the complaint for admission looking into merits prima facie ,ther e is all possibility of misuse at the staff level and many genuine cases shall meet the fate of rejection without giving opportunity to be heard .

The practice followed by some consumer forums dismissing the complaint at the time of admission on merit  is not appreciated . The provisions laid down in the act are to be followed in its proper spirit ,there is no discretion available with bench to do otherwise .

National Commission had an occasion to deal with the situation  wherein  a person who’s land was acquired and promise to allot a plot under oustees quota scheme of Haryana Government was not met with . Shamsher Singh filed a complaint before Panchkula  Consumer Forum claiming allotment of plot under outsee scheme . The District Forum Panchkula on consideration of the material on record allowed the complaint and

directed thus:

a. To allot a plot of 14 Marla to the complainant in Sector 21 Part-III, Panchkula                           

and if no plots are vacant in that sector or for any reasonable the same cannot be

allotted, then the plot of same size be allotted in some equally developed adjoining

Sector on the same price which existed at the time of advertisement; and

b. Also pay a sum of Rs.1000/- as cost of proceedings.

Let the order be complied with within a period of one month from the date of

communication of this order.

HUDA approached the  State Commission in appeal which was also dismissed.Now HUDA comes with revision petition  before the National  Commission with an objection that complainant is not a consumer under Consumer Protection Act. The sole question before the Apex Commission was  to decide as to whether complainant is a consumer under the circumstances.

Here in this matter,the issue could not be decided at the stage of preliminary hearing because it involeved a question of law for consideration.

The facts in brief as stated are that the land belonging to one Shamsher Singh and his daughter Gurmeet kour was acquired by the Haryana Government under Land Acquisition Act  There was an advertisement by Huda in September 2003 about  a outsee  policy of government of Haryana for those who’s  land was acquired under Land Acquisition Act.Shamsher Singh with power of attorney for his daughter  applied for the same with all revenue record showing ownership of the land so acquired. The application was rejected on the ground that one Mr Sohanjit Singh was already allotted a plot of 10 marlas as a good gesture , who was the co-owner of the land with Shamsher Singh  and also revenue record was jointly owned by complainant with  Sohanjit Singh .Not satisfied with the reason ,complaint before the consumer forum was filed by Shamsher Singh . 

National Commission went into detail and discussed the definition of consumer as defined under the consumer protection act In order to appreciate the submissions made on behalf of litigating parties , it would be useful to have a look on the definition of consumer in relation to the services which is reproduced thus: -

"Consumer" means any person who—

(i) buys any goods 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 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 payment, when such services are availed of with the

approval of the first mentioned person but does not include a person who avails of

such services for any commercial purpose

Keeping in view the above defenintion of consumer and referring to the earlier judgments on the issue by this commission .In the matter of HUDA v Udai Singh RP NO.3456. /2009 commission  had held that allotment of residential plot under outsees scheme was a gesture of goodwill and there being no element of hiring of services for consideration ,the complainant was not covered under the definition of consumer. Similar view was taken in  Prem Kanta v Huda &Others 111(2008)CPJ 146 NC and also in HUDA  &others v Raghunandan Lal RP No  1934 of 2012.

It became clear from the above discussion that there was no consideration involved in the scheme and it was only agood gesture and not a right . Further ,floating any scheme  and implementing it is a statutary function of the authority and neither any  fee is charged from any one  nor any services rendered by taking consideration . Matter is not discussed on merits and National Commission dealt with the question of maintainability holding complainant not a consumer.

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