HARYANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, CHANDIGARH
Hon’ble Mr. Justice S.S. Sandhawalia, President;
Mr. S. Kulwant Singh, Member
PAWAN KATIAL & ORS.—Complainants
versus
ANSAL HOUSING AND CONSTRUCTION LTD., PANCHKULA—Opp. Party
and
PRATIBHA NAGPAL & ORS.—Complainants
versus
ANSAL HOUSING AND CONSTRUCTION LTD., PANCHKULA—Opp. Party
Criminal Case Nos. 20 & 22 of 1992— Decided on 27.7.1992

Headnote:(i) Law of Precedent - Question of Consumer jurisdiction qua promoter-builders and their allottees - State Commission bound by the considered decision rendered by the National Commission - It should not refuse to be so bound merely on the ground that an appeal has been taken against it to the Supreme Court This Commission continues to be bound by the precedents of the earlier orders of the National Commission on the point - Promoter-builder and allottees relationship constitutes a service as defined under the Act.

       Held: It is well-settled on the larger theory of precedent that ajudgment of a court holds the field and is binding on the courts below till it is expressly reversed or overruled by a larger Bench or a superior court. The mere filing of an appeal or the admission of a special1cave petition by their Lordships of the Supreme Court does not ipso facto obliterate its reasoning, or the ratio thereof. It is merely as yet put in issue hut is in no way wiped off the slate. Nor does the stay of a specific judgment whilst admitting the appeal against it (which is sometimes a matter of course), would be of any further significance in this context Such an order operates as a stay of the particular judgment. It cannot operate as a stay of the ratio, reasoning and the principle which forms foundation of that judgment till it is actually set aside and substituted by that of the appellate court. Were it to be otherwise, the situation in the well-ordered field of a legal system governed by precedent would be rendered chaotic. (Para 8)

       (ii) Consumer Protection Act, 1986 - Sections 2, 14 & 17 - Jurisdiction - Complaint against the builder-Promoter with regard to the increase in super area, charges for covered balcony, escalation charges, electric connection charges etc. etc. - Opposite Party is a promoter-builder - Agreement for the transaction made available at a late stage - Whether the consumer jurisdiction is ousted in a situation where the promoter-builder chooses to frame the ultimate agreement with its allottees in the phraseology of a leasehold between a proposed lessee and the lessor? - (No)

       Held, that the Act is a beneficent statute and particularly orientated against any hypertechnicalitics. The definitions of a consumer and a service are wide-rangingly drafted to grant relief to the larger class of consumers created thereby. Equitable consideration in its application is the more significantly relevant one as against the legalistic hair-splitting with regard to its applicability. It is well settled that the equity court will always pierce the veil of form in order to arrive at the real nature and substance of the transaction. In the basic case of U.P. Avas Evam Vikas Parishad (Housing & Development Board) v. Garima Shukla, the National Commission did not even remotely lay down that the promoter-builder relationship would turn on the legal niceties of the form in which the last agreement is couched. It went by the larger and broader consideration of judging the matter on the ground whether the opposite party was providing the service to the public with regard to housing by means of the acquisition of the land, development of sites, construction of houses thereon and later allotment of plots and houses to the public. That description fits the opposite party like a glove. Even otherwise, it has been shown above and concluded if para 29 that even the terms of the agreement were patent and unerring incidents of promoter- builder activity alone and wholly inconsistent with any landlord-tenant relationship. (Para 19)

       (iii) Pecuniary Jurisdiction - Consumer Protection Act, 1986 - Section 17 - Preliminary question of pecuniary jurisdiction has to be on the basis of its evaluation by the party which seeks relief by way of a plaint or a complaint Complainant evaluated the complaint within the bounds of rupees ten lakhs - State Commission empowered to entertain it. (Para 21)

       Result: Ordered accordingly.

       IMPORTANT POINTS

       1. A considered judgment of the National Commission does not cease to hold the field merely because a special leave petition is admitted against it by the Honble Supreme Court.

       2. The Consumer Jurisdiction is not ousted in a situation where the promoter-builder chooses to frame the ultimate agreement with its allottees in the phraseology of a leasehold between a proposed lessee and the lessor.