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2016 Supreme(Raj) 168

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR
Mohammad Rafiq And Dinesh Chandra Somani, JJ.
M/s Ashoka Buildstate Developers Pvt. Ltd. And Another - Appellant
Vs.
Rajasthan State Industrial Development and Investment Corporation Ltd. and Others - Respondent
D.B. Special Appeal (Writ) No.843,844/2015 In S.B. Civil Writ Petition No.6944,6945/2015
Decided on : 22-07-2016

Advocates Appeared:
For the Appellant : Mr. Deepesh Oswal
For the Respondent: Mr. Veyanktesh Garg

Headnote:

Constitution of India,1950 - Article 226 - Consumer Protection Act, 1986 - Sections 2(1)(d) and 27A(1)(c) - Applied for allotment of admeasuring - Per procedure of allotment - Respondents to allot them Plot No.F-84, 85, 86 and 87, Industrial on same terms and conditions applicable at the relevant time or to allot any other plot in lieu of said plots in same scheme - An alternative prayer was made that respondents be directed to allot area of 10000 square meters in any other nearby industrial zone on same terms and conditions on which allotment proposed to be made in favour of petitioners - Further prayer was made order passed by State Consumer Dispute Redressal Commission - Appellants applied for allotment of admeasuring 10,000 square meters - Respondents then vide communication required appellant to deposit a sum of as additional development fee at rate - Appellants vide letter conveyed to respondent RIICO that if and when the water supply was started said amount would be deposited within thirty days and in case the water supply was to start late amount will be deposited along-with remaining 75% of development fee - Appellant deposited water development charges and obtained receipt of deposit of development charges – Held, Court in case interpreted Section 2(1) (d) of Act of 1986 and also for arriving at meaning of commercial purpose and held that it would cover an undertaking object of which is to make a profit out of undertakings - But services of UTI in that case were availed by complainants for betterment of their employees such an investment was made, and it is to be made clear that no benefit by way of profit was to accrue to complainant, and intent of University in the said case was held not profiteering but was for benevolent interest - State Consumer Forum has held to contrary remedy of appellant lay before National Consumer Disputes Redressal Commission and appellant having chosen to avail remedy under the Act of 1986 not file writ petition questioning the correctness of order passed by District Consumer Forum and State Consumer Forum - Argument of learned counsel for appellants - District Consumer Forum - Even otherwise writ petition against the order of cancellation passed as far back as was challenged by appellant after lapse of nine years in year - Learned Single Judge therefore in taking that was perfectly justified in not entertaining the writ petitions – Appeals dismissed

JUDGMENT :

Mohammad Rafiq, J.

1. These appeals are directed against two separate judgments dated 18.08.2015 passed by learned Single Judge whereby the writ petitions filed by appellants have been dismissed.

2. Since both the appeals involve similar facts, they are being decided together but for the purpose of disposal, we take facts of Appeal No.843/2015 as the basis.

3. Appellants, in writ petitions, prayed for issue of mandamus directing respondents to allot them Plot No.F-84, 85, 86 and 87, Industrial Area, Bapi, Dausa, on the same terms and conditions applicable at the relevant time or to allot any other plot in lieu of the said plots in the same scheme. An alternative prayer was made that respondents be directed to allot area of 10000 square meters in any other nearby industrial zone on the same terms and conditions on which the allotment proposed to be made in favour of petitioners (appellants herein). Further prayer was made that order passed by the State Consumer Dispute Redressal Commission, Rajasthan, dated 10.02.2015 in the Appeal No.2210/2010 to the extent of its pronouncement on merits, even though matter was adjudged by it as non-consumer matter, be quashed and set aside and consequentially, the order of the District Consumer Dispute Redressal Commission, Jaipur, dated 21.10.2010 in Complaint No.769/2007, may also be quashed and set aside.

4. Facts of the case are that appellants applied for allotment of admeasuring 10,000 square meters at Industrial Area Bapi, Dausa, and for that purpose submitted an application to the respondents – Rajasthan State Industrial Development and Investment Corporation Limited (hereinafter shall be referred to as 'the RIICO') on 19.03.2005 along-with Demand Draft of Rs.2,34,000/-. The application was registered for consideration as per procedure of allotment and given priority No.38. The respondents then, vide communication dated 23.08.2005, required the appellant to deposit a sum of Rs.3,50,000/- as additional development fee at the rate of Rs.35/- per square meter for supply of water to the area to be allotted. The appellant failed to deposit the said amount. Subsequently, appellants, vide letter dated 31.08.2005, conveyed to respondent RIICO that if and when the water supply was started, the said amount would be deposited within thirty days and in case the water supply was to start late, the amount will be deposited along-with remaining 75% of the development fee. The appellant deposited the water development charges on 02.12.2005 and obtained receipt of deposit of Rs.87,500/-, which was 25% of the development charges.

5. According to the appellants, they requested the respondents on 09.12.2005 to issue necessary directions for deposit of remaining 75% of the amount of development charges by way of installments over a period of two years. The appellants then vide application dated 28.02.2006 requested the respondents to issue allotment letter and further to provide details of the installments of due amount. Respondents, however, vide communication dated 27.02.2006, refused allotment in favour of appellants and informed that the amount of Rs.3,21,500/- was to be refunded, and accordingly a Cheque of the said amount was sent by the respondents, but the appellant did not encash the same. Appellants preferred appeal against letter dated 27.02.2006 and 01.03.2006 stating that other applicants with the lower priority have been given allotment of the plots whereas the plots are still remaining and the Cheque aforesaid was also returned to respondent RIICO and was not accepted by the appellant. The appellate authority, however, did not decide the appeal, and Cheque dated 29.09.2006 for a sum of Rs.3,21,500/- was returned. Appellant then filed a complaint before the District Consumer Forum, Jaipur, on 29.05.2007 for allotment of said plots or any other plots with the same area, in favour of appellants. The District Consumer Forum vide order dated 21.10.2010, directed respondents to refund a sum


















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