Samaresh Prasad Chowdhury, Presiding Member
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Party to impeach the judgment/ final order dated 11.06.2018 passed by the District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur (in short, Ld. District Forum) in Consumer Complaint no. 122/2016. By the impugned order, the Ld. District Forum allowed the complaint lodged by the respondent under Section 12 of the Act. The operative part of the order runs as follows:
“That the complaint case be and the same is decreed on contest against the OP with a cost of Rs. 10,000/- to be paid to the complainant by the OP.
The OP is directed to register the deed of conveyance in favour of the complainant with respect to the land described in schedule to the complaint, deliver possession of the land to the complainant and also to pay a sum of Rs. 50,000/- as compensation for harassment and mental agony suffered by the complainant, within a month of this order, failing which the compensation amount will bear interest @ 10% p.a. till full realisation and the complainant is also at liberty to get the sale deed registered and recover the possession of the land through the machinery of the Forum....”
The respondent herein being complainant lodged the complaint under Section 12 of the Act before the Ld. District Forum stating that on 12.12.2006 he entered into an agreement with the Opposite Party to purchase of a piece of land measuring about 02 cottahs 08 chittaks in R.S. dag No. 7187/7230 appertained to different khatians under J.L. No. 97 within Mouza-Ramnagar, P.S.- Baruipur, Dist- South 24 Parganas at a total consideration of Rs. 75,000/-. The complainant has stated that he has paid the entire amount to the Opposite Party as per terms of the agreement in accordance with the agreement, as stipulated to be paid by 36 monthly instalments. Despite payment of the entire consideration amount, the Opposite Party has failed to deliver possession and to execute the sale deed in respect of the said residential plot within the stipulated period i.e. 11.12.2009 i.e. within 3 years from the date of execution of agreement for sale. In this regard, all the requests and persuasions including notice went in vain. Hence, the respondent approached the Ld. District Forum with prayer for following reliefs, viz.- (a) to direct the Opposite Party to transfer and handover the plot in question with all basic amenities; (b) to direct the Opposite Party to pay Rs. 2,00,000/- as compensation for harassment and mental agony; (c) costs of the proceedings of Rs. 50,000/- etc.
The appellant being Opposite Party by filing a written version averred that the complaint is not amenable before a Consumer Forum and the Ld. District Forum had no jurisdiction to entertain the complaint as the dispute is purely civil in nature.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the Opposite Party to the extent, as indicated above. To assail the said order, the Opposite Party has come up in this commission with the instant appeal.
Mr. Prasanta Banerjee, Ld. Advocate for the appellant has submitted that the Ld. District Forum has passed the order without considering the actual proposition of law that an agreement for transfer of land does not come under the purview of the Act. In support of his submission, he has placed reliance to a decision of the Hon’ble Supreme Court reported in Civil Appeal No. 331 of 2007 (Ganesh Lal –vs- Shyam) and submitted that the dispute being civil in nature, the respondent /complainant should have approached a competent civil court.
Per contra, Mr. Madan Mohan Das, Ld. Advocate for the respondent referring a decision of the Hon’ble Supreme Court reported in 2017 (1) CPR 44 (Haryana State Agricultural Marketing Board –vs- Bishamber Dayal Goyel and Ors.) has contended that keeping in view the principles of law laid down by the apex court in the said case, this complaint is amenable before a forum constituted under the Act inasmuch as there was promise to develop the infrastructure at the time of selling the plot in question.
We have given due consideration to the submission made by the Ld. Advocate appearing for the parties and scrutinised the materials on record.
Undisputedly, on 12.12.2006 the respondent had entered into an agreement for sale with the appellant to purchase of a piece of land measuring about 02 cottahs 08 chittaks in R.S. dag No. 7187/7230 appertained to different khatians under J.L. No. 97 within Mouza-Ramnagar, P.S.- Baruipur, Dist- South 24 Parganas at a total consideration of Rs. 75,000/- @ Rs. 30,000/- only per cottah. It remains undisputed that the respondent has already paid the entire consideration amount of Rs. 75,000/- which was payable by the respondent by way of 36 instalments. In the agreement it was stipulated that the appellant company will handover the plot in question to the respondent within 36 months from the date of execution of agreement for sale. Therefore, when the agreement for sale was executed on 12.12.2006, in terms of the said agreement, the appellant company should have executed the sale deed and delivered possession of the plot within 11.12.2009. The failure on the part of appellant company to fulfil their part of promise constrained the respondent to approach the Ld. District Forum.
Now, the question arises for consideration as to whether the alleged agreement for sale of plot of land will come under the purview of the Act. In this regard, the decision referred by the Ld. Advocate for the respondent does not help the respondent/complainant to overcome the hurdle of embargo imposed under law. In the said decision, it has been observed that the statutory Boards and Development Authorities which are allotting sites with the promise of development are amenable to the jurisdiction of a consumer forum in case of deficiency of services. On the contrary, in the case of Ganesh Lal (Supra) while discussing over the issue, in paragraph 6 of the said decision the Hon’ble Supreme Court has observed thus:
“6. It is submitted that failure to hand over possession of the plot of land simpliciter cannot come within the jurisdiction of the District Consumer Forum, State Commission or National Commission. We quite see merit in this submission of Mr. Lambat, particularly having seen the definition of ‘deficiency’ as quoted above. We may, however, note that when it comes to ‘housing construction’ , the same has been specifically covered under the definition of ‘service’ by an amendment inserted by Act 50 of 1993 with effect from 18th June, 1993. That being the position, as far as the housing construction by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of land simplicoter is concerned, an if there is any complaint, the same would not be covered under the said Act.”
The Hon’ble National Commission in a case of similar nature reported in 2018 (2) CPJ 171 (Dipak Das and Another –vs- Bengal Shristi Infrastructure Development Limited and Another) has observed that in a case of sale of plot of land by the OPs to the complainant for consideration without having any agreement for further development on payment, it does not come within the ambit of deficiency of service and the case being a sale simpliciter, it is not covered under the Act.
The facts of the referred case were that the Opposite Party being an infrastructure development concern intended to develop the integrated township under the name and style ‘Shristi Nagar’ at Asansol, started to develop plots, plots with bungalows etc to the intending purchasers. The complainant No. 1by an application applied for a plot measuring about 2.05 cottahs more or less at Shristi Nagar. However, on the allegation of deficiency of services the complainant lodged the complaint being DF case No. 200/2012 with following prayers:
The possession of plot No. 49 at Ahiri (standard), Shristinagar, Asansol or if the plot No. 49 is not available then any other plot of land measuring 2.5 kathas at Shristinagar at Asansol after receiving payment of Rs. 1,70,130/-
* Rs.50,000/- as compensation towards mental pain, agony and harassment;
* Rs. 60,000/- towards litigation cost and/or
* To pass such other or further order or orders as your honour may deem fit and proper
The said complaint was allowed by the Ld. District Forum, Burdwan vide its order dated 09.04.2014. Aggrieved by the said order of the Ld. District Forum, the infrastructure development concern preferred an appeal in this commission being FA/738/2014. This commission by final order/judgment dated 13th October, 2017 allowed the appeal and set aside the order passed by the ld. District Forum citing the reference in the case of Ganesh Lal (supra). The Hon’ble National Commission in RP No. 57/2018 arising out of the said appeal did not find any jurisdictional or legal error in the order of this commission passed in appeal and consequently dismissed the revision petition. In the instant case, it is evident that the respondent in his petition of complaint has prayed for execution of sale deed over the plot mentioned in the schedule to the agreement for sale which clearly indicates that it is a case of sale simpliciter of a plot of land which is not amenable before a forum constituted under the Act.
The decision in the case of Haryana State Agricultural Marketing Board (supra) is altogether different with the facts and circumstances of the present case because in the said case it has been held that statutory boards and Development Authorities which are allotting sites with promise of development, are amenable to jurisdiction of Consumer Forum in case of deficiency of service. The question arises in this case was not at all subject matter for consideration in the referred case. Therefore, the decision referred on behalf of respondent has no manner of application in the facts and circumstances of the present case.After giving due consideration to the submission made by the Ld. Advocates appearing for the parties, we are of the opinion that the Ld. District Forum has passed the impugned order without considering the proposition of law that a mere purchase of a plot/developed plot by itself does not authorise a person to get protection under the Act unless it is shown that apart from purchase of plot, the purchaser has also hi
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red the services on consideration for raising construction to attract the definition of ‘service’ as defined in Section 2 (1)(o) of the Act. So, purchase of a plot of land after development of basic structure like road, electricity etc does not by itself entitle a person to approach a consumer forum. Therefore, keeping in view the authorities referred above, we are constrained to interfere with the order impugned. For the reasons aforesaid, the appeal is allowed on contest. However, there will be no order as to costs. The impugned judgment/final order is hereby set aside. Consequently, the complaint is rejected being not maintainable before a forum constituted under the Act. However, this order will not prevent the respondent/complainant to approach an appropriate forum/court in accordance with law and in order to overcome the hurdle of limitation, he may seek assistance of the decision reported in (1995) 3 SCC 583 (Laxmi Engineering Works –vs- P.S.G. Industrial Institute). The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Baruipur for information.