By this order, we propose to dispose above noted revision petitions arising out a common order of the State Consumer Disputes Redressal Commission U.P., involving common question of law and fact.

2.         Briefly stated, the facts relevant for the disposal of these revision petitions are that respondents in the above noted revision petitions preferred separate consumer complaints under section 12 of the Consumer Protection Act, 1986, ( in short, ‘the Act’) claiming that pursuant to Tatkal allotment scheme sponsored by the petitioner Authority, respective complainants applied for allotment of chambers in Kaushambi chambers and deposited the registration amount.  As per the terms of the allotment, the balance was to be paid in instalments.  After the payment of 70% of the consideration amount, the possession of the  chambers were delivered to the respective complainants.  The conveyance deeds were to be executed after the payment of the whole consideration amount.  It is the case of the complainants that despite the payment of the agreed consideration amount, the petitioner Authority  has failed to execute conveyance deeds of the chambers in their favour.  It is further alleged that for executing the conveyance deeds, the petitioner authority has asked for escalated final price which is not justified.  Claiming this to be deficiency in service, respective complainants filed consumer complaints seeking an order that petitioner Authority is not entitled to receive any additional amount except as shown in the allotment letters and that the petitioner Authority be directed to execute conveyance deeds in favour of respective complainants on receipt of lease rent.  The complainants also prayed for compensation for mental agony and litigation.

3.         The respondents contested the complaints by filing written statement.  It was claimed by the respondents that initially at the time of issue of allotment letter, only a tentative price was quoted and final price was to be fixed subsequently.  According to the opposite party, the amount now demanded from the respective complainants is the difference between the tentative price and the price fixed by the authority, which amount, the respondents have failed to pay.  As per the terms and conditions of the allotment, the petitioner is justified in insisting on payment of the difference between the final and tentative before executing the conveyance deeds in favour of respective complainants. 

4.         The District Forum concerned on consideration of the pleadings and the evidence of the parties found that there is no justification for escalation of price of the chambers which were allotted to the respondents after completion of construction.   Thus, the District Forum concluded that there was deficiency in service on the part of the petitioner Authority and allowed the complaint.

5.         Being aggrieved by the order of the  District Forum, the petitioner Authority filed appeal against the respective orders.  The State Commission on consideration of record as also submissions of the parties, did not find any infirmity in the order of the District Forum.  Accordingly, the appeals were dismissed and respective orders of District Forum were affirmed.   

6.         This has led to filing of above noted revision petitions.

7.         Shri Abhishek Yadav, Advocate, learned counsel for the petitioner authority has contended that impugned orders of the foras below are without jurisdiction for the reason that admittedly it is a case of allotment of commercial chambers.  Therefore, the respondents complainants do not fall within the definition of ‘consumer’.  Thus he has urged us to allow the revision and set aside the orders of the fora below.  In support of his contention, learned counsel for the petitioner has relied upon the judgment of the Supreme Court in  Civil  Appeal No.5476 of 2013 arising out of S.L.P. ( C ) No.11381 of 2012 titled as Dr. Jagmittar Sain Bhagat Vs. Director Health Services, Haryana & Ors .

8.         Learned counsel for the respondents on the contrary has argued in support of the impugned order.  She has contended that respondents intended to use those chambers for self-employment with a view to earn their livelihood.  Therefore, they are covered by the definition of ‘consumer’ as provided under section 2 (1) (d) of the Act.  In support of this contention, learned counsel for the respondents have drawn our attention to the above noted provision and submitted that case of the respondents fall within the exception carved out by the exception to section 2 (1) (d) of the Act.

9.         The question for consideration is whether or not the respondents fall within the definition of ‘consumer’.  The term ‘consumer’ is defined under section 2 (1) (d) of the Act.  Section 2 ( 1) (d) (i) defines the term ‘consumer’ in respect of the person who buys any good for consideration, past, present or future.  Section 2 (1) (d) (ii) deals with the definition of ‘consumer’ in respect of a person hiring or availing any service.  Section 2 (1) (d) (ii) being relevant for finding answer to this question is reproduced thus:

Consumer means a person who-

 (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.

 Explanation-       For the purpose of this clause, “commercial purpose” does not include use by a person of goods brought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment”.

10.       On reading of the above, it is clear that a person who hires or avails services for commercial purpose is not covered within the definition of ‘consumer’ unless such services have been availed exclusively for the purpose of earning livelihood by means of self-employment.   Admittedly this is a case of allotment of commercial chambers to the respective complainants in Kaushambi chamber scheme floated by the respondent authority.  Therefore, it is clear that complainants availed of the services of the respondent authority for commercial purpose.  As such they are not included in the definition of ‘consumer’ reproduced above.  Learned counsel for the respondents have tried to bring the respondents within the above noted exception as provided in explanation to section 2 (1) (d) of the Act.   The aforesaid contention of the learned counsel for the respondent is misconceived and against the pleadings.  In order to take benefit of the exception carved out in the explanation to section 2 (1) (d) of the Act, the complainants were required to plead the facts, bringing them within the exception and prove the same.  On perusal of the complaints, we find that there is no such plea taken by  any of the respondents. Therefore, the respondents cannot avail of the benefit of the explanation to section 2 (1) (d) of the Act.   Therefore, in our view, the respondents complainants do not fall within the purview of definition of ‘consumer’ as provided under section 2 (1) (d) of the Act.  

11.       In view of the above, it is established that the respondents are not consumers as defined under section 2 (1) (d) of the Act, as such, they could not have maintained the consumer complaints before the consumer fora.  This implies that both the fora below have exercised jurisdiction not vested in them by taking cognizance of the consumer complaints filed by the respondents who do not qualify to be ‘consumer’ under the definition as provided in the Act.  

12.       The impugned orders, therefore, cannot be sustained.  Revision petitions are accordingly allowed, impugned orders of fora below are set aside and respective complaints filed by the respondents are dismissed.  No order as to costs.