Date of Filing             : 08  October, 2021

Date of Judgement  :   28 October, 2022

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This Case arises when Sri Shib Kumar Thakur filed a complaint before this Commission U/S 35 of the Consumer Protection Act, 2019, herein after called the Act, against the Opposite Party company namely M/s. Golden Point Landcon Pvt. Ltd. represented by its Directors : 1) Sri Dipankar Naskar and 2) Sabir Pailan, (herein after called the Opposite Parties or O Ps) alleging deficiency in service on their part. 

            Succinctly put, the complaint, filed through his Ld. Advocate, is that the Complainant, allured by the commitments stated by the O P company and their men,  purchased a Sali Land from the O. P. company measuring more or less 2 cottah 8 Chittak comprised in Mouza Kalagachia, C. S. & R. S. Kri - 402, within Bata Khatian No. 67/385, Khatian No. 86, being Scheme Plot No. 123 within the limits of Ashuti – II Gram Panchayat, P. S. – Maheshtala, Dist. South 24 Paraganas, along with easement right over 20 Ft. road of the South and West side of the said plot and a Deed of Conveyance written in Bengali was executed and registered on 07.02.2011.  The value of consideration of the plot was Rs. 2,00,000/- and the complainant paid the entire amount during execution of the Deed. The complainant alleged that the officials of the O P company assured him of development of the subject plot by making out pathways, internal roads, electricity, drainage, etc. along with other facilities. Complainant alleged that the O. P. company failed to hand over the said plot to him despite repeated request were made.  Even the O Ps. had terminated every communications with the complainant. Lastly, finding no other way to get the desired plot of land under his possession, complainant sent a letter through his Ld. Advocate to the O. P. company on 14.01.2020 to hand over the subject plot but failed.  He sent another letter to the 2^nd Director stated herein above on the same matter on 24.02.2020 and this time also no outcome yielded.  Ultimately he submitted the instant complaint before this Commission with the prayers to direct the O. Ps. to hand over the said plot, a compensation of Rs. 2,20,000/-, litigation cost and other relief(s) as this Commission thinks fit.

            The Complainants submitted copies of the Deed of Conveyance and the two letters sent by him to the O. Ps. as annexure to his complaint.

            After receiving the complaint Notices were served satisfactorily to the O. Ps.  But they did not turn up to contest this complaint, despite repeated opportunities were given to them.  Ultimately the case was proceeded exparte against the O Ps.  Thereafter the complainant filed Notarised Statement in place of Affidavit-In-Chief without any annexure attached therein.  A brief notes of arguments is filed by the complainant.                                                                                                                        

            Gone through the statement of the complaint, submitted annexure, etc. and the only points required determination are :

1. Whether the complainant is a Consumer? and
2. Whether the complaint is maintainable under the Act and whether the complainant is entitled to get reliefs as prayed for?

Let us take these questions together for discussion to avoid repetition and for brevity.

Decision with reasons

            A complainant is to the considered as ‘Consumer’ if he/she fulfil any of the two criteria stated under Section 2(7) of the Act, i.e. either 2(7)(i) or 2(7)(ii). The material records submitted before this Commission put forward the undisputed fact that the Complainant purchased a ‘Sali land’ measuring more or less 2 cottah 8 Chittak, details of which is stated herein above and executed and registered a Deed of Conveyance, signed by the purchaser/complainant and Sri Dipankar Naskar as the Managing Director of the O. P. company, on 07.02.2011. This Deed of Conveyance is written in Bengali, written as “SAAF BIKROY KOBALA NAMA” at the heading. It is to be noted that “SAAF KOBALA” means Deed of conveyance; deed of sale. The first Paragraph in Page 5 of this Deed states that due to some urgent need of cash, the O P company decided to sell out the plot of Sali land measuring more or less 2 Cottah 8 Chittak lie and situated at Village Kalagachia in Khatian No. Hal Kri-402, Bata Dag No. 67/385, Scheme Plot No. 123 of the project and the purchaser wished to purchase the plot for a total consideration of Rs. 2,00,000/- (Rupees Two lakh) and the O P company agreed and took the total consideration of Rs. 2,00,000/- on 07.02.2011 and gave possession of the scheduled plot on the same date.

          This paragraph itself clearly states that the complainant purchased a ‘Sali land’, marked as Scheme Plot No. 123 of the project, from the O. P. company which was handed over to him on the date of registration of the Deed i. e., on 07.02.2011 though physical possession was not given as alleged by the complainant.  We now keenly take the fact placed before us to decide whether the purchase of a plot of land, developed or not, would come under the purview of the Consumer Protection Act, 2019 or not.  The Deed in question states the sale of a plot of land only.  The complaint did not put forward any agreement for further development of the subject plot. In the judgement in First Appeal No. A/198/2019 (arising out of CC/58/2019 of South 24 Paraganas) the Hon’ble State Consumer Disputes Redressal Commission (State Commission), West Bengal, opined that:-

     “……. I am of the view 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 hired the services on consideration for raising construction of house/flat to attract the definition “Service” as per Section 2(1)(o) of the Act [Section 2(42) of the C. P. Act, 2019].  Therefore mere purchase of a plot of land after development of basic structure like road, electricity, etc. does not entitle a person by itself to approach a Consumer Forum.”

            In 2018 CPJ 171 (Dipak Das & Anr.  -Vs- Bengal Shristi Infrastructure Development Pvt. Ltd. & Anr. In Revision Pitition No. 57 of 2018 against Order of A/738/2014 of SCDRC, WB) the Hon’ble National Commission has observed that :

            “in a case of sale of a plot of land by the O. Ps. to the complainant for consideration without having any agreement for further development on payment does not come within the ambit of deficiency of service and case being a simpliciter, it is not covered in the Act.”

            The Hon’ble Supreme Court in the judgement in Civil Appeal No. 331 of 2007 (Ganeshlal - Vs, - Shyam), decided on 26.09.2013, was pleased to hold :-

            “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 simpliciter is concerned, and if there is any complaint, the same would not be covered under the said Act.”

            Now, we return to the instant complaint.  The annexed documents does not support the statement of the complaint that the O. Ps. failed to provide ‘service’ in the form of housing construction or any kind of development of the plot of land he purchased.  The complainant failed to file any agreement for further development, on consideration, of the subject plot.  So in our view this is a mere sale of plot of land simpliciter and the complaint arising out of such sale would not come under the Act as there is no involvement of the O Ps. to render further ‘service’ in respect of the plot.  A mere failure to hand over the subject plot by the O P company thus does not entitle the complainant to take shelter under the Act.

Hence, it is

                  ORDERED

That the Complaint Case No. CC/517/2021 is dismissed being not maintainable without cost.

The Complainant has the liberty to file his complaint in the appropriate Court of Law for getting relief.