Haryana

StateCommission

A/1166/2017

JAGDISH RAJ AND OTHERS - Complainant(s)

Versus

HARYANA STATE AGRICULTURE MARKETING BOARD - Opp.Party(s)

NITIN JAIN

28 May 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                               

 

First Appeal No  :            1166 of 2017

Date of Institution:           03.10.2017

Date of Decision :            28.05.2018

 

 

1.      Jagdish Rai

2.      Darshan Kumar, both sons of Shri Khilu Ram

3.      Tej Mehender Singh son of Shri Nand Lal

4.      Smt. Meeta wife of Shri Tej Mahender Singh

          Residents of Barwala, District Hisar.

                                      Appellants-Complainants

Versus

 

1.      Haryana State Agricultural Marketing Board through its Chief Administrator, Haryana, Sector 6, Panchkula

 

2.      Marketing Committee Barwala, through its Secretary, Anaj Mandi, Barwala, District Hisar.

                                      Respondents-Opposite Parties

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri Balbir Singh, Judicial Member.

                                                         

                                               

Argued By:          Shri Nitin Jain, Advocate for appellants.

Shri B.S. Negi, Advocate for respondents.

 

                                                             O R D E R

 

NAWAB SINGH J. (ORAL)

 

This complainants’ appeal is directed against the order dated August 25^th, 2017 passed by District Consumer Disputes Redressal Forum, Hisar (for short District Forum) whereby complaint under Section 12 of the Consumer Protection Act, 1986 (for short ‘the Act’) was dismissed holding that complainants were not ‘consumers’ and as such, the Forum had no jurisdiction to entertain the complaint.

2.      The complainants purchased Plot No.50 in Cotton Market, Barwala in an open auction on June 25^th, 2008 conducted by Haryana State Agricultural Marketing Board-opposite party (for short ‘Board’), Panchkula. The Board did not develop the area by constructing road, laying sewerage and water lines.  The Board also did not offer the possession of the plot to the complainants.  The Board sent a letter dated July 26^th, 2013 thereby demanding Rs.8,03,750/- plus interest and penal interest on account of non construction fee.  Hence, the complaint.   

3.      The District Forum dismissed the complaint as stated above on the ground that the complainants were not ‘consumers’ because the shop was purchased in an open auction for commercial purpose. 

4.      After perusing the complaint and the impugned order question arises as to whether complainants fall under the definition of ‘consumer’ or not as defined in the Act?

5.      Section 2 (i) (d) of the Act defines ‘consumer’. 

          (d) "consumer" means any person who— (i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

          (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 purposes;

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

 

6.      A bare perusal of the provisions of Section 2(i)(d) reveals that for the purposes of this Act a “Consumer” means : (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration (iii) but does not include a person who buys such goods for resale or for any commercial purpose. 

7.      The expression “commercial purpose” is not defined in the Act as such.  In common parlance, the term ‘commercial’ indicates that when the goods are bought by a person not for his direct consumption but used for profit making, it may be said that goods are used for commercial purpose.  However, the Explanation added later to Section 2(d)(i) by Ordinance/Amendment Act, 2003, excludes one category of profit making exercise from the purview of ‘commercial purpose’, namely, when the goods bought by a person are used “exclusively for the purposes of earning his livelihood by means of self-employment.

8.      The ambit of this exception is circumscribed by three conditions: one, the goods bought by a person are used for “earning his livelihood”, two, the usage of the goods bought is “by means of self-employment”, and three, such an activity must be undertaken “exclusively” for earning livelihood by means of self-employment.

9.      Whether a person would fall within the definition of ‘consumer’ or not would be a question of fact in every case.  The complainant could very well run the shop himself. ‘Livelihood’ means securing necessities of life and ‘self employed’ means a situation in which an individual works for himself or herself instead of working for an employer that pays a salary or a wage.  A self employed individual earns his or her income through conducting profitable operations which they operate directly. 

10.    In Sanjay Kumar Joshi versus Municipal Board, Laxmangarh and another, 2014(6), Recent Apex Judgment, 108, complainant purchased a plot in an open auction held by Municipal Board.  He lateron found that a civil suit with respect to the plot purchased by him was pending before the civil court, so, he requested the Municipal Board that the amount paid by him may be refunded.  The amount was not refunded. He filed the complaint before the District Consumer Forum. The District Consumer Forum accepted the complaint and rejected the plea taken by the Municipal Board that the complaint was not maintainable in law as the plot in question was sold in public auction for commercial purpose, therefore, the complainant was not a ‘consumer’ as defined in Section 2 (i)(d) of the Act.  Against the order of District Consumer Forum, Municipal Board filed appeal before the State Commission.  The State Commission confirmed the order of the District Consumer Forum.

11.    Against the orders of the District Consumer Forum and the State Commission, Municipal Board filed revision petition before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi. The National Commission held that the complainant had purchased the commercial plot and the complaint filed by him would not be sustainable for the person who buys any goods or avails of any service for a commercial purpose is excluded from the definition of the ‘consumer’ as defined in Section 2(i)(d) of the Act.

12.    Against the order of the Hon’ble National Commission, complainant filed civil appeal before Hon’ble Supreme Court and the Supreme Court set aside the order of the National Commission and confirmed the orders of the District Consumer Forum and the State Commission holding that a person who purchased the plot for earning livelihood is a ‘consumer’ within the definition of Section 2(i)(d) of the Act.  In this judgment reference was also made to Madan Kumar Singh versus District Magistrate & Others, 2009(4), RCR (Civil), 137 wherein it was held by the Hon’ble Supreme Court that commercial transaction done for earning livelihood does not exclude in the definition of “consumer”.  Reference was also made to National Seeds Corporation Limited versus M. Madhusudan Reddy, 2012(1), Recent Apex Judgments, 150 in which Hon’ble Supreme Court held that if any person, who is earning his livelihood by self employment and has entered into a commercial transaction, is a consumer under the definition of ‘consumer’ in the Act.   

13.    In view of what has been stated above, it is held that merely by purchasing a plot in an open auction by the complainants would not ipso facto put them out of the purview of ‘consumer’ as defined in Section 2(i)(d) of the Act.       

14.    For the reasons recorded supra, the appeal is accepted, the impugned order is set aside and the case is remitted to the District Forum to decide it afresh in accordance with law.

15.    The observations made in this order are confined to the disposal of the present appeal, and shall not be construed as expression of opinion on merits nor shall have any bearing at the time of final disposal of the matter by the District Forum.

 

 

Announced: 28.05.2018

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

UK