APPEARED AT THE TIME OF ARGUMENTS

PER DR. B.C. GUPTA, MEMBER

          This first appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) against the impugned order dated 03.10.2016, passed by the Punjab State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in consumer complaint No. 298/2016, vide which, the said complaint was ordered to be dismissed on the ground that the complainants did not fall under the definition of consumer, as contained in section 2(1)(d) of the Act.

2.       The facts of the case are that the appellants/complainants entered into an agreement dated 21.03.2012 with the respondents/opposite parties (OPs) for the purchase of 2½ acres of agricultural land at Village Mirzapur, Hadbast No. 326, District Mohali for a price of ₹27 lakh and paid the total sale proceeds to them.  It was agreed that the seller shall deliver the physical possession of the land within 42 months from the date of the agreement, otherwise, they shall pay a sum of ₹40 lakhs to the purchaser.  They shall also provide a pucca passage to the said land.  In pursuance of the agreement, the sale-deed dated 21.03.2012 is also stated to have been executed and registered.  It has been stated in the Consumer Complaint that the OPs were required to handover the possession of the agricultural land latest by 21.09.2015, but the same was never delivered by them.  The complaint was filed, seeking directions to the OPs to refund a sum of ₹40 lakhs, as per condition-6 of the agreement dated 21.03.2012, alongwith interest @18% p.a. with effect from the promised date of possession, i.e., 21.09.2015 and also to pay a sum of ₹5 lakh as compensation for mental harassment, ₹5 lakh as punitive charges and ₹1.5 lakh as cost of litigation. 

3.       The State Commission vide their order dated 03.10.2016, dismissed the said complaint and stated as follows in their order:-

“6. A perusal of the Agreement dated 21.3.2012 makes it very much clear that the complainants had agreed to purchase the land in dispute measuring 2.5 acres for Rs.27,00,000/- and that amount was duly received by opposite party No.2 on behalf of opposite party No.1. As per the terms and conditions of the Agreement, which have also been reproduced in the body of the complaint and in this order, the levelled land was to be made available by the opposite parties and they were to get the same mutated in the name of the complainants within 30 days. The actual possession of the land was to be delivered within 42 months and in case of failure of the opposite parties to deliver that possession, they were to pay Rs.40,00,000/- to the complainants. The opposite parties were also to provide a pucca passage to that land at their own cost for which no cut was to be made in the land so sold. The sale deed was also executed on the same day in which it was recited that the possession of the land has been delivered to the complainants. The sale deed does not contain any covenants etc. to be performed by the opposite parties. It cannot be made out from the commitments made in the Agreement that any service was to be provided in respect of the land so sold to the complainants by the opposite parties. They were not to develop the land and only a passage was to be provided and that cannot be held to be a service of the kind provided under the Act. By no stretch of imagination, it can be said that the complainants fall under the definition of ‘consumer’ as contained in Section 2(1)(d) of the Act. Therefore, this complaint is not maintainable. The only remedy of the complainants against the opposite parties is by way of civil suit before the Civil Court.”

4.       At the time of hearing before us, the learned counsel for the appellants stated that the view taken by the State Commission was not in accordance with law, as indicated from the orders made by this Commission in “Yash Pal Marwaha vs. Pushpa Builders Ltd. & Anr.” [II (2006) CPJ 259 (NC)], and the order passed by the commission in “Pranav Mittal vs. Dynamic Infradevelopers (P) Ltd. & Ors.” [First Appeal No. 115/2017 and allied matters decided on 27.02.2017]. The learned counsel argued that the OPs were supposed to provide a pucca passage to the complainants, which implied that the complainants had hired their services and hence, the complainants were covered under the definition of ‘consumer’ under the Consumer Protection Act, 1986.

5.       After the conclusion of the arguments, the learned counsel for the appellant submitted copies of the orders passed by the Commission in the cases mentioned in the preceding paragraph and also copy of the order passed by the Hon’ble Supreme Court of India in “Civil Appeal No. 945/2016, “Bunga Danial Babu versus M/s Sri Vasudeva Constructions & Ors.”, in support of his arguments.

6.       The main issue that requires consideration in the matter is whether the complainants come under the definition of ‘consumer’ as stated in the Consumer Protection Act, 1986.  The definition of ‘service’ as given in section 2(o) of the Act is as follows:-

"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”

7.       In the instant case, it is manifestly clear that the agreement entered between the parties related to purchase of agricultural land, for which payment was made by the complainants to the OP sellers, and a registered agreement as well as sale-deed were also executed.  The OPs were supposed to provide a pucca passage to the said land and to deliver the possession after 42 months of the agreement.  It is clear that the said activity does not fall under any item in the definition of ‘service’ as per section 2(o) of the Act.  The State Commission have clearly stated that it could not be made out from the commitments made in the agreement that any ‘service’ was to be provided in respect of the land sold to the complainants by the opposite parties.  Providing a passage to the said land cannot be held to be a service of the kind provided under the Act.  It is evident, therefore, that the complainants do not fall under the definition of consumer as per section 2(1)(d) of the Act.  The citation given by the learned counsel for the appellant in the case “Pranav Mittal vs. Dynamic Infradevelopers (P) Ltd. & Ors.” and allied matters (supra), is not applicable to the facts of the present case, as the main issue in those cases was the non-provision of amenities in the constructed building, due to which, the premises could not be occupied by the complainants.  In “Yash Pal Marwaha vs. Pushpa Builders Ltd. & Anr.” (supra), , the matter related to the delivery of possession of the flat and not of agricultural land. The order passed by the Hon’ble Supreme Court of Indian in “Bunga Danial Babu versus M/s Sri Vasudeva Constructions & Ors.” (supra), deals with agreement entered between the parties for the construction of a building and sharing of a certain number of flats.  It was held by the Hon’ble Court that a land owner who provided his land to a builder for the construction of a multi-storey building and as per the agreement was entitled to get a certain number of flats in the said building, falls under the definition of consumer.  It is evident therefore, that the case law cited by the learned counsel for the appellant deals with the activity of housing construction, and such activity falls within the definition of ‘service’ under section 2(O) of the Act.  However, the facts of the present case are entirely different because no such activity of housing construction is involved in the matter. It is evident, therefore, that despite affording an opportunity, the learned counsel has not been able to produce any case law, depending on which, it could be stated that the facts of the present case indicate that the complainant comes under the definition of ‘consumer’. 

8.       It is held, therefore, that the transaction between the parties, can be at best termed as “sale simplicitor,” and it is not a case where any service had been hired by the complainants, as defined under section 2(o) of the Act.  We, therefore, find no illegality, irregularity or jurisdictional error in the impugned order passed by the State Commission, which may justify any modification in the order passed by the State Commission.  There is no merit in this appeal, therefore, and the same is ordered to be dismissed in limini with no order as to costs.