DATE OF FILING                    :     18.11.2014.

DATE OF S/R                            :      20.04.2015.

DATE OF FINAL ORDER      :     04.11.2015.

Sri Jagat Ghosh,

son of late Jayanta Ghosh,

residing at village & P.O. Jhorhaat, P.S. Sankrail,

District Howrah. ……………………………………………………… COMPLAINANT.

• Versus   -

1.         Smt. Prabhati Das,

wife of late Mohit Das,

2.         Sri Montu Das,

3.         Sri Monotosh Das,

Both son of late Mohit Das,

4.         Manikuntala Das,

daughter of late Mohit Das,

all residing at village Andul Chowdhury Para, Kantapukurdhar,

P.O.  Andul Mouri, P.S. Sankrail, 

Howrah – 711101. …………………………………………OPPOSITE PARTIES.

P    R    E     S    E    N     T

Hon’ble President  :   Shri  B. D.  Nanda,  M.A. ( double ), L.L.M., WBHJS.

Hon’ble Member      :      Smt. Jhumki Saha.

Hon’ble Member : Shri A.K. Pathak .     

 F  I   N   A    L       O   R   D    E     R

1. This date was fixed for passing order on the non maintainability petition filed by the o.ps. In the instant case  the petitioner, Jagat  Ghosh,  filed this case praying for a direction upon the o.ps. namely Parbati  Ghosh & three others to  execute and register the deed of conveyance in favour of the petitioner in respect of the suit property being part and parcel of a bastu land measuring 2 cottah  comprised in L.R.  Dag no. 39 and LR Khatian no. 1040 in Mouza Andul under Sankrail P.S. The petitioner entered into a sale agreement with the o.ps. for purchase of the suit property at a total consideration of Rs. 1,80,000/- and out of the same he paid a sum of Rs. 1 lakh to the predecessor of the present o.ps. namely, Mohit  Ghosh who died prior to executing the sale deed. The petitioner was ready and willing to get the deed of sale in his favour by paying the balance money but the o.ps. neglected to do the same and so he filed the case.

2. During trial the o.ps. filed this petition for non maintainability stating that in the instant case it was a sale of bastu land and there is no talk of any construction and being a sale simpliciter the petitioner has wrongly chosen this Forum and he  ought to have filed the suit in the civil court and the petitioner already filed T.S. No. 199 of 2009 before the  Civil Court at Howrah and so this case should be dismissed as it is a case of sale simpliciter having no smell of construction or development of property.

3. This  Forum heard the ld. counsels for both sides on the non maintainability petition and also considered the provisions of the law in connection with the contents of the non maintainability petition.

4. On scrutiny of the case record specially the documents being agreement for sale it is noticed from the schedule of the property that there was an agreement for purchase of two cottah of land for which the petitioner paid a consideration money of Rs. 1 lakh out of the total consideration of Rs. 1,80,000/-. Here is no case that the o.p. is a builder or a promoter and selling plots after developing the same. It is simply sale of a plot of land by some persons to this petitioner on payment of a consideration money and thus the very nature of the transaction shows that it was a sale simpliciter and so this cannot be covered under the Consumer Protection Act, 1986.

5. Our National Commission in a recent judgment 2015 (2) CPR page 195 opined that sale of a plot simpliciter  is different from plot sold by builders or promoters after developing the same. National Commission in para 8 of the said judgment opined that there was no evidence that the petitioner in their case were working as builders. They are seller simpliciters. It must be born in mind that the sale of a plot simpliciter is different from the plot sold by the building a promoter. Our Apex Court also in the case of Ganeshlal, son of Motilal Sahu vs. Shyam in Civil Appeal No. 331 of 2007 held “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 18^th June, 1993. That being the position, as far as the housing constructed 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, the same would not be covered under the said Act.”        

6.        In view of above decision of the Apex Court as well as our National Commission and the  facts of the present case being a sale simpliciter of a plot of land not by any promoter or developer also cannot come within the purview of this Forum and the petitioner is to approach the appropriate Forum for redressal of his grievances and regarding the point of limitation is concerned the petitioner can seek the help from the Apex Court Judgment in Laxmi  Engineering Works vs. PSG Industrial Institute 1995 (3) Supreme Court Cases page 583.

7.        In view of above discussion and findings this Forum finds that this case does not come under the purview of  C. P. Act, 1986 and thus the non maintainability petition filed by the o.ps. here is allowed.

            Court fee paid is correct.

      Hence,

                       O     R     D      E      R      E        D

      That the C. C. Case No. 593  of 2014 ( HDF 593 of 2014 )  be  and the same is not maintainable before this Forum and hence dismissed on contest.

             Supply the copies of the order to the parties, free of costs.

     DICTATED  &    CORRECTED

BY   ME.  

  (    B. D.  Nanda   )                                              

  President,  C.D.R.F., Howrah.