DATE OF FILING : 18.11.2014.
DATE OF S/R : 20.04.2015.
DATE OF ORDER : 31.12.2015.
1. Kazi Aniruddha,
son of Kazi Wazed Ali,
residing at 22/C, Judges Court Road,
Kolkata 27 ( near Alipore )
District 24 Parganas.
2. Samit Roy,
Son of Dilip Roy,
Residing at 4, Gopal Mukherjee Lane,
P.S. & District Howrah...................................................... COMPLAINANTS.
-Versus -
Sri Nishit Kumar Dutta,
son of late Atul Chandra Dutta,
residing at 1/1/2, Naskar Para Lane, P.S. Shibpur,
P.O. & District Howrah,
PIN 711 101. ….….….….….….….….….….….…...OPPOSITE PARTY.
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 .
Order No. 5 Date : 31.12.2015.
Both parties are present.
O.p. already filed written version. and this date was fixed for further order in this case. O.p. filed one non maintainability petition today stating that the petitioner purchased one bastu land and thus the purchase was a sale simpliciter for which this Forum has no jurisdiction to entertain such a dispute and the case be dismissed as the case does not fall under the definition of Section 2(f) C.P. Act and also the petitioner is not a consumer U/S 2(d) of the Act. The petitioner’s lawyer submitted that there was structure on the land so it is well within the jurisdiction of this Consumer Forum.
This Forum kept in mind the submissions of both sides and finds that the petitioners purchased property consisting of bastu land measuring 1 cottach 1 chatack situated in the Howrah Municipal Corporation area in holding no. 1/1/1/2, Naskar Para Lane, Howrah, and the schedule of the property showing that it was a bastu land and thus it was a sale simpliciter. The petitioner in this case prayed for directing the o.ps. to execute and register the deed of conveyance in their favour and also compensation and litigation costs.
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 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.
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. 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 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 18th 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.
In view of above decision of the Apex Court as well as our National Commission and the facts of the present case being a simpliciter sale 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.
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. 241 of 2015 ( HDF 241 of 2015 ) 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.
