No. 4/08.07.2011.

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Appellant is present through Ld. Advocate and files BNA.  This is a Complainant’s appeal against the judgement and order of the Forum below thereby dismissing the complaint on the ground that the same is not maintainable as the Complainant does not fall within the category of consumer as per the provision of the Consumer Protection Act, 1986.

The case in substance of the Complainant is that she is one of the co sharers of the land in question in which the O.P. Nos. 1 & 2 have been engaged to develop and promote the said land by construction of a building and by raising flats therein for the purpose of selling them to the purchasers as per the said development agreement entered into by and between the land owners and the aforesaid O.Ps, developer – promoters.  As per the said development agreement each of the co sharers of the said land would be entitled to a flat and/or developed area as per their respective shares in the land.  The Complainant’s case is that as per the said agreement she is entitled to a 400 sq.ft. of flat that would be constructed by the O.P. Nos. 1 & 2 upon construction of the building in the said land in question.  It has been alleged in the complaint that in spite of repeated demands the said O.Ps have failed to handover a flat measuring 400 sq.ft. to the Complainant.

It is evident from the aforesaid development agreement that the said O.Ps have been engaged for the purpose of developing the said land by raising construction of a building and for promoting sale of flats constructed therein.  Thus the position of the said O.Ps in relation to the Complainant becomes a service provider for the purpose of development of the land of the Complainant in a building and thereafter handing over the proportionate constructed area in the said building as agreed upon by and between them in lieu of the proportionate land in share of the Complainant.  This position has also been vindicated by the Supreme Court in the decision reported III (2008) CPJ 48 (SC) – Faqir Chand Gulati – vs. – Uppal Agencies Pvt. Ltd. & Anr.  It has clearly been held therein that services of the builders availed by the landowner for house construction for consideration (in the form of sale of undivided share in land and permission to construct) puts the landowner in a position of a consumer and the builder as service provider.  We are, therefore, of the view that the Forum below has committed an error by holding that the development agreement as entered into by and between the Complainant and the O.Ps did not come within the scope of the Consumer Protection Act, 1986.  The impugned judgement and order accordingly set aside.  The complaint case is sent back on remand for disposal in accordance with law on the merits of the case.