FA.No.1136/2008 against C.C.No.2/2007 District Forum-I, VISAKHAPATNAM .

Between:

1. Sri B.Nageswara Rao, S/o.late B.Sanyasi Rao,

    aged 61 years, Hindu, Resident of D.No.49-44-35/A,

    NGO’s colony, Akkayapalem, Visakhapatnam-16.

2. Sri B.Rama Raju, S/o.late B.Sanyasi Rao,

    aged 59 years, Hindu, R/o.65-1-46,

    Jaganadha Raju layout, Isakathota, Visakhapatnam.

3. Sri B.Sanyasi Rao, S/o.late B.Sanyasi Rao, Hindu,

    aged 54 years, R/o.D.No.49-55-1, Vidyutnagar,

    Visakhapatnam-24.

4. Sri B.T.Naidu, S/o.late B.Sanyasi Rao, Hindu,

    aged 45 years, R/o.49-55-1, Vidyutnagar,

    Visakhapatnam-24.

5. Sri P.Indira Devi, W/o.late Govinda Raju,

    aged about 52 years, R/o.58-15-30,

   Santhinagar, NAD Kotha Road, Visakhapatnam-9.

6. Sri P.Venkata Lakshmi, W/o.Uma Maheswara Rao,

    Hindu, aged about 50 years, R/o.D.No.58-15-30,

    Santhinagar, NAD Kotha Road, Visakhapatnam-9.

7.  Sri Malla Naga Malleswari, W/o.M.Devendra Adi

    Babu, Hindu, aged 30 years, R/o.D.No.38-40-72,

    Marripalem, Bowdara Road, Visakhapatnam-18.

8. B.Jaya Madhuri, D/o.B.Nageswara Rao, Hindu,

    aged about 25 years, R/o.D.No.49-44-35/A,

    NGO’s colony, Akkayapalem, Visakhapatnam-16.

9. B.Malini Devi, W/o. B.T.Naidu, Hindu, aged

    34 years, R/o.49-55-1, Vidyutnagar,

    Visakhapatnam-24.

10. Pilla Adi Lakshmi, W/o.Kondal Rao, Hindu,

     aged 32 years, residing at D.No.58-15-30,

     Santhinagar, NAD Kotha Road,

     Visakhapatnam-9.

11.Pilla Kavi Raju, S/o.late Govind Raju, Hindu,

     aged 30 years, resididng at D.No.58-15-30,

     Santhinagar, NAD Kotha Road,

     Visakhapatnam-9.

12. Pilla Krishnam Raju, S/o.late Govind Raju,

     Hindu, aged 28 years, residing at D.No.58-15-30,

      Santhinagar, NAD Kotha Road,

     Visakhapatnam-9.                                                                       Appellants/

Complainants.

And

1. Sri Maddala Anjaneyya Rajeswara Rao, S/o.late

    Appala Naidu, aged 55 years, Hindu,

    R/o.D.No.44-38-12, Srinivasanagar,

    Akkayapalem, Visakhapatnam-16.

2. Sri Maddala Naga Venkata Prasad, S/o.Anjaneya

    Prasad, aged about 30 years, Hindu,

    R/o.D.No.44-38-12, Srinivasanagar,

    Akkayapalem, Visakhapatnam-16.

3. Smt.Mollati Atchiyamma, W/o.Venkat Rao,

     aged about 58 years, Hindu,

     R/o.D.No.44-34-45/2, Nandagiri Nagar,

     Akkayapalem, Visakhapatnam-16.

4. Smt.B.Jaya Lakshmi, W/o.Vasu, Hindu,

    aged about 30 years, resident of

    D.No.38-12-3, Gavara Veedhi,

    Marripalem, Visakhapatnam.                                                      ..Respondents/

                                                                                                              Opp.parties.

Counsel for the Appellants             - Smt.N.Surya Kumari.

Counsel for the Respondents          :   - 

QUORUM-THE HON’BLE MR.JUSTICE D.APPA RAO, PRESIDENT,

SMT.M.SHREESHA, MEMBER.

AND

SRI G.BHOOPATHI REDDY, MEMBER.

TUESDAY, THE SIXTEENTH DAY OF SEPTEMBER,

TWO THOUSAND EIGHT.

Oral Order (Per Hon’ble Smt.M.Shreesha, Hon’ble Member)

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            Aggrieved by the order in C.C.No.2/2007 on the file of District Forum-I,

Visakhapatnam, the complainants preferred this appeal.

The brief facts as set out in the complaint are that the complainants 1 to 4 are sons and complainant 5 and 6 are daughters of late B.Sanyasi Rao and his wife late Ammajamma, whereas complainants 7 and 8 are grand children of the said Sanyasi Rao and Ammajamma, being daughters of complainant No.1.  Whereas complainants 9 to 12 are children of deceased complainant No.5 and as such grand children of late Sanyasi Rao and Ammajamma. Opposite party No.1 is son of late M.Appalanaidu and opposite parties 3 and 4 are daughter and grand daughter of the said Appala Naidu respectively.  Whereas opposite party No.2 is the ground of the said Appala Naidu and son of opposite party No.1.  Late Ammajamma during her life time purchased 325 sq. yds. of land situated at Akkayapalem, Visakhapantam by virtue of an unregistered sale deed dated 11-11-1990 executed by late Appala Naidu along with opposite parties 1 and 2 after receiving total sale consideration of Rs.1,30,000/- and they delivered possession of the said property and it is in enjoyment of the said Ammajamma, who got adjudicated the said agreement by paying deficit stamp duty under Section 73  of the Stamp Act.  The said Ammajamma also gifted the said property in two equal shares in favour of complainants 7 and 8 by duty executing two registered gift deeds and they complainants 7 and 8 are in possession and enjoyment of the said property to the knowledge of one and all including opposite parties.  Opposite parties are also related through late Ammajamma and they with a  malafide intention to make wrongful gain are trying to grab the property by creating fixitious documents.  Inspite of legal notice got issued by the complainants, they failed to turn up to register proper sale deed and the complainants submit that there is deficiency in service on behalf of the opposite parties.  Hence the complaint for a direction to the opposite parties to execute and  register a sale deed in favour of the complainant in respect of 325 sq. yds. of land covered by old S.No.39 part, New S.No.40 part situated at Srinivasanagar, Akkayapalem, Visakhapatnam, to pay compensation of Rs.10,00,000/- towards breach of agreement , compensation and to pay Rs.50,000/- towards costs.

Opposite party No.2 filed counter which is adopted by opposite party No.1 and they denyied the allegations made in the complaint and also execution of alleged unregistered document dated 11-11-1990 by opposite parties 1, 2 and late Appala Naidu and paying consideration there under.  It is contended that the said property belong to opposite parties 1 and 2 and that they are absolute owners in possession and that the complainants are not ‘consumers’ and there is no deficiency of service as alleged.  They also submitted that the complaint is not maintainable and the complainants have to file a suit for specific performance in civil court.  They further submitted that the complaint is barred by limitation and prayed for dismissal of the complaint.

            Opposite party  No.3 remained exparte.

            Opposite party No.4 filed counter and admitted that she is the grand daughter of late Appala Naidu.  She also admitted that execution of unregistered sale deed dated 11-11-1990 by opposite parties 1, 2 and late Appalanaidu in favour of Ammajamma and other allegations of the complaint.  She denied the allegation of herself claiming title to the property and contended that to safeguard the reputation of family, she is willing to register a sale deed in favour of the complainants, if necessary.  She further submitted that the damages claimed by the complainants are excessive and prayed to reject the complaint for damages.

Based on the evidence adduced  i.e. Exs.A1 to A7 and the pleadings put forward, the District Forum dismissed the complaint as barred by limitation.

Aggrieved by the said order, the complainants preferred this appeal.

The learned counsel for the appellants/complainants submitted that the District Forum has erroneously dismissed the complaint on the ground that it is barred by limitation and that when there is no period of time stipulated for specific performance, the complaint has been wrongly dismissed.  She contended that the cause of action or right to sue being assertion of right by one party and denial of the same by the other party, did not even arise during the life time of Ammajamma in as much as she did not even demand performance.  Therefore the time did not being to run during her life time and after her demise, her estate devolved on the complainants along with the rights under the agreement.  Therefore, the cause of action arose only when they sought their right by demanding performance which they have done by legal notice dated 4-12-2006 and therefore the complaint ought not to have barred by limitation.

At the time of admission, this Commission raised the question of maintainability of the very complaint under the provisions of Consumer Protection Act, 1986.  The case of the complainants is that they purchased the land of 325 sq. yds. by paying the total sale consideration of Rs.1,30,000/- and the opposite parties did not register the sale deed.  We observe from the record that all the opposite parties are private parties and are not involved in any housing activity or building activity to fall within the provisions of Consumer Protection Act.  The learned counsel for the appellants/complainants relied on the decision reported in AIR 2005 CALCUTTA 108 in MANDIRA MOOKERJEE V. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AND OTHERS.  In this judgement quoted by the learned counsel for the appellants, the subject matter for consideration is a flat which is an immovable property and though the subject matter in the instant case is also for immovable property i.e. piece of land , still it cannot including any composite agreement of housing construction or any other service for it to warrant any kind of deficiency of service which can be enforceable by the Consumer Forum.  The learned counsel for the appellant/complainant drew our attention to the following paragraphs in pages 114:

7.3. …The question is whether any Forum other than Civil Court can exercise

       discretion with regard to specific performance of contract for sale of

       an immovable property in terms of the Specific Relief Act or whether

        the jurisdiction of the Consumer Forum is excluded by reason of any

        provisions contained in the Specific Relief Act.  If it can be true in

        relation to arbitration then there cannot be any bar of its being

        equally true in relation to a proceedings before the Consumer Forum.

7.7.          …As soon the contract includes certain services a consumer entitled

to receive the benefit of such services would definitely come within

the definition of consumer and can very well maintain an application

before the Forum under the 1986 Act.

7.8.          ….The definition of the word ‘service’ is of very wide amplitude. 

Section 2(o) defined service to mean service of any description

made available to potential users and includes but not limited to various other matters including house construction.  This agreement, admittedly, includes an agreement for house construction.  The definition is not only inclusive of the matters enumerated but also includes all incidences related to the matters included therein by using  the pharse ‘but not limited to’.  The scheme of the definition was intended not only to widen the scope of the definition but also to include all incidental as well as ancillary matters related to the service under the definition.

7.9.          …only the formalities for legally conveying title remains to be

performed pursuant to the scheme formulated, as involved in the present case, the obligation of execution and registration of conveyance would be a ‘service’ within the meaning thereof as defined in Section 2(o).

While Section 3 of the Consumer Protection Act, 1986 does state that it is an additional remedy and not in derogation of any other law yet the Act clearly specifies that the jurisdiction of the Consumer Fora is only with respect to any Development Agreement, Housing or building activity and therefore the present complaint which involves a personal sale agreement does not fall within the jurisdiction of this Act.

            The learned counsel for the appellants relied on a judgement reported in 2002 (1) ALT 59 (CPA) in RAM PRASAD SARDA v. V.L.N.BHARADWAJ.  It is an order of this Commission directing the builder to execute the registered sale deed.  In the  case cited above, there is a building activity and there is an agreement between the land owner and the builder, which is not so in the instant case.  We reiterate the same observation against the citation filed by the learned counsel for the appellants reported in 2003 (4) ALT 49 (NC) (CPA).

          While we agree with the argument of the learned counsel for the appellants that the provisions of the Act clearly states that it was enacted keeping in view the long felt  necessity to protect the common man from wrongs.  We are of the considered view that this case is a dispute with respect to land not involving any kind of housing or building activity which does not attract the provisions of this Act.  While we also agree with the argument of the learned counsel for the appellant/complainant that Fora constituted under the Act are at liberty to proceed with the  matters in accordance with the provisions of the Act rather than relegate the parties to arbitration proceedings.  Pursuant to a contract entered into between the parties, the Act intends to relieve the consumers of the cumbersome arbitration proceedings or civil action.  We rely on the judgement of the Apex court reported in 2008 (4) ALD 102(SC) in Faqir Chand Gulati v. Uppal Agencies Pvt. Ltd. and another in which the Apex court has discussed in detail Section 2(1)(o), (d), (g) and 3 of C.P.Act, 1986 and clearly defined about service providers, the ambit and scope of the Consumer Protection Act, 1986 with respect to housing.  At paragraph 9.1. the terms ‘consumer’, ‘deficiency’, and ‘service’ defined in clauses (d), (g) and (o) of Section 2(1) of the Act  are extracted below:

“Consumer” means any person who-

            i)xxxx

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”.

 {* The above definition was amended by Consumer Protection (Amendment)

      Act 62 of 2002 by adding the words ‘but does not include a person who

     Avails of such services for any commercial purpose’, at the end}.

            (g) “Deficiency” means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

         (o) “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.

         [ The words ‘ the provisions of’ are substituted by the words ‘but not limited to,

           the provisions of’ by the Consumer Protection (Amendment) Act, 2002

          (62 of 2002) with effect from 15-3-2003].

The Apex court quoted  from LUCKNOW DEVELOPMENT AUTHORITY v.

M.K.GUPTA reported in 1994(1) SCC 243, referring to the nature and object of the Act

and observed as follows:

         “To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, ‘to provide for the protection of the interest of consumers’.  Use of the word ‘protection’ furnishes key to the minds of makers of the Act.  Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision.  In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory.  Various legislations and regulations permitted the State to intervene and protect interest of the consumers have become a haven for unscrupulous ones and the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to be stated.  The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy.  It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, network of rackets’ or a society in which, ‘producers have secured power’ to rob the rest’ and the might of public bodies which are degenerating into store house of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked.  The malady is becoming a rampant, widespread and deep that the society instead of bothering, complaining and fighting for it, is accepting it as part of life.  The enactment in these unbelievable yet harsh realities appears to be a silver lining which may in course of time succeed checking the rot.  A scrutiny of various definitions such as ‘consumer’, ‘service’, ‘trader’, ‘unfair’ trade practice indicates that legislative has attempted to widen the reach of the Act.  Each of these definitions are in two parts, one, explanatory and the other expandatory.  The explanatory or the main part itself uses expressions of wide amplitude indicating clearly its wide sweep then its ambit is widened to such things which otherwise would have been beyond its natural import”.

         From all these observations, it is clear that the ambit and scope of the Consumer

Protection Act, 1986 is limited only to any kind to housing activity and not to plot of

land without involvement of any society or association and involving a personal sale

agreement and do not fall within the jurisdiction of the Consumer Forum.

         Therefore, this appeal fails and is accordingly dismissed.  However, the time

spent for prosecuting the remedy under the complaint and appeal shall be excluded

for the purpose of limitation.  There shall be no order as to costs.

                                                            PRESIDENT.   LADY MEMBER.   MALE MEMBER.

                                                                          Dated 16^th September, 2008.