AI Structured Summary
Not yet generated for this judgment
Judgment
We heard the learned counsels for the revisionist - complainant and the respondent no. 1 - opposite party no. 1, and perused the material on record.
Brief facts, shorn of unnecessary detail, are that the deceased husband of the revisionist -complainant was a monthly tenant and carrying out business under the name and style of 'Durga Diagnostic Centre' in the land and premises of the respondents no.2 to 4 - opposite parties no. 2 to 4.
The respondents no. 2 to 4 - opposite parties no. 2 to 4, the owners of the land, entered into an agreement with and empowered respondent no. 1 - opposite party no.1, a promoter-cum-developer, to construct a multi -storeyed building on their land.
Prior to vacating and demolishing of the portion occupied by the complainant's husband in the land and premises, an agreement was executed by the complainant's husband (since deceased) with the respondent no. 1 - opposite party no. 1 and with the respondents no. 2 to 4 - opposite parties no. 2 to 4 to allot a commercial space of 400 sq. ft. in the basement of the newly-constructed building. He paid a sum of Rs.1,00,000/- through cheque.
The contention of the complainant was that the agreed portion of the newly-constructed building was not handed over in terms of the agreement.
The contention of the opposite party no.1 - promoter-cum-developer was that the husband of the complainant, being a monthly tenant in the premises, entered into an agreement for purchasing commercial space of 400 sq. ft. in the basement of the newly-constructed building. As per the agreement he received a sum of Rs. 1,00,000/-. However, due to non-payment of balance stipulated installments, the agreement became infructuous and was cancelled.
The District Forum vide its Order dated 05.04.2013 allowed the complaint on contest against opposite party no. 1 and ex-parte against opposite parties no. 2 to 4:
The O.P. No.1 is directed to put the complainant in possession of 400 sq. ft.(commercial) situated in ground floor of the apartment named "Sree Jagannath Tower" (Burnpur road side facing). If the said space is not available then allot another suitable space measuring 400 sq. ft. at a prominent place in that complex and in that event O.P. No.1 have to pay a sum of Rs.10,00,000/- to the complainant towards the difference of possession in the burnpur road facing place and other side facing place in that complex within 45 days from the date of this order, failing which interest would fetch Rs.5,000/- per month till realization. The O.P. No.1 is further directed to execute a registered deed of sale of the above space in favour of the complainant and in that event complainant have to bear the cost of the stamp duties and registration charges as applicable. The O.P. No.1 is directed to hand over the possession of the agreed and allotted commercial space in terms of the development agreement within 45 days, in default we have already stated the alternative method as above, failing which the complainant is at liberty to execute the same through this Forum. Apart from that O.P. No.1 is directed to pay Rs.50,000/- as compensation of Rs.50,000/- as compensation towards mental pain and agony of the complainant who is none but a weaker section of our society.
The opposite party no. 1 appealed in the State Commission. The State Commission vide its Order dated 06.09.2016 allowed the appeal, holding that the complainant was not a 'consumer' within the meaning of section (2) (1) (d) of the Act 1986:
On a plain reading, it would reveal that Section 2(1) (d) of the Act provides that the Consumer is a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised or avails of any services for a consideration which has been paid or promised or partly paid and partly promised but it does not include a person who avails of any services for any commercial purposes. However, in order to avail shelter of explanation to Section 2 (1) (d) (ii) of the Act it is required to establish that he availed of the services for earning livelihood by way of self-employment.
The intention of the parties must be gathered from the document itself. When the Agreement for Sale dated 30.11.2008 executed by the husband of the Respondent no.1 with the Appellant clearly indicates that the husband of the Respondent no.1 agreed to purchase a commercial space of 400 sq. ft. in order to carrying on business, certainly in accordance with the observation of the Hon'ble National Consumer Commission reported in I (2005) CPJ 27 (M/s. Harsolia Motors. - Vs. - M/s. National Insurance Co. Ltd.) the Respondent no.1 would be excluded from the coverage of the Act.
The Respondent no.1 in his complaint also did not mention anywhere that she or her husband intended to purchase the said commercial space exclusively for earning livelihood by way of self-employment. In Cheema Engineering Services - Vs.- Rajen Singh reported in (1997) 1 SCC 131 the Hon'ble Apex Court has observed thus:
"Self-employment connotes altogether a different concept, namely, he alone use the machinery purchased for the purpose of manufacture ... by employing himself in working out or producing the goods for earning his livelihood. 'He' includes the members of his family".
In the case before hand, it is quite apparent the Respondent no.1 or her husband intended to purchase the commercial space, the aim of which is to generate profit and as such when profit is the main aim of commercial purpose, certainly, the Respondent no.1/ Complainant cannot be categorised as 'consumer' as defined in Section 2 (1) (d) of the Act.
We are not oblivion to the fact that on account of death of her husband, the Respondent no.1 has been facing enormous difficulties and this order will cause further difficulties to her. But a Court has no power to ignore the provisions of law. A result flowing from a statutory provision is never evil. The statutory provision may cause hardship or inconvenience to particular party but the Court has no choice but to enforce it giving full effect to same. The legal maxim 'dura lex sed lex' which means 'Law is hard but it is the law', stands attracted in such a situation.
We would want to refer to section 2(1) (d) (i) & (ii) and section 3 of the Act 1986.
Section 2 (1) (d) (i) & (ii):
Consumer means any person who -
(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(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 (but does not include a person who avails of such services for any commercial purpose.
Explanation:- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.
Section 3 :
Act not in derogation of any other law.-The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
The Act 1986 is for better protection of the interests of consumers, to provide speedy and simple redressal to consumer disputes.
Section 3 specifically provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. That is, the remedy provided under the Act is in addition to the provisions of any other law for the time being in force; the provisions of the Act give the consumers an additional remedy besides those that may be available under other existing laws.
Section 2 (1) (d) (i) & (ii) specifically stipulates "but does not include a person who obtain such goods for resale or for any commercial purposes" and "but does not include a person who avails of such services for any commercial purposes".
The Explanation to section 2 (1) (d) stipulates that " "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment."
"exclusively for the purpose of earning his livelihood by means of self - employment" in the Explanation to section 2 (1) (d) has to be adjudged rationally and logically with the due understanding and significance of "exclusively" and "livelihood" and "self-employment." Reasonable and logical interpretation does not imply an approach of anyhow allowing any complainant into the meaning of 'consumer' under the Act 1986.
The Explanation to section 2 (1) (d) is clear. "exclusively for earning his livelihood by means of self-employment" has to be read with the due understanding and significance of "exclusively" and "earning his livelihood" and "by means of self-employment". Reasonable and logical interpretation has to be kept limited and confined to reason and logic, not hypothised towards anyhow allowing anyone in.
We note that the complainant's husband was carrying out business in the name and style of 'Durga Diagnostic Centre' in the land and premises of opposite parties no. 2 to 4. The opposite parties no. 2 to 4 - land owners entered into an agreement with and empowered opposite party no.1 - promoter-cum-developer to construct a multi-storeyed building on their land. An agreement was entered into by the complainant's husband for allotment of commercial space in the newly - constructed building. It is not evident that this was exclusively for the purpose of earning his livelihood by means of self-employment.
We find the State Commission's impugned Order dated 06.09.2015 to be well-appraised and well-reasoned. The State Commission has rightly determined that the complainant is not a 'consumer' within the meaning of section (2) (1) (d) of the Act 1986. On the face of it, we find no jurisdictional error, or a legal principle ignored, or miscarriage of justice.
We may however also add here that the complainant's husband was a monthly tenant in the land and premises of the opposite parties no. 2 to 4. Admittedly he entered into agreement with both, the opposite parties no. 2 to 4 - land owners and with the opposite party no.1 - promoter-cum- developer, prior to vacating and demolishing his occupied portion in the land and premises, to enable construction of the new building. He had tenancy rights. He could have availed of them as per the law. Tenancy rights however do not provide any undue or wrong leverage to enter into agreement with the land owners and the promoter-cum-developer for commercial space at an arrived at consideration in the newly-constructed building prior to vacation and demolition of the occupied portion in the land and premises. Whether or not any undue or wrong leverage was exercised is a material issue in adjudication of such cases. Prima - facie such cases have an element of bad air, which needs to be examined and determined / dispelled one way or the other when consumer justice has to be adjudicated. For lawful, just and equitable adjudication, the issue of whether or not any undue or wrong leverage was exercised would require to be carefully examined and determined. In this instant case, however, since we find that the complainant is not a 'consumer', we are not proceedings into the merits of the case and as such are not examining the issue of undue or wrong leverage being exercised or not.
We may also make it clear, in the present context, that section 2 (1) (d) (meaning of 'consumer') and section 3 (additional remedy to consumers) have to be understood in conjunction and perspective. It has to be noted that denial to avail additional remedy in consumer protection fora to a person who is not a 'consumer' does not take away or affect his right to agitate his case in an appropriate forum / court as per the law. (Conversely, the availability of additional remedy in consumer protection fora does not take away the option of a 'consumer' to agitate his case in any other appropriate forum / court.)
We explicitly clarify that we have not gone into the merits of the dispute between the opposing sides. The complainant is free to agitate her case in any appropriate forum / court as per the law (but consumer protection fora are not for her). [We agree with the State Commission's observation, 'dura lex, sed lex', ' the law is harsh, but it is the law'.]
With the above discussion, the revision petition is dismissed.