IMPORTANT POINT
Landowner giving his land for development and in return expecting some share of the area given, is “consumer”.

M. Shreesha, Member.—Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short the “Act”) is to the order dated 03.07.2018 passed by the West Bengal State Consumer Disputes Redressal Commission, in First Appeal bearing No. A/526/2017. By the impugned order, the State Commission has allowed the Appeal preferred by the Complainant by holding the Complainant ‘Consumer’ within the meaning of Section 2(1)(d) of the Act and remanded the matter back to the District Consumer Disputes Redressal Forum, South 24 Pargans (for short “the District Forum”) for re-adjudicating the case.

The facts in brief are the Complainant, landowner of a piece of land measuring an area of 200 sq. m. on premises No.R-1/1, Baishnabghata–Patuli, P.S. Patuli, Kolkata within the legal limits of Kolkata Municipal Corporation (KMC) entered into a Development Agreement with the Opposite Party to construct a four-storied building over the subject property. As per the terms of the Agreement, the land-owner was entitled to get 40% of the constructed area in the proposed building. Accordingly, the Opposite Party obtained the sanctioned building plan from KMC on 08.04.2004. It was stated that the land-owner was entitled to get a sum of Rs.1,00,000/- as security deposit which was to be paid by the Opposite Party at the time of signing and execution of the Agreement for Development. After completion of the construction of the building, the Opposite Party delivered the entire first floor measuring about 1308 sq. ft. covered area + 573 sq. ft. covered area = totalling 1881 sq. ft. area as against the 2264 sq. ft. covered area as per terms of Agreement of Development and, therefore, it was averred that the Complainant is entitled to get 383 sq. ft. of extra constructed area. The Complainant time and again requested the Opposite Party to deliver the possession of the said 383 sq. ft. but there was no response. A legal notice was issued on 16.06.2014 for which again there was no response. Hence the Complainant approached the District Forum seeking the following reliefs:—

“i. to deliver 383 sq. ft. covered area out of his allocation amounting to 40% of the constructed area and/or in the alternate pay Rs.17,00,520/- together with interest till date of possession and/or till realization of money;

ii. to deliver possession letter/certificate;

iii. to procure completion certificate in respect of premises No. R-1/1, Baishnabghata Patuli, Block-R (Old-R-1), Kolkata – 700 094.

iv. to pay Rs.1,00,000/- towards compensation for harassment, mental agony and legal cost.

v. Any other relief/reliefs that the Complainant is entitled in law and equity.”

2. The Opposite Party filed the Written Version stating that the Complainant has developed the land with an intention to commercially exploit the same and, therefore, it is meant for commercial purpose and he is not a ‘consumer’.

3. The District Forum based on the evidence adduced dismissed the Complaint with an observation that the Complainant is not a ‘consumer’ under the purview of the Act and the dispute be relegated to a Civil Court.

4. Aggrieved by the said order the Complainant preferred First Appeal bearing No. A/526/2017 before the State Commission. The State Commission set aside the order of the District Forum and allowed the Appeal, directing the District Forum to re-adjudicate the matter treating the Complainant as a ‘Consumer’.

5. Dissatisfied with the order of the State Commission, the Opposite Party preferred this Revision Petition on the ground that the State Commission has wrongly construed the observations of the Hon’ble Apex Court in Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. & Anr. (2008) 10 SCC 345: 2008 (5) Supreme 76.. In the instant case the Complainant is a lease-holder and in the said lease there were certain conditions and the lease-holder shall obey the said terms and conditions as stipulated in the said lease agreement but the lease-holder did not do so. The St