Bhupinder Singh Alias Tek Singh vs Omega Agro Private Ltd

THIS First Appeal is directed against the Order dated 10.7.93 passed by the Punjab State Commission at Chandigarh and the order dated 13.9.93 by the State Commission correcting a typographical error in the operative part of the order dated 10.7.93 dismissing the complaint of the appellant herein.

IT is unnecessary to notice the facts in detail for we are inclined to remand the case to the State Commission for de novo trial. Suffice it to say that the complainant had sown cotton in his land measuring 20 Acres and 6 Kanals and 10 Marlas and bought Endosulfar 35% EC from the office of the Chief Agriculture Officer. The complainant purchased on 2.8.91, 12 litres of Endosulfar 35% EC and paid a sum of Rs. 9,00/ - towards the 50% cost of the insecticides, the balance 50% being the subsidy. The complainant sprayed the said insecticide on 8.8.91 on his cotton crop after mixing it with water and within the next 4 -5 days the cotton plants completely shrank and withered. It was reported telegraphically to the concerned authorities on 16.8.91 and then followed with registered letter. The Chief Agriculture Officer visited the fields of the complainant and inspected the damaged cotton crop on 17.10.91. The complainant alleged that Endosulfar 35% EC was introduced by the opposite parties in the market without proper testing and verification and that it caused extensive damage to the complainants crop and other farmers like him. Alleging defect in the said insecticide, the complainant claimed compensation of Rs. 2,75,000/ - beside other incidental expenses to the tune of Rs. 82,897/ -. On being noticed the opposite parties took a preliminary objection that the complainant is not a consumer within the meaning of Section 2 (1)(d)(i) of the Consumer Protection Act. According to them the insecticide Endouslfar 35% EC was purchased by the complainant for a commercial purpose being indicated in commercial activity undertaken with a motive to earn profit. On merits it was pleaded that the failure of the cotton crop in the fields of the complainant was not due to the defective or substandard insecticide. The State Commission on the pleadings of the parties framed two questions for consideration namely : (i) whether the complainant purchased Endosulfar 35% EC for a commercial purpose ? (ii) whether the complainant has proved that the failure of the cotton crops in his fields was due to the supply of the defective and substandard insecticide by the opposite parties. On point No. 1 the President of the State Commission came to the conclusion that the complainant is not a consumer under the definition given in the Act and therefore the complaint before the State Commission is not maintainable. On Point No. 2 the President came to the conclusion that the complainant has wholly failed to establish that the defective Endosulfar 35% EC was supplied to him by opposite party No. 5 as the burden to prove lay heavily on him to establish his case, but he has miserably failed to discharge that burden. The other two members of the State Commission in a detailed and learned analysis of the question of the expression ''commercial purpose'' came to the conclusion that the examining the matter from any angle - lexical, common parlance, linguistics, textual, contextual, purposive, precedents, ramification of the Act and more so on the basis of the material placed before the Commission, they held the answer to point No. 1 in the negative. The State Commission in view of the majority opinion on point No. 2 dismissed the complaint with no order as to costs. It is evident that on Point No. 2 the two members of the State Commission did not express any opinion in their lengthy order. Later on the order was corrected by the State Commission in the order dated 30.9.93 and the operative portion of the judgment dated 10.7.93 was corrected to read as under : ''In view of our unanimous opinion on Point No. 2, the complaint is hereby dismissed, with no order as to costs.''

THIS Commission has already taken the view that the purchase of seeds for the purpose of agriculture is not a purchase of an article for commercial purpose and the same reasoning applies to the insecticides purchased for agricultural operations. In Laxmi Agriculture Seed Store v. Dhoop Singh & Ors. I (1995) CPJ 45 (NC), this Commission quoted with approval the view of the State Commission. In that case the complainant had sizable holdings and were not marginal farmers dependent only on the land for their existence and they had grown sun flower crop which is primarily a commercial crop and it was contended that the seed was purchased for commercial purpose. The State Commission relying upon its own cause exhaustive order : ''From the aforesaid conspectus of the relevant precedent, the language of the statute and upon larger principle, it would emerge that Parliament has clearly employed the phrase ''commercial purpose'' in its generic sense. It would appear that ''agriculture is a genus distinct from commerce and consequently commercial purpose and agricultural purpose are genetically different. The core issue is whether a plainly agricultural purpose can be labelled as a ''commercial one ? In or view, it cannot be so''

It was further remarked in that case : ''Perhaps in the end of one may with consideration poetic license borrow the analogy of Kiplings famous couplet, to conclude, that agriculture is agriculture, and commerce is commerce, the twain shall never meet. In the light of the aforesaid somewhat exhaustive discussion, the answer to the question posed at the outset has necessarily to be rendered in the affirmative. It is held that commercial purpose is a thing apart and distinct from a agricultural purpose under the Act''.

THIS Commission in an earlier order passed in Revision Petition No. 499/93 titled Managing Director, National Seed Corporation v. Prem Prakash decided on 28.3.94 had also held that purchase of seed for the purpose of agriculture is not a purchase of an article for commercial purpose. Similar view has been taken in other cases. The majority opinion of the State Commission is therefore correct. The complainant is a consumer within the meaning of Section 2(1)(d)(i) of the Act and the complaint is maintainable. As already indicated on point No. 2, the two members of the State Commission did not express any opinion and in fact there was some confusion when the order of the Commission was announced on 10th July, 1993 and later corrected in order dated 13.9.93. We feel that there has been satisfactory adjudication on point No. 2. We, therefore, set aside the impugned order of the State Commission and remand the case for fresh adjudication on point No. 2 by the State Commission after affording an opportunity to the parties of being heard and after considering all such of the evidence as the parties wish to produce. There will be no order as to costs.