Kiul Badua Chandan Command Area Development Agency and Others vs The State of Bihar and Others

Heard the parties. All the three appeals were heard together and are being disposed of by this common order. The complainants respondents in all the three cases filed a complaint before the District Consumer Forum complaining that they have entered into an agreement with the appellant No. 1 Kiul Badua Chandan Command Area Development Agency (hereinafter referred to as the Agency) for execution of certain works. The works were executed but the payment was not made. Admittedly, before the Consumer Forum the Agency was not made the party. Only officers were made parties. The Consumer Forum accordingly made awards in favour of the complainants-respondents. The Agency challenged the same in the writ petition by filing three writ petitions and the matter was placed before the learned single judge who has dismissed the writ petitions on the ground that an alternative remedy is available in appeal before the State Consumer Commission.

Learned counsel for the appellant has raised two points. Firstly, he stated that the Agency has been created under the provision of the Bihar Krishak And Gramin Chhetra Vikas Agency Adhiniyam 1978 and according to section 3(c) the agency is a corporate body and it can sue or can be sued in its name but the agency was not made the party before the Consumer Forum and awards have been passed against it and as such the awards are without jurisdiction. Secondly, he submitted that in any view of the matter even if the whole allegation made in the complaint petition before the District Consumer Forum is accepted on its face value the Consumer Forum Protection Act is not attracted because the complainants-respondents are not the complainant or the consumer as defined under the Act and as such the dispute cannot be raised at their instance.

Learned counsel for the complainants-respondent combated both the submission and submitted that the provision of appeal is already there and this court should not interfere with the matter keeping in view the fact that an alternative remedy is available. Secondly, he submitted that the complainants - respondents are consumers and the allegations are covered by the definition of complaint and thus the dispute decided by the Consumer Forum was within its jurisdiction. Thirdly, he submitted that no objection was raised with regard to the jurisdiction before the Consumer Forum.

So far alternative remedy is concerned, the law is well settled that there is no legal bar in interfering with a matter when an alternative remedy is available. It is a self restraint restriction put by the court. However, it is well settled that when the order is challenged on the ground of want of jurisdiction, violation of fundamental rights or natural justice, the court will interfere with the matter inspite of availability of an alternative remedy of appeal.

In the present case, we are of the view that the order is wholly without jurisdiction and as such we are inclined to interfere with the matter. On the ground of availability of an alternative remedy, we are not inclined to reject the appeals.

The primal question for consideration is as to whether the Consumer Protection Act is attracted in this case. From the nature of allegation as has been made in the complaint which has been annexed as Annexure 1 to the writ petitions, it is clear that the complainants-respondents had taken contract works from the Agency and they claimed to have executed the same but the payment has not been made to them. Whether the contractors'' claim will be covered by the definition of complaint and the consumer and they will be termed as complainants and consumers as defined under the Act ? The complainant and consumer has been defined u/s 2 (b) (c) (d), which are reproduced :

(b) "complainant" means-

(i) a consumer or

(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956), or under any other law for the time being in force; or

(iii) the Central Government or any State Government who or which makes a complaint;

(iv) one or more consumers, where there are numerous consumers having the same interest;

(c) "complaint" means any allegation in writing made by a complainant that-

(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader;

(ii)the goods bought by him or agreed to be bought by him suffer from one or more defects;

(iii) service hired or availed at or agreed to be hired or availed of by him suffer from deficiency in any respect;

(iv) a trader has charged for the goods mentioned in the complaint a price in excess of the fixed by or under any law for the time in force or displayed on the goods or any package containing such goods;

(v) goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods.

With a view to obtaining any relief provided by or under this Act;

(d) "consumer" means any person-

(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 purposes; 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 included 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;

According to the definition of consumer, two types of persons are covered by the same either who buys any goods for consideration or who hires services for a consideration.

Learned counsel for the complainants-respondents has relied upon a judgment of the Supreme Court in support of his submission that the complainants-respondent are consumers reported in the case of Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, . In our view, the said decision supports the stand of the appellant instead of the complainants-respondents.

Counsel for the complainants respondents has specially relied upon paragraphs 5 & 6 of the judgment. In paragraph 4 the Supreme Court considered the definition of service. It says that service means service of any description which is made available to potential users and includes the provisions of facilities in connection with banking, financing, insurance, transport procession, supply of electrical or other energy, board or lodging or both, entertaining, amusement of the purveying or news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. Again in paragraph 5 it has been stated that the function of the consumer renders in two parts. First part deals with goods and the other with services. Both parts first declares the meaning of goods and service by use of wide expressions. Their ambit is further enlarged by use of inclusive clause. For instance, It is not only purchaser of goods or hirer of services but even those who use the goods or who are beneficiaries of services with approval of the beneficiaries of services with approval of the person who purchased the goods or who hired services are included in it. In paragraph 6 of the judgment it has been held as follows:

In State of Orissa Vs. Divisional Manager, LIC and another, this court held:

The only question is whether the appellant is liable to pay compensation to Haribandhu Setha under the Act and whether the claim is maintainable. Section 2(1) (o) of the Act defines ''services'' as under :

"services" means service of any description which is made available to potential users and includes 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 a new or other information, but does not include the rendering of any service free of Charge or under a contract of personal service."

A reading of the definition would indicate that the services contemplated there under alone are the services within the meaning of the Act except excluded services mentioned there under. The excluded services are service free of charge or under a contract of personal service." The contempt of contract of personal service was considered in a recent judgment of this court in Indian Medical Association Vs. V.P. Shantha and Others, . This court had held therein that the expression "personal service" has a well known legal connotation and has been construed in the context of the right to seek enforcement of such a contract under the Specific Relief Act, 1963. For that purpose, a contract of personal service has been held to cover a civil servant, the managing agents of a company and a professor in the University. There can be a contract of personal service if there is relationship of master and servant between a doctor and the availing of his services and in that event the services rendered by the doctor to his employer would be excluded from the purview of the expression u/s 2(1 )(o) of the Act by virtue of the exclusionary clause in the said definition. The other excluded service is service rendered free of charge.

The combined reading of the definitions of consumer and service under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words "consumer" and "service" as defined under the Act should be construed to comprehend consumer and services of commercial and trade oriented nature only. Thus any person who is found to have hired services for consideration shall be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also related to the services as indicated in Section 2(1)(o) of the Act."

In our view, according to the law laid down by the Supreme Court, the consumer must either have purchased goods or has taken services. Here the complainants have not purchased the goods and on the other hand they had taken a contract to execute certain works and accordingly they executed the works but the payment was not made. The complainants - respondents thus, in our view, are not the consumer within the meaning of the Act and thus the complaint made by them should not have been entertained by the District Consumer Forum.

Accordingly, the awards rendred by it are wholly without jurisdiction. It can be safely said that that the District Consumer Forum usurped the jurisdiction which was not vested in it according to law. Accordingly, all the three awards given in favour of the complainants - respondents are set aside on the aforesaid grounds. In the result all the three appeals are allowed with the aforesaid observation.