P L D 2022 Lahore 488 (PLP)

"If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny. Legal process is an essential part of the democratic process". Justice Felix Frankfurter, Judge of US Supreme Court (United States v. United Mine Workers, 330 U.S. 258) JAWAD HASSAN, J.

This petition was filed on 10.12.2019 by the Petitioner challenging order dated 06.07.2019 (the "impugned order") passed by the Respondent No.1/District Consumer Court, Rawalpindi (the "Consumer Court") whereby application filed under Section 35 of the Punjab Consumer Protection Act, 2005 (the "Act") read with Order VII, Rule 11 and Section 151, C.P.C. filed by the Petitioner was dismissed. During pendency of this petition, learned counsel for the Petitioner had relied on the judgments cited as "Yasir Chaudhry v. Faisalabad Development Authroity through its Director General and another" (PLD 2021 Lahore 713) and "Muhammad Ameer Qazi v. Muhammad Asif Ali and others" (PLD 2015 Lahore 235) but due to contradictory views, the Court then referred the matter for constitution of Larger Bench, hence it is being heard by this Bench. A. BRIEF FACTS

2. The Petitioner is a housing society and running its business under the name and style of Bahria Town (Pvt.) Limited (the "Society"). The Respondent No.2 purchased plots from the Society and when possession of plots was not delivered, he filed a complaint under Section 25 of the Act before the Consumer Court. In response to aforesaid complaint, the Society filed an application under Section 35 of the Act read with Order VII, Rule 11 and Section 151 of C.P.C. on various grounds including maintainability of the complaint as well as jurisdiction of the Consumer Court but instead of returning the complaint to be filed before appropriate forum, the Consumer Court assumed its jurisdiction and passed the impugned order. Hence this petition. B. PETITIONER'S ARGUMENTS

3. Mr. Muhammad Ilyas Sheikh, ASC inter alia argues that the claim of the Respondent No.2 relates to sale/purchase of immoveable property which does not come within the ambit of the Act and also it is not a 'product' as defined under Section 2(7) of the Sales of Goods Act, 1930; that the Society is neither a manufacturer nor a service provider in terms of Section 2(k) of the Act hence claim of the Respondent No.2 was not proceedable before the Consumer Court; that the obligation between the parties are contractual in nature and thus the Consumer Court lacks jurisdiction to entertain the claim of the Respondent No.2. He has relied on "Yasir Chaudhry v. Faisalabad Development Authority through its Director General and another" (PLD 2021 Lahore 713) and "Muhammad Ameer Qazi v. Muhammad Asif Ali and others" (PLD 2015 Lahore 235). C. RESPONDENTS ARGUMENTS

4. Raja Muhammad Tariq Khan, Advocate argues that the Respondent No.2 comes within the meaning of a consumer who purchased plots from the Society after making payment and in this respect, clearance certificates were also issued in his favour; that the matter purely relates to providing of service to the consumer of the Society hence the Consumer Court has rightly entertained the claim of the Respondent No.2. In order to support his contentions, learned counsel has relied on "Defence Housing Authority Islamabad through its Secretary and another v. Malik Khalid Mehmood" (PLJ 2014 Lahore 24). D. DETERMINATION BY THE COURT

5. From the arguments of learned counsel for the parties, the heart of controversy revolves around the jurisdiction assumed by the Consumer Court through the impugned order with following observation: "It is concluded that the defendant No.1 being the society developer is a service provider and complainant who paid consideration amount to defendant No.1 of a developed plot is a consumer and in case of providing defective services to the consumer the consumer can file a complaint before this court".

6. Before proceeding further, it is imperative to reproduce the preamble of the Act which reads as: "Whereas, it is expedient to provide for protection and promotion of the rights and interests of the consumers, speedy redress of consumer complaints and for matters connected therewith".

7. From perusal of preamble of the Act it is quite obvious that the purpose and object of the Act provides for protection and promotion of the rights and interests of the consumers facing risks and failures in the yards of their desired necessities and demands. The Preamble of the Act aimed at safeguarding and promoting rights and interests of consumers by affording a medium and platform for redressal of their grievance in a speedy manner without loss of time. The preamble to a statute is though not an operational part of the enactment but it is a gateway to open before us the purpose and intent of the legislature necessitating the legislation on the subject and also sheds clear light on the goals which the legislator aimed to secure through the introduction of such law. The preamble of a statute, therefore holds a pivotal role for the purposes of interpretation in order to dissect the true purpose and intent of the law. The August Supreme Court of Pakistan in "Director General, FIA and others v. Kamran Iqbal and others" (2016 SCMR 447) laid down the similar principle by holding that :- "indeed, preamble to a Statute is not an operative part thereof, however, as is now well laid down that the same provides a useful guide for discovering the purpose and intention of the legislature. Reliance in this regard may be placed on, the case of Murree Brewery Company Limited v. Pakistan through the Secretary of Government of Pakistan and others (PLD 1972 SC 279). It is equally well-established principle that while interpreting a, Statute a purposive approach should be adopted in accord with the objective of the Statute and not in derogation to the same.".

8. In order to bring the case within the ambit of the Consumer Court, the Respondent No.2 must have to fulfil the requirement of a 'consumer' as defined under Section 2(c) of the Act which reads as: (c) "consumer" means a person or entity who- (i) buys or obtains on lease any product for a consideration and includes any user of such product but does not include a person who obtains any product for resale or for any commercial purpose; or (ii) hires any services for a consideration and includes any beneficiary of such services; Explanation:- For the purpose of sub-clause (i), "commercial purpose" does not include use by a consumer of products bought and used by him only for the purpose of his livelihood as a self-employed person". (Underline for emphasis)

9. Bare reading of above said provision of law reveals that clause (i) of subsection 2(c) of the Act deals with the 'product' which is defined under Section 2(j) of the Act and has been given synonymous status of the term 'goods' under the Sale of Goods Act, 1930. While clause (ii) of subsection (2)(c) of the Act states about 'services' which is defined under Section 2(k) of the Act. It is important to reproduce the said section which reads as under: "services" includes the provision of any kind of facilities or advice or assistance such as provision of medical, legal or engineering services but does not include- (i) the rendering of any service under a contract of personal service; (ii) the rendering of non-professional services like astrology or palmistry; or (iii) a service, the essence of which is to deliver judgment by a court of law or arbitrator;

10. A glimpse of above said provision of law demonstrates that to bring a claim under Section 25 of the Act before the Consumer Court, a person must qualify to be a 'consumer' having been suffered damage due to defective or faulty product hired from a service provider and for this purpose, he has to qualify that he has purchased or obtained on lease any product for a consideration or hired any services for a consideration from service provider. The 'services' mentioned under Section 2(k) of the Act includes provision of facilities or advice or assistance of medical, legal or engineering related services but Section 2(k)(i) of the Act specifically put a restriction on a consumer to bring his claim before the Consumer Court if the services relate to a contract of personal nature. It is noted that under Section 2(j) of the Act, the word 'immovable' is mentioned but it is clearly restricted to 'product'. Importantly, it would be advantageous to reproduce the prayer made by the Respondent No.2 before the Respondent No.1 which reads as under: "In these circumstances, it is, therefore, respectfully prayed that instant complaint may kindly be accepted and respondents may be directed to deliver the possession of the two plots bearing Nos.21-A, 21-B measuring 50x90 each Street No.5, Zone VII, Category General, situated at Bahria Town Garden City, Islamabad (Adjacent to each other) to the complainant and also pay damages Rs.10 Crore to the complainant as the complainant suffered mental torture, agony, loss of money, wastage of precious time due to the acts on the part of the respondents, in the interest of justice".

11. The above said prayer made by the Respondent No.2 does not relate to damages suffered rather he is aggrieved by action of the Society for not delivering the possession of plots which he had purchased from it. It is pertinent to mention here that a claim by a consumer with regard to damages is to be filed under Section 25 of the Act while Section 28 of the Act which starts with words 'who has suffered damages'. A combined reading of both abovesaid provisions makes it clear that a claim for damages can only be filed by a consumer when the products hired from a service provider for consideration are defective or faulty and the conduct of manufacture for rectifying such defects or faults caused mental torture, loss of money and wastage of time. It is not disputed that the Respondent No.2 purchased plots from the Society on 06.04.2015 and paid certain payments as is evident from the complaint filed before the Consumer Court and controversy arose when the Society refused to deliver their possession due to non-payment of possession charges. Pertinently, the purchasing of plots by the Respondent No.2 from the Petitioner can neither be termed as 'product' as defined under Section 2(j) of the Act nor can be termed as 'services' as per section 2(c)(ii) of the Act. A joint analysis of Section 2(j) of the Act and Section 2(7) of the Sales of Goods Act, 1930 makes it abundantly clear that 'land' cannot be termed as a 'product'. Therefore, the case in hand purely relates to rights and liabilities of the parties out of sale/purchase of plots in lieu of consideration shaping up under a contract as well as non-fulfillment of contractual obligation and not of the 'services' as mentioned under Section 2(k) of the Act for which the Respondent No.2 had to approach Civil Court of competent jurisdiction under the Specific Relief Act and he, by no means, could have approached the Consumer Court for performance of contractual obligation stressing upon the question of 'services' without establishing that he is a consumer having purchased a product which is defective or faulty or hired any service from service provider.

12. In view of above situation, it is crystal clear that the present is a case of breach of terms and conditions of contract regarding sale/ purchase of immoveable land and the Consumer Court had no jurisdiction to entertain and decide such claims Therefore, this writ petition is accepted and while allowing the application filed by the Petitioner under Section 35 of the Act read with Order VII, Rule 11, C.P.C., the complaint filed by the Respondent No.2 before the Consumer Court stands rejected. However, the Respondent No.2, if so desires, can approach the court of competent jurisdiction for redressal of his grievance. SA/B-3/L Petition accepted.