MIRZA VIQAS RAUF , J. The appellant herein is aggrieved of order of dismissal of his claim passed by the learned Consumer Court, Faisalabad.
2. Facts in brief necessary for adjudication of instant appeal are that on launching a housing scheme on Motorway M-III in the year 2005, which was given vide publicity by the respondents, the appellant also purchased five plots through ballot or other modes and paid a considerable amount in installments as sale consideration. It is the grievance of the appellant that despite receipt of billions of rupees from the allottees, the respondents have not provided necessary facilities at the site and as such caused colossal loss to them . The appellant being one of the affectees brought his claim under Section 25 of the Punjab Consumer Protection Act, 2005 (hereinafter referred as "Act 2005") before the learned Consumer Court, Faisalabad. The claim was resisted by the respondents on various grounds, including the jurisdiction of learned Consumer Court. By way of order dated 24th December , 2014, learned Consumer Court proceeded to dismiss the claim on account of lack of jurisdiction, hence this appeal under Section 33 of "Act 2005".
3. Learned counsel for the appellant contended that claim was clearly triable by the learned Consumer Court but same has been dismissed on account of lack of jurisdiction without adverting to the relevant provisions of "Act 2005". It is submitted that learned Consumer Court was duly vested with the jurisdiction and impugned order is not tenable under the law. In order to supplement his contentions learned counsel has placed reliance on DEFENCE HOUSING AUTHORITY , ISLAMABAD through its Secretary and another vs MALIK KHALID MAHMOOD (PLJ 2014 Lahore 24).
4. Conversely learned counsel for the respondents, while going through Sections 2(c) & 2(k) of the "Act 2005" submitted that appellant is not a consumer and his claim was not proceedable under the Act ibid. Learned counsel defended the order of learned Consumer Court with vehemence.
5. Heard. Record perused.
6. The moot point involved in this appeal is thus relatable to the jurisdiction of learned Consumer Court. In order to properly comprehend the core issue, it would be expedient and advantageous to first examine the relevant provisions of "Act 2005". For the said purpose first of all preamble is reproduced below:- "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"
In the light of preamble of "Act 2005", the term "consumer" becomes of significance importance. Section 2(c) defines "consumer" in following way:- "(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."
After having a glimpse of above referred provision of law it can safely be inferred that claim of appellant primarily hinges upon sub-section (i) of Section 2(c) of "Act, 2005".
7. The word "product" used hereinabove is defined in Section 2(j) of "Act, 2005", which reads as under:- "(j)"product" has the same meaning as assigned to the word "goods" in the Sale of Goods Act, 1930 , and includes products which have been subsequently incorporated into another product or an immovable but does not include animals or plants or natural fruits and other raw products, in their natural state, that are derived from animals or plants;"
(Underlining is supplied for emphasis)
From the bare perusal of the provision it is manifestly clear that word "product" has been given synonymous status and treated as well as equated with the term "goods" under the Sale of Goods Act, 1930, which definesthe "goods" in Section 2(7) as under:- "(7) "goods" means every kind of movable property other than actionable claims and money; and includes electricity , water , gas, stock and shares, growing crops, grass, and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale;"
The term "product" is thus mainly derived from movable property and land is specifically excluded from the "goods" under the Sale of Goods Act, 1930. Though word "immovable" also finds reference in Section 2(j) of the "Act, 2005" but it is clearly restricted to "product". The joint analysis of Section 2(j) of "Act, 2005" and Section 2(7) of the Sale of Goods Act, 1930 leads to an irresistible conclusion that land cannot be termed as a "product".
8. The appellant has never hired any services for a consideration rather he had purchased plots from the respondents in lieu of a consideration. The term and conditions of allotment/purchase matured into an agreement interse appellant and respondents. Thus in case of violation of contract the appellant may ask for specific performance of contract or damages if there is breach of contract on the part of respondents through a suit before the Civil Court.
9. The above formulation also findsdue support from the mandate of Section 31 of the "Act 2005", which reads as under:- "31. Order of Consumer Court.- If, after the proceedings conducted under this Act, the Consumer Court is satisfied that the products complained against suffer from any of the defects specified in the claim or that any or all of the allegations contained in the claim about the services provided are true, it shall issue an order to the defendant directing him to take one or more of the following actions, namely:-
(a) to remove defect from the products in question;
(b) to replace the products with new products of similar description which shall be free from any defect;
(c) to return to the claimant the price or , as the case may be, the charges paid by the claimant;
(d) to do such other things as may be necessary for adequate and proper compliance with the requirements of this Act;
(e) to pay reasonable compensation to the consumer for any loss suffered by him due to the negligence of the defendant;
(f) to award damages where appropriate;
(g) to award actual costs including lawyers' fees incurred on the legal proceedings;
(h) to recall the product from trade or commerce;
(i) to confiscate or destroy the defective product;
(j) to remedy the defect in such period as may be deemed fit; or
(k) to cease to provide the defective or faulty service until it achieves the required standard."
It is thus manifestly clear from the above that in order to invoke the jurisdiction of the learned Consumer Court, the claimant must first qualify to be a "consumer". For the said purpose, a person has to qualify that he has purchased or obtained on lease any product for a consideration or hired any services for a consideration from the service provider .
10. In the case at hand the appellant has purchased certain plots (land) from the respondents, which cannot be termed as "product". No services were ever hired by the appellant from the respondents for a consideration.
Section 2(k) which provides the definition of "services" would only come into play where case of the claimant rested upon Section 2(c)(ii) of the "Act 2005". With all reverence to the judgment in the case of Defence Housing Authority (supra) it is observed that the principles laid down in the said case are not attracted in the present case, as those are founded in entirely different context. This Court in the case of MUHAMMAD AMEER QAZI vs MUHAMMAD ASIF ALI and others (PLD 2015 Lahore 235), whiledealing with a similar proposition held as under:- "9. Perusal of the above provisions shows that in order to invoke the jurisdiction of the Consumer Court, the complainant must first qualify to be "Consumer". To be a Consumer under the said Act, a person must hire the "Services" for a certain consideration from the services provider . In case there is no Services being availed by the complainant and no consideration being paid in return for the said services, the complainant does not qualify to be a Consumer and, therefore, the matter goes outside the fold of said Act.
10. According to the contents of all the three applications all the applicants alleged that there was an agreement regarding the purchase of plots but present appellant has refused to execute the register sale deed in their favour .
This matter relates to the breach of contra ct and civil court has the jurisdiction and absolutely Consumer Court had not the jurisdiction who had wrongly entertained such an applications for execution of the agreement to sell regarding immoveable property and decided the same illegally without jurisdiction. As dispute regarding immoveable property cannot be converted as consumer dispute since there is no sale of goods or services for consideration. The arguments of the learned counsel for the respondents that both the parties with their consent decided the matter from District Consumer Court is not tenable as it is held in case titled "Administrator , Thal Development through EACO Bhakkar and others v . Ali Muhammad" ( 2012 SCMR 730 ) as under:- Consent of the parties can neither confer nor can take away the jurisdiction of a Court/T ribunal, unless so conferred or barred by law ."
Jurisdiction of the Consumer Court is different from the civil jurisdiction. Consumer Court is to identify a consumer a building service and then if the service is defective, the Consumer Court is to fix damages and award the same as stated above. Needless to mention here that it is the duty of every court to examine the issue of bar of its jurisdiction at the earliest opportunity and decide it in accordance with law, instead of escaping to decide such important aspect of the case on mere concession of one or the other party ."
11. Even in case of conflict of views qua a legal proposition between two Benches of equal strength then it is an oft repeated principle that expression by the latter Bench would prevail. Reference in this respect, if needed, can be made to Mst. HIRA REHMAN vs CHANCELLOR, GOVERNMENT COLLEGE UNIVERSITY , LAHORE and 2 others (2011 CLC 377), Engineer JAMEEL AHMAD MALIK vs SHAUKA T AZIZ and 6 others (2007 CLC 1192) and MUHAMMAD HANIF and 2 others vs MUHAMMAD SADIQ and 14 others ( 2019 MLD 846 ).
12. There is yet another important aspect that as per claim of the appellant the respondents have failed to carry out the development at the site as advertised and provided by them. The jurisdiction of Consumer Court is undoubtedly different from a Constitutional Court. A Consumer Court is bereft of any jurisdiction to pass a direction in the form of mandamus. Reliance in this respect can be placed on Messrs ASKARI LEASING LTD. through Chief Manager vs PRESIDING OFFICER and another (PLD 2015 Lahore 140) and CHIEF EXECUTIVE, FESCO, FAISLABAD and 2 others vs NA YAB HUSSAIN ( PLD 2010 Lahore 95 ).
13. The nutshell of above discussion is that the learned Consumer Court has rightly refused to delve into the matter . There is no cavil left that Consumer Court was not vested with the jurisdiction to entertain the claim of appellant. Resultantly the instant appeal being without any force is dismissed with no order as to costs.