JUDGMENT
Y. Krishan, J.
(1) These are two appeals against the common Order of the 5th July, 1991 of the State Commission of Maharashtra on the preliminary issue “Whether the Tribunal (Consumer Forum) has jurisdiction to entertain the complaint under the Consumer Protection Act, 1986”? Both the appeals are therefore, disposed of together by this order.
(2) According to the facts stated in the Order of the State Commission, the complainants before the State Commission and Respondents herein had purchased from the appellants land drip irrigation system to irrigate their lands which were used for growing grape vine. The three Complainants in complaint No. 30/90 on the file of the State Commission and F.A. No.155 before us own only half an acre of land each and the one complainant in the other appeal (complaint no-88/90 before the State Commission) owns one acre of land only.
(3) According to the complainants, the drip irrigation system purchased from the appellants was found to be defective in its performance and did not conform to its specifications and descriptions the laterals and filters were also found to be defective.
(4) The appellant here and the respondents before the State Commission, challenged the maintainability of the complaints on the ground that the complainants were not “consumers” within the meaning of Section 2(1)(d) of the Consumer Protection Act. According to the appellants, the drip irrigation system was purchased by the complainants for commercial purpose, being engaged in commercial activity undertaken with a motive to earn profit.
(5) On this point of challenge to the complaints, the State Commission observed that “material on record shows that complainants are agriculturists having very meagre parcel of land measuring half acre to one acre. They purchased the system with the motive to irrigate their crop of grapes as it is a tender plant and it requires constant irrigation. The water being in little supply, the system in question has been purchased to keep the plants alive with minimum water supply. Considering these facts we cannot imagine that the motive of complainants was to earn profit and therefore, the system was purchased for “commercial purpose”. “THE tiny parcels of land, the crop sown on it and the occupation of complainants clearly suggest that they are agriculturists-cum-agricultural labourers and by no stretch of imagination can they be considered as engaged in trade or commerce”.
(6) The State Commission goes on to observe that “In the instant case, the complainants purchased the irrigation system as goods for heir use in their personal cultivation as agriculturists and not as a trader or for any ‘commercial purpose'”. THEREFORE the available material on record Prima Facie shows that the goods are not purchased for’commercial purpose’. After considering the meaning of the terms ‘commerce’and ‘commercial’, the State Commission came to the conclusion that the system purchased by the complainants cannot be for commercial purpose. It, therefore, decided the preliminary issue in favor of the complainants respondents and against the appellants herein.
(7) In the appeal the appellants have submitted that the State Commission has erred in its finding that the motive of the complainants in making the purchase of drip irrigation system was to irrigate the grape groves and not to earn any profit. In other words, the State Commission has-failed to distinguish between the function of the machinery which is purchased and the object of the complainants in purchasing that machine. While the function of the drip irrigation system is to irrigate the grape groves, the object of the purchasers was to increase their productivity and thus to increase their income.
(8) Secondly, accordingly to the applellant, the expression “commercial purpose” is much wider than “trade or commerce”. A person may be said to purchase goods for commercial purpose when he carries on an activity with profit or loss consideration in view. Therefore, even if a person is not engaged in trade or in commerce as such, the purchase of goods may well be for a commercial purpose if the object is to earn profit or to reduce loss.
(9) Thirdly, the appellant submitted that the complainants respondents were not engaged in subsistence cultivation. They are not growing grapes for personal consumption. Engaging in trade or commerce is inherent in and incidental to the production of a cash crop.
(10) Fourth by, accordingly to the appellants, they had only sold “goods”, i.e. the drip irrigation system to the respondent complainants and not contracted to provide “service” for consideration.
(11) During the hearing on 23.4.1992, the counsel for appellants brought to the notice of the Commission that, according to the affidavits filed by the respondent complainants, the grape grove of Malgonda Anna Patil and others (appeal no. 155) would produce about 4,500-5,000 boxes containing 4 Kgs. each of grapes. According to the complainants, they had obtained so much grape before the installation of the irrigation system. In other words, the production would have been still higher, if the drip irrigation system functioned properly. They had estimated the loss at Rs.60,000.00 per year for three complainants or Rs.l.20 lacs in two years. The said loss of the grapes in the second appeal no. 156 has been estimated by the respondent at Rs. 2.40 lacs in one year.
(12) It is in evidence of one of the witnesses on behalf of the respondent complainant (shri Ashok Annaseheb Kagwade) that he was running a “Bedana” project at Gundewadi village and he has been purchasing grapes for his project, inter alia from the respondent complainant Shri Ashok Kagwade by paying cash. The counsel for the appellant, therefore, submitted that considering:
(I)That the grapes are purely a cash crop;
(II)The income earned or expected to be earned from the sale of grapes;
(III)The sale of grapes against cash in the case of the respondent complainant in appeal No. 156, there was no doubt whatever that grape cultivation was being carried out as a commercial activity and that therefore, the purchase of the dripirrigation system was for a commercial purpose.
I.In the light of the special facts and circumstances made out in this case, we are satisfied that the appellants are well founded in their contention that the purchase of the drip irrigation system was for a commercial purpose. In consequence, the purchasers of the system cannot be regarded as ‘consumers’ as defined in the Consumer Protection Act, 1986.
(13) In the result, the appeal on the preliminary objection succeeds. The order of the State Commission is set aside, the parties will bear their respective costs.