State Consumer Disputes Redressal Commission
Sh. O.P. Thakur. vs Shimla Muncipal Corporation. & Anr. on 10 June, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 15/2018
Date of Presentation: 12.01.2018
Order Reserved on : 04.01.2019
Date of Order : 10.06.2019
......
O.P. Thakur son of late Shri Sita Ram Thakur R/o Manohar
Ashram Kanlog Shimla 171001 (H.P) Office address at Willow
Bank Building The Mall Shimla.
...... Appellant/Complainant
Versus
1. Shimla Municipal Corporation Shimla-171001 through its
Commissioner.
......Respondent No.1/Opposite party No.1
2. M/s H.S Kochar & M.S Kochar owners/landlords of
Willow Bank Estate The Mall Shimla presently R/o 71
Sunder Nagar New Delhi-110003.
......Respondent No.2/opposite party No.2
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Bharat Thakur Advocate.
For Respondent No.1 : Mr. Dinesh Kainthala vice Mr.
Harish Sharma Advocate.
For Respondent No.2 : Mr. Abhimanyu Rathor Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 1 Whether reporters of the local papers may be allowed to see the order? Yes.
O.P. Thakur Versus Shimla Municipal Corporation & Anr. F.A. No.15/2018 13.12.2017 passed by Learned District Forum in consumer complaint No.279/2013 titled O.P. Thakur Versus Shimla Municipal Corporation & Anr.
Brief facts of consumer complaint:
2. Sh. O.P Thakur filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is Advocate by profession and office premises of Advocate is situated in Willow Bank Building Estate Complex. It is pleaded that complainant is operating his profession from rented premises situated in Willow Bank Building Estate Complex. It is pleaded that Shri H.S. Kochar & Shri M.S. Kochar are landlords of premises in question. It is pleaded that Municipal Corporation did not discharge statutory obligation. It is pleaded that complainant for his legal profession at his own costs purchased library, fixtures, furniture, typewriter, computer and printer etc. It is pleaded that landlords did not maintain the premises in question. It is further pleaded that drainage system in front of complainant's office remain blocked and rain water caused damaged to the articles of complainant kept in the office due to overflow of water. It is further pleaded that complainant is paying rent to the tune of Rs.2396/-(Two thousand three hundred ninety six) per annum. It is pleaded that office premises also neglected by Municipal Corporation and rain 2 O.P. Thakur Versus Shimla Municipal Corporation & Anr. F.A. No.15/2018
water flows from Mall Road to Willow Bank Building Estate Complex and log in front of office premises of complainant and even enter inside office room. It is pleaded that opposite parties committed deficiency in service. Complainant sought relief of payment of Rs.325836/-(Three lac twenty five thousand eight hundred thirty six). Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite party No.1 pleaded therein that complainant has no cause of action against Municipal Corporation. It is pleaded that complainant does not fall within the definition of consumer. It is pleaded that Municipal Corporation has diverted flow of water and also laid down water pipes. It is pleaded that flow of rain water may have entered into complex on account of heavy and inconsistent rain. It is further pleaded that intricate question of facts and laws are involved in present matter and complainant be relegated to civil court for adjudication of his dispute. It is further pleaded that complainant is estopped from filing the present consumer complaint due to his own act and conduct and complainant has no locus standi to file the present consumer complaint against Municipal Corporation. It is pleaded that complainant is not consumer of Municipal Corporation. It is pleaded that statutory and autonomous services do not fall within the 3 O.P. Thakur Versus Shimla Municipal Corporation & Anr. F.A. No.15/2018 ambit of Consumer Protection Act 1986. It is pleaded that Municipal Corporation did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Per contra separate version filed on behalf of opposite party No.2 pleaded therein that learned District Forum has no jurisdiction to try the consumer complaint. It is pleaded that complainant is not consumer as defined under Consumer Protection Act 1986. It is pleaded that complainant be relegated to civil court for adjudication of his dispute or complainant be relegated to Rent Controller to adjudicate his dispute with landlords.
5. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum on dated 08.03.2016 returned the consumer complaint for representation before competent court of law. Thereafter complainant filed Appeal No.294/2016 before State Commission and same was disposed of on dated 17.08.2017. The matter was remanded back to learned District Forum with the direction that learned District Forum would obtain evidence of parties by way of affidavits relating to controversial facts strictly as per mode mentioned under section 13(4) of Consumer Protection Act 1986 and thereafter learned District Forum will dispose of complaint afresh strictly in accordance with law and proved facts. Thereafter 4 O.P. Thakur Versus Shimla Municipal Corporation & Anr. F.A. No.15/2018 learned District Forum again dispose of present consumer complaint on dated 13.12.2017. Learned District Forum held that present consumer complaint could not be disposed of in summary manner. Thereafter learned District Forum returned the consumer complaint for representation before civil court. Feeling aggrieved against order passed by Learned District Forum complainant again filed present appeal before State Commission.
6. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether payment of tax to statutory authority i.e. Municipal Corporation will fall within definition of consideration amount for hiring service under Consumer Protection Act 1986?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit in evidence. There is recital in affidavit that opposite party No.2 i.e. landlords have settled the grievances and now no more grievances survive 5 O.P. Thakur Versus Shimla Municipal Corporation & Anr. F.A. No.15/2018
against opposite party No.2 i.e. M/s H.S. Kochar & M.S. Kochar. There is recital in affidavit that now grievances only survive against opposite party No.1 i.e. Shimla Municipal Corporation. State Commission has carefully perused entire annexures filed by complainant.
9. Opposite party No.1 filed affidavit of Sh. Vijay Gupta Municipal Engineer Water Supply and Sewerage Deptt. in evidence. There is recital in affidavit that complainant is not consumer vis-à-vis opposite party No.1 and complainant has no cause of action against Municipal Corporation. There is recital in affidavit that Municipal Corporation did not commit any deficiency in service or unfair trade practice. There is recital in affidavit that intricate question of laws and facts are involved in present consumer complaint and complainant be relegated to civil court for adjudication of his dispute. There is recital in affidavit that despite repeated verbal requests complainant did not apply for any sewerage connection. There is recital in affidavit that Municipal Corporation laid down sewerage line in the year 2011 as per provision of section 269 of Municipal Corporation Act. It is denied that Municipal Corporation provided defective service contrary to requirement of law. There is recital in affidavit that complainant has no cause of action to file present consumer complaint.
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O.P. Thakur Versus Shimla Municipal Corporation & Anr. F.A. No.15/2018
10. Submission of learned Advocate appearing on behalf of complainant that Municipal Corporation has committed deficiency in service and did not maintain proper drainage system and due to overflow of rain water articles kept in Advocate office stood damaged and on this ground appeal filed by complainant be allowed is decided accordingly. Hon'ble National Consumer Commission comprised of four members bench in case reported in 1997(2) CPR 179 NC titled M/s Signet Corporation Versus Commissioner M.C.D. New Delhi & others held that no complaint under Consumer Protection Act 1986 could be filed against Municipal Corporation on the ground of its alleged failure to discharge its statutory duty of proper maintenance of public drainage. Hon'ble National Consumer Commission in case cited supra held that payment of tax which goes into general revenue of State or local authority will not legally constitute payment of consideration amount for any specific service. See 1992(2) CPJ 395 NC (Four bench ruling) titled A. Srinivasa Murthy Versus The Chairman Bangalore Development Authority. State Commission is of the opinion that ruling given by Hon'ble National Consumer Commission cited supra is binding upon State Commission.
11. Proceedings under Consumer Protection Act 1986 are summary proceedings in nature. State Commission is of 7 O.P. Thakur Versus Shimla Municipal Corporation & Anr. F.A. No.15/2018 the opinion that present matter require elaborate inquiry by civil court and State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to adjudicate the matter between complainant and Municipal Corporation in a summary manner. Complainant has relinquished his relief against opposite party No.2 i.e. M/s. H.S Kochar and M.S. Kochar i.e. Landlords of premises in question.
12. Submission of learned Advocate appearing on behalf of Municipal Corporation that order of learned District Forum is in accordance with law and is in accordance with proved facts is decided accordingly. State Commission is of opinion that it is expedient in the ends of justice and on the principles of natural justice to relegate complainant to civil court for adjudication of his dispute against Municipal Corporation. In view of above stated facts and case law cited supra point No.1 is decided accordingly. Point No.2: Final Order
13. In view of findings upon point No.1 above complainant is relegated to civil court for adjudication of his dispute. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after 8 O.P. Thakur Versus Shimla Municipal Corporation & Anr. F.A. No.15/2018 due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Sunita Sharma Member 10.06.2019 KD* 9