State Consumer Disputes Redressal Commission
Md. Salim & Others vs Abu Hamza @ Md. Abu Hamza & Others on 30 September, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : FA/912/2012 (Arisen out of judgement and order dt. 01.11.2012 of DCDRF, Howrah, in Complaint Case No. HDF 81 of 2012) DATE OF FILING : 29.11.2012 DATE OF FINAL ORDER: 30.09.2013 APPELLANTS 1. Md. Salim S/o Md. Ishaque 2. Md. Sarfaraj Alam @ Md. Munna 3. Md. Afjal Both 2 & 3 are sons of Md. Ishaque @ Kallu 4. Salila Aktar W/o Akhtar Hussain 5. Parvin Aslam 6. Md. Akram 7. Md. Asif No. 5 wife, Nos. 6 & 7 sons of Md. Aslam. All are residing at 46 Alam Mistry Lane, P.S. Golabari, Dist. Howrah, Pin-711 101. RESPONDENTS 1. Abu Hamza @ Md. Abu Hamza S/o Late Md. Kamruddin Residing at 46, Alam MistryLane P.S. Golabari, Dist. Howrah Pin-711 101. 2. CESC Ltd. Having its office at CESC House Chowringhee Square, Kolkata-700 001. 3. District Engineer CESC Ltd. having its office At 433/1, G.T.Road(N), P.S. Golabari Dist. Howrah, Pin-711 101. BEFORE : MEMBER : MR. D.BHATTACHARYA MEMBER : MR. J.BAG FOR THE APPELLANTS : Mr. Dilip Kumar Das, Ld. Advocate FOR THE RESPONDENT : Mr. Shambhu Nath Pal, Ld. Advocate Mr. D.B.Chowdhury, Ld. Advocate : O R D E R :
MR. J.BAG, LD. MEMBER The present Appeal is directed against the Order dt. 01.11.2012 passed by the Ld. District Consumer Disputes Redressal Forum, Howrah, in Complaint Case No. HDF 81 of 2012, whereby Ld. Forum below allowed the complaint on contest against the OP Nos. 1 & 2 and dismissed without cost against rest of the Ops.
The complaint case, in brief, was as follows:
The complainant is a tenant under OP No. 3/Respondent No. 1 herein, living in a flat on 3rd Floor, Premises No. 46, Alam Mistry Lane, P.S. Golabari, District-Howrah. He applied to the OP/CESC for a separate electric connection with separate meter, vide Form No. 95577268202 and deposited a sum of Rs. 200/- only as earnest money on 21.5.2012 as per rules and formalities. Wiring was duly completed. Ops sent a notice for inspection, vide reference No. 06/10209/12(707) dated 11.5.2012 forwarding therewith one outstanding bill for February, 2001 standing in the name of Sk. Abdul Sattar of the same premises.
Inspection was held on 21.05.2012 and the complainant in compliance with the advice of Ops paid on 26.05.2012 Rs. 2,000/- only against the outstanding sum of Rs. 3,459/-only standing in the name of Sk. Abdul Sattar. Ops then sent a revised offer letter dated 10.03.2011 along with revised MASD bill of Rs. 960/- only which was duly paid/deposited on 31.05.2012. The complainant came to know from the letter dated 30.06.2012 of Ops that they could not be successful as the objection raised at site. In spite of request of the complainant, OP Nos. 1 & 2 failed to perform their duties and withheld installation of electric meter or effecting the necessary electric connection, allegedly, in collusion with the OP Nos. 3 to 9. For such act of harassment caused and delay in installation of the electric meter the complainant demanded Rs. 6,000/- (Six thousand) only from the OP Nos. 1 & 2 and prayed before the Ld. Forum below for orders directing the OP Nos. 1 & 2 to install the new meter as applied for with Police assistance, if necessary, and also for orders penalizing the OP Nos. 1 & 2 for their negligence and causing harassment to the complainant.
The complaint was contested by Ops by filing written versions. OP Nos. 1 & 2 in their written version stated that in spite of their attempts for installation of new meter (loop connection) could not be completed because of forcible and unauthorized objection raised at the site by the landlord, Md. Salim and other Ops (Nos. 3 to 9). They have no objection for installation of new meter through loop connection if other Ops are restrained.
OP Nos. 3 to 9 also filed separate written version denying each and every allegation/averment made in the petition and adding that the tenancy of the petitioner was determined by the Ld. 4th Civil Judge (Jr. Division) at Howrah and the petitioner has no right to get new electric line in the tenanted area.
Ld. Forum below observed that while There is no deficiency in service on the part of OP Nos. 1 & 2, CESC Limited, or no unfair trade practice being resorted to by them, the objection raised by the 3rd parties was the cause behind the failure of OP Nos. 1 & 2 to install the new meter. But electricity being a basic need of a civilized person, the landlord charging at high rate of energy consumption by the complainant the averments of OP Nos. 3 to 9 were not sustainable. In that view of the fact, the complaint was allowed against OP Nos. 1 & 2 and dismissed without cost against rest of the Ops. OP Nos. 1 & 2 were directed to provide new meter at the tenanted portion of the complainant with Police help, if necessary, and OP Nos. 3 to 9 were restrained from causing any disturbance during installation of new meter.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below the Appellant, Md. Salim, and 6 others have come up before this Commission challenging the impugned order on the point of jurisdiction of the Ld. Forum and also on the question of tenancy, as claimed by the complainant/Respondent, Abu Hamza @ Md. Abu Hamza.
Ld. Advocate appearing for the Appellants submitted that the Complainant/Respondent is no longer a tenant as an eviction order has been passed by the Ld. 4th Civil Judge (Jr. Division), Howrah, and though an appeal has been filed against such order, no stay has been granted. He is an unwanted and unauthorized occupant in their premises, but, still enjoying electricity from the landlords service connection. The Complainant/Respondent deserves no new meter in his unauthorisedly occupied place under the law of the land. Ld. Forums order is bad in law in so far as the legal aspects of the matter have been shown a back-seat putting a biased view in the front. The dispute is purely civil in nature and the complainant should have moved the proper Civil Court and more so, he is not a Consumer in the strict sense of the term. The Appellants are within their lawful right to resist any illegal activity/move on the part of the Complainant/Respondent. The impugned order should be set aside with costs.
Ld. Advocate appearing for the Respondent argued that the Complainant/Respondent has been a tenant under the Appellant/OP No. 1 from the year 1992. Though an eviction suit has been disposed of by the Ld. Judge, 4th Civil Court, Howrah, a stay petition against the order has not yet been decided and on the strength of an Agreement dt. 18.05.1992 between the Developer and the Landlady, the Respondent being tenant under the landlady was accorded the right to enjoy electricity at normal charges (Clause 16 of the Agreement) so long as separate meter is not obtained from/installed by CESC and to make his own arrangement for the supply of electricity connection from the CESC Ltd. (Clause 17 of the Agreement). Accordingly, the Appellants have no legal ground for objection to the installation of a new meter as applied for by the Complainant/Respondent. Ld. Forums order has been rightly passed and the same suffers from no illegality or jurisdictional error.
DECISION WITH REASONS:
We have carefully gone through the Appeal and the pleadings of both parties. Ld. Forums order is also perused.
Though Ld. Forum has found that there is no deficiency in service on the part of OP Nos. 1& 2 and no unfair trade practice has been committed by them, yet the complainant has been allowed against the said Ops. Again, it has been observed by the Ld. Forum below that charging at high rate of energy consumption so consumed by the Complainant at his tenanted portion by the landlord is the reason why he applied for separate electric meter in his own name at his tenanted portion. Whether the Complainant stood evicted by the order of the Ld. 4th Civil Judge (Jr. Division), Howrah, was not taken into consideration in spite of averment of OP Nos. 3 to 9 in this regard, which, in our considered view, was no less important in adjudicating the complaint. This issue has been strongly agitated over by the Appellants (OP Nos. 3 to 9) before us and we find the issue should have been properly addressed by the Ld. Forum below on the strength of evidence produced by the said Ops (3 to 9).
Further, whether the complaint as brought up against OP Nos. 3 to 9 was a Complaint as defined under Section 2/(c) of the Consumer Protection Act, 1986 or a complaint fit for trial by a Civil Court has not been given any consideration whatsoever before passing orders restraining the OP Nos. 3 to 9 (Appellants herein) from causing any disturbance during installation of new meter in spite of dismissal of the complaint case by the Ld. Forum against hose Ops. If the complaint stands dismissed against the Ops, it means the complaint has not been proved, and negligence/deficiency automatically stands disproved. In that situation how can they be restrained from acting against the Complainant.
This is an anomaly which needs to be considered by the Ld. Forum below.
We deem it prudent to send the matter in remand to the Ld. Forum below with the observations as above for fresh consideration of the case with fresh opportunities of hearing to both parties.
Hence, it is ORDERED that the case be sent back on remand to the Ld. Forum below for fresh adjudication with fresh opportunities of hearing to all parties as expeditiously as possible. The Appeal being allowed the impugned order stands set aside. There shall be no order as to costs.
MEMBER MEMBER