National Consumer Disputes Redressal
Delhi Cantonment Board,Mr.Bipin Kr. ... vs S.K. Kapoor & Associates, Mr.Rajiv ... on 26 October, 2005
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI REVISION PETITION NO. 2501 OF 2004 (From the order dated 8.10.04 in Appeal No.242/95 of the State Commission, Delhi) Delhi Cantonment Board Petitioner Versus S.K. Kapoor & Associates Respondent REVISION PETITION NO. 2669 OF 2004 (From the order dated 10.8.04 in Appeal No.242/95 of the State Commission, Delhi) S.K. Kapoor & Associates Petitioner Versus Delhi Cantonment Board Respondent BEFORE: HONBLE MR. JUSTICE M.B. SHAH, PRESIDENT MRS. RAJYALAKSHMI RAO, MEMBER For Delhi Cantonment Board : Mr.Bipin Kr. Dwivedi, Advocate For S.K. Kapoor & Associates : Mr.Rajiv Sharma, Advocate DATED: 26.10.2005 O R D E R
M.B. SHAH, J., PRESIDENT In tis case, the Complainant was allotted a shop in a commercial complex, Sadar Bazar, Delhi Cantonment, on lease in auction held on 7.12.1994 by the Delhi Cantonment Board. The Complainant, in terms of the Agreement, deposited Rs.3,03,000/- towards security deposit. As per the terms of the lease deed the interest earned on that amount would be adjusted towards monthly rent of Rs.2,525/-. The lease deed was executed on 21.6.1995 and possession of the shop was handed over on the same date. The contention of the Complainant is that the complex is not provided with the basic facilities, such as water, toilets and electricity. His application to the DESU for grant of electric connection was turned down for the reason that the complex was in unelectrified area and hence the electric connection could not be sanctioned. In addition to this, the Board has also not deposited the required charges with the DESU for this purpose. Hence, feeling aggrieved by the attitude of the Board in failing to provide the basic amenities, the Complainant approached the District Forum, praying for a direction to the Board: (i) to pay interest on the security deposit at bank rate from 7.12.1994; (ii) not to deduct rent till the electric connection was installed; and (iii) to pay Rs.15,000/- p.m. towards subsistence allowance for the loss suffered by him.
The Board did not contest the matter before the District Forum. Hence, the District Forum passed an ex-parte order.
The District Forum on finding from letter dated 14.9.1995 of the Executive Engineer of the DESU that the Complex lay in unelectrified area held that this fact was not told to the allottee of the shop (Complainant). Another letter dated 25.10.1996 of the Commercial Officer (DESU) states that the Board had not handed over LT Room to DESU and as such electric connection could not be released in favour of the allottees. The District Forum further held that the Complainant could not get connection till 8.5.1997. In view of the above findings, the District Forum directed the Board not to charge rent from the Complainant till 8.5.1997, the date on which the Complainant was sanctioned electric connection; to refund to the Complainant Rs.2,525/- p.m., that has been received from him towards rent from 21.6.1995 to 8.5.1997; to pay a compensation of Rs.5,000/- to the Complainant; and (iv) pay costs of Rs.1,000/-, but the District Forum disallowed the prayer of the Complainant for grant of interest on the deposited amount of Rs.3,03,000/-, as the lease deed did not permit payment of interest on the deposited amount.
Feeling aggrieved, the Board went in appeal to the State Commission. Before the State Commission the Board placed reliance on the decision, P.Gopala Subramaniam Vs. Vice Chairman, A.P.H.B., Hyderabad reported as 1995 (2) CPR 409. The State Commission held that it was a case of delayed possession and in the present case possession of the shop was given at the time of agreement, but for two long years the Appellant (Board) did not provide any water, toilet and electricity facility, and, that such an act on the part of the Appellant amounts to gross deficiency in service. The State Commission has also held that admittedly the complainant was in possession of the shop for the period from 21.6.1995 to 8.5.1997 and, therefore, the direction to refund the rent cannot be justified. The State Commission negatived the contention that complaint was not maintainable as this was simplicitor a dispute between a landlord and the tenant with regard to non-supply of electricity and other facilities. In view of the discussion, the State Commission directed the Appellant top pay a lump sum amount of Rs.35,000/-
towards compensation and dismissed the appeal.
Against that order dated 8.10.2004 passed by the State Commission, Delhi, Delhi Cantonment Board has preferred Revision Petition No.2501/2004 and the complainant has preferred Revision Petition No.2669/2004 before this Commission.
We have exhaustively heard the learned counsel for the parties. As per the record, Delhi Cantonment Board has constructed a commercial complex. Shops were auctioned by it. The question is, whether the complaint under the Consumer Protection Act, would be maintainable or not. As per Section 2(1)(d)
(ii) consumer inter alia means a person who avails of any service for consideration. The word service is defined under Section 2(1)(o) to mean service of any description which is made available to potential users and includes . facilities in connection with housing construction.
Therefore, the question is whether non-construction of toilets, and panel room and laying of cable for getting electricity, are the facilities connected with the housing or commercial complex.
This question can be looked into from the angle, whether before auctioning the shops in commercial complex the Cantonment Board was required to see that amenities are made available or not. Admittedly, basic facilities or amenities such as toilets, L.T. Room for getting electricity connection and laying down the cable for it are required to be provided. This cannot be avoided and it is connected with housing construction.
The word housing construction was interpreted by the Apex Court by giving a wider meaning in Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243. It was held that construction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire services of a builder or contractor. The latter being for consideration is service as defined in the Act. Similarly when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act. The Court also held that a person who applies for allotment of a building site or for a flat constructed by the development authority or enters into an agreement with a builder or a contractor is a potential user and nature of transaction is covered in the expression service of any description. It further indicates that the definition is not exhaustive. The inclusive clause succeeded in widening its scope but not exhausting the servicees which could be covered in earlier part. So any service except when it is free of charge or under a constraint of personal service is included in it. Since housing activity is a service it was covered in the clause as it stood before 1993.
Further, Condition No.20 of Lease Deed provides that during the time premises is occupied by the allottee internal white wash / colour wash / painting, annual repairs to keep the premises in good condition shall be the responsibility of the allottee. Similarly Condition No. 27 provides the over all control and supervision of the commercial unit shall remain with the Delhi Cantonment Board whose officials shall at all reasonable hour be entitled to inspect the premises with respect to its bona fide use and in connection with the fulfilment of other terms and conditions of the lease. It is also provided in Condition No. 31 that premises is required to be maintained in neat and clean by the allottee and the premises are subject to health inspection by the officials of the Cantonment Board periodically. This cannot be achieved, if the basic facilities are not provided by the Cantonment Board.
Therefore, it is apparent that maintenance of the shop internally is to be done by the allottee while the external facilities are to be provided by the Cantonment Board. As this was not provided, it is deficiency in service. Hence it cannot be held that the Complainant is not consumer within the meaning of the Consumer Protection Act.
Learned Counsel for the Cantonment Board referred to the decisions of this Commission in Shiela Construction Pvt. Ltd. & Anr. Vs. Nainital Lake Development Authority & Ors, (III (1996) CPJ II) and Tamil Nadu Board Vs. R.Sivasubramaniam [III 1998) CPJ 39].
In Tamil Nadu Housing Board Vs. R.Siva Subramaniayam, the Complainant Mr.R.Siva Subramaniayam was allotted a plot in auction. Thereafter, the same plot was divided into two and had been allotted to two different persons. Hence, he had gone to High Court in W.P. Thereafter, the Board allotted another plot to him. In this case, the complaint before the State Commission was for award of interest on the amounts of instalments he had paid to the Board till the date of obtaining possession. The Complainant obtained possession after he had gone to High Court for this purpose. He has also claimed Rs.4 lakhs for compensation and Rs.4 lakhs for business loss. The State Commission awarded Rs.1,64,934/- by way of interest on the amounts deposited by him with costs and compensation. The National Commission, in appeal by the Board, relying on the Shiela Construction case dismissed the Complaint. The National Commission observed:
. that Consumer Fora cannot grant any relief in matters where the transaction has arisen out of auction sale which is tantamount to outright sale of immovable property and, therefore, there is no arrangement of hiring of service for consideration between the parties.
In Shiela Construction case, the plots purchased in auction were not connected with link roads. But, at the directions of the National Commission, the auctioning authority i.e. the Nainital Lake Development Authority, constructed the link roads and the Complainants had also paid the amounts due to the Authority. These directions were given by the National Commission without going into the merits of the case for the reasons that (i) the complainants had purchased the plots in an auction; and there is no hiring of service for consideration when it is an outright sale of immovable property; (ii) the second reason that the case was involved in complicated questions of facts and hence the parties were asked to approach civil court.
From the above two cases, it is clear that the National Commission has not gone into the merits of the cases and decided them.
In our view, the facts of the present case are totally different. The burden of internal maintenance of the shop is on the lessee, while the Board was required to provide water, toilets, L.T. Room for getting electricity connection and laying down of the cable for it. Individual consumer who is a lessee of the shop cannot get electricity connection by constructing L.T. Room at his cost.
In this view of the above discussion, the revision petition filed by the Cantonment Board is dismissed. With regard to the revision petition filed by the Complainant, in our view, the order passed by the State Commission cannot be said to be in any way erroneous. The State Commission has directed refund of the amount of Rs.35,000/- even though the Complainant was in possession of the shop. Admittedly, the said shop is transferred by the Complainant during the pendency of these proceedings. In the result, both the Revision Petitions are dismissed.
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(M.B.SHAH) PRESIDENT Sd/-
(RAJYALAKSHMI RAO) MEMBER