State Consumer Disputes Redressal Commission
The Solapur Municipal Corporation vs Bhartiya Janata Party Thru Shri Kishor ... on 13 August, 2008
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI FIRST APPEAL NO. 187 OF 2006 Date of filing : 02/01/2006 @ MISC. APPL. NO. 211 OF 2006 Date of order : 13/08/2008 IN CONSUMER COMPLAINT NO. 82 OF 2004 DISTRICT CONSUMER FORUM : SOLAPUR The Solapur Municipal Corporation Solapur, thru its Asstt. Commissioner, Indrabhavan, Park Chowk, Solapur. Appellant/org. O.P. V/s. Bhartiya Janata Party thru Shri Kishor Anant Deshpande, R/o. North Kasaba, Tilak Chowk, Solapur. Respondent/org. complainant Corum : Shri P.N. Kashalkar, Honble Presiding Judicial Member
Smt. S.P. Lale, Honble Member Present: Mr.Anand Kulkarni, Advocate for the appellant.
Mr.D.V. Sutar, Advocate for the respondent.
- : ORDER :-
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member Being aggrieved by the judgement passed by District Consumer Forum Solapur in consumer complaint No.82/2004 decided on 24/11/2005 whereby while allowing the complaint, the Forum below directed the Solapur Municipal Corporation to refund the amount of Rs.1,350/- to the complainant and further to pay amount of Rs.38,100/- to the complainant and Rs.3,000/- towards mental agony and Rs.500/- towards cost. The Solapur Municipal Corporation has filed this appeal challenging the said award.
The facts lie in narrow compass.
The Bhartiya Janata Party, Solapur through its President Mr.Kishor Anant Deshpande filed consumer complaint alleging that on 15/03/2004 the National Leader of Bhartiya Janata Party, the then Deputy Prime Minister Mr.L.K. Advani was coming to Solpaur in the course of his Bharat Uday Yatra. The Bhartiya Janata Party, Local Unit wanted to give him due welcome and therefore they wanted to erect Arches in all the squares of Solapur and therefore, through Municipal Councilor Shri Jagdish Patil, they deposited Rs.1,350/- with Solapur Corporation on 15/03/2004 as fee and on the evening of 14/03/2004 those Arches were being constructed or erected. On 15/03/2004 receipt was given for the payment received by the Corporation on the earlier day. When they have erecting Arches on the evening of 14/03/2004 at about 8.30 p.m. the Corporation Officials notified the Bhartiya Janata Party, Solapur to remove those Arches erected illegally, otherwise after 12.00 a.m., they would dismantle the Arches. At 11.00 p.m. letter was sent to the Municipal Corporation through its Grievance Cell, but no cognizance was taken and by 12.30 a.m. the Corporation Officials dismantled those Arches. The Bhartiya Janata Partys Office Bearers lodged the report with the Jail Road Police Station, Solapur. But the Police did not take any cognizance. They pleaded that because of removal of Arches there was rumour spread in Solapur that Bharat Uday Yatra had been cancelled and therefore they suffered irrecoverable loss and they could not collect good amount of gathering for the Bharat Uday Yatra of Mr.Advani. They pleaded that even after payment of fee the Corporation Officials highhandedly dismantled their Arches and therefore they suffered mental and physical pain. They had paid Rs.43,000/- to two Contractors for erecting these Arches. They suffered damages of Rs.43,000/- + fee paid to the Corporation. Hence, they claimed Rs.4 Lakhs as compensation and Rs.3,000/- towards cost from the Solapur Municipal Corporation.
The O.P. filed written statement and denied the averments made by the complainant. The O.P. pleaded that the complainant cannot be a consumer and dispute between them cannot be a consumer dispute. The O.P. pleaded that the Bhartiya Janata Party, Solapur had taken permission to erect Arches at 27 places. But, in fact misusing the permission granted, they erected in all 65 Arches and thereby they had also violated the Election Commissions directions in this behalf and because they had not removed the Arches despite directions given, the Officials had removed those Arches at night time. They pleaded specifically that though they were having permission to erect 27 Arches, the complainant had erected 65 Arches and therefore they had dismantled those Arches. They further pleaded that erection of Arches was in contravention of Election Commissions directions issued on 14/03/2004.
On hearing both the parties and on perusal of the documents and the affidavits of parties, the Learned District Consumer Forum found fault with the Solapur Municipal Corporation because they had collected Rs.1,350/- from the Bhartiya Janata Party, Solapur and they had dismantled their Arches at the midnight of 14/03/2004. The Forum below also found that the Bhartiya Janata Party, Solapur had incurred expenses of Rs.38,100/- for procuring material for raising Arches, for paying charges to Raj Mandap Contractor and Sachin Pravin Mandap Contractor. The Forum below therefore came down heavily against the Solapur Municipal Corporation and directed to pay an amount of Rs.38,100/- cost of these Arches and cotton cloths used for those Arches. The forum below also directed to pay Rs.3,000/- to the complainant by way of compensation for mental agony and Rs.500/- by way of cost. Aggrieved by this order, the Solapur Municipal Corporation has filed this appeal.
We heard submissions of Mr.Anand Kulkarni, Advocate for the appellant- Municipal Corporation and Mr.D.V. Sutar, Advocate for the respondent/org. complainant.
We are finding that the order passed by the Forum below is patently illegal and cannot be allowed to sustain in law. The Forum below lost sight of the fact that the Bhartiya Janata Party, Solapur was respondent, who had filed complaint whereas the amount for the Arches was deposited by the Municipal Councilor Mr.Jagdish Patil. So, if at all there was any consumer dispute, it was Mr.Jagdish Patil, who could have filed consumer complaint. But, the consumer complaint was filed in the Forum below by the Bhartiya Janata Party, Solapur through its President Shri Kishor Anant Deshpande. So, Shri Kishor Anant Deshpande, President of Bhartiya Janata Party, Solapur cannot be a consumer because he had not paid charges to the appellant-Municipal Corporation for erection of Arches.
Secondly, there cannot be a consumer dispute between the Bhartiya Janata Party (Political Party) and the Municipal Corporation. It cannot fall within the definition of a person as defined in Section 2(1)(d) of Consumer Protection Act, 1986. Even it cannot come under the definition of Section 2(1)(b) in which the complainant is defined. Thus, in any view of the matter, Bhartiya Janata Party, Solapur through its President Mr.Kishor Anant Deshpande cannot file consumer complaint for the alleged deficiency when the cause of action accrued only to Mr.Jagdish Patil, who has deposited an amount of Rs.1,350/-. So, on this ground alone, the complaint should have been dismissed by the Forum below.
Thirdly, according to the appellant-Corporation, the amount was collected for 27 Arches to be erected by Mr.Jagdish Patil, but actually, the Arches erected were found to be 67 and without permission of the Election Commission, because at that time Code of Conduct was in force in view of ensuing election. According to the Corporation, the Election Officials had directed it to remove the Arches illegally erected by them. So, they acted as per directions of the Election Commission Officials. When the Corporation acted in terms of directions issued by the Election Commission, its actions are legal and cannot be called in question by filing consumer complaint like this. On this ground too the complaint should have been dismissed by the Forum below.
Lastly, in the course of arguments, Counsel for the appellant brought to our notice the fact that Mr.Jagdish Patil had filed an application to the Divisional Officer, Solapur Municipal Corporation on 06/04/2004 and sought refund of Rs.1,350/- since the Arches were removed by the Corporation and he was given refund. When, he was given refund on 06/04/2004, filing of consumer complaint by Bhartiya Janata Party, Solapur after two days was improper and inequitable. The Forum below should have considered this aspect in the right perspective. This fact was simply overlooked by the Forum below and therefore, we are finding that the order passed by the Forum below allowing the complaint is per se bad in law. There was no basis for allowing the complaint filed by the Bhartiya Janata Party, Solapur against the appellant herein. In the result, we pass the following order:-
-: ORDER :-
1. Appeal is allowed. The impugned order is quashed and set aside.
Complaint is dismissed.
2. Both parties are left to bear their own costs.
3. Misc. Appl. No.211/2006, which is for stay stands disposed of.
4. Amount of Rs.25,000/- deposited by the appellant be refunded to the appellant.
5. Copies of the order be furnished to the parties.
(S. P. Lale) (P.N. Kashalkar) Member Presiding Judicial Member dd.