Smt. SUSMITA MISHRA, PRESIDENT.
This C.C Case No: 48/2021 is taken up today for order. The Complainant in this case is, Sri Lokanath Das, has filed this Consumer Complaint U/s 35 of the Consumer protection Act, 2019 seeking the following relief : -
“ Direct the O.P’s to evict the Tower from the scheduled land and further direct to pay a sum of Rs 3,00,000/- (Three Lakhs) only towards Compensation for damage of land, without permission install the tower, mental agony, physical torture, monetary loss etc.”
BRIEF FACTS OF THE CASE: -
1). The brief facts leading to the present Consumer complaint case in a nutshell are as under:
The Complainant’s land scheduled bearing Hal khata No: 03, Plot No: 42, Area Measuring Ac.O.08 decs, originally recorded in name of Lokanath Das, S/o Late Purna Chandra Das @ 6 annas and S.K Gayasuddin, S/o S.K Makim Bux, S.K Tahesin, S/o S.K Makim Bux @ 10 Annas interest and the scheduled plot is within one compound campus under Maouza : Neulpur Bazar, PS: Dharmasala, Tahasil: Dharmasala, Dist: Jajpur. The above said land scheduled has not been partitioned among the recorded tenant till date i.e. the Date of filing of the Consumer Complaint on 12.04.2021 before this commission. The Complainant stated that he had resides 42 Km distance from his native village and the above said land is fallen vacant without any disturbance from the side of other recorded tenant. The Complainant stated that one-day he had found one Airtel tower is standing over the scheduled plot without his knowledge. He became astonished about it and searched the location of such Airtel Office. In later period, the complainant had found the branch office runs at Jajpur Road, Dist:- Jajpur.
The Complainant went to the said Airtel office, Jajpur Road, Dist: Jajpur and given one written objection to install the Airtel tower over the scheduled land changing the nature and character by the employees of O.P. No. 1 & 2 without his consent / knowledge.
After that, the O.P. No. 2 promise to take necessary steps and given the damage compensation & monthly rent to the complainant .till the date of installment of tower over the scheduled land, within fifteen days (15 days), but in vain. The Complainant visit the office of O.P. No. 1 & 2 in several times for his grievance but every time the O.P No. 1 & 2 takes time giving false reason i.e. officer absent, they sent the grievance letter to the head office etc. The Complainant had served an legal notice to the O.P No. 2 through Regd. Post vide No: R0016762209IN on dt.04.03.2021. But no respond from the side of the O.P.No.2. Hence, the Complainant has filed the present complaint before this Commission for his grievance.
2. Notice was issued to the O.P.No.1 & 2 from this Commission and after receipt of the notice, the O.P.No.1 & 2 had filed their written version jointly through their learned counsel on 11.11.2021. On 20.09.2021, one Indus Tower Ltd filed an application U/Order 1, Rule 10 of the code of civil Procedure, 1908 to implead as a party along with Vakalatnama including Power of Attorney for which “No objection Memo” has filed by the Complainant on 21.10.2021. Consequently, the petition dated 20.09.2021 is allowed on 16.09.2022 and the intervener is directed to file written version on or before 06.10.2022 as necessary party namely “Indus Tower Ltd.” i.e. O.P. No.3. On 06.10.2022, the O.P. No.3 has filed an application challenging to the maintainability of complaint through their learned counsel.
3. The learned counsel for the O.P’s No. 1 & 2 stated that the Complaint petition is not maintainable because the complaint suffers from non-joinder of necessary parties. It is further submitted that no cause of action had ever arose against the O.Ps and in favour of the complainant. So the O.P.No.1 & 2 humbly submitted that the Complainant is not entitled for any relief. Hence, the present complaint is liable to be dismissed at this stage only with an exemplary cost.
On the other hand, O.P No. 3 has filed an application challenging to the maintainability of complaint through their counsel. Indus Towers Ltd, a company incorporated under the Companies Act, 1956 having its office at plot No: IDCO-C-3/2, Chandaka Industrial Estate, Po/P.S: Chandrasekharpur, Bhubaneswar, Dist: Khurdha. It is stated by the O.P.No.3 “Indus Towers Ltd.” that it is duly registered as an infrastructure provider Category-I (IP-I) from Government of India, Ministry of Communication & IT, Department of Telecommunication service by erecting the Telecom Towers. It is also admitted by the O.P. No. 3 is that the original opposite party (O.Ps No. 1 & 2) namely “Bharati Airtel Ltd” is one such independent Telecommunication Service Provider.
On the preliminary objection of maintainability of the
complaint, the O.P. No. 3 has simply submitted that the averments made in the complaint do not make out a dispute amenable under the Consumer protection Act, 2019. It is further submitted by the O.P No. 3 is that the erection of tower work which is the subject matter in question in the complaint as aforesaid is being undertaken as per Authority granted by the Department of Telecommunication, Govt. of India by the infrastructure provider Company and in the present case it is done by the “Indus Tower Ltd.” was formerly known as “ Bharati Infratel Ltd”.
Learned counsel on behalf of the O.P No. 3 is further submitted that “ Indus Tower Ltd” as per above Registration is authorized to erect the telecom infrastructure for use by various Telecom Service Provider and further carried on such assignment as per the central Government Advisory for State and the up-to-date guidelines of State Government being “Odisha Mobile Towers, OFC and related Telecom Infrastructure Policy,2017” . It is further submitted by the O.P.No.3 that the erection of the Tower by the O.Ps is meant for carrying out National objective and to cater public purpose and the service provided contributes to Telecom growth which is the National Objectives. Again it is submitted by the O.P.No.3 that the said Towers are the backbone of Cellular Mobile Telephony and are critical for providing seamless cellular services. The Central Government, therefore, have formulated policies for installation of Towers to remove any impediment to the growth of cellular Mobile services and to facilitate the growth of National Telecom.
It is stated by the O.P.No.3 that in the purported complaint the challenge in essence relating to said guidelines and advisory of Central Government and State Government, which are akin to statute in respect of erection of Telecom Towers. Further it is submitted by the O.P No. 3 that the complaint does not disclose a “Dispute” of “Cause of Action” to maintain a complaint under the consumer protection Act, 2019. Hence, the complaint being not maintainable in the eye of law, the petition challenging maintainability can be entertained even before filing of written Version and the Complaint may be dismissed raise by the O.P No. 3.
4 The Complainant filed his objection to reply the petition filed by the O.P. No 3 through his learned counsel on dt.09.12.2022. It is stated by the complainant that “Bharati Airtel Ltd.” and “Indus Tower Ltd.” are not the same. It is also stated by the Complainant that the Tower should be installed on his own land (Company’s own land) Govt. Land or after taking permission from any private land owner by the O.Ps. It is further stated by the complainant that the complainant being the landowner without his knowledge only for personal benefit of the O.P’s the landowner / Complainant should not be suffered. It is further stated by the complainant that regarding “Maintainability” there is no genuine ground led by the O.Ps. It is also stated by the Complainant that the O.P No. 3 only to lingering the proceeding has filed such type of petition. Hence, the petition dated 06.10.2022 should be rejected and direct for prepare fair argument to close the dispute.
5 The Complainant in support of his case has filed the copy of the R.O.R No: 03 in Mouza : Neulpur, Tahasil: Dharmasala, P.S: Dharmasala, Dist:- Jajpur vide Schedule I, Form No. 39-A on dt. 20.12.2020. (xerox copies attached), a copy of Legal Notice sent to O.P.No.1 & 2 with Postal Receipt vide No. R0016762209IN on dt.04.03.2021 (xerox copies attached).
On the other hand, the O.P. No.1 & 2 have not produced any documents in defence before this Commission. Whereas, the O.P. No.3 had produced two Leading Citation of the Hon’ble Supreme Court and the Hon’ble National Commission, New Delhi, respectively as follows :
- Lucknow Development Authority Vs. M.K. Gupta, AIR 1994 Supreme Court 787 and
- B.N. Virani Vs. Consumer Education & Research Society & ors, (1995) N.C. New Delhi.
Thereafter the evidence was closed.
6. We have heard the learned counsel appearing for both the parties, perused the materials available on record and given a thoughtful consideration to the various pleas raised by them.
7. In view of the complaint petition, written version of the O.P. No.1 & 2 and here the petition challenging maintainability of the complaint filed by the O.P.No.3 on 06.10.2022 consequently treated as written version for the interest of justice by this Commission, the only point for determination is “whether the complainant falls under the definition of ‘Consumer’ under the Consumer Protection Act, 2019. Other issues need not be necessary for answering to our findings.
8. While answering the aforesaid issue/question, the relevant provisions of the Act, 2019 which are relevant for our purpose, i.e. Section 2 (7) & Sec. 35 (I) (a) are required to be referred to.
“ The term “Consumer” has been defined in clause (7) of Sec.2 of the C.P. Act, 2019” . It includes a person who buys any goods or hires or avails of any service for consideration and user of such goods or any beneficiary of such services.
The definition of the term “Consumer” given in Sub-Section (7) of Section 2 is comprehensive one so as to cover not only ‘Consumer of Goods” but also ‘Consumer of Service’. The definition is wide enough to include in “Consumer” not only the person who buys any goods for consideration but also any user of such goods with the approval of the buyer. Similarly, it covers any person who hires or avails of any service for consideration and also includes any beneficiary of such services, when availed with the approval of the hirer. The important characteristics of “Goods” & “Services” under the Act, 2019 is that such goods or services are supplied at a price to cover the costs which consequently result in profit or income to the seller of goods or provider of service.
Thus, the definition may be analyzed and evaluated in two part Firstly, in reference to “Consumer of Goods” & secondly, in reference to “Consumer of Services”
- As per First Category, the provision under clause (i) of Section 2 (7) of the Act, 2019 reveals that the person claiming himself as “Consumer” should satisfy that:
- There must be sale transaction between the seller and buyer ;
- The sale must be of goods;
- the buying of goods must be for consideration;
- the consideration has been paid or promised; or under any system of deferred payment; and
- the user of the goods may also be a consumer when such use is made with the approval of the buyer.
- The second category of ‘Consumer’ laid down under the Act, 2019 is that of hirer or user of services has been defined under sub-clause (ii) of Section 2 (7) of the Act. Thus, in order to be a “Consumer” for the purpose of services, it is necessary that the services must have been hired or availed of for consideration. But it is not necessary to pay the consideration immediately, it may be paid afterwards or in installments. Thus, the definition should be understood as stating that ‘Consumer’ means “any person who avails or uses any service.”
Similarly, clause (a) of Section 35 (i) provides that a complaint may be filed by the consumer :-
- to who any goods are sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided; or
- who alleges unfair trade practice, in respect of such goods or services.”
Thus, any user of goods or any beneficiary of services, other than the actual buyer or hirer, is a ‘Consumer’ for the purpose of the Act and he is competent to make a complaint before the Consumer Disputes Redressal Commission under the Act. As per the aforesaid discussion, a ‘consumer’ is a person who avails or hires the services of another on payment of consideration either paid or promised to be paid. In the instant case, there is no strong evidence/document to shows that there is committed any lease. Agreement between the complainant and the O.Ps. The complainant raised his voice through his learned counsel to evict the above said mobile towers by the O.Ps. Thus, it is a question of eviction of the Telephonic Tower which is installed by the O.Ps without the consent/knowledge of the complainant from his residential land. In this regards, the O.P.No.1,2 & 3 have also not produced any documentary evidence.
The Appropriate Forum for redressal of any of his grievance, may be Appropriate Tribunal, if any, or Civil Court but certainly not a Forum/Consumer Commission under the C.P. Act2019. The complainant should first issue an eviction notice/application to the Appropriate Authority as per the Guidelines of “Odisha Mobile Towers, OFC(Optical Fibre Cable) and related Telecom Infrastructure Policy, 2017.”
Accordingly, the present consumer complaint as presented by the complainant is not maintainable as he is not a ‘Consumer’ U/s 2(7) of the C.P. Act, 2019 and as a result, the issue is answered against the complainant. As the complainant is not a ‘Consumer’ under the Act, 2019, accordingly, the complainant is not entitled to get any relief. Hence the order.
O R D E R.
The present C.C. Case is purely based on Civil nature and this Commission has no jurisdiction to adjudicate the same, but however, the complainant is at liberty to approach before Civil Court for due redressal of his grievance.
In the result, consumer complaint case bearing C.C. No.48/2021 is hereby dismissed on the ground that the complainant is not a consumer under the provision of C.P. Act, 2019. The C.C. Case is accordingly disposed of.
Issue extract of the order to the parties concerned.
Order pronounced in the Open Commission on this the 26th day of May 2023.
