DATE OF FILING : 13-01-2011.
DATE OF FINAL ORDER : 05-05-2011.
Nayeem Iqbal,
son of Abdul Rouf,
of 18/1, Roshan Guldar Lane and also at
57, Jolapara Masjid Lane,
P.S. & District –Howrah---------------------------------------------------- COMPLAINANT.
Versus -
1. The CESC Ltd.,
represented by the District Engineer,
having its Zonal Office at 433/1, G.T. Road ( North ),
P.S. Golabari, District – Howrah,
PIN – 711101.
2. The CESC Ltd.,
Poddar Court Building,
10, Rabindra Sarani,
Kolkata – 700 001.
3. The CESC Ltd.,
having its head office known as Victoria House
situated at Chowringhee Square,
PIN – 700001.
4. Mujibar Rahaman,
son of Late Osman Gani,
of 18/1, Roshan Guldar Lane,
P.S. and District – Howrah,
PIN – 711101.-----------------------------------------------------OPPOSITE PARTIES.
P R E S E N T
Hon’ble President : Shri J. N. Ray.
Hon’ble Member : Smt. Samiksha Bhattacharya.
C O U N S E L
Representatives for the complainant : Shri Subir Kumar Dutta,
Shri Sukanta Naskar,
Ld. Advocates.
Representatives for the opposite party nos. 1 , 2 & 3
: Shri Abhijit Bagchi,
Smt. Kakali Mitra,
Ld. Advocates.
Representative for the opposite party no. 4 : Shri Prasant Thakur,
Ld. Advocate.
F I N A L O R D E R
This is to consider an application U/S 12 of the C. P. Act, 1986 and amended till
date filed by one Nayeem Iqbal, resident of 18/1, Roshan Guldar Lane and also at 57, Jolapara Masjid Lane, P.S. & District – Howrah, against the CESC Ltd. and others alleging deficiency in service.
The case of the complainant is that in terms of agreement dated 24-06-2009 he took tenancy in respect of a room measuring 213 sq. ft. more or less with common bath and privy in the ground floor within the premises comprised within the Howrah Municipal Corporation holding no. 18/1, Roshan Guldar Lane, at a monthly rental of Rs. 340/- per month payable within seven days of every English Calendar month for commercial purpose from the owner / landlord, o.p. no. 4, Mujibar Rahaman, and paid up to date monthly rent for carrying out his business under the name and style M/S. Tip Top Chain Centre. He also took all requisite licences from different authority and trade licence from Howrah Municipal Corporation and have purchased machineries, xerox copies of the bills have already made as Annexures P/3 and P/4. The complainant with a view to get electricity applied before the O.P. no. 1 with the load of 4 KW ( industrial ) and as per demand of the O.P. no. 1 complainant paid the requisite amount towards different trades in total Rs. 12,610/-. In spite of receiving the said amount the CESC Ltd. intentionally failed and neglected in supplying the electricity to the complainant and did not install the electric meter to the complainant in spite of showing free access on the plea of civil suit. It is alleged that the landlord / owner, the O.P. no. 4, in collusion with his brother provoked them to file a title suit being T.S. No. 122 of 2010 against the complainant including the O.P. no. 4, Mujibar Rahaman, as party and prayed for injunction which has been refused to grant by the Ld. Court, even in spite of initiating proceeding U/S 144 Cr. P. C. by the landlord against the complainant. Ld. Executive Magistrate on the basis of police report has been pleased to drop the proceeding vide M.P. Case No. 613 of 2010. It is contended that the complainant could not start his manufacturing job for want of electric meter and is suffering due to gross negligence by the Electricity Department. As a result the complainant suffering mental agony and harassment for the deficiency in service of the O.P. no. 1. So he compelled to file the present case against the O.Ps. for relief.
On receipt of the notice both the electricity department and the O.P. no. 4, Mujibar Rahaman, appeared and contested the case by filing written version. The O.Ps. no. 1 to 3, Electricity Department, has contended that the complaint petition under objection is not maintainable in law and facts as well. It is also contended that the complainant is not a consumer within the meaning, scope and ambit of Consumer Protection Act inasmuch as the complainant applied for industrial and commercial purpose for running his work and as such this Forum has no jurisdiction to try the instant case. It is also contended that the dispute involved in the instant case is civil in nature and next to be tried by Civil Court of competent jurisdiction and the complainant has not come before this Forum with clean hands and as such he is not entitled to get relief as prayed for. It is further contended that the O.Ps. no. 1 to 3 acted as per mandate of the statute and on bonafide good faith after getting the request for industrial load from the complainant and process the same as per mandate of the statute and thereafter tried to install the meter in favour of the complainant on several occasions but failed to do the same due to the objection raised at the site by the landlord and his brothers. Accordingly on 05-01-2010 the electricity department intimated to the applicant for arranging access to the meter board position for effecting supply but no access has been given from the side of the complainant as yet and there is no deficiency of service on the part of the O.P. i.e., CESC Department. So it is prayed for dismissal of the complaint petition against the O.Ps.
The O.P. no. 4, Mujibar Rahaman, also contested the case by filing written version stating that the complaint is not maintainable either in law or in fact and this Forum has no jurisdiction to try the dispute which is come under the commercial / industrial dispute. It is also contended on behalf of the O.P. no. 4, Mujibar Rahaman, that the instant case cannot be maintained against the O.P. at all.
Point for determination is that whether the application is to be allowed or not ?
DECISION WITH REASONS :
Admittedly the complainant applied for electricity in his tenanted room for commercial purpose i.e, for running his workshop. It is also admitted that he has not made any pleading showing that he is running the business for livelihood by means of self employment. Only he has filed papers i.e., the certificate obtained from Council No. 20 of Howrah Municipal Corporation that the business of the complainant is the only source of income of his livelihood and it is a self employment. Besides, no other document has been filed showing such self employment certificate showing the source of income of his livelihood. It is condition precedent under the Consumer Protection Act, that the business should be the only source of income of his livelihood by means of self employment. In this case the proper supported document is wanting. Mere furnishing a certificate by councilor would not suffice. The tenancy agreement is clearly shows that he took out the workshop measuring 213 sq. ft. for commercial purpose and applied for electricity with the CESC under the load 4 KW. ( IND ). Other papers filed by the complainant showing taking licence from the corporation for running the business. It is submitted that the complainant applied for industrial and commercial purpose for running his workshop and the instant case is not a consumer dispute within the meaning, scope and ambit of Consumer Protection Act, 1986. But it is civil in nature.
Thus having heard on both sides and also considering the papers on record we are of the view that the complainant is not a consumer within the meaning, scope and ambit of Consumer Protection Act and as such this Forum has no jurisdiction to give any relief in the instant case. So there is no case arises to attract the deficiency in service on the part of the O.Ps. no. 1 to 3 i.e., the electricity department. From the records it appears that there is a civil suit being T.S. No. 122 of 2010 is pending between the private parties and the complainant himself responsible for not having supply in his favour inasmuch as he failed to arrange free access to the meter board position. Thus we are of the view that the instant case is absolutely misconceived, speculative and designed to harass a public utility concern. The instant case is, therefore, liable to be dismissed against the O.Ps.
Points under consideration are accordingly decided.
