RP/1412/2017
For the Petitioners                           :           Mr. Abhishek Chaudhary, Advocate

For the Respondent                                    :           Mr. Braj Kumar Upadhyay, Advocate

RP/2017/2017
For the Petitioners                           :           Mr. Braj Kumar Upadhyay, Advocate

For the Respondent                                    :           Mr. Abhishek Chaudhary, Advocate

PRONOUNCED ON :  11^th April, 2018

                                                              ORDER

            By this order, I propose to dispose of the above noted cross revision petitions against the order of the State Commission Uttar Pradesh dated 09.02.2017 in FA No.252 of 2016.

2.         Both the revision petitions have been filed after the expiry of period of limitation alongwith application for condonation of delay.  Delay in filing of revision petition is condoned.

3.         Briefly put, the facts relevant for the disposal of the revision petitions are that Bhartiya Varishtha Nagarik Samiti ( petitioner in RP No. 2017 of 2017 ( hereinafter referred to as complainant) filed a consumer  complaint in the District Forum Lucknow alleging that petitioner Society intended to hold conference on 22/23.11.2013 at Lucknow.  The complainant Society, therefore, applied vide letter dated 30.05.2013 for booking of Dr. Bhimrao  Ambedkar Auditorium, LDA Colony, Kanpur Road, Lucknow for holding the conference.  The Lucknow Development Authority ( hereinafter referred to as opposite party) vide letter dated 14.06.2017 gave confirmation for booking of Dr. Bhim Rao Ambedkar Auditorium in favour of the complainant for 22/23.11.2013 subject to the terms and conditions annexed with the confirmation letter.

4.         The complainant Society pursuant to the information regarding confirmation of booking deposited security amount of Rs.20,000/- besides sum of Rs.2,71,911/- on 08.07.2013 and Rs.4,02,249/- on 31.10.2013 in UCO Bank, Lucknow branch through challans in favour of the opposite party Authority.  It is alleged that on 07.11.2013, the opposite party telephonically informed the complainant that the allotment in favour of the complainant Society has  been cancelled.  The Complainant had made arrangements for the scheduled conference and for that purpose banners and pamphlets have been published and hotels have been booked for accommodating the guests and the participants.    It was difficult for the complainant to arrange for an alternative venue for the conference.  Therefore, the complainant accepted the offer of the opposite party for booking of auditorium in Indira Gandhi  Partishthan, Gomti Nagar, Lucknow.  The said acceptance, however, was subject to the condition that the opposite party will compensate the complainant for loss of more than Rs.2.00 lakhs suffered on account of abrupt cancellation of allotment of Dr. Bhim Rao Ambedkar Auditorium.

5.         It is alleged that opposite party vide letter dated 13.11.2013 intimated the complainant Samiti about the adjustment of money deposited by the complainant for reservation / booking of Dr. Bhim Rao Ambedkar Auditorium but the contents of the said letter were totally contrary to the letter of the complainant dated 07.11.2013.  The complainant Samiti never requested the opposite party for booking of lawn no.1 nor was any such booking mentioned in the letter dated 08.11.2013 of the opposite party. 

6.         It is further alleged that the opposite party despite cancelling the booking of Dr. Bhim  Rao Ambedkar Auditorium has forfeited Rs.74160/- as service tax out of the total amount of Rs.6,94,160/-. The complainant Samiti repeatedly requested the opposite party to pay compensation for the loss suffered because of abrupt change in the venue and also for refund of Rs.74,160/- but in vain.  The opposite party vide letter dated 20.07.2014 refused to pay any amount of compensation or refund to the complainant.

7.         Being aggrieved by the conduct of the opposite party, the complainant approached the District Forum Lucknow by filing consumer complaint seeking following reliefs:

“i.         To return Service Tax of Rs.74,160/- to the complainant with 18% interest;

ii.         To pay Rs.1,50,000/- illegally collected by the opposite parties as two days rent of the lawn to the complainant with 18% interest;

iii.        To pay Rs.5,00,000/- with 18% interest to the complainant as compensation for financial loss suffered by the complainant for printing banners, posters, pamphlets etc and hotel bookings for guests / visitors;

iv.        To pay Rs.10,00,000/- to the complainant as compensation for mental agony and physical harassment.”

8.         The opposite party on being served with the notice of the complaint has filed written statement wherein it was pleaded that in the letter confirming the booking date14.06.2013, it was clearly mentioned that the allotment / booking can be cancelled at any time without any prior notice; that because of scheduled programme of Hon’ble Chief Minister on 22.11.2013 and 23.11.2013, the authority was constrained to cancel the allotment in favour of the complainant.  It is alleged that alternative venue was suggested to the complainant and which was booked by the complainant where the conference was held. Therefore, the opposite party cannot be faulted.  It is further alleged that complainant Society does not fall within the definition of ‘consumer’ and the opposite party has not committed any deficiency in service.

9.         District Forum on consideration of pleadings and evidence partly allowed the complaint and directed the opposite parties singly and jointly to pay a sum of  Rs.5,71,232/- to the complainant within a period of two months failing which it was ordered that amount shall carry interest @ 6% p.a. till the date of realization. 

10.       The opposite party not being satisfied with the order of the District forum approached the State Commission in appeal.  The State Commission Uttar Pradesh on re-appreciation of evidence partly allowed the appeal preferred by the opposite party and modified the order of the District Forum by directing the opposite party to pay  to the complainant within two months sum of Rs.2,24,160/- @ 9% p.a. from the date of institution of complaint  till actual realization of the amount.

11.       Both the parties not being satisfied with the order of the State Commission has preferred the above noted revision petitions.

12.       I have heard learned counsel for the parties and perused the record.

13.       It is contended by learned counsel for the opposite party / Authority that the impugned order of the State Commission is without jurisdiction because State Commission has failed to appreciate that complainant Samiti is not a consumer as defined under section 2 (1) (d) of the Act.

14.       Section 2 (1) (d) of the Act defines the term ‘consumer’ as under:

(d)     "consumer" means any person who—

(i)      buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii)      hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

15.       On reading of the above, it is clear that a person is a consumer who buys any goods or hires or avails of any service for a consideration whether paid or partly paid or promised to be paid.

16.       This is not the case of purchase of goods.   Therefore, it is to be seen whether or not the complainant Samiti has hired or availed of services of the opposite party / Authority for consideration?

17.       In order to find answer to this question, it would be useful to have a look on the letter dated 14.06.2013 addressed by the opposite party / Authority to the complainant Samiti. The contents of the letter is reproduced as under:

“Sir,

            Kindly refer to your letter no. bhawana/conference – 2013/A/ 106 dated 30.05.2013 which is in relation to allotment of Dr Bhimrao Ambedkar Auditorium form 22^nd and 23^rd November 2013. It is informed that Dr Bhimrao Ambedkar Auditorium is allotted for 22^nd and 23^rd November 2013 vide order date 11.06.2013 of Upper Sachiv, Lucknow Development Authority under following conditions:

1. Responsibility of safety of equipment installed in auditorium and other property of auditorium will be of yours;

2. Rent of auditorium will be Rs.6,74,160/- @ Rs6,00,000/- including service tax of Rs.74,160/- which will be payable through DD in favour of Sachiv. L D A;

3. Additional amount of Rs.20,000/- in form of FDR is required to be deposited as guarantee in favour of Sachiv will be returned after over conference. In case of loss it will be adjusted from guarantee;

4. Because of any reason if the loss is more than the amount of guarantee then it be fulfilled by your firm;

5. This allotment can be cancelled at any time without prior information;

6. The programme should be completely non-political and the responsibility of repair of damages will be yours;

7. Before launching the programme the permission will be taken by you from Lucknow administration.”

18.       On bare reading of the above, it is clear that opposite party / Authority had agreed to give auditorium on hire on license basis  to the complainant Samiti for holding the conference on 22^nd & 23^rd November, 2013 subject to the condition detailed thereunder.  After going through the conditions detailed in the letter, the opposite party / Authority had not promised any service to the complainant / Samiti  and it was a case of allotment of auditorium on license basis on payment of rent.  As the opposite party has not promised to render any service to the complainant, this is not a case of hiring or availing of service by the complainant.  As such, complainant Samiti cannot be termed as ‘consumer’ as envisaged under section 2 (1) (d) of the Act.  That being the case, complainant Samiti has no locus standi to maintain the consumer dispute.  The Fora below obviously has ignored this aspect of the matter.  Therefore, impugned order is liable to be set aside being without jurisdiction.

19.       Even if for the sake of arguments, it is assumed that complainant Samiti is a consumer, then also, cancellation of allotment by the opposite party cannot be termed as deficiency in service because clause 5 of the allotment letter makes it clear that allotment could be cancelled at any time without prior information.  The opposite party in its written statement has categorically stated  that allotment of Bhim Rao  Ambedkar Auditorium in favour of the complainant had to be cancelled because of programme of Hon’ble Chief Minister scheduled on 22^nd and 23^rd November, 2011.  Not only this, the opposite party got an alternate auditorium allotted in favour of the complainant where the complainant held its conference.  Therefore, even on merits, it is clear that cancellation of allotment was in terms of allotment letter and it cannot be termed as deficiency in service.

20.       In view of the discussion above, impugned order of the State  Commission cannot be sustained.  I accordingly, allow revision petition no. 1412/2017 filed by Lucknow Development Authority, set aside the impugned order and dismiss the complaint.  As a result, Revision Petition No. 2017 of 2017 filed by the complainant seeking enhancement of compensation is also dismissed.