Karnataka

Kolar

CC/62/2019

Sri.K.Ravi Kumar - Complainant(s)

Versus

Managing Director, MSIL - Opp.Party(s)

Sri.T.G.Byregowda

14 Feb 2020

ORDER

Date of Filing: 14.10.2019

Date of Disposal: 14.02.2020

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 14^TH DAY OF FEBRUARY 2020

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

 

C.C.NO.62 OF 2019

Sri K. Ravikumar,

S/o Late Krishnappa,

Aged about 40 years,

R/o Markondapura Village,

Vokkaleri Hobli,

Kolar Taluk.        

(Rep. by Sri.T.G. Byre Gowda, Advocate)                         ….  Complainant.

- V/s -

1) Managing Director,

MSIL, House No.36,

Cunningham Road,

Bangalore-560 052.

(Rep. by Kusuma.M, Advocate)

 

2) Assistant Excise Commissioner,

Excise Office, Near Old DC Office,

Kolar Taluk and District,

Kolar – 563 101.

(Rep. by District Government Pleader)                                  ….. Opposite Parties.

ORDER

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT

01.   The complainant has filed this Consumer Complaint against opposite parties and prays to direct the OPs to open MSIL shop in the shops constructed by the complainant and damages of Rs.4,00,000/- and such other reliefs.

02.   The brief facts of the complainant case is that, he approached the OPs to open MSIL shop at Vakkaleri and as per their assurance he has constructed shops in his land bearing Sy. No.97/2 at Vakkaleri Village as per the OPs need.  The OPs have assured the complainant to open the MSIL shop as the OPs required the shops for rent and also assured that, the MSIL shop can be opened and it is also suitable place to open the shop as there is no MSIL shop located in the said area.  The complainant has made huge investment in constructing the shops and there is consideration for service rendered by the complainant in favour of OPs.  The competent authority has also issued license and till today the OPs have not opened the MSIL shop for the reasons best know to them.  The complainant has approached the OPs for non-opening of the shops.  The OPs have stated that, some people have obstructing for opening of the MSIL shop and the complainant has filed suit and got temporary injunction and the same has been intimated to the OPs and in spite of that, the OPs have not showing any interest to open the MSIL shop and caused monitory loss as he is not taking any rent for the shops.  The complainant further contended that, some local people also requested the OPs that, the MSIL shop is required in the said locality.  The OPs are not discharging their duties and not rendered service to the complainant.  The complainant has spent Rs.5,00,000/- for construction of the shops.  The complainant also approached the OPs on several occasions and all his efforts goes in vain and issued legal notice to the OPs.  The government has deposited Rs.60,000/- and issued form C.L. 11-C by the Deputy Commissioner, Kolar, and it goes in vain and the complainant has produced documents to this effect and approached this Forum and prays to allow the complaint.

03.   The OP Nos.1 & 2 appeared through their counsel and filed their version.  OP No.1 has contended that, MSIL is a Government of Karnataka Organization has not provided any services or goods to complainant and there is no question of the complainant being aggrieved and there is no such promise by MSIL neither in oral nor in writing to take the complainant shop on rental basis and it is merely a proposal and there is no question of any goods or services and the complaint is liable to be dismissed in limine.  The MSIL identifies only constructed buildings for their proposed retail liquor business and not the vacant plots.  This OP has denied the averments made in Para-2 as false and statements made by the complainant with a view to create cause of action to file the above complaint.  The MSIL will hire a shop which is already constructed and no where MSIL will instruct the prospective shop owner to construct the shop for rent neither in writing nor in oral and complainant is not a consumer.  This OP has also denied the entire averments made in Para-3 as false.  The MSIL identified constructed shop for rent in Sy. No.97/2 for opening MSIL liquor shop as a result of that MSIL has taken a license by investing Rs.4,60,000/- on 22.11.2017 but unfortunately due to oppose of local people and others the MSIL was unable to open the shop and the MSIL has incurred a loss of more than Rs.3,02,00,000/- towards the estimated sales and the MSIL has also renewed the license by paying Rs.4,60,000/- since the validity of the prior license barred.  This OP has also denied the averment made in Para-4 to 6 as false.  The OP No.1 will take only the constructive shop for rent and in this case only proposal to take the shop for rent is happened and there is no oral or written agreement were existed between the complainant and OP No.1 and the complaint is baseless.  The complainant is not entitled for any relief as prayed by him and prays to dismiss the complaint.

04.   OP No.2 has also filed version and contended that, the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine.  The allegations made at Para-2 to 7 of the complaint are not proved by the complainant.  This OP has contended that, the Managing Director of MSIL Company, government of Karnataka undertaking filed an application before this authority for sanction of C1-11C license under Rule 5, clause 11-C of K.E. (Sale of 1 & F.L.) Rules 1968 to the premises Survey No.97/2, Vakkalere Village, Kolar Taluk, for the year 2017-18 (01.07.2017 to 30.06.2018) by remitting the prescribed license fee of Rs.4,00,000/- and additional license fee of Rs.60,000/- and furnished the required documents before this authority.  The complainant is the owner of the premises for Sy. No.97/2, Vakkalere Village, Kolar Taluk, who has given his consent/N.O.C. for issuance of CL 11-C license to MSIL.  The complainant has been obtained an enquiry report from the concerned jurisdiction departmental officers premises selected for sanction of CL 11-C license in unobjectionable as per Rule 5 of K.E. Licenses (General Conditions) Rules 1967.  This OP further contended that, the Vakkalere Grama Panchayath authorities, Nandi Swasahaya Sangha, Chowdeshwari Swasahaya Sangha, Sri Kshetra Dharmastala Grama Yojane Sangha and the local peoples have objected for sanction of the CL 11-C license in favour of MSIL government agency since there are already two CL2 and one CL7 licenses are functioning within 5 Kms from the proposed premises.  The local MLA has recommended for issuance of license in favour of MSIL at premises owned by the complainant and the proposed premises is at unobjectionable place as per Rule 5 of K.E. License (General Condition) Rules 1967, proposal submitted to Excise Commissioner in Karnataka, Bangalore, to accord prior sanction for issue of CL 11-C License in favour of MSIL for the year 2017-2018 (e.w. 30.0.2018) to the premises owned by the complainant.  The Excise Commissioner, Karnataka, Bangalore, vide letter No. ECI/151/IML/KOLAR/17, dated: 09.11.2017 has accorded prior sanction for issue of CL 11-C license in favour of MSIL for the year 2017-2018.  Accordingly, the CL 11-C license was issued by the Deputy Commissioner, Kolar District, Kolar, in favour of MSIL to the proposed premises for the year 2017-2018 vide order No. EXE/IML/189/2017-2018, dated: 22.11.2017.  But the Government Company MSIL could not open the CL 11-C license and carry on the transactions in the premises owned by the complainant during the license period due to the protest from the locality people.  OP No.1 has also filed application for renewal of the license for the said complainant premises for the year 2018-2019 by paying prescribed license fee and additional license fee.  This OP further contended that, during the year 2019-2020 the CL 11-C license holder namely MSIL filed application before this authority to accord permission to shift the CL 11-C license premises from the existing location to premises No.1103/597, Beejagondanahalli, Kolar Taluk, by remitting the prescribed shifting license fee and additional license fee and furnished the required documents.  The Excise Inspector, Kolar Range and Deputy Superintendent of Excise, Kolar Sub-division, have reported that, the proposed premises is unobjectionable as per Rule 5 of the Karnataka Excise Licenses (General Conditions) Rules 1967 and none have filed any objections for shifting of CL 11-C license to the proposed premises and have recommended to accord permission to shift the CL 11-C license premises from the existing location to the proposed premises.    Accordingly the permission to shift the CL 11-C license premises to the proposed premises vide order No.EXE/64/IML/SST/19-20, dated: 19.09.2019 was accorded and the said CL 11-C license is functioning at premises No.1103/597, Beejagondanahalli, Kolar Taluk, without any objections and the owner of the alleged premises nowhere finds a place.  The transactions between the MSIL and the complainant cannot be decided by the Excise Department.  The dispute between the complainant and the MSIL authorities is civil in nature and the Excise Department cannot seek and adjudicate to answer the matters.  The shop under the question has already been shifted at the instance of MSIL authorities to a suitable alternative location and is functioning without any objections and the complaint filed by the complainant before this forum is infructuous and liable to be dismissed.  The complainant is not entitled for any relief as prayed in the complaint and prays to dismiss the complaint. 

05.   The complainant has submitted 06 documents marked at Annexure-1 to Annexure-8 with list of documents dated: 14.10.2019 that is:-

 (i) Xerox copy of the retail shop license issued to Government companies – Annexure-1

(ii) Xerox copy of the order copy issued by the Deputy Commissioner at Kolar – Annexure-2

(iii) Office copy of the Notice – Annexure-3 & 4

(iv) Xerox copy of the acknowledgement No.2 – Annexure-5 & 6.

(v) Xerox copy of the retail shop license issued by the government of Karnataka – Annexure-7

(vi) 02 Photographs  – Annexure-8

 

06.   On 03.12.2019 counsel for complainant has submitted affidavit of complainant by way of examination-in-chief with RTC extract pertaining to Sy. No.97/12 of Vakkaleri Village, Kolar Taluk & District.  The OPs have not adduced their evidence.

07.  Both complainant and OP Nos.1 & 2 have filed their respective written arguments.  We have heard the arguments of both sides. 

08.   Now the points that do arise for consideration are that:-

(1)    Whether the complainant is a consumer and is there any deficiency of service on the part of OPs and the alleged dispute is a Consumer Dispute?

 

(2) Whether the complainant is entitled for the reliefs as prayed by him?

 

(3) What order?

 

09.   Our findings on the above stated points are:-

POINT (1):-      In the Negative

POINT (2):-      In the Negative

POINT (3):-      As per the final order

for the following:-

REASONS

POINT (1):-

10.   The complainant has filed this Consumer Complaint against OPs to open the MSIL shop in the shops constructed by the complainant in his land bearing Sy. No.97/2 at Vakkaleri Village, Kolar District, by spending huge amount in constructing the shops.  The government has deposited Rs.60,000/- and issued form CL. 11-C by the Deputy Commissioner, Kolar, and till today the OPs not opened the shops in spite of taking stay order and there is deficiency of service by OPs.  OP No.1 has contended that, MSIL being government organization and it identified constructed shop for rent in Sy. No.97/2 for opening the MSIL shop and taken license on 22.11.2017 by investing a sum of Rs.4,60,000/- and the said shop could not be opened in view of objections raised from the local organizations and local people.  The OP No.2 has also stated about the issue of the license to the premises of the complainant at Vakkaleri Village, Kolar District, for the year 2017-2018 and OP No.1 has paid license fee of Rs.4,00,000/- and additional license fee of Rs.60,000/- by furnishing required documents and so also renewed the said license.  In that regard the complainant has produced the Xerox copy of the license as per Annexure-1.  On perusal of the above said material facts it revealed that, the complainant has not paid any consideration to take service from OPs as contemplated Under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986.

 

11.   The said Section 2(1)(d)(ii) refers to Consumer and it reveals 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 payments, 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 purpose.

On perusal of the said provision of law, the Act defines Consumer in terms of goods and services.  The Consumer means any person who buys goods for consideration or hires or avail any services for consideration is a Consumer.  Here in the case on hand, the complainant has not borrowed any goods for consideration nor availed any service for consideration.  But here in this case the OP No.1 has paid the license fee of Rs.4,60,000/- for taking license on 22.11.2017.  The OP No.2 has also stated that, OP No.1 has filed application before OP No.2 for sanction of CL -11C license to the premises of the complainant for the year 2017-2018 by remitting prescribed fee of Rs.4,00,000/- and additional license fee of Rs.60,000/-.  The said fact goes to show that the complainant has not paid any consideration.  Such being so, the complainant is not a Consumer as contemplated Under the above said provision of law.

 

12.   Further it is relevant to state here that, “Service” has been defined Under Section 2(1)(O) of Consumer Protection Act, 1986 and it reveals as under:-

(o) “Service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

Thus, service of any kind rendered for consideration comes within the perview of the Act, but free service, service under control of personal service, service rendered by Government Officials and service rendered under sovereign functions do not come within the domain of the Act.  But here in the case on hand the service is rendered by the Government official which does not come under the said provision of law.  On perusal of the above said provision of law the complainant is not fitted in to within the above provisions of law Under Section 2(1)(d)(i) & d(ii) and 2(1)(O) of the Consumer Protection Act, 1986.  Hence as discussed above the complainant is not a Consumer and there is no deficiency of service as contended by the complainant. 

 

13.   Further OP No.2 has also taken up the contention that, the transaction between the MSIL and the complainant cannot be decided by the Excise Department and the dispute between the complainant and the MSIL authorities is civil in nature and the Excise Department cannot seek and adjudicate to answer the matters.  When the complainant has not paid any consideration for taking service of the OPs the alleged dispute is not a Consumer Dispute and the nature of the complaint is Civil in nature for claiming damages.  Hence under these circumstances as discussed above the complaint filed by the complainant is not maintainable and it is liable to be dismissed.  Hence the complainant is not entitle for the relief as claimed by him and accordingly we answer Point (1) is in the Negative.

 

POINT (2):-

14.   OP No.1 has contended that, the MSIL shops could not be opened at the complainant shops due to objections raised by the local organizations and the local people.  OP No.2 has also stated that, the MSIL shops could not be opened at the premises owned by the complainant during the license period due to protest from locality people and also stated about the protest from other organizations.  The complainant has also stated that, he has taken an injunction order and the above said facts revealed pendency of Civil Suit with respect to the subject matter on the case on hand.  Further OP No.2 has contended that, during the year 2019-2020 the CL 11-C license holder of the MSIL has filed an application before the Excise Authority to accord permission to shift the said license premises from the existing location to premises No.1103/597 at Beejagondanahalli, Kolar Taluk, by remitting the prescribed shifting license fee and additional license fee and furnished the required documents and the authority has accepted to shift the CL 11-C license from the existing location to the proposed premises vide order No.EXE/64/IML/SST/19-20, dated: 19.09.2019 and the said CL 11-C license is functioning at the premises No.1103/597, Beejagondanahalli Village, Kolar District, without any objections and the said fact is not at all disputed by the complainant and the complainant has also not filed any objections for shifting of the license from his premises before the said authority and so also he has not challenged the said order.  Such being so, the said complaint filed by the complainant becomes infructuous and is liable to be dismissed in limine and accordingly we answer Point (2) also is in the Negative.

 

POINT (3):-

15.   In view of our findings on Point Nos.1 & 2 and the discussion made thereon, we proceed to pass the following:-

ORDER

01.   The complaint filed by the complainant is Dismissed. 

02.   Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 14^th DAY OF FEBRUARY 2020)

 

 

 

 

   LADY MEMBER                         PRESIDENT