KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.228/2023

JUDGEMENT DATED: 01.06.2023

(Against the Order in I.A.No.380/2022 in C.C.No.205/2021 of CDRC, Kasaragod)

PRESENT:

APPELLANT:

(by Advs. Sreevaraham N.G. Mahesh & Sheeba Sivadasan)

Vs.

RESPONDENT:

JUDGEMENT

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

This is a complainant’s appeal filed against an order dated 06.03.2023 of the Consumer Disputes Redressal Commission, Kasaragod (District Commission for short) allowing an interlocutory application.  I.A.No.380/2022 was filed by the opposite party questioning the maintainability of the complaint and praying that the question of maintainability may be considered as a preliminary issue.  Accordingly, the question of maintainability was considered by the District Commission and the complaint has been found to be not maintainable.  The aggrieved complainant is in appeal before us.  The respondent herein is the opposite party in the complaint.  For the sake of convenience, the parties shall be referred to herein in accordance with their status before the District Commission.

          2.       According to the complainant, she had obtained on lease a room having door no. DGB-W III/65 B from the opposite party for conducting a chicken stall on 15.09.2020 on a monthly rent of Rs.1500/-(Rupees One Thousand Five Hundred).  Thereafter, she spent an amount of Rs.2,00,000/-(Rupees Two Lakhs) in the shop for starting the business.  The complainant applied for trade license on 18.09.2020.  She also started her business.  However, she received a letter dated 27.01.2021 from the Panchayat informing her that the room was classified as a residential building and therefore, license could not be granted for her chicken stall.  Therefore, she had to close down her business.  The allegation of the complainant is that, the opposite party had cheated her, knowing fully well that it was a residential room.  Therefore, she claimed the amount of Rs.2,00,000/-(Rupees Two Lakhs) spent by her, a further amount of Rs.20,000/-(Rupees Twenty Thousand) for her mental agony and deficiency in service and an amount of Rs.10,000/-(Rupees Ten Thousand) as costs of litigation.  The rental agreement dated 15.09.2020 and letter issued by the Panchayat were produced by the complainant.

          3.       The opposite party filed a written version contending that the complainant being a tenant under the opposite party she was not a consumer under the Consumer Protection Act, 2019 (the Act for short).  The opposite party was not rendering any service to the tenant.  The opposite party also filed I.A.No.383/2022 for considering the question of maintainability as a preliminary issue.

          4.       Accordingly, the question was considered by the District Commission and it has been held that the complaint was not maintainable since the complainant was not a person coming within the definition of consumer under the Act. 

          5.       According to the counsel for the appellant there is deficiency in service on the part of the opposite party.  The Act of leasing out the room is a service that was provided by the opposite party.  Such service was provided suppressing the fact that the building permit was granted for residential purpose only.  The counsel also places reliance on a decision of the Apex Court in Punjab Urban Planning Development Authority Vs. Vidya Chethal and another 2019 (4) KHC 823 to contend that the power of this Commission extends to redressing any injustice rendered upon the consumer as well as any malafide, capricious or oppressing act done by a statutory body.  Reliance is also placed on the decision in Arun Bhatia Vs. HDFC Bank (2022) (Live Law) SC 696to contend that for any deficiency in service on the part of an opposite party, a consumer complaint is maintainable before a Consumer Commission. 

          5.       This appeal is posted before us for admission.  We have heard the counsel for the appellant.  Section 2(7) of the Act defines the expression “consumer” as follows:

(7)  "consumer" means any person who—

1. 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
2. hires or avails of any service 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 service 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 service for any commercial purpose.

Explanation.—For the purposes of this clause,—

(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

The above definition is in two parts – the first part dealing with the purchase of goods for consideration and the second part dealing with hiring or availing any services for consideration.  Though the second sub clause of the definition is wide enough to encompass all types of services, it cannot include the landlord or the tenant of a building within its scope.  This is because the tenant is a person who takes a room owned by the landlord on rent in accordance with the terms of the lease agreement.  The lease agreement would permit the tenant to remain in exclusive occupation of the premises during the tenure of the lease.  The possession and occupation of the tenant is protected by the terms of the lease agreement as well as by the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965.  The landlord does not render any service to the tenant.  Nor does the tenant avail or hire any service from the landlord.  In fact, the landlord is dutybound not to interfere with the exclusive position of the tenant during the tenure of the lease.  Therefore, the relationship between a landlord and tenant is totally different from that of a consumer and service provider.  In view of the above, the decisions relied upon by the counsel for the appellant have no application to the facts of the present case.  The District Commission has approached the issue in the correct perspective and has found that the complaint was not maintainable.  We find no grounds to take a different view of the matter.

          For the foregoing reasons, this appeal fails and is accordingly dismissed.  No costs.

SL