The case of  the complainant is that the Opposite Party(here in after to be mentioned as OP) is the owner of a shop room situated at Airport more, Bagdogra , Dist-Darjeeling which shop room was taken on tenancy by the complainant & his elder  brother, Sri Tarun Bardhan on 06.03.1985 to earn their livelihood by self employment starting a small business under the name and style “Bardhan Studio” and thereafter agreement was renewed by virtue of another agreement on 01.09.1993 in between  one Asha Rani Bhowmick as owner and complainant for another four and half (4^1/2)  years to remain on the same premises to continue complainant’s livelihood. It is further contended in petition of complainant that after sudden demise of said Asha Rani Bhowmick on 15.5.2002 the hire charge of the premises was being collected by  this OP ,

Contd…..P/2

-:2:-

Nepal Chandra Bhowmick on & from the month of June , 2002 to July 2007 and after that all the legal heirs of Asha Rani Bhowmick entrusted the present Op Nepal Chandra Bhowmick as the owner and collector of the said shop room and thus. Op issued receipt of the hire charge to the complainant.

The Paragraph 4 of the petition of complainant has been described with the tenure of the agreement dated 01.09.1993 and about the terms & conditions along with the details regarding measurement and schedule of the shop room in question. It is alleged in the complaint that as per agreement the said let out premises hire charge increased to Rs.612/- on & from the month of March 2013 but another sum of Rs. 300/- was demanded totalling Rs.912/- which is in violation of the norms  & has been noted as deficiency in service.

Subsequent to that it is further contended in complaint that in the month of February 2015 from the office of Asian Highway-02 declared verbally that a part of the said let out portion had been virtually belonging to them which would accordingly be cleared.

 The complainant thereafter made three letters dated 22.09.15, 25.10.15 & 20.04.16 to the Asian Highway-02 stating that the shop room belongs to Op and thereafter on 02.05.16 the complainant  through RTI came to learn by  virtue of letter of Asian Highway-02 that let out premises was under unlawful possession and that land is required for development of the project AH-02.

        Then the concerned department demolished the complainant’s let out premises and thus it is alleged that Op had let out the premises with an unauthorised portion which he had no right to let out and earned money  month  to month since 1985 till the date of filing of this case for a period of 39 months  dishonestly and  thus his service was full of deficiency towards complainant .

Contd…..P/3

-:3:-

         The complainant after the incident had to repair and thus repaired the remaining let out portion at his own cost but the space was not sufficient to run complainant’s business and Op then started to demand Rs.2000/- p.m. or to vacate the premises clearly and that’s why complainant became defaulter and OP refused to issue receipt of monthly letting charge and accordingly complainant has been paying the charge through Op’s bank Account and informed several times to him about this but OP neither issued receipt nor responded.

        The complainant under such situation stated in petition of complainant that Op from his part committed deficiency in rendering service and made indulgence to unfair trade practice which compelled the complainant to initiate this case against the Op.

        By filing this case ,complainant has  prayed for in the petition of complainant  for direction upon the Op for payment of entire amount of rent paid during these period  amounting to Rs.10,800/- and compensation of Rs.4 lakhs as well as cost of the proceedings.

         Some documents have been filed by the complainant  which are as   follows:-

1. A copy of the trade licence of ”Bardhan Studio”.
2. Agreement dated 5.3.1985.
3. Renewal agreement dated 01.09.1993.
4. Rent receipt issued by Asha Rani Bhowmick.
5. Rent receipt issued by legal heirs of Asha Rani Bhowmick.
6. Rent recent issued by OP, Nepal Chandra Bhowmick.
7. Three copies of Ld Advocate letters dated 22.09.15, 25.10.15 and 20.4.2016.                                                                                                                                                                                     Contd…..P/4

-:4:-

8. A copy of the letter of the department on behalf of Asian Highway following RTI of complainant.
9. A copy of identity card of the Department Asian Highway to complainant as D.P. means displaced person.
10. A copy of cheque of Rs.43150/- dated 17.09.2015 as subsistence allowance or shifting allowance asking demolition of the premises to the complainant.
11.  A copy of expenses of Grill work shop.
12.  A copy of letter dated 17.5.16 of SJDA(Siliguri Jalpaiguri Development Authority)  .
13.  Copies of five letters of complainant sent to Op which are of dated. 22.03.16, 23.04.26, 19.5.16, 11.07.16 & 29.07.16.

        Op has been contesting this case after filing written version contending therein that this case is not maintainable as no original cause of action is there to institute this case.

         It is further alleged therein that  written version that the agreement which was on 01.09.1993 as regards  tenancy that was expired on 28.02.1998 after lapse of agreement tenure of 4 years 6 months. It is the case of the Op that measurement of the tenanted premises which was mentioned in the agreement was with the consent of both the parties in the year 1993 and since then no question ever arose or raised by the complainant in respect of measurement and in respect of terms & conditions which were mentioned in the agreement in between Op-landlord and complainant-tenant and Complainant  further as per written version encroached the 3 feet wide common passage on the back side of the shop premises.

        It is also submitted in written version that complainant illegally without any right took the compensation of Rs.43,150/- from Asian Highway 02 and thus challenged this matter.                

   Contd…..P/5

-:5:-

 It is the further case of written version that Asian Highway 02 has taken the land as per their requirement. The land owner was Op and he is absolute owner and it is submitted that Asian highway acquired the front portion of the said land including the land of front portions of all other premises on both sides of National Highway as per law and paid the complainant and to all the landlords  for that and the  said demolition in the front side of the shop room by the National Highway 02 was done for the purpose of four lane road facility and all other owners and occupiers have vacated the front portion with their sweet will for the greater interest of the public in general  as such there is no question of deficiency in service by the land lord in respect of  tenancy.

         Ultimately Op has prayed in that w/v for dismissal of this instant case.

 Complainant has filed his evidence in the form of affidavit in chief and on the other hand Op himself submitted his examination-in-chief along with affidavit.

        Some of the documents as mentioned earlier filed by complainants’ side have been filed in original such as rent receipts mainly and that agreement dated 01.09.1993.

        Prior to argument both sides also submitted their arguments in writing and then argument from both sides have been advanced by their respective Ld advocates in details. Now, for the determination of the case, the following issues have been framed.

1. Is the complainant a consumer as per definition of the ‘term’ as envisaged in the Consumer protection Act 1986?
2. Had/has there been any deficiency in rendering service to the complainant  tenant on the part of the Op land lord in respect of tenanted premises?

Contd…..P/6

-:6:-

3. Is the complainant entitled to get the relief/reliefs as prayed for ?

Decision with reasons

Issue no.s 1,2  & 3

All the above three (3) issues are taken up together for discussion consideration for coming to a decision of this case for the sake of convenience as well for avoiding repetition as those are interlinked with one another.

First of all the question of tenancy comes at the time of consideration before us on the point as to whether the complainant of this case being a tenant comes within the category of consumer or not? And in this context, Ld advocate for the complainant has referred a case a Hon’ble National Consumer Disputes Redressal Commission in between Jagdishbhai M Sneth Alias Soni vs  Surbhih Realtors India Pvt. Ltd. wherein Hon’ble National Commission has been pleased to hold that tenant would be  a Consumer within the meaning of section 2(1)(d) of CP Act 1986 . It is found in that case that the petitioner who was a tailor was doing a business of tailoring in the premises in the name and style of J.M.Tailors as a tenant and the owner of the property sold the said property to the respondents ( Opposite Parties before the District Forum) in the year 2002 along with all the rights. Petitioner attorned to be the subsequent owner became tenant of the respondents.

Here, in this instant case the question of tenancy of the complainant has been an admitted position by virtue of deed of agreement dated 01.09.1993 entered in between Asha Rani Bhowmick & the complainant which was for a period of four and

Contd…..P/7

-:7:-

half years (4 ^1/2) permitting the complainant tenant to remain on the premises to carry his livelihood by doing the business under the name and style “Bardhan Studio”. Under the circumstance while the complainant has not yet been evicted there from by the order of the court then he remains a tenant still now and after going through the referred case law as mentioned above it appears to us that the complainant here in this case should be treated as a ‘consumer’ as per provision for the CP Act 1986.

The issue no.2 is the very important issue here in this case where the question of deficiency in service has been raised. In this contest we have gone through the relevant materials and case record particularly the documents which are filed from the side of the complainant. Firstly, the deed of agreement dated 01.09.1993 entered in between Asha Rani Bhowmick and this instant complainant , Sushanta Bardhan and from this agreement with appears that the duration of that agreement was for four and half years (4 ^1/2). It is to be borne in mind that this agreement after the expiry of the original owner, the wife of present Op of this case, Ashsa Rani Bhowmick on 15.05.2002 has been continued by virtue of another agreement in the month of July 2007 by the legal heirs of the said deceased wherein this OP along with the signatures of the said legal heirs put his signature thereon confirming the terms & conditions of the said agreement in continuation where further the measurement of the room in tenancy has been mentioned as 22 feet in length & 8 feet in breadth. This measurement of the tenanted room/premises has also been mentioned in the petition of complaint by the complainant. Accordingly, as regards measurement of the tenanted premises there is no dispute in between the parties. It can also not be said that with the expiry of the duration deed dated 01.09.1993 the relationship of landlord

Contd…..P/8

-:8:-

and tenant has not been continuing in between the parties while there is continuation deed of tenancy agreement is there entered by all the legal heirs of the original land owner , Asha Rani Bhowmick, since deceased. As regards the rate of rent it appears from the rent receipt that OP received a rent of Rs.612/- in the month of March 2013 but on the next month for the rent of the month of April 2013 a sum of Rs.912/- was given and received by the OP but while the complainant started to deposit rent as stated on refusal of the Op to accept the same then it appears from the produced Bank statement SBI , IAF camp, Bagdogra Branch of the complainant a debit of monthly amount of Rs.612/- to Account No.11364190993 on each & every month regularly to the Bank Account of the OP while complainants said bank Account no.11364196236 .This deposit of rent at the rate of Rs. 612/- monthly in the said account as shown from the document produced remains upto the month of March 2018 which is for the month of April 2018.If that be the so, then there is no doubt in it that complainant remained at the category of tenant on the date of filing of this case and thereafter. No document has been produced from the side of the OP that complainant has been evicted from this tenancy by the order of the competent court of law. It is to be borne in mind that once a tenant always a tenant until and unless he is evicted in due course of law .This District Forum which is mainly guided by the C.P. Act 1986 cannot adjudicate the matter of dispute regarding rate of rent in between the land lord and tenant and for this purpose of civil dispute orienting relationship of land lord and tenant in it’s entirety competent court of law is there with the related provisions of law. This District Consumer Redressal Forum in concerned about the question of deficiency of service and that of unfair trade practice, if any, done or committed upon the complainant by the OP as regards

Contd…..P/9

-:9:-

tenancy or not. It is not disputed before us that the complainanthas been running a shop under name and style “Bardhan Studio”asa

tenant in the premises given by the OP from the time of it’s original owner. In this context we have perused the observation as made by Hon’ble National Consumer Disputes Redressal Commission in a case in between Jagdishbhai  M Sneth Alias Soni vs  Surbhih Realtors India Pvt. Ltd. wherein Hon’ble National commission has been pleased to treat the petitioner as consumer while he was a tenant and alikely herein this case while the agreement of tenancy has been continued then it is the duty incumbent  upon the land lord OP to obey the terms and conditions of the said agreement dated 01.09.1993 .  From the contention of the petition of compliant and thereafter while it is supported by documents on the record then there exits every reason to believe that  the complainant was subjected to harassment due to non compliance of terms & conditions of the agreement from the part of the OP as regards maintenance of the tenanted premises and repairs of the room in tenancy. The complainant in original application made a prayer for direction upon the OP for returning back of the entire amount of rent paid during the period amounting to Rs.10,800/-  but this prayer has not been justified and it is full of ambiguity and not clear from the four corners of the case record. The matter of compensation as prayed for four lakhs is also not clarified  but in this context we have gone through the meaning of compensation as disclosed in the judgement as reported in AIR 1994 supreme court 787 in between Lucknow Development Authority vs M.K. Gupta which runs as follows:-“ The word compensation’ is again of very wide connotation. It has not been defined in the Act .According to dictionary it means, Compensating or being compensated; thing given as recompense. In legal sense it may constitute actual loss or

Contd…..P/10

-10:-

expected loss and may extend to physical, mental or even emotional

suffering, insult or injury or loss. Therefore  when the Commission has been vested with the Jurisdiction  to award value of goods or

services  and compensation it has to be construed widely enabling the commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation”………. “The commission or the Forum in the act in thus entitled to award not only value of the goods or services but also to compensate a consumer for injustice suffered by him.” Accordingly, this District Forum after going through all the relevant materials of case record on due consideration viewed that in subsistence of tenancy the complainant being a tenant has suffered a lot as a  consumer for deficiency in rendering service of the OP as regards maintenance of  the tenanted premises in question in violation of the terms & conditions of the agreement of 01.09.1993 . This Forum is not of the view of awarding any amount in favour of the complainant where the question of demolition of encroached portion is there as because this Forum has no option as regards the matter of encroachment of land which requires many factors for proving the same before civil court. Thus issue no.2 is disposed of in favour of the complainant holding that there has been deficiency in service towards complainant from the part of the OP.As a result, the issue no. 3 is accordingly disposed of in favour of the complainant.  All the three issues are thus disposed of. The case of the complainant succeeds in part.

Contd…..P/11

-:11:-

Proper fees paid.

Hence, it is,

O R D E R E D

that the instant Consumer case No 80/S/2016 be and  the same is hereby allowed on contest in part against the Opposite Party.

The OP shall pay a sum of Rs. 1,00,000/-(Rupees One lakh)to the complainant for the mental pain , agony & harassment of the complainant as well as another sum of Rs.20,000/-(Rupees Twenty Thousand) shall be paid by the Op to the complainant as litigation cost totaling a sum of Rs.1,20,000/-(Rupees One Lakh Twenty Thousand).

The OP do pay to the complainant the said sum Rupees One Lakh Twenty Thousand (Rs.1,20,000/-) within 45 days from the date of this order, failing  which the sum of Rs.1,20,000/- will carry interest @ 7% per annum from the date of this order till its full realization.

A copy of this final order/Judgment be given to the parties free of cost.

-Member-                             -Member-                           - President