<br /> <br /> <br /> By R. VIJAYAKUMAR, MEMBER,<br /> <br /> <br /> This application filed by the opposite party challenging maintainability of this complainant.<br /> <br /> The complainant is filed on 09.07.07 for removal of materials, against illegal encroachment and getting arrear rent. On 26/05/06 complainant and opposite parties entered into an agreement orally for the Lease of 5 cents of Land owned by the complainant for the use of Bharati Telemeters. The security deposit was paid by the opposite parties. Land was occupied by the opposite parties erected permanent construction, fixed high voltage Light, arranged full time security. Without executing the agreement opposite parties occupied 25 cents of land and encroached illegally to the shed there and stored huge materials there. Monthly rent amount Rs.4,500/- fixed was not paid by the opposite parties. Complainant sent Advocate notice-demanding removal of materials and arrears of rent was not responded. Hence the complainant filed this complaint.<br /> <br /> Opposite party filed version. The complainant filed proof affidavit. This IA was filed at this stage on 23/02/08 challenging maintainability of the complaint. The complainant filed objection on 14/03/08.<br /> <br /> The point of consideration is whether the maintainability petition can be allowed or not.<br /> <br /> Heard both sides.<br /> <br /> The complainant entered in to the contract and leased the portion of his land on rental basis. He has not purchased any goods or availed any service from the opposite parties. There is no question of deficiency in service. The relief sought by the Complainant will not come within the ambit of Consumer Protection Act. The Counsel for the complainant argued that non-performance of condition in Lease agreement is deficiency in service and will come within the purview of Consumer Protection Act. He had cited two cases in support of his arguments namely 420 Kalyan Kr. Dey Vs. Srite Narayanan Choudhary, Reported in CPR III 1993 (1) SDRC West Bengal; and Jyothi Prakash Mandal V. Bhuvaneswar Saha West Bengal ; CPR 1994 (1)n 295. We are of the view that this findings are not applicable in this case. The facts and circumstance of those cases are entirely different from this case. It is a settled position that violation of a lease agreement or non-performance of a part of contract, which amounts to deficiency in service, is maintainable in the Forum. But in this case as there is no service availed by the opposite parties there is no deficiency in service on the part of opposite party. So the Complainant can approach and may get remedies in the appropriate Forum.<br /> <br /> In the result the IA is allowed. The complaint is dismissed as it is not maintainable in the Forum. <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />