SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of not providing basic facilities and charging illegal arrear rental dues are the allegations arrayed against the Opp.Parties.
2. Complaint, in brief reveals that Opp.Parties are a statutory body named and styled as Kendrapara Regional Improvement Trust ‘in short’ KRIT to provide housing development scheme to the public. Complainant being a licensee tenant under the Opp.Parties deposited Rs.25,000/- as security deposit to avail a shop room with monthly rent of Rs.420/-. Though the agreement was executed on dtd.27.10.00 but the Ops delivered the possession on dtd.18.01.2001 bearing shop room No.E-5 of Block-E measuring 120 sqft. Complainant also alleges though the shop room was allotted but there was no approach road, boundary wall, drinking water facilities etc.. It is also alleged that no individual power supply was provided to complainant, rather Ops demanded the energy charges from a common meter from where the complainant was availing power supply. When the complainant objected the excess energy billing Ops disconnected the power supply and advised the complainant to avail the power supply individually. Due to poor inner wiring of the shop room complainant spent another Rs.6000/- towards its repairing and adjustment in the rents as per the oral instruction of the J.E.,OPs. Complainant and other tenants put forth their difficulties before Ops on dtd.20.10.02 but no fruitful action was taken to fulfill the grievance by the Ops. Complainant further challenges the letter of Ops No.395 dtd.10.10.14 where demand has been made to pay Rs.2,08,285/- as on July,2014 which was excess and arbitrary. Further,OP No.1 in their Letter No.439 dtd.14.11.14 demanded to pay 50 per cent of arrear house rent within 15 days failing the allotment will be cancelled and complainant will be evicted. On dtd.01.12.14 complainant and other tenants put forth their grievance before OP No.2,Collector,Kendrapara who assured and by office order dtd.06.12.14 vide dispatch No.22291 sent the letter through official messenger to OP No.1, but the letter was missed. The missing of letter was intimated to OP No.2 on dtd.15.12.14. On the otherhand OP No.2 issued a final notice dtd.22.01.15 to pay the 50 per cent of arrear outstanding dues against total arrear outstanding of Rs.2,19,394/- upto December,2014,failing which lawful action will be taken. Again the complainant met OP No.2 on dtd.02.02.15 and dtd.11.8.15 request to consider their grievance but OP No.2 turned down the proposal. Hence, the complaint, where it is prayed that a direction may be given to Ops to rectify the wrong calculation and to withdraw the illegal demands and to return/adjust of Rs.6000/- of rewiring of shop room and Rs.5,000/- for repairing of the roof. It is further prayed that Ops may be directed to pay Rs.30,000/- as compensation for financial loss, mental agony and cost of litigation.
3. Being noticed OPs appeared through the Secretary,Kendrapara Regional Improvement Trust,Kendrapara challenging the maintainability of the complaint as complainant can not be treated as a ‘consumer’ as per the provisions of C.P.Act,1986. It is averred that vide OP’s letter No.570/KRIT dtd. 10.10.2000 complainant was intimated to execute the agreement and to take the possession of the shop room(Annexure-I). Complainant was allotted a shop room bearing No.E-1 on Niranjan Market Complex,Kendrapara on deposit of security amount of Rs.25,000/- with a monthly rent of Rs.420/-. The complainant was charged the monthly rent from November,00 and as per the agreement the complainant has to pay monthly rent 10th of every month on advance failing which as per clause(b) of the agreement complainant has to pay @ 18 per cent per annum for the default period. Complainant deliberately avoided to take the possession of the shop room. It is also averred that no excess energy charges have been imposed on the complainant and Ops vide their Letter No.677 dtd.21.11.2000 intimated to avail the power supply individually. The complainant has paid only Rs.15,640/- against the outstanding of rs.2,08,285/-. As per the agreement there is no provision of construction of boundary wall and approach road, and there is a P.H.E.D. water tap inside the market complex with minimax light facility. The complainant is a habitual defaulter in respect of his house rent payments. It is also averred that the complaint and grievance before OP No.2 is a myth. OP No.1 has intimated the complainant vide Letter No.258 dtd. 11.08.15 to pay 50 per cent arrear outstanding dues(Annexure-VII) and Ops in the said letter Ops have not threatened and scope of eviction from the shop room by Ops are legal right conferred under OPDR Act,1962. In the circumstances, the complaint is devoid of merit and is liable to be dismissed with cost.
4. Heard the Ld. Counsel Mr. S.K.Kar appearing for the complainant and Secretary,KRIT who appeared personally and defend their case also considered the documents/annexures/citations filed into the dispute. The admitted facts of the case are that the complainant was allotted a shop room after executing an agreement on dtd.27.10.00 bearing shop No.E-5/E-1 in the Market complex constructed by Ops. It is further admitted that as per the agreement complainant deposited security amount of Rs.25,000/- against occupying of shop room and certain arrear outstanding in connection to shop room rent is pending on the complainant till the date.
Before discussing the factual and legal aspect of the dispute, we must discuss the maintainability of the case as raised by Ops. Ops in their written replies averred that the complainant can not be treated as aconsumer as per Sec.2(i)(d)(i) of the C.P.Act, by denying the said clause of the Section. But subsequent sub-clause Sec,2(i)(d)(ii) deals with ‘hiring of service’ in the present dispute admittedly complainant after depositing a certain amount as security deposit and on execution of the agreement dtd. 27.10.00 promised to pay the monthly rent as per the agreement. Thus, complainant by paying certain ‘consideration’ avails’hires the service of the Ops. Hence, he can be treated as a consumer and the complaint is well within the purview of C.P.Act,1986.
In the complaint deficiency in service is attributed against the Ops on the grounds of delayed delivery of possession of shop room, non-construction of approach road and boundary wall, non-supply of individual power supply, non-payment of repairing charges of shop room alongwith electrical wiring on oral order of J.E.,KRIT,Kendrapara. It is further alleged that without complying grievances Ops are demanding interest @ 18 per cent interest per annum on arrear dues of shop rooms ignoring the order of the Collector,Kendrapara vide the dispatch No.22291 dtd.06.12.14 basing on the grievance petition No.5580 dtd. 01.02.14. In support of his claim complainant filed number of attested Xerox copies of money receipts, copy of the agreement dtd. 27.10.00 and Xerox copies of letters correspondence between the parties on different dates.
Ops countering the allegation state that they have acted as per the agreement between the parties on dtd.27.10.00. On allegation of power supply Ops intimated the complainant to avail individual power supply vide letter No.677 dtd. 21.11.2000.Non of the parties have filed the copy of disputed security deposits. It is also contended that the other demands of the complainant are not considered as the claims are not within the frame of the agreement dtd. 27.10.00 and charging @ 18 per cent interest, per annum is in accordance with the agreement, when the complainant failed to pay the monthly dues regularly and becomes a defaulter.
Considering the allegation and counter allegations it is clear that most of the grievances of the complainant and its non-compliances are related to the long years back like non-supply of individual of power supply, non-construction of approach road, non-construction of boundary wall, if the same is treated as deficiency in service, it is raised in a much a belated stage. In case of individual power supply to the shop room when the Ops in their letter dtd. 700/KRT dtd. 22.11.2000(Anenxure-V) offered the opportunity to complaint to avail the power supply directly from CESCO as per the official norms, but complainant lost the opportunity and raised the grievance after a lapse of more than 15 years and same can be availed by the complainant after completion of official formalities. The present dispute based on the agreement executed between the parties, which is a contract and either of the party can’t go beyond the terms and conditions of the agreement unless it is interfered by a court of law or competent authority. On perusal of copy of the agreement it appears that ‘ Where as the license agrees to take said premises(described in schedule-B) for the term of annual licence to computed from the date of execution of agreement by the licence….”. It is clear from the said agreement that the valid period of agreement /contract is limited to one year from the date of execution of the agreement. W/S of Ops silent regarding tenure of the agreement. It is equally clear that, the Ops allowed the complainant to become a defaulter in respect of a huge pending arrear house rents by not renewed or terminating the agreement before lapse of the time limit mentioned in the agreement. As per the agreement the Ops are empowered under the contract/ agreement to impose @ 18% interest for default period within the permissible time limit given in the agreement.Ops can’t unilaterally impose the interest @ 18% P.A. when they a part of the violation of the agreement. Ops in their w/v emphasizes on the clause 1(a) (b) of the agreement by submitting that @ 18 % interest will be imposed on the complainant for default of paying the house rent. In thisregard we opine that when the agreement itself is not in force the terms and condition/ the clauses are automatically becomes anfractuous. In the present dispute considering the legal position of the agreement, we do not fix the quantum of interest to be imposed on the complainant-licence rather we left it to be Ops to decide the rate of interest by taking a rational approach and legality of the agreement. However, complainant can not be allowed to take advantage of the legal position discussed above, when admittedly the complainant-licence is a defaulter in respect of payment of arrear outstanding of shop room rents. But his grievance can be redressed by the authorities considering as per our observation. After settlement of the dispute the parties are at liberty to execute a fresh agreement in respect of letting out of the shop room.
So far the imposition of @ 18 per cent rate of interest on arrear dues and to pay 50 per cent of the total arrear outstanding dues as per the letter No.251 & 246/KRIT dtd. 11.08.15(Annexure-VI) failing which complainant will be evicted from the shop room as per the agreement. Complainant hammered in the point that on presenting the grievance before OP No.2, Collevtor,Kendrapara vide grievance No.5580 dtd. 01.12.2014. On exemption of interest, the Collector,Kendrapara vide dispatch No.22291 dtd. 06.12.2014 passed an order to collect the rent due in installment basis. But the said letter is not produced rather the letter is not traced as averred by the complainant. On the other hand, Ops deny the existence of such letter. Further Ops submit that on violation of clause 1(a) of the agreement, when the complainant defaulted in paying the monthly dues as per the agreement Ops were constrained to charge @ 18 per cent interest per annum on defaulted amount. In our opinion on non-existence of the letter of the Collector,Kendrapara(OP No.2) and as per the agreement this Court can not direct to exempt the interest @ 18 per cent imposed on the complainant. However, considering the specific presentation of grievance No. letter of Collector bearing No.22291 dtd. 06.12.14 which was again readdressed to Collector,Kendrapara (OP No.2) on dtd. 15.12.2014 vide grievance No.92 dtd. 05.01.2015 remains unanswered by the Ops. The attested copy of the grievance No.92 dtd. 05.01.2015 is filed by the complainant in C.C.Case No.27/2015,where the signature of other complainants/tenants are present. It is right of the complainant-consumer to know the fate of petition addressed to OP No.2. But legally and technically the complainants are in back foot as they have violated the agreement being a defaulter in respect of non-payment of monthly shop rents in time. However, on humanitarian aspect the complainants are small shopkeepers of the said shops. If the notice of the Ops is to pay 50 per cent of arrear outstanding dues is strictly adhered by implementating the agreement and charging 18 per cent interest for the default period. No doubt the complainant-shopkeeper will go through a financial hardship. So, complainant deserves sympathy from the Ops on the grounds on relaxation of imposition of @ 18 per cent interest per annum. The Opp.Parties on support of their stand filed a decision of the Hon’ble High Court,Odisha in W.P.(C) No.8342/2010 and decision of the District C.D.R.Forum,Phulbani. Both the decision are applicable into the present proceeding.
Having observations reflected above, it is directed that complainant will make an representation to OP No.2,Collector,Kendrapara within one month of receipt of this order to consider their grievance including charging of @ 18 per cent interest on monthly arrears on pending house rents of complainants subject to payment of 25 per cent of the total arrear outstanding which will be adjusted on the final disposal of representation of the complainant by OP No.2. If the grievances are filed, OP No.2 will dispose of the grievance petition within two months of receipt of the grievance. If the complainant failed to implement the order within a stipulated period, the Opp.Parties are at liberty to take action as per the law.
During this period Ops are hereby restrained to take any coercive action against complainant. Accordingly, the I.A.Case filed is hereby disposed of.
No order as to cost.
Complaint is disposed of.
Pronounced in the open Court, this the 30th day of April,2016.
