BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI Dated this the 28th day of December, 2009
Present: SRI.LAIJU RAMAKRISHNAN PRESIDENT SMT.SHEELA JACOB MEMBER SMT.BINDU SOMAN MEMBER C.C No.182/2009 Between Complainant : C.J.Mathew, Chamakkalayil House, Edavetty P.O, Thodupuzha, Idukki District. (By Adv: K.M.Sanu) And Opposite Party : The Secretary, Thodupuzha Municipality, Municipal Office, Thoduopuzha P.O. O R D E R SRI.LAIJU RAMAKRISHNAN(PRESIDENT)
Complainant is a senior citizen, who is conducting hotel business from 1976 onwards in the opposite party's (Municipality) room by a lease agreement. There was an agreement created between them and this was renewing every year. The rent for these rooms which are Room No.2 and 4 were giving promptly as advance to the opposite party. In 1996 complainant started ready made business in that premises because of loss of hotel business. On 5.2.2008, without giving any notice, the opposite party came with police and sealed the hotel of the complainant. Afterwards the license was cancelled on 13.2.08. After 7 months on 5/9/08 a demand notice issued stating to remove the unauthorised constructed shutters and the staircase provided in the kitchen of the hotel should be opened to the public use. It is also demanded to close the due bill then. The complainant filed an appeal before the local self government tribunal, and the tribunal set asided the demand notice dated 5.9.08.
The opposite party never tried to give back possession of the sealed rooms to the complainant, after repeated demands. Hence the complainant approached Honourable High Court and the Honourable High Court ordered on 23.3.09, to hand over the possession of the rooms to the complainant within 7 days. The petitioner shall remove the unauthorised constructions within one week. The rent should be avoided in the period where there was no possession for the complainant. The complainant should give a representation before the opposite party about the matter of the staircase and it should be decided according to that by the counsel. The possession was handed over on 22.5.09 and the unauthorised constructions were removed by the complainant. Representation was given about the dispute of the staircase, but it is not get considered. Again opposite party issued notice for removing unauthorised constructions. The staircase annexed to the building is starting from the kitchen of the hotel and leads to the balcony of the hotel where water tank is fitted. That was using by the complainant and the hotel staff for the last 33 years. There is a wide staircase opened to the public road in the main entrance. The opening area of the staircase is already rented out by the opposite party for one K.M. Mathew, and which is using as a go-down of the medical shop. So the complainant is having no authority to open the same to the public. If it is done, the public will approach to the kitchen of the hotel. Even though an order was produced from the Honourable High Court, the opposite party never tried to make an agreement with the complainant for the given rooms. So the complainant is not able to apply for bank loan or for license because of non- availability of the agreement. The rooms are having a rent of Rs.6000/- and the electrical charges comes about Rs.1,600/-. Because of the act of the opposite party, the license of the complainant from the last 33 years were lost. 20 labourers were also lost the labour due to that. It is only because of the enmity between one member of the Municipal counsel and the petitioner. The complainant is having a loss of Rs.10,000/- per month and Rs.1600 as electricity charge once in a couple of months. The hotel utilities of the complainant such as aluminium vessels, 12 gas stoves, freezer, grinder etc. are also damaged due to this. Another demand notice issued by the opposite party for getting the arrears of the rent. So this petition is filed against the deficiency in service of the opposite party and also for giving direction to the opposite party for making an agreement with the complainant.
2.The opposite party filed written version. The opposite party demanded the complainant to remove the kitchen of the hotel in the side of the town hall and given permission to construct another kitchen in southern side, as per the decision of the counsel. It is only because there should not be any opening to the town hall area. But the complainant built a rolling shutter in that area. The decision of the counsel was given to the complainant. Another petition filed by the complainant for getting sanction to build two shutters in the area near to the shopping complex, on 2.2.06. This matter was postponed by the counsel for further studies. Before that application, complainant constructed 4 rolling shutters illegally in the non-permitted area. There is chance for giving that rooms for sub lease. The local fund office of the opposite party is situated in the 1st floor and the staircase is needed to be opened for public. But the complainant illegally blocked the same for private use. The complainant denied the use of the public through that staircase. Only because these rooms 2 and 4 were sealed by the municipality on 5/2/08. An appeal was filed by the complainant against this. A WP(C) was filed before the Honourable High Court and the High Court ordered to hand over the possession of the rooms, avoid rent in that period, the stair case should be given to the public use. As per the order, the complainant filed a representation on 20.7.09. But the counsel decided to remove the illegally constructed shutters. Notice was given to the complainant for removing the illegal constructions on 22.5.09. But the complainant has not done the same as per the completion report of the engineer on 9.7.09. The complainant never opened the stair case for public use. So further action is started against the complainant
3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to? 4.The evidence consists of the oral testimony of PWs 1 and 2 and Ext. P1 to P9 marked on the side of the complainant. No oral evidence adduced by the opposite party.
5. The POINT :- Complainant was conducting hotel business in the opposite party's rooms. But it was sealed by the opposite party due to unauthorised use. It was challenged by the complainant in the local government tribunal and also before Honourable High Court of Kerala. But as per the order of the Hon'ble High Court the opposite party gave back possession of the rooms, but the agreement for the same is not at all created. Complainant was examined as PW1. PW1 was doing hotel business from 1976 onwards, but because of the loss in business, he started ready made dress business there. On 5.2.08 the opposite party came with police and sealed the rooms without any notice. Again issued a notice demanding arrears of rent, stair case should be opened to the public, and also to remove illegal constructions. This was set asided by the order from the local self government tribunal which is marked as Ext. P2. Again the opposite party denied of opening the rooms. So the petitioner approached Honourable High Court as WP(C) 214/09. The Honourable High Court ordered to give back the possession within one week. The complainant should remove the unauthorised constructions, the rent should be avoided in the period of not having the possession. Representation must be given about the opening of the staircase and the matter should be decided by the counsel. Ext. P3 is the order from the Honourable High Court. The complainant gave application for the same even when the opposite party denied the same as per the order of the High Court which is marked as Ext. P4. The complainant removed all the illegal constructions as per the order of the Honourable High Court with the presence of the building engineer. A representation was given by the complainant as per the order of the Honourable High Court which is Ext.P8. As per the written version of the opposite party, the complainant is not opening the staircase to the public. Complainant illegally blocked the same even after the order of the Honourable High Court of Kerala. An Advocate commission was appointed on this matter and the commission report is marked Ext.C1. The commissioner was examined as PW2. PW2 deposed that the staircase in dispute cannot be opened to the eastern road. As per the Ext.C1 report it is stated that the place in front of the staircase is using as a kitchen by the complainant. After the kitchen wall, there is another occupant in the name “Jose Pharma”. Only if the kitchen and the said “Jose Pharma” is removed, the stair case can be opened. The same is using as kitchen for a long period by the complainant himself. There is another wide entrance with 6 feet width and also there is stair case, which is in the main entrance, which is using by all the other occupants of the building including local audit office of the opposite party. So it is clear from the Ext.C1 report that the another room said “Jose Pharma” should be removed to open the staircase which is in the possession of another person. The Honourable High Court ordered to consider the matter of stair case, the complainant should give a representation to the opposite party and the counsel should decide upon that. As per the complainant one counsellor is in enmity with the complainant and so it is not decided with clean hands. As per PW1 he has already removed all the illegal constructions with presence of the building engineer. If it is disputed, what prevented the opposite party to produce evidence of the building engineer before the Forum. Anyway, the only matter which is before the Forum is whether there is deficiency in the part of the opposite party. All the other matters are decided by the Honourable High Court and it is not proper to look into it.
Hence even though the opposite party gave back possession of the rooms, no agreement has been created between the opposite party and the complainant. Only if there is an agreement, the opposite party can apply for Municipal license and apply for loan. The opposite party is having a loss of Rs.10,000/- per month as the income from the hotel. He also paying electricity bill about Rs.1600 once in a couple of month. The furniture and other equipments worth Rs.2 lakhs has been damaged because of the act of the opposite party. These matters are not challenged by the opposite party anywhere, even not in written version. So it is a gross deficiency in service of the opposite party who refused to make an agreement with the complainant for the use of the rooms, the complainant is paying rent for the same and also electricity bill. So we think it is fit to direct the opposite party to create an agreement with the complainant for the rooms given for rent to the complainant which is very necessary for the complainant to apply for Municipal license and bank loan and also to continue the business.
Hence the petition partially allowed. The opposite party is directed to create lease agreement with the complainant for the rented rooms within 7 days if it is opened for the use of the complainant by the opposite party, only if the complainant acted upon the directions in WP(C)214/09 of the Honourable High Court of Kerala. The opposite party also directed to pay Rs.2000/- as cost of this petition within 30 days of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default.
Pronounced in the Open Forum on this the 28th day of December, 2009 Sd/- SRI.LAIJU RAMAKRISHNAN(PRESIDENT) Sd/- I agree SMT.SHEELA JACOB(MEMBER) Sd/- I agree SMT.BINDU SOMAN(MEMBER) APPENDIX
Depositions : On the side of Complainant : PW1 - C.J. Mathew PW2 - Babichen.V.George On the side of Opposite Party : Nil Exhibits: On the side of Complainant: Ext.P1 - True copy of Notice dated 5.08.2009 issued by the opposite party Ext.P2 - True copy of Order in Appeal No.508/2008 dated 7.11.2008 berfore the Tribunal for Local Self Government Institutions, Thiruvananthapuram Ext.P3 - True copy of Order in WP(C) No.214/2009 dated 23.03.2009 before the Hon'ble High Court of Kerala Ext.P4 - Photocopy of complainant's letter datd 28.04.2009 addressed to the opposite party Ext.P5 - Photocopy of Notice dated 18.05.2009 issued by the opposite party Ext.P6 - Photocopy of Notice dated 14.08.2009 issued by the opposite party Ext.P7 - Photocopy of Notice dated 16.09.2009 issued by the opposite party Ext.P8 - Photocopy of Representation dated 1.06.2009 submitted by the complainant's to the opposite aprty Ext.P9 - Photocopy of Notice dated 5.08.2009 issued by the opposite party
Ext.C1 - Commission Report Ext.C1(a) - Rough Sketch On the side of Opposite Party : | 
