Per Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member

Being aggrieved by the judgement and award passed by District Consumer Disputes Redressal Forum, Ratnagiri in consumer complaint no.64/2008 decided on 18/2/2009 whereby while allowing the complaint partly, forum below directed original O.Ps to issue Building Completion Certificate to the complainant and also directed to refund an amount of Rs.1,27,665/- recovered additionally from the complainant from the year 1993 till March 2007 and to pay interest thereon @ 9% p.a. and also directed to pay Rs.10,000/- towards cost and compensation for mental harassment, original O.Ps Execution Engineer, MIDC, Ratnagiri and Deputy Engineer, MIDC, Sub division-Chiplun have filed this appeal challenging judgement and award.  Facts to the extent material may be stated as under:-

Respondent herein-M/s.Shriram Tiles Works had filed consumer complaint on behalf of firm with the grievance that despite demanding Building Completion Certificate, MIDC was not issuing him the same and was charging 1½ times more water charges right from 1993 till the date of filing of the complaint and, therefore, he had sought refund of the said amount with interest and direction to the O.Ps to issue Building Completion Certificate. He pleaded in his complaint that at village Kherdi, Taluka Chiplun, there is industrial colony developed by Maharashtra State Industrial Development Corporation.  Complainant firm had purchased piece of land bearing no.C-5 & C-6 as per agreement entered into between the parties.  Complainant firm is run under the name and style of ‘M/s.Shriram Tiles Works’ and manufactures some earthen articles.  Complainant required Building Completion Certificate from MIDC and for that purpose he had given all the documents asked for by the MIDC on 09/1/1993. However, for issuing Completion Certificate the MIDC asked him to procure ‘No Objection’ from Maharashtra Pollution Control Board and the approval given by Factory Inspector sanctioning the map for construction of  the building. MIDC sent letter and asked him to supply those two documents. According to complainant, he had made compliance on 22/7/1993 and received acknowledgement from MIDC. However, even thereafter under Right to Information Act he had sought requisite Building Completion Certificate but he was informed by letter dated 02/11/2006 that there have been some deficiencies and they would come on the spot, verify the removal of deficiencies and then issue Building Completion Certificate. It was the case of the complainant that on 22/7/1993 itself he had made compliance and from that date till filing of the complaint, the Building Completion Certificate had not been issued deliberately by MIDC and during that period since there was no Building Completion Certificate, he was being charged 1½ times rate for supplying water to his factory. He therefore, alleged that there was deficiency of service on the part of MIDC officials and, therefore, he filed consumer complaint and sought directions to issue Building Completion Certificate and also direction to refund Rs.1,27,665/- with interest of 10% thereon.

O.P. filed written statement and denied the allegations made by the complainant.  According to O.P. complainant had not made compliance of by obtaining necessary certificate from Maharshtra Pollution Control Board and had not procured certificate from Director General of Factories and, therefore, his case was pending. MIDC also pleaded that compliance was required to be made within time limit. Complainant was given two times extension in the time prescribed but even within extended period of time complainant had not made compliance and, therefore, matter was pending and he was charged for water supply @ 1½ times more than normal rate, since he was not having Building Completion Certificate.  MIDC pleaded that they were not guilty of deficiency in service and that fault lay with the complainant firm who had not made compliance within stipulated period or within extended time though twice extension was given to him.

Forum below on considering affidavits and documents placed on record was of the view that there was deficiency of service on the part of MIDC and, therefore, was pleased to allow the complaint partly as mentioned in opening para of this judgement.  Aggrieved by the said judgement, MIDC officie has filed this appeal.

We heard submissions of Mr.S.N.Shirsat -Advocate proxy for Navdeep Vora & Associates for the appellant and none appeared for respondent though he was duly served.

Upon hearing advocate for the appellant, we are finding that this was a dispute purely between M/s.Shreeram Tiles Works, a firm engaged in manufacturing or commercial activity and the MIDC, who develops industrial sites in various cities of Maharashtra.  Ld.counsel for the appellant submitted that dispute between MIDC on one hand and factory owner on the other cannot be held to be consumer dispute as has been held by the Hon’ble National Commission  in Revision Petition No.3811 of 2007 Rajasthan State Industrial Development & Investment Corporation Ltd. (RIICO) v/s. M/s.Diksha Enterprises.  In the said judgement Hon’ble National Commission held that respondent/complainant in his complaint stated that he had applied for industrial plot admeasuring 4000 sq.mtrs. for the purpose of setting up of factory for manufacturing of S.O.Dyes and dispute between such firm and Rajasthan State Industrial Development & Investment Corporation cannot be entertainable by the consumer forum for the simple reason that the plot was taken by the factory for manufacture of S.O. Dyes.  Referring to the definition of a ‘consumer’ under section 2(1)(d), it was contended before the National Commission that this was a transaction between factory or firm having manufacturing of commercial activity on one hand and Rajasthan State Industrial Development & Investment Corporation on the other and such a dispute is surely falling beyond the ambit of definition of ‘consumer’ as defined in section 2(1)(d) of Consumer Protection Act, 1986.  Hon’ble National Commission clearly held that the activity of the respondent M/s.Diksha Enterprises was commercial activity and, therefore, forum would not have any jurisdiction to entertain a complaint.

Hon’ble National Commission also held that even the definition of ‘manufacturing process’ as defined under section 2(k) of Factories Act also the factory run by M/s.Diksha Enterprises can be said to be a unit set up as manufacturing unit to earn profit. So services obtained by such factory even for consideration from the Rajasthan State Industrial Development & Investment Corporation would be for commercial purpose and such a dispute does not fall within the domain of Consumer Fora. It therefore held that respondent/complainant is not a consumer and forum below should not have entertained the complaint. As such, revision filed by Rajasthan State Industrial Development & Investment Corporation was allowed and complaint was dismissed.  In the same manner facts obtainable in our appeal are also disclosing that M/s.Shreeram Tiles Works is an industrial unit engaged in manufacture of earthen tiles, earthen pots and earthen wares and for that purpose it had purchased two industrial plots from the appellant-MIDC.  It has set up factory and for giving Completion Certificate it was required to procure certificate from Director General of Factories and also certificate from Maharashtra Pollution Control Board. Amongst other these two were vital documents required to be submitted by M/s.Shreeram Tiles Works before the MIDC within stipulated period and, therefore, this was a dispute between M/s.Shreeram Tiles Works engaged in manufacturing commercial purpose on one hand and MIDC on the other hand. So this cannot be a consumer dispute within the meaning of section 2(1)(d) of Consumer Protection Act, 1986 and relying on the judgement of National Commission mentioned supra, we also hold that such dispute between MIDC and M/s.Shreeram Tiles Works is beyond the pale of consumer fora and ignoring this vital aspect of the matter, forum below erroneously held that it was a consumer dispute and they passed award in favour of the complainant and against MIDC. Relying on this judgement of the National Commission we hold that dispute between appellant on one hand and respondent on the other was not a consumer dispute which could be entertained and tried by District Consumer Disputes Redressal Forum, Ratnagiri.

Secondly, even on merits we are finding that there was no deficiency in service on the part of MIDC appellant herein.  MIDC was simply insisting from 1993 to procure for granting Building Completion Certificate, one certificate from Maharashtra Pollution Control Board and secondly, certificate from Director General of Factories and that was required to be done within stipulated period of time as given by regional office of MIDC, Thane. Complainant had not procured those certificates within stipulated period within span of 7-8 years. Twice respondent was granted time to procure necessary certificates from Maharashtra Pollution Control Board and to produce Factory Inspector’s plan approval to enable them to proceed further. Still within stipulated period compliance was not made and that is why this matter was pending for issuance of Building Completion Certificate simply on account of default committed by M/s.Shreeram Tiles Works in not procuring these two documents within stipulated period or within extended time twice.  This was totally ignored by the Ld. District Consumer Disputes Redressal Forum while allowing the complaint in favour of respondent herein.  Levying of water charges @ 1½ times than normal rate is permissible because respondent had not procured Building Completion Certificate from the MIDC officials and we reiterate that this was on account of failure of the complainant/respondent herein to procure two necessary documents from Maharashtra Pollution Control Board and Building sanction plan from the Factory Inspector’s office.  Since the complainant was responsible for the delay, complainant cannot be heard to say that there was deficiency of service on the part of appellant herein. Appellant herein was within its right to ask the complainant to make compliance of certain things within time prescribed or within extended period. Even after extended period, the complainant had failed to submit the two documents required for issuance of Building Completion Certificate. Complainant has to blame himself and not the appellant herein.  In the circumstances, we are finding that the award passed by the forum below by the impugned judgement is bad in law and cannot be allowed to be sustained in law. Therefore, by allowing this appeal said judgement is required to be quashed and set aside. Hence, we pass the following order:-

                                                ORDER

1.                 Appeal is allowed.

2.                 Impugned order passed by the District Consumer Disputes Redressal Forum, Ratnagiri dated 18/2/2009 in consumer complaint no.64/2008 is quashed and set aside and complaint stands dismissed.

3.                 Parties are left to bear their own costs.

4.                 Copies of the order be furnished to the parties.