These two appeals are directed against the final order dated 11/01/2019 passed by Ld. D.C.D.R.F, Siliguri in reference to CC/80/S/2016. The fact of the case in nutshell is that one Susanta Bardhan registered a consumer complaint to the effect that he took tenanted shop room situated at Airport More, Bagdogra from owner of the shop room Nepal Chandra Bhowmik on and from 06/03/1985 to earn their livelihood by self-employment starting a small business under the name and styled “Bardhan Studio” and such rent agreement was renewed by virtue of another agreement on 01/09/1993 between one Asarani Bhowmik as owner and complainant S. Bardhan as tenant for another 4-5 years. And after demise of Asarani Bhowmik, the OP Nepal Ch. Bhowmik collected the rent of the shop room from the complainant month by month by issuing receipts on behalf of the owner of the shop room. Further case is that on February, 2015 the authority of Asian Highway verbally declared that a portion of the said rented shop room had already acquired and after an RTI enquiry it could be learnt that the said land was required for development of the project Asian Highway – II. Thereafter, the authority concerned has demolished the 1/3rd portion of complainant premises which the OP has let out the said portion of the premises and collected rents month by month dishonestly though he knew that the said portion was not in his peaceful possession which was already acquired by the Asian Highway. The complainant’s further case is that after the demolishing of the said portion of the said shop room, he had to incur huge cost to repair and to continue his studio business and in such situation there was complete deficiency of service on the part of the Ops Nepal Ch. Bhowmik and for that reason, he has registered the instant consumer complaint. The consumer complaint was contested by the OP by filing written version and contended that the case was not maintainable in law as because the tenancy agreement was expired on 28/02/1998 and in spite of that the complainant was occupying the premises tenancy without paying any rent and he illegally without any right had collected compensation of Rs. 43,150/- from the highway authority which he was not entitled thereto. He further contended in W.V that Asian Highway has acquired the front portion of his land and premises and paid the complainant and to all the land loser’s appropriate compensations and all the occupiers of the said building has vacated the front portion of the building for the better purpose of the public. So, there was no deficiency on the part of the OP landlord owners and for that reason, the instant consumer complaint was liable to be dismissed. Both sides have tendered their evidences and written note of arguments. Ld. Forum after hearing both sides have passed the impugned order by which the OP is asked to pay Rs. 1,00,000/- as compensation and Rs. 20,000/- as litigation cost to the complainant S. Burdhan as per provision of Section 13 of CP Act, 1986.
Being aggrieved with this order this appeal follows on the part of Nepal Chandra Bhowmik on the ground that the observation of Ld. Forum was not appropriate in the eye of law and liable to be set aside. The complainant S. Bardhan was not agreed with the final order of the Ld. Forum and for that reason, he has also filed a counter appeal against the judgment and prayed for modifying the said order so that his demand of getting refund to excess rent of Rs. 300/- per month for the period of 36 months and also the compensation to be awarded as Rs. 4,00,000/- and not as Rs. 1,00,000/- awarded by the Ld. Forum. So, by this counter appeal, the complainant S. Bardhan has wanted to increase the amount of relieves. Both the appeals and counter appeals are contested by the other sides through the Ld. Advocates and accordingly, the two appeals that is appeal bearing nos. A/29/2019 and A/13/2019 are heard simultaneously as both parties were agreed with this arrangement. And one single judgment shall cover the two appeals.
DECISION WITH REASONS
During the course of argument of appeal Ld. Advocate of the appellant N. Ch. Bhowmik in appeal no. A/13/2019 mentioned that at the initial stage the rate of rent was Rs. 250/- per month and in terms of agreement the said rent was increased to 612/- and subsequently enhanced to Rs. 912/-. It is further mentioned that the Asian Highway after acquirement of some portion of the said building that is 61 sq. ft. Out of 176 sq. ft. which was acquired for the public welfare, for extension of the Asian highway which has been suppressed in the pleading by the complainant S. Bardhan. He further mentioned that the complainant S. Bardhan has already received compensation from the National Highway as a tenant of a shop room which is completely illegal as because the compensation should be collected by the owner of a building whose portion has demolished by the public highway authority. The complainant in this case has suppressed the said fact and intentionally by decreasing the rent amount from Rs. 912/- to Rs. 612/- has been depositing the same in the Bank account of the OP without taking consent from the OP N. Ch. Bhowmik.
Ld. Advocate off the OP N. Ch. Bhowmik further argued that the complainant S. Bardhan has no locus standi to raise any compensation claim before the consumer forum as because any sort of dispute to be adjudicated by any rent tribunal and the forum is not competent authority to adjudicate such disputes between the landlord and a tenant. This contention is countered by the Ld. Advocate of the complainant S. Bardhan to the score that in case of a deficiency of service on the part of the landlord to the tenant then the Consumer Protection Act empowers the forum to adjudicate the dispute in that score and in reference to his argument referred a judicial decision of Hon’ble NCDRC in a case between Jagdish Bhai Sone Vs. Suravi Realtors. It is settled principle of law that in case of any dispute regarding tenancy matter comes under the domain of Premises Tenancy Act and the competent court has the authority to settle the dispute. But here in this particular case, the relationship between complainant and the OP as landlord and tenant are not disputed. So, the forum has got ample jurisdiction to decide the dispute arise in respect of deficiency of service on the part of the owner. After hearing both sides it is established that the contention in this particular case confines to adjudicate whether there was any deficiency of service or not on the part of the landlord. The deed of agreement dated 1/09/1993 entered between Asarani Bhowmik and S. Bardhan was continued for nine and half years and thereafter on the demise of A. Bhowmik the other legal heirs has entrusted N. Ch. Bhowmik to collect the rent from S. Bardhan for the shop room which ratified the acceptance of such agreement and continuation of such agreement. The tenanted room of the complainant S. Bardhan was measured as 22 feet in length and 8 feet in breadth. As regards the rate of rent it appears from the rent receipts that N. Ch. Bhowmik received the rent of Rs. 612/- up to March, 2013 and since April, 2013 Rs. 912/- per month and subsequently, the OP Nepal Ch. Bhowmik started to stop the acceptance of rent and for which S. Bardhan deposited the rent to the Bank in the name of the Op at the rate of 612/- per month. The Ld. Forum has rightly observed in the judgment that as per provision of CP Act, 1986 the consumer forum cannot adjudicate any matter of dispute regarding rate of rent in between landlord and tenant. The factual position is that the complainant S. Bardhan has been running a shop under the name and styled “Bardhan Studio” in the said shop room for earning his livelihood and as per terms and conditions of the tenancy agreement the OP N. Ch. Bhowmik and others has every obligations to discharge the duties towards the terms and conditions of agreement. But here in this case while same portion of the shop room was demolished, the complainant S. Bardhan has taken up the burden personally to repair the damage portion of the shop room due to such demolition and he has endured a sufferings for the said premises which has been lowered down by 61 sq. ft. that is more or less 33 per cent of total area which was tenanted to him. The complainant S. Bardhan by adducing cogent evidence could successfully proved that in spite of a condition of a tenancy agreement, the complainant was deprived from using the bathroom and latrine which was forbidden to him to be used intentionally by the OP in order to harass him from his peaceful occupation of his tenanted room. While as per terms and conditions of agreement he had every access to use the well, the bathroom and the latrine. It is established beyond any doubt that the OP has intentionally deprived the complainant from using such private affairs which is nothing but serious harassment upon the complainant and this attitude and conduct of the OP appears not only illegal but also amounts to deficiency of service and unfair trade practice on his part being an owner of a tenanted room. He has every liability to look after the wellbeing of a tenant who has been paying the rent in due time and facilities attached to the said tenancy was not fully provided though the owner was duty bound to do the same as per terms and conditions of tenancy agreement.
So, after hearing both sides and after consulting the pleadings very carefully, we find that the order of Ld. Forum delivered in connection with this consumer dispute appears to be very appreciable and no infirmity is detected and the Commission did not want to interfere with the observation of Ld. Forum. Thus, both the appeals devoid of any merit. The final order of Ld. D.C.D.R.F, Siliguri dated 11/01/2019 in reference to CC/80/S/2016 should be confirmed.
Hence, it is ordered,
That the instant two appeals bearing no A/13 of 2019 and A/29 of 2019 are hereby dismissed on contest without any cost. Both these two appeals are hereby disposed of accordingly.
The order of Ld. D.C.D.R.F, Siliguri dated 11/01/2019 in CC/80/S/2016 is hereby confirmed.
Let the order be handed over to the parties free of cost and the same be communicated to the Ld. D.C.D.R.F, Siliguri through e-mail.
