DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.792/2008
Mr. Vinay Kumar Aggarwal
S/o Late Sh. Laxmi Chand
R/o 1, Jain Mandir Marg,
behind Coffee Home,
Connaught Place,
New Delhi ….Complainant
Versus
Tata Sky Ltd.
having registered office at
3rd Floor, Bombay Dyeing A.O. Building
Pandurang Budhkar Marg, Worli,
Mumbai-400025
Also at:
VSNL Compound
Chhattarpur Mandi Road,
Chhattarpur, Delhi ……Opposite Party
Date of Institution : 03.12.08 Date of Order : 04.02.17
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
O R D E R
Complainant’s case, in short, is that he is the owner of House No.1, Jain Mandir Marg, Connaught Place, New Delhi which is registered in the name of Atithi (with four rooms) as gold category under the National Capital Territory of Delhi (Incredible India) Bed and Breakfast Establishment (Registration and Regulation) Act, 2007 (in short, the Act) by the Department of Tourism, Govt. of NCT of Delhi. He was not required to obtain a license from any authority for the purpose of providing food or lodging service to the guests at his establishment. As per law the establishment is not to be treated as a commercial unit. He is liable to pay power and water tariff as applicable to domestic or residential use and the property tax as applicable to residential tenanted premises with respect to the portion let out to the guests, restrictive to the period of occupancy thereof fully or partly as the case may be. He is also not required to pay value added tax under the Delhi Value Added Tax, 2004 nor the tax levied under the Delhi Tax on Luxury Act, 1996. In order to provide facility to the guests he had applied to the OP for their services in four rooms in the above said establishment; though the connection bearing ID No.1014031277 with two Add on connections in the name of his wife Mrs. Kanta Aggarwal at the same premises is being charged as domestic, yet the other four connections in his name bearing ID Nos.101463115, 1014162851, 1014059461 & 1014162273 installed in the same premises are being charged at commercial rate. Even though the entire premises is a residential unit, and cannot be treated as commercial unit for any purpose whatsoever and he sent various requests and reminders to the OP but the OP is charging commercial rate in respect of the aforesaid four connections. He sent a legal notice on 5.09.2008 to the OP which was duly served to the OP. The OP instead of rectifying the mistake sent a frivolous and baseless reply on 1.10.2008. Hence the OP is indulging in unfair trade practices and restrictive trade practices. It is clear and evident that there are faults, imperfections, shortcomings and inadequacy in the quality, nature and manner of performance of services on the part of the OP and there is deficiency in service on the part of OP resulting in huge inconvenience, harassment, damages and mental tension etc. to the complainant. The complainant has filed the present complaint with the following prayers:-
1. pass a “Cease and Desists” order and direct that the unfair and restrictive trade practices adopted by the opposite party shall be discontinued and shall not be repeated.”
2. Direct the OP to charge the Complainant at the residential connection rate only in respect of the aforesaid connections, in the name of Complainant, ever since the date of installations/activations,
3. Direct the OP to refund/adjust the excess charged by the OP in respect of the said four connections from the date of their installations/activations till the date when those have been charged at the commercial rate,
4. Direct the OP to pay to the Complainant a sum of Rs.20,000/- as compensation together with interest at the rate of 12% per annum till the date of realization by the Complainant.
5. Direct the OP to pay costs to the Complainant.
OP in the written statement has inter-alia stated that the Complainant’s contention that the guest house run by him does not constitute a commercial activity for any or all purpose is misconceived. The guest house run by the Complainant has been granted certain concessions and exemptions under the Act. The Union Legislature, existing its power under entry 31 of the Union List has framed legislation for Direct to Home service (DTH services) Industry. Under such legislative or statutory instruments as flowing from entry 31 of the Union List, the OP is authorized to charge the commercial rates for providing DTH services to the establishments which are being run for earning a profit or income. Therefore, the establishment being run by the Complainant as a guest house is earning a profit or income and would be classified as a commercial activity for the purposes of applicable charges for the DTH services. The exemption provided under Act is only for limited purpose, and is not a blanket exemption as contended by the Complainant. The Act passed by the Delhi Legislative Assembly cannot seek to override legislation for the DTH services industry provided under the statutory authority emanating from Entry 31 of the Union List. Entry 31 of the Union List enables commercial rate to be charged by the OP for providing DTH services to that portion of the Complainant’s premises which is being commercially used as guest house. The same cannot be taken away and disallowed by any provisions under any State Act. The provisions of the Act have to be read accordingly and cannot be used to constitute that guest house run by the complainant would not be a commercial unit. If such guest houses otherwise are found to be commercial in nature under statutory powers and recognition flowing from the Union List, provisions of the state statue cannot override the mandate of union statutory powers and authority flowing from Union List. It is stated that prior to the installation of the DTH services at the complainant’s guest house, the complainant had agreed to the applicable commercial charges with respect to the DTH services which were to be provided to that portion of the complainant’s premises which was being run as guest house. OP has prayed for dismissal of the complaint.
Complainant has filed a rejoinder. It is denied that prior to the installation of the DTH services the Complainant had agreed to the applicable commercial charges with respect to the DTH services which were to be provided to that portion of the Complainant’ premises.
Complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Gyaltsen G. Barfungpa, constituted attorney has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the parties and have also gone through the file very carefully.
Admittedly the Complainant is the owner of House No.1, Jain Mandir Marg, Connaught Place, New Delhi which is registered in the name of Atithi (with four rooms) as gold category under the Act by the Department of Tourism, Govt. of NCT of Delhi. The registration certificate was issued by the Govt. of NCT of Delhi in favour of the Complainant (copy Annexure C-1). Complainant was not required to obtain a license from any authority for the purpose of providing food or lodging service to the guests at his establishment with other benefits described above. The Complainant applied for connection with two add on connections in the name of his wife Mrs. Kanta Aggarwal at the above premises and four connections in complainant’s name to be installed in the same premises. The OP charged from the Complainant’s wife domestic charges and for the four connections in the name of the Complainant at the commercial rate. The Complainant sent a legal notice dated 05.09.2008 (copy Annexure C-3) to the OP regarding charges as domestic. The OP vide letter dated 01.10.08 (copy Annexure C-4) informed the Complainant that the premises are commercial and they had charged as per DTH services and requested him to approach the TRAI and the Ministry of Tourism to seek the clarification on this issue. The Complainant vide letter dated 20.10.2008 (copy Annexure C-16) sent a reply to the OP. The OP vide letter dated 23.10.08 (copy Annexure C-18) again requested the Complainant to approach to the TRAI and the Ministry of Tourism to seek clarification on this issue.
In view of the above, it transpires that as per the above Act it is clear that such establishments shall not be treated as commercial one and shall only be liable to pay power and water tariff as applicable to domestic or residential use and property tax as applicable to residential tenanted premises with respect to the portion let out to the guests, restrictive to the period of occupancy thereof, fully or partly as the case may be. The OP charged the above four connections at commercial rates.
The four Tata Sky connections in the premises of the complainant used in the guest house were being charged at commercial rate by the OP under the Central Govt. for providing DTH Services. The complainant was allowed to run the guest house under a Statue enacted by the State. Therefore, in our considered opinion, the Statue enacted by the State cannot override the Statute enacted by the Centre. Secondly, the complainant has not filed any document to show that he has been showing the income earning from the guest house as his individual income or has been filing a separate income tax return in respect of the guest house and is not availing certain exemptions which are available to a commercial establishment under the Income Tax Act. This would have been a very vital piece of evidence to arrive at the conclusion whether the complainant himself is treating the said guest house as residence and not as commercial unit for purposes other than the exemptions provided under the Act. Therefore, in our considered opinion, the complainant has failed to establish any unfair trade practice, restrictive trade practice or deficiency in service on the part of OP. Accordingly, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 04.02.17.
