In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/169/2022.

Date of filing: 18/08/2022.                     Date of Final Order: 09/09/2024.

Sri Debasis Jash,

s/o Late Mihir Kumar Jash,

r/o no. 2, Brojo Chandra Gali, Kamarpara,

P.O. & P.S. Chinsurah, Dist. Hooghly, PIN. 712103.                                    ……complainant

  vs -

The Acquisation Manager,

GTL Infrastructure Ltd.,

Shaila Tower Unit no. 11/16,

Block EP & GP, Sector V, Salt Lake,

 Kolkata, West Bengal- 700091.                                                                        ……opposite party

Before:            President, Shri Debasish Bandyopadhyay.

                          Member,  Debasis Bhattacharya.

                         Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that in the year 2009 the OP approached the complainant to set up a tower on his top and offered him to pay Rs.9000/- per month which shall be increased 10% every 3 years.  As the complainant was unemployed then and for living his livelihood, the complainant have executed into a lease agreement on 12^th November, 2009 with M/S Dishnet Wireless Limited for installation of Tower for transmitting cellular Mobile Service at his premises as mentioned in cause title which was subsequently transferred to G.T.L. Infrastructure Limited.  As per Lease  Agreement dated 12^th November, 2009 it is valid upto 12.01.2022 and it was his only sources of income.  It is a tragedy that from December 2017, the OP have not paid a furthering as license fees to the complainant and have become defaulter and as such the OP have deceived the complainant.  From December 2017 to 11.3.2020 the complainant have total outstanding which is described in complaint’s petition.

Again Labour charge for maintenance of the tower @Rs.2500/- per month is also due from December 2017 to 11.3.2020 i.e. total 28 months @ Rs.250/- = Rs.70000/- which the complainant paid the same from his own pocket though it was the duty of the OP to pay the same.  Thus total outstanding is Rs.390166/- only was due.  The complainant have sent them several notices for nonpayment of his outstanding amount and on 08.01.2020 also sent them a letter requesting them to remove the tower as it became very much damaging and detrimental to his property from the unused installment of the tower without any proper maintenance.  Several complaints were placed by the MLA of Chinsurah, the Chairman of Hooghly Chinsurah Municipality and also by the local people of the locality for removal of the Mobile Tower from the his roof top.  The complainant’s life has become miserable due to their non cooperation and not taking any speedy action inspite of receiving all the letters.  Having no other alternative the complainant as its original place engaging his labour man who removed the tower and piled and stored all the material on the complainant’s roof and gave a written declaration of his activity of removal and storage in the roof.  This caused more damage of the property of the complainant.  The entire matter was kept the dismantled tower unattended which may cause serious damage of the property and also may cause untoward incident during this heavy rainfall and tornado.  Life threat may also cannot be overruled as it may any day fall upon the adjacent houses and there is every chance of severe danger to the property due to their non operational tower left behind and the complainant is passing his days with great fear and anxiety.

The complainant for removing the tower from the roof top of the complainant property became so much damaged which should be compensated immediately otherwise in the coming rainy season it may cause more serious condition.  As per survey report of Mr. Suprokash Das, Consultant Civil Engineer, Project Consultant, Valuer & Loss Assessor dated 15.3.2020, it has been assessed the value of damage of Rs.402175/- only.  In addition Rs.80000/- only approx has been expended as labour charge for dismantling the tower.  In total the complainant claimed Rs.390166/- + Rs.402175/- + Rs.80000/- = Rs.872341/- only vide his letter dated 14.6.2021 and 28.6.2021 to the OP but inspite of receiving the letter and having had the knowledge regarding the above expenses, the complainant have not getting any payment of outstanding rent or compensation of damage of the property and the complainant thinks that he has been cheated by the company by nonpayment of his outstanding amount and non removal of the stored huge piled materials of the mobile tower from his roof and thus the Acquisation Manager, GTL Infrastructure Ltd and its official and agents have committed the act of breach of trust and cheating.

If the complainant had any knowledge that he will be cheated from their part, he shall not enter any agreement with them and gave them the permission for installation of mobile tower in his property.  The entire process was done only to cheat the complainant and thereby cause serious breach of trust.  Their such course of action is nothing but purported and my to frustrate legitimate claim for which complainant is suffering from huge financial loss along with severe mental pain and anxiety.  Having no other alternative the complainant informed the OP-2 by issuing a legal notice on 14.6.2021 and 28.6.2021 for immediate payment but inspite of receipt of the notice neither his claim was settled nor at all responded.  The complainant also informed the matter to the I.C. Chinsurah, Hooghly 12.7.2021 by speed post and also by hand as well as C.P. Chandannagore police Commissionerate on 13.7.2021 through speed post but still not getting proper relief.

Complainant filed the complaint petition praying direction upon the opposite party to pay a sum of Rs.872341/- with 12% interest from date of December,2017 to till the date of recovery of the amount and to pay a sum of Rs.200000/- for mental agony, anxiety and harassment and to pay a sum of Rs.100000/- for litigation cost.

Defense Case:-  The opposite party  contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the defendant company namely GTL Infrastructure Limited is a company incorporated under the Companies act, 1956 and is registered under the Infrastructure Provider category 1 with the Department of Telecommunication Govt. of India to establish and maintain, inter alia, telecommunication towers and for the purpose to grant on lease basis to the licensees of Telecom Services licensed under section 4 of the Indian Telegraph Act, 1885 and is inter alia engaged in the business of installation of passive telecom Infrastructures  in the telecom service circles of Kolkata and rest of West Bengal Circles. 

The telecommunication Sector was exclusively with the Central government and no private participation was allowed.  In July 1992 certain private companies were allowed in the telecommunications sector including cellular mobile telephony and some companies were issued Licenses under section 4 of the Indian Telegraph Act, 1985 to establish & operate such services.  In and around 1994, the Govt. of India came out with a National Telecom policy.  The National telecom policy, 1994 which amongst other things, stressed on achieving the universal service, bringing the quality of telecom services to the world standards, provisions of wide range of services to meet the customers demand at reasonable price, and participation of the companies registered in India in the area of basic as well as value added telecom services as also making arrangements for protection and promotion of consumer interest and ensuring fair competition, there was a need felt to separate regulatory functions from service providing functions which will be in keeping with the general trend in the world.  In the multi-operator situation arising out of opening of basic as well as value added services in which private operator were to compete with government operators, there was a pressing need for an independent telecom regulatory body for regulation of telecom services for orderly and healthy growth of telecommunications infrastructure apart from protection of consumer interest.  Pursuant to the said telecom policy the Govt. of India decided to allow private operators to provide basic and cellular telecommunications and paging services in India in order to ensure the availability of adequate telecommunications facilities throughout the country.  Accordingly licenses were issued to private operators under section 4 of the act to establish and operate telephone services in diverse area.

The OP submit that the GTL Infrastructure Limited being the employer of the OP is a company and is engaged in the service of providing passive telecom Infrastructure services, viz the telecom towers with all of its allied equipments in various telecom circles, including the telecom circle and service area of Kolkata and rest of West Bengal by virtue of a registration certificate for infrastructure Provider Category-I to the Licensees viz Telecom Operators granted licenses under section 4 of the Indian Telegraph Act, from the Department of Telecommuncations, Ministry of Communications, Govt. of India, New Delhi.

Therefore the op permanently mentions that the GIL is entitled to have reciprocal Multi Operator arrangements in each of its Telecom Site including the instant one under this alleged dispute and the said Licensed Telecom Operators are the clients/ consumers of the company of answering op to whom the company i.e. the GIL is contractually bind to render service under respective service agreements and the op further submits that the Passive Infrastructure Services are essentially a “Public Utility Services” and without Passive Infrastructure the telecommunication service providers cannot fulfill their license obligations to the Govt. of India to provide telecommunication service to their subscribes in their respective licensed area and to meet these obligations the company has to erect and maintain large number of towers and such mobile tower are essential for transmitting the receiving signals so it is paramount and urgent Service which the employer of the answering op is bound to render to the Public at large and the GIL is under obligation to provide such services as a social commitment and also as an obligation under the aforesaid Registration Certificate. As per the said registration the GIL is also duty bound as delegated by the Allocations, Ministry of Telecommunication, Govt. of India, New Delhi. Therefore it is obligation of each Telecom Operator and Infrastructure Providers to provide the wireless telecommunication services to public within specified areas as per the allocation.

            The instant alleged dispute between the complainant and the op’s employee company is on the basis of an agreement being the License Deed dt. 12^th November, 2009, entered into by and between the M/S. Dishnet Wireless Limited (an “Aircel” entity) being the predecessor-in-business of the op company and the complainant namely Sri Debasis Jash hereto in respect of installation and maintenance of a mobile tower/ Roof Top Telecom Tower upon the schedule property and the said agreement was entered into between M/S Dishnet Wireless Limited  as the Licensee, being the predecessor-in-business of the op company actually herein, and Sri Debasis Jash as the Licensor, being the Consumer Complaint herein. It is to be pertinently mentioned that the said agreement is not of a service agreement but a license agreement in form of rental agreement for a prolonged period only and under the terms of the said agreement i.e. the License Deed dt. 12^th November, 2009 and in terms of the said agreement at clause no. 7 (ii) it is provided and/ or mentioned that “If any dispute, difference or question concerning the interpretation or implementation of any provision of this agreement arises or as to the right, liabilities and duties of either party, the same shall be referred to the sole arbitrator duly appointed by the licensed herein which shall be conducted in accordance with the Arbitration and Conciliation Act, 1996 including any statutory modification thereof.

It is stated that subsequently as per the scheme of an arrangement, Aircel Companies i.e. Aircel Limited (AL), Aircel Cellular Limited (ACL) and Dishnet Wireless Limited (DWL) (hereinafter referred to as “Aircel”) have sold its infrastructure business to the Chennai Network Infrastructure Limited (CNIL) and the parties had filed a company petition before the Hon’ble High Court of Judicature of Madras vide petitions no. CP. Nos. 103, 110 to 112 of 2010 for its permission and the Hon’ble High Court of judicature at Madras was pleased to pass and order dt. 16^th June, 2010 stating that the infrastructure business owned by “Aircel” have been acquired/ owned by CNIL with effect from 19^th July, 2010 i.e. the date on which the said Court order was filed with the Registrar of Companies, Chennai and the said scheme made effective and by virtue of the said scheme of agreements and the order dated 16^th June, 2010 of Hon’ble High Court of Judicature at Madras, with effect from 19^th July, 2010 the Chennai Network Infrastructure Limited (CNIL) has been substituted for Aircel as the Licensee/Lessee in respect of its telecom infrastructures.  The petitioner craves leave to show and submit a copy of the said order dated 16^th June, 2010 as passed by the High Court of Judicature at Madras during the time of hearing.

The said Chennai Network Infrastructure Limited (CNIL) has been merged with the GTL Infrastructure Limited  i.e. the present Licensee, through a subsequently made scheme of arrangement as sanctioned by the National Company Law Board at Chennai Bench by an order dated 13^th December, 2017 and National Company Law Board at Mumbai Bench by an order dated 22^nd December, 2017 and as such all ‘the telecom sites of Chennai Network Infrastructure Limited including the present one has been merged into GTL Infrastructure Limited with effect from 1^st April, 2016 ( “Appointed Date”).  The petitioner craves leave to show and submit the copies of the said orders as passed by the National Company Law Board, Chennai Bench and National Company Law Board, Mumbai Bench during the time of the hearing and it is stated by the answering OP that the GIL is required to maintain the said telecom site as well as the said tower for reciprocal Multi Operator arrangements and apart from this as per Clause no. 3(IX) of the said agreement dt. 12^th November, 2009 for operational purposes GIL’s personnel are always required to visit and approach the said site and the said tower on regular bases and in fact as per the business operation of GIL the company leases its towers to the telecom operators and as per terms and conditions agreed between GIL and telecom operators GIL has to keep its towers in working condition all times and if there is any default in the same t he company viz. GIL suffers huge losses and damages. In the aforesaid circumstances the instant complainant started causing access issue by not giving access the officials/ staffs of GIL and the representatives of its customer operators and obstructing GIL’s operational work by forcefully switching off the site as per his shims time to time and as such the tower was becoming un-operational which causes huge loss to the op, company and the employees of company tried to persuade the complainant and tried to discontinue him from committing the illegal acts but all in vain.

The op company most specifically mentions that the complainant of the instant matter had in one hand caused the severe access issue towards the staffs of the GIL barring thereby the GIL to operate the said tower and to share the said telecom tower to any other telecom operator or operators and thus caused a huge business loss to the GIL and on the other hand by projecting local peoples objection caused the concerned Hon’ble Hooghly Chinsurah Municipality to issue a removal notice dt. 26^th November, 2019 bearing memo no. 5431/3 of the said tower and in the aforesaid circumstances as craftily created by the complainant of the instant case to cause a huge business loss of GIL the said complainant issued a letter dt. 8^th January, 2020 to the Acquisition Manager, the then was of GIL requesting the GIL to remove the said tower and thereby assuring to waive the demand of rental payment whatsoever and in the above mentioned circumstances and/ or positions the GIL was compelled to dismantle its tower from the site as situated on the roof top of the complainant of this case and this immature dismantling of a prospectus site has caused the GIL another huge losses in terms of its future business.

It is hereby most specifically stated herein that immature dismantling of the said telecom site was completed by 11^th March, 2020 and the worthy materials of the said Tower Site including the said Tower’s structure and allied valuable equipments were lying at the said site viz on the roof top of the premises of the complainant and the complainant being a crafty and opportunist in nature did not allow the staffs of the GIL to remove the said worthy materials from the abovementioned premises of the complainant and the staffs of the GIL had persuaded the complainant on several times which were unheeded by the complainant and finding no other alternatives the GIL was constrained to issue a notice dt. 19^th March, 2020 requesting the complainant to allow then to remove the said valuable equipments namely all gadgets, SMPS, BTS, Diesel Generator Set, Industrial Air-Conditioners with all electrical materials including costly structure of the said dismantled tower but all efforts of the GIL went in vain.

It is stated herein that the License Deed dt. 12^th November, 2009 (hereinafter referred to as “the agreement”) in connection whereof the said tower was constructed contains the clause no. 7 (ii), which states and runs that “If any dispute, difference or question concerning the interpretation or implementation of any provision of this agreement arises or as to the right, liabilities and duties of either party, the same shall be referred to the sole arbitrator duly appointed by the licensee herein which shall be conducted in accordance with the Arbitration and Conciliation Act, 1996 including any statutory modification thereof and the complainant had signed the said agreement dt. 12^th November, 2009 and had accepted to abide by the terms and conditions of the said agreement but in spite of this the said complainant has intentionally avoided to refer the alleged dispute to the Arbitrator and has filed this case to harass the op and the dispute as alleged is purely out of the ambit and scope and jurisdiction of this Hon’ble Forum as the contractual relationship between the complainant and GIL is Licensor- Licensee or in other words Landlord- Tenant only that neither there is no such agreement or any “service” agreed between the parties hereof nor there is any unfair contract has been ever executed, nor the complainant bought any “goods” from the op, company, nor there is any “service” has ever been agreed by the op to the landlord complainant hereof save and except the License Fee being monthly Rent as agreed vide the said agreement dt. 12^th November, 2009 till the continuation of the operation of the said Telecom Tower. So, this case should be dismissed with cost.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three points of considerations which have been framed on the issue of maintainability of this case, jurisdiction of this District Commission, cause of action matter and whether complainant is a consumer in the eye of law are very vital issue and the questions involved in these points of considerations are interlinked and / or inter-connected with one another.  For that reason and for the convenience of discussion all the above noted three points of considerations are clubbed together and taken up for discussion jointly.

For the purpose of arriving at just and proper decision and also for the interest of deciding the fate of this complaint case, there is urgent necessity of making scrutiny of the material of this case record and also urgency of scanning the evidence on record.

In this regard this District Commission after going through the material of this case record and also after making scrutiny of the evidence on record finds that the complainant had installed the mobile tower for the purpose of running business which is undoubtedly for commercial purpose.  But fact remains that the complainant has adopted the plea that he is an unemployed youth and for the purpose of earning his livelihood he has installed the said mobile tower in this connection it is very important to note that the complainant in supportive of his point of consideration has adduced evidence of himself but in this regard this part of evidence of the complainant has not been corroborated and / or supported by any corroborative evidence.  In this regard it is the settled principle of law that to come within the meaning  of “Consumer” as defined in the Consumer Protection Act,  he will have to establish that services were available exclusively for the purpose of earning his livelihood by means of self-employment.  This legal principle has been observed by Hon’ble Apex court in the case of SHRIKANT G . MANTRI versus PUNJAB NATIONAL BANK  and it is reported in II (2022)CPJ 9(SC).  In this regard it is very important to note that this District Commission has already observed that the complainant has failed to produce any corroborative evidence in supportive of his case that he is a consumer under the OP.  It is also very crucial to note that the complainant has failed to produce and prove any believable documentary evidence such as Income Tax return, Sales Tax return GST return etc. to show that he has installed the said mobile tower for earning his livelihood by means of self-employment.  Thus it is crystal clear that the complainant is not consumer under the OP.  So this case is not maintainable in the eye of law.

After going through the material of this case record it is revealed that the complainant has claimed compensation for causing damage.  In this connection it is the settled principle of law that the claim of compensation for sustaining damage can only law before the Ld. Civil Court.  This District Commission has no jurisdiction to pass any award of compensation on the ground of damage.  This factor is also clearly highlighting that the case of the complainant is also not maintainable and this District Commission has no jurisdiction to try this case.

On close examination of the material of this case record it is found that the complainant in his pleading has adopted the plea that he has been cheated by the OP.  In this connection it is important to note that the cheating is an offence and so the complainant had / has the liberty of initiating criminal case.  In the matter of determination of the issue as to whether the complainant has been cheated by the Op or not, the only jurisdiction is lying before the Ld. Criminal Court.  In this regard this District Commission should not be out of mind that this District Commission is conducting trial by adopting by summary procedure.  In the cases of cheating, fraud, forgery or misappropriation of money or of criminal breach of trust, there is no scope of determination of the issue by summary procedure.  Thus it is crystal clear that this District Commission has no scope to determine to issue of cheating.  This factor is clearly reflecting that this District Commission has no jurisdiction to try this case.

A cumulative consideration of the above noted discussion goes to show that the complainant is not consumer under the OP and this case is not maintainable and the complainant has no cause of action for filing this case and this District Commission has no jurisdiction to try this case.  So all the above noted three points of considerations are decided against the complainant.

As this case is not maintainable and this court has no jurisdiction to try this case, this District Commission is of the view that there is no further necessity of explaining or discussion in respect of points of consideration under 4&5.

In the result it is accordingly

ordered

that this complaint case being no. 169 of 2022 be and the same is dismissed on contest.

No order is passed as to cost.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.