COMPLAINT FILED ON:11/06/2019

DISPOSED ON:27/02/2023

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:353/2019

DATED: 27^th February 2023

PRESENT: Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                  Smt. B.H. YASHODA, B.A., LL.B., LADY MEMBER        

  Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER       

::ORDER::

By Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER.

This is a complaint filed by the Complainant U/s 12 of Consumer Protection Act 1986, seeking relief against the OP for the loss suffered for giving service to public at large Rs.2,00,000/-, Rs.1,00,000/- towards mental agony, travelling, lunch and other expenses to the tune of Rs.50,000/- and Rs.2000/- towards notice charges with the interest at the rate of 18 % per annum for causing loss to the Complainants to contest the Election which is to be held in City Municipality Hiriyuru and for such other relief as this Commission deems fit.

       Brief facts of the complaint is as follows:-

2. The 1st Complainant intended to contest the election to the Ward No.7 which is to be held on 29/05/2019. The second complainant is the husband of the 1^st Complainant.  The Complainant applied for no due (bay Baki) Certificate from the OP on 08/05/2019 along with Affidavit, Ration Card and other necessary documents.  1^st Complainant was not possessed any property at Hiriyur Town.  2^nd Complainant had a site property and had paid taxes up-to-date which was due to City Municipality.

        After giving the representation by the 1^st Complainant to knock the door of the OP office regularly.  OP  told the Complainant that shop same will given shortly.  When the Complainant demanded no due certificate on the last date of filing nomination on 16/05/2016 OP deliberately delayed to issue no due certificate to Complainant by giving one or the other reason.

        3. On 10/05/2019 once again the Complainant gave representation to the OP demanding no due certificate by narrating detail facts.  Thereafter several times both Complainants visited office of the OP by that time the manager told he is outside the office on official duty.  Finally Complainant No.1 demanded no due certificate on 13/05/2019 OP had issued endorsement at 4:30 pm. stating father in law of complainant No.1 has taken a shop premises at Ghanapuri Commercial complex shop No.27 and the  said shop is runned by the Complainant No.2 also who is the son of Yosuff  Sab and due to ill health of his father he was running the shop and he was in arrears of rupees 2,01,600/- without basis. Further OP stated that my clients husband has given Affidavit to OP that he is running business in that shop.  Hence 2^nd Complainant is liable to pay Arrears of rent to the said shop premises.  If the Complainant No.2 pays the above said amount action will be taken in the respect of issue of no due certificate.  Both the Complainant are not due to OP but only balance like tax of rent is due to the OP.  Complainants have furnished all documents like affidavit duly sworn before the notary in spite of that the OP has not issued the no due certificate even though Complainants are not in arrears of any due to the OP.

4. Complainant again gave Petition to OP on 15/05/2019 when the date was very short for election demanding no due certificate.  In that Petition Complainant No.1 stated that there was only blood relationship with Yosuff Sab and no financial relationship.  OP have filed Petition before the state officer Hiriyur City Municipal Council to evict the Yosuff Sab from the Schedule premises in case no 27/2014 and the said case is pending and not decided the quantum of arrears of rent due from the said Yosuff Sab.  Further there is no rule in Karnataka Municipal Act if any member of the family is due in any arrears of tax or any other mode of payment, no documents will not be given to the other family members.  The opposite party has exceeded his limits and caused inconvenience to Complainant and further restrain to exercise her constitutional right to contest the Election from ward No.7 which is notified to category B.C.M "B". Opposite party is deficiency in service on his part.  The opposite party is negligent in discharge the duty.  Further OP called Complainant through land line and informed that one Bheemaraj one of the officials of the OP  called Second Complainant to give cheque for the amount of Rs.2,01,600/- then informed the Complainant that they would give no due certificate if the 1^st Complainant pays the same.  If either of the Complainants pay the said amount then the OP would give no due certificate.  If at all any due from the Yosuff Sab then the OP can take legal action to recover the same from them. On 16/05/2019. 1^st Complainant went to file nomination before the Returning Officer they refused to received the nomination for want of no due certificate and the same notified in the nomination application the Complainant was fit candidate and local candidate to the said ward.  Though complainant knocks the door of opposite party several times but OP filed to issue no due certificate for the reasons best known to them and hence alleging deficiency in-service on the part of the OP have filed this present Complainant.

5. After the receipt of the notice to OP 1 and 2,  OP 1 and 2 appeared  through their Counsel and have filed their version.  In the version OP 1 and 2 contended that complainant is not maintainable either in Law or on facts.  Complainant being aggrieved by endorsement dated 13/05/2019 issued by OP have filed the present complaint as there is alternative remedy available for the complainants to objection the same before competent Civil Court and deficiency in-service does not arise at all.

6. Main allegation of the complainant is that OP have failed to issue no due certificate to the complainants and accordingly, complaint No.1 has lost a chance to contest election which is held in City Municipality.  Further OP Contended that only after a week prior to the date of filling nomination the Complainant have approached the OP and have sought "No Due Certificate" without giving ample opportunity to the OP to verify the records.  Inspite of the same the OP after scrutinizing the documents available have issued endorsement dated 13/05/2019 stating that there is an arrears of rent Rs.2,01,600/- for the shop No.27 at Ghanipuri commercial complex which was run by the Complainant No.2 and if the same is paid no due certificate will be issued, as such OP have done their duty much prior to the statutory time limit but also before the date of filling the nomination papers.  The complainants due to their lapse to submit the documents in time to the nomination authorities are just passing on the Burden to the OP which does not attract the provision of the Consumer Protection Act.  Further the OP contended that complainant have not paid any fee to collect the no due certificate from the OP as such there is no deficiency of service on the part of the OP. Further op denied all other allegations made in the Complaint and prays for the dismissal of the complaint with exemplory cost.

        7. Complainant No.1 have filed his affidavit evidence and got marked Exhibits-A-1 to A-27 and have closed their side evidence.

        8. Affidavit evidence of OP, is filed by one Sri G.Prem charls and affidavit of one Smt. Leelavathi for OP.2 have filed their affidavit evidence and got marked Exhibits B-1 to B-9 and have closed their side evidence.

    9. Heard arguments of complainant and OP side arguments was taken as heard.

10. The point that arise for our consideration

1. Whether the Complainant proves he is a Consumer?
2. Weather the Complainant is entitled for the relief as sought in the complaint?
3. What Order?

   11. My answers to the above points are as follows:

Point No.1: In the Negative

Point No.2: In the Negative

Point No.3: As per final order  

:: REASONS ::

   12. Point No.1: On the perusal of the pleadings of the both the parties it is not in dispute that the 1^st complainant is intended to contest the election to ward No.7 which was to be held on 29/05/2019 2^nd complainant is husband of the 1^st complainant the complainant had applied for the no due certificate from the OP on 08/05/2019 as per Exhibit A-1 along with affidavit and ration card as per Exhibit A-2 and A-3 along with other relevant documents.  The 1^st complainant has not possessed any property at Hiriyur Town.  But the 2^nd complainant had a site property and had paid all taxes up to date which was due to the City Municipality.

        13. After giving a petition the 1^st complainant knocked door of the OP office and gave representation to the OP. No.1 seeking no due certificate (Bay Baki) again on 13/05/2019 for issuance of the no due certificate as complainant No.1 had filed nomination to contest the election to the ward No.7.  As such complainant demanded No due certificate on last date of filling nomination i.e., on 16/05/2016 as per Ex.A-8 and Ex.A-9 & A-10 deliberately delayed to issue no due certificate to complainant by giving one or the other reason.  Again on 10/05/2019 complainant gave another representation to the OP demanding no due certificate have approached the OP week prior to the date of filling nomination and have sought no due certificate without giving ample opportunity  to OP to verify the records.  In spite of the same OP after scrutinizing the documents available have issued an endorsement date 13/05/2019 as per Exhibit A-5 stating that there was arrears of rent of Rs 2,01,600/- for the shop No.27 at Ghanapuri commercial complex which was run by the complainant No.2 and by stating the reason that if the same is paid no due certificate will be issued by the OP.

        14. The allegations made by the complainant is regarding the contesting for the election and to issue no due certificate by OP.  Now the Crux of the matter is that whether the complainant is a consumer according to the consumer protection act 2019.  In the present case the complainant have given only a representation to the OP to issue no due certificate in view to contest for the election but the complainant have not paid any monetary consideration as payment to the OP. Further the complainant has also not produce any document to show that, he has paid any consideration for availing service from OP for issuance of No due certificate.  As per section 2 (7) of the consumer protection Act 2019 defines who is a consumer as follows:

"Consumer" means a person who…

1. Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. Hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

       15. As per the above definition the complainant is not a consumer as he has not paid any monetary consideration to the OP to avail the services of the OP and hence it can be attributed that complainant is not a consumer when such being the cause we answer the point No.1 in the negative.

        16. Point No.2: When the complainant has failed to prove that he is a consumer then the further points for consideration will not arise when the complainant as utterly failed to prove deficiency in service, unfair trade practice on the part of the OP and hence, we answer point No.2 in the negative.

17. Point No.3: For the foregoing reasons we proceed to pass the following.

:: ORDER ::

The complainant filed by the complainant U/s 12 Consumer Protection Act is hereby dismissed.  No Order as to cost.

(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open commission by us on 27^th February 2023.)

  LADY MEMBER                  MEMBER               PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1: Sri Madhusudhan. V S/o Venkataramayya, by way of

          affidavit evidence.

Witness examined on behalf of opponent:

DW-1: Sri G. Prem Charls S/o G Joseph Raju, by way of affidavit

           evidence.

Documents marked on behalf of Complainant:

Documents marked on behalf of opponent:

  LADY MEMBER                MEMBER                 PRESIDENT