BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 25^th of April 2011

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER

                        SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.246/2010

(Admitted on 09.09.2010)

Mr.Pascal Donald Pinto,

Aged about 43 years,

So. Joachim Pinto,

Hill Mill, Near Kelrai Church,

Pedamale, Mangalore Taluk.              …….. COMPLAINANT

(Complainant: In person).

          VERSUS

1. The Commissioner,

Mangalore City Corporation,

Lalbagh, Mangalore.

2. The Health Officer,

Mangalore City Corporation,

Lalbagh, Mangalore.

3. The Revenue Officer,

Mangalore City Corporation,

Lalbagh, Mangalore.                  ……. OPPOSITE PARTIES

(Advocate for the Opposite Party No.1 to 3: Sri.G.B.Prabhu).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant submits that, he was sanctioned a trade licence to run a Mobile Flower Stall and Pickle Shop near Kadri Market, Mangalore vide licence No.2003COM-13424 on the file of G11/5446/02-03 on 28.02.2007 for a period of 3 years i.e., from 01.04.2007 to 31.03.2010.  As per the terms of the licence, the Complainant was permitted to run business in the vehicle bearing registration No.MYG-5028.  It is stated that, the Complainant is the owner of the vehicle bearing registration No.MYG-5028 Auto Rickshaw, the vehicle is having valid registration certificate. On 31.01.2008 the officials attached to the office of the Opposite Parties suddenly rushed to the door steps of the Complainant and threatened not to run the business and lifted the vehicle MYG-5028 in their lorry to a unknown place.  It is stated that, the said action was with pre-ground work and for the sake of others in order to gain wrongfully. The Complainant was helpless and his hands were tied up and immediately after the incident approached the Opposite Party seeking the vehicle back. The 1^st Opposite Party taking advantage of the situation, typed with his men a letter which would suit his convenience and requirement and took the signature of the Complainant without providing the copy.  It is stated that, after taking delivery of the vehicle, he has noticed the damage caused to the vehicle in question.  It is further stated that, the Opposite Parties despite of issuance of the trade licence and even after collection of necessary fee of Rs.1,050/- vide receipt No.2173 on 28.02.2007 restrained the Complainant from doing the business.  Further it is stated that, the Opposite Parties without any prior notice or intimation, without cancellation of the licence their men took the vehicle to their custody and caused damage to the property i.e., vehicle MYG-5028.  The above said act of the Opposite Parties amounts to deficiency and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay a sum of Rs.40,000/- as damages, to return the trade licence fee of Rs.1,050/- along with interest at 18% p.a. from 01.02.2008 till realization and also claimed Rs.50,000/- as additional damages that is suffered on account of loss of income from 1.2.2008 to 31.05.2010 and cost of the proceedings. 

2.       Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version stated that, the Complainant was issued with a trade licence to sell flowers and pickles in a three wheeler vehicle.  The licence was made it clear that it was for “mobile flowers and pickle sale”.  The licence was not intended for sale at a stationary place.  Further the vehicle in which he wanted to vend flowers should be in roadworthy.  The Complainant was found keeping his vehicle stationary or in a permanently parked position in the pedestrian passage opposite Kadri Market causing obstruction to the passersby and creating health and hygiene problem by throwing spoiled etc. things on the road, the same is not permitted under the Karnataka Municipal Corporation Act, 1976 and it is also stated that, the certificate given by the RTO showed that the three wheeler vehicle bearing No.MYG-5028 had no fitness certificate and it was not in a roadworthy condition.  It is stated that, the Complainant was running the business in the aforesaid permanently parked vehicle causing obstruction to the public, hence the licence was cancelled as per the order dated 20.02.2009 of the 2^nd Opposite Party.  The Complainant had become a nuisance to the passersby as he was not running the trade in a mobile vehicle and the three wheeler mentioned in the licence was parked permanently and hence it was ordered to be removed by the Commissioner as per his proceedings dated 30.01.2008 by exercising his power under Section 288D of the said Act.  The vehicle of the Complainant was removed from that place and kept in the Corporation yard.  It is stated that, the action taken in accordance with law, there is no deficiency in service or unfair trade practice.  No illegality has been committed and prayed for dismissal of the complaint. 

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Parties committed deficiency in service?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

4.         In support of the complaint, Mr.Pascal Donald Pinto (CW1) filed affidavit reiterating what has been stated in the complaint and got marked Ex C1 to C3 as listed in the annexure in detail.   One Sri.Praveen Chandra Karkera (RW1), Assistant Revenue Officer of the Opposite Parties filed counter affidavit and answered the interrogatories served on him.  Opposite Parties produced three (3) documents as listed in the annexure.   Both parties produced notes of arguments along with Karnataka Municipal Corporation Act.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                       Point No.(i): Negative.

                       Point No.(ii) & (iii): As per the final order.   

Reasons

5.  Point No. (i) to (iii):

In the instant case, the grievances of the Complainant is that, on 31.01.2008 the officials attached to the office of the Opposite Parties suddenly rushed to the door steps of the Complainant and threatened not to run the business and forced through their men to lift the vehicle MYG-5028 to their lorry to an unknown place without hearing the Complainant and without affording the opportunity and any prior notice / intimation or without cancellation of the licence.  According to the Complainant, the Opposite Parties despite of issuance of the trade licence and even after collection of necessary fee of Rs.1,050/- vide receipt No.2173 on 28.02.2007 restrained the Complainant from doing the business which amounts to deficiency and came up with this complaint and filed affidavit evidence and produced Ex C1 to C3.

On the contrary, the Opposite Parties contended that, by exercising power under Section 288D of the Karnataka Municipal Corporation Act (herein after called K.M.C Act), the Commissioner is empowered to remove without notice any vehicle placed for purpose of hawking in any public street not in conformity with the terms of the licence or in its contravention.  The Complainant had contravened the terms of the licence and was hawking in a contemned vehicle which had been kept stationery permanently opposite Kadri Market, hence the same has been removed without any notice and stated that there is no deficiency and produced the proceedings dated 30.1.2008 passed by the Commissioner of Mangalore City Corporation and notice dated 20.02.2009 issued by the Health officer to the Complainant i.e., Pascal Donald Pinto. 

On scrutiny of the oral as well as documentary evidence available on record, we find that, no doubt the Complainant has been issued with a trade licence to sell Flowers and pickles in a three wheeler vehicle and it was for ‘mobile flowers and pickles sale’.  It is a settled position of law that, the licence holder should not keep his vehicle in a permanent parked position in the pedestrian passage causing obstruction to the passersby and creating problem.  The above acts are not permitted under the K.M.C. Act 1976.  The notice issued by the Opposite Party dated 20.02.2009 i.e., document No.3 to the Complainant made very clear that, the Complainant parked his vehicle permanently and caused obstruction to the public and thereby the licence was cancelled by the Opposite Parties by issuing above notice.  That itself shows that, the Complainant contravened the terms and conditions of the licence issued by the Opposite Parties.  It is further clear that, the Opposite Parties have got every right to exercise a power under Section 288D of the above said Act.  If at all the Complainant aggrieved by the action taken by the Opposite Parties then definitely he can prefer an appeal to the higher authorities and not before this FORA.  There is no deficiency or lapse committed by the Opposite Parties in this case.  The Opposite Parties have got right to remove the encroachment without any notice to the trader where he in any public street in contravention of Section 288-C and any vehicle, package, box, board, shelf or any other thing in or on which such article is placed or kept for the purpose of sale.  Exercising the power under Section 288D is not amounting to deficiency.  Hence, the complaint has no merits, deserves to be dismissed.  No order as to costs.

6.       In the result, we pass the following:                          

ORDER

            The complaint is dismissed.  No order as to costs.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.

(Page No.1 to 8 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 25^th day of April 2011.)           

PRESIDENT                    MEMBER                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Pascal Donal Pinto – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 –            : Original Trade License issued by the Opposite Parties for the period 2007-2008.

Ex C2 –           : Original Registration Certificate issued by the Regional Transport Authority Mangalore for the vehicle MYG-5028.

Ex C3 – 22.11.2002: Original NOC in the form of endorsement given by the Regional Transport Authority Mangalore.

Witnesses examined on behalf of the Opposite Parties:

RW1 – Sri.Praveen Chandra Karkera, Assistant Revenue Officer of the Opposite Parties.

Documents produced on behalf of the Opposite Parties: 

Doc. No.1: 30.01.2008: Proceedings of the Commissioner of Mangalore City Corporation.

Doc. No.2:                : ‘B’ Extract of MYG 5028.

Doc. No.3: 20.02.2009: Reply by the Health Officer to the Complainant.

Dated:25.04.2011                            PRESIDENT