SRI.K. VIJAYAKUMARAN, PRESIDENT.

            The complainant filed this complaint seeking compensation and costs.

          The averments in the complaint can be briefly summarized as follows:

          The complainant is a physically handicapped person.  He lost his left leg in a communal riot at Muthkkara in the year 1974 and police firing thereafter.   The Kollam Muncipality considering his condition has alloted a bunk on the western side of Kollam Collectorate and accordingly he was conducting business there  to earn his livelihood..  The complainant  is paying rent etc to opp.party 3 as per the agreement executed  between himself  and the 3^rd opp.party.    On 8.5.2006 without any notice the bunk was demolished and removed along with the articles kept in the bunk.   Thereafter the complainant and his family lost income.  Due to the act of the opp.parties the complainant sustained damages  to the tune of Rs.75,000/-.   The complainant is entitled to get the above sum with interest.   He is also entitled to get compensation of Rs.10,000/-.  Hence the complaint.

          The 1^st and 2^nd opp.parties filed a joint version contending, interalia, that this complaint is not maintainable either in law or on facts and it is to be dismissed inlimine.  The averments that the Tahasildar Kollam has given consent to install in the bunk is false.   The complainant is not entitled to get any compensation.  The road around the civil station belongs to Public Work Department .   The complainant has not obtained any consent from the 1^st opp.party for installing the bunk on the western side of the Civil Station. On the ground floor of Civil Station a number of courts  are functioning .  A number of unlawful bunks were installed on the entire western side of the Civil Station building causing inconvenient to the general public.  The Anti social eliments were also causing nuisances to the functioning  of the courts.  On.6..5.2006  it was decided to demolish the bunks.  On  8.5.2006 the above bunks were demolished and removed.   The Government has every right to remove unlawful encroachment.  Encroachers are not  entitled to get any compensation.  The opp.parties are not liable to compensate the complainant.  Hence opp.parties 1 and 2 are prays to dismiss the complaint.

          The 3^rd opp.party filed a separate version also contending that the complaint is not maintainable either in law or on facts.   The  complainant is not a consumer of the 3^rd opp.party.  The complainant has not availed any service from the 3^rd opp.party and therefore there is no deficiency in service on the side of the 3^rd opp.party.  This Forum has no jurisdiction to try this complaint as the complainant is not a consumer within the meaning of Consumer Protection Act.  It is true the 3^rd opp.party has given license to the complainant to run bunk No.49.   The complainant has remitted license fee up to 3/2003 and D and O license up  to 2006-07.  The bunk was  not removed by 3^rd opp.party.  The bunks were   demolish by the competent authority.  If the  bunks were demolished by any other  authority, the 3^rd opp.party is not responsible for that.   The 3^rd opp.party has no knowledge about the articles kept inside the demolished  bunk.   The complainant has not  sustained any damages due to any acts of  3^rd opp.party.  Hence the 3^rd opp.party prays to dismiss the complaint.

Points that would arise for consideration are:

1.     Whether there is deficiency in service on the part of the opp.parties

2.      Reliefs and costs.

For the complainant PW.1 is examined.  Ext. P1 to P7 are marked.

For the opp.parties DW.1 is examined.   Ext.P1 to P3 are marked

Points:

          The main contention of the opp.parties is that the complainant is not a consumer within the meaning of Sec. 2 [1] [d] of the Consumer Protection Act.  It is argued that the complainant has not availed any service from the opp.parties and as such this Forum has no jurisdiction to try this complaint.

          Sec. 2[1] [d] of the Consumer Prtection Act defines consumer.   Consumer means any 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

[ii] [hires or avails of] any services 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 or such services 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 payments, when such services are availed of with the approval of the first-mentioned person [but does not include a person who avails of such services for any commercial purpose]

[Explanation: For the purposes of this clause,” commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood, by means of self-employment;]

          The 1^st limb of the definition is not applicable herein.  Even assuming that  the 2^nd limb  is applicable the complainant has to establish that he has availed services of the opp.parties on paying consideration .  Opp.parties 1 and 2 would argue that no service have been rendered by them to the complainant and so there is no consumer relation ship between them and the complainant and as such this complaint is not maintainable.  As pointed out earlier the complainant has not produced any material to show that he has availed the service of opp.parties 1 and 2  for consideration.

There is no dispute that the complaintnat’s bunk situated in the property of opp.party 1 and no consent of opp.party1 has been produced by the complainant .  The learned counsel for opp.party 1 would argue that sec. 20 of  the Land Consent any Act bars  the jurisdiction of this Forum to entertained this  complaint  and there is force that contentions.

The Government has issued Ext. D1 in exercise of soverign power and not in connection with any commercial activity.   The soverign function of Government is not amenable to the jurisdiction of Consumer For a.  In these circumstances this complaint is not maintainable before this Forum.

It is argued by the learned counsel for the complainant that opp.party 3 is collecting license Fee, Rent, etc  from the complainant and thereby providing service to the complainant and as such the complaint is a consumer of 3^rd opp.party.   Collection of  license fee is in exercise of sovereign function which will not create consumer relationship between the complainant and opp.party 3.   From the available materials it cannot be said that the complainant is a consumer within the meaning of Sec.2[1][d] and as such his complaint before this Forum is not maintainable.  He may approach the proper Forum to redress his grievance if any .  Point found accordingly.

In the result this complaint fails and the same is hereby dismissed.   No costs.

Dated this the  27^th     day of February, 2009..

I N D E X

List of witnesses for the complainant

PW.1. – Soosa Dasan

List of documents for the complainant

P1. – Photocopy of Agreement dated 19.4.2008.

P2. – Receipt

P3. – Photocopy of License

P4. – Notice

P5. – Photocopy of Letter dated 31.10.1991

P6. – Disability certificate

P7. – Photocopy of town planning map

List of witnesses for the opp.parties

DW.1. – Deepthi Bhanu

List of documents for the opp.parties

D1. – G.O. dated 16.5.2005

D2. – Minutes

D3. – Notice dated 6.5.2006