DATE OF FILING : 02.04.2015.
DATE OF S/R : 20.07.2015.
DATE OF FINAL ORDER : 31.05.2016.
Sri Sankar Bangabas,
son of Gouranga Chandra Bangabas,
residing at Dharsa, P.O. G.I.P;. Colony, P.S. Jagacha,
District Howrah,
PIN 711112. ………………………………………………………… COMPLAINANT.
1. The Station Manager,
WBSEDCL, Santragachi CCC,
P.O. G.I.P. Colony,
Howrah 711112.
2. The Chairman,
WBSEDCL, “Bidyut Bhavan”, Block DJ, Sector II,
Bidhannagar, Kolkata 700091.
3. Sri Kartick Chandra Das,
son of late Anil Kumar Das,
of Jagacha, P.O. G.I.P. Colony, P.S. Jagacha,
District Howrah, PIN 711112. ……………………………………………..…OPPOSITE PARTIES.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak.
F I N A L O R D E R
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Sankar Bangabas, praying for a direction upon the Station Manager, WBSEDCL Santragachi, and Chairman, WBSEDCL & another directing them for installing new electric meter in the name of the petitioner at R.S. dag no. 95, LR Dag no. 1009 of Mouza Jagacha and to direct local police to render police assistance at the time of installation of meter in the case of disturbance created by o.p. no. 3 or any 3rd party and directing the o.ps. to pay Rs. 50,000/- as compensation and Rs. 10,000/- as litigation costs.
- The case of the petitioner is that he is a contractor / developer and carries on business under the name and style of M/S. Sarada Lakshmi Enterprise and he constructed building in the land of o.p. no. 3, Kartick Chandra Das, as per development agreement wherein it is mentioned that in the said development agreement dated 14.12.2012 the petitioner would construct G+ 2 storied building and petitioner would get 60% of the constructed area and the rest would go in favour of the o.p. no. 3. Suddenly in the month of May, 2014 the o.p. no. 3 disconnected the electric line wherefrom the petitioner took connection and continued the construction work as electricity is highly essential and the petitioner then being compelled to apply before the o.p. nos. 1 & 2, WBSEDCL on 22.5.2014 for a fresh electric connection but the o.p. denied even if the formalities and earnest money deposited on 23.5.2014. The o.p. no. 1 by sending a letter on 01.09.2014 refused to give electric connection to the petitioner and thus being compelled he filed this case.
- The o.p. nos. 1 & 2 contested the case by filing a separate written version denying the allegations made against them and submitted that the petitioner has no cause of action to file the case which is not maintainable in law and the petitioner also sought for supply of electricity for commercial purpose and so he is not entitled to come under this Act. Further, the o.p. nos. 1 & 2 submitted that the petitioner claiming 60% right over the constructed area and the value of the same property is over Rs. 20 lakhs which is beyond the pecuniary jurisdiction of this Forum. The o.p. nos. 1 & 2 being the licensee and service provider are always ready and willing to give service to the intending consumers but this petitioner is a business man asking for electricity for business purpose and he works for profit and so not being a consumer and the dispute being a consumer dispute, the petitioner has no right to file the case under the C. P. Act, 1986 before District Forum and he is to approach before the Civil Court which is proper forum in this case.
- The o.p. no. 3 contested the case by filing a separate written version denying the allegations made against him and submitted that this promoter / developer filed one Civil Suit No. 121 of 2014 before the Civil Judge, Jr. Division, Howrah, for declaration and injunction and again filed this case before the Forum and when the petitioner has already filed T.S. No. 121 of 2014 which is an earlier case so this Forum would not pass final order because the same would give rise to multiplicity of proceeding. The petitioner violated the terms of the development agreement and is not entitled to any electric connection for completing the unfinished structure of the building. So this case be dismissed against the petitioner as he is not a consumer.
- Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.P.?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- All the issues are taken up together for the sake of convenience and brevity for discussion and to skip off reiteration. In support of his petitioner filed affidavit as well as documents in support of his case wherefrom it is revealed that the he has applied before the WBSEDCL and also the Station Manager, WBSEDCL, informed him regarding inspection of the premises and the letter dated 01.09.2014 written to Sankar Bangabas regarding objection raised that he is not owner of the property and he would not be allowed to take electric connection without the consent. So they prayed for dismissal of the case.
- This Forum heard the ld. counsel for all sides and also keeping in mind the contents of the main petition as well as written version filed and also on scrutiny of the documents it is noticed that the petitioner is a promoter / developer and he is a business man making construction of new house for the purpose of selling flats to others and making profit out of the same. U/S 2(1)(d)(ii) of the C. P. Act, 1986 it is specifically mentioned that any person who buys any goods for a consideration or hired any service for any consideration for his own use and occupation is a consumer. But the definition does not include a person who avails of services for commercial purpose. It is also mentioned that it is normally meant that when the goods are purchased or services are hired for commercial purpose by a person then he is not a consumer. But one who purchased the same exclusively for the purpose of earning his livelihood by means of self employment then even if the goods are purchased for commercial purpose yet the same person can be a consumer under this Act.
- In the instant case the petitioner, Sankar Bangabas, is a promoter cum developer and he does not purchase goods or hire any services and rather he provides service to other like the purchaser of flat and thus he cannot come under the term ‘Consumer’. In the instant case it is not the case of the petitioner that he does the same business exclusively for the purpose of earning his livelihood by means of self employment and thus he cannot be a consumer. Further being a promoter / developer the petitioner makes profit by selling the flats to several intending purchasers or persons and so when he makes business and makes profit out of the said business then such person cannot be a consumer and that is why they are called promoter / developer / businessman and not consumer. Further the petitioner submitted that he has 60% of the area of the constructed building as per the development agreement and the building is constructed over a land measuring over 6 cottahs 10 chitaks 40 sq. ft. and 60% of the constructed area would obviously go beyond the pecuniary jurisdiction of this Forum being Rs. 20 lakhs and thus this Forum also cannot try this case.
In views of above discussion and findings this Forum observed that the petitioner is not a consumer and he is not entitled to get any relief as prayed for and also there is a title suit pending before the Court of Civil Judge being T.S. No. 121 of 2014 connecting the said property and it would be better for the petitioner to get relief before the Civil court which is earlier case and then choosing the Forum wherein the only interest of the consumer are taken care of and not of any business man / developer.
In the result, the application fails.
Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. Case No. 134 of 2015 ( HDF 134 of 2015 ) be and the same is dismissed on contest without costs against the O.Ps.
Supply the copies of the order to the parties, free of costs.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
