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2005 DIGILAW 31 (UTT)

RAJEEV KUMAR SHAH v. PRABHAGIYA VAN ADHIKARI

2005-02-15

K.D.SHAHI, LUXMI SINGH

body2005
ORDER Mr. Justice K.D. Shahi, President—This is an appeal against the order dated 19.6.1999 passed by the District Forum, Nainital whereby the complaint of the complainant was dismissed on the ground that this is not a consumer dispute. 2. The complainant has approached the Forum with a specific case that he has taken a lease for 3 years. He has deposited the lease money of Rs. 1,32,800/- and has also paid stamp duty of Rs. 16,600/- but the complainant was asked to vacate the premises before the expiry of 3 years. He has not been refunded his balance amount of Rs. 22,133.33 and stamp duty of Rs. 2,766.66. In spite of reminders, the opposite party did not hear, hence he filed the complaint. 3. The learned Forum has held that this is not a consumer dispute and has dismissed the complaint, against which order the present appeal has been filed. 4. We have heard the learned Counsel for the parties and gone through the records. The matter is in respect of lease of immovable property. As a Consumer Fora we are authorised to take up cases of goods and hiring of services. Giving of lease is neither sale of goods nor hiring of services. It is clear that the dispute relates to a contract in respect of immovable property. The cases of immovable property are not within our jurisdiction. As regards there was a contract between the parties. There has been a breach of the contract and it is settled principle of law that the case for breach of contract is not entertainable in District Forum. It shall be decided by the Civil Courts only. In the ruling reported in Anil Kumar v. Vipro G.E., Medical System Ltd., II (1995) CPJ 300, Rajasthan, where there was a contract for supply of machine. The machine was not supplied and money was not refunded. It was held that it is not a consumer dispute. In the ruling reported in II (1993) CPJ 1029 Thiru Dharman & Anr. v. State of Tamil Nadu and Others, the Madras State Commission has held: “The leases in these cases are, therefore, leases of immovable property as a benefit arising from land. It was held that it is not a consumer dispute. In the ruling reported in II (1993) CPJ 1029 Thiru Dharman & Anr. v. State of Tamil Nadu and Others, the Madras State Commission has held: “The leases in these cases are, therefore, leases of immovable property as a benefit arising from land. The lessees in these cases are, therefore, lessor of immovable property coming within the ambit of the Transfer of Property Act and the rights and liabilities of parties are governed by Section 108 of the said Act. It has been held by this Commission as well as by the National Commission that leases of immovable property do not come within the purview of the Act. The complaints are not, therefore, maintainable.” The same view has been propounded in the ruling reported in III (2000) CPJ 295, Delhi Development Authority v. A.V. Raghavan. This case is not entertainable by Consumer Foras for two reasons. Firstly the case of breach of contract is not a consumer dispute. Secondly lease rights of immovable property and any breach committed in respect thereof or any damages or refund arising out of said breach is not a consumer dispute. 5. The learned Counsel for the appellant referred the ruling reported in 2004 (1) CPR 459, The General Manager Ditt. Industries v. Smt. Saraswathi. In this ruling it was decided that a Government department ought to have behaved more responsibly towards the citizen and should not have come before the Forum with the allegation that the complainant is not a consumer. If the complainant is entitled to refund of his amount, he must get it but if the Forum has got no jurisdiction, we do not feel that any direction should be given to the State Government not to take this plea of jurisdiction, if the Forum has got no jurisdiction. The Government department is also free to take such plea like any other ordinary litigant. Although we cannot appreicate that if any amount of the complainant is due, it should not be refunded to him but we are sorry it being not a consumer dispute, we cannot give any relief to the complainant. 6. A case decided by us reported in I (2004) CPJ 226=2004 (1) CPR 337, Aranya Electricals and Sound Services v. New India Assurance Co. 6. A case decided by us reported in I (2004) CPJ 226=2004 (1) CPR 337, Aranya Electricals and Sound Services v. New India Assurance Co. Ltd. was also referred, in which we have decided that existence of arbitration clause is not bar to remedy in the Consumer Fora. No body can dispute this preposition of law but the learned Forum has not rejected the complaint on the ground that there was arbitration clause but has rejected the complaint on the ground that this is not a consumer dispute. 7. In the ruling reported in IV (2003) CPJ 147 (NC)=2004 (1) CPR 7 (NC), M/s. Gulab Industries Pvt. Ltd. v. M/s. RNG Suiting Limited, it has been held that before the amendment to the Consumer Protection Act, rendering of service even for commercial purpose had not been ousted from the jurisdiction of this Commission. We do not know for what purpose this ruling was placed. Whatsoever may be the position, the learned Forum has not rejected the complaint on the ground that it was for commercial purpose but it has held that the Consumer Fora has got no jurisdiction because this case is in respect of breach of contract. The learned Forum has also referred the ruling reported in III (1998) CPJ 9 (NC), Vishal Roadways v. Economic Traders Gujarat Ltd., that dispute for the settlement of accounts is not a consumer dispute. 8. A case decided by us reported in I (2004) CPJ 77=2004 (2) CPR 168, Mussoorie-Dehradun Development Authority v. Neeraj Jain, was also referred, in which the scheme for allotment of house was abandoned. One should be clear that services regarding housing have specifically been included under the Consumer Protection Act but such is not a case with every immovable property. The case as filed by the complainant is not a housing dispute. The learned Forum was perfectly justified in rejecting the complaint. The dispute involved in this complaint is not a consumer dispute. The complainant was free to agitate the matter before the Civil Court or competent Arbitrator but we are sorry we cannot give any relief to the complainant. He is still at liberty to agitate his matter before the Arbitrator or may file a civil suit in the Court of competent jurisdiction. The complainant was free to agitate the matter before the Civil Court or competent Arbitrator but we are sorry we cannot give any relief to the complainant. He is still at liberty to agitate his matter before the Arbitrator or may file a civil suit in the Court of competent jurisdiction. ORDER The appeal is hereby dismissed with a liberty to the complainant to approach the Appropriate Authority or Court to get his remedies and in the event any such proceeding is initiated, the finding recorded by the learned Forum or this Commission shall not be treated as an expression of opinion on any of the points involved in the case. Cost throughout shall be easy. Appeal dismissed. –