DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
D.F.Case No.116/2007
Complainant: Kibriya Khondakar,
Proprietor- M.K. Teller,
Anita Cinema lane, Burdwan
VERSUS
Opposite Party:1. Commercial Officer,
BSNL, Burdwan Telephone Vaban,
Burdwan.
2. Divisional Engineer, Telephone,
Burdwan Division, BSNL,
Telephone Vaban, Burdwan.
3. Hrishikesh Banik.
4. Smt. Bannya Banik,
W/o.Hrishikesh Banik,
Anita Cinema lane, Burdwan
Present : Hon’ble President: Sri Tushar Kanti Paladhi
Hon’ble Member : Smt. Jharna Majumder
Hon’ble Member : Sri Ajit Kumar Basu
Appeared for the Complainant: Ld. Advocate, Ashok Kumar Biswas.
Appeared for the Opposite Party 1 & 2: Ld. Advocate, Biswanath Nug.
Appeared for the Opposite Party 3 & 4: Ld. Advocate, Sourav Kumar Mitra.
Date of delivery: 31.7.2009
JUDGEMENT
This is a case U/S 12 of C.P. Act, alleging deficiency in service against O.P. No.1 & 2, BSNL Burdwan Telecom Bhavan and praying for injunction.
The complainant’s case is that he has been running tailoring business in the disputed room since the time of his father Osman Gani. He is also running PCO since before three years. O.P. No.3 & 4 are the owners of the disputed room. They have filed Eviction Suit against his father Osman Gani. The complainant has also filed a counter case in the Civil Court. The complainant has been depositing rent for the disputed room before the rent controller. The allegation of the complainant is that O.P. No.3 & 4 influenced O.P. No.1 & 2 to send a notice dated 18.7.2007, threatening to disconnect the telephone connection in the disputed room. Hence, this case.
O.P. No.1 & 2, BSNL Burdwan Telephone Bhavan has not filed any written objection. O.P. No.3 & 4 filed written objection, stating that the disputed room was settled with Sri Mishra and Osman Gani as joint tenants at the monthly rental of Rs.80/-. As the tenant did not pay the monthly rent regularly and as the said premises is required for the O.P.s own use so, the O.P.s filed a titled suit being T.S. No.145/1990 before the Ld.Court of 2nd Munsiff, Burdwan. Tenants filed a petition U/s 17(2) of W.B.P.T. Act and upon hearing of both sides the Ld. Court directed the tenants to pays the arrears of rent by six equal monthly installments. The tenants filed revisional application being 60/2000 before Ld.District Judge, Burdwan. But the same revisional case was dismissed. The joint tenants did not comply the order dated 2.5.2000, nor they paid the rental. The Civil Court passed a decree for eviction on 8.5.2007. According to O.P. No.3 & 4, they never granted rent receipt in favour of the complainant. The complainant on practicing fraud manufactured a rent receipt in relation to the suits premises for the purpose of installation of telephone connection therein.
Points for consideration in this case are:-
1. Whether there is deficiency in service on the part of the O.P. No.1 & 2?
2. Whether the complainant is entitled to get relief as prayed for?
DECISION WITH REASON
Admittedly, an Eviction Decree has been passed against the complainant in respect of the disputed premises. Admittedly, O.P. No.3 & 4 are the land-lords of the disputed premises. Admittedly, a PCO is running by the complainant in the disputed premises. As there was threatening by O.P. No.1 & 2, the BSNL by notice, so the complainant filed this case and prayed for interim order. This Forum restrained O.P. No.1 & 2, BSNL from disconnecting the telephone connection in the booth situated in the disputed premises. The question arises whether the PCO is a commercial one. The complainant refers Annotation of Section 2(1)(c) of C.P. Act, where the licensee to run a phone has been described as not a consumer. The complainant also refers a ruling of National Commission, where a franchise holder described as a licensee of a guarantor. But Ld. lawyer of the complainant refers the case of National Commission in CPJ, 2008, Volumes-III, Page-2005, where it is held that if a person engaged in activity to earn livelihood would not fall under definition of commercial purpose. In the present case the complainant has stated in para-4 of the complaint that he is consumer under O.P. No.1 &2, BSNL, and he runs livelihood of 6 to 7 persons from earning of his PCO. So, the complainant will not fall under definition of commercial purpose, and as such he is a consumer. More over, it is O.P. No.1 & 2, BSNL who can challenge the status of the complainant not as consumer. The BSNL has not filed written objection nor is contesting this case. So, O.P. No.3 & 4 has not locus-standu to describe the complainant not as consumer. Admittedly, the PCO is running in the disputed premises by the complainant. The question arises whether after the Eviction Order against the complainant, there is necessity of furnishing consent letter of the land-lord, as demanded by the BSNL by notice. In this connection, ld. Lawyer of the complainant refers the observation of the Hon’ble Calcutta High Court in C.O. No.14485 (W of 1983). The Hon’ble Court observed that installation of the telephone is a personal right not attached to the premises. So long the tenant is not evicted from in accordance with due process of law, has right of stay does not to come to an end. In the present case, the complainant tenant is not evicted from the disputed premises by putting the decree of ejectment in execution. So, O.P. No.1 & 2, BSNL cannot issue such type of notice as described in the complaint.
In view of discussion as above the Forum is satisfied that there is deficiency in service from the part of the BSNL in issuing such type of notice as described in the complaint. This is to mention that no telephone charge is due, and recoverable from the complainant. Thus, the complaint case succeeds. C.F. paid is sufficient. Hence,
ORDERED
that the case be allowed on contest. O.P., BSNL is restrained from disconnecting the telephone connection of the PCO in the disputed premises, so long the complainant is vacated from the said premises, and so long he makes payment of the rental charge and so long he complies with other rules and regulation of the Telephone Act.
(Tushar Kanti Paladhi)
President,
DCDRF, Burdwan
Dictated & corrected by me
(Tushar Kanti Paladhi)
President,
DCDRF, Burdwan
(MrsJharna Majumder) (Ajit Kr. Basu)
Member, Member,
DCDRF, Burdwan DCDRF, Burdwan
Tags: BSNL, Burdwan Telephone