UNDER SECRETARY, LAND And BUILDING DEPTT. vs HANUMANT DASS

BRIEF facts giving rise to this appeal are that Hanumant Dass, UDC, respondent was allottee of Government accommodation No. 1159, Gulabi Bagh, Delhi. He retired from Government service on 29.2.1992. The Vice Principal, Govt. Girls Senior Secondary School, Anandvas, Shakurpur, where Hanumant Dass last served before retirement, wrote to the Accounts Officer, PWD, Land & Building Deptt. for the issuance of a ''No Due Certificate''. In reply, the Accounts Officer, PWD, L & B asked the Principal of the School that Rs. 4,035/- were due from Hanumant Dass as licence fee for broken periods during the years 1975 to 1992. A copy of the letter was sent to the respondent. The respondent replied that the DDO of the various offices, in which he had served, had been deducting licence fee of the quarter from his salary. The matter remained pending for clarifying whether licence fee had actually been deducted from the salary of the respondent. By order dated 4.9.1992 Under Secretary (Allotment) asked the respondent to vacate the premises within 10 days. He was also informed that he was liable to pay damages as per the Delhi Administration Allotment of Govt. Residence (Genl. Pool) Rules 1977 w.e.f. 1.7.1992 i.e. four months after the retirement. The respondent preferred a complaint before the District Forum-I with the prayer that demand for the recovery of Rs. 4,035/- be struck down, that the O.P. be directed to issue ''No Due Certificate'' and till ''No Due Certificate'' was issued, the O.P. be directed to accept rent/licence fee @ Rs. 85/- p.m. The respondent also claimed Rs. 1,000/- as compensation on account of mental torture for no fault of his.

WRITTEN version was filed on behalf of the O.P. inter-alia it was pleaded that the respondent was not a ''consumer'' within the meaning of the Consumer Protection Act and the dispute in question was not within the jurisdiction of the District Forum. By order dated 16/25.6.1993 the District Forum noted that Mr. J.K. Khosla, Advocate appearing for the O.P. admitted at the time of hearing that nothing was due from the complainant upto the date of his retirement i.e. 29.2.1992 on account of licence fee and water charges for the period subsequent to the retirement, however, amount on account of damages and water charges had accumulated.

The District Forum took the view that not keeping the records posted upto date regarding the recoveries made from the salary of the respondent constituted deficiency in service on the part of the department and the complainant could not, therefore, be made to suffer on that account. Accordingly, the complaint was allowed and it was directed that the department would charge normal licence fee and water charges for the period of overstay after retirement and that the department shall issue No Due Certificate after payment of the aforesaid dues at normal rate.

AGGRIEVED by the order, the department has preferred this appeal alongwith an application for condonation of delay. Notice of the appeal was issued to the respondent. Notice was not received back undelivered. The respondent entered appearance on one date but thereafter failed to appear. We have heard Mr. Anant Misra, Advocate for the appellant. For the reasons mentioned in the application the delay in filing the appeal is condoned.

THE main contention of Mr. Misra is that the respondent could not be considered ''consumer'' within the meaning of the Consumer Protection Act with the result that the agencies created under the Act had no jurisdiction to deal with the matter. In our view there is force in this contention. It cannot be disputed that the respondent was allotted Government residence under the Delhi Administration Allotment of Govt. Accommodation (Genl. Pool) Rules, 1977 on payment of licence fee and he overstayed for the period 1.7.1992 to 23.9.1994 when he ultimately vacated. The main question is whether the respondent can be considered to be a ''consumer'' within the meaning of Section 2(1)(d)(ii) of the C.P. Act. The provision reads as under:- "Consumer" means any person who, - (i) xx xxx xx (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 of 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 payment, which such services are availed of with the approval of the first mentioned person;"

We are of the view that allottee of Government residence under the statutory rules referred to above on payment of a licence fee is not the same thing as a person who hires or avails of services for a consideration within the meaning of Section 2(1)(d)(ii). The allotment is governed by rules which are statutory in character and payment of licence fee which is highly concessional cannot possibly be considered to be consideration for hiring or availing of services. We are, therefore, of the view that the respondent was not a ''consumer'' within the meaning of the Act and therefore the D.F. had no jurisdiction.

WE further find the reliefs claimed by the complainant and granted by the District Forum do not fall within the parameters of Section 14 of the Act.

WE, therefore, allow the appeal, set aside the order of the District Forum and leave it to the Authorities to regulate the question of damages for the period of overstay according to the aforesaid rules. In the facts and circumstances of the case the parties shall bear their own costs throughout. A copy of this order be communicated to both the parties. Appeal allowed.