State Consumer Disputes Redressal Commission
The Executive Officer,Municipal ... vs Surekha Sood on 17 May, 2021
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.308 of 2020
Date of institution : 11.12.2020
Date of decision : 17.05.2021
1. The Executive Officer, Municipal Council, Shalimar Bagh,
Kapurthala, presently the Municipal Corporation, Kapurthala,
through the Municipal Commissioner Sh. Rahul Chaba, PCS,
son of Sh. Harish Chander Chaba, aged about 46 years,
Municipal Corporation, Kapurthala, District Kapurthala, Punjab-
144601.
2. The Regional Deputy Director, Local Bodies, 127-28, Master
Tara Singh Nagar, Behind Maya Hotel, Jalandhar, Punjab-
141010.
....Appellants/Opposite Parties
Versus
Surekha Sood wife of Sh. Varinder Kumar Sood, resident of House
No.B-XXII/244, Mall Road, Kapurthala, Punjab-144601.
....Respondent/Complainant
First Appeal against the order dated
06.03.2020 of the District Consumer
Disputes Redressal Forum (now,
"Commission") Kapurthala.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
Mrs. Kiran Sibal, Member.
1) Whether Reporters of the Newspapers
may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported
in the Digest? Yes/No
Argued By:-
For the appellants : Sh. B.S. Dhatt, Advocate
For the respondent : Sh. Nikhil Sabharwal, Advocate
First Appeal No.308 of 2020 2
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT
The instant appeal has been filed by the
appellants/opposite parties against the order dated 06.03.2020 passed by District Consumer Disputes Redressal Forum (now, "Commission"), Kapurthala (in short, "the District Commission"), whereby the complaint filed by the respondent/complainant, under Section 12 of the Consumer Protection Act, 1986, was partly accepted against the opposite parties, in the following terms:
"In view of the above detailed discussion, complaint of the complainant is partly accepted and OPs are directed to issue the sanctioned copy of building/ site plan of the property of the complainant within 15 days from the date of receipt of copy of this order failing which the Ops will be liable to pay ₹200/- per day to the complainant till the sanctioned site plan is not supplied. Further Ops are directed to pay compensation for causing mental tension and harassment to the complainant for a long period of about 6-7 years and accordingly Ops are directed to pay ₹30,000/- and litigation expenses of ₹7,000/-."
2. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission. Facts of the Complaint
3. Brief facts, as averred in the complaint, are that the complainant purchased a plot measuring 1 Kanal, 2 Marla (22 Marla) situated at Kartarpur Road, vide Vasika No.2238 dated 14.08.2012. Sale Deed, Ex.A-1, of the said plot has also been executed in her First Appeal No.308 of 2020 3 favour. It is averred that the complainant applied for sanctioning of building/site plan for the proposed construction on the said plot and deposited ₹2,57,665/- including building fee of ₹36,000/-, Malwa fee ₹4,600/-, development charges ₹1,66,665/- and labour cess of ₹50,400/-, vide cheque No. 557616 dated 14.06.2013 of HDFC Bank, Kapurthala Branch. The same were received by the opposite parties, vide receipt No.19, book No.174 dated 19.06.2013, after clearance of said cheque. Thereafter, the complainant had been approaching the offices of opposite parties time to time to know the status of building plan. However, even after expiry of 60 days, no satisfactory response was received. Even no intimation was received in writing qua refusal of sanctioning of building plan, which is obligatory as per Section 192/193 of the Punjab Municipal Act, 1911; which states that if no such communication is received by the applicant within the stipulated period, the site plan is deemed to have been sanctioned automatically. Opposite party No.1, vide letter dated 07.03.2007, also admitted that maximum period for approving the building plan is 60 days. The approved building plan was also required for obtaining loan from the Bank for raising construction of the said plot. The Complainant was shocked to receive a letter dated 16.09.2016 from the office of Regional Deputy Director, Jalandhar whereby demand of ₹1,54,268/- was raised for grant of requisite permission for change of land use of said property. The complainant clarified that the requisite amount had already been deposited by her at the time of submission of building/site plan. She also wrote letter dated 02.01.2017, in reply to First Appeal No.308 of 2020 4 letter dated 07.10.2016, clarifying that she had already deposited ₹2,57,665/-, vide receipt dated 19.06.2013 including development charges of ₹1,66,665/- in excess of requisite development charges of ₹22,000/- as per Punjab Government Municipal Rules. Terming the demand of ₹1,54,268/- as illegal, the complainant demanded back the excess amount of development charges already deposited in excess. Thereafter, she sought clarification from the opposite party, through application dated 31.01.2017 under RTI Act, but no information was provided. The complainant filed the appeal dated 06.03.2017 under RTI Act. Only thereafter the information was provided that the requisite fee of development charges is only ₹1,000/- per marla and the opposite party already charged excess amount of ₹1,66,665/- against required amount ₹22,000/- of the land measuring 22 marla. Thereafter, she requested the opposite party for issuance of sanctioned copy of building/site plan of said property and also demanded back her excess amount deposited while submission of building plan. She even visited the office of opposite party on 10.04.2019, but the opposite party flatly refused to issue the copy of sanctioned building plan and refund back excess amount. Ultimately, the complainant served legal notice upon the opposite parties, but no reply was received thereto. Alleging deficiency in service and unfair trade practice, the complainant approached the District Commission, seeking following direction to them:
i) to issue the sanctioned copy of building/site plan of the said property;First Appeal No.308 of 2020 5
ii) to pay ₹1,00,000/- as compensation for the mental torture and harassment suffered by the complainant;
iii) to refund the excess amount paid by the complainant, along with interest @ 12% per annum from the date of deposit till realization;
iv) to pay ₹10,000/- as litigation expenses.
Defence of the Opposite Parties
4. Upon notice, opposite parties No.1 & 2 did not appear before the District Commission, despite their service and were proceeded against ex parte, vide order dated 07.10.2019. Against that order, opposite party No.1 filed Revision Petition No.71 of 2019 before this Commission; which was allowed, vide order dated 04.11.2019 and the ex parte proceedings initiated against opposite party No.1, vide order dated 07.10.2019 of the District Commission, were set aside, subject to payment of costs of ₹5,000/-, out of which a sum of ₹2,500/-
was ordered to be deposited in the Consumer Legal Aid Account of the District Commission and remaining ₹2,500/- was ordered to be paid to the complainant. Thereafter, opposite party No.1 put in appearance before the District Commission and filed reply to the complaint. Later on, when case was fixed for arguments, opposite party No.2 also appeared and filed an application through its counsel for joining the proceedings. Accordingly, opposite party No.2 was allowed to join the proceedings from that stage only.
5. Opposite party No.1, in its reply, raised preliminary objections that complaint of the complaint is not maintainable, as the First Appeal No.308 of 2020 6 process of change of land use is still pending with the Deputy Director, Local Govt. Jalandhar. The complainant was asked to deposit the fee of CLU amounting to ₹1,54,286/-, vide letter dated 16.09.2016, and copy of same was also sent to her, vide Endst. No. 1357/2016, along with letter of Municipal Council Kapurthala vide No.1155/ME dated 07.10.2016, which was received by the complainant on 12.10.2016. The complaint is time barred. The complainant has got no cause of action or locus standi to file the complaint. There is no deficiency in service on the part of the opposite parties. However, the complainant failed to deposit the said fee. On merits, complainant's ownership of the property, in question, is admitted. Deposit ₹2,57,665/- including building fee, malwa fee, development charges and labour cess against receipt No. 19 book No. 174 dated 19/6/2013 is also admitted. It is pleaded that the complainant deposited the file for approval of commercial building's site plan. The Municipal Council has to approve the site plan after approval of change of land use from Deputy Director, Local Bodies Jalandhar and the file is still pending there. The question of expiry of stipulated period of 60 days does not arise since the complainant herself failed to deposit the CLU fee, as mentioned above. As per resolution No.114 dated 28.07.2005, it has been resolved that the development charges of plot measuring 250 square yards or above would be charged ₹175/- per sq. yds. and there would be increase to the extent of 10% every year. Accordingly, these development charges were calculated on the plot of the complainant, measuring 444.44 sq. yds. That amount comes to ₹1,66,665/- (444.44 First Appeal No.308 of 2020 7 x 375). The development charges at the rate of ₹1,000/- per marla were applicable only in respect of the developed areas, but the plot of the complainant is located in the undeveloped area. Issuance of legal notice has been admitted, but it is pleaded that the same was based on false facts. All other allegations levelled in the complaint were denied and it has been prayed that the complaint be dismissed with costs.
6. Rejoinder was filed, wherein the pleas taken in the complaint were reiterated and that of the reply filed by opposite party No.1 were controverted.
Evidence of the Parties and Finding of the District Commission
7. The complainant, in support of her claim, filed her own affidavit, along with copies of documents i.e. Sale Deed Ex.A-1, receipt dated 19.06.2013 Ex.A-2, extract of The Punjab Municipal Act, 1911 Ex.A-3, letter dated 07.03.2017 Ex.A-4, letter dated 16.09.2016 Ex.A- 5, letter dated 02.01.2017 Ex.A-6, letter dated 31.01.2017 Ex.A-7 and letter dated 06.03.2017 along with postal receipt Ex.A-8. Opposite party No.1, in support of its defence, filed affidavit of Sh. Adarsh Kumar Sharma, Execute Officer, along with copies of documents i.e. letter dated 16.09.2016 Ex.R-1, letter dated 16.09.2016 Ex.R-2, letter dated 07.10.2016 Ex.R-3, letter dated 28.06.2016 Ex.R-4, letter dated 09.03.2016 Ex.R-5, letter issued to Tehsildar, Kapurthala Ex.R-6, Certificate dated 27.05.1015 Ex.R-7, letter dated 30.05.2018 Ex.R-8, letter dated 06.08.2018 Ex.R-9 and proceeding book Ex.R-10. The District Commission, after going through the record and hearing First Appeal No.308 of 2020 8 learned counsel for the parties, partly accepted complaint, vide impugned order. Hence, this appeal.
Contentions of the Parties
8. We have heard learned counsel for the parties through videoconferencing and have carefully gone through the written arguments submitted on behalf of the respondent/complainant and records of the case.
9. Learned counsel for the appellants has vehemently contended that the impugned order passed by the District Commission is a non-speaking order and beyond its jurisdiction. Even the complaint is not maintainable under the Act, as the opposite parties are performing sovereign functions as per the statute, notifications issued by the State Government from time to time. It has further been contended that the deposit of the required fee for the sanctioning of building plan or CLU etc. is mandatory. However, the sanctioning of a building plan by the Municipal Corporation is not covered within the meaning of 'service', as defined in the Act, as it is statutory function of the public body. In these circumstances, neither any service has been availed/hired by the complainant from opposite parties, nor any goods have been purchased for any consideration. The impugned order passed by the District Commission is not sustainable in the eyes of law as there is no element of hiring of service of the opposite parties. It has been prayed that the appeal be allowed and the impugned order passed by the District Commission be set aside.
First Appeal No.308 of 2020 9
10. The written arguments submitted on behalf of the respondent/complainant are on the lines of averments made in the complaint. The sum and substance of oral and written arguments is that the opposite parties failed to sanction the building/site plan submitted by the complainant, in-spite of payment of the requisite charges made by her. In case of non-refusal of approval of building plan within the prescribed period of 60 days, it is deemed that the building plan has been sanctioned automatically in view of Section 193 (4) of the Punjab Municipal Act, 1911. Due to non-approval of the building plan, the complainant could not get sanctioned the loan from the Bank for raising construction over the plot. The opposite parties took a wrong stand that the alleged CLU fee amounting to ₹1,54,268/- has not been paid by the complainant. However, the sanctioning of the building/site plan by the Municipal Committee and levying of CLU fee by the Director, Local Government are mutually exclusive causes of action, in as much as the former is governed by Section 193 of the Punjab Municipal Act, 1911. It has been further contended that excess amount of development charges earlier paid by the complainant is liable to be adjusted against the alleged demand of CLU fee. The District Commission has passed the impugned order after properly appreciating the entire evidence on record and the appeal is liable to be dismissed. In support of his contentions, learned counsel for the complainant placed reliance upon Lucknow Development Authority v. M.K. Gupta 1994 (1) SCC 243(SC).
First Appeal No.308 of 2020 10Consideration of Contentions
11. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties.
12. In view of the arguments raised by the learned counsel for the parties, the question, which needs to be decided for disposal of the present appeal, is whether the statutory authorities like Municipal Council and the Regional Deputy Director, Local Bodies, are amenable to the jurisdiction of the Consumer Commission under the Act and whether the complaint is maintainable before the District Commission?
13. In order to answer the above question, the appraisal of the definition of "service", as defined in Section 2(1)(o) of the Act, is necessary, which reads as under:-
"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."
14. A bare perusal of definition of 'service' reveals that it includes the services with regard to Banking, financing, insurance, housing construction etc. but does not include the statutory functions of the statutory bodies, who are governed by the statute, rules/regulations of the Government.
15. Hon'ble Supreme Court, in S.P. Goel Vs. Collector of Stamps Delhi 1996 AIR 839 (SC), held as under:
"In this situation, therefore, the person who presents a document for registration and pays the stamp duty on it or the First Appeal No.308 of 2020 11 registration fee, does not become a consumer nor do the officers appointed to implement the provisions of the two Acts render any service within the meaning of Consumer Protection Act. They only perform their statutory duties (some of which, as earlier indicated, are judicial or, at least, quasi-judicial in nature) to raise and collect the State revenue which is a part of the sovereign power of the State."
16. This Commission, in First Appeal No.431 of 2019 (Bathinda Development Authority v. Dreamland Farm House & Anr.) decided, vide order dated 24.10.2019, while relying upon the judgment of the Hon'ble Supreme Court in S.P. Goel's case (supra), also held that the consumer complaint was not maintainable, as the opposite parties have performed sovereign functions in compliance of the policy of the State Government, notifications issued by it and in compliance of orders passed by the Hon'ble Punjab and Haryana High Court in CWP No.21547 of 2011 and COCP No.1933 of 2016. Similar law was laid down by this Commission in First Appeal No.532 of 2019 (Municipal Council, Barnala & Anr. v. Abhishek Singla) decided, vide order dated 10.01.2020.
17. Hon'ble National Commission in "C.K. Mohanasundaran v. K.U. Gopal Krishnan Nair" reported in II (2016) CPJ 78 (NC) while relying upon the following authorities:
a) Registrar of Co-operative Societies & Anr. v. Tamil Nadu Consumer Protection Council, Trichy & Ors., II (2007) CPJ 175 (NC);
(b) Thrissur Municipal Corporation v. Ummer Koya Haji, 2006 (3) KLT 897.
First Appeal No.308 of 2020 12
(c) Bihar School Examination Board v. Suresh Prasad Sinha, IV (2009) CPJ 34 (SC)=VII (2009) SLT 109;
held in para Nos.9 and 10 as under:-
"9. After carefully considering the arguments advanced by the learned Counsel for the petitioner and after careful perusal of the records, we find that in the definition of service under Section 2(o) of the Consumer Protection Act, 1986, certain sectors have been listed though the list may not be exhaustive. Still we find that the Revenue Department is not mentioned in this list as an exclusive sector. Revenue Department of the State Government being the core Administrative and Land Management Department of the State performs mostly the statutory functions. Relying on the judgments submitted by learned Counsel for the petitioner, we are inclined to accept the view that in the present case, the Consumer Protection Act, 1986 is not applicable because the remedy in such cases is already available under the Revenue Laws of the State Government. On the merit of the case also, we find that the proper inquiry was conducted by the office of the District Collector and it was found that it was not possible to issue possession certificate of the said property as the survey number was wrongly mentioned. Moreover, State Commission has also observed in para 20 of its order that the complainant has been issued possession certificate on 12.5.2009. This certificate has been issued not on the basis of decision of the Fora below, but in the normal course of business under the Revenue Department through its hierarchical system.
10. From the above discussions, we find that the main grievance of the complainant has already been redressed and Consumer Protection Act, 1986 is not applicable for the statutory functions of the State Government. Accordingly, we allow the revision petition and set aside the order dated
18.2.2011 of the State Commission and order dated 29.3.2010 of the District Forum."
18. Hon'ble U.T. State Consumer Disputes Redressal Commission, Chandigarh also relied upon S.P. Goel's case (supra) in First Appeal No.95 of 2015 "Vijay Kumar v. National Institute of Open Schooling YMCA Complex and others" decided on 01.05.2015. It has been held by the State Commission as under:- First Appeal No.308 of 2020 13
"Whether the complainant fell within the definition of a consumer and whether, in case, the Public Information Officer furnishes the information, under the Right to Information Act, 2005, amounted to rendering of any service. Nominal fee of ₹50/- was deposited by the complainant, for seeking information, as provided under the relevant Statute. The Public Information Officer, while supplying the information, under the Right to Information Act, 2005, discharges his statutory duties. The person feeling aggrieved against non-supply of the information by the Public Information Officer, can file first appeal and second appeal. The Appellate Authority, while hearing the appeals, performs the quasi-Judicial functions. The Public Information Officer, therefore, does not render any service to the complainant/applicant, seeking information, under the Right to Information Act, 2005. In S.P. Goel Vs. Collector of Stamps Delhi (AIR 1996839 (SC), it was held that the person presenting a document for registration is not a consumer, within the ambit of the Consumer Protection Act, nor the Officers appointed under the Registration and Stamps Act, render any service to him, but, on the other hand, they perform statutory duties, which are at least quasi Judicial. The National Commission in Public Information Officer Vs. Tarun Agarwal, Revision Petition No.2846 of 2013, decided on 16.12.2013 and Sanjay Kumar Mishra's case (supra) , observed that the provisions of Sections 22 and 23 of the Right to Information Act, 2005, are crystal clear and the Commission is certainly not armed with the powers under the same (RTI Act, 2005). It cannot arrogate the powers which do not vest with it. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case. In the present case, neither the complainant was a consumer, nor the Opposite Parties, were service providers, nor the dispute was a 'consumer dispute', and, as such, the consumer complaint was not maintainable."
19. In view of the law laid down in the above noted authorities, it is clear that a person, who presents an application for approval of building/site plan, under the provisions of The Punjab Municipal Act, 1911, does not fall in the definition of 'consumer', as the function is performed by the officers of the said authorities under the statute and they do not render any 'service' under the Act. Rather, such authorities perform sovereign functions, as mentioned in the respective statutes. First Appeal No.308 of 2020 14 Such an act on the part of the Municipal Council, i.e. opposite party No.1, and Regional Deputy Director, i.e. opposite party No.2 asking for payment of approval of building/site plan and CLU etc. in accordance with the notifications/rules and regulations amounts to performance of sovereign functions under the statute. It cannot be said that statutory authorities are rendering any 'service', in respect of which charges for approval of building/site plan and CLU etc. have been claimed. In this manner, it can very well be said that the complaint is not maintainable, specifically when the complainant is challenging the sovereign functions of the authorities in the present case in exercise of the powers as an officer of the said statutory body/Government Department within the jurisdiction of the Consumer Commission under the Act and it cannot be termed as providing of 'service'.
20. So far as the reliance of learned counsel for the complainant on the judgment rendered by the Hon'ble Supreme Court in M.K. Gupta's (case) is concerned, it needs to be mentioned that the said case pertained to the issue regarding any act or omission relating to housing activity, such as delay in delivery of possession of the houses to the allottee, non-completion of the flats within the stipulated period or defective and faulty construction etc. Hence, the aforesaid authority cited by the learned counsel for the complainant is distinguishable and the same is not applicable to the facts and circumstances of the present case.
21. In view of above discussion as well as the law laid down in the authorities cited above, the consumer complaint filed by the First Appeal No.308 of 2020 15 respondent/complainant is not maintainable, as opposite parties No.1 and 2 are performing their statutory duties and sovereign functions under The Punjab Municipal Act, 1911, notifications, rules/regulations framed by the Government and there is no element of hiring of service, as defined in Section 2 (1) (o) of the Act. The District Commission has lost sight of all these facts and circumstances and the applicable law on this point. Hence, the impugned order cannot sustain and is liable to be set aside.
22. Accordingly, the appeal is allowed and the impugned order passed by the District Commission is set aside. Consequently, the complaint filed by the respondent/complainant is dismissed; being not maintainable before the Consumer Commission under the provisions of the Act. However, the complainant is at liberty to avail any other remedy available to her before the appropriate Forum in accordance with law.
23. It needs to be mentioned that earlier, the appellants had filed First Appeal No.286 of 2020 in this Commission, which was dismissed as withdrawn, vide order dated 12.11.2020, with liberty to file fresh appeal on the same cause of action with complete details and better particulars, in accordance with law. The Registry was directed to adjust the statutory amount of ₹20,000/- deposited in that appeal against the fresh appeal to be filed by the appellants, if the same is filed within a month. The present appeal was filed by the appellant within the stipulated period. Hence, as per note given by the Registry, the amount of ₹20,000/- deposited by the appellants in earlier appeal First Appeal No.308 of 2020 16 was adjusted as per order dated 12.11.2020 passed in earlier appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to appellant No.1 (as the appeal and affidavit in support of appeal has been signed on its behalf), by way of a crossed cheque/demand draft, after the expiry of limitation period in accordance with law.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (MRS. KIRAN SIBAL) MEMBER May 17, 2021.
(Gurmeet S)