State Consumer Disputes Redressal Commission
The Tahsildar, Taluk Office, ... vs V. Thirupathi,Pudukottai. on 29 April, 2022
1
IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
F.A.No.96/2019
(Against the order made in C.C.No.16/2017 dated 01.08.2017 on the file of
the District Forum, Pudukkottai.)
FRIDAY, THE 29th DAY OF APRIL 2022
The Tahsildar,
Taluk Office,
Pudukkottai. Appellant/Opposite party
-Vs-
V.Thirupathi,
S/o.Venkaraj,
Kuppaianpatti,
Aadhanakottai,
Pudukkottai. Respondent/Complainant
Counsel for the Appellant/Opposite Party : Mr.S.Kandaswamy, Advocate.
Counsel for Respondent/Complainant : Mr.S.Muthuvel, Advocate.
This appeal coming before me for final hearing on 27.10.2021 and on
perusing the material records, this Commission made the following:-
ORDER
THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
1. This appeal has been filed by the appellant/opposite party under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the learned District Forum, Pudukkottai made in C.C.No.16/2017, dated 01.08.2017, allowing the complaint.
2
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the learned District Consumer Disputes Redresssal Forum, Pudukkottai.
3. The opposite party suffering by an order, directing the opposite party to pay a sum of Rs.1,00,000/- as compensation for deficiency in service to the complainant in the hands of the learned District Consumer Disputes Redressal Forum, Pudukkottai (hereinafter referred to as District Forum), has preferred this appeal before this Commission.
4. The case of the complaint is as follows:- The complainant plot having an extent of 0.02.0 Ares in Kuppaianpatti village, Survey No.91/21 using the plot belongs to the complainant and he used the pathway of Government promboke having an extent of 0.04.0 Ares in Survey No.91/17 and there is no other way to reach the housing plot except the Government promboke land. It was encroached by one Kumar S/o Muthuvel the complainant is unable to reach his housing plot and unable to construct a house. The complainant has paid necessary fees on 27.02.2014 through challan and sent the same along with petition to the opposite party to measure the pathway of the Government promboke. No action was taken by the opposite party the complainant has given a second petition in this regard on 22.05.2015 and also the complainant expressed his grievance before the opposite party. The opposite party has given assurance that if the complainant has paid fee Rs.80/- through challan in the name of the Panchayat President, Kuppaianpatti they had to measure the pathway of Government promboke. On the basis of the assurance the complainant paid Rs.80/- through challan in the name of the 3 President, Kuppaianpatti on 24.07.2015 and sent the same along with the petition to the opposite party. After receipt of the challan along with the petition the opposite party did not take any action. The complainant has given a petition in this regard on 30.11.2015 to the District Collector, Pudukkottai and there also no action has been taken. The complainant also submitted applications on 28.12.2015, 01.01.2016, 07.03.2016, 06.06.2016, 12.08.2016, 19.12.2016. The complainant believing the assurance given by the opposite party has obtained a loan of Rs.50,000/- for preliminary constructional works in his plot and due to the non-measuring of the pathway of the Government promboke. The complainant could not proceed with the construction. The complainant issued a pre suit notice on 22.02.2017 calling the opposite party to pay a sum of Rs.1,00,000/- as compensation for mental agony no reply was received from the opposite party. The complainant has paid four times of Rs.80+80+200+80=440 through challan. Normally if no measurement was taken by the opposite party should have refund the amount but they failed to do so. The opposite party is being the Government servant failed to do his bonafide duties and created a great mental agony and deficiency in service. Therefore the complainant claim directing the opposite party to pay a sum of Rs.1,00,000/- for mental agony with interest and to pay cost of the proceedings.
5. The learned District Forum passed an ex-parte order against the opposite party after filing the proof affidavit of the complainant and marking of documents as Ex.A1 to Ex.A22 on the side of complainant.
6. The Leaned District Forum, passed the impugned order directing the opposite party to pay a sum of Rs.1,00,000/- as compensation for deficiency in service on the 4 ground that the opposite party have not taken any steps to measuring the promboke land and also failed to sent any reply for pre suit notice.
7. Aggrieved against that order the opposite party challenged it by filing this appeal stating that the District Forum has allowed the claim of the complainant as prayed for without any basis. The District Forum has failed to consider that the appellant being Administrative Head of Taluk Office. Therefore the appeal may be allowed and to set aside the District Forum order.
8. No additional evidences were adduced by both parties in this appeal before this Commission.
9. Point for consideration is;-
Whether the order passed by the Learned District Forum, Pudukkottai in C.C.No.16/2017, dated 01.08.2017 is sustainable under law or not?
10. Point:- The complainant approached the opposite party by presenting the application for measuring the promboke land belongs to the Government which was used by him as a pathway to reach his house plot. Even after payment of necessary measurement fees four times the opposite party have not taken any steps to measure the property. The complainant filed the consumer complaint after sending pre suit notice no reply was received from the opposite party.
11. The learned Government pleader would contend that the order passed by the learned District Forum is not maintainable since it does not have any jurisdiction to entertain the complaint. Since the provisions of Consumer Protection Act 1986 is not applicable for the statutory functions of the State Government officials. The Act of measurement of land is a duty cast under the Revenue Act. It cannot be said that the Revenue officials were rendering any kind of service for consideration. 5
12. The District Forum should have applied ratio of S.P.Goel's case by relying upon the citations: -
(1) II (2016) CPJ 78 (NC) - National Consumer Disputes Redressal Commission - in the case of - C.K.Mohanasundaran -Vs- K.U.Gopalakrishnan Nair.
(2) 2014 (4) CPR 740 (NC) - National Consumer Disputes Redressal Commission - in the case of - V.B.Ambedkar -Vs- District Collector.
13. The learned counsel for the respondent/complainant would contend that the Hon'ble Supreme Court has held in reported judgement:
(1) 2004 CTJ (Supreme Court) at Page 605 - in the case of - Ghasziabad Development Authority -Vs- Balbir Singh. Since it is held that "the Consumer Protection Act has a wide reach and the Forum have jurisdiction even in the cases of service rendered by statutory and public authority. Such authorities become liable to compensate for misfeasance in public office i.e., an act which is oppressive or capricious or arbitrary or negligent provided loss or injuries is suffered by a citizen".
(2) 2005 CTJ at page 603 - in the case of - Haryana urban Development Authority -Vs- Shanthi Devi.
(3) 2007 CTJ at page 377 - National Consumer Disputes Redressal Commission - in the case of - Dr.R.Jagan -Vs- Director, Motor Vehicle Maintenance Department and Others.
(4) 2008 CTJ at page 54 - in the case of Shiksha Vihar Sehhari Avaas Samiti Limited -Vs- Chairman Ghaziabad Development Authority and Another and also represented that the complainant has filed WP (MD) No.19999/2018 before the Hon'ble Madras High Court, Madurai Bench on 24.08.2018 against the encroached at the pathway belongs to the Government and still pending. 6
14. The citations relied on by the appellant/opposite party is squarely applicable. Even though the point of statutory duty performed by Government officials in the reported case of S.P. Goel's case and Lucknow Development Authority case it was held by the National Consumer Disputes Redressal Commission. In the above citations produced by the appellant/Government pleader "the act of measurement of the land, is a duty cast under the Revenue Act. Therefore, it cannot be said that the opposite party was rendering any kind of service for consideration. The measurement of land is not a commercial activity of the State. It is the statutory function of TLR and DLR concerning maintenance of land records.
15. The reported judgement of Lucknow Development Authority was discussed by the National Consumer Disputes Redressal Commission in the above citation that the S.P.Goel's case. In the case of Lucknow Development Authority -Vs-M.K.Gupta is concerned the issue was with regard to construction activity undertaken by Lucknow Development Authority case and also discussed S.P.Goel's case. Therefore, the citations produced by the respondent/complainant are not applicable to the present appeal.
16. In the case on hand, the complainant had applied and paid the fee for the measurement of the land not belongs to him he applied only for the measurement of land belongs to the Government. He claims some easement right over the property belongs to the Government. No document was produced by the complainant to prove the classification of the piece of land belongs to the Government. Whether it is Natham promboke or pattai promboke or in other kind of promboke which can be used by any individual including the complainant. His remedy is only in civil suit? 7 Whether he is having the right of easement through the property or not? he cannot blame the opposite party for non- measuring of the land belongs to the Government.
17. The learned District Forum without considering those factual aspects and citations produced by the Government pleader and passed the erroneous order directing the opposite party to pay a sum of Rs.1,00,000/- as compensation to the complainant it requires interference. Therefore, the order passed by the learned District Forum is not sustainable under law and answered accordingly for the point for consideration
18. In the result, the appeal is allowed by setting aside the order of the learned District Consumer Disputes Redressal Forum, Pudukkottai made in C.C.No.16/2017, dated 01.08.2017 and the complaint is dismissed. There shall be no order as to costs in this appeal.
The Registry is directed to refund the mandatory deposit to the appellant/opposite party with accrued interest thereon duly discharged in favour of the appellant/opposite party.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by me on this the 29th day of April 2022.
Sd/-xxxxxxxxxxxxxxx N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
8