State Consumer Disputes Redressal Commission
Surendranath Khuntia, 270, Kharvela ... vs Chief Secretary-Cum-Secretary To ... on 12 August, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA: CUTTACK FIRST APPEAL NO.182 OF 2008 From an order dated 05.02.2008 passed by the District Consumer Disputes Redressal Forum, Khurda at Bhubaneswar in C.D. Case No.180 of 2006. Surendranath Khuntia, 270, Kharvela Nagar (1st Floor), Unit-III, Bhubaneswar, Dist. Khurda . Appellant -Versus- 1. Chief Secretary-cum-Secretary to Government of Orissa, G.A. Department, Orissa Secretariat, Bhubaneswar 2. Additional Secretary to Govt. of Orissa, G.A. Department, Orissa Secretariat, Bhubaneswar 3. Joint Secretary to Govt. of of Orissa-cum-Ex Officio Director of Estates, Bhubaneswar 4. Additional Land Officer, Bhubaneswar . Respondents For the Appellant - In Person For Respondent - N o n e P R E S E N T : THE HONBLE SHRI JUSTICE A.K. SAMANTARAY, PRESIDENT AND SHRIMATI SMARITA M0HANTY, MEMBER O R D E R
DATE:- The August, 2010.
Justice A.K. Samantaray, President.
This is a First Appeal by the unsuccessful complainant assailing the judgment and order of the District Forum, Khurda at Bhubaneswar dated 05.02.2008 passed in C.D. Case No.180 of 2006. The learned District Forum, by the aforementioned judgment and order, which is assailed here, has held that neither the complainant is a consumer nor the opposite parties service providers. It has further held that the opposite parties having functioned and performed duties as a part of the sovereign power of the State cannot be brought under the purview of the Consumer Protection Act. Under the Consumer Protection Act, the Forums and Commissions are discharging quasi-judicial function and the purpose of the agencies is to decide consumer disputes and as such they are remedial agencies.
2. Coming to the facts of the complaint filed by the complainant-appellant, we find that the complainant was in possession of a piece of land taken on lease from the State Government. The complainant has got a house over the same having an area of 246 decimals. The State Government framed rules to convert lease-hold lands to free-hold lands on payment of the required fees for the same. According to the complainant, the opposite parties demanded fees at a higher rate than what has been prescribed under the rules vide Annexure-1 and such higher payment put the complainant to humiliation. It is also the case of the complainant that the opposite parties-respondents alleged that the complainant was in possession of more land that what had been leased out to him having encroached over Government land of the size 90x4, i.e., 360 sq.ft. The complainant verified the same and found the allegation to be totally false. According to the complainant, the opposite parties collected Rs.74,360/- in place of Rs.37,180/-, at the rate of 10% over; the value, although they should have collected at the rate of 5%, as per Annexure-1. Although the complainant made all attempts and moved the opposite parties for settlement of the matter, the same was not done. Since there was inordinate delay in settling the matter, he filed the consumer dispute claiming compensation of Rs.20,00,000/- from the opposite parties-respondents.
3. The opposite parties filed written version. It is their case that the collection of fees for conversion of lease-hold land into free-hold land was not made in excess of the stipulations made in the circular (Annesure-1). It was made strictly in accordance with the provisions of the circular. The complainant encroached some Government land, which was ascertained after measurement of the land by Amin/technical expert of the Government, and the fact had been intimated to him. It was, inter alia, pleaded in the written version that the complaint was not at all maintainable as the Government was not made a party to the dispute and without any notice having been issued under section 80 C.P.C.
4. The written version of the opposite parties was filed in shape of affidavit. The complainant also filed affidavit evidence.
5. The complainant appeared in person and argued his case. It was submitted by him that the 5% excess fees collected from him should be refunded to him as per the provisions of the rule in Annexure-1. The same amount should be refunded with interest, and compensation should be awarded for the deficiency in service committed by the opposite parties.
6. Before us in this appeal, none appeared for the respondents. The complainant-appellant appeared in person and made his own submissions. We have heard the appellant exhaustively and examined the impugned judgment and order of the learned District Forum, Khurda. The appellant laid stress and urged before us that the provisions of Articles 14 and 16 of the Constitution of India have been violated by the respondents while dealing with his matter and by doing so they have committed sheer deficiency in service for which they should be burdened with compensation. This Commission has no writ jurisdiction. It cannot go beyond the provisions of the Consumer Protection Act and cannot consider whether there was violation of the provisions of Articles 14 and 16 of the Constitution of India.
7. Our first and foremost consideration is whether the complainant-appellant is a consumer or not. Section 2(1)(d) of the Consumer Protection Act defines consumer in the following manner:-
consumer means any person who-
(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(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, of under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;
Explanation For the purposes of the clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;
From the afore-quoted definition of consumer, it is manifest and apparently clear that a person can be said to be a consumer if he hires or avails services for consideration.
Service has been defined in section 2(1)(o) of the Consumer Protection Act 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;
Deficiency has been defined in section 2(g) of the Consumer Protection Act as under:-
deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;
8. Bearing in mind the definitions of consumer, service and deficiency and looking to the facts of the case at hand, we have to decide if the complainant-appellant is a consumer and has availed services for consideration and if the opposite parties have committed deficiency in service. Admittedly, the complainant had taken lease of a land from the Government of Orissa. Later on, the Government decided that the lease-hold land would be converted to free-hold land on payment of certain fees. Both the decisions, i.e., the premium to be paid for the lease as well as the fees for conversion of lease-hold land into free-hold, were taken by the Government as their policy decision. The opposite parties-respondents executed the sovereign act of the Government and are as such part of the sovereign authority.
9. The learned District Forum has relied on a decision of the Honble Apex Court in S.P. Goel v. Collector of Stamps, Delhi, I(1996) CPJ 11(SC), wherein the Honble Apex Court held that when authorities discharge the duties as a part of the sovereign power of the State, they are not answerable to the authorities constituted under the Consumer Protection Act. In another decision, i.e., Standard Chartered Bank Ltd. v. Dr. B.N. Raman, III(2006) CPJ 1(SC), the Honble Apex Court has held that the Consumer Protection Act, 1986 provides for formation of National Commission, State Commission and District Forum. These are remedial agencies. Their functions are quasi judicial. The purpose of these agencies is to decide consumer disputes. Activities relating to non-sovereign powers of statutory bodies are within the purview of the Act.
10. The dictum as quoted above of the Honble Apex Court mandates that the forums under the Consumer Protection Act are quasi judicial authorities and cannot assume jurisdiction to adjudicate the dispute between the sovereign authority and any person and the disputes between the non-sovereign bodies and any person can only be adjudicated by the District Forums, State Commissions and the National Commission. Since the opposite parties-respondents are the Chief Secretary to Government of Orissa, Additional Secretary to Government of Orissa, G.A. Department, Joint Secretary to Government-cum-Ex Officio Estates Officer and the Additional Land Officer and they have, as we find from the factual aspects of the case, acted under the sovereign authority of the State, they are not amenable/answerable to the consumer fora, and the complainant-appellant having not paid anything to them except the prescribed fee, which goes to the Government Exchequer, cannot be held to be a consumer, nor are the opposite parties-respondents service providers.
11. After hearing the appellant and going through the entire facts of the case, as put forth, we hold that the consumer complaint is an outcome of misconception and is not at all maintainable, and the District Forum has rightly dismissed the same.
12. In the result, we find no merit in the appeal, which is accordingly dismissed.
Records received from the District Forum may be sent back forthwith.
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(Justice A.K. Samantaray) President ........
(Smarita Mohanty) Member SCDRC, Orissa, Cuttack August ,2010/Nayak