National Consumer Disputes Redressal
Dr. Chandrakant Vitthal Sawant, Patel vs Shri L.R. Pilankar & Anr. on 23 July, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2273 OF 2012 (From the order dated 03.04.2012 in First Appeal No.A/09/1082 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai) DR. CHANDRAKANT VITTHAL SAWANT, PATEL RESIDING AT: 6, SHRI MATRUCHAYA, SANT MUKTABAI MARG, VILE PARLE (EAST), MUMBAI-400 057, MAHARASHTRA STATE ... PETITIONER Versus 1. SHRI L.R. PILANKAR INSPECTOR OF LAND RECORDS, DEPARTMENT OF LAND RECORD OF MAHARASHTRA STATE, TALUKA/MALVAN, AT & POST MALVAN, DISTRICT: SINDHUDURG-416 606. 2. SHRI R.S. MALANKAR SURVEY OFFICER, DEPARTMENT OF LAND RECORDS OF MAHARASHTRA STATE, TALUKA/MALVAN, AT & POST MALVAN, DISTRICT: SINDUDURG 416606. ..... RESPONDENTS BEFORE: HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HONBLE MR.SURESH CHANDRA, MEMBER For the Petitioner : In person PRONOUNCED ON: 23rd JULY, 2013 ORDER
PER SURESH CHANDRA, MEMBER This revision petition is directed against the order dated 03.04.2012 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai in F.A. No.A/09/1082 by which the State Commission disposed of the appeal filed by the petitioner challenging the order dated 07.08.2009 of the Sindhudurg District Consumer Forum in Complaint no.24/2009 dismissing the complaint of the petitioner asking him to approach Civil Court or other suitable Appellate Court within the prescribed time.
2. The facts of this case leading to filing of the present revision petition are that the petitioner who is the original complainant approached the respondents on 19.04.2007 requesting for urgent measurement of his land (S.No.234/P.H. No. 1A & 1B) and paid a fee of Rs.2,000/- for the purpose. The first measurement was arranged on 18.07.2007 but when the petitioner reached the place, he found that the procedure had been cancelled because of the rains. It was rescheduled for 15.02.2008 and when the procedure was completed, the petitioner was advised to collect the map in 15 days. It is alleged that thereafter in spite of repeated attempts the petitioner failed to get the map and hence he sent an application to the respondent authority on 11.05.2008. On 16.07.2008, the complainant was informed that re-measurement of the land was done on 15.07.2008. Thereafter, on 20.07.2008, the petitioner/complainant made complaint to the Superintendent of Land Records and measurement of land was rescheduled for the fourth time on 20.08.2008 and again got cancelled. He was also informed that the land will not be divided for the time being and the application of the complainant was cancelled. He also thereafter applied under the RTI Act on 15.09.2008 but was denied the required data. Feeling harassed on account of repeated cancellation of the measurement and the delay involved as also the refusal of the respondents to give the map, the complainant filed a consumer complaint before the District Forum asking for compensation.
3. The complainant filed affidavit in support of his allegations. The respondents/OPs contested the complaint and filed their affidavits refuting the allegations of the complainant. The District Forum after considering the evidence and hearing the parties, dismissed the complaint holding that even though fees has been paid by the complainant for the job requested to be done by the respondents, the land measurement to be done by the respondents as per the request of the complainant is a sovereign function and hence, the complaint is not maintainable.
The District Forum, therefore, dismissed the complaint in terms of the aforesaid order which was challenged through an appeal before the State Commission which disposed it of as stated above.
4. We have heard the petitioner who has argued his case himself and perused the record.
5. We may note that the appeal of the complainant against the dismissal of the complaint on the ground of maintainability under the Consumer Protection Act has been disposed of by the State Commission by a brief order, which may be reproduced as under:-
Adv.
Rajendra Pai is present on behalf of the Appellant. Adv. Dipak Atmaram Andhari is present on behalf of the Respondents. Respondent No.1 namely Mr. L. R. Pilankar, in person is present. In view of the fact that the Respondent no.1 has ultimately measured the land and the report has been submitted a copy of which is already given to the Appellant pursuant to the direction given by this Commission we now think that purpose of filing of this appeal is over and we record statement of the Respondent No.1 that henceforth he will be helping all the consumers in like fashion we dispose of the appeal. No order as to costs. Inform the parties accordingly.
6. Since the State Commission has simply disposed of the appeal without touching upon the question of maintainability of the complaint against the respondents who have claimed to be government servants discharging sovereign function, two issues have arisen for our consideration in the present revision petition, namely, whether the District Forum was right in holding the function of the respondent authority in carrying out measurement on paying of fees and supplying a map after the measurement as a sovereign function and hence, rejecting the complaint as not maintainable under the Consumer Protection Act and if not, whether the complainant is entitled for any compensation as prayed for by him in the given facts and circumstances of this case.
7. So far as the issue regarding the claim of the respondents discharging sovereign function as government servants is concerned, we do not agree with the view taken by the District Forum while rejecting the complaint. No doubt both the respondents are government servants and were carrying out their functions in their official capacity. However, carrying out of measurement of land for payment of prescribed fees as per the application made by the petitioner before the respondents cannot be regarded as a sovereign function. This is part of their administrative functions which they were required to perform for a prescribed fee. This function, therefore, cannot be called a sovereign function.
This view is in line with the judgment of this Commission dated 08.07.2002 in the case of Shri Prabhakar Vyankoba Aadone v. Superintendent Civil Court [R.P. No.2135 of 2000/1986-2004 Consumer 7211 (NS)] on which reliance has been placed by the petitioner. It was held in this case that while judicial officers may be protected from being arrayed in legal proceedings for their judicial function, they do not enjoy immunity for the administrative functions performed by them or by their staff and as such the grant of certified copies of orders of courts is not a sovereign function but is an administrative function. It was also held that since this is not a judicial function, it does not partake the character of a sovereign function. It was also held by this Commission in that case that an applicant for certified copy of a judicial order, who deposits a fee for obtaining such copy is a Consumer within the meaning of the Consumer Protection Act, 1986 and the processing of such application and the preparation and delivery of the copy in consideration of the copying charges/fee by the concerned staff attached to the court would be a service within the meaning of the Act. We find that the ratio of this case is squarely applicable to the present case where the petitioner had approached the respondent authority for carrying the measurement of the land in question and for which purpose the applicant had paid the requisite fees to the respondents. In this circumstances, the petitioner is a consumer within the meaning of the Consumer Protection Act qua the functions discharged by the respondents since these functions of the respondents while dealing with the application of the petitioner for measurement of the land would constitute service.
8. In view of the above position, we have to examine whether the State Commission was right in simply disposing of the appeal after noting that the measurement had been carried out and report thereof had already been submitted or whether the petitioner is entitled for any compensation for the alleged harassment and delays suffered by him. In this context, we have perused the affidavits of both the respondents no.1 and 2.
The respondent no.2 being Junior Officer Incharge of Survey under the control of respondent no.1, who is Inspector of Land Records, the submissions made by the respondent no.1 in his affidavit before the District Forum, are more relevant. He has stated on oath the circumstances in which the delay took place and the measurement dates had to be changed for reasons beyond their control.
The following points brought out by respondent no.1 in his affidavit before the District Forum explain the situation appropriately and hence the same are reproduced thus:-
1. In the matter of land measurement, until the final decision is reached, the map cannot be given to the applicant. In the current problem due to objection raised, the decision was delayed. For this reason Shri Sawant could not be given the map.
2. In measuring pothissa, all co-farmers have to show their share of land under occupation and the old boundaries. During the measurement done on 15/02/2008, only Shri Sawant was present. His co-farmers were absent to show their share of land. Unless their share was confirmed, the decision could not be made. This delayed the final outcome.
3. Shri V.V.Rane is heir to the property of late V.S. Rane. On objection raised by Shri V.V.Rane on 09/06/2008 the higher office ordered enquiry on 20/08/2008. During inquiry unlike shown on 15/02/2008, Shri Sawant seems to have his share of land in two separate pieces. Therefore measurements done on 15/02/2008 were cancelled. Hence complaint by Shri Sawant is false, mischievous and misleading.
4. On 20/08/2008, Shri Sawant & co-farmer Shri Rane settled the matter and requested to keep land temporarily in status qua and signed the agreement in presence of witnesses. Therefore complaint by Shri Sawant is false, mischievous and misleading.
5. The complainant has intentionally given false information and addresses of his co-farmers. Shri V.S. Rane was dead and his heir Shri V.V. Rane raised objection. Thus map could not be given to complainant.
6. The objection to land measurement was sent by Shri Rane to Supdt Land Records at Sindhudurg. Hence Shri Sawant could not be given its copy under R.T.I. (2005). Since Shri Sawant is insisting that there was no objection, the copy of Ranes objection was obtained from office of Supdt Land Records on 29/11/2008 and Shri Sawant was asked to collect it from me on 05/03/2009.
7. Shri Ranes objection was lying in the office of Supdt Land Records, Sindhudrg. My report of inquiry of that no objection was sent to the office of Superintendent on 28/08/2008.
8. The reply given to Shri Rane and Shri Sawant and list of witnesses is kept on record.
9. The petitioner has not denied any of the aforesaid averments made by respondent no.1 in his affidavit. It is also not under dispute that the measurement in question has already been carried out and report to that effect has been given to the petitioner in pursuance of the directions given by the State Commission. In the circumstances, we cannot hold the respondents liable for deficiency in service which would justify any compensation as such. No doubt the dates of the measurement were postponed and delay took place but apparently there were reasons for the same which could not be helped. The petitioner needs to keep in mind that although he is a consumer and the respondents have rendered a service to him while processing and dealing with his application for measurement of land, his being consumer does not necessarily entitle him to get compensation unless the delays involved could be regarded as deficiency in service. In this view of the matter, while we set aside the order of the District Forum and hold the petitioner as a Consumer within the meaning of the Consumer Protection Act, 1986, there is no case for compensation as prayed for by him in his complaint. The revision petition is, accordingly, disposed of with these observations with no order as to costs.
10. While on the subject, we wish to make it clear that since the respondents like any other government servants discharged their functions in their official capacity, no liability for deficiency in service could have been fastened on them by name and as such, the complaint would not be maintainable against them individually but only by their designation. However, this aspect loses its relevance at this belated stage when this complaint has already completed its journey upto the present revision petition, which is now disposed of as above.
sd/-....
(AJIT BHARIHOKE, J.) PRESIDING MEMBER sd/-.
(SURESH CHANDRA) bs MEMBER