State Consumer Disputes Redressal Commission
Asst.Engineer Chhattisgarh Grih ... vs Yogendra Kumar Sharma & Anr. on 4 February, 2016
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G)
Appeal No.FA/2015/394
Instituted on : 20.08.2015
Chief Municipal Officer,
Municipal Council, Bhilai, Charoda,
Address : Municipal Council Office, Bhilai - 3,
Post - Old Bhilai, Tehsil Patan, District Durg (C.G.) ... Appellant
Vs.
1. Yogendra Kumar Sharma, S/o Late Radheshyam Tiwari,
Age about 55 years,
R/o : L.I.G. 78. C.G. Housing Board,
Pandit Dindayal Upadhyay Colony,
Padumnagar, Bhilai 3, Old Bhilai - 3,
Tehsil - Patan, District Durg (C.G.)
2. Assistant Engineer, C.G. Housing Board,
Sub Division Bhilai / Durg,
Address : Padmnabhpur, Division Durg,
District Durg (C.G.) ... Respondents
Appeal No.FA/2015/418
Instituted on : 27.08.2015
Assistant Engineer,
C.G. Housing Board,
Sub Division Bhilai / Durg, Padmnabhpur,
Division Durg, District Durg (C.G.) .... Appellant
Vs.
1. Yogendra Kumar Sharma, Age about 55 years,
S/o Late Radheshyam Tiwari,
R/o : L.I.G. 78. C.G. Housing Board,
Pandit Dindayal Upadhyay Colony,
Padumnagar, Bhilai 3, Old Bhilai - 3,
Tehsil - Patan, District Durg (C.G.)
2. Chief Municipal Officer,
Municipal Council, Bhilai, Charoda,
Address : Municipal Council Office, Bhilai - 3,
Post - Old Bhilai, Tehsil Patan, District Durg (C.G.) ... Respondents
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PRESENT: -
HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT
HON'BLE MISS HEENA THAKKAR, MEMBER
HON'BLE SHRI D.K. PODDAR, MEMBER
HON'BLE SHRI NARENDRA GUPTA, MEMBER
COUNSEL FOR THE PARTIES IN BOTH THE APPEALS :-
Shri R.P. Singh, for the complainant Yogendra Kumar Sharma.
Shri D.L. Rathor, for the O.P.No.1 Assistant Engineer, C.G. Housing Board,
Sub Division Bhilai / Durg,
Shri R.K. Bhawnani, for O.P.No.2 Chief Municipal Officer, Municipal
Council, Bhilai, Charoda
ORDER
Dated : 04/02/2016 PER: - HON'BLE JUSTICE SHRI R.S. SHARMA, PRESIDENT This order will govern disposal of Appeal No.FA/2015/394 as well as Appeal No. FA/2015/418, which have been preferred respectively by the O.P.No.2 Chief Municipal Officer, Municipal Council, Bhilai, Charoda and O.P.No.1 Assistant Engineer, C.G. Housing Board, Sub Division Bhilai / Durg of Complaint Case No.CC/2014/194 against the order dated 01.07.2015, passed by District Consumer Disputes Redressal Forum, Durg (C.G.) (henceforth "District Forum"), whereby the complaint filed by the complainant has been allowed and learned District Forum has directed the O.P.No.1 and O.P.No.2 to jointly and severally pay to the complainant within a period of one month from the date of order. The District Forum has directed as under:-
(a) The O.P.No.2 will pay a sum of Rs.3,243/- to the complainant.
(b) The O.P.No.2 will pay interest @ 12% on the above amount from the date of filing of the complaint i.e.24.06.2014 till realisation.
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(c) The O.P.No.1 and O.P.No.2 will jointly and severally pay a sum of Rs.50,000/- to the complainant as compensation for mental agony.
(d) The O.P.No.1 & O.P.No.2 will jointly and severally pay a sum of Rs.5,000/- towards cost of litigation to the complainant.
2. The O.P. No.2 has filed appeal No.FA/2015/384 and O.P.No.1 has filed Appeal No. FA/2015/418 for setting aside the impugned order of the District Forum The original of this order be retained in the file of Appeal No.FA/2015/394 and it's copy be placed in the file of Appeal No.FA/2015/418.
3. Briefly stated the facts of the complaint are that the complainant Yogendra Kumar Sharma purchased the House No.L.I.G.78 situated at Pandit Deen Dayal Upadhyay Colony, Padum Naar, Bhiali 3, Tehsil Patan District Durg (C.G.) from the O.P.No.1 at the total price of Rs.2,83,075/- by executing lease deed/sale deed and obtained its possession. In the above amount besides the price of the house, the amount of Rs.2,885/- for additional better location charges advance lease rent total Rs.33,219/- for 11 years, Rs.1,515/- towards advance Bhusandharan expenditure, service tax on the cost of the house Rs.7,356/- were included and total price of the house including miscellaneous charges, total amount of Rs.1,80,300/- was received. After taking possession of the house by the complainant, the O.P.No.1 did not give attention towards providing basic amenities i.e. // 4 // supply of water regularly, arrangement of dust bin, maintenance of septic tank, maintenance of drainage etc. Thus several problems have been created and on the place which is sanctioned for garden, temple was being constructed illegally. On 03.09.2012, the complainant submitted an application before the O.P.No1. for stopping illegal construction of the temple. The another application was given on 26.11.2012 by the residents of the colony to the O.P.No.1 for stopping illegal construction of the temple. The complainant sought information from the O.P.No.1 under Right to Information Act, which was replied by the O.P.No.1 and O.P.No.1 assured to remove the problems. On 01.09.2012, the O.P.No.2 issued notice to the complainant for making payment of property tax, consolidated tax, education tax for year 2009-10 to 201213 to the tune of Rs.3,243/-, which was paid by the complainant on 01.10.2012. On being asked by the complainant to the O.P.No.2 for obtaining tax and charges, the O.P.No.2 informed that the houses situated in Pandit Dindayal Colony, are not transferred by the C.G. Housing Board, Division Durg to Municipal Council, Bhilai, Chaorda and N.O.C. has not been issued. Besides this, on 15.02.2011, the O.P.No.1 and O.P. No.2 availed copy of the Joint Inspection Report to the complainant. After receiving the information, on 07.11.2012 and 20.11.2012, the complainant send applications to the O.P.No.2 and demanded to refund the amount deposited by him to the tune of Rs.3,243/-, but the O.P.No.2 did not pay the above amount till the date. The O.P.No.1 allotted 900 Sq. ft. land to the complainant in which only on // 5 // 550 Sq ft. land the house was constructed, but the O.P.No.2 recovered property tax for constructed house at 1390 sq ft. The complainant paid surcharge to the tune of Rs.213/- to the O.P.No.2 and the O.P.No.2 has no right to recover any tax from the complainant because the O.P.No.1 did not transfer the above colony to O.P.No.2. Therefore, the complainant is entitled for refund of the above amount from the O.P. No.2 with interest. The O.P.No.2 recovered the surcharge on the above amount illegally. The OPs did not do any work in the colony and did not remove the problems of the colony in respect of basic amenities, which comes in the category of the deficiency in service. Therefore, the complainant filed consumer complaint before the District Forum and prayed for granting reliefs, as mentioned in prayer clause of the complaint.
4. The O.P.No.1 filed written statement and averred that the complainant had been provided sufficient facilities in residential colony. The Housing Board after completion of the entire work, issued possession order and give possession of the house to the allottee/complainant. For removal of the illegal construction of the temple in the colony, information was to given to the Incharge of the concerned Police Station and the allottee had also been informed vide letter No.426 dated 13.09.2012. As per assurance given by the Housing Board the remaining work of the repairing of the house and colony, has been completed. As per rules, the amount was deposited by the complainant and sale deed was duly executed, thereafter, possession order was also issued and possession of the house // 6 // was handed over to the complainant. After execution of sale deed, the complainant obtained No Objection Certificate (N.O.C.) regarding doing additional construction in the house after submitting the application / blue print (copy of map / other documents). As per rules of the Housing Board, for construction work in the first floor, charge has been received from the allottee and no separate amount has been recovered. As per rules, the complainant executed Free Hold Sale Deed and obtained ownership on 03.07.213 and at present no amount is to be taken from the allottee. The complainant is not a "consumer" of the O.P.No.1. The O.P.No.1 did not commit any deficiency in service and the complaint is liable to be dismissed.
5. The O.P.No.2 filed its written statement and averred that the no temple was being constructed illegally. No question arises to refund any amount because the amount which was taken is revue of the Government and has been taken as per rules. No cause of action accrued to the complainant to file the instant complaint and the District Forum has no jurisdiction to hear the case which required elaborate evidence. The complaint filed by the complainant is not maintainable and is liable to be dismissed, because in the instant case there is no consumer dispute between the complainant and O.P.No.2. The O.P.No.2 did not take any amount illegally from the complainant and the complainant himself deposited the above amount without protest. If the complaint was aggrieved by the tax taken by the Municipal Council, then he was required to file civil suit // 7 // before Civil Court within limitation but he did not do so. The complainant is saying that he sent notice to the O.P.No.2 in the year 2012 therefore, from the date of sending notice, the present complaint is time barred. The tax which has been taken from the complainant, goes to the Revenue Treasury of the Government. The instant case requires elaborate evidence, therefore, it cannot be decided in the summary proceedings before the District Forum. All the residents of colony have paid the bill / taxes and only the complainant is aggrieved. The O.P.No.2 did not commit any deficiency in service. The complaint is liable to be dismissed with cost.
6. Learned District Forum, after having considered the material placed before it has allowed the complaint and directed the OPs to pay compensation to the complainant, as mentioned in para 1 of this order.
7. The complainant has filed documents. Annexure 1 is allotment order dated 23.01.2007, Annexure 2 is letter dated 03.09.2012 sent by the complainant to Executive Engineer/Officer, C.G. Housing Board, Durg Division, Durg (C.G.), Annexure 3 is letter dated 26.11.2012 sent by the residents of Pandit Deendayal Colony, C.G. Housing Board, Padum Nagar, Bhilai - 3, Tehsil Patan, District Durg (C.G.), Annexure 4 is letter dated 13.09.2012 sent by Public Information Office, Executive Engineer, Chhattisgarh Housing Board, Division Durg (C.G.) to the complainant whereby information sought under Right To Information Act, 2005 has been given, Annexure 5 is notice dated 01.09.2012 sent by Municipal // 8 // Council, Bhilai - Charoda to the complainant, Annexure 6 is Sampati, Kar Swa-Nirdharan Vivrani, Annexure 7 is receipt No.35 dated 01.10.2012, Annexure 8 is letter dated 29.09.2012 sent by the complainant to the Chief Municipal Officer, Municipal Council, Bhilai 3, Charoda, District Durg (C.G.), Annexure 9 is letter dated 01.10.2012 sent by the complainant to the Public Information Officer, Municipal Council, Bhilai - 3 Charoda, District Durg (Chhattisgarh), Annexure 10 is letter dated 05.11.2012 sent by the complainant to the Public Information Appellate Officer, Nagar Palika Parishad, Bhilai - 3, Charoda, District Durg (C.G.), Annexure 11 is letter dated 02.11.2012 sent by Public Information Officer, Nagar Palika Parishad, Bhilai - Charoda to the complainant, Annexure 12 is information sent by the Assistant Engineer, Municipal Council, Bhilai - Charoda, Annexure 13 is Information given by Revenue Incharge, Municipal Council, Bhilai - Charoda, Annexure 14 is Joint Inspection Report dated 15.02.2011 of Executive Engineer, C.G. Housing Board, Division, Durg, Assistant Engineer, Municipal Council, Bhilai - Charoda and Chief Municipal Officer, Municipal Council, Bhilai - Charoda, Annexure 15 is letter dated 07.11.2012 sent by the complainant Chief Municipal Officer, Municipal Council, Bhilai - 3, Charoda, District Durg (C.G.), Annexure 16 is letter dated 20.11.2013 sent by the complainant to Chief Municipal Officer, Municipal Council, Bhilai - 3, Charoda, District Durg (C.G.) and Annexure 17 is letter dated 10.03.2014 sent by the complainant to the Chief Minister's office, Chhattisgarh Government, Raipur (C.G.).
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8. Shri R.K. Bhawnani, learned counsel appearing for the Chief Municipal Officer, Municipal Council, Bhilai, Charoda, O.P.No.2 (appellant of Appeal No.FA/2015/394) has argued that the complainant is not a consumer of the O.P.No.2 Municipal Council, Bhilai, Charoda and the O.P.No.2 imposed the taxes on the complainant according to its statutory power and performed its duty. The payment of the property tax does not come within purview of service. The District Forum, Durg has no jurisdiction to decide the matter. The District Forum, has wrongly passed the impugned order and has wrongly directed the O.P.No.2 to refund the amount of Rs.3,243/- to the complainant. The complainant is not entitled to get any relief against the O.P.No.2, therefore the appeal filed by the O.P.No.2 be allowed and the impugned order be set aside.
9. Shri D.L. Rathore, learned counsel appearing for the O.P.No.1 (appellant of Appeal No.FA/2015/418) has argued that that the O.P.No.2 Municipal Council, Bhilai, Charoda imposed the property tax, consolidated tax and education tax as per rules . The O.P.No.1 & O.P.No.2 both have performed their statutory duties. The District Forum, has wrongly passed the impugned order and has wrongly directed the O.P.No.1 to pay a sum of Rs.50,000/- towards compensation for mental agony and Rs.5,000/- towards cost of litigation to the complainant. The complainant is not entitled to get any relief against the O.P.No.1, therefore the appeal filed by the O.P.No.1 be allowed and the impugned order be set aside.
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10. Shri R.P. Singh, learned counsel appearing for the complainant (respondent No.1 in Appeal No.FA/2015/394 and Appeal No.FA/2015/418) has supported the impugned order passed by the District Forum and has submitted that the OPs did not provide basic amenities to the complainant and without providing basic amenities to the complainant , imposed property tax, consolidated tax, education tax and service tax. Even the O.P.No.1 did not construct the garden and thus failed to provide basic amenities. The OPs have imposed the taxes on the complainant without providing basic amenities, which is erroneous, therefore, the District Forum has rightly directed the O.P.No.2 to refund a sum of Rs.3,243/- to the complainant and has also rightly directed the OPs to jointly and severally pay a sum of Rs.50,000/- towards compensation for mental agony and Rs.5,000/- towards cost of litigation. Therefore, the impugned order passed by the District Forum, does not suffer from any infirmity or illegality, hence does not call for any interference by this Commission. The appeal No.FA/2015/394 filed by O.P.No.1 and Appeal No.FA/2015/418 filed by the O.P.No.2, are liable to be dismissed.
11. We have heard the arguments of learned counsels appearing for the parties, perused the record of the District Forum and have also perused the impugned order.
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12. Learned District Forum, did not pass any order regarding the basic amenities provided by the OPs to the complainant and has directed the OPs as under :-
(a) The O.P.No.2 will pay a sum of Rs.3,243/- to the complainant.
(b) The O.P.No.2 will pay interest @ 12% on the above amount from the date of filing of the complaint i.e.24.06.2014 till realisation.
(c) The O.P.No.1 and O.P.No.2 will jointly and severally pay a sum of Rs.50,000/- to the complainant as compensation for mental agony.
(d) The O.P.No.1 & O.P.No.2 will jointly and severally pay a sum of Rs.5,000/- towards cost of litigation to the complainant.
13. It appears that the only tax, which was recovered by the O.P. No.2 from the complainant was ordered to be refunded to the complainant along with interest. It appears that that the Municipal Council, Bhilai, Charoda, imposed property tax, consolidated tax and education tax on the complainant.
14. In The Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, A.I.R. 1954 S.C. 282, Hon'ble Supreme Court has observed that "a tax is compulsory extraction of money by public authority for public purposes enforceable by law and is not payment for service rendered."
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15. In Sreenivasa General Traders And Others vs. State of Andhra Pradesh And Others, (1983) 4 S.C.C. 353, Hon'ble Supreme Court has observed thus :-
"31. .............. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest, if the element of revenue for general purpose of the State pre-dominates, the levy becomes a tax. In regard to fees, there is, and must always be, correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class; it may be of no consequence that the State may ultimately and indirectly be benefitted by it. The power of any legislature to levy a fee is conditioned by the fact that it must be "by and large" a quid pro quo for the services rendered. However, correlationship between the levy and the services rendered (sic or) expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a "reasonable relationship"
between the levy of the fee and the services rendered. If authority is needed for this proposition, it is to be found in the several decisions of this Court drawing a distinction between a 'tax' and a 'fee'..."
16. In Southern Pharmaceuticals and Chemicals, Trichur v. State of Kerala and Ors. (1981) 4 SCC 391, Hon'ble Supreme Court has observed thus :-
"Fees are the amounts paid for a privilege, and are not an obligation, but the payment is voluntary. Fees are distinguished from taxes in that the // 13 // chief purpose of a tax is to raise funds for the support of the Government or for a public purpose, while a fee may be charged for the privilege or benefit conferred or service rendered to meet the expenses connected therewith. Thus, fees are nothing but payment for some special privilege granted or service rendered."
17. In K. Thillainayakam vs. Commissioner, Madurai City Municipal Corporation, 2004 CTJ 117 (Madras High Court) (CP), Hon'ble Madras High Court has observed thus :-
"13. In this connection, reliance was placed on the judgment in the case of Lucknow Development Authority v. M.K. Gupta, 1993 CTJ 929 (SC) (CP) = III (1993) CPJ 7 (SC) = (1994) IL W 10 wherein it has been observed as follows :-
"The provisions of the Act thus have to be construed in favour of the consumer to achieve the purpose of enactment as it is a social benefit oriented legislation... The term 'service' has variety of meanings. It may be contractual, professional, public, domestic, legal, statutory, etc. The concept of service thus is very wide..... Clause (o) of the definition Section which defines it is in three parts. The main part is followed by inclusive clause and ends by exclusionary clause. The main clause itself is very wide. It applies to any service made available to potential users... The word 'potential' is again very wide... In absence of any indication, express or implied, there is no reason to hold that authorities created by the Statute are beyond purview of the Act... No distinction can be drawn between private and public transport or Insurance Companies... The intention is thus clear to protect a consumer against services rendered even by statutory bodies. The test, therefore, is not if a // 14 // person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility... Construction of a house or flat is for the benefit of persons for whom it is constructed. When a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as such service as by a builder or contractor... Any defect in the construction activity would be denial of comfort and service to a consumer... The law has always maintained that the public authorities who are entrusted with statutory function cannot act negligently. Under our Constitution sovereignty vests in the people. Every limb of the constitutional machinery is obliged to be people oriented. No functionary in exercise of statutory power can claim immunity, except to the extent protected by the statute itself... The provision enables a consumer to claim and empowers the Commission to redress any injustice done to him.
14. With due respect to the above observations, again what now I want to see is as to whether the revision petitioner is a consumer ?, and only if he comes under that purview, the observations will hold good.
15. .............
16. .............. Thus, the Corporation is a machinery in preventing evasion of the obligations enshrined in the rules. It in this view the duty of the Corporation does not amount to a service rendered to the individual. Therefore, the revision petitioner cannot be construed as a consumer and the State Forum has rightly passed the orders."
18. From bare perusal of the impugned order of the District Forum, it appears that the Municipal Council, Bhilai, Charoda imposed the tax on // 15 // complainant, which is not covered under the 'service' and the tax was not paid towards consideration. The complainant has not hired or availed any services of Municipal Council, Bhilai, Charoda by paying consideration, therefore, he cannot be considered as "consumer". Therefore, we are of the firm view that the complainant is not "consumer" under Section 2(1) (d) of the Consumer Protection Act, 1986, hence the impugned order dated 01.07.2015, passed by the District Forum is erroneous and is liable to be set aside.
19. Therefore, the appeal No.FA/2015/394 filed by O.P.No.2 Chief Municipal Officer, Municipal Council, Bhilai, Charoda and appeal No.FA/2015/418 filed by Assistant Engineer, C.G. Housing Board , Sub Division Bhilai / Durg, are allowed and impugned orders, dated 01.07.2015 passed by the District Forum, is set aside and consequently the consumer complaint shall stand dismissed. No order as to the costs of both these appeals.
(Justice R.S. Sharma) (Ms. Heena Thakkar) (D.K. Poddar) (Narendra Gupta) President Member Member Member /02/2016 /02/2016 /02/2016 /02/2016