State Consumer Disputes Redressal Commission
Municipal Corporation, Shimla & Anr vs Bhag Chand & Anr on 29 March, 2012
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SOLAN, H
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA.
First
Appeal No: 32/2010
Date
of Decision: 29.03.2012.
1. Municipal Corporation Shimla
Through its Commissioner, M.C.
Shimla,
The Mall Shimla.
2. Shri N.S. Guleria, J.E. A.P. Branch,
M.C. Shimla.
Appellants
Versus
1. Shri Bhag Chand Sharma S/O Shri Ladhi
Ram Sharma,
R/O
Narayan Bhawan, Kanlog, Tehsil and District Shimla.
2. Shri Bhavesh Chaturvedi S/O Shri Yogesh
Chander,
R/O VPO Arki, Tehsil Arki, District
Solan, H.P.
Ex. J.E. A.P. Branch, M.C. Shijla,
H.P.
(Added as Proforma respondent No.2 vide order dated 01.10.2010 of this Commission.).
Respondents
For the
Appellants: Mr. H.S.
Upadhayay, Advocate.
For the
Respondent No.1: Mr. Sanjeev Sharma,
Advocate.
For the
Respondent No.2: Mr. Peeyush Verma,
Advocate.
First
Appeal No: 44/2010
Date
of Decision: 29.03.2012.
Shri Bhag Chand Sharma S/O Shri Ladhi
Ram Sharma,
R/O
Narayan Bhawan, Kanlog, Tehsil and District Shimla.
Appellant
Versus
1. Municipal Corporation Shimla
Through its Commissioner, M.C.
Shimla,
The Mall Shimla.
2. Shri N.S. Guleria, J.E. A.P. Branch,
M.C. Shimla.
3. Shri Bhavesh Chaturvedi ,
J.E. A.P. Branch of Municipal
Corporation Shimla,
At Shimla.
Respondents
..
Coram
Honble
Mr. Justice Surjit Singh, President
Honble
Mr. Chander Shekhar Sharma, Member
Honble
Mrs. Prem Chauhan, Member
Whether
approved for reporting?[1]Yes.
For the
Appellant: Mr. Sanjeev Sharma, Advocate.
For the
Respondents No.1 & 2: Mr. H.S.
Upadhayay, Advocate.
For the
Respondent No.3: Mr. Peeyush
Verma, Advocate.
O R D E R:
Justice Surjit Singh, President (Oral) By this common order, we are disposing of two appeals, i.e. F.A. No.32/2010 filed by Municipal Corporation, Shimla, and its Junior Engineers, hereinafter referred to as opposite parties and F.A. No.44/2010 filed by Bhag Chand Sharma, hereinafter referred to as complainant, as in both the appeals, the same order, i.e. order dated 2nd December, 2009, of learned District Consumer Disputes Redressal Forum, Shimla, has been assailed.
2. Facts, relevant for the disposal of two appeals, may be summed up thus. Complainant Bhag Chand Sharma, is the owner of a house situated in a locality known as Kanlog in Shimla Town. He had constructed three storeys of the building after getting the plan approved from the Municipal Corporation, prior to the year 2007. In the year 2007, he wanted to raise fourth storey, for which, he submitted a plan along with annexures, consisting of 143 paper sheets on 07.06.2004, vide application Annexure C-1. Though as per Section 247 of Himachal Pradesh Municipal Corporation Act, 1994, Municipal Corporation, which was impleaded as opposite party No.1, was supposed to have conveyed its approval or rejection to the complainant within 60 days, it kept sitting over the matter. Complainant addressed a reminder on 20th November, 2004, copy Annexure C-3, to the Commissioner of opposite party No.1, upon which he was informed vide letter dated 01.12.2004, copy Annexure C-4, written by Architect Planner, that the plan had not been considered for sanction because he (the complainant) had not closed the basement in all respects. Complainant resubmitted the plan on 15.01.2005, vide letter Annexure C-5, in which it was stated that there was no basement, but only a small vacant space measuring 3x 5 and that after receipt of letter Annexure C-4, even that space had been closed. Again there was no response from the opposite parties. Complainant sent a reminder on 08.04.2005, Annexure C-6. He received a letter dated 16.11.2005, Annexure C-7, from Architect Planner of the Municipal Corporation that four copies of ferro print be submitted, so that sanction of plan could be conveyed to him. Complainant complied with that demand of the Municipal Corporation vide letter dated 22nd November, 2005, copy Annexure C-8. Approval of the plan was ultimately conveyed to the complainant, vide order dated 02.12.2005, copy Annexure C-9.
3. Complainant after receipt of the sanction, served a legal notice dated 24.05.2006, upon the Commissioner of the Municipal Corporation, seeking damages for delay in conveying the sanction. According to the averments made in the said notice, copy Annexure C-10, delay had resulted in increase in the cost of construction and had also caused mental torture to the complainant. That notice was replied to by the Municipal Corporation, vide letter dated 13.09.2006, copy Annexure C-11, in which it was stated that delay had taken place because initially the complainant had not closed the basement and then he had not submitted four ferro copies of the plan with the map.
4. Complainant then filed a complaint, under section 12 of the Consumer Protection Act, 1986, pleading that on account of delay in the sanctioning of his plan, he had suffered actual pecuniary loss to the tune of `3,15,000/- on account of rise in labour charges and increase in the prices of building material and in addition to that, he had suffered mental torture. However, he restricted his claim to `1,00,000/-. He alleged in the complaint that delay was caused by the functionaries of the opposite parties, impleaded as opposite parties No.2 & 3, in the complaint.
5. Common reply was filed by all the three opposite parties, including the Municipal Corporation, in which allegations of harassment or intentional and deliberate delay in approving the plan were denied. It was stated that the delay had taken place because of complainant having not closed his basement and then having not supplied four ferro copies of the plan, while resubmitting the plan after closing the basement.
6. Learned District Forum, held that the opposite parties were guilty of deficiency in service and awarded a consolidated sum of `25,000/- by way of damages together with litigation expenses, quantified at `2500/-. Municipal Corporation and its two employees, who were impleaded as opposite parties have challenged the aforesaid order of the learned District Forum. Their contention is that complainant was not a consumer within the meaning of section 2(1) (d) of the Consumer Protection Act, 1986, inasmuch as, he did not hire any service from the opposite parties for consideration nor does the function of the opposite parties in granting or refusing sanction of plans constitute a service within the meaning of section 2(1) (o) of the Consumer Protection Act, 1986. Complainant in his appeal has sought enhancement of compensation amount to the extent claimed by him in the complaint.
7. We have heard learned counsel for the parties and gone through the record.
8. On our asking as to how the complainant can equate himself with a consumer seeking service from a service provider, when he had approached the opposite parties for grant of sanction in exercise of their statutory power under Himachal Pradesh Municipal Corporation Act, 1994, learned counsel representing the complainant has drawn our attention to a judgment of the Honble Supreme Court in Ghaziabad Development Authority v. Balbir Singh II (2004) CPJ 12 (SC), wherein vide para 6 at page 21, following view has been taken:-
We are in full agreement with what is observed herein. Thus the law is that the Consumer Protection Act has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities. 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 injury is suffered by a citizen. The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enables a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/Forum must determine that such sufferance is due to mala fide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the offices. Such compensation is for vindicating the strength of law. It acts as a check on arbitrary and capricious exercise of power. It helps in curing social evil. It will hopefully result in improving the work culture and in changing the outlook of the officer/public servant. No authority can arrogate to itself the power to act in a manner which is arbitrary. Matters which require immediate attention should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious or arbitrary or negligent exercise or non exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation. If the Commission/Forum is satisfied that a complainant is entitled to compensation for loss or injury or for harassment or mental agony or oppression, then after recording a finding it must direct the authority to pay compensation and then also direct recovery from those found responsible for such unpardonable behavior.
9. Learned counsel representing the opposite parties urges that the observations of the Honble Apex Court in the above referred to judgment, are in the context of the factual matrix of that case and they are not of general application. Learned counsel contends that where statutory authorities exercise some administrative power, though by charging fee, that does not constitute a service nor can the person seeking exercise of such power ask for relief under the Consumer Protection Act,1986, if dissatisfied with the exercise of such power by the statutory authorities, even if erroneously. In support of the contention, he also relies upon a judgment of the Honble Supreme Court which is later in point of time contained to the judgment cited on behalf of the complainant. The citation is IV (2009) CPJ 34 (SC) Bihar School Examination Board versus Suresh Prasad Sinha.
10. We have considered the submissions made by the learned counsel for the parties and gone through the judgments sought to be used as precedents. In the case of Ghaziabad Development Authority (supra) some persons had applied for houses to Ghaziabad Development Authority. Some of them had paid the price of the houses in full and others in part. They were also charged interest. However, there was long delay in delivery of possession of houses to them. Plea was taken on behalf of the Development Authority that they were a statutory body and their, functioning was as per statute. It was in the context of these facts that the above reproduced observations were made by the Honble Supreme Court in para 6 of the judgment.
11. In Bihar School Examination Board case (supra) relied upon by the learned counsel for the opposite parties, an examinee had challenged the non-publishing of his result by the School Examination Board. Honble Supreme Court held that examinee was not a consumer nor was the School Examination Board a provider of service and that by paying the admission fee, the examinee had only sought the favour of participation in the examination and had not asked for providing any service. On behalf of the examinee, an argument was raised relying upon another judgment of the Honble Supreme Court in Lucknow Development Authority versus M.K. Gupta, III (1993) CPJ 7 (SC) that even the statutory authorities performing statutory functions were liable to pay compensation and damages under the provisions of Consumer Protection Act, 1986. Facts of the aforesaid Lucknow Development Authority, were similar to the facts of the case of Ghaziabad Development Authority supra relied upon by the learned counsel for the complainant.
12. Repelling the argument of the examinees counsel, it was held that in the case of Lucknow Development Authority, the nature of the functions of the said Authority was commercial and, therefore, the said Authority was a supplier of service and the persons availing such service a consumer. It was held that in the case of School Examination Board, no commercial, professional or service oriented activity was involved and hence the said Board could not be said to be provider of service and examinee a consumer.
13. From the judgment of the Honble Supreme Court in Bihar School Examination Board supra, it is clear that where a statutory function is performed by a statutory body and such function is not in the nature of a commercial, professional or service oriented activity, the same cannot be termed to be a service within the meaning of section 2(1) (o) of the Consumer Protection Act, 1986 and the Consumer Fora cannot entertain disputes pertaining to such statutory functions.
14. The case on hand stands on the footing of the aforesaid case of Bihar School Examination Board. Municipal Corporation, which has been constituted under Himachal Pradesh Municipal Corporation Act, 1994, has been assigned the job of Building regulation, vide chapter XIV of the Act. It has been charged with the duty of sanctioning plans, vide Section 247 of the Act, which forms part of the aforesaid chapter-XIV. Of course, it is provided in Section 247, that the Municipal Corporation shall grant or refuse the sanction within 60 days, but that does not mean that in case it fails to convey sanction or refusal within the aforesaid period, the person concerned can seek remedy under the Consumer Protection Act, 1986. The person submitting plan simply approaches the Municipal Corporation for exercise of its statutory duty, by paying prescribed fee. By paying fee, the person concerned does not become a consumer.
15. Above stated position apart, complainant cannot be heard to say that he has suffered any pecuniary loss or has been subjected to harassment on account of opposite partys failure to sanction the plan within 60 days, the period prescribed in Section 247. Reason is that section 247 itself provides, that in case refusal is not conveyed within 60 days of the receipt of the plan, it is to be deemed that sanction has been accorded and the person concerned is free to commence construction.
16. In view of the above stated position, we accept the appeal filed by the opposite parties, i.e. F.A. No.32/2010, dismiss the appeal filed by the complainant, i.e. F.A. No.44/2010 and consequently the complaint is also dismissed.
17. This order be placed on the record of F.A. No.32/2010 and its authenticated copy, on the record of the second appeal filed by the complainant, i.e. F.A. No.44/2010.
18. One copy of this order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Chander Shekhar Sharma) Member (Prem Chauhan) Member March 29, 2012.
N Mehta) [1] Whether reporters of the local papers may be allowed to see the order?