State Consumer Disputes Redressal Commission
Vgtm Uda, Rep. By Its Vice Chairman vs M.Siva Kumar S/O Late Anjaneyulu on 3 January, 2014
BEFORE A.P STATE CONSUMER DISPUTES
REDRESSAL COMMISSION AT HYDERABAD
F.A.No.1066 OF 2013 AGAINST C.C.NO. 207 OF 2012 DISTRICT FORUM-II VIJAYAWADA
KRISHNA DISTRICT
Between:
VGTM UDA, Rep. by its Vice Chairman
Governorpet, Vijayawada-II
Appellant/opposite party
A N D
M.Siva Kumar S/o late Anjaneyulu
rep. by his GPA Holder Makineni
Rukmini Devi W/o late Anjaneyulu
Age 70 years, R/o Plot No.67,
D.No.54-1/2-15, Commercial Tax
Colony, Vijayawada, Krishna District
Respondent/complainant
Counsel for the Appellant M/s K.Manideepika
Counsel for the Respondents Served
QUORUM:
SRI R.LAKSHMINARASIMHA RAO, HONBLE I/C PRESIDENT
AND
SRI S.BHUJANGA
RAO, HONBLE MEMBER
FRIDAY THE THIRD DAY OF JANUARY TWO THOUSAND FOURTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble I/c President) ***
1. The opposite party has filed appeal challenging the order passed by the District Forum whereby it was directed to pay an amount of `57,470/- with interest on the amount of `4,68,178/-
and costs to the respondent.
2. The respondent purchased 704 sq. yards of land in R.S.No.176/ 2A situate at Kanuru village under registered sale deed dated 23.01.2001 for consideration of Rs.2,81,000/- and on being directed by the official of the appellant authority, he submitted an application for regularization of the plot under A.P.Regulation of unapproved and illegal lay out Rules, 2007, and paid an amount of `10,000/- through pay order dated 20.01.20109 and thereafter the official of the appellant authority demanded him to pay an amount of `4,69,950/- which he paid through demand draft dated 21.09.2010.
3. The appellant issued notice dated 6.07.2011 informing the respondent that his application for regularization was rejected as it was found to be not in accordance with the A.P. Regulation of unapproved and illegal lay out rules,2007 and for the reason assigned therefor The plots proposed for regulations under LRS was already covered by approved ULP by the authority vide LPNo.3/2001 as plot nos. 18 and 19
4. The respondent submitted that the appellant recklessly and negligent demanded the amount form him and the appellant refused to repay the amount to him as a result of which he suffered mental tension and he got issued notice dated 7.08.2012 and on receiving the notice, the appellant had sent cheque for `4,68,178/- and illegally deducted penal charges of `11,772/-for the approved layout and the appellant failed to pay an amount of Rs.20,000/- towards compensation to him.
5. The appellant resisted the claim on the premise of the respondents plot not being found eligible for the purpose of regularization under LRS and after scrutiny of the application it was found that the plot proposed for regularization was already covered by layout under plot numbers 18 and 19 and after deducting penal charges and processing charges to the tune of 10% in terms of Government Memo No.5842/M2/2009 dated 29.05.2009, the appellant refunded the amount of Rs.4,68,178/- which the respondent received without raising any protest.
6. The District Forum allowed the complaint on the premise of inaction on the part of the appellant to refund the amount till the respondent got issued notice. The District Forum awarded compensation in the shape of interest.
7. Aggrieved by the order of the District Forum, the opposite party has filed appeal contending that the observation of the District Forum in awarding compensation by way of interest @9% p.a. only on the observation that there is some deficiency in service on the part of the appellant without finding any specific negligence on the part of the appellant is not just and proper. It is contended that the respondent made incorrect statement that he filed application and paid the amount on being demanded by the representatives of the appellant and that the District Forum failed to consider the Government Memo in proper perspective and it does not provide for payment of interest.
8. The respondent filed his affidavit and the documents, Exs.A1 to A7 and on behalf of the opposite party, its Planning Officer filed his affidavit and the documents, Exs.B1 to B5.
9. The point for consideration is whether the District Forum has jurisdiction to entertain the complaint and if so, whether the respondent is entitled to compensation from the appellant?
10. The respondent purchased plot admeasuring 704 sq. yards situated at Kanuru Village and the sale transaction is evidenced by sale deed dated 23.01.2001. The respondent stated that the official of the appellant authority demanded him to submit application and pay amount for regularization of the plot under LRS and accordingly he submitted the application on 20.1.2009 and paid the amount of `10,000/- whereon the appellant demanded him to pay further sum of `4,69,950/-.
11. The respondent submitted that on demand made by the official of the appellant, he submitted application for regularization of the plot. The learned counsel for the appellant contends that the respondent on his own accord submitted application for regularization of the plot. Be it what may, the respondent submitted application form for regularization of the scheme and paid an amount of `4,79,950/- to the appellant for the purpose of regularization of the plot.
12. The appellant issued proceedings dated 6.07.2011 that the respondent submitted application for regularization of unapproved layout and his application was rejected as it was not found to be in accordance with A.P. Regulation of Unapproved and Illegal Layout Rules,2007 and the reason for rejecting the application was shown as The plot proposed for regulation under LRS was already covered by approved ULP as plot nos.18 and 19.
13. The respondent got issued notice dated 07.08.2012 seeking for refund the amount with interest and compensation on the premise of recklessness and carelessness on the part of the appellant in demanding and collecting the amount from him. The relevant paragraphs of the notice reads as under:
My client further states that you wantonly, willfully and volitionally received the above said amount of rS.4,69,950/- + Rs.10,000/- = Rs.4,79,950/- from my client recklessly and negligently and as such you are liable to refund the above submitted amount for S.4,79,950/- to my client.
My client further states that he made efforts with a view of convince you for the refund of the above said amount for which you neglected to evidence interest about the refund of the amount of Rs.4,79,950/- to my client.
14. On receiving the notice from the respondent, the appellant passed order dated 10.10.2012 for refund of the amount of Rs.4,68,178/- after deducting 10% towards penal charges and processing charges. The proceedings read as follows:
The application submitted by Sri M.Siva Kumar S/o (late) Anjaneyulu Regulation of plot under LRS in the unapproved layout in R.S.No.176/2A of Kanuru Village duly paying an amount of RS.4,79,950/- vide pay order No.12278, dated 20.01.2009, Rs.10,000/- drawsn on central Bank of India and pay order No.814089, Dt.21.09.10, Rs.4,69,950/- drawn on PNB Vijayawada, has been examined. The site under reference is falling in ULP No.3/2001 of plot Nos 18 & 19 approved by this Authority. Hence the proposal was rejected vide ref 3rd cited. The applicant has requested in the reference 4th cited to refund the amount paid by her/him. In pursuance of the above, orders were issued to refund the amount duly deducting 10% on the penal charges payable towards scrutiny and processing charges as per Govt. Memo, 2nd read above. The penal charges payable is Rs.1,17,722/-. After deducting 10% of the amount from the penal charges an amount of rS.1,905,950/- and open space cost Rs.3,62,228/- i.e. Rs.4,68,178/-is to be refunded.
ORDER:
Sanction is hereby accorded for paymentof rS.4,68,178/- (rupees four lakhs sixty eight thousand one hundred seventy eight only) to Sri M.Siva Kumar towards refund of amount paid udner LRS by her.
15. The respondent demanded for compensation and interest on the amount paid to the appellant for the period the amount was with the appellant whereas the learned counsel for the appellant has submitted that the Government Memo dated 29.05.2009 does not mandate for payment of interest and during the period the amount was with it, it would not make the appellant unjustly enrich .
16. The collection of amount from the land owners for the purpose of regularization of unapproved layout by the Municipality and deciding whether the plot or land is eligible to be accorded sanction to decline to accept the application are part of statutory duty of the appellant. The respondent wanted to infer a legal right to seek for particular mode of service and requested the District Forum to further infer the deficiency in service.
17. It is the duty of the respondent to establish the existing rule and breach thereof to constitute deficiency of service on the part of the appellant, and he cannot seek to draw an inference of deficiency of service on the ground of collection of the amount by the appellant . Here again it must be stated that if the act of the appellant is un-called for, it may be questioned in proper Forum. The District Forum by presuming that there is some deficiency in service on the part of the appellant, cannot infer deficiency of service without deciding whether it has jurisdiction to try the matter. Hence, viewed from this angle also, though the respondent has paid amount for regularization of unapproved layout of the plot, the actual act of deficiency of service cannot found.
18. In fact the Honble Supreme Court in Bihar School Examination Board Vs. Suresh Prasad Sinha reported in 2009 (4) CPR 421 (SC) held:
The object of the Act is to cover in its net, services offered or rendered for a consideration. Any service rendered for a consideration is presumed to be a commercial activity in its broadest sense (including professional activity or quasi-commercial activity). But the Act does not intended to cover discharge of a statutory function of examining whether a candidate is fit to be declared as having successfully completed a course by passing the examination. The fact that in the course of conduct of examination or evaluation of answer scripts or furnishing of marks sheet or certificates, there may be some negligence, omission or deficiency, does not convert the Board into a service provider for a consideration, nor convert the examinee into a consumer who can make a complaint under the Act. We are clearly of the view that the Board is not a service provider and a student who take an examination is not a consumer and consequently complaint under the Act will not be maintainable against the Board.
19. In the light of decision in Bihar School Examination Board (supra) and in the view of relief sought for by the complainant, we are of the opinion that the District Forum ought to have dismissed the complaint holding that the respondents was not a consumer case. The appeal, as such deserves to be allowed.
20. In the result, the appeal is allowed. The order of the District Forum is set aside. Consequently, the complaint is dismissed. There shall be no separate order as to costs.
I/C PRESIDENT MEMBER Dt.03.01.2014 కె.ఎం.కె.*