State Consumer Disputes Redressal Commission
Tahsildar,Taluk Office,Musiri ... vs D.Sarathambal,Tiruchirappalli Dist. on 7 June, 2023
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present: THIRU.S.KARUPPIAH, JUDICIAL MEMBER
F.A.No.121/2017
(Against the order made in C.C.No.49/2016 dated 23.11.2016 on the file of
the District Commission,Tiruchirappalli.)
WEDNESDAY, THE 07th DAY OF JUNE 2023
Tahsildar,
Taluk Office,
Musiri Taluk,
Tiruchirappalli District. Appellant/Opposite Party
-Vs-
D.Sarathambal,
W/o Late Duraipillai,
No.3, Then Kallar Street,
Musiri Taluk,
Tiruchirappalli District. Respondent/Complainant
Counsel for Appellant/Opposite Party : Mr.D.Makson Lobo, Govt.Pleader.
Counsel for Respondent/Complainant : Mr.M.Rajendran, Advocate.
This appeal coming before me for final hearing on 23.05.2023 and upon
perusing the material records, this Commission made the following:
ORDER
THIRU.S.KARUPPIAH, JUDICIAL MEMBER.
1. Aggrieved with the award passed by the District Consumer Disputes Redressal Commission, Tiruchirappalli, dated 23.11.2016 the opposite party/Tahsildar preferred this appeal.
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2. The facts:
The complainant one Sarathambal owned Survey No.373/3 and a house thereon. She paid necessary fees for survey his land. But the survey was not done and the boundaries were not fixed by the opposite party/Tahsildar. Inspite of repeated requests and notices he failed to survey and demarcate the complainant property. Hence, he is deficiency in service and consumer complaint was filed claim Rs.20,000/- towards compensation for mental agony and Rs.1,00,000/- towards compensation for deficiency in service.
3. Before the District Commission the opposite party did not appeared and he was set ex-parte. The District Commission after perusing the complainant's side evidence and documents, finally the opposite party committed deficiency in service and awarded Rs.25,000/- towards compensation for mental agony and also Rs.5000/- as costs to the complainant.
4. Aggrieved with the dismissal order, the appeal has been preferred by the opposite party on the following:
Grounds: That, the order of the District Commission is erroneous in nature. The District Commission failed to note the payment of fee for surveying is not consideration and there is no relationship of consumer and service provider between the parties. Moreover, the District Commission failed to note that the opposite party is only discharging sovereign functions and Consumer Protection Act is not applicable to those activities. Hence, they prayed to allow the appeal and to set aside the District Commission order.3
5. In the appeal though respondent/complainant was appeared through counsel he did not file any written arguments. Written arguments of appellant alone filed and it was also treated as oral arguments.
6. It is an admitted fact from the evidence and documents marked by the complainant that she applied for demarcation of property and paid the necessary fee. Inspite of repeated letter to the Tahsildar and his higher authorities her land was not demarcated. Only in the appeal the opposite party in ground No.8 has stated that the opposite party has measured the land according to the land surveyor and Revenue records and give certificate to the complainant by letter dated 03.07.2015. But, to prove this fact no documents is file before this Commission.
7. However we are forced to delve into the questions. On the other hand we indulged to decide, The points for consideration are:
(a) Whether the consumer complaint is maintainable?.
(b) Whether is there any consumer and service provider relationship between the parties?.
(c) Whether the act of deficiency alleged will come under the Consumer Protection Act?.
Point: The same questions were considered by this Circuit Bench as well as our Principal Bench at Chennai in several cases. In the above earlier orders passed by this Commission the following points were also considered. Whether the payment of fees for measuring the property does come under the category of 4 consideration?. Whether the Government Officers doing their statutory duties come under the category of service as per the Consumer Protection Act?.
8. Before answering the same, it is pointed out that ,only certain categories of persons are permitted to knock the doors of the Consumer Forum and that person should be a consumer as defined under Section 2 (1)(d) of the Act as well as the service as defined under Section 2 (1) (O) of the said Act.
9. The definition of "deficiency" as defined in Section 2 (1) (g) of the Act, it would appear that it 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. This definition of " deficiency" comes into play in favour of a person who is a consumer as per Section 2 (1) (d) (i) or a potential user of the services which has been hired or availed for a consideration by him falling within the provision of 2 (1)
(d) (ii). This definition of "deficiency" will certainly not apply in all cases whenever there is 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, unless there is an element of consumer - service provider relationship.
10. The opposite parties are statutory authorities discharging their statutory functions and on no stretch of imagination they can be held as service providers. Apart from that, the complainant is also not a consumer as per the above definition 5 and the payment of Rs.80/- cannot be treated as consideration as the same is statutory fee payable by the respondent/complainant
11. Surveying a land is done not solely on the application of parties. It is a part of their Sovereign duties, such functions are performed by the Government under the provisions of Tamil Nadu Patta Pass Book Act - 1983 , the Tamil Nadu Patta passbook Rules - 1987, and Tamil Nadu survey and Boundaries Act. As per Tamil Nadu Patta passbook act, the Revenue Officials vested with certain powers which are statutory in nature and any omission in their duties will not be termed as deficiency in service.
12. It is relevant to refer the following case laws.
(1) Reported in - (2010) 11 SCC 159 - The Hon'ble Supreme Court of India - in the case of - Maharshi Dayanand University -Vs- Surjeet Kaur.
(2) Reported in - AIR 2010 SC 93, - The Hon'ble Supreme Court of India - in the case of - Bihar School Examination Board -Vs- Suresh Prasad Sinha.
(3) Reported in - 1996 AIR 839 - The Hon'ble Supreme Court of India - in the case of - S.P.Goel -Vs- Collector of Stamps, Delhi.
(4) Reported in - CDJ 2011 TNSCDRC 389 - The Hon'ble Tamil Nadu State Consumer Disputes Redressal Commission, Chennai - in the case of The District Collector, Ariyalur & Another -Vs- K.Malairaja & Others.
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(5) Reported in - CDJ 2011 TNSCDRC 469 - The Hon'ble Tamil Nadu State Consumer Disputes Redressal Commission, Chennai - in the case of
- Mrs.Vijaya -Vs- The District Collector Theni.
(6) The order passed by The Hon'ble Tamil Nadu State Consumer Disputes Redressal Commission, Chennai in F.A.No.656/2007 dated 29.11.2010 - in the case of - The Tahsildar -Vs- Chellamuthu.
(7) The order passed by The Hon'ble Tamil Nadu State Consumer Disputes Redressal Commission, Chennai in F.A.No.283/2007 dated 29.11.2010 - in the case of - The Tahsildar, Jayamkondam Taluk -Vs- Lakshmi.
(8) Reported in - CDJ 2004 TNSCDRC 012 - The Hon'ble Tamil Nadu State Consumer Disputes Redressal Commission, Chennai - in the case of
- The Tahsildar, Tahsildar Office, Cuddalore -Vs- D.Kanakavalli & Another.
(9) Reported in - CDJ 1996 TNSCDRC 055 - The Hon'ble Tamil Nadu State Consumer Disputes Redressal Commission, Chennai - in the case of The Tahsildar -Vs- Sundararajan.
13. By relying upon those citations the Circuit Bench has already decided that the payment of fee fixed for effecting sub-divisions and issuance of patta would not come under the category of consideration and there is no question of hiring or availing of any Government service.
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14. Among, the citations considered by this commission is the reported Judgement of Apex Court in - 1996 AIR 839 - The Hon'ble Supreme Court of India - in the case of - S.P.Goel -Vs- Collector of Stamps, Delhi. The point observed and reiterated is that a Government Officer may be held liable in tort if, in the discharge of his official administrative duties if he acted maliciously. Here it is not the case of the complainant that the opposite parties acted maliciously or with oblique motive or malafied. It is also not the case that the opposite parties have not issued patta in the name of the complainant, with any malicious intention.
15. The learned Government Pleader also correctly mentioned in the written arguments that the payment of Rs.80/- through E-service as fees or charges are only statutory obligations of the complainant and in no way it can be termed as a consideration paid as far as issue of patta is concerned . It is a part of sovereign duties and such functions are performed by the Government under the provisions of these Act through Revenue officials.
16. The complainant if aggrieved had a remedy by preferring appeal before concerned Appellate authority instead of filing a complaint before the District Commission. For the above going reasons, which were not considered by the District Commission the impugned order is liable to be set aside.
17. Finally we also referred the judgment reported in, "II (2016) CPJ 78 (NC) in the case of C.K.Mohanasundaran .Vs. K.U.Gopalakrishnan Nair "wherein it was held that Revenue Department of State Government being the Administrative and Land Management of State, performs mostly the statutory functions - CP Act, 1986 is not applicable because remedy in 8 such cases is already available under Revenue Laws of State Government. The above citation also squarely applicable to the present appeal. Therefore, the order passed by the District Commission is not sustainable in law and we answered the point accordingly.
18. In the result,
1. The appeal is allowed.
2. The order passed by the Learned District Commission, Tiruchirappalli, made in C.C.No.49/2016, dated 23.11.2016 is hereby set aside and the complaint is dismissed.
3. No order as to costs in this appeal.
4. The Registry is directed to refund the mandatory deposit to the appellant/opposite party with accrued interest thereon duly discharged in favour of the appellant/opposite party. Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by us on this the 07th day of June 2023.
Sd/-xxxxxxxx S.KARUPPIAH, JUDICIAL MEMBER.