Madras High Court
K. Thillainayakam vs The Commissioner, Madurai City ... on 25 August, 2003
Author: S.R. Singharavelu
Bench: S.R. Singharavelu
ORDER S.R. Singharavelu, J.
1. The revision arises upon the dismissal of the revision preferred by the complainant aggrieved over the dismissal of the appeal by the State Forum as against the award passed by the District Forum.
2. By construing himself as a consumer, the complainant prayed for a compensation of Rs. 99, 998/-. By its order dated 12.3.1997, the District Consumer Forum, Madurai accepted the grievance of the complainant and ordered for a compensation of Rs. 10, 000/- only. Aggrieved by that, the complainant preferred an appeal before the State Consumer Redressal Forum, which was dismissed on 19.11.1997 holding that the complainant/revision petitioner was not at all a consumer. As against that, the complainant preferred a revision before the State Consumer Redressal Forum and that was also rejected without even numbering. Hence the revision petition.
3. The revision petitioner is a licensed builder accustomed of drawing plans on behalf of the actual builder and getting them approved from the Municipal Corporation - the first respondent herein. As per the by-laws relating to the Madurai Municipal Corporation Licensing of Builders and Surveyors under Section 433(12) of the Madurai City Municipal Corporation Act, the licensed builder, who has signed in the plan, shall be deemed to have been employed by the owner or the other persons as the case may be for the execution of those works included in the plan till their completion in all respects. Since the revision petitioner was paying the licence fee from time to time, he was construed as a licensed builder.
4. His grievance is that on very many occasions, including when he prepared a set of plans for the construction of a dwelling house for one Dr. Radhakrishnan, and for Thiru R.Ragothaman, B.E., and also for Tmt.C.S. Prarthana Devi, the first respondent - Corporation and its officials have wantonly and under the guise of acquisition proceedings and scheme plan, etc., refused approval whenever the revision petitioner applied for the same. On the contrary, the same approval was granted subsequently when the actual person wanted to raise the building.
5. In the case of Dr. S.Radhakrishnan, the petitioner had sent the plan on 21.3.1985. The approval of the plan was rejected stating that the site was under acquisition by the State Housing Board. In spite of the subsequent letter by the revision petitioner on 19.4.1985, the same was not accepted. But, the intended builder Dr. Radhakrishnan was able to get the approval of the same plan on 17.10.1985. Similarly, when the revision petitioner sent the plan for the building for Mr. R.Ragothaman, it was returned on 11.5.1988 on false grounds. When an appeal was preferred before the Special Officer, it was said that the Corporation authorities themselves passed orders of rejection by usurping the powers of the Special Officer. Again in the case of Tmt.Prarthana Devi - the wife of the revision petitioner, when a set of plans with detailed letter dated 9.5.1991 were sent, the same were neither approved nor rejected within the statutory period of 30 days and it was on 26.6.1991, an interim reply was sent to the complainant's wife that the matter is waiting for the opinion of the Standing Counsel of the Corporation.
6. Thus, aggrieved over the wilful and wanton inaction and alleged alien attitude of the officials of the Madurai City Municipal Corporation, the complaint was preferred before the District Consumer Redressal Forum, which, after due enquiry, passed an award of Rs. 10, 000/-. Now, the State Forum dismissed the complaint by dismissing the appeal saying that the complainant was not at all a consumer. The un-numbered revision was also rejected by the State Forum.
7. As per the definition clause under Section 2-D of the Consumer Protection Act, the meaning of 'consumer' is as follows :
"Consumer means any person who
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose).
Explanation : For the purposes of this clause, 'commercial purpose' does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment."
8. Learned counsel for the first respondent drew my attention to page 108 in S.M.Suri's Guide to Consumer Protection Act with Allied Acts by Rajesh Gupta and Gunjan Gupta (Edition 1996) wherein it has been observed as follows:
"Whether the sanctioning of plan by the Corporation is a matter that attracts the jurisdiction of Commission under the Act? National Commission in Paresh Nath Bakshi & Another v. Calcutta Municipal Corporation, III 1994 CPJ 125, (NC) held that these powers have been conferred by the legislature on the Corporation in public interest and are expected to be exercised by it only for the purpose of regulating building activity within the local limits of the Municipal Corporation with a view to ensure orderly growth of new buildings in a manner consistent with the requirements of safety, health, hygiene, sanitation and the street alignment or building lines of a public street specified under Section 63 of the Calcutta Improvement Act, 1911 in conformity with the City Improvement and Development Plan so as to prevent haphazard growth of structures. These regulations are enforced by the Corporation by system of regulation of building activity by a process of grant or refusal of building sanction. We have no doubt in our minds that in exercising this power of regulation of building activity, the Corporation is only discharging its statutory function under the Act and it is not performing a 'service' as defined in the Consumer Protection Act as quid pro quo for the consideration consisting of the fee charged by it on the application for sanction. In our opinion the fee paid for the building sanction is not by way of consideration for service of the regulatory machinery set up under statutory provisions and rules governing the regulation of building construction activity in the larger public interest."
9. Thus, the fee paid by or on behalf of the said Mr. Radhakrishnan, Mr. Ragothaman and Mrs. Prarthana Devi for the building sanction is not by way of consideration for service. But, it is only a statutory levy for meeting the expenses of administration and enforcement of the regulatory machinery set up under the statutory provisions and rules governing the regulations of building construction activity in the larger public interest.
10. Similarly, the fees paid by the revision petitioner to get the title as a licensed builder were also in accordance with the by-laws relating to Madurai Municipal Corporation Licensing of Builders and Surveyors. It will only clothe him to prepare a draft plan on behalf of an intended constructor. Merely because a licensed builder sends a plan, it is not imperative on behalf of the Corporation to blindly grant an approval therefore. The reasons were quoted by the first respondent for their inability to pass orders within thirty days from the date of submission of the plan for approval.
11. According to the revision petitioner, they are not bona fide reasons and it is only due to the alien attitude against the revision petitioner, the officials of the first respondent were wantonly passing adverse orders. But, a reading of the counter would clinch the issue and I am also able to find that there are certain reasons validly adducible by the first respondent.
12. If the revision petitioner has got a case for damages, he could have moved the common law remedy for damages. But, he has approached the Consumer Forum and at this juncture, the moot question lies as to whether the petitioner is a consumer ? Only if he is a consumer, his complaint becomes maintainable and conversely, if his complaint is to be maintained, he should initially prove himself as a consumer.
13. In this connection, reliance was placed on the judgment in the case of Lucknow Development Authority v. M.K. Gupta (1994 I LW 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... Cl.(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 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 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 respects 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. But, what was held in the case of Paresh Nath Bakshi & Another v. Calcutta Municipal Corporation (III 1994 CPJ 125 (NC)) was that these powers have been conferred by the legislature on the Corporation in public interest and are expected to be exercised by it only for the purpose of regulating the building activity with a view to ensure orderly growth of new building.
16. At no stretch of imagination, it could be said that what is offered by the Municipal Corporation is a service. It is only upon certain restrictions that were statutorily made in constructing new buildings, the Corporation is empowered to regulate the orderly growth of the new buildings and it is in exercise of such restrictions the Corporation is overseeing as to whether the new builders adhere to the rules. The exercise of such function is equivalent to an act of watching over a law breaker and it is in this process, the function of the Corporation is to enforce the rules in respect of erecting the new buildings. Thus, the Corporation is a machinery in preventing evasion of the obligations enshrined in the rules. It is 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.
17. Accordingly, the civil revision petition is dismissed. No costs. Consequently, the above CMP is also dismissed.