State Consumer Disputes Redressal Commission
The Thashildar Srivilliputhur Taluk ... vs G. Lingam S/O. Gurusamy Sithalamputhur ... on 14 July, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru A.K. ANNAMALAI, M.A.,M.L., M.Phil MEMBER (JUDICIAL) Tmt. VASUGI RAMANAN MEMBER II F.A.NO.414/2010 (Against order in CC.NO.50/2007 on the file of the DCDRF, Srivilliputhur) DATED THIS THE 14th DAY OF JULY 2011 The Thashildar Srivilliputhur Taluk Office Sriviliputhur Appellant/ Opposite party Vs. G. Lingam S/o. Gurusamy Sithalamputhur Srivilliputhur Taluk Respondent/ Complainant The Respondent as complainant filed a complaint before the District Forum against the opposite party praying for the direction to the opposite party to measure the land, and to pay Rs.1 lakh as compensation. The District Forum allowed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.15.02.2010 in CC.No.50/2007. This petition coming before us for hearing finally on 06.07.2011. Upon hearing the arguments of the counsel on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order: Counsel for the Appellant/ Opposite party: M/s. K. Senthilkumar Counsel for the Respondent/Complainant : M/s. S. Suresh JUSTICE M. THANIKACHALAM, PRESIDENT 1.
The opposite party is the appellant.
2. The respondent/ complainant, having purchased a property, under registered sale deed dt.24.3.2006, in old Survey No.388, New Survey No.511/28, had approached the opposite party for measuring the same, paying the fee of Rs.80/- on 6.10.2006, by giving an application. Not only that, another application was also given on 28.1.2007. The surveyor, who came to the spot on 23.3.2007, informed the complainant, that it is not possible for him to measure the property, without the help of the police, and if at all the property has to be measured/ surveyed by District Surveyor, thereby the opposite party failed to perform their duties. Further when the complainant had applied on 4th time on 26.3.2007, by paying a sum of Rs.200/-, demanding bribe of Rs.2000/-, the staff working under the opposite party, refused to measure the property, thereby committing dereliction of duty, caused mental agony to the complainant, for which he is entitled to a compensation of Rs.1 lakh, in addition to a direction to measure the property.
3. The opposite party, admitting the applications given by the complainant, as well the attempt of the staff to measure the property, resisted the case, interalia contending, that the case before the Consumer Forum is not maintainable, that when the surveyor had been to the spot for measuring the property, there was objection by the neighbours, threatening law and order problem also, that since there was difference in Survey No., legal opinion was obtained, and on that basis, when an attempt was made to measure the property, there was difference in measurement, for which the complainant ought to have obtained an rectification deed, and that for the property sought to be measured by the complainant, when there was a dispute, it is not possible for the consumer forum to decide the case, thereby praying for the dismissal of the complaint.
4. The District Forum, by ignorance, or otherwise, assuming jurisdiction in itself, as if this kind of cases also will come within the wings of the Consumer Protection Act, has recorded a finding, that the non-measuring of the property, by the staff of the opposite party should be construed as deficiency in service, which is not even pleaded by the complainant so, whereas they have pleaded dereliction of duty, and thus recording a finding without jurisdiction, directed the opposite party to measure the boundaries, and in addition to pay a sum of Rs.3000/- as compensation, with cost, as per order dt.15.2.2010, which is impugned in this appeal, on various grounds.
5. The learned counsel for the appellant would contend, that when there is a dispute between the parties, regarding ownership and possession, the consumer Fora cannot exercise its jurisdiction, in respect of the immovable property, that the statutory dulty/ liability if any, to be performed by the opposite party will not come under the umbrella of the Consumer Protection Act, but unfortunately, the District Forum, ignoring all these elementary principle, erroneously issued directions, which should be uprooted, though opposed, we are unable to say No to the submission of the learned counsel for the appellant.
6. The opposite party/ appellant is the thasildhar, an organ of the Government. The case relates to immovable property, pertaining to the ownership, possession, including dispute to the boundaries. For measuring the property, though the parties are liable to pay statutory fees, that cannot be taken as consideration, as if labeling the owner of the property as the consumer, branding the Government organ as service provider, as incorrectly held by the District Forum.
Even in the complaint itself, it is not the case of the complainant that the opposite party had committed any deficiency in service, and in fact, even as admitted by the complainant himself, surveyor had attempted to measure the property, and he anticipated law and order problem, because of the dispute raised by the neighbours. Therefore, when the ownership i.e., to which property based upon boundary, the complainant is entitled to own, is in dispute, the consumer forum has to close its eye, in this kind of cases, and it is for the civil forum to decide the ownership, possession, boundaries etc., as rightly submitted by the learned counsel for the appellant.
7. An attempt was made to argue, as if there was no dispute regarding title of the complainant, and therefore the failure on the part of the staff of the opposite party, to measure the property, should be construed as deficiency in service, which is prima-facie fallacy, in our considered opinion. Under Ex.A1, the complainant appeared to have purchased an extent of 0.02.50 in Survey No.511/28 old No.388 part Natham. Because of the dispute alone, regarding the boundary, admittedly the complainant approached Tasildhar for measurement. There was difference in the survey number, in the sense old and new, and on application, the opposite party sought the legal opinion, and thereafter issued notice also, as seen from Ex.A7, to the complainant, to be present on 27.4.2007, for the measurement of the property, including the adjacent owners. In the written version, as well as in the proof affidavit, the opposite party has pleaded that when the surveyor had been to the land for measuring the property, the neighbours viz. Muthumary, Muthu, came to the spot, prevented the surveyor to measure the property, claiming ownership, and it is also the case of the opposite party, that they have shown a civil court decree also. Thereafter also, while measuring, they found difference in the actual measurement, as per the document, and availability on the ground. Therefore, according to the opposite party, they have issued a memo, to have the document rectified. The above plea of the opposite party, not disputed in the proof affidavit, filed by the complainant. Thus it is seen, there is a land dispute, between the complainant, and the neighbours and unless that dispute is solved, by the proper form, there is no question of issuing direction to the opposite party, to measure the property, as per the sale deed, encroaching upon others property, or creating title problem.
8. In this case, a genuine attempt was made by the opposite party to measure the property, not fructified, because of the dispute. There is no relationship, between the complainant and the opposite party, to bring them respectively, as consumer, and service provider. After all the Thasildhar, or their staff are expected to perform their official duties i.e., statutory in nature, for that alone, fees are paid, which will not come within the meaning of consideration. This court had an occasion to consider the same kind of case, wherein also, it is held that the Consumer Forum has no jurisdiction, in this kind of cases.
9. The learned counsel for the appellant urged before us, that the opposite parties are not the service providers, whereas they are discharging their statutory function, who will not come within the meaning of service provider, which submission, we are unable to ignore in view of the Apex Court ruling, as seen from Maharish Dayanand University Vs. Surjeet Kaurm reported in (2010) 11 Supreme Court Cases 159, and the same also can be seen from the causetitle, the opposite party is Tahsildhar. Their services are not hired or availed, as defined under Sec.2 (d)(ii) for consideration. The payment of Rs.80/- or whatever may be the amount, to measure the property is a statutory liability, which will not come within the meaning of consideration. Nowhere in the complaint, it is stated, that the opposite parties are service providers, committed deficiency in service etc. This kind of point was considered, in the above quoted judgement, in paragraph 13, where it is observed but the Act does not intend to cover discharge of statutory function, though that case relates to examination conducted by the university. There is no contract between the opposite parties, and the complainant also. This being the position, when the title is claimed, on the basis of the sale deed, and measurement, and when there is a dispute between the neighbours, which resulted in not measuring the property, the consumer forum cannot poke its nose, unnecessarily, since that is the duty of the civil forum to decide the case of the title, extent etc The District Forum, unfortunately exceeding its jurisdiction, straining unnecessarily, strained the opposite parties also, making them uncomfortable, to do their job properly, and this kind of order should not be allowed to remain, in the papers, and it should be erased without any trace, for that appeal deserves acceptance
10. In the result, the appeal is allowed, setting aside the order of the District Forum in CC.No.57/2007 dt.15.2.2010, and the complaint is dismissed. There will be no order as to cost throughout.
Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.
VASUGI RAMANAN A.K.ANNAMALAI M.THANIKACHALAM MEMBERII JUDICIALMEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/Bench-1/Government