State Consumer Disputes Redressal Commission
The Tahsildar vs Lakshmi, W/O.Murugaiyan on 29 November, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt.Vasugi Ramanan, M.A., B.L., MEMBER I Thiru.S.Sambandam, B.Sc., MEMBER II F.A.No.283/2007 [Against order in O.P.5/2005 on the file of the DCDRF, Perambalur] DATED THIS THE 29th DAY OF NOVEMBER 2010 The Tahsildar, Jayankondam Taluk Office, Udayarpalayam Taluk, Perambalur District. .. Appellant/Opposite party Vs. Lakshmi, W/o.Murugaiyan, Ambalavar Kattalai Village, Udayavarthivanoor Group, Udayarpalayam Taluk, Perambalur District. .. Respondent/Complainant. The respondent as complainant filed a complaint before the District Forum against the opposite party/appellant praying for the direction to the opposite parties to rectify the defects in the pattas issued both the complainant and Balaji Sahib and issued separate patta after sub division and to pay Rs.5000/- towards compensation for mental agony and expenses to the complainant. 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.21.3.06 in O.P.5/2005. This appeal coming before us for hearing finally on 10.11.2010, upon hearing the arguments of the counsels for appellant, and perused the documents, written submissions as well as the order of the District Forum, this commission made the following order: Counsel for the Appellant/ opposite party : Mr.K.K.Senthilkumar, Advocate. Counsel for the Respondent/Complainant : Mr.S.Aravamudhan, Advocate. M. THANIKACHALAM J, PRESIDENT 1.
The opposite party is the appellant.
2. The appeal is directed against the order of the District Forum, Perambalur, dated 21.3.06, in O.P.No.5/2005, wherein, a direction has been given, to subdivide the survey number, as well to pay a sum of Rs.5,000/- as compensation, for the deficiency said to have been committed by the opposite party.
3. The complainant claiming that he is owning lands, in S.No.64/7 and 64/13, that the authorities under the UDR Survey have granted patta, excessively to one Balaji Sahib, that despite representation and direction by the authorities concerned, they have failed to rectify the mistake, thereby caused deficiency for which, not only a direction should be given to correct the area, as well there should be a direction of compensation of Rs.5,000/-.
4. The opposite party questioning the maintainability of the complaint, as well as the possession and ownership claimed by the complainant, opposed the claim on the grounds, with among other grounds, that the complainant having failed to prove his possession, is not entitled to claim sub division or patta as the case may be, thereby praying for the dismissal of the case.
5. The District Forum without understanding, what is the consumer dispute, who is a consumer, whether this kind of dispute would come within the meaning of the Consumer Protection Act, or not issued directions which reads, we direct the opposite party to make sub division in respect of 9 cents in S.F.No.64/7 and 4 cents in S.F.No.64/13 which is in dispute and issue fresh patta to the complainant after considering Exhibit A1 title deed and to pay Rs.5,000/- (Rupees five thousand only) towards compensation along with cost of Rs.1,000/- (Rupees one thousand only) to the complainant within 6 weeks from the date of receipt of this Order failing which the opposite party is liable to pay interest at the rate of 12% per annum for the said amounts , which is challenged by the opposite parties.
6. The subject matter of the complaint, is in respect of landed properties comprised in Survey Nos.64/7 13 cents, 64/13 44 cents. As seen from paragraph 3, from the Pangalies of the complainant, one Balaji Sahib had purchased 16 cents and 22 cents as per the registered sale deed.
The total extent in both the survey numbers, appear to be 57 cents. When the Government had updated the land survey, they have granted patta based upon actual possession, 9 cents in excess in S.No.64/7 and 13 cents in excess in S.No.64/13 as pleaded in paragraph 4 of the complaint. When the matter was reported the opposite parties sought for materials, to prove the possession, ownership, which they failed. Therefore, though there was a direction from the higher authorities, the Tahsildar was unable to subdivide the properties or correct the extent in the patta already granted, thereby showing there is a dispute between the parties, what is the extent, the complainant is entitled, and what is the extent one Balaji Sahib is entitled. In whose favour, excess extent was granted is not impleaded as a party, to this proceedings. Therefore, when there is a dispute regarding the extent, when there is dispute regarding possession, based upon title, it is impossible for the Consumer for a, to issue direction to make sum division or make correction in the extent as directed by the District Forum.
7. Section 3 of Consumer Protection Act confers power, to agitate certain kinds of cases, in addition to remedies available in any other Acts, that does not mean, all kinds of cases could be filed before the Consumer Fora. A person who comes to the Forum, must be a consumer, as defined under the Consumer Protection Act, alleging deficiency in service.
The District Forum though had considered the rights available, to a citizen, under Section 3 of the Act, failed to consider, whether the complainant is a consumer or not, whether the opposite party is a service provider or not for consideration. There is no plea in the complaint, indicating that he is a consumer and opposite party is a service provider, the opposite party has failed to perform it service, though received consideration.
8. Section 2(1)(d) defines Consumer and certainly, the complainant will not come under Section 2(1)(d)(1) and if at all he should try to come under Section 2(1)(d)(2), for which also there is no possibility, since the complainant has not hired or availed the service of the opposite party for consideration. If at all, the opposite party had a statutory duty, to measure the property, issue patta based upon possession, title and nothing more . In this case, even the pleadings would indicate that there is a dispute between the complainant and one Balaji Sahib, in whose favour, patta has been granted for excess extent. In his absence and without knowing what would be the defense of Balaji Sahib there cannot be any direction of against the opposite party by the Consumer Forum. If the complainant is aggrieved against the patta granted in excess to Balaji Sahib, he ought to have approached the Civil Forum for declaration of title with consequential relief, as available impleading proper party and at no stretch of imagination the complainant could be construed, or considered as consumer and the statutory duty, to be performed by the opposite party, also will not come within the definition of service, as seen from the definition available in the Act. The District Forum unfortunately assuming power, miss quoting certain judgments which are not applicable to the case in hand has committed a blunder in issuing the direction, which should be erased, and upset, for which the appeal deserves acceptance.
8) In the result, the appeal is allowed, setting aside the order of the District Forum in O.P No.5/2005, dated 21.3.2006 and the complaint is dismissed. Under the facts and circumstances of the case, there will be no order as to cost through out.
9) The Registry is directed to hand over the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.
S. SAMBANDAM VASUGI RAMANAN M.THANIKACHALAM MEMBER II MEMBER I PRESIDENT.
INDEX : YES / NO sg/mtj/land