State Consumer Disputes Redressal Commission
The Tahsildar,Kovilpatti Taluk ... vs N.Subbalakshmi,Ottapidaram ... on 25 March, 2019
1
IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
THIRU.S.M. MURUGESSHAN, MEMBER
F.A.No.01/2016
(Against the order made in C.C.No.111/2014, dated 19.11.2015 on the file of the
District Forum, Tuticorin.)
MONDAY, THE 25th DAY OF MARCH 2019
1. The Tahsildar,
Kovilpatti Taluk Office,
Kovilpatti,
Tuticorin District.
2. Maintenance Surveyor,
Kovilpatti Taluk Office,
Kovilpatti,
Tuticorin District. Appellants/Opposite Parties
-Vs-
N.Subbulakshmi,
W/o Nagarajan,
Door No.1/173, South Street,
Onamakulam,
Elavelangal Post,
Ottapidaram Taluk,
Tuticorin District. Respondent/Complainant
Counsel for the Appellants-1&2/Opp.Parties-1&2: Mr.S.Kandhasamy, Advocate.
Counsel for Respondent/Complainant : Served. Called Absent.
This appeal coming before us for final hearing on 18.02.2019 and on
perusing the material records, this Commission made the following:-
2
ORDER
THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
1. This appeal has been filed by the appellants/opposite parties under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the learned District Forum, Tuticorin made in C.C.No.111/2014, dated 19.11.2015, allowing the complaint.
2. For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Consumer Disputes Redresssal Forum, Tuticorin.
3. The opposite parties, suffering an order, directing them jointly and severally to measure and sub-divide the property as per the sale deed in favour of the complainant within period of one month and also to pay a sum of Rs.10,000/-as compensation for mental agony and Rs.2000/- as costs, in the hands of the District Forum, Tuticorin (hereinafter referred to as District Forum) have preferred this appeal before this Commission.
4. The averments made in the complaint are briefly as follows:- As per documents No.1150/2000 the complainant became owner of 3/4 of the punja land in survey numbers 321/1, 322/3, 4, 2B out of the total extent of 12 acre 50 cent i.e. 5.06.00. The joint patta No.1552 stands in the name of the complainant and one Veerasamy Naicker. For measuring and sub-division, the complainant applied to the 1st opposite party by paying a sum of Rs.2/- towards application charges. After scrutiny of the application, the 1st opposite party was asked to pay a sum of Rs.320/- for measuring the above property. As per the instructions, he paid the amount on 3 07.08.2014 as per the chalan of the State Bank of India, Kovilpatti Branch along with other documents he sent the application and the chalan on 12.08.2014 to the 1st opposite party under registered post. On 13.08.2014, the 1st opposite party received the same. After payment of the amount, complainant as well as her brother approached the opposite parties for more than five times; but they have not come and measured the land for the purpose of sub-division. Till date, the 2nd opposite party has not measured the land and the 1st opposite party also did not take steps for measuring and sub-division of the complainant's land. The act of the opposite parties amounts to deficiency in service as a result which the complainant suffered mental agony. Hence the complainant filed a complaint before the District Forum claiming a compensation of Rs.25,000/- towards mental agony, Rs.25,000/- towards damages and Rs.25,000/- as costs.
4. After serving notice, since the opposite parties had not appeared before the District Forum, Tuticorin, they were called absent and set ex-parte.
5. The Learned District Forum, Tuticorin passed an order in the absence of the opposite parties by allowing the complaint on the ground that there is deficiency on the part of the opposite parties and directed the opposite parties jointly and severally to measure and sub-divide the property as per the sale deed in favour of the complainant within a period of one month, and also to pay a sum of Rs.10,000/- as compensation for mental agony and Rs.2000/- towards cost. Failing of payment, the amount shall carry interest at the rate of 9% p.a. from the date of order till the date of payment. 4
6. Being aggrieved against that order, the opposite parties challenged it by filing the appeal in the year 2016 before this Commission by contending that there is no relationship of consumer and the service provider between the parties as defined under the Consumer Protection Act. This dispute is also not a consumer disputes. The complainant has purchased the property from some of the legal heirs of Veerasamy and remaining legal heirs of Veerasamy have not alienated the property in favour of the complainant. When the 2nd opposite party visited the particular land they learnt that the complainant is not in the possession and enjoyment of the property applied for patta and instead of that the other five persons of legal heirs of Veerasamy have objected to enter into the land and also given objection to measure the property since they are inherited the property from their father Veerasamy and the complainant is not having any valid title and possession over the property for which she applied for individual patta. The Learned District Forum has completely misunderstood the scope of the complaint and passed the award in favour of the complainant and hence the order of the Learned District Forum is liable to be set aside as it is not maintainable.
7. The respondent/complainant is not appeared before this Commission after receiving the notice and hence the respondent called absent and therefore this Commission decided to dispose of this appeal on hearing the arguments of the appellant and based on the available records.
8. Point for consideration is; -
Whether the order passed by the Learned District Forum, Tuticorin is sustainable under law or not?
5
9. Point: The complainant purchased some piece of land and applied for measuring, sub-division and issuing individual patta by paying necessary fees. On failure of measuring the property by the opposite parties, the complainant approached the District Forum and filed a consumer complaint alleging that the opposite parties committed deficiency in service and claimed compensation from the opposite parties. In the absence of the opposite parties, the Learned District Forum passed an order against them against which the opposite party filed and challenged the same in this appeal.
10. The main contention of the Learned Government Pleader is that payment of fees for measuring the property does not come under the category of considerations. The Government Officers are doing their statutory duties which do not come under the category of service provider and service under the Consumer Protection Act.
11. 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.
12. 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 of for a consideration by him falling within the provision of 2 (1) (d) (ii). This definition of 6 "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 in favour of a person who has alleged deficiency or is a potential user of service hired or availed by him for consideration unless the case of the appellants/opposite parties is not a consumer and hence the question of availing service does not arise and as such the complaint is not maintainable before the Consumer Forum.
11. 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 appellants/opposite parties are also not a consumer as per the above definition and the payment of Rs.320/- cannot be treated as consideration as the same is statutory fee payable by the respondent/complainant. As far as issue of patta is concerned, it is governed by the Tamil Nadu Patta Pass Book Act - 1983 and the Tamil Nadu Patta Pass Book Rules - 1987, Tamil Nadu Survey and Boundaries Act, Tamil Nadu Patta Pass Book Act vests with the Revenue Official certain powers.
12. Surveying a land is done pursuant to the same and not solely on the application of parties. It is a part of Sovereign duties, such functions are performed by the Government under the provision of these Act through revenue officials. Here there is no question of hiring of any service. The appellants/opposite parties cannot be equated to a consumer. Failure or delay to do any statutory duty may not amount to deficiency in service as provided under the Consumer Protection Act. The payment of 7 Rs.320/- is not a voluntary payment, in the sense, that a buyer pays to get some goods or to hire the services. It is mandatory payment which is required to be made for the purpose of surveying and the officials are vested with the power to do certain acts on behalf of the Government.
13. Section 3 of the 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 Forum. A person who comes to the Forum must be a 'consumer', as defined under the Consumer Protection Act - 1986 alleging deficiency in service. There is no element indicating that the appellants/opposite parties are the service providers and the respondent/complainant is a consumer as per the provisos of the Act. It has been well-settled that the Consumer Protection Act does not intend to cover discharge of statutory functions like issuance of patta. The complaint filed by the respondent/complainant is misconceived and abuse of process of law and the same is not maintainable and has to be dismissed as frivolous under section 26 of the Consumer Protection Act with exemplary costs.
14. The appellants/opposite parties' Government Pleader also relying upon the following citations which are in favour of the appellants/opposite parties.
(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.
8
(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.
(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.
9
15. All the above citations relied upon by the Learned Government Pleader is squarely applicable to the facts of the present appeal. The complainant approached the opposite parties with an application for sub-division and issuing separate patta in his name. The duty performed by the Government servant under statutory rules Consumer Protection Act does not apply for the statutory duties.
16. The question of law can be raised at any stage of the proceedings or litigation when the counsel for the opposite parties failed to raise such plea before District Forum. It was well-settled by the number of decisions made by the Hon'ble Apex Court and has been reiterated by the Hon'ble Tamil Nadu State Commission that the Consumer Protection Act has limited scope, in the sense it would adjudicate the disputes between the consumers -Vs- service provider. When the statutory authorities who are performing their duties are not considered as service providers and hence no complaint could be filed against them under the Consumer Protection Act.
17. 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 and question of payment of any consideration would not arise in such case.
18. The Learned District Forum without considering the above points came to a conclusion that the complainant is eligible for getting any compensation and awarded compensation. In the appeal, the Learned Government Pleader raised the valid points regarding the maintainability of the complaint itself. When there is no relationship of consumer and the service provider between the parties under the purview of Consumer 10 Protection Act, the complainant cannot claim any compensation from the opposite parties. Per contra, the District Forum without considering the above points, has erroneously come to the conclusion that there was deficiency in service on the part of the opposite parties in not issuing individual patta after measuring and sub-dividing the land of the complainant and passed an award in favour of the complainant with which we are not agreeing and hence we are of the view that the order of the District Forum is liable has to be set aside and the complaint is to be dismissed as not maintainable. Hence, based on the above conclusion, we come to the conclusion that the order of the District Forum is not sustainable under law and the point is answered accordingly.
18. In the result, the appeal is allowed by setting aside the order of the District Consumer Disputes Redressal Forum, Tuticorin made in C.C.No.111/2014, dated 19.11.2015 and the complaint is dismissed as not maintainable. There is no order as to costs in this appeal.
The Registry is directed to refund the mandatory deposit to the appellants/opposite parties with accrued interest thereon duly discharged in favour of the appellants/opposite parties.
Sd/-xxxxxxxxxx Sd/-xxxxxxxxxxx
S.M.MURUGESSHAN, N. RAJASEKAR,
MEMBER. PRESIDING JUDICIAL MEMBER.
Index: Yes/No
TCM/SCDRC/Madurai Bench/Orders/March/2019