State Consumer Disputes Redressal Commission
Municipal Council Barnala vs Abhishek Singla on 10 January, 2020
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.532 of 2019
Date of Institution : 14.08.2019
Date of Decision : 10.01.2020
1. Municipal Council Barnala through its executive officer, Ram
Bagh Road, Opposite Barnala Club, Barnala-148101.
2. President, Municipal Council, Barnala, Ram Bag Road,
Opposite Barnala Club, Barnala -148101.
....Appellants/Opposite Parties
Versus
Abhishek Singla aged 19 years son of Rakesh Kumar Singla,
Resident of H.No.248, Astha Enclave, Dhanaula Road, Barnala.
.... Respondent
First Appeal against the order dated
09.07.2019 of the District Consumer
Disputes Redressal Forum, Barnala.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr.Rajinder Kumar Goyal, Member
Mrs. Kiran Sibal, Member
1) Whether Reporters of the Newspapers may be allowed to see
the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No
Present:-
For the appellant : Sh.Harinder Kumar, Advocate
For the respondent : Sh.Varun Mittal, Advocate
RAJINDER KUMAR GOYAL, MEMBER
ORDER
The instant appeal has been filed by the appellant/complainant against the order dated 09.07.2019 passed by District Consumer Disputes Redressal Forum, Barnala (in short, First Appeal No 532 of 2019 2 'District Forum'), whereby the complaint under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') filed by the complainant was allowed and the opposite parties were directed to refund the amount of Rs.1,09,698/- along with interest at the rate of 6% per annum from the date of deposit till realization.
It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum. Facts of the Case
2. Brief facts, as averred in the complaint are that the complainant had submitted an application along with site plan bearing No.598/2017-18 for construction of his building and deposited an amount of Rs.1,09,698/- with opposite party No.1 against whom opposite party-Council issued receipt No.0000034, Book No.000521 dated 07.03.2018. Despite repeated requests and personal visits, the site plan was not sanctioned by the opposite parties. It was further averred that due to delay in sanctioning the site plan, the complainant had to drop the idea of constructing the building and submitted an application dated 12.06.2018 before the opposite party to refund the amount. This act and conduct of the opposite parties amounts to deficiency in service and unfair trade practice on their part. It was prayed to allow the complainant and sought the following reliefs:
i) to refund the amount deposited i.e. Rs.1,09,698/-
ii) to pay interest at the rate of 12% per annum from 07.03.2018 to 06.09.2018.First Appeal No 532 of 2019 3
iii) to pay Rs.20,000/- as compensation for mental agony and harassment etc.
iv) to pay Rs.10,000/- as litigation expenses. Defence of the Opposite Parties
3. Upon notice opposite parties had not appeared despite their service and were proceeded against ex-parte vide order dated 16.11.2018 by the District Forum.
Evidence of the Parties
4. The complainant in support of his contentions tendered his affidavit as Ex.C-1, copy of transfer deed No.1349, dated 11.07.2017 as Ex.C-2, copy of receipt No.0000521 dated 07.03.2018 as Ex.C-3, copy of application dated 12.06.2018 as Ex.C-4.
Finding of the District Forum
5. The District Forum, which after going through the evidence tendered by the complainant and hearing learned counsel appearing on his behalf, allowed the complaint, vide impugned order. Hence, this appeal by the appellants/opposite parties.
6. We have heard the learned counsel for the parties and have also carefully gone through the records of the case. Contentions of the Parties
7. Learned counsel for the appellants vehemently argued that the District Forum has passed the order only on the facts shown by the complainant to it. Further argued that after receiving the application the appellants started the process for passing the site plan immediately and a report dated 26.03.2018 stating that the First Appeal No 532 of 2019 4 site plan is submitted to convert vacant undeveloped land i.e. (agricultural land) into commercial developed land, therefore, the CLU is required as per the guidelines issued by the Govt. of Punjab, dated 26.08.2014 and submitted the calculation fees required to be submitted by the complainant. The information was also conveyed to the complainant on his visit to their office and instructed to deposit Rs.7,17,233/- against deposited fee of Rs.1,09,698/-. This fact was also conveyed to the complainant in writing vide letter dated 22.03.2018 through special messenger who visited the house of the complainant, where the complainant refused to receive the letter. The special messenger thereafter given his report on the letter dated 22.03.2018. The appellants were proceeded ex-parte before the District Forum and could not defend their case. The complainant is himself defaulted in not complying with the terms and conditions issued by Government of Punjab. The only intention of the complainant is to defraud and cheat the appellants by submitting the leviable fee along with application. The complaint of the complainant was premature as no rejection letter or order with regard to sanction of site plan is issued to him. The appellants being a Govt. department is fully competent to levy any rates/ charges, fees, tax, etc. as per the guidelines issued by the Punjab Government from time to time. The complainant did not issue any mandatory notice or letter to the appellant with regard to refund of the amount prior to filing of complaint. There is no deficiency in service or unfair trade practice First Appeal No 532 of 2019 5 on their part. Finally, it is prayed to allow the appeal and to set aside the impugned order passed by the District Forum.
8. On the other hand, learned counsel for the respondent/ complainant argued that the District Forum has rightly allowed the complaint. The appellants / opposite parties were given sufficient opportunity to appear before the District Forum. However, they themselves chose not to appear before the District Forum and filed this appeal by generating the documents in their favour to get the impugned order set aside. The District Forum while allowing the complaint has thoroughly gone through the evidence available on the record. The order passed by the District Forum is justified as per law. There is no need of any interference in it. Finally, it is prayed to dismiss the appeal with costs being devoid of merits. Consideration of the Contentions
9. We have given our thoughtful consideration to the contentions of the parties.
10. In view of the arguments raised by the learned counsel for parties, the following questions arise for consideration:-
i) Whether the statutory authorities like Municipal Council, Barnala of State Government performing statutory functions is amenable to the jurisdiction of the Consumer Fora under the C.P. Act?
ii) Whether the complaint in question is maintainable before the District Forum? First Appeal No 532 of 2019 6 We take up both the issues together for consideration as under:
11. The word "service" has been defined in Section 2(1)(o) of the C.P. Act as under:-
"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."
In the light of above definition it would be appropriate to examine the settled law on the issues in question.
12. The matter is no more res integra. In "C.K. Mohanasundaran v. K.U. Gopal Krishnan Nair" reported in II (2016) CPJ 78 (NC) complainant/respondent applied for issuing the possession certificates for 48 cents and 58 cents which were owned by him as per partition deed No.2875/1974 of Sub Registrar Office, Tirurangadi and that though he had applied for the certificates on 13.3.2008, he was issued the possession certificate of 58 cents only and the other possession certificate relating to 48 cents of land was denied by the opposite party. Alleging deficiency in service in non-issuing the possession certificate for the 48 cents the respondent filed a consumer First Appeal No 532 of 2019 7 complaint before the District Forum, which allowed the complaint and awarded compensation and costs. Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission, which was dismissed, vide order dated 18.02.2011. Hence the Revision Petition, which was earlier dismissed by the Hon'ble National Commission on the ground of limitation, vide order dated 07.05.2013. The petitioner filed SLP, which was allowed by the Hon'ble Supreme Court, vide order dated 09.01.2015 and set aside the order passed by the Hon'ble National Commission. The matter was remitted to the Hon'ble National Commission. It was argued by the learned counsel for the petitioner in that case that possession certificate could not be issued because there was a different resurvey number and that on verification it was found that survey number 127 had been sub- divided into 127/1 and 127/2 in 1981. The complainant's property was lying in survey No.127/2, whereas he had applied with survey No.127. Therefore, it was not possible to issue the possession certificate. Moreover, petitioner is a representative of a Government Department which performs statutory functions and its activities are not covered under the C.P. Act. Learned counsel for the petitioner relied upon following judgments:-
"(a) Registrar of Co-operative Societies & Anr. v. Tamil Nadu Consumer Protection Council, Trichy & Ors., II (2007) CPJ 175 (NC). It has been held that:
"(i) Consumer Protection Act, 1986 -- Section 21(b) --
Co- operative Societies Act --Section 88 -- First Appeal No 532 of 2019 8 Securities--FDR-- Deposits with Co-operative Society
-- Failure to refund on maturity--Complaint allowed by Forum -- Order upheld by State Commission -- Special Officer and Registrar of Co- operative Societies made personally liable -- Direction -- Refund with interest -- Hence revision -- Registrar of Co- operative Societies and Special Officer appointed under Section 88 of Co-operative Societies Act -- Discharge of any duty or function by them cannot be termed service or facility --Registrar discharges statutory duty and Special Officer appointed for administration of Society because of supersession -- Both cannot be made personally liable for acts or misdeeds of Co-operative Societies -- Order of Commission set aside -- Only Co-operative Society liable for refund of deposit -- Interest @ 8% allowed.
(ii) Distinction -- Service under Section 2(1)(g) and Statutory Duty -- Person who presents document for registration and pays stamp duty, not consumer -- Officers appointed to implement provisions of Registration Act and Stamp Act do not render service under Consumer Protection Act -- Perform only statutory duties."
(b) Thrissur Municipal Corporation v. Ummer Koya Haji, 2006 (3) KLT 897. It has been held that:
First Appeal No 532 of 2019 9
"Consumer Protection Act, 1986, S.2(o)--In respect of sovereign functions exercised by local bodies by way of collection of taxes like property tax, profession tax and other taxes, it cannot be said that local bodies are rendering any services in respect of which tax payer can maintain a complaint under the Act."
(c) Bihar School Examination Board v. Suresh Prasad Sinha, IV (2009) CPJ 34 (SC)=VII (2009) SLT
109. It has been held that:
"(i) Consumer Protection Act, 1986 -- Sections 2(1)(d), 2(1)(g), 2(1)(o), 11,19, 23 -- Education Result not published -- Complainant had to re-
appear in exams -- Loss of one year suffered -- Compensation granted by Consumer Forum --
Order upheld by State and National Commissions -- Civil appeal filed -- Examination Board while conducting examination, in discharge of statutory function, does not offer 'services' to candidates -- Examination fee paid by student not consideration for availment of service, but charge paid for privilege of participation in examination -- Board not 'service provider'
-- Student appearing in examination, not 'consumer'
-- complaint under Consumer Protection Act not First Appeal No 532 of 2019 10 maintainable against Board/University -- Orders of Consumer Fora set aside."
13. Learned counsel also pointed out before the Hon'ble National Commission that the petitioner is only a village level worker of the Government and in this case the whole hierarchy of Revenue Department is present to look into such grievances. These are statutory functions of the State and Consumer Protection Act is not applicable in such cases. In fact, the complainant had submitted an application before the Revenue Minister of the State and an inquiry was conducted by the Inspection Wing of the office of the District Collector, Malappuram. Statements of the complainant and opposite party were recorded in the inquiry. On 19.11.2008 the complainant was informed by letter from the office of District Collector that in his application for possession certificate the survey number of 48 cents was quoted as R.S. 127. This survey number has undergone sub-division into R.S. 127/1 and R.S. 127/2 and therefore, the possession certificate as per the application of complainant for Rs.127/- cannot be issued. This shows that there was no mala fide intention on the part of the petitioner and it was not legally possible to issue the possession certificate on the application of the complainant. It has been held by the Hon'ble National Commission in para Nos.9 and 10 as under:-
"9. After carefully considering the arguments advanced by the learned Counsel for the petitioner and after careful perusal of the First Appeal No 532 of 2019 11 records, we find that in the definition of service under Section 2(o) of the Consumer Protection Act, 1986, certain sectors have been listed though the list may not be exhaustive. Still we find that the Revenue Department is not mentioned in this list as an exclusive sector. Revenue Department of the State Government being the core Administrative and Land Management Department of the State performs mostly the statutory functions. Relying on the judgments submitted by learned Counsel for the petitioner, we are inclined to accept the view that in the present case, the Consumer Protection Act, 1986 is not applicable because the remedy in such cases is already available under the Revenue Laws of the State Government. On the merit of the case also, we find that the proper inquiry was conducted by the office of the District Collector and it was found that it was not possible to issue possession certificate of the said property as the survey number was wrongly mentioned. Moreover, State Commission has also observed in para 20 of its order that the complainant has been issued possession certificate on 12.5.2009. This certificate has been issued not First Appeal No 532 of 2019 12 on the basis of decision of the Fora below, but in the normal course of business under the Revenue Department through its hierarchical system.
10. From the above discussions, we find that the main grievance of the complainant has already been redressed and Consumer Protection Act, 1986 is not applicable for the statutory functions of the State Government. Accordingly, we allow the revision petition and set aside the order dated 18.2.2011 of the State Commission and order dated 29.3.2010 of the District Forum."
14. Applying the same principle in the present case it is held that a person who presents an application for change of land use as per the provisions of the Government does not fall in the definition of 'consumer' as the function is performed by the officer of the said authorities under the statute and does not render any 'service' under the C.P. Act. Rather such authorities perform sovereign functions as mentioned in the respective statutes. Such an act on the part of the Local Bodies i.e. opposite parties asking for payment of charges for CLU, EDC, SIF etc. in accordance with the notification dated 18.11.2017. It cannot be said that statutory authorities are rendering any 'service' in respect of which CLU charges, EDC etc. have been claimed. In this manner, it can very well be said that the complaint is not maintainable. First Appeal No 532 of 2019 13
15. Reference in this regard can also be made to the judgment of Hon'ble U.T. State Consumer Disputes Redressal Commission, Chandigarh in First Appeal No.95 of 2015 "Vijay Kumar v. National Institute of Open Schooling YMCA Complex and others" decided on 1.5.2015 in which the complainant sought information under the Right to Information Act, 2005, from opposite party No.1 therein but it did not supply the same. Then the complainant sent letters to the Appellate Authorities of opposite party No.1 i.e. opposite parties Nos.2 and 3 but to no avail. Alleging deficiency in service he filed consumer complaint for issuance of directions to the opposite parties to refund the amount of Rs.9,066/- along with interest and compensation. The said complaint was dismissed by the District Forum. Feeling aggrieved the complainant/appellant filed appeal before the State Commission. With regard to rendering of any service by the opposite parties to the complainant it has been held by the State Commission as under:-
"Whether the complainant fell within the definition of a consumer and whether, in case, the Public Information Officer furnishes the information, under the Right to Information Act, 2005, amounted to rendering of any service. Nominal fee of ₹50/- was deposited by the complainant, for seeking information, as provided under the relevant Statute. The Public Information Officer, while supplying the First Appeal No 532 of 2019 14 information, under the Right to Information Act, 2005, discharges his statutory duties. The person feeling aggrieved against non-supply of the information by the Public Information Officer, can file first appeal and second appeal. The Appellate Authority, while hearing the appeals, rerforms the quasi-Judicial functions. The Public Information Officer, therefore, does not render any service to the complainant/applicant, seeking information, under the Right to Information Act, 2005. In S.P. Goel Vs. Collector of Stamps Delhi (AIR 1996 839 (SC), it was held that the person presenting a document for registration is not a consumer, within the ambit of the Consumer Protection Act, nor the Officers appointed under the Registration and Stamps Act, render any service to him, but, on the other hand, they perform statutory duties, which are at least quasi- Judicial. The National Commission inPublic Information Officer Vs. Tarun Agarwal, Revision- Petition No.2846 of 2013, decided on 16.12.2013 and Sanjay Kumar Mishra's case (supra) , observed that the provisions of Sections 22 and 23 of the Right to Information Act, 2005, are crystal clear First Appeal No 532 of 2019 15 and the Commission is certainly not armed with the powers under the same (RTI Act, 2005). It cannot arrogate the powers which do not vest with it. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case. In the present case, neither the complainant was a consumer, nor the Opposite Parties, were service providers, nor the dispute was a 'consumer dispute', and, as such, the consumer complaint was not maintainable."
16. In view of the law laid down in the aforementioned judgments and the facts and circumstances of this case, the complaint is not maintainable against opposite parties as both the opposite parties have performed sovereign functions in compliance of the policy of the State Government.
17. Sequel to the above discussions, the appeal is allowed and the impugned order dated 09.07.2019 passed by the District Forum is set aside. Resultantly the complaint filed by the complainant is dismissed; being not maintainable before the Consumer Fora under the C.P. Act. However, the complainant is at liberty to avail any other remedy available to him before the appropriate Forum in accordance with law.
18. The appellants/opposite parties had deposited a sum of Rs.25,000/- at the time of filing of the appeal. It deposited another sum of Rs.57,350/- in compliance of the order dated 20.08.2019. Both these sums, along with interest which has accrued thereon, if First Appeal No 532 of 2019 16 any, shall be remitted by the registry to the appellants/opposite parties by way of a cheque/demand draft, after the expiry of 45 days of the sending of certified copy of the order to the parties.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (KIRAN SIBAL) MEMBER January 10th ,2020 parmod