The district forum has considered the amount paid for survey of the land as consideration for the service to be rendered. The STATE CONSUMER DISPUTES REDRESSAL COMMISSION, chennai has taken a different view that it’s a statutory obligation and will not be covered under consumer protection act. kindly read the below judgement and times of India article.
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
BEFORE : Hon’ble Thiru Justice M.THANIKACHALAM PRESIDENT
Thiru A.K. ANNAMALAI, M.A.,M.L., M.Phil MEMBER (JUDICIAL)
F.A.NO.394/2010
(Against order in CC.NO.54/2008 on the file of the DCDRF, Perambalur)
DATED THIS THE 12th DAY OF JULY 2011
1. The District Collector
Ariyalur
2. The Thashildar
Senthurai Appellants/ 1 and 3 opposite parties
Vs.
1. K. Malairaja
S/o. A. Kani Nadar
Government Hospital Road
Periyar Nagr, Senthurai
Ariyalur District Respondent/ Complainant
2. The Revenue Divisional Officer
Udayarpalayam Respondent/ 2nd opposite party
3. T. Karthikeyan
Head Surveyor, Taluk Office, Senthurai
4. Govindasamy
Deputy Thashildar (Given up)
Taluk Office, Senthurai Respondents/ 4 and 5 Opposite parties
The 1st Respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.95000/- as compensation for mental agony, alongwith cost of Rs.5000/-. 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.06.01.2010 in CC.No.54/2008.
This petition coming before us for hearing finally on 30.06.2011. 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 Appellants/ 1 & 3 Opposite parties: M/s. K. Senthilkumar
Counsel for the 1st Respondent/Complainant : M/s. K. Malakraja
JUSTICE M. THANIKACHALAM, PRESIDENT
1. The opposite parties are the appellants.
2. The complainant/ respondent acquired ownership in Survey No.260/11, two scents, by virtue of sale deed dt.2.11.92. In the same survey No., the maternal uncle Malaikani, had purchased two scents, and purchased a house, and one Chokalingam unable to pay the loan, left the village, executing a power deed. In the year 1995, joint patta was issued in favour of Chockalingam, and the complainant, and therefore the complainant sought the subdivision by paying a sum of Rs.80/- on 7.2.2004. On 5.12.2007, when the complainant sought for FMB, he was informed to pay survey fee, in order to measure the property, which was also paid on 28.1.2008. But demanding Rs.1000/-, the surveyor by name Kasinathan, refused to measure the property, requesting the sale deed from Chockalingam. Thus having collected the amount, for measuring the property, not performing their duty, the opposite parties have committed deficiency, for which the complainant is entitled to a sum of Rs.95000/-, and other appropriate relief.
3. The opposite parties, admitting the availability of the Survey No. and total extent therein, its extent, as well as the sub divisions 260/A,B,C, resisted the case, further contending that S.No.260/11C 0.01.0 belongs to one Manoranjitham, that survey No.260/11C, 260/11C1, 260/11C-2, measures 0.00.70, stands in the name of Chockalingam, Malairaja, jointly, and at the time of updating patta, it was not divided, and the title between the parties, have to be decided before measuring the property, and therefore as such, since there is a dispute between Chockalingam and complainant, as per the documents the property was measured, and if the complainant felt the area available for him is less, he ought to have approached the appropriate court, and settled the matter, and not to file the case before the consumer forum, since the case itself is not maintainable, thereby praying for the dismissal of the complaint.
4. The District Forum assuming somuch of power, as if available under the constitution of India, issued directions not only to conduct enquiry, as well to issue patta, but also compensation, as per the order dt.6.10.2010, which is under challenge.
5. The prayer in the complaint, though many accusations and non-performance of the duties by the opposite parties are pleaded, is for the recovery of Rs.95000/- and cost of Rs.5000/-, and not for anyother relief, though in the body of the complaint, so many averments were made against the opposite parties. The District Forum had jurisdiction, to find out whether the opposite parties had committed deficiency, then issue direction, if case is maintainable, as empowered under Sec.14 of the Consumer Protection Act, nothing more, whereas the District Forum issued directions, which read:
“The present Tahsildar sendurai is directed to issue patta to the complainant containing to the area of his possession in sendurai Natham S.No.260/11 C2, 260/11C and furnish FMB effecting sub division of that particular Area under section 3 coupled with Sec.23 of patta pass book Act 1983, after conducting summery Enquiry under Rule 4(3) and (4) of Tamil Nadu Patta Pass book Rules 1987, within 60 days.
The tahsildar who was functioning at Senthurai as on 8.8.2008, is directed to pay a sum of Rs.10,000/- to the complainant for the injury caused by his evading negligent act of not conducting the summery enquiry U/R 4(3) of Tamil Nadu patta pass book rules 1987 and issued patta pass book with FMB U/S 3 coupled with Sec. 23 of patta pass book Act 1983, alongwith cost of Rs.2000/-.
The opposite party is directed to collect the compensation from the concerned Tahsildhar who functioned as on 8.8.2008, at Sendurai, and pay it in the forum to the complainant within a month, on his failure, the order is enforceable against him.
We do not know, under what circumstances, this kind of order was issued even without prayer, where the opposite parties were not directed to meet this kind of case. Thus, by going through the prayer in the complaint, and the result in the order, it is crystal clear that the District Forum had exceeded its jurisdiction, unwantedly, unnecessarily which can be seen from the nature of the complaint also, further.
6. The reliefs available under the Consumer Protection Act, are generally restricted one, though the reliefs are in addition to the reliefs available under other laws. Only certain categories of persons are permitted to tap the doors of the consumer forum, and that person should be a consumer”, as defined under Sec.2(1)(d) of the Act, as well the service, as defined under Sec.2(1)(o). What are the reliefs, a consumer fora can grant are catalogued under Sec.14. The reliefs sought for in the complaint, neither comes under the Consumer Forum, nor the complainant comes within the meaning of consumer, nor the opposite parties come, within the meaning of service provider. This being the position, it is not known, why the District Forum constrained itself, to assess the provisions available under Tamil Nadu Patta Pass Book Rules, etc., that too, when there is dispute between the parties, regarding the joint patta, ownership etc., that can be seen from the cursory reading of the complaint, since the complainant himself has stated, that there was joint patta, and one of the joint pattadhar left to Madras, giving power of attorney etc Therefore, when the surveyor attempted to measure the property, as per the documents, he found certain difficulties, and in that view, he expressed it is not possible to demarcate the property, issue FM, which cannot be termed as deficiency in service. Under the above stated circumstances, the complainant ought to have gone to the Civil court, to agitate his title, extent, then alone he ought to have approached the revenue authorities, for subdivision of the property, and having failed, as if everything was admitted, a consumer complaint came to be filed, which is not maintainable, even if it is true.
7. 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 Supereme Court Cases 159, and the same also can be seen from the causetitle. The opposite parties are District Collector and Tahsildhar. Their services are not hired or availed, as defined under Sec.2 (d)(ii) for consideration, and this service also will not come under Sc.2(1)(o). 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 position 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. There is no question of malfeasance and misfeasance. This being the position, when the title is claimed, on the basis of the sale deed, and when there is a dispute between the neighbours, which resulted in 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 trace, for that appeal deserves acceptance
8. In the result, the appeal is allowed, setting aside the order of the District Forum in CC.No.54/2008 dt.6.1.2010, 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.
A.K.ANNAMALAI M.THANIKACHALAM
JUDICIALMEMBER PRESIDENT
INDEX : YES / NO
Rsh/d/mtj/Bench-1/Government
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Complete mutation in a month, consumer forum tells city survey
TNN Jan 4, 2011, 07.14am IST
NAGPUR: In a significant verdict that will provide respite to lakhs of citizens purchasing new homes, the Nagpur district consumer forum has directed the city survey officers to complete the mutation of properties within a month. A bench comprising chairman Vijaysingh Rane and member Milind Kedar found the city survey offices guilty of deficiency in services as per section 2 of the Consumer Protection Act. The forum directed the concerned officials to pay 1,000 as compensation for causing harassment to the complainants.
The forum's ruling came while hearing complaints filed by Bhagwat Ramde, Kishor Dahikar and Kamalabai Aphale, alleging that the city survey offices failed to complete the mutation of their properties despite a lapse of several months. Tushar Mandlekar and VA Bagaddeo were counsels for complainants while additional public prosecutor Jyoti Vajani represented city survey officers.
According to Mandlekar, it is necessary for city survey offices to record the mutation of properties within 30 days from the receipt of the application. Since the authorities charge a fee in the form of 5 court fee stamp, they fall under the definition of servicing a consumer, and they commit a deficiency in service by not providing mutation within the stipulated period.
The respondents had admitted the delay of several months in noting the mutation of the complainants, but justified it by saying that it was unintentional since officials were busy in other activities, like measurement of land, preparation of maps, election duties and other court cases. They also argued that since they are statutory authorities, and not earning any profits, they do not render any services hence there is no question of deficiency therein.
The forum allowed the complaint while observing that since the authorities have charged fees, they're bound to provide service. Since the time limit is fixed by the commissioner of land records as 30 days, the service ought to be completed in that period. As the authorities delayed the mutations beyond three months, they have undoubtedly committed a deficiency in services.
The forum also passed the general direction that city survey officers should decide the mutation applications in the stipulated period of 30 days.
On another contention by complainants that the city survey officers charge 15 per entry for grant of property card, popularly known as 'aakhiv patrika', which is against the provisions of the law, the forum asked the respondents to seek clarification from higher authorities.
Legal eagles said that a large number of citizens throughout the state would be benefited by this decision of the forum.
City survey offices admitted the delay, but justified it by saying that it was unintentional since officials were busy in other activities, like measurement of land, preparation of maps, election duties and other court cases.
1 comments:
hi now my grandma also facing same type issue. anybody kindly drive me to resolve the issue
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