Tamil Nadu

StateCommission

A/399/2022

Tahsildar - Complainant(s)

Versus

A.Singaravelar - Opp.Party(s)

T.Ravikumar

13 Jun 2023

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru. Justice R.SUBBIAH ... PRESIDENT

             Thiru.R VENKATESAPERUMAL       … MEMBER

 

F.A. No.399 of 2022

(Against the Order, dated 21.06.2022, in C.C. No.2 of 2019, on the file of  the DCDRC, Ariyalur)

                                                    

                             Orders pronounced on: 13.06.2023

Tahsildar,

Sendurai 621 714,

Ariyalur district.                   ... Appellant/ Opposite party.

 

vs.

A.Singaravelu,

S/o.Alagappan,

Chithudaiyar Village,

Sendurai Taluk,

Ariyalur District.                   … Respondent / Complainant.

 

For Appellant/ Opposite party      :  M/s. K. Kumaran

For Respondent / Complainant     :  Party-in-Person

 

This First Appeal came up for final hearing on 03.05.2023 and, after hearing the arguments of both sides and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

 

R.Subbiah, J. – President.

 

             The respondent herein is the complainant in C.C. No.2 of 2019 on the file of the DCDRC, Ariyalur.  He filed the said complaint against the Opposite Party/appellant herein by inter alia stating that he is a Septuagenarian with old-age ailments; that he had applied to the OP/appellant herein on 21.08.2018 along with the requisite fee of Rs.40, seeking issuance of the FMB Sketch pertaining to the property at Survey No.273 of Manapathur Village in Senthurai Taluk, Ariyalur; that the OP had shuttled him back and forth without taking any action on his application; and that there was no reply by the OP to his Notice, dated 30.12.2018, and the said inaction amounts to service deficiency that has caused him great mental agony, for which, the OP is liable to pay to him a compensation of Rs.25,000/- as well as litigation expenses, apart from refunding the application fee.

             The appellant herein resisted the complaint by stating among other things that the complainant did not mention the Sub-Division of the Survey Number and also the reason for payment in the remittance challan; that as the document in question was required for court proceedings, he ought to have applied it with an endorsement/counter-signature of a lawyer, but he failed to do so; that, on 07.09.2018, his application was rejected by way of a reply through Registered Post and receipt of the same was acknowledged by the complainant on 04.01.2019; that the complainant can seek for return of the application fee by resorting to the prescribed procedure; that the complainant did not mention at all in the application as to in what manner he is concerned with the property in question; and that, in the event of the Commission ordering supply of the document copy, they are ready to comply therewith, but, the complainant has not come to the Commission with clean hands, hence, the complaint is liable to be dismissed.

             Both sides filed their respective proof affidavits and, on the side of the complainant, 6 documents were filed as Exs.A1 to A6, but, no document was filed by the OP and, by its order dated 21.06.2022, the District Commission held that the manner in which the OP had dealt with the application of the complainant shows service deficiency on his part and, for that, it directed him to pay to the complainant a sum of Rs.25,000/- as compensation along with 9% interest p.a. from the date of the complaint till payment, besides Rs.5,000/- as litigation expenses and, by pointing out that, since the document sought for by the complainant has already been furnished to him, return/refund of the application fee was denied.  Aggrieved by the said impugned order, the OP has come up with the present Appeal.

 

             2. Learned counsel for the appellant/OP states that the complainant/respondent herein had made the application to the OP on 21.08.2018 along with a fee of Rs.40/- that was paid to the Treasury Department through a Challan, for furnishing the FMB Sketch in respect of the property comprised in S. No.273 and, upon due scrutiny of the Application, it was found that the same was bereft of requisite details like the sub-division of the Survey Number, the purpose for which the fee amount was paid to the Treasury and further, when the complainant had stated that he required the Sketch for a court case, the application was not at all counter-signed or endorsed by an Advocate.  As the application was thus completely vague, it was rejected by the appellant and a Memo was sent to him in that regard on 07.09.2018 itself.   According to the learned counsel, when the application fee of Rs.40/- was paid through a Challan to the Treasury Department and not directly to the appellant, the complainant has to seek for refund of the fee from the said Department by resorting to the prescribed procedure and he cannot seek it from the appellant.  Neither payment of the court fee nor the application fee would create a relationship of customer and service provider between the parties; as such, the complaint ought to have been dismissed in limini, in line with the dictum laid down by the National Commission in V.B.Ambedkar (Pensioner) vs. District Collector (2014 (4) CPR 740) to the effect that distinction will have to be made between Statutory Duty performed by the authority appointed by the Government and any Commercial Activity carried out by the Corporation of Government with a sole aim of earning profit.  In the present case, while performing his duties that are purely statutory in nature, the appellant had duly scrutinized the application of the complainant and rejected the same owing to its vagueness and non-disclosure/non-compliance of material particulars and such rejection does not give rise to any cause of action for the applicant to launch a consumer dispute.  Even otherwise, as per the complainant  himself, the required FMB Sketch was furnished to him under Ex.A5 by the appellant on 04.01.2019 itself and, that being so, without any discussion about the same and similarly, without appreciating the time-factor that, after issuing the notice dated 30.12.2018, the complainant, who had received the sketch copy on 04.01.2019 itself, had vainly rushed to file the complaint on 11.01.2019, the District Commission committed a blatant error in readily ordering compensation for no good reason or cause and hence, the impugned order is liable to be set aside; learned counsel pleaded ultimately.

 

             4. Per contra, the complainant argues that, after applying to the OP/appellant, seeking issuance of a copy of the FMB sketch for the purpose of filing a writ petition, he had travelled a distance of 20 KMs from his place of residence to the office of the OP many a times, but in vain.  It is after seeing his plight, an IAS Officer gave him a copy of the Sketch which he had filed in the writ proceedings before the High Court and he also marked it as a document in support of his case in the Complaint.  It is only after issuance of the Notice and filing of the complaint, the appellant had chosen to send a copy of the sketch and, by that time, 5 months had lapsed and the purpose for which the document was required had also become redundant. According to him, upon payment of Rs.40/- towards the fee for the application that was made on 21.08.2018, he had become a Consumer as per Section 35 of the CP Act and the complete inaction on the part of the appellant for about 5 long months in complying with the plea in his application is a deliberate service deficiency which clearly attracts liability under the CP Act.  Having regard to the nature of deficiency and its impact on the complainant/Senior Citizen, a just compensation was awarded by the District Commission by passing the impugned order which does not call for any interference and hence, the appeal is liable to be dismissed; the complainant urged ultimately.

 

             5. We have considered the rival submissions of both sides and perused the materials available on record.

             Now, the complainant has made certain allegations that the appellant/Tahsildar had fraudulently transferred the patta of a wet land in favour of one Selvi in 2016 and he also states that he had obtained a copy of the Sketch from an IAS Officer and these aspects were not pleaded by him in his complaint.  But, it is the admitted fact that he had made the application on 21.08.2018 to the appellant, seeking for issuance of the FMB Sketch Copy in his favour.  On a perusal of the application under Ex.A2, we find, it is only stated that the Sketch was needed for court/case purpose.  It is the contention of the appellant that the complainant is not the owner of the land in question and since he required the copy of the sketch for filing it before a court of law, the application ought to have been counter-signed or endorsed by a lawyer and such essential requirement was not complied with by him.  Although the appellant claims that a Memo was sent to the complainant on 07.09.2018 itself assigning the reason for non-furnishing of the sketch copy, he has not filed any proof to substantiate the same.  In the absence of any material to suggest that a proper reply was given by the appellant to the respondent at the earliest point of time, the serious allegation of the respondent that, in the pursuit of obtaining the sketch copy, he was driven from pillar to post by the appellant for many a times, cannot be slightly ignored particularly when such allegation has not been denied or refuted by the appellant.  Another interesting feature is, from the Memo under Ex.A5, dated 04.01.2019, it is seen that the sketch was already furnished and, according to the complainant, by that time, the purpose for which he required the document had become redundant.  If it is the statutory requirement that an applicant seeking a copy of the FMB Sketch for court or case purpose must present his application duly endorsed by a lawyer,  it  is not known what has driven the appellant to condone such requirement and issue the sketch under Ex.A5.   May be, after issuance of notice by the complainant under Ex.A3, dated 30.12.2018, which was received  on 02.01.2019, one day  thereafter, that was on 04.01.2019, fearing initiation of any legal action as echoed in the Notice, the appellant had swung into action, obviously, despite non-compliance of the statutory formalities, for which the application was not approved till then. It seems, stuck in between the allegations of fraud and non-disposal of the application, the appellant/Tahsildar had done something in the 11^th hour to somehow get rid of the complainant’s ultimatum. As such, the conduct of the appellant in furnishing a copy despite non-compliance of the statutory formality would obviously enervate his defence of exercise of statutory duty.  Inasmuch as the said defence is completely eclipsed by the acts of omissions and commissions on the part of the appellant who had unnecessarily driven a Septuagenarian Applicant said to be suffering from spinal-cord and other ortho issues from pillar to post, in this case, the consumer liability is relatively derivable; as such, we hardly find any scope for interference to disturb the impugned order, in particular the direction to pay compensation for ‘service deficiency’.

 

             6. But, at the same time, certain other core aspects need to be adverted to essentially, before parting.  Generally, copy of an FMB Sketch is applied by the owner of the land or property concerned and, if it is required by somebody else, he/she shall have to comply with certain statutory formalities including the one as pointed out by the appellant. It is the main argument of the complainant that, by mere payment of the application fee, the relationship of consumer and service-provider comes into existence between him and the appellant/authority, as per Section  35 of the CP Act, 2019, and the relevant portion of the said provision reads as follows:-

            “ 35. (1) A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Commission by—

 (a) the consumer,— (i) to whom such goods are sold or delivered or agreed to be sold or delivered or such service is provided or agreed to be provided; or (ii) who alleges unfair trade practice in respect of such goods or service; …… “

In our view, the said contention is nothing but a clear misconception, because, from a reading of the above provision, it is obvious that, in regard to services, an aggrieved consumer can file the complaint for the services  either “provided” or “agreed to be provided”; while so, in the present case, there being no scope for any ‘provided service’, the other segment of any service ‘agreed to be provided’ is also totally absent for the simple reason that the application presented by the complainant would not automatically entail him to get the FMB Sketch in consideration of the application fee, in that, he may either get the copy as requested by him if his application was found to be in order or may not, if the authority concerned finds that the application was not in order or it was devoid of acceptance due to non-compliance of any statutory formality/requirement.  In other words, the acceptance or otherwise of the complainant’s application is subject to statutory scrutiny and, by mere payment of application fee, the applicant is not assured or guaranteed that his requirement would be complied with or that the application fee would be refunded upon rejection of the application.   There is a stark difference between the consideration that is paid for an assured service and the fee remitted for getting a document copy from the statutory authorities through an application which may or may not be accepted and, while in the former instance, one can claim the consideration back and also a just compensation for the demonstrable damages arising from a manifest service deficiency;  but, in  the  latter case, any rejection order or adverse decision of the statutory authorities cannot be questioned before the Consumer Fora with omnibus allegations of deficiency in service and the same can be challenged only before the appropriate court of law.   In the present case, either of the essential elements as mentioned in the provision under Section-35 viz., provided services / services agreed to be provided, does not exist at all.  Equally, soon after receiving the application, the authority concerned is bound to dispose of the same either way, within a reasonable time and particularly where the authority is of the view that the application is vague and devoid of positive consideration due to non-compliance of certain specific statutory requirements, the same should be conveyed as soon as possible to the applicant thereby leaving no room for any complaint of slackness on the part of the authority concerned.  Here, despite his own defence that the complainant’s application was not fit for consideration due to non-compliance of the statutory requirement regarding endorsement by an attorney, the appellant contrarily complied with the request soon after the Notice issued by the complainant whereby he confronted him with legal action and further, there is no explanation forthcoming from the appellant for the lull on his part during the long interregnum between the application date and the compliance memo under Ex.A5. As already pointed out, though it is stated that a Memo was sent on 07.09.2018 stating the reason for non-furnishing of the sketch copy, no proof has been marked to substantiate the same.  In the given factual scenario where every defence of the OP/appellant completely erodes and when his acts of commission and omission in a way relatively attracts consumer liability,  grant of compensation by the District Commission after due assessment of the totality of circumstances is perfectly justified. Hence, by holding that this is an exceptional case where the direction to pay compensation for service deficiency is justified and by making it clear that, duties performed by the authorities within the statutory bounds and the consequences arising there-from would not ordinarily attract the consumer liability unless it is specifically demonstrated otherwise in terms of the prevailing facts and circumstances as in the present case, we are inclined to dismiss the appeal as devoid of any merit.

 

             7. In the result, the appeal fails and it is dismissed.

    

 

 

R VENKATESAPERUMAL                                                                                                                         R.SUBBIAH, J.

MEMBER                                                                                                                                                      PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/JUNE/2023.