Kerala

Idukki

CC/185/2020

Mathew Abraham - Complainant(s)

Versus

Additional chief secretary - Opp.Party(s)

Adv: cyriac

29 Nov 2022

ORDER

DATE OF FILING : 23.12.2020

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 29^th  day of  November,  2022

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.185/2020

Between

Complainant                                            :     Mathew Abraham,

                                                                      Kallidukkil House,  

                                                                      Alakkode, Anchiri P.O.,

                                                                      Idukki – 685 585. 

          (By Adv: K.S. Cyriac)

And

Opposite Parties                                       : 1. The Additional Chief Secretary (Finance),

                                                                      Secretariat, 

                                                                      Thiruvananthapuram.

      2. The Deputy Rubber Production

        Commissioner,

Rubber Board,

                                                                      Jyothi Super Bazar, Thodupuzha.

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This is a complaint filed under Section 35 of the Consumer Protection Act of 2019 (‘The act’ for short).  Complaint averments are briefly discussed here under :

 

Complainant claims to be a rubber cultivator, having a rubber garden of 1.95 hectares in Alakkode Village.  1^st opposite party is Additional Chief Secretary (Finance), Thiruvananthapuram and 2^nd opposite party is Deputy Rubber Production Commissioner of Rubber Board at Thodupuzha.   Complainant claims that he has registered for  rubber incentive, from rubber board.  He is paying all requisite tax and fees to  state and rubber board.  Therefore, 1^st and 2^nd opposite parties are service providers and he is their consumer.  Complainant was included in the Rubber Production Incentive Scheme, with No.025726 and given all benefits as consumer.  However, 2^nd opposite party had conducted a unilateral enquiry and finding that complainant is entitled for benefits pertaining to only 0.72 hectare of land wrongly, 1^st opposite party had asked him to repay subsidiary received in excess amounting to Rs.58,798/- from 2015 onwards with 18% penal interest of Rs.44,428/-, all totalling to Rs.1,03,226/-,as per notice No.A1/35/2019 dated 27.11.2020.  If not, revenue recovery proceedings were contemplated in the notice for recovery.  Complainant claims that he has not received                                                                                                                   (cont….2)

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any benefit in excess.  He is not bound to pay any such amount.  2^nd opposite party had wrongly interpreted benefits allowable to farmers as per State Budget of 2015-16.It was on the basis of this wrong interpretation that 1^st opposite party had sent the aforesaid notice.  Hence complainant seeks direction against opposite parties for setting aside notice No.A1/35/2019 dated 27.11.2020 issued by 1^st opposite party and a further direction by way of prohibitory order restraining opposite parties from interfering or stop benefits due to rubber farmers, who are consumers.

 

2.  1^st and 2^nd opposite parties have filed separate objections/written versions.  According to 1^st opposite party, Rubber Production Incentive Scheme was floated by the State Government as per Govt. Order No.269/2015 (Finance) for the purpose of encouraging production of natural rubber by fixing a support price for rubber at Rs.150/kg.  This scheme was meant for farmers who have holdings not exceeding 5 hectares.  Financial assistance per application was restricted to farmers having area not exceeding 2  for rubber cultivation.  For every financial year, subsidiary is restricted to 1800 kg/hectare. More details are available in financial web site, www.ebt.kerala.gov.in.  All rubber producers societies have to register online in this web site.  Complainant herein had registered for subsidy via rubber producers society of Anchiri in Thodupuzha, with registration No.025726, under Rubber Production Incentive Scheme.  He had registered for 1.95 hectares of cultivating land. However, he was found to be entitled for subsidy for 3510 kg of rubber per year.   For every 2 weeks, he has been receiving subsidy for 147 kg of rubber from 2015 onwards.  Thus he had received Rs.1,30,829/- as subsidy in 35 instalments.  2^nd opposite party had sent a letter No.17/1/2018-19-RPD dated 15.10.2019 whereby it was reported that complainant was found to have only 0.72 hectare of land from where he is tapping rubber.  Upon field inspection, remaining 1.23 hectares of land was found to be not under his cultivation and therefore he had received subsidy in excess for the said 1.23 hectares which is to be recovered.  As per letter dated 4.11.2020, bearing No.17/1/2019-20/RPD(III), 2^nd opposite party had reported that complainant had received Rs.58,798/- in excess as subsidy in total.  Since amount was obtained unauthorisedly, it is to be recovered with 18% penal interest which comes to Rs.44,428/-.  It is not practical to inspect all the rubber gardens since about 5 lakh rubber farmers have registered under the Rubber Production Incentive Scheme.  Information and bills submitted by farmers are certified by concerned rubber producers society President and thereafter forwarded to rubber board. After verification of rubber board, file is transferred to State for disbursement of subsidy amount.  If any farmer obtains excess subsidy by giving wrong information, the matter is reported by rubber board.  2^nd opposite party had upon inspection, found that complainant is only tapping 0.72 hectare of land.  He has received subsidy in excess and unauthorisedly for 1.23 hectares of land.  Notice referred to in the complaint was for recovery of excess amount with penal interest.

 

3.  2^nd opposite party had filed a detailed written version.  Its contentions are hereunder :                                                                                                          (cont….3)

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According to 2^nd opposite party, complaint is not maintainable in law or upon facts.  Complainant has no cause of action against opposite party.  There is no consumer-service provider relationship between complainant and 2^nd opposite party.  Complainant has not availed any service for consideration from 2^nd opposite party.  There is no deficiency in service on the part of 2^nd opposite party as there is no transaction between it and complainant.  Complainant does not fall within the definition of ‘Consumer’ as defined under the Act.

 

2^nd opposite party further contends that Government of Kerala had implemented Rubber Production Incentive Scheme (RPIS) to support  small growers by ensuring a minimum support price of Rs.150/kg.  For disbursing subsidy under RPIS, State Government has maintained a web portal.  Any small grower who wishes to avail benefits under RPIS should initially submit an application along with relevant documents before a Rubber Producers Society (RPS) which is a grower organization, registered under the Charitable Societies Act.  After enquiry, president of RPS has to recommend and to upload application of the grower in the web portal upon which a registration number will be generated automatically for each applicant.  Function of rubber board is to verify the documents uploaded by RPS for each applicant and to confirm it.  Applicant never becomes a consumer of the rubber board since he does not avail any service from the Board.  2^nd opposite party has not received any fees or tax from complainant in connection with RPIS.  Contention that 2^nd opposite party had arbitrarily investigated the matter are against facts.  It was noticed that while submitting application for renewal of RPIS in 2019, complainant had, certified that he owns only 0.72 hectare  of rubber plantation.  Earlier, complainant had submitted an application for subsidy through RPS Anchiri, along with 2 land tax receipts claiming subsidy for an area of 0.7270 hectare of land in Sy. No.382/4 of Alakkode Village and 1.2280 hectare of land in Sy. No.146/6 of same village respectively.  Upon verification of information submitted by complainant, president of RPS Anchiri certified it and uploaded the same with documents in Electronic Benefit Transfer (EBT) web site of Government of Kerala for registration.  This application along with documents was counter checked and confirmed by Officer-in-charge of Filed Station under Regional Office of Rubber Board at Thodupuzha.  On the basis of this application and land tax receipts, complainant had received benefits under RPIS for 1.95 hectares  from July, 2015 onwards.  He had continued availing benefit until June 2019 along with other beneficiaries on the basis of application submitted on 2015.  Subsequently Kerala Government had insisted that all beneficiaries registered under RPIS should renew their registration from July 2019, by producing latest LTR.  Accordingly, complainant submitted a land tax receipt bearing No.KL06041003030/2019 dated 17.7.2019 with regard to 0.7270 hectare  of land in Sy. No.382/4 before Anchiri RPS.  While processing renewal application, it was noted that remaining plantation in Sy. No.146/6, which was registered by the complainant in 2015  under RPS, actually belonged to Bibin Mathew, who as per copy of registered settlement deed produced by 2^nd opposite party, is son of complainant.  Further verification                                                                                                                                (cont….4)

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revealed that Mr. Bibin Mathew had also registered the same rubber plantation (RPIS Reg. No.427488) in Sy. No.146/6 by submitting an application on 14.11.2016 along with land tax receipt dated 25.7.2016.  Upon detailed enquiry, 2^nd opposite party found that complainant had transferred property in Sy. No.146/6, in the name of his son, Mr. Bibin Mathew, as per the aforesaid settlement deed executed on 27.3.2013.  However,  mutation was not done in land records before 22.7.2015, the date on which complainant had earlier applied for benefits under RPIS for 1.95.  Complainant had illegally availed benefits under RPIS for rubber plantation in Sy. No.146/6 owned and possessed by his son Bibin Mathew, from 2015 onwards.  Mr. Bibin Mathew also claimed for benefits for the same plantation from 2016 onwards, after effecting mutation in land records.  Accordingly, a report was submitted by the Board before Government to the effect that complainant had received subsidy for 1.23 hectares of rubber plantation which was neither owned nor possessed by him.  Complainant had committed a fraud in availing benefits under RPIS from Government of Kerala for rubber plantation which is not owned or possessed by him. 

 

Subsidy cannot be claimed as a matter of right.  Benefit was given to small growers by Government of Kerala who falls within eligibility criteria framed as per scheme rule of RPIS.  Complainant is not at all a consumer, therefore complaint is to be dismissed as against 2^nd opposite party.

 

4.  During the course of proceedings, 2^nd opposite party had filed an application for dismissing the complaint on the grounds of maintainability.  Complainant had also filed an application to amend the complaint for incorporating a relief of compensation of Rs.4 lakhs from 2^nd opposite party as complainant has been referred to as fraudster in letter sent by 2^nd opposite party to 1^st opposite party and also for the reason that 2^nd opposite party had pleaded in his written version that complainant had committed fraud in availing benefits under RPIS from Government of Kerala.  In short, amendment sought for is  to incorporate a prayer for compensation for damages sustained owing to those statements, which according to complainant is defamatory. 

 

5. The question of maintainability was taken up for hearing initially and matter was adjourned for several times.  On 18.11.2022, since complainant and opposite parties were not present and further as there was no representation from either side, the matter was taken for orders by this Commission.  While so, complainant had filed an application under Section 151 of CPC for setting aside the proceedings dated 18.11.2022 of this Commission and for grant of time for hearing on maintainability.

 

When the application was taken on 22.11.2022, counsel appearing for complainant insisted that the matter was being considered in camp Sitting at Muttam, Thodupuzha and further that he is prepared to argue the case only if it is taken up for hearing in camp sitting at Muttam, Thodpuzha.  Certain unnecessary statements were                                                                                                                 (cont….5)

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also made giving insult to Commission.  Since notice of the application was not given to opposite parties by the complainant, we have ordered notice and informed the counsel that the matter can be considered after notice as such.  However, this is not acceptable to counsel. He has taken a stand  that he is prepared to argue the matter only during camp Sitting at Muttam.  He had also challenged the jurisdiction of this Commission to consider the case at Head Quarters. 

 

Prayer in the application is to set aside record of proceedings of a case which cannot be   set aside as such and hence cannot be maintained. Secondly, Commissions do not have inherent powers of Civil Courts and therefore Sec.151 of CPC  cannot be made applicable to proceedings under the Act. Besides, Calling of matters at Head Quarters and camp Sittings is within the powers of this Commission.  It may happen due to lack of necessary infrastructure or conveyance that sittings cannot be conducted at camp sitting sites and hence it would be necessary to consider these cases at Head Quarters to avoid delay.  We are of the view that complainant or counsel does not have a vested right to get the matter heard only at camp sites. Counsels and parties in other cases posted at camp were present before us at Head Quarters. That apart what is to be considered was question of maintainability. Case was not posted for evidence. It is evident from the application filed to set aside the proceedings dated 18.11.2022 that the counsel had received instructions from  his party and was prepared to argue the case also as he claims that he was present at camp with his party at camp on 18.11.2022. The very same counsel is appearing before Commission at Head Quarters in other cases as well and we recall that he was present before us for arguments just one or two days before us.

 

We do not think that, there will be any difference in the nature of contentions to be addressed whether the matter is called in camp or at Head Quarters.  Adamant attitude, to say the least,  of the learned counsel apparently is intended to protract the matter and also a miserable attempt to gain cheap popularity. Question raised is of inherent lack of jurisdiction which is essentially a question of admissibility. Therefore we do not think that it would be necessary to wait until respondents appear and contest the matter as such.  Further stand of the counsel that he will  argue the matter only if it is called at camp sitting, does not appear to us as proper.  Though an opportunity of hearing is offered, he is only to prepare to take it up on a condition, which is not permissible as per rules. Case was taken for orders and therefore we do not think that matter should be postponed further for hearing the counsel only at camp site, as he has made it clear that he will not argue the case if it happens to be taken up at head quarters.

                                                                          

The point which arise for consideration are :

1)  Whether complaint is maintainable ?

2)  Order to be passed ?

                                                                                                                          (cont…6)

 

 

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6.  Point No.1 :

 

          With regard to question of maintainability, we are not considering written versions filed by opposite parties and copies of documents submitted along with the same.  These documents are photocopies of applications for subsidy, land tax receipts submitted by complainant and his son along with copy of registered settlement deed executed by complainant in favour of his son, with regard to 1.95 hectares of property for which the complainant had claimed subsidy and obtained it from 2015 onwards.

 

          1^st paragraph in the complaint is to the effect that complainant is a consumer of Additional Chief Secretary (Finance), Thiruvananthapuram and that of Rubber Board represented by Deputy Rubber Production Commissioner at Thodupuzha.  He claims that, as he is paying tax and various fees to both opposite parties, he gets the status of consumer.  Payment of basic tax or rather collection of basic tax by the Government is one of its sovereign functions and therefore payment of basic tax as such cannot be considered as consideration for any service which is to be rendered by Government, in particular, grant of subsidies.  Complainant has not specified what fee he has paid for obtaining subsidy in RPI Scheme, nothing was produced to show that any fee was paid for obtaining subsidy. 

 

          His main grievance is that 2^nd opposite party had conducted a unilateral enquiry  and found that he has cultivation only in 0.72 hectare and therefore entitled for subsidy for said  extent of 0.72 hectare of land, which is wrong.  Demand notice issued for recovering Rs.1,03,266/- on the basis of this wrong findings cannot be sustained in law.

 

          Admittedly, 2^nd opposite party had arrived at its disputed findings after conducting an enquiry.  The question whether the enquiry was proper as per rules or whether  finding arrived at on it’s basis are wrong or not,  is a matter which is to be considered by  2^nd opposite party if asked to revisit the same by complainant or it’s higher authority.  It is not the case of complainant that there was any capricious, arbitrary or negligent act by 2^nd opposite party for which he is entitled by law to be compensated. His only grievance is that the enquiry was not proper and findings arrived at on it’s basis are wrong. Even if this is presumed to be correct, it is only a wrong finding based upon an improper enquiry which needs to be set right. Complainant does not have a case that there was any negligence from the side of 2^nd opposite party or that enquiry or findings were capricious for which he is to be compensated. This commission is not vested with power to examine every  wrong proceedings of statutory authorities and set them right. Jurisdiction, if any, is only to compensate if such acts are capricious, arbitrary or negligent. As far as 1^st opposite party is concerned, issuance of recovery notice as such cannot be termed as deficiency in service.  In the application to amend the complaint also, complainant has only  sought for compensation in connection with alleged defamatory statements contained in a letter sent by 2^nd opposite party to 1^st opposite                                                                                                                (cont….7)

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party and in the written version filed by 2^nd opposite party.  The Commission cannot  grant compensation for the alleged defamatory statements.  At this juncture, we also notice that complainant had not attempted to give any details with regard to the acts or rather enquiry conducted by 2^nd opposite party whereby it had found that he is entitled for only benefits/subsidy in connection with 0.72 hectare of land, in the application for amendment. 

 

          To put it otherwise, there are no contentions addressed in the complaint or in the application to amend the same that any of the acts of opposite party amounts to deficiency in service. We find force in contentions advanced by 2^nd  opposite party that complaint is not maintainable.  Complainant is not a consumer as defined under the Act and neither opposite parties are his service providers. Complainant has no cause of action.  Point No.1 is answered accordingly.

 

7.  Point No.2 :

 

          In result, this complaint is rejected. Pending Interlocutory Applications filed in this case will also stand rejected, except I.A. filed by 2^nd opposite party seeking rejection of complaint which is allowed.  Parties shall take back extra copies submitted by them. 

 

                    Pronounced by this Commission on this the  29^th  day of November, 2022

 

                                                                                                    Sd/-

    SRI. C. SURESHKUMAR, PRESIDENT

 

                              Sd/-

  SMT. ASAMOL P., MEMBER

 

                        Sd/-

SRI. AMPADY K.S., MEMBER

 

 

 

                                                                                          Forwarded by Order,

 

 

                                                                                    ASSISTANT REGISTRAR