This complaint is coming on for final hearing before us in the presence of Sri S.N.M.Raju, Advocate for the complainant and Sri K.Phalguna Rao, (G.P.)., Advocate for opposite party and having stood over for consideration, the Forum made the following:-
O R D E R
This is a complaint filed under Section 12 of Consumer Protection Act seeking the relief to direct the O.P. to treat the building fund of Rs.13,750/- paid by the complainant society as property tax and to receive Rs.2127/- being the balance of the said tax and to pay Rs.10,000/- towards mental agony on the following averments.
The complainant is the absolute owner of the land measuring 4 acres 99 cents in S.No.394/2 situated in Madhavaraimetta of Jami Village. The complainant constructed a building in the above land and established an Educational Society by name “Sobha Memorial Educational Society” by obtaining permission from the O.P. They have been operating the Junior College, Degree College and B.Ed., College. The complainant’s society before establishement of B.Ed college submitted a plan for extention of building in the year 2008 and remitted an amount of Rs.13,750/- towards the security deposit. Many times the O.P. returned the plan on flimsy grounds inspite of compliance of objections by the complainant. Since, the O.P. did not accord permission nor returned the plan, the complainant made construction of the building under the impression of deemed approval. The O.P. being instigated by the quarry operators filed a suit in O.S.No.380/2010 on the file of Senior Civil Judge, Vizianagaram for grant of permanent injunction against the complainant’s society in making construction of the building. The O.P. obtained exparte injunction orders in I.A.1134/2010 against the complainant. The complainant again submitted another plan to the O.P. for construction of the building in another part of land in S.No.394/2 but of no avail. The O.P. demanded the complainant to pay a sum of Rs.15,877/- towards property tax. The complainant sent a letter to the O.P. with a request to adjust Rs.13,750/- which was paid for, sanctioning the plan grant of approval towards arrears of property tax and paid a sum of Rs.2,127/- by means of an account payee cheque dt.24-1-2012 for the balance. The O.P. sent a letter dt.30-1-2012 to the complainant informing that no plan would be approved for constructing a building in S.No.394/2 in view of pendency of suit in a Civil Court.
In the said notice the O.P. demanded the complainant to pay a sum of Rs.15,877/- towards arrears of building tax and has contended that Rs.13,750/- paid earlier by the society was treated and shown as building fees in the audit held for the year 2007-08 and returned back the cheque for Rs.2,127/- to the complainant. The O.P. again issued a letter dt.30-2-2013 calling upon the complainant to pay a sum of Rs.19,005/- towards house tax and threatened the complainant that it would take legal action against them in case the arrears of tax are not paid. The act of O.P. in not accepting / treating the amount of Rs.13,750/- paid earlier by the complainant towards the arrears of the property tax and unauthorisedly appropriating the same towards building fund without approving the plan for construction of the building amounts to deficiency of service and as the men of O.P. are in dereliction of their duties the complainants suffered a lot and was put to inconvenience. Hence the complaint.
The O.P. filed counter traversing the material allegations made in the complaint and has averred that the complainant paid an amount of Rs.13,750/- towards building plan as a security deposit in the year 2007-08. Since there was a quarry in the vicinity of complainants property the O.P. was in dilemma whether to grant or refuse permission for making construction of the building as the operation of quarry would cause threat to the lifes of the students. The O.P. made correspondence with his higher authorities in this regard and while the matter stood thus the complainant preferred an appeal before the District Panchayat Officer upon which the D.P.O. directed the O.P. to treat the amount of Rs.13,750/- as building plan security deposit. Hence, the O.P. was not in a position to treat the said amount as building tax. In the audit held in the year 2007-08 the above said amount was shown to be security deposit paid for approving the plan; and as such. The petitioner is bound to pay the building tax as directed by the respondent.
It is averred that there is no deficiency of service or dereliction of duties on the part of O.P. and its men and as the complainant filed the complaint having no just cause, the complaint merits no consideration and is liable to be dismissed.
In support of complainant’s case, the evidence affidavit of P.W.1 is filed and Ex.A.1 to A.5 are marked. On behalf of O.P.s the evidence affidavit of R.W.1 is filed. Perused the material placed on record and heard the counsel for respective parties.
Now the point for consideration is whether the complainant is entitled to get the compensation as prayed for ?
Points: The learned counsel for complainant has submitted that the complainant has paid Rs.13,750/- vide challan No.6228 towards the security deposit for building plan but the O.P. has repeatedly returned the plan on flimsy grounds and asked the complainant to comply the objections and inspite of compliance of objections the O.P. did not approve the plan and filed a suit against the complainant in O.S.No.380/2010 and obtained exparte injunction in I.A.1134/2010. It is his further contention that the O.P. demanded the complainant to pay a sum of Rs.15,877/- towards property tax upon which the complainant addressed a letter asking them to adjust the amount of Rs.13,750/- paid as security deposit towards the property tax and to receive the balance amount of Rs.2,127/- which was paid through account payee cheque dt.24-1-2012 and as the O.P. did not adjust the amount the complainant was constrained to file the complaint for the above said reliefs. As against the above said contention the learned counsel for O.P. has contended that the complainant has paid an amount of Rs.13,750/- towards security deposit for sanction of the building plan submitted by him and as there were quarrys near the building to be constructed by the complainant the O.P. has made a reference to his higher authorities and when the matter stood thus the complainant preferred an appeal before the District Panchayat Officer and the DPO having seen the material placed before him directed the O.P. to treat the amount as security deposit and in the audit held in the same year the said amount was treated to be security deposit for sanctioning the plan and as such the above said sum was not adjusted towards the property tax and as there is no deficiency of service on the part of men of O.P. the complaint is liable to be dismissed. The learned counsel for O.P. has further contended that there is no consumer and service provider relationship in between the complainant and O.P. and as the petition merits no consideration the same is liable to be dismissed.
It is an admitted fact that under the original of Ex.A.1 copy of treasury challan the complainant paid an amount of Rs.13,750/- towards security deposit for sanction of building plan and as seen from Ex.A.2 the complainant addressed a letter to the O.P. with a request to adjust the above said sum towards building tax. Having received the said notice the O.P. issued a letter to the complainant and Ex.A.3 is the copy of said letter and as seen from its contents the O.P. has expressed its inability to adjust Rs.13,750/- which was paid for approval of a plan, towards the property tax. Under Ex.A.4 account payee cheque the complainant sent a sum of Rs.2127/- towards house tax but as per Ex.A.5 letter sent by the O.P. to the complainant, the latter was asked to pay Rs.19,500/- towards the arrears of building tax.
As seen from the above said documents it is manifest that when the O.P. asked the complainant to pay the building tax the complainant made a request to the O.P. to adjust a sum of Rs.13,750/- which was paid as security deposit for approving the plan, towards arrears of property tax. The complainant did not explain under what approval of Law he is entitled to make a request to the O.P. to adjust the amount paid as security deposit for approving a plan towards the arrears of building tax. The material placed on record clearly reveals that the complainant’s society is running college and to accommodate students they have constructed buildings and as the complainant did not pay the property tax for the existing buildings a demand notice was issued to the complainant for payment of property tax. It further reveals that in the year 2007-08 the complainant applied to the O.P. for approving a plan to make further constructions and deposited a sum of Rs.13,750/- towards security deposit. The very purpose of depositing the above said sum is quite different from payment of property tax towards the existing buildings.
A person claiming himself as consumer should satisfy three conditions namely i) The service should have been rendered to him (ii) the service should be hired by him (iii) for hiring the service he should have paid consideration in the manner envisaged by Sec.2 (1) (d) ii of the Act.
Coming to case on hand the complainant has not placed any evidence to prove that he has hired the services of O.P. and for hiring such service he paid consideration.
In a decision in 11(2001) CPJ 391 Rangannagari Yadav Reddy Vs. Vijaya Kumari : In the absence of proof by way of some evidence the averments of the complaint by themselves cannot be accepted and when the complainant has failed to substantiate the allegations leveled in his complaint the same fails for want of evidence and is therefore liable to be dismissed.
In view of the principles laid down in the decision cited supra, when the complainant fails to substantiate the allegations leveled in his complaint by way of some evidence, the compliant is liable to be dismissed. Coming to case on hand, the complainant did not place any evidence to show that the amount paid by him towards security deposit for approving a plan can be adjusted towards arrears of property tax. The amount deposited by him under the original of Ex.A.1 challan is towards approval of plan for constructing a new building whereas the demand notice issued by O.P. for collection of arrears of property tax is for other buildings which were constructed earlier. Hence in the above said facts and circumstances we are of the considered opinion that the complainant has miserably failed to prove that there is a consumer and service provider relationship in between them and that the men of O.P. are in dereliction of their duties.
In the result, the complaint is dismissed but under the circumstances without costs.
Dictated to the Typist, transcribed by her, corrected by me and pronounced by us in the open Forum, this the 12th day of June, 2014.
Member President
CC. 31 of 2013
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For P.W.1 For R.W.1
DOCUMENTS MARKED.
For complainant:-
- Ex.A.1 Photostat copy of Treasury Challan dt.4-2-2008
- Ex.A.2 office copy of letter dt.24-1-2012
- Ex.A.3 Letter to the complainant dt.30-1-2012
- Ex.A.4 Account payee cheque dt.24-1-2012
- Ex.A.5 letter by Executive Officer dt.20-2-2013
For O.Ps: -NIL
