Date of Filing      : 18.07.2018

                                                                                                                      Date of Disposal: 14.06.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                      .…. PRESIDENT

                  THIRU P.MURUGAN, B.Com,                                                                        ….. MEMBER-II

CC. No.19/2019

THIS TUESDAY, THE 14^th DAY OF JUNE 2022

Mr.A.J.Alexander,

S/o.R.Ashirvatham,

No.38/21, 2^nd street,

Anna Complex, Muthaputhupettai,

Avadi, Chennai -55.                                                       ……Complainant.

                                                 //Vs//

1.Mr.Suresh,

2.Mr.Sridhar,

3.Mr.Amrendhar,

   1 to 3 opposite parties are residing at

   No.38/2, 2^nd Street,

   Anna Complex, Muthaputhupettai,

   Avadi, Chennai -55.

4.The Commissioner,

   Avadi Municipality,

   Municipal Corporation, Avadi Town,

   Poonamallee Taluk, Thiruvallur District.

5.The District Collector,

   Thiruvallur, District Collectorate,

   Master Plan Complex,

  C.V. Naidu Salai, Thiruvallur Town & District            …..Opposite parties.

Counsel for the complainant                            :   Mr.A.R.Poovannan , Advocate.

Counsel for the 1 to 3 opposite parties   :   Mr. S.Muthukumaravel, Advocate.

Counsel for the 4^th & 5^th opposite parties:  Exparte.

This complaint is coming before us on various dates and finally on 27.05.2022 in the presence of Mr.A.R.Poovannan Advocate, counsel for the complainant and Mr.S.Muthukumaravel Advocate, counsel for the opposite parties 1 to 3 and upon perusing the documents and evidences, this Commission delivered the following:

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

The present complaint was filed u/s 12 of Consumer Protection Act, 1986 alleging deficiency in service on the part of the opposite parties and seeking for direction to direct the 4^th and 5^th opposite parties to remove the encroachment made in the 15 feet road existing in survey No.38/2 in Muthapudupet village, Poonamallee Taluk, Thiruvallur District and to pay a sum of Rs.1,00,000/- as compensation towards the mental agony and hardship caused due to the deficiency in service along with cost of the proceedings.

Summary of facts culminating into complaint:-

The case of the complainant is that he had purchased a plot measuring an extent of 3581 sq.ft in S.No. 38/2 in muthapudupet village and the same registered as Doc.No.3816/2013 on the file of joint SRO, Avadi in the layout sanctioned by the 4^th opposite party. As per the sale deed the plot is bounded by 15 feet road on the west and similarly one Mr.E.Chalapathy Naidu owner of the opposite plot is also having 15 feet Road on the western side. Further the western plot abutting 15 feet road was purchased by the father of opposite parties 1-3 but he was not aware of the linear measurements of plot purchased by them and their boundaries mentioned in their document. As per the layout sketch and sale deed of the complainant and the said E.Chalapathy Naidu there is a 15 feet road on their west connecting their layout with the next layout. In the year 2015 Opposite parties 1 to 3 along with their father introduced in to an extent of 4 feet on the public road on the western side of the complainant’s plot and put-up compound gate and planted trees. For which the complainant has made a complaint to the Muthapudupet police in CSR No: 70/2015. Further the complainant for the past 3 years was repeatedly approaching the 4^th & 5^th Opposite parties to take necessary action against 1 to 3 opposite parties and to remove the encroachment made by them in the public road. The Complaint is filed against 4^th & 5^th opposite parties for direction and damage with compensation. Further the Opposite parties 1 to 3 are impleaded only for proper adjudication of the case and the complainant is not claiming any relief against them. Thus alleging deficiency in service on the opposite parties the present complaint is filed.

Defence of the opposite parties by way of written Version:

The Opposite parties filed a joint version disputing the allegations in the complaint.  It is submitted by them that they deny the allegation of encroachment and that they have made construction only as per the documents and had also obtained Patta from Municipality and submitted that the police complaint was filed by influencing the police stating that the complainant was an Ex-Service Man.  It is further submitted that the building was constructed in 2001 and thrice the road was measured by VAO from the staffs of the Collector Office who confirmed the existence of 15 feet road which is very well known to the complainant. The allegation that the public used to close the nose as the drainage is over flowing is false. The opposite party submitted that they are residing in the said property without any disturbance from the year 2001 in survey No.38/2 by paying proper tax.  Thus denying the allegations of encroachment the opposite parties sought for the dismissal of the complaint.

The opposite parties 4 & 5 inspite of sufficient opportunities did not appear and hence were set exparte.

The complainant filed proof affidavit and submitted documents marked as Ex.A1 to A16 and on the side of the opposite parties Ex.B1 to B7 were marked along with proof affidavit.

Point for consideration:

1. Whether the complaint as filed before this Commission is maintainable?
2. If the complaint is maintainable whether the allegations of deficiency in service as alleged by the complainant is proved against the opposite parties and if so to what relief the complainant is entitled?

Point:1&2

On the side of the complainant following documents were filed in proof of his allegations?

1. Sale Deed in favour of Mr.E.Chalapathi Naidu dated 30.05.2003 was marked as Ex.A1
2. Sale Deed in favour of Major A.Jerome Alexander dated 12.09.2003 was marked as Ex.A2;
3. Sale Deed in favour of Mr.A Venkata Subba Reddy dated 12.04.2011 was marked as Ex.A3;
4. Layout Sketch was marked as Ex.A4;
5. Letter for removal of Encroachments to the 4^th opposite party dated 07.08.2017 dated 22.01.2013 was marked as Ex.A5;
6. Letter intimating the encroachment of the road to 4^th opposite party dated 20.02.2014 was marked as Ex.A6 and the acknowledgement by the opposite party was marked as Ex.A7;
7. Police complaint Receipt (CSR Copy) dated 26.03.2015 was marked as Ex.A8;
8. Letter for removal of encroachments and Sewage water to the 4^th opposite party dated 07.05.2015 was marked as Ex.A9;
9. Complaint to the District Collector Office, Thiruvallur dated 19.10.2015 was marked as Ex.A10 and acknowledgement card was marked ad Ex.A11;
10. Letter for removal of encroachment and setting Sewage to the 4^th opposite party dated 07.08.2017 was marked as Ex.A12;
11. Property Tax receipt in the name of E.Chalapathi Naidu 7 E.C.Naidu dated 02.01.2018 was marked as Ex.A13;
12. Property Tax receipt in the name of E.Chalapathi Naidu & E.C.Naidu dated 02.01.2018 was marked as Ex.A14;
13. Property Tax receipt in the name of A Jerome Alexander dated 30.01.2018 was marked as Ex.A15;
14. Property Tax receipt in the name of A Jerome Alexander dated 30.01.2018 was marked as Ex.A16;

 On the side of the opposite parties1 to 3 the following documents were filed:

1. Sale Deed in the name of 1 to 3 opposite parties’ father was marked as Ex.B1;
2. Sale Deed in the name of Venkata Subba Reddy was marked as Ex.B2;
3. Patta in the name of opposite party’s father was marked as Ex.B3;
4. Colour photo, FMB, House Tax Receipt and EB bills were marked as Ex.B4 to Ex.B7;

Heard the learned counsel for the complainant and perused the written arguments filed by both the parties.

The counsel for the Complainant submitted that the Opposite parties 1 to 3 have encroached the public road to an extent of 4feet on the public road on the western side of the complainant’s plot and had put-up compound gate and planted trees and hence they could not take the vehicles properly on road and foul smell prevails causing health hazards in the existing area and hence was required to clear the 15 feet wide Road by removing the compound and to get the trees and grass uprooted and also take action to restrict the sewage water collected in their area. But there was no proper action taken by the 4^th & 5^th Opposite parties to remove the same inspite of repeated approach to clear the same as the encroachment is made in the public Road. Thus the 4^th and 5^th Opposite parties have not cleared the said encroachment thus committed deficiency in service. Therefore the 4^th & 5^th Opposite parties are liable to pay for damages and compensation for the Deficiency in service and the Opposite parties 1 to 3 are impleaded in the complaint only for proper adjudication of the case and the complainant is not claiming any relief against them. Further the complainant contended that he is a consumer with the 4^th opposite party as he is paying tax to the 4^th opposite party and the 4^th opposite party is bound to provide clean and healthy atmosphere, which is spoiled by the said encroachment and hence this complaint is filed against the 4^th opposite party. Thus prayed for the complaint to be allowed.

The Opposite Parties 1 to 3 had filed their written arguments contending that there is no encroachment at all and they have left 3 feet in the Road and even if there is an encroachment the complaint is barred by limitation and thrice the Road was measured by VAO, from the staffs of collector office who confirmed the existence of the 15 feet Road. It is submitted further by the opposite parties that if the Complainant wants to remove encroachment if any, then he has to approach only the civil court and not this Commission. Further compound wall is also built 44 feet apart from the eastern side and the neighbour having compound wall towards the eastern side is also having the same measurement as per the document and accordingly there is no encroachment by the Opposite parties 1 to 3 and the documents and photo are filed. Thus the Opposite parties 1 to 3 prayed for dismissal of the complaint.

On perusal of the pleadings and documents, we are of the view that the complaint allegations pertains to encroachment of the public road by the Opposite parties 1 to 3 and the Opposite parties 4 & 5 have not cleared the same inspite of several complaints and therefore the opposite parties 4 & 5 have committed deficiency in service in not clearing the encroachment. The opposite parties had made out a defence by submitting that there is no encroachment at all and had also filed photographs and documents to this effect. The only specific allegation by the complainant is that the encroachment has to be cleared and as the same was not done by the 4^th & 5^th opposite parties it amounts to deficiency in service on their part.

        Before we decide the issue of deficiency in service as a question of law we suo moto decided to go into the question of maintainability of the complaint before this Commission.  Hence, we proceed to decide whether a relief of removal of encroachment and its allied or consequential acts could be decided by us. Under section 12 of the Consumer Protection Act, 1986 a complaint can be made in relation to goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided. Further the term “deficiency” is also defined under section2 (1) (g) of the Act which reads as follows:

 “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of  contract or otherwise in relation to any service”.

The pre-requisite for jurisdiction to pass an order by the Consumer Commission is either the goods must suffer from defects or the service must suffer from deficiency.

“Service” under the Act has been defined under section 2(o), which reads as follows:

“2(o) “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”.

Admittedly in the present case the allegations contained in the complaint does not pertain to any goods/services. The complaint cannot be merely allowed on the ground that the 4^th and 5^th Opposite parties are set exparte without considering the nature of the complaint. The cause of action for the present complaint filed by the complainant does not fall under the ambit of the Consumer Protection Act and accordingly this Commission does not have the powers to direct the 4^th & 5^th opposite parties to clear the encroachment as prayed for in the complaint.  Hence there arises no necessity for this Commission to go in to the merits of the complaint. We find support of our view by the order rendered by the Apex Court in Laxmi Engineering Works Vs P.S.G. Industrial Institute dated 4 April, 1995 reported in 1995 AIR 1428 as follows,

A review of the provisions of the Act discloses that the quasi-judicial bodies/authorities/agencies created by the Act known as District Forums, State Commissions and the National Commission are not courts though invested with some of the powers of a civil court. They are quasi judicial tribunals brought into existence to render inexpensive and speedy remedies to consumers. It is equally clear that these forums/commissions were not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services. The forum so created is uninhibited by the requirement of court fee or the formal procedures of a court. Any consumer can go and file a complaint. Complaint need not necessarily be filed by the complainant himself, any recognized consumers' association can espouse his cause. Where a large number of consumers have a similar complaint, one or more can file a complaint on behalf of all. Even the Central Government and State Governments can act on his/their behalf The idea was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for "business-to-consumer' disputes and not for "business-to- business" disputes. This scheme of the Act in our opinion, is relevant to and helps in interpreting the words that fall for consideration in this appeal.

Thus only an appropriate Forum having competent jurisdiction can decide the question on encroachment and its allied reliefs after perusing elaborate evidence on both sides.

In view of the above, the prayer sought for by the complainant directing the 4^th and 5^th Opposite parties to clear the encroachment will not fall under the jurisdiction of this Commission.

In the result, the point 1&2 is answered in negative and as against the complainant holding that the complaint is not maintainable before this Commission and resultantly the complainant is not entitled to any relief. He can approach the appropriate Forum seeking remedy for his grievances.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 14^th day of June 2022.

       Sd/-                                                   Sd/-                                              Sd/-                                                                                                                                     

 MEMBER-II                                   MEMBER-I                                     PRESIDENT

List of document filed by the complainant:-

 List of documents filed by the opposite parties 1 to 3:-

Sd/-                                            Sd/-                                                                 Sd/-

MEMBER-II                          MEMBER-I                                                PRESIDENT