KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO: 58/2007
JUDGMENT DATED:20..12..2010
PRESENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
K.V. Madhavankutty,
Special Village Officer, Aloor, : APPELLANT
Thrissur District.
(By Adv.Sri.S.Reghukumar)
Vs.
1. P.K.Jose, Pynadath House,
Koratty East, Kizhakkummuri Village,
Chirakkara, Thrissur.
: RESPONDENTS
2. Kerala State, R/by
District Collector, Thrissur.
(R1 by Adv.Sri.Roy Varghese)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
Appellant was the 1st opposite party and respondents 1 and 2 herein were the complainant and 2nd opposite party in OP.1068/04 on the file of CDRF, Thrissur. The complaint therein was filed alleging deficiency of service on the part of the opposite parties 1 and 2 in issuing P2 demand notice under section.10 of the Kerala Building Tax Act 1975 demanding Rs.3600/- by way of building tax. It was alleged that the opposite parties demanded the aforesaid amount by treating the plinth area of his residential building at 223.5 M2 but in fact the plinth area is only 159.55 M2 and that the actual building tax would come to Rs.2700/- only. Thus, the complainant claimed a sum of Rs.50,000/- by way of compensation.
2. The opposite parties entered appearance and filed written version contending that the complaint itself is not maintainable as the complainant is not a consumer coming within the purview of Consumer Protection Act, 1986. They also denied the alleged deficiency of service on their part and prayed for dismissal of the complaint. It is also contended that they have only performed their statutory duty as provided under the Kerala Building Tax Act, 1975. Thus, the opposite parties prayed for dismissal of the complaint.
3. Before the Forum below, no oral evidence was adduced from either side. Ext.P1 and P2 documents were marked on the side of the complainant and Ext.R1 file on the side of the opposite parties 1 and 2. On an appreciation of the evidence on record, the Forum below allowed the complaint directing the 1st opposite party, Special Village Officer, Alathur to pay to the complainant Rs.20,000/- as compensation with cost of Rs.1500/-. It was further directed that the compensation and cost are to be recovered from the 1st opposite party and that the 2nd opposite party must see that the amount is paid by the 1st opposite party out of his own pocket and not from the state funds. Aggrieved by the said order, the present appeal is filed by the 1st opposite party in OP.1068/04.
4. The Forum below described the opposite parties in the said complaint in OP.1068/04 as respondents 1 and 2. The aforesaid method adopted by the Forum below is likely to cause inconvenience and confusion while preferring appeal from the impugned order. It is to be noted that almost all the consumer Forums in Kerala are treating the parties to a consumer complaint as complainant and opposite party/opposite parties except the CDRF, Thrissur. The aforesaid practice and procedure being adopted by the Forum below are causing confusion while entertaining an appeal preferred from an order passed by the Consumer Forum viz, CDRF, Thrissur. So, for the purpose of convenience, this State Commission is pleased to express the parties to the consumer complaint in OP.1068/04 as complainant and opposite parties 1 and 2 instead of complainant and respondents 1 and2. The Forum below is also requested to narrate or describe the parties to a consumer complaint as complainant/complainants and opposite party/opposite parties.
5. We heard the learned counsel for the appellant/1st opposite party and also the learned counsel for the 1st respondent/ complainant. The counsel for the appellant/1st opposite party vehemently disputed the very maintainability of the complaint under OP.1068/04 and argued for the position that the appellant as Special Village Officer had only acted as a statutory authority under the Kerala Building Tax Act and he has only discharged his duties as a statutory authority. It is also submitted that the appellant/1st opposite party has not obtained any consideration and that he had not rendered any service to the complainant as defined under section 2(1) (O) of the Consumer Protection At, 1986. It is also submitted that the complaint itself is barred by limitation as the P2 to demand for building tax was issued in the year 1995 and the alleged deficiency of service occurred in the year 1995 and so complaint preferred in the year 2004 is hopelessly barred by limitation. It is also argued that the specific remedy is provided in the Kerala Building Tax Act and the Rules thereunder in getting the grievance if any of the complainant redressed. It is also submitted that the complainant had also obtained the demand for Building Tax modified by approaching the concerned Thahasildar. Thus, the appellant prayed for setting aside the impugned order dated:8th December 2006 passed by the CDRF, Thrissur in OP.1068/04. On the other hand, the counsel for the 1st respondent/complainant supported the impugned order passed by the Forum below and argued for the position that the opposite parties rendered service to the complainant for consideration and that the payment of building tax is to be treated as consideration for the service rendered by the opposite parties. Thus, the 1st respondent prayed for dismissal of the present appeal.
6. The points that arise for consideration are:-
1. Whether the complainant in OP.1068/04 on the file of CDRF, Thrissur can be considered as a consumer as defined under sec.2(1)d(ii) of the Consumer Protection Act, 1986?
2. Whether the complaint in OP.1068/04 is maintainable in law?
3. Whether the Forum below can be justified in passing the impugned order dated:8/12/2006 directing the appellant/1st opposite party to pay compensation of Rs.20,000/- with cost of Rs.1500/-?
7. Point Nos.1 to 3:-
The dispute involved in OP.1068/04 on the file of CDRF, Thrisusr is with respect to the procedure adopted by the opposite parties in demanding building tax under the Kerala Building Tax Act, 1975. There is no dispute that the complainant therein constructed a residential building in his property comprised in Survey No.269/01 of Koratty, Chirakkara and that at the relevant time the 1st opposite party, K.V.Madhavankutty was the special village officer in Koratty. The case of the complainant is that the 1st opposite party as the village officer wrongly measured the plinth area of his residential building and submitted an incorrect measurement with ulterior motive. It is the case of the complainant that the plinth area of his building is only 159.55 M2 but the 1st opposite party incorrectly and improperly measured plinth area at 223.5 M2. It is also the case of the complainant that as a result of the incorrect measurement he was asked to pay the building tax of Rs.3600/-; but he needs only pay Rs.2700/- by way of building tax. It is to be noted that the 1st opposite party, village officer measured the residential building of the complainant for the purpose of assessing the building tax as provided under the Kerala Building Tax Act and the rules thereunder. There is no case for the complainant that he hired or availed the service of the 1st opposite party for getting the building measured. Admittedly the 1st opposite party measured the building and recorded the plinth area of the said building as directed by the Revenue Inspector and the concerned Thahasildar. The aforesaid direction was given to the 1st opposite party/village officer as provided under Kerala Building Tax Act and Rules thereunder. There is also no case for the complainant that he paid any consideration to the 1st opposite party or to the 2nd opposite party for getting his building measured.
8. A reading of Sec.2(1) (O) of the Consumer Protection Act, 1986 would make it clear that for rendering or availing service there must be consideration whether it is paid or promised. But there is no scrap of paper to show that the complainant availed or hired the service of the opposite parties for consideration. The complainant had not hired or availed the service of the opposite party. If no such service is rendered by the opposite parties, there cannot be any consumer-service provider relationship between the complainant and opposite parties. It can very safely be concluded that the complainant has not availed or hired any service of the opposite parties on consideration.
9. Sec.2(1)(d) of the Consumer Protection Act defines the term consumer. The 2nd part of Sec.2(1)(d) viz, Sec.2(1)(d)(ii) deals with the service rendered by a service provider to a consumer. A reading of the aforesaid definition would make it abundantly clear that there must be availing of or hiring of service on consideration. But the complainant in the present case has not availed or hired any service on consideration and that the opposite parties have not rendered any service to the complainant. So, the complainant in OP.1068/04 cannot be treated as a consumer as defined under Sec.2(1)d(ii) of the Consumer Protection Act, 1986.
10. The case of the complainant is deficiency of service on the part of the opposite parties in issuing P2 demand notice under Sec.10 of the Kerala Building Tax Act, 1975. The very issuance of P2 demand notice would make it clear that the procedure or method adopted by the opposite parties can only be treated as part of their duties or functions under the Kerala Building Tax Act and the Rules there under. So, the duties or functions of opposite parties can only be considered as statutory duties or functions. It is a very settled position that the statutory authorities discharging their duties under a particular statute can only be considered as statutory duties or functions. It is also a settled position that collection of tax cannot be considered or treated as commercial activity. There cannot be an element of profit making or commercial activity in discharging the statutory duties in connection with collection of building tax under the Kerala Building Tax Act and Rules there under. The Forum below totally failed to consider the relevant aspects as to whether the opposite parties have discharged any duties in connection with any commercial activity or profit making activity. On the other hand, the materials on record would make it crystal clear that the opposite parties had only discharged their duties under the statute viz, Kerala Building Tax Act and the Rules thereunder. At any rate, the opposite parties cannot be treated or equated to that of service providers. The complainant is not a consumer coming within the ambit of the Consumer Protection Act, 1986. The dispute involved in OP.11068/04 cannot be treated as a consumer dispute. The Forum below had no jurisdiction to entertain the complaint in OP.1068/04. The complaint therein is not maintainable under the provisions of the Consumer Protection Act, 1986.
11. The complaint in OP.1068/04 was filed in the year 2004. Admittedly P2 demand notice was issued in the year 1995. The alleged deficiency of service on the part of the opposite parties occurred in the year 1995. So, the complaint in OP.1068/04 was hopelessly barred by limitation. Unfortunately the appellant/1st opposite party has not raised the issue regarding limitation. It is to be noted that the question of limitation is to be considered by the Forum below even in the absence of such a contention. Unfortunately, the Forum below omitted to consider the issue regarding limitation. The materials on record would make it clear that the complaint filed in the year 2004 was barred by limitation. The cause of action for the complaint has arisen in the year 1996 as and when P2 notice was issued. The P2 notice is dated:1/2/1996. Even prior to the said notice, the alleged deficiency of service on the part of the 1st opposite party had occurred. It is the definite case of the complainant that the building was measured by the 1st opposite party in the year 1995. Thus, in all respects it can be concluded that the claim in OP.1068/04 is also barred by limitation.
12. It is admitted by the complainant that he got the building tax assessment modified based on the actual plinth area of 159.55 M2 . It is admitted by the complainant that he was bound to pay Rs.2700/- by way of building tax. As per P2 demand the complainant was directed to pay Rs.3600/- as building tax. So, the difference was only Rs.900/-. The aforesaid financial loss was also redressed by modifying P2 demand notice. Thus, in fact the complainant has not suffered any financial loss. More over, even if the complainant had any mental agony or inconvenience he has to approach the concerned authority for getting his grievances redressed. But the complainant has no competency to approach the Consumer Forum for redressal of the alleged grievances. So, the impugned order passed by the Forum below is liable to be set aside. This State Commission have no hesitation in setting aside the impugned order dated:8/12/2006 passed by CDRF, Thrissur in OP.1068/04. These points are answered accordingly.
In the result, the appeal is allowed. The impugned order passed by the Forum below is set aside. The complaint in OP.1068/04 on the file of CDRF, Thrissur is dismissed as not maintainable. Parties are directed to suffer their respective costs throughout.
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
