D.of.F:2 /6/2011
D. of O: 30/6/2012
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO.129/2011
Dated this, the 30th day of June 2012
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.BEENA.K.G : MEMBER
Claramma Thomas,
Araikkal, Areekkara, Balal Po, : Complainant
Parappa Via,Kasaragod 671533.
(in person)
1.Preethi, LDC , Balal Panchayath.
2. Muhammed Shereef, then Secretary, ; Opposite parties
Balal Panchayath.
Now Junior Superintendent, Vazhikkadavu Grama Panchayath,
Malappuram Dt.
(Adv.Abdul Nazir ,kasaragod)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
The salient facts of the case in brief are that the opposite parties committed undue delay in issuing regularization order for the construction of a pump house built by the complainant in her house premises. As a result she could not obtain the electric connection for her motor pump and that resulted in non irrigation of short& long term crops causing damage to the entire short term crops and the yielding capacity of long term crops. According to the complainant she is selected as a best woman agriculturist of the locality and she was using diesel motor for irrigation purpose. Since the diesel motor became damaged and it was not profitable she decided to install an electric motor pumpset in place of diesel pump set. The KSEB officials asked her to make a pump house for giving agriculture connection . After constructing the pump house she approached the opposite parties for a building number and ownership certificate . The opposite parties asked for the approved plan, site plan copies, basic title deeds, legal heirship certificate, possession certificate, a certificate from the bank certifying that the original documents are mortgaged with them and the condonation letter for regularizing the structure. But the regularization order was issued only after 80 days instead of 13 days as mentioned in the receipt issued when the fee for regularization was paid . The said delay caused non irrigation of crop and the resultant crops loss. Hence the complaint claiming compensation alleging deficiency in service on the part of opposite parties.
2. Opposite parties 1&2 appeared in response to the notices and filed separate versions. According to Ist opposite party the complaint is not maintainable. On merits it is her contention that she entrusted with bill collection of ward No.6&10 during March and most of the days she was engaged in field work and she has to carry out the office work also. The Panchayath Election ward De limitation work was also going on as per the direction of Election Commission during March 2010. The complainant filed application for regularization of the building on 17/3/2010. There was no original title deed for verification. Therefore she was asked to produce the original title deed. She produced a certificate from the Syndicate Bank on 21/5/ 2010 stating that the original deed is deposited in the bank. Even then the building was verified by her as early on 27/3/2010 and filed the report before the Secretary, though she was very busy with revenue works during March. But unfortunately the secretary was transferred and new secretary posted later.
3. 2nd opposite party filed separate version. According to him he is an unnecessary party to the proceedings and the complaint is bad for misjoinder of parties. On merits 2nd opposite party submitted that the complainant filed an application on 16/3/2010 for regularization of the building constructed without the permission of the Panchayath, it came before him on 17/3/2010 and on the same day the application is referred to the concerned section clerk for inspection and report. But the said file is not submitted before him after the inspection report till 22/4/2010. On that day he transferred to Pallikkara Grama Panchayath. But for filing version when the copy of the concerned file is verified them it came to know that the section clerk has given time to produce the original property deed and the complainant produced a certificate from the Syndicate Bank Kanhangad on 20/5/2010 stating that the original property deed is mortgaged with them. On production of the said certificate and the copy of the title deed the section clerk submitted it before the then secretary of the Panchayath on 26/5/2010 . The allegation that the favorable order has not been given within a week is not justifiable without producing the essential documents. Opposite party No.2 never seen the complainant at any time and there is no deficiency in service rendered to complainant and hence the complaint is liable to be dismissed.
4. The son of the complainant as the Power of Attorney holder of the complainant examined as PW1 and Exts.A1 to A7 marked. On the side of opposite party Ext.X1 and X1(a) marked . Both opposite parties did not adduce oral evidence. Both sides heard and documents perused.
5. Ext.A1 is the Power of Attorney executed by the complainant in favour of her son PW1. Ext.A2 is the copy of the receipt of acknowledgment of the application filed for regularization of the construction of pump house. The date of receipt is 17/3/2010 and the date of delivery is shown as 30/3/2010. Ext.A3 is the copy of the receipt dtd.17/3/2010 for payment of fee ` 95/- towards the regularization fee of the pump house. Ext A4 is the ownership certificate dtd 26/5/2010 issued for obtaining electricity connection. Ext A5 is the copy of information provided by the public information officer of Balal Panchayath dtd 1/4/2011. Ext.A6 is copy of the legal heirship certificate dtd 17/4/1991 issued to the complainant. Ext A7 is the copy of the report of the Deputy Directior of Panchayath submitted before the OMBUDSMAN for the local & Self Govt. Institution in connection with a case OP.232/11. Ext. X1 is the file relating the regularization of the house constructed by the complainant. In Ext.X1 the Ist opposite party has reported that the building construction is completed and the rain water harvest tank is fixed. The application for the regularization for the house is seen numbered on 23/2/2010 and the regularization fee is seen collected on 8/3/2010 Ext.X1(a) is the copy of the certificate dtd 20/5/2010 from the Kanhangad Branch of Syndicate Bank certifying that the original title deed of the complainant is mortgaged in their bank. It is pertinent to note that the building plan is seen approved on 18/3/2010 itself ie before producing the Ext.X1(a) certificate.
6. PW1 during examination in chief reiterated what is stated in the complaint. In cross examination he deposed that along with the application Plan prepared by the Engineer, site plan, copies of the title deed, legal heirship certificate, possession certificate, certificate from the bank stating that the original title deed is mortgaged with them and the condonation petition for the regularization of the construction are submitted. He further deposed that Ext.X1(a) is a certificate obtained from the Syndicate Bank second time.
7. From the evidence adduced by PW1 and the documents submitted it is evident that the opposite parties were taken lethargic approach in to the matter of regularization of the construction of pump house of the complainant and thereby committed gross deficiency in service.
8. The inconsistent defenses taken by the Ist opposite party in her version itself goes not show that she committed laches for rendering service to the complainant.
9. According to Ist opposite party she had busy schedule of works in March 2010 and even then she carried out her work without any fault and she had finished her work as 27/3/2010 itself and reported the same to Secretary ie the 2nd opposite party, but the same was returned orally stating that the original title deed is to be verified to confirm the ownership of the land where in the building construction was made. Complainant was informed about the same . But he produced a certificate from the bank stating that the original title deeds is mortgaged in the bank. It was produced only on 21/5/2010 and therefore there is no delay in issuing the certificate. If so without obtaining the original title deed or certificate from the bank why did or how did they accept the application on 17/3/2010 and gave the delivery date on 31/3/2010 is remained unexplained. What was her report is not ascertainable from Ext. X1 file since it related to the regularization of the house of the complainant and not the pumphouse.
10. The P.A holder who is none other than the son of the complainant submitted that he had produced all the documents including the certificate obtained from the bank and that is submitted along with his application as early on 17/3/2010 itself and the defense taken by the opposite parties that the complainant did not produce it at the time of submitting application is untrue. Such as allegation is made only to justify their willful laches. He submitted that as per the rules no fee for regularization will be accepted if the necessary documents required is not produced. He invited our attention to chapter 22 rule 135 of the Kerala Panchayath Building Rules. Rule 135(2) stipulates that the application for regularization of unpermitted construction shall be accompanied with the title deed , site plan elevation building plan service plan etc.
11. From the above it is clear that the title deed shall be attached with the application for regularization. It is further clear that the opposite parties accepted the application and allowed to remit the fee for regularization only because she had complied the conditions and stipulations mentioned in Rule 135(2) of Kerala Panchayath Building Rules. Had it not been complied then her application should not have accepted and she ought not have allowed to remit the fee for regularization.
12. Therefore we accept the argument of the complainant that she applied for regularization of unpermitted construction with all the necessary documents and that was the reason for allowing her to remit the requisite fee. It is pertinent to note that the 1st opposite party acted upon the application and submitted the report to 2nd opposite party. Had the title deed or the certificate from the bank has not been submitted then she would not have submitted the report before 2nd opposite party.
13. Further in Ext.A5 which is a reply to a question submitted under the RTI Act. In which it is stated that the regularization of the unpermitted construction was given after the production of original title deed and legal heirship certificate where as in fact the complainant has not submitted the original title deed which was mortgaged in Syndicate Bank. This haphazard mode of replying to the RTI querries itself proves the deficiency in the service of the opposite parties in handling the matters.
14. From the facts noted above what emerges is that the procedure for regularizing the unpermitted construction of the pumphouse was over by 27/3/2010 itself on the date in which Ist opposite party submitted her report before 2nd opposite party . What remaining was only a few moments work ie the preparation of the regularization order. But both opposite parties willfully kept the application in abeyance may be expecting extraneous considerations. The contention that Ist opposite party returned the file orally stating that the original title deed is to be verified is alien to the office procedure and further her report is also not placed before us to substantiate her contention.
15. Despite 65 years of Independence, one of the important reason for India remaining poor because of the bureaucracy as a parasite, a leech that is literally sucking the life force out of Indian society and economy. Actually the higher level bureaucrats are the real power behind the so called democracy as they need not worry about facing elections and are completely unaccountable to the people.
16. The breadth and depth of corruption in India is ever increasing. Corruption has come to affect every citizen in the country. Bribes are to be paid for ration cards, passbooks, building permits and for doing even normal business. No paper moves from one table to another without extraneous considerations. Street vendors and coolies are forced to pay bribes for exercising their fundamental rights. While the high level corruption is plundering the public exchequer distorting government policies and creating the criminal plutocrats dominating all the institutions, low level corruption is making life impossible for common citizens
17. The learned counsel for opposite parties raised the issue regarding the maintainability of the complaint. According to him there is no element of consumer dispute in this case.
18. The said contention is not acceptable. The Hon’ble Apex Court in one of its Land mark judgment Luknow Development Authority vs. M.K.Gupta reported in 1994 AIR 787 SC) has held that the public authorities are also amenable to the jurisdiction of the Consumer Protection Act. In the said judgment the Hon’ble Apex Court further held:-
‘’….Under our constitution sovereignty vests in the people. Every link of the constitutional machinery is obliged to people oriented. No functionary in exercise of statutory power can claim immunity except to the extent protected by the statute itself. Public Authorities acting in violation of statutory provisions oppressively are accountable for their behavior before authorities created under the statute like the commission or the courts entrusted with the responsibility to maintain rule of law…’’
‘’ ….The servants of governments are also the servants of people and the use of their power must always be subordinate to their duty of service. A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not an exercise of power but its abuse. No law provides protection against it . He who responsible for it must suffer it. Compensation may arise even when the officer discharges his duty honestly and bonafide. But when it arises due to arbitrary or capricious behaviour then it loses its individual character and assumes social significance, harassment of a common man by public authorities is socially abhorring and legally impermissible. It may harass him personally but the injury to society is far more grievous. Crime and corruption thrive and the prosper in the society due to lack of public resistance. Nothing is more damaging than the feeling of helplessness. An ordinary citizen instead of complaining and fighting succumbs to the pressure of undesirable function in offices instead of standing against it. Therefore the award of compensation for harassment by public authorities not only compensates the individual, satisfies him personally but helps in curing social evil. It may result in improving the work culture and help in changing the out look…’’
’’……. Today the issue thus is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socio economic out look. The authority empowered to function under a statute while exercising power discharges public duty. It has to act to sub serve general welfare and common good. In discharging this duty honestly and bonafide, loss may accrue to any person and he may claim compensation which may in circumstances be payable. But where the duty is performed capriciously and the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose? In a modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither the political backing nor the financial strength to the inaction in public oriented departments gets frustrated and it erodes the credibility of the system…..’’
This judgment has been delivered by the Hon’ble Apex court in 1993. But the present picture of the country is more worse. From the above judgment it is clear that public authorities are also accountable for their misdeeds and liable to compensate the aggrieved.
19. Further the Hon’ble National Consumer Disputes Redressal Commission in the case of Bangalore City Corporation vs Dr. Shankappa reported in II (2006)CPJ 1(NC) has dismissed the revision petition filed by the Bangalore City Corporation against trhe order of the State Commission which directed the Corporation to issue No objection Certificate relating to regularization of building plan.
From the above quoted judgment it is clear that the complainant who paid the fee for regularization of unpermitted construction is a consumer and the dispute involved is a consumer dispute and the complainant is entitled for compensation for the sufferings.
20. Relief & Costs:
The complainant in her complaint has stated that due to the non issuance of regularization order she could not apply for electric connection and thereby her short terms crops were totally ruined due to lack of irrigation and affected the yielding capacity of long term crops. But she has not produced any document, such as experts report to prove the crop loss the same. However the deficiency of service is palpable and hence opposite parties 1&2 are liable to compensate for the same for causing inordinate delay in issuing the regularization order / no objection certificate to the complainant.
In the result complaint is allowed in part and opposite parties 1&2 are jointly and severally directed to pay `10,000/- to the complainant together with a cost of ` 2000/-. Time for compliance is limited to 30 days from the date of receipt of copy of order. Failing which they shall further liable to pay 12% interest for `10,000/- from the date of complaint till payment.
Exts
A1 - Power of Attorney executed by the complainant in favour of her son PW1.
.A2- dt.17/3/2010 -copy of the receipt of acknowledgment
A3 - dtd.17/3/2010 copy of the receipt for payment of fee ` 95/-
A4 - dtd 26/5/2010 - ownership certificate
A5- 1/4/2011- copy of information provided by the public information officer of Balal Panchayath
A6 dtd 17/4/1991 - copy of the legal heirship certificate
A7 is the copy of the report in connection with a case OP.232/11 of the Deputy Director of Panchayath submitted before the OMBUDSMAN
Ext. X1 - the file relating the regularization of the house constructed by the complainant.
X1(a) dtd 20/5/2010 - copy of the certificate issued from the Kanhangad Branch of Syndicate Bank
PW1-Joby Thomas P.A.holder of complainant
MEMBER MEMBER PRESIDENT
eva
