KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 30/2022

JUDGMENT DATED: 13.01.2023

(Against the Order in C.C. 256/2020 of CDRC, Alappuzha)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN              : PRESIDENT

SRI.RANJIT. R                                                                               : MEMBER

APPELLANT:

T.R. Aneesh, Thoppil Nikarthil, Vayalar P.O., Alappuzha-688 536

(By Adv. M.V. Viswabhadran)

                                                Vs.

RESPONDENTS:

1. Suja Manoj, J2 Section, Taluk Office, Ambalapuzha, Alleppey-688 001.

2. Jaya K.S., S.S., Puncha Special Office, Pulimoodu Buildings, Alappuzha-688 001.

(By Adv. P.S. Anaghan)

JUDGMENT

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT

The complainant in C.C. No. 256/2020 of the Consumer Disputes Redressal Commission, Alappuzha (District Commission for short) is the appellant.  This appeal is filed against an order dated 16.02.2021 in I.A. No. 16/2021 finding that the complaint was not maintainable.  The Interlocutory Application appears to have been filed for the purpose of considering the question of maintainability of the complaint as a preliminary issue.  Accordingly, as per the order under appeal, the complaint has been dismissed as not maintainable.  A review petition preferred by the appellant has also been dismissed with costs. 

2.  The facts in this case fall within a very narrow compass.  The appellant is the owner of an extent of 09.71 Ares of property in Vayalar Panchayat.  He is residing in a building situate in the said property.  He wants to make some additional construction or extension to his house.  For the purpose, he submitted an application to the Panchayat in February 2019 along with a plan of the proposed construction.  But the Panchayat did not pass any orders on his application on the ground that in the BTR of the village the property was described as wet land (Nilam).  The appellant therefore submitted an application to the Revenue Divisional Officer, Alappuzha in Form No. 6 as stipulated by Sec. 27 A of the Kerala Conservation of Paddy Land and Wet Land Act, 2008 (Paddy Land and Wet Land Act for short).  The application was submitted by him on 22.10.2009.  He paid a fee of Rs. 1,000/- also. 

3.  The 1^st respondent was working in J Section of the office of the RDO, Alappuzha and the 2^nd respondent was the Junior Superintendent and immediate supervisor of the 1^st respondent.  According to the appellant, the respondents had by their misdeeds delayed the passing of final orders on the application for an unreasonably long period of time thereby committed deficiency in service.  It is stated by the appellant that, the cause of action of his complaint was inaction on the part of the respondents in processing the application submitted by him showing disregard continuously to the applicable law and rule.  Therefore, he sought for compensation and reimbursement of his expenses.  

4.  The complaint was contested by the respondents.  They also filed I.A. No. 16/2021 questioning the maintainability of the complaint itself and requesting that the said question be considered as a preliminary issue.  According to them, the 1^st respondent was working in J. Section of the office of the RDO, Alappuzha and the 2^nd respondent was the Junior Superintendent and immediate supervisor of the 1^st respondent on the date of submission of application by the appellant.  Sec. 27 A of the Paddy Land and Wet Land Act empowers the RDO to effect changes in the village records regarding the description of the land.  The rules framed under the enactment prescribe the manner in which the application for change of nature of land has to be made and details the procedures to be followed in considering and disposing of such applications.  Therefore, according to the respondents, they were Govt. servants functioning under the control of the Government, subject to the provisions of the Kerala Service Rules.  Their duties and responsibilities are prescribed by law.  They have not rendered any personal service to the appellant for consideration either directly or indirectly.  Payment of the fee prescribed does not amount to consideration.  Therefore, it was contended that the complaint was not maintainable against them under the Consumer Protection Act.  They also contended interalia that all the allegations made against them were baseless and that they had not done any act in violation of the law.  Nor have they misused their official position or powers.  There has been no negligence or failure on their part in performing the statutory duties and obligations entrusted to them.  They also pointed out that, the appellant had approached the Hon’ble High Court by filing WP(C) No. 22151/2020 complaining of delay in disposal of his application against the Revenue Divisional Officer, Alappuzha and the Land Revenue Commissioner, Thiruvananthapuram.  The said writ petition was finally disposed of by the Hon’ble High Court directing the R.D.O. to pass appropriate orders on the appellant’s application in accordance with law, within 3 months of the date of production of a copy of the judgment, after affording an opportunity of being heard to the appellant.  The respondents also contended that the reliefs sought for in the complaint were also not maintainable. 

5.  The District Commission considered the question of maintainability as a preliminary issue and has, as per the order appealed against, dismissed the complaint finding that it was not maintainable.  Though the dissatisfied appellant had sought for a review of the said order by filing R.P. No. 4/2021, by its order dated 05.10.2021 the District Commission has dismissed the same with costs of Rs. 2,000/-.  The appellant has therefore challenged the correctness of both the said orders in this appeal.  According to the counsel for the appellant, the District Commission has failed to note and take into account the relevant statutory provisions as well as the decisions of the Supreme Court and our Hon’ble High Court applicable to the situation.  According to the learned counsel our Hon’ble High Court has held that what is rendered under Sec. 27 A of the Paddy Land and Wet Land Act is also a service.  The delay caused by the respondents in disposing of the application filed by him amounted to serious deficiency in service actionable under the Consumer Protection Act.  Since the District Commission has erred in omitting to consider the impact of the decisions relied on by him, it is submitted that the order under appeal is liable to be set aside and the matter remanded for consideration and disposal of the appellant’s complaint on the merits. 

6.  The counsel for the respondents refuted the contentions of the appellant on the ground that the respondents were Govt. servants functioning in accordance with the directions and superintendence of the R.D.O, and are governed by the provisions of the Kerala Service Rules.  Therefore, any complaint against the manner of their functioning was actionable only under the provisions of the said Rules.  Since they have not rendered any service to the appellant as contemplated by the provisions of the Consumer Protection Act, the complaint of the appellant was ill advised.  The same has been rightly dismissed by the District Commission.  According to the counsel, therefore no interference with the same is called for. 

7.  Heard.  The undisputed facts in this case are firstly, that an application was submitted by the appellant for a change in the nature of his land seen entered in the village records.  Secondly, that the application was submitted under Sec. 27A of the Paddy Land and Wet Land Act and thirdly, that the R.D.O. is the authority conferred with the power to effect such change in accordance with the provisions of the Act and rules thereunder.  It is not in dispute that the power of the R.D.O. has to be exercised in accordance with the rules framed under the Act, stipulating the manner in which such an application has to be considered and disposed of.  It cannot therefore be disputed that, what the appellant had sought for by his application was exercise of the statutory power under Sec. 27 A.  The power conferred by the said statutory provision has to be exercised by the authority concerned in accordance with the stipulations in law for the exercise thereof.  The respondents herein were only subordinates of the R.D.O, whose services were intended only to assist in the exercise of the statutorily conferred power by the designated authority. 

8.  The Consumer Protection Act has been enacted with the object of providing protection to the interests and rights of the consumers and for providing a machinery for the effective and timely settlement of consumer disputes as well as matters connected with or incidental thereto. 

9.  In the above context, it is necessary to examine the scope and ambit of some of the expressions used in the Consumer Protection Act.  Sec. 2(7) defines a consumer as follows:

2(7) “consumer” means any person who-

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

2. consumer means any person who “[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised or under any system of deferred payments, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose].  

Sec. 2(6) defines a complaint as follows:

2(6) “complaint” means any allegation in writing, made by a complainant for obtaining any relief provided by or under this Act, that-

1. an unfair contract or unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;
2. the goods bought by him or agreed to be bought by him suffer from one or more defects;
3. the services hired or availed of or agreed to be hired or availed of by him suffer from any deficiency;
4. a trader or a service provider, as the case may be, has charged for the goods or for the services mentioned in the complaint, a price in excess of the price-

1. fixed by or under any law for the time being in force; or
2. displayed on the goods or any package containing such goods; or
3. displayed on the price list exhibited by him by or under any law for the time being in force; or
4. agreed between the parties;

5.   the goods, which are hazardous to life and safety when used, are being offered for sale to the public-

1. in contravention of standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force;
2. where the trader knows that the goods so offered are unsafe to the public;

6. the services which are hazardous or likely to be hazardous to life and safety of the public when used, are being offered by a person who provides any service and who knows it to be injurious to life and safety;
7. a claim for product liability action lies against the product manufacturer, product seller or product service provider, as the case may be;

Sec. 2(42) defines service as follows:

2(42) “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, telecom, boarding 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;

10.  An examination of the above provisions shows that, what is contemplated by the said enactment therein essentially concerns transaction of a commercial nature. The definition of ‘consumer’ comprises of two parts, the first part relating to purchase of goods for consideration and the second part concerning services hired or availed for consideration. The explanation to the said definition includes within its sweep all types of transactions, offline or online through electronic means or teleshopping or direct selling or multilevel selling. However, what is striking is that, the references are all to commercial transactions.  Therefore, in order to answer the definition of a ‘consumer’, the person has to be one who has purchased goods or availed services offered by a service provider.  The consumer has therefore be a person who has availed the services offered by a service provider, whether constituted under a statute or not and is alleged to have committed deficiency in service.  Such a situation does not exist in the present case.

11.  In the present case, the R.D.O is the statutory authority empowered to permit recording of change in the nature of land entered in the village records.  The said power is to be exercised in accordance with the provisions of the statute, in compliance with the rules regulating the exercise of such power.  Since there was delay in exercise of the power, the appellant in this case had approached the Hon’ble High Court of Kerala by filing a writ petition complaining of the inaction.  The Hon’ble High Court has passed an order in the said case directing that the application of the appellant be considered and disposed of within a period of three months.  Accordingly, it is submitted that the application of the appellant has already been granted.  In the above scenario, the role of the respondents herein was limited to attending to the clerical work of processing the application and putting the same up for orders. Any laxity or delay in the said work is subject to disciplinary action by the R.D.O. or other superior authority under the Kerala Service Rules.  Neither the discharge of the function statutorily conferred on the R.D.O. nor the assistance expected to be provided by the respondents could not be construed as answering the definition of service under the Consumer Protection Act.  Therefore, the District Commission was fully justified in finding that the complaint was not maintainable.

12.  The counsel for the appellant has placed reliance on the decision of the Apex Court in Punjab Urban Planning and Development Authority (now Glada) Vs. Vidya Chetal dated 16.09.2019 in SLP (C) No. 4272 of 2015 and 5237 of 2015 to contend that, even statutory functions would qualify as ‘service’ under the definition of the Consumer Protection Act.  However, we are not able to accept the said contention, though it is true that the Apex Court has made some observations in the said judgment that service provided by such statutory authorities cannot be excluded from the purview of the provisions of the Consumer Protection Act.  Therefore, it has been held that the expressions under the Consumer Protection Act have to be given the widest possible amplitude. However, the said observations have been made in the context of the services provided by the Urban Development Authority. In Lucknow Development Authority Vs. M.K. Gupta (1994) 1 SCC 243 and Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 also, it has been held that the Consumer Disputes Redressal Authorities have jurisdiction to protect consumers against the defective services rendered even by a statutory body.  However, in all the cases referred to above, the service involved, though statutorily mandated, were commercial in nature.  In stark contrast, in the present case the R.D.O was exercising a statutorily conferred power to grant permission to alter the nature of description of a land contained in the revenue records.  Such power has to be exercised in accordance with the statutory parameters and not on the basis of any commercial considerations. In other words, the power exercised by the R.D.O had no commercial overtones that would bring the said transaction within the definition of ‘service’ contemplated by the Consumer Protection Act.  Consequently, the appellant herein does not come within the definition of a consumer under the Consumer Protection Act.  The complaint therefore was not maintainable and was not liable to be entertained by the District Commission.  The same has been rightly dismissed.  The review petition filed by the appellant was also dismissed correctly. 

For the above reasons, we do not find any ground to interfere with the order appealed against or to grant any of the reliefs sought for by the appellant. This appeal is accordingly dismissed. No costs. 

                                                               Sd/-

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                                                                   Sd/-

jb                                                                                                  RANJIT. R                : MEMBER