SMT.MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/S 35 of the Consumer Protection Act 2019 for an order directing the 1st OP to issue the survey sketch plan to the complainant along with OPs 1&2 jointly pay an amount of Rs.10,00,000/- for the deficiency of service on their part and OPs 2&3 jointly pay an amount of Rs.2,00,000/- as compensation for mental agony caused to the complainant and Rs.15,000/- as litigation cost to the complainant for the deficiency of service and unfair trade practice on the part of OP’s.
The brief of the complaint :
The complainant and his family residing in Thalassery Taluk, Mannayad Desom lying in RS No.8/3 having an extent of 2 cents in ward No.I - House No.144. At the time of constructing the 1st floor of the house the Thalassery Muncipality officer came to complainant’s house and stated that for regularization of the 1st floor to produce the permit before the municipality. Then the complainant applied before the Sec.E 3-9395 with all documents on 10/3/2020. The complainant also received the receipt. Thereafter the Thalassery municipal officers inspected the complainant’s house and property and directed to remit Rs.3500/- to obtain the permit . On 13/3/2020 the complainant remitted the amount to Thalassery municipality and he obtained the receipt No.01/119020128504. Thereafter on 13/7/2020 the complainant got a notice from Thalassery municipality to produce survey sketch plan before the office. As per the direction of 3rd OP the complainant had remitted Rs.590/- before Thalassery Sub Treasury office dtd.1/10/2020 as A/c No.00290080099 and the receipt produced before 3rd OP. After receiving the receipt the 3rd OP demanded some more amount as bribery. But the complainant is not ready to pay the bribery amount. But on 11/2/2021 the 3rd OP send a letter to the complainant Ref.H.1/12390/20. Since there is boundary dispute between the adjacent property owners only after clearing the dispute by the competent civil court the OP can prepare a sketch on payment of fees to government. Moreover the complainant stated that all documents are produced before the officers also. The complainant further states that he filed a complaint against the mosque committee before SDM Thalassery . Then the SDM court issue notice to mosque committee and take evidence and the order pronounced against the mosque committee on 23/6/2020 in EI-243247/20. As per the above case the OP’s on the side of Mosque committee. So the OPs are in enimical terms with the complainant. So the act of OPs, the complainant caused much mental agony and financial loss. So there is deficiency of service and unfair trade practice on the part of OPs. Hence the complaint.
After receiving notice OPs1&2 entered before the commission and filed their written version contending that the complainant is not a consumer under the Act. They submits that the complainant filed an application before 1st OP on 28/9/2020 for getting an FMB sketch and paid an amount of Rs.590/- in Treasury A/c on 1/10/2020. Since it came under the purview of 3rd OP. Land records, Taluk Office, Thalassery issued FMB sketch as applied and it was received and acknowledged by the complainant on 13/10/2020. So the OPs have not demanded to pay any amount for measuring complainant’s property. Since there is boundary dispute between the adjacent property owners. It is admitted that the OP issued a letter to the complainant on 11/2/2021 with No.H/1/12390/2020 only when the sketch plan was preparing , directing the complainant to pay the relevant fees to Govt. account. The OP has not prepared the sketch and not demanded to pay the fees also. The OP submits that only after clearing the dispute by competent civil court this OP can prepare a sketch on payment of fees to government. The fees accepted by the Govt. are not with a profit motive. The service granted by Govt. authorities could not be came under the definition of consumer dispute. The bribery and other allegations are denied by the OPs. There is no deficiency of service and unfair trade practice on the part of OPs to issue the sketch plan. The complainant is not entitled for getting any type of compensation or damage stated in the complaint. Hence the complaint may be dismissed.
On the basis of the rival contentions by the pleadings the following issues were framed for consideration.
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled for any relief?
- Relief and cost.
The evidence consists of the oral testimony of PW1 and Exts. A1 to A14 were marked. On OP’s side DW1 was examined and no documents marked.
Issue Nos.1 to 3 taken together:
The Complainant adduced evidence before the commission by submitting his chief affidavit in lieu of his chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. The complainant was cross examined as PW1 by OPs. On complainant’s side Exts.A1 to A14 were marked on his part to substantiate his case. In Ext.A1 is the chalan receipt dtd.1/10/2020. Ext.A2 is the application dtd.28/9/2020& 16/10/2020. Ext.A3 is the letter issued by 3rd OP to complainant dtd.11/2/2020. Ext.A4 is the notice dtd.21/10/2020. Ext.A5 is the order of SDM Thalassery dtd.23/6/2020, Ext.A6 is the report of village officer Thalassery dtd.6/2/2020, Ext.A7 is the report of Thahasildar dtd.26/2/20, Ext.A8 is the sketch plan dtd.11/3/20, 18/6/20, Ext.A9 is the land tax receipt dtd.18/6/21,Ext.A10 is the house tax receipt, Ext.A11 is possession certificate, Ext.A12 is the letter issued by Tahasildar,Thalassery, Ext. A13 is application and receipt and Ext.A14 is the acknowledgment receipt of RTI. In the evidence of PW1 who clearly states that Ext.A1 പ്രകാരം ആണ് 590/- രൂപ അടച്ചത്. അത് treasury chalan receipt ആണ്.Ext.A1ലെ 3-ാംമത്തെ കോളത്തിൽ purpose എന്താണ് എന്ന് രേഖപ്പെടുത്തിയിട്ടുണ്ട്. അതുപ്രകാരംFMB ക്കാണ് application കൊടുത്തിട്ടുള്ളത്.FMB നിങ്ങൾക്ക് കിട്ടിയിട്ടുണ്ട്? കിട്ടിയിട്ടുണ്ട്. Ext.A2(series) നുശേഷം വേറെ പണം അടച്ചിട്ടില്ല? ഇല്ല. വന്ന officials നിങ്ങളുടെ കയ്യിൽ നിന്ന് Govt. fees അല്ലാതെ വേറെ പണം ഒന്നും വാങ്ങിയിട്ടില്ല? ഇല്ല. ഉദ്യോഗസ്ഥർ വേറെ പണം ആവശ്യപ്പെട്ടു എന്ന് പറഞ്ഞ് police ലും vigilance ലും പരാതിപ്പെട്ടില്ല. So it is clear that the OPs have not received any amount from the complainant. In the evidence of DW1 who also deposed that”പരാതിക്കാരൻ എന്തിനാണോ അപേക്ഷ നൽകിയത് അതാണ് നല്കേണ്ടത്? അതെ. Ext.A2 പ്രകാരം Revenue sketch എന്ന് പറഞ്ഞാൽ? FMB ആണ്. FMB യ്ക്ക് treasuryൽ അടയ്ക്കേണ്ട തുക 500/- ആണ്? ആ സമയത്ത് 590/- രൂപയാണ്. പരാതിക്കാരൻ അടച്ചത് 590/- രൂപയാണ്?. അതെ. Moreover he deposed that Ext.A1 പ്രകാരം 1/10/2020 നുള്ള പൈസ അടച്ചതിന് FMB sketch കൊടുത്തിട്ടുണ്ട്.28/9/2020 നുള്ള Ext.A2 പ്രകാരം പൈസ അടയ്ക്കുകയോ പൈസ വാങ്ങുകയോ ചെയ്തിട്ടില്ല.
After perusing the documents, and evidence the complainant is not in a position to prove that the OP’s side there is any deficiency of service and unfair trade practice against the OPs. Both side argued the matter and the OPs produced 2 decisions also. Hon’ble National commission reported in 2014 4 CPJ(NC) 601, 2014 4CPR (NC) 740 V.B.Ambedkar vs District Collector held that –deficiency in service-failure to officials-to conduct measurement of land- Act of measurement of land is not a commercial activity. Act of measurement of land is a duty cast under Revenue Act- it cannot be said that respondent was rendering any kind of service for consideration- Collector does not render service for consideration-Act of measurement of land is not a commercial activity- It is a statutory function under Revenue Act. Hon’ble National Commission also reported in 2016 2 CPJ (NC) 789, 2016 1 CPR NC 762. Consumer Protection Act is not applicable for statutory functions of state government. So it is clear that there is no deficiency of service and unfair trade practice from the side of OP.
As discussed above the complainant has not proved the deficiency in service and unfair trade practice against the OPs. Thus the issue 1 to 3 found against the complainant.
In the result the complaint is dismissed no order as to cost and compensation.
Exts:
A1 - chalan receipt dtd.1/10/2020.
A2 - application dtd.28/9/2020& 16/10/2020.
A3- letter issued by 3rd OP to complainant dtd.11/2/2020.
A4 - notice dtd.21/10/2020.
A5- order of SDM Thalassery dtd.23/6/2020,
A6 - report of village officer Thalassery dtd.6/2/2020,
A7- report of Thahasildar dtd.26/2/20,
A8 - sketch plan dtd.11/3/20, 18/6/20,
A9 - land tax receipt dtd.18/6/21,
A10- house tax receipt,
.A11- possession certificate,
A12- letter issued by Tahasildar,Thalassery,
A13- application and receipt
A14- acknowledgment receipt of RTI.
PW1-Jayan Parameswaran- complainant
DW1-Shajesh Ekkadavat- 2nd OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR