Presented by Smt. A. Behera, Member .

The Complainant filed a case against Collector, Bargarh as Opposite Party No.1(one) and R.I., Barpali Circle Dist. Bargarh as Opposite Party No.2(two) for his grievance of non attendance to their rightful call for the non-service even after paying the approved suggested dues and fees for the action. The Complainant's version is that he wanted demarcation of his plot for which he filed the application and gave requisite fees to the Tahasildar, Barpali where the land is situated. But after much heed no action is taken for the said demarcation for which he sustained much pain and mental agony and needs to be compensated suitably and demand Rs. 5,00,000/-(Rupees five lakh)only for all the deficiency of service and sustained losses and suffering.

To substantiate his version Complainant relies on the following documents filed with the case record.

Xerox copies of:-

(a) Application for Demarcation of land to Tahasildar Barpali.

(b) Money Receipt No. 684887 Dt.14/05/2012 for the demarcation of land viz Plot No. 320, MS Khata No.528 Mauza Barapli.

© Request letter to Tahasildar Barpali for action as delay has been occurring to the demarcation Dt.09/07/2012.

500. Petition to Collector, Bargarh seeking action for the grievance accrued at R.I., Barpali Dt.04/08/2012.

Under the circumstances following issue are fixed for decision by the Forum.

1. Whether the present Complainant is a Consumer under the C.P. Act 1986 ? (Raised vehemently by the Ops).

2. Whether deficiency of service occurred ?

   and

3. Whether the Complainant is entitled to compensation for the deficiencies occurred, if yes under what circumstances and to what extant he is to be compensated.

Complainant also relied upon a decision of the Supreme Court vide AIR 2007 Supreme Court 1819, which specifically deals about explanation of service and Section 2(1) O particularly the exclusion part there of Parts referred significantly from the decision as follows:-

“A “contract for service” implies a contract whereby one party under takes to render service e.g professional or technical service to or for another in the performance of which he is not subject to detailed direction and control and exercises professional and technical skill and sues his own knowledge and discretion where as a “contract of service” implies relationship of master and servant and and involves an obligation to obey in the work to be performed and to its mode and manner of performance”

From Judgment and order of the NCDRC, New Delhi in Revision Petition No. 606 of 1996 Dt.19/04/1999.

A contract of service is excluded for consideration from the ambit of definition a “service” in the Consumer Protection Act, where as a contract for service is included.

Further the present Complainant have filed affidavit by Damodar Sahu relating to the filing of Demarcation Case No. 46 of 2012, receipts and application pertaining to the act. Application to Collector, Bargarh to take action for the grievance. A general power of attorney from Sarat Meher S/o Shiba Meher to Damodar Sahu to act on behalf of the executant for the land M.S. Khata No. 528, Plot No. 320 which is recorded in the name of Shiba Meher, Sadhu Meher S/o Balamukunda Meher of Barpali.

Opposite Party No.1(one) and No.2(two) filed their joint version on Dt.17/05/2013 and countered all the charges against them.

Main contentions.

(a) The Complaint is not maintainable and without jurisdiction liable to be dismissed.

(b) The Complainant is not a consumer under Consumer Protection Act-1986.

© That Damodar Sahu is not the actual tenant and ROR holder of Khata No. 528 Plot No. 320 area A. 0.25 decimals of land has applied for demarcation in the Demarcation Case No.461292 and he has paid the requisite fees.

(d) that the fees collected under this system is for augmentation of revenue of the state and thus there is no element of service.

(e) The demarcation case was completed on Dt.11/02/2013 in the presence of the Complainant which was not possible earlier for a defective application from the part of the Complainant, for which the delay occurred so no deficiency of service occrred.

Opposite Party files an affidavit been authorized by Collector, Bargarh denying various complaints field and prayed dismissal of the complaint being with no merit.

Also files a series of letters of communication in the department about the actual problem for which the demarcation got delayed.

Opposite Party also filed a decision 1998 (i) OLR (CSR) 32, which says that stamp duty payable to state is for augmentation of revenue of the state hence not consideration.

Hearing was done in great details on Dt.23/12/2013 heard the submissions of both the Parties through their counsels Complainant have filed their written argument on Dt.31/12/2013, Memo of written argument filed by the Opposite Parties on Dt.03/01/2014.

Perused the case record and documents filed by the Parties and after carefully considering all the facts and circumstance of the case the following points comes out.

1. The actual ROR holder of the piece of land in issue, vide M.S. Khata No. 528, Plot No. 320 Area AO.25 decimals is Shiba Meher, Sadhu Meher, S/o Balaram Mehera as per the copy of ROR filed with the case record which envisages that this is a joint property of more then one tenant.

2. Sharat Meher, the present Complainant is the son of Shiba Meher one of the original tenant in the ROR sheet.

3. Copy of demarcation petition filed before the Tahasildar, Barpali shows that one Damodar Sahu has filed the application and paid the fees. Now this raises a question why Sharat Meher himself did not filed for demarcation of the land if he is the rightful owner and had to create a power of attorney in the name of Damodar Sahu to do this act with others, following cumbersome paper works and pecuniary expenditures.

4. The power of attorney filed with the records shows that the executant is Sharat Meher for the entire piece of land in issue, and not for his shares only, when other coparceners of the said property are there as per the ROR. So the legality of the power of attorney is in question.

   And it appears as if, to conduct some mischief all this things have been arranged.

How this petitioner executed a power of attorney to a joint property is still in dark and raises doubts in the mind of the Forum whether the person Damodar Sahu has produced the point at the time of filing application for demarcation is not known. Again if the power of attorney loses its legality, can lay man file a demarcation petition is not discussed by either party why R.I. And Tahasildar exempted proper inquiries is also not clear. However when they have accepted the petition with proper fees and not rejected the application for any reasons. It can be assumed that the filing is proper and the petitioner is entitled to the service properly which was done but only after long delay and filing of a consumer complaint.

5. Another doubt which is not answered through out the hearing procedure is that, why the Complainant himself filed this complaint when he has excuted a power of attorney in the name of Damodar Sahu, showing his disability, not being able to manage the affairs of the suit land Damodar Sahu himself could have filed this complaint even before this Court having the power of attorney and more over when he has done the demarcation procedure the main issue of this complaint.

6. The actual issue demarcation of the suit land is complete at the time the complaint reached its hearing stage.

7. The owner also was not able to prove what kind of pecuniary and other kind of losses incurred due to the negligence.

8. Another point raised by the Opposite Party was that, when the govt agency are accepting any money for any augmentation of govt. revenues, it will not be treated as valid consideration and that is why this complaint is not valid and ought to be dismissed.

This point is already discussed in great detail many a times by different courts including the SCI..

We want to quote the findings of different courts here to have a clear view of the situation.

(1) Lucknow Development Authority Vrs M.K.Gupta, 1994, AIR 787, 1994 SCC(1) 243

Para 5 of decision

In the above cited cases Supreme Court opined specifically in para 5 as follows.

“In own opinion, the entire argument found on being statutory bodies does not appear to have substance. A government or semi-government body or a local authority is as much awareable to the act as any other private body rendering similar service. Truly speaking it would be a service to the society such bodies instead of claiming exclusion subject, themselves to the Act and let their acts and ommission scrutinized as public accountability is necessary for healthily growth of society.”

(2) Regional Provident Fund Commissioner Vrs Shiv Kumar Hoshi, Dec 1999.

In this case the Supreme Court entered a finding that and statutory authority not invested with sovereign function while discharging its statute function provides service and would be liable under the act of any deficiency in such service.

Hence it is already established that even government officers come under the purview of C.P. Act when they are not rendering any sovereign duties.

Besides the “quid pro quo” principles also speaks about applicability of C.P. Act to any agency which promises any service in exchange of some valuable consideration fixed by it and when this issues, there exists a valid contract between the parties which is again very well dealts by C.P. Act.

Last but not the least in view of the passing of Odisha Public Services Act-2012 to give various services within reasonable period of time delay in providing simple services is not proper and need deemed action.

(9) The Opposite Parties alleged that Tahasildar, Barpali was not a party who is an necessary party to this issue which makes this complaint void as per Civil Law of the land.

It is already established by various judgment and discussions of Apex Court that the Civil Procedure Code is only applicable to limited sections expressed in the act itself and not to go for the technicalities as per Civil Produce Code as that will defeat the purpose of the enactment of the C.P. Act to provide quick and summery measures.

Under the circumstances the Opposite Parties are liable of deficiency of service particularly Opposite Party No.2(two) who is the primary person to address the issue at the root level which he neglected however Opposite Party No.2(two) has got only a supervisory role having very loss control and involvement directly but he also should not shut his doors to calls for justice by showing non-responsiveness to public issue.

Hence the Forum order that.

1. Opposite Party No.2(two) will pay Rs.1,000/-(Rupees one thousand)only to the Complainant as compensation to the harassment received and another Rs.1,000/-(Rupees one thousand)only as litigation cost within one month of this order failing which an interest of 12%(twelve percent) premium will be levied on the award till final payment of the reward.

2. Opposite Party No.1(one) is ought to have a little more concern about rendering of services promised under Right to Public Services Act, Odisha-2012 by the State Govtt of Odisha and the directed to issue a letter to the effect immediately to all the department's rendering public services enumerated in the Right to Public Service Act-2012 under his judicature so public is saved from unnecessary irritation, harassment and lessening of litigations at different levels

    

   The case is allowed and disposed off accordingly.

Typed to my dictation

and corrected by me.

            I agree,                                                                 I agree,                                                                       I agree,                                       (Smt. Anjali Behera)                                       ( Sri Pradeep Kumar Dash)                                           (Miss Rajlaxmi Pattnayak) 

              M e m b e r.                                                   M e m b e r.                                                              P r e s i d e n t.