DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 2^nd day of August, 2022

Present    :  Sri.Vinay Menon V.,  President

                :  Smt.Vidya A., Member                                                  

    :  Sri.Krishnankutty N.K., Member                          Date of Filing: 30/04/2022 

  CC/77/2022

K. Kousalya

Door No.532, Opp.  Govt. Hospital,

Agali, Attappadi.

(By Adv.Anwar Sadath & Fabid Ahmer)                                                  -              Complainant

Vs

The Secretary

    Agali Grama Panchayath Office,

    Agali Post,  Kerala – 678 581                                                                           -              Opposite party

O R D E R 

By Sri. Vinay Menon V.,  President

1. This complaint is the second wave of litigation before this Commission by the complainant against various Govt. officials who happened to deal with properties belonging to the complainant in the natural and routine course of their discharge of official duties. The first bout was with a number of revenue, police and LSGD officials who happened to come between an internecine conflict between the complainant and her consanguine sister. That complaint, CC/44/2022 was dismissed by this Commission on 30.03.2022 on the ground that there is no consumer – service provider relationship between the parties arrayed. The order of this Commission was upheld by the Hon’ble State Commission in Appeal No.221/22 by its judgment dated 25/5/2022 by dismissing the complainant’s Appeal in-limine.
2. In this case, the complainant seeks to vent her ire against the opposite party who issued her a building license vide permit No.A3-BA(35391)/2020 dated 31/12/2020. Per complainant, the fee paid for availing this permit is a consideration as contemplated under the Consumer Protection Act and granting of permit by the opposite party, a service under Consumer Protection Act. Even though she availed all the materials for construction, the construction could not be initiated in view of some litigations fomented by some persons and her building license was also revoked unilaterally by the opposite party. Aggrieved due to her losses, this complaint is filed seeking compensation and restitutions of  other financial expenditures.
3. Upon receipt of this complaint by Edakhil, admission was granted on condition that the question “whether there exist a consumer- service provider relationship when the opposite party exercises its quasi judicial authority” would be heard as a preliminary issue.
4. The opposite party entered appearance and filed a crisp version stating that subsequent to issuance of permit, one Vanaja, Thammanachetty Road, Veeraboyan colony, Arissipalayam, Selam had contacted the panchayath stating that there were pending disputes regarding the property and sought for cancellation of permit. Thereon a show-cause notice dated 8/3/2022 was issued to the complainant and since no reply was forthcoming, the permit was cancelled and all constructions upon the said property were directed to be stopped. The opposite party also produced the relevant orders issued by them.

5.         Preliminary issue was heard of 22/7/2022. Counsel for the complainant argued vehemently to substantiate his stand that this Commission has the authority to adjudicate upon the actions of the opposite party. He produced a judgment dated 5/1/2012 of Kerala State Consumer disputes Redressal Commission in Appeal No.375/2011 (Special Grade Secretray, Chirakkal Grama Panchayath Vs. V.P.Chandran) and a common judgment dated 23/1/2010 passed by the Hon’ble NCDRC in State of Maharashtra & Ors Vs. Santharam Karbari and a number of connected cases.

6.       The decision of SCDRC, Kerala,  pertain to a case where there was a delay in issuance of birth certificate pertaining to the child of the complainant therein. The District Commission allowed the complaint holding that the authority was amenable to the jurisdiction of the Commission. Aggrieved thereby, the Grama Panchayath went in appeal which was dismissed by the State Commission. Relying on a decision rendered by the Hon’ble High Court of Kerala in Thrissur Muncipal Corporation Vs. Ummer Koya Haji (2006(3)KLT 897),  the State Commission held that the District Commission had considered all the aspect while passing the impugned the order while passing that order and desisted from interfering therein. 

7. The Hon’ble High Court of Kerala had in the Ummer Koya Haji case, stated supra, considered the question as to the extent to which a Consumer Commission can adjudicate upon the functioning of a Muncipal Authority. The Hon’ble High Court considered a wide array of decisions rendered by the Hon’ble Supreme Court and NCDRC before coming to a conclusion.  The outcome of this decision is to the effect that there is no blanket protection for a governmental agency from the ambit of Consumer  Protection Act.  A governmental agency imparts two types of services which can be divided as a sovereign function and a commercial function. When it imparts a sovereign function a Consumer Commission has no authority to interfere. Otherwise, the authority falls within the definition of a service provider as contemplated under Consumer Protection Act.
8. With regard to the State of Maharashtra case decided by the Hon’ble NCDRC, the important question that arose for consideration was whether activity of supply of water for irrigation by the State, on receipt of water charges from the cultivators amounts to service within the meaning of section 2(1)(o) and cultivators, who receive the water supply are the consumer within the meaning of consumer as defined in Section 2(1)(d) of the Consumer Protection Act 1986.

Since gist of the decision in this case comes within the purview of the decision rendered by Kerala High Court in Ummer Koya Haji case, to the effect that tendency of the Apex Court is to vest jurisdiction to try matters pertaining to Statutory authorities, where sovereign functions are not discharged, with the Commissions formed under Consumer Protection Act,  we are not discussing this case.

9. We totally concur with the argument of the counsel for the complainant when he points out that this Commission has authority to adjudicate on matters involving Statutory authorities.

But, It is to be noted that the point of argument to be made was as to whether this Commission had jurisdiction to interfere over a decision rendered by the opposite party while they passed an order in their quasi judicial authority. These are two different aspects. We need to consider only the question of discharge of quasi judicial authority by the opposite party, which was the preliminary issue. However much we directed the counsel for the complainant to argue on this point he failed to do so.

10. The facts and circumstances, as pleaded by the complainant, would show that she availed a license from a government authority which is authorized, empowered and competent by a Statute in force (Kerala Panchayath Raj Act and Kerala Panchayat Building Rules) to regulate construction of buildings within its jurisdiction. While issuing a permit under KPBR, based on the documents filed by the complainant herself, the authority is exercising the sovereign/statutory authority vested with it.  The Regulatory fee levied in this context cannot be viewed as a consideration contemplated under the Consumer Protection Act. Needless to say, revocation or cancellation of the permit is also exercise of a quasi judicial authority conferred upon the opposite party by way of the aforesaid Rules.

It might also be pertinent to consider whether the complainant had disclosed the entire facts pertaining to the ownership of the property in question to the authorities. But as those matters pertaining to the disclosure/non-disclosure are not a subject matter of argument, one need not look into it.

11.  Therefore we hold that there is no consumer- service provider relationship between the complainant and opposite party.  Payment of fee to the opposite party is not a consideration and issuance of permit is not a service as contemplated under the Act.
12. This Commission has no locus standi to decide and adjudicate upon this lis in the facts and circumstances elucidated. We dismiss the complaint.
13. In view of the sustained  aggression shown  by the complainant towards the statutory authorities and forcing them into unwarranted disputes, we impose a cost of Rs.5,000/- (Rupees Five thousand only) upon her, payable to the opposite party.  

   Pronounced in the open court on this the  2^nd day of August, 2022.

        Sd/-

                        Vinay Menon V.

                                                                             President

                                                                      Sd/-

                   Vidya A.

                                              Member     

                   Sd/-

                                                                                                               Krishnankutty N.K.

                                                                                                                    Member