BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.64/2009

Dated this the 27^th day of March 2015.

N. Sivasankaran

S/o.S.Nagarajan

No.6-A4, Nagalakshmi Colony,

Muduku Street,

Thirumalairayanpattinam-609 606

Karaikal District.                                                                 ….       Complainant

Vs.

1.  The Specified Officer

     Settlement Branch Office

     Revenue Department,

     Taluk Office, Karaikal.

2. The District Collector

     Karaikal.

3. The Junior Town Planner

    Karaikal Planning Authority

    Perunthalaivar Kamarajar Administration Block  

    Karaikal District.

4. Chief Town Planner

    Office of the Town and Country Planning

    Puducherry.                                                                                  ….     Opposite Parties

BEFORE:

            THIRU.A.ASOKAN, B.A., B.L.,

            PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

FOR THE COMPLAINANTS                  :  Thiru. A.Thirumalvalavan.

FOR THE OPPOSITE PARTIES             : Thiru.S. Suriyamoorthy, Advocate

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to:

1. To direct the opposite parties to pay a compensation of Rs.6,70,500/- for the negligent act of  the opposite parties, as per worksheet.
2. To direct the opposite parties to pay a sum of Rs.1,00,000/- for the mental agony suffered by the complainant  for the deficiency in service attributed by the opposite parties.
3. To direct the opposite parties to pay a sum of Rs.20,000/- as cost of the proceedings.
4. To pass any order which is deem fit and proper in the circumstance of the case?

2.  The case of the complainant is as follows:

            On 23.09.2004 the complainant has purchased a plot No.37, Natchiar Nagar, Thalatheru Village, Karaikal from the power agent Thiru.M.Syed Mubarak for Rs.75,000/-, which was approved by the Karaikal Planning Authority on 21.08.2000 and the said transaction was duly registered before the competent authority.  To avail loan from the Bank/Government, he has applied for patta transfer of the said plot on 30.10.2004 before the Karaikal District Office (Settlement Branch), vide application No.2157.   He has approached Thiru.P.Jayakumar, Deputy Surveyor of Karaikal to survey his land.  The Deputy Surveyor informed the complainant that it was very difficult to survey this plot alone and further informed that entire plot owners Natchiar Nagar has to apply for survey, then only it will be possible for him to survey. Accordingly, the complainant informed the same to the power agent Thiru.Syed Mubarak.  The complainant paid Rs.10/- as survey charges and the original receipt was kept in the surveyor file.  Even after repeated request, the surveyor failed to survey the plot by giving one or another reason.  After 50 times visit of the complainant, after more than 8 months, the surveyor issued notice dated 06.07.2005 fixing date of survey on 11.07.2005.  On 11.07.2005, the surveyor visited the plot alongwith his assistant, surveyed the land and left the place without informing anything to the complainant.

3.         It is submitted that no patta was issued to the complainant even after one and half-years of application.  As there was delay in issuing patta, he could not construct his house as planned.  On 27.03.2006, the complainant sent a letter to the District Collector to issue patta.  When he enquired about his application to the Collector regarding patta transfer, he was advised to approach the Deputy Collector (Revenue), Karaikal.  As directed by the Deputy Collector (Revenue), he approached the Revenue Officer.  The Revenue Officer in turn advised him to contact the surveyor.  The surveyor informed the complainant that he has contact only the Revenue Officer.  Whenever the complainant approached the Revenue officer, he has not given any proper reply.  After the delay of five months, the complainant received a letter from the Revenue Officer, DRDM, Karaikal vide letter No.4887/DRDM/2006-2007 dated 10.08.2006 stating that there was difference in the lay out and the actual land. It is further stated in the letter that the complainant's neighbour namely A.Palanisamy, the owner of plot No.37,  has encroached 90cm of the complainant's plot on eastern side and it was not possible to issue patta.   After the delay of nearly two years, the application for patta  transfer was rejected by the department, which caused mental agony and stress to the complainant.  Immediately, the complainant has sent a letter dated 28.08.2006 to Thiru.A.Palanisamy to stop the encroachment.  Though the Revenue Department issued a letter to the complainant about the encroachment but they have not taken any step to stop the encroachment.

4.         The complainant had given a petition for issue of patta on 30.10.2004.  The said Palanisamy had given application for approval on 08.12.2015 and the approval was given to him on 15.12.2005. The complainant's neighbour started his construction only after one and quarter year from the date of application of patta transfer given by the complainant.  If the patta had been given within the stipulated period, the complainant could have stopped the encroachment made by his neighbour.  Due to the delay caused by the Karaikal Taluk Office, the said encroachment was committed by the neighbour Thiru.A.Palanisamy.   The complainant had purchased the plot only based on the final approval given by the Karaikal Planning Authority.   Without inspecting or ascertaining the actual land, the Karaikal Planning Authority had given approval to Thiru.Palanisamy within seven days of his application. Due to that only the said Palanisamy had made encroachment in the plot of the complainant.    The complainant has given an application to the Karaikal Town Planning Authority informing about the encroachment made by his neighbour Palanisamy and requested to take action against him.  Though the Kariakal Town Planning Authority known about the encroachment through the Revenue Officer letter No.4887/DRDM/2006-2007 dated 10.08.2006,  without taking steps to stop the encroachment, they have advised the power agent Thiru.M.Syed Mubarak to submit the correction deed of the complainant under their letter No.2251/KPA/1999-2006/1027, dt.25.09.2006.   The Kariakal Planning Authority, instead of taking action against the encroachment made by the complainant's neighbour, namely Palanisamy, they have justified the encroachment and supported his illegal action, which caused mental agony to the complainant.

5.         Once again on 16.11.2006, the complainant has given an letter to the competent authority to expedite the issue patta.  In continuation of his application, through RTI, the complainant has got information dated 18.01.2007 from the Deputy Collector (Revenue) that the corrections will be carried out in the plan and necessary patta will be issued shortly.  Even after carrying out the correction in the layout and approval was given on 31.01.2007, no patta was given to the complainant for more than three months.  The complainant has given application under RTI about the pendency of patta application, it was given in the reply that the patta will be issued except the encroachment.  This is against law and this action is in support of the encroacher, dereliction   of duty, which caused mental agony and stress to the complainant.

6.         The Karaikal Planning Authority in order to hide their lapse, they got application from the power agent Syed Mubarak to make correction in the layout, which was approved by the authority for more than six and half years back.   Though the application for patta transfer has been pending for more than two years, the Settlement Branch Officer has prepared another application for patta transfer and got the signature of the complainant on 28.02.2007.  Again on 29.03.2007, they have collected Rs.10/- as survey charge and finally the patta was issued to the complainant on 10.05.2007.   Based on the final approval given by the Karaikal Planning Authority, the complainant purchased the plot.  Actually there was a difference in the layout and the land.  Without properly checking, the Karaikal Town Planning authority had issued approval, which is the main cause for delay in issuing patta to the complainant.   In the building plan, the complainant's neighbour had given wrong measurement i.e 7 meter as road width, as against the measurement given in the final approval. Without inspecting the site and ascertaining the true fact, the Karaikal Planning Authority had issued approval within seven days, which is the main cause for delay in issuing patta to the complainant.   Karaikal Planning Authority had also failed to inspect the site whether the complainant's neighbour was constructing the house as per approved by them.  The neighbour has constructed the house without leaving the sufficient space for ventilation, which is also against law.  The complainant's neighbour has left only 1.5meter space on the western side as against the approval given by Karaikal Planning Authority. 

7.         It is further submitted that though the Revenue Secretary had issued a letter dated 19.10.2007 to send all the documents as required by the complainant but the Revenue Department failed to do so because the documents may reveal their lapse, negligence in duty and deficiency in service.  The negligent and deficiency in service attributed by the Karaikal Planning Authority and the Taluk Office (Settlement Branch) caused mental agony to the complainant and caused delay in constructing his house for more than 2 and half years. Hence this complaint.

8.         The reply version of the first opposite party being adopted by the second opposite party is as follows:

            This opposite parties denied all the allegations made out in the complaint except those that are specifically admitted in the reply version.  The complainant's complaint is frivolous, vexatious and it has no weight or importance at all.  Absolutely there is no deficiency in service on the part of this opposite party as alleged by the complainant.   The complainant is not a consumer as contemplated under the Consumer Protection Act as such he is not entitled for any compensation as prayed in the complaint.  It is also false to state that the surveyor unnecessary dragged the complainant and informed the complainant to bring all the plot owners of Natchiar nagar to survey the plot.   The complainant had purchased a plot bearing no.37 at Natchiar nagar, Thalatheru Revenue Village from one Seyed Mubarak, the power agent through a registered sale deed dated 23.09.2004.   He applied for patta transfer on 30.11.2004 before the Office of the Branch Settlement Office at Karaikal and the same was numbered as 2157/2004.  The said application was forwarded to survey section for creation of new sub division on 03.12.2004.  The complainant had paid a sum of Rs.10/- towards survey charges on 11.01.2005.  The application forwarded by the Branch Settlement Officer to survey section had been once again scrutinized by the survey section alongwith the revenue records, by the Deputy surveyor, and he fixed the demarcation of the plot on 11.07.2005 and issued summons to the complainant to be present at the site in person for demarcation.  The complainant property was not properly bounded with fencing or boundary stones,  this fact was very well known to the complainant.  In fact, the Revenue Officer, Karaikal sent a letter to the complainant on 10.08.2006 vide letter No.4887/DRDM/CB/2006 stating that transfer of patta could not be effected due to the above said reasons, and consequently the application was closed at that stage.

9.         It is further submitted by the opposite party that preventing the encroacher from encroaching into the complainant's property is not the duty of this opposite party. The complainant has to take steps to protect, keep vigil on his own property or otherwise he has to approach the appropriate legal Fora for his remedy, therefore, he cannot blame this opposite party for third party's act.  The complainant submitted a fresh application for transfer of patta on 28.02.2007 alongwith the revised layout before this authority.   The complainant remitted the survey charge of Rs.10/- on 29.03.2007 and demarcation date was fixed on 02.04.2007.  After demarcation, the sub divisional proposal was sent to the Inspector of Survey on 11.04.2007 for scrutiny and he inspected the site on 12.04.2007.  Then the file was submitted to the Assistant Director of Survey for Technical Scrutiny.  On receipt of the file from the Assistant Director of Survey, necessary verification has been made alongwith the Settlement record and documents produced by the complainant.  The said file was approved by the Specified Officer and Patta has been transferred as requested by this complainant and necessary corrections have been made in the relevant records on 08.05.2007.  The patta copy issued to the complainant on 10.05.2007.   Therefore, absolutely there is no deficiency on the part of this opposite party.  During the first visit, the demarcation could not been effected due to the discrepancies in the field  and layout measurement, apart from that, the complainant's property has not been properly bounded with fence or boundary stones.  Therefore this complaint is liable to be dismissed in limine even without basic consideration.

10.       The reply version of the third opposite party being adopted by the fourth opposite party is as follows:

            This opposite parties denied all the allegations made out in the complaint except those that are specifically admitted in the reply version.  Absolutely there is no deficiency in service on the part of this opposite party as alleged by the complainant.  On 08.12.2005, Mr.Palanisamy had applied for building permit before this opposite party for constructing a new residential building in his plot no.36, situated at Natchiar Nagar.  After scrutinizing of his application, building permit was issued to him on 15.12.005.  Apart from that,  this opposite party does not know anything about the alleged encroachment made by the said Palanisamy as alleged in the complaint and it is not concerned with this opposite party.

11.       It is further submitted that on application submitted by one Syed Mubarak, Power agent of Mohamed Arif, Final approval for Natchiar Nagar Layout was granted on 21.08.2000 with 2251/KPA/1999-2000/923 by this opposite party.  In the layout sketch filed alongwith the application, the applicant mentioned the Eastern side main road width of 7Mts. East to West.  The same width of 7Mt was shown for entire Eastern side main road in the sketch.  So, this opposite party had granted final approval for that layout mentioning that the Eastern main road is with as width 7Mts. of its entire length after verifying the same on ground as the promoter himself had laid the road and the boundary stones showing width of the road as 7Mts on ground.  But, the width of that eastern side main road of that layout near the plot no.36 was reduced to 6.10mts. as per the layout sketch submitted for the approval.  It could not be assessed with bare eyes. The promoter of that plot M.Syed Mubarak had failed to mention that the width of that Eastern side main road got reduced to 6.10 mts from the beginning of plot no.36 till the southern end of the layout in the sketch submitted by him. This was a grave error and mistake committed by the layout promoter Syed Mubarak.   So, the entire latches and negligence was on the part of the plot promoter.  So, this promoter is necessary party to this consumer complaint.  Without impleading that promoter as a part to this complaint, this complaint cannot be legally proceed further.    Because of that error committed by the plot promoter, this opposite party was necessitated to grant building permit to Mr.A.Palanisamy, the owner of plot no.36, 0.90mts of measurement was calculated on the Eastern side of plot no.37, which belong to the complainant.  This opposite party summoned the plot promoter Syed Mubarak and directed him to rectify that error by filing a revised Layout plan.  Therefore this opposite party denied the allegation that this supporting has supported the encroacher and improperly delegating his duties.  The entire error, mistake and negligence on the part of the layout promoter only and not on the part of this opposite party.

12.       After receipt of the application for building permit from Mr.A.Palanisamy for his plot no.36 and this 3^rd opposite party verified with his application and sketch and measured the plot on ground. At that time the north eastern corner boundary stones and south eastern corner boundary of plot no.36 was fixed at distance of 7Mts by the layout promoter. So, this opposite party had given building permit to that person as sought by him.  The said person had not constructed any building in that 0.90mts of land as alleged by the complainant.  This opposite party is not responsible for any construction made by that person in that place.  The delay in issuing mutated patta to the complainant is not due to this opposite party.   As the error was committed by the promoter in the layout plan submitted at the first instances and the same error was carried out by him on ground also, this opposite party was legally left with no other option that to direct him to submit a revised layout plan to rectify those mistakes and errors.

13.       It is further submitted that because of the revised layout plan, the complaint had not lost anything i.e. even an inch in his land.  Therefore, there is no materials loss or mental agony to the complainant.  For the wrong, mistake and error committed by the promoter of the layout he alone is made to suffer the loss as the plot no.39 in the original layout sketch was now reduced because of the revised layout plan and it is now shown as reserved area in the revised layout plan and further the total number of plot is now reduced to 46 which was earlier 47.   This opposite party had correctly granted building approval to Mr.A.Palanisamy.   Because issuing that permit, this opposite party had made discreet enquiry and made measurement in his plot no.36.   During inspection, it is found that Thiru.Palanisamy made un-authorised deviations from the approved building plan and hence, a violation notice was served on 29.09.2006.  In his reply, Thiru.Palanisamy assured to submit the revised plan as per the execution at site.  There is no negligence or deficiency in service on the part of this opposite party as alleged by the complainant.   The complainant had not made any payment by way of cash or cheque to this opposite party, therefore this complainant is not a consumer.  On 04.11.2009, the third opposite party had received an application for building plan approval from the complainant for his plot no.37 at Natchiar nagar, Thalatheru, Karaikal.  The proposal was discussed in the Karaikal Planning Authority Committee meeting held on 09.01.2010 and the committee after discussion decided to clear the proposal as the case satisfies the norms.   Accordingly, the building plan approval/permission vide No.1720/KPA/KM(37)/2009-10/519 dated 25.02.2010 was issued by the third opposite party to this complainant. and as per the order dated 23.10.2009 in W.P.No.14000/2009 of the Hon'ble High Court of Madras filed by one Mr.Ilvazhagan seeking mandamus to issue building plan approval to his plot no.4 in this Natchiyar nagar, the revised final approval to Natchiyar Nagar layout at Thalatheru village, Karaikal was issued by the third opposite party authority vide letter No.2251/KPA/1999-2010/211 dated 11.03.2010.  Hence, prayed to dismiss the complaint with exemplary cost.

14.       On the side of the complainant, he has chosen to examine himself as PW.1 and marked Exs.C1 to C13.  On the side of the opposite parties, two witness have been examined as RW.1 and RW.2 and marked Exs.R1 to R3.

15.       Points for determination are:

1. Whether the complainant is the consumer to the opposite parties?
2. Whether this complainant is bad for misjoinder of unnecessary party and non-joinder of necessary party?
3. Whether any deficiency in service attributed by the opposite parties?
4. To what relief the complainant is entitled for?

16.       Point No.1:   

            The complainant had purchased one plot from one Syed Mubarak, the power agent of the land owner.  To that effect the complainant paid Rs.10/- twice towards survey charges for demarcation and for transfer of patta on 11.01.2005 and 29.03.2007 to the opposite parties 1 and 2.  The allegation against the OP.1 and 2 is delay in demarcation. The second allegation is against the opposite parties 3 and 4 that the said authority without inspecting the site and without ascertaining the truth, Karaikal Planning Authority had issued approval to the plots which are purchased by the complainant from one Seyed Mubarak.  Now the question before the Forum is whether the complainant is the consumer to the opposite parties.  As per section 2(i)(d)(ii), 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 then 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 payment, 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);

17.       As per section 2(i)(o) Service means "service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board 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.

18.       The alleged service availed by the complainant form the opposite parties is not service as per the provisions of the Consumer Protection Act.  It is the statutory function of the opposite parties i.e. the Government.  They only perform their statutory duties to raise and collect the state revenue which is part of the sovereign powers of the State.  The fees and charges of the government does not coming under the purview of the consideration.  In this case, no consideration passed by the complainant to the value of services rendered by the opposite parties. The statutory duty is also not coming under the purview of rendering services.  These principles laid down in SP Goel Vs. Collector of Stamps, Delhi, reported in AIR 1996-SC-839.

            Hence the complainant is not the consumer to the opposite parties.

19.       Point No.2:

            This complaint is bad for misjoinder of the opposite parties the statutory authorities as the parties to the proceedings and bad for non-joinder of the promoter of the layout as necessary party to the proceedings as alleged by the opposite parties.  Hence this point is answered against the complainant.

20.       Point No.3:   

            Being the points no.1 and 2 answered against the complainant, this point need not be answered.

21.       Point No.4:

            In view of the decision arrived in the above points, this complaint is liable to be dismissed.  Therefore, this complaint is dismissed, no cost.

Dated this the 27^th day of March 2015.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

COMPLAINANTS WITNESS:  

CW.1             16.09.2011                Thiru.N.Sivasankaran

OPPOSITE PARTIES WITNESS: 

RW.1              21.02.2014                Thriu.K.Premanand

RW.2              25.07.2014                Thiru.P.Jayakumar

 COMPLAINANTS EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

         MEMBER