KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 196/2006
JUDGMENT DATED: 10.02.2011
PRESENT:-
SMT. VALSALA SARANGADHARAN : MEMBER
SHRI.S.CHANDRA MOHAN NAIR : MEMBER
APPELLANTS
1. The District Collector,
Idukki
2. The Tahasildar,
Taluk Office,
Thodupuzha.
3. The District Survey Superintendent,
Idukki.
(Rep. by Adv. Sri M. Nazimudeen)
Vs
RESPONDENTS
1. V.R. Sankaran,
Rama Nilayam,Arakkulam P.O.,
Idukki District.
2. The Special Tahasildar(L.A.),
Idukki, Painavu P.O.
( R1 Rep. by Adv. Sri. Bapu P., Pothencode)
JUDGMENT DATED: 10.02.2011
SHRI.S.CHANDRA MOHAN NAIR : MEMBER
By the order dated 12.1.2006 of CDRC, Idukki in C.C. 168/2005, the opposite parties 1 to 3 are under directions to effect the mutation of Ext. P7 property belonging to the complainant with compensation of Rs. 5,000/- within 30 days from the date of receipt of the order failing which they are under directions to pay further compensation @ Rs. 1,000/- per month till the mutation is effected. It is aggrieved by these directions that the opposite parties 1 to 3 have come up in appeal calling for the interference of this Commission as to the sustainability of the order passed by the Forum below.
The complainant has approached the Forum stating that he is a retired teacher and that with the retirement benefits, he has purchased 82 cents of land in survey No. 752/1 – 18 of Elappally Village from one Mr. Abdul Rasheed as per Sale Deed No. 594/2005 dt. 23.3.2005. It is his case that though he had applied for effecting mutation, the same was not done and though repeated applications were given to all the opposite parties, the mutation was not effected raising one or other reason by the opposite parties. The complaint is filed alleging the deficiency in service on the part of the opposite parties and praying for directions to the opposite parties to effect mutation in favor of the complainant and also for compensation and costs.
Though notices were served on the opposite parties the first and second opposite parties did not file any version. The 3rd and 4th opposite parties filed separate versions. As per the version of the 3rd opposite party the property of the complainant as per the document and the survey number shown therein were different and that the property was covered in a different survey number. It is also stated that when resurvey was conducted, there occurred some difference in the old and new survey numbers and since the complainant had no right on the property as per the document no action was taken by the 3rd opposite party. It was also submitted that if at all the grievance of the complainant is true it can be redressed only by to the Thaluk Tahasildar by applying rule 17 or 27 or 28 of the transfer of the registry rules. Submitting that there was no deficiency in service the 3rd opposite party prayed for the dismissal of the complaint.
The 4th opposite party submitted that when resurvey works were carried out there occurred some differences in the survey numbers and the complainant could get the mutation effected making an application to the district Survey superintendent who is 3rd opposite party.
The evidence consisted of the oral testimony of the complainant as Pw1 and Exts. P1 to P8 on his side. On the side of the opposite parties Dws 1 and 2 were examined and Ext. R1 was marked on their side.
The learned counsel for the appellants vehemently argued before us that the lower Forum had no jurisdiction to entertain the complaint and that the seller of the property to the complainant had sold the property without revealing the discrepancies crept in the survey record and it was the duty of the complainant to get all the records cleared before purchase of the property. However it is admitted by him that the correction if any to the survey records are to be corrected by District Survey superintendent as per the government orders. The learned counsel advanced the contention that the Forum below had passed the order without appreciation of the facts and evidence in its correct prospective and the said order is liable to be set aside.
On the other hand the first respondent/complainant who appeared in person submitted before us that he had purchased the property on 23.3.2005 and from that date onwards he was approaching all the opposite parties to get the mutation effected in his name and the opposite parties were denying his eligible right by one or other reasons. He has also submitted that before the purchase, he had verified the records and the opposite parties had admitted that there occurred some mistake when resurvey was conducted and only the revenue authorities could rectify the mistakes. It is also his case that from 2005 on wards he had been compelled to approach so many authorities and it was as a last resort that he approached the Forum below who passed the impugned order. It is his further case that all the directions in the impugned order by the Forum below are passed after appreciating the facts and circumstances and also the difficulties endured by the complainant. He prayed for the dismissal of the appeal with the compensatory costs.
On hearing both sides and also on perusing the records we find that it is the admitted fact of all the parties that the complainant had purchased the property in 2005 and he was approaching the opposite parties for getting the mutation effected from 2005 on wards. It is also seen that the opposite parties were shifting their burden from one shoulder to the other. The 3rd opposite party would say that it was the second opposite party who ought to have redressed the grievances of the complainant. All the same the 4th opposite party has stated that the mutation could be effected by the District survey superintendent who is the 3rd opposite party. The learned counsel for the appellants has also argued before us that the Forra consisted under the Consumer Protection Act, had no jurisdiction to entertain the complaint. Though such a contention was not specifically taken in the version by the 3rd and 4th opposite parties, the argument of the learned counsel has been considered by us. We find that the learned counsel is under the impression that effecting mutation is equivalent to collecting taxes like property taxes, profession taxes and other taxes.
The Hon’ble High Court of Kerala in Thrissur Municipal Corporation, Ummer Koya Haji(2006(3)KLT 897), has elaborately discussed sovereign functions and other functions of the local bodies and other instrumentalities of the state. On a careful study of the said decision, we find that collection of property tax, profession tax and such other taxes though will not fall under Consumer Protection Act, the services rendered in respect of activities like mutation certificate possession certificate etc will definitely be amenable to the jurisdiction of the Consumer Protection Act. The complainant has approached the opposite parties for effecting the mutation on payment of fees and the opposite parties are expected to extend their service by effecting the mutation. Section 2(1) (0) of Consumer Protection Act, deals with service which reads as follows: “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, 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. In the instant case the appellants/opposite parties have no case that the service expected from them was of free of charge or under a contract of personal service. It is to be noted that when a party applies for mutation he has to pay the charges for it, may be in the form of stamps or by cash itself.
It is also to be noted that when the local bodies and the instrumentalities of the State entertain request for any service to be done to a party, there is “quid pro quo” and the failure will definitely be termed as deficiency in service. In the present case the Forum below had found deficiency in service on the part of the opposite parties as they have been shifting their responsibility from one opposite party to other opposite party. We find that the order directing the opposite parties to effect the mutation after rectifying the mistakes in the resurvey records and to pay compensation of Rs. 5,000/-is just and proper and hence the same is sustained. But the direction to pay recurring compensation by the appellants/opposite parties @ Rs. 1,000/- per month till mutation is effected can not be supported. We find that as soon as the opposite parties received the order, they had filed this appeal and the appeal was pending before this commission. However it is also seen that the Forum below had not awarded any costs to the complainant. We find it reasonable to allow costs of Rs. 3,000/- to be paid by the appellants to the complainant/1st respondent for the proceedings through out. It is made clear that the opposite parties are directed to take immediate and effective steps for rectifying the mistakes in the resurvey records and effect mutation of Ext. P7 property in the name of the complainant within two months from the date of receipt of this order failing which the amount of 5,000/- ordered as compensation will carry interest at 12% per annum from the date of the order of the Forum below till mutation is affected and the amounts paid.
In the result, the appeal is allowed in part with the modifications indicated above. Thereby the appellants are directed to effect mutation of Ext. P7 property in the name of the complainant and to pay Rs. 5,000/- by way of compensation and Rs. 3,000/- as costs to the complainant within two months from the date of receipt of this order. In the event of failure to do so the opposite parties/appellants are liable to pay interest @ 12% per annum on the amount of Rs. 5,000/- from the date of order of the Forum below(12.1.2006) till the date of effecting mutation in the name of the complainant and payment of Rs. 5,000/-towards compensation and Rs. 3,000/- towards costs.
The office is directed to return the LCR to The Forum below along with the copy of this order urgently.
S.CHANDRA MOHAN NAIR : MEMBER
VALSALA SARANGADHARAN : MEMBER
