DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MALAPPURAM
(Present: Sri. Mohandasan . K, President
Smt.Preethi Sivaraman.C, Member
Sri. Mohamed Ismayil.C.V, Member)
Date of filing: 13/09/2022
Date of Order:28/04/2023
C.C.NO.340/2022
Rarankandath Aboobacker S/o Kunhimuhammed Haji,
Trikkanapuram (P.o), South (P.o), Complainant
Pin – 679582., Malappuram Dist .
Vs
1. Village Officer, Thavanur Village Office,
Tavanur (P.o), Pin – 679573, Malappuram Dist.
Opposite parties
2. Raramkandath Jouhar Ali, S/o Kunhumuhammed Haji,
Thrikkaannapuram South Pin – 679582.
ORDER
By Sri. MOHANDASAN.K, PRESIDENT
1. The case of the complainant is that he approached the opposite party for various services and the opposite party stands disallowed the same. The complainant alleges the opposite party is denying the services, government orders, acting partially, irresponsible, illegal and in a punishable manner. The complainant approached for possession certificate with an application on 12/04/2022 and approached the opposite party for location certificate on 23/04/2022. The complainant applied for location sketch through Akshaya Kendra on 13/04/2022, sent email to the opposite party on 23/04/2022 for location certificate, approached for Thandapper on 10/05/2022. The complainant sent mail for requesting survey on 27/06/2022 and thereafter he received direction to remit fee on 23/07/2022. The complainant alleges due to the act of the opposite party he cannot file fresh application before the opposite party. The act of the opposite party amounts unfair trade practice and deficiency in service. The complainant further submitted various detail of circulars issued by the government regarding the right of service and other information’s.
2. The prayer of the complainant is to direct the opposite party to act on the application of the complainant legally and allow compensation of Rs.20,000/- and cost of Rs.5,000/-.
3. On admission of the complaint notice was issued to opposite party and the opposite party entered appearance and filed version. The opposite party denied the allegations of the complainant. The opposite party submitted that what is done in the matter of complainant is in accordance with revenue act and documents and in accordance with the information available on enquiry. All the acts are done with bonofies as a government employee and in accordance with the statutory rules. The opposite party further submitted that the service of a village officer will not come under the purview of Consumer Protection Act as per the decisions in C.K. Mohana sundaran Vs K.U Gopalakriannan Nair case. The Hon’ble State Commission itself has taken similar view in other cases also. The opposite party cited the decisions of this Commission in C.C.No.141/2019 dated 25/03/2022.
4. The opposite party submitted that the complainant submitted various applications before the opposite party on various dates under right to information act and otherwise. All the applications have been replied with due appreciation of facts and law. There are no latches from the part of the village officer. The prayer of the opposite party is to dismiss the complaint with cost to the opposite party.
5. Meanwhile, the third party filed IA 682/2022 to implead him as party to the proceedings and it was also allowed. The additional opposite party filed affidavit stating various issues related to the claim of the complainant and the allegations in the complaint.
6. The supplemental opposite party contented that the complaint is not maintainable and the complaint involves civil dispute which is pending before the honorable high court. The attempt of the complainant is to make pressure on the opposite party and thereby materialize the illegal object. The second opposite party is only concerned with the first allegation in the complaint since, the property involved in the matter is in possession of the supplemental opposite party and his brothers. There is a writ petition as WP©1206/22, pending before the Hon’ble High Court of Kerala and there is an interim order dated 06/04/2022 to maintain status co in which the complainant is a party. Suppressing the material facts the complainant approached various authorities for the documents which he is legally not entitled. The complainant filing applications before the village officers and Grama panchayat secretaries hiding the real facts and thereby trying obtain the documents. The complainant had filed C.C.141/2019 before this Commission and the village officer and Tahsildar had filed version in the matter. The Commission dismissed the complaint considering the version of the opposite parties. In addition to that the supplemental opposite party contended that the complainant manipulated a report influencing the court Aameen and subsequently the content of the report was physically verified by the village officer and found that the same was not correct. The property identified by the Court Aameen was not really in existence according to the verification of village officer. The opposite party further submitted that the tahsildar had verified the Thandaper No.4120 based on the complaint filed by the complainant and the same was dismissed by the Tahsildar. The dismissal order was specified that the complainant to seek remedy if any if he is aggrieved by the order of the Thahsildhar. The second opposite party further contended that there are adverse remarks regarding the complainant by the Grama panchayath board. So, considering the entire aspects, prayed the dismissal of the complaint and awarding appropriate punishment against the complainant for misusing the authority by the complainant. The opposite party produced copy of the status co order in wp© 12206/2022 (A) of Hon’ble High Court of Kerala dated 06/04/2022, the copy of order in C.C.141/2019, CDRC, Malappuram dated 25/03/2022, copy of version in C.C.141/2019 filed by opposite parties dated 06/11/2019. Copy of report submitted by Aameen before the Ponnani Munsiff magistrate court in EP 99/2019. The report of village officer dated 12/02/2020. Copy of instructions given by the revenue officials in the matter WP(C) 26991/21 before the Hon’ble high court. Copy of location sketch of the saw mill. Copy of notice issued by Tahsildar to the parties in the matter of complaint filed by complainant regarding Thandaper in respect of survey No.503/01-in 4120. The proceedings of the Tahsildar in G17234/2020 dated 26/11/2021 the decision taken by the Grama Panchyath board on 31/01/2020.
7. The complainant and second opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A14 and documents on the side opposite party marked as Ext. B1 to B9.
Heard complainant and opposite parties, perused affidavit, and documents. The following points arise for consideration
- Whether the complaint is maintainable?
- Whether there is deficiency in service on the part of opposite party?
- Relief and cost?
8. Point No.1 to 3
The first opposite party though filed version no affidavit is seen filed. The second opposite party filed application to implead himself as party to the complaint and as per the order in the IA 688/2022 the second opposite party impleaded in the complaint and accordingly he filed detailed affidavit in support of the first opposite party. But the first opposite party is not seen filed affidavit and the affidavit filed by second opposite party cannot be substituted the affidavit of the first opposite party.
9. The contention of the second opposite party is that he is concerned with the possession certificate claimed by the complainant and he is not concerned with other claims of the complainant. The second opposite party submitted that the property for which the complainant approached the opposite party to get possession certificate is at present in possession with the second opposite party and his brothers. There is Write Petition is pending before the Hon’ble high court as WP (C)12206/2022 in respect of the property. The second opposite party produced copy of the order also. The second opposite party further alleged that the complainant is regularly making applications before the various authorities suppressing material facts. He produced documents Ext. B1 to B9. In addition to that the district commission had dismissed the prayer of the complainant considering almost the same issue in C.C.No.141/2019 of CDRC, Malappuram.
10. The commission has gone through the entire documents produced by second opposite party. The documents shows that there is long pending civil dispute between the complainant and second opposite party regarding the properties. The same issue was considered in detail in C.C.No.141 of 2019 by CDRC. Now in this complaint also the nature of grievance of the complainant is that certain documents were demanded by the complainant before the first opposite party but it was not duly issued to the complainant. But the perusal of documents produced by the second opposite party appears that there is similarity in request on the side of complaint. The repeated request of similar type from the side of complainant led to pass a resolution by the directed board of panchayat as per Ext. B9.
11. The issue regarding the maintainability raised by the second opposite party is supported by documents. At the same, time there is no merit in the contention of the first opposite party in the version. The opposite parties contended that the complaint was dismissed in C.C.No.141/2019 due to statutory immunity of the first opposite party. Hence it is relevant to examine the maintainability of the complaint. It is definite that the statutory immunity is not the basis for the dismissal of C.C.No.141/2019 by DCDRC. The finding in CC141/2019 is as follows: -
“The commission finds that there is merit in the contention of the opposite parties. The root cause for this complaint is a civil dispute, and on that reason the opposite party made attempt to verify the document and it was found that the application of complainant cannot be allowed as prayed. The opposite party made attempt to verify the exact position and ultimately got the legal opinion from the government pleader also. More over the complainant produced number of documents which cannot be evaluated by this Commission in a summary proceeding. So, it will be proper for the complainant to seek remedy before appropriate authority considering the legal aspects. Hence, we find this complaint is connected with civil dispute and cannot be adjudicated by this Commission and so we dismiss this complaint with the liberty to complainant to approach appropriate authority for the redressal of grievance. The parties will suffer cost “. So it is clear that the complaint dismissed holding that the complaint related with a civil dispute and the opposite party therein established that they made attempt to verify the documents of the complainant and also got legal opinion and on that basis the commission dismissed the complainant with the liberty to approach appropriate authority for the redressal of grievance.
12. The first opposite party though not filed affidavit, filed version contenting that he is government servant working under department of revenue and all the actions are done in accordance with revenue act and statutory rules and so a complaint before Consumer Commission will not lie in the light of decision rendered by the National Consumer Disputes Redressal Commission in the matter of C.K.Mohanasundaran Vs K.U Gopaalakrishnan Nair rendered in the year 2016. It is further submitted that the complainant was given proper replies duly as per available documents and information. The perusal of version of the first opposite party appears that there is no specific denial of the allegation of the complainant. The allegation of the complainant is that he had applied for possession certificate on 12/04/2022 with No.70910492, he had applied location sketch on 13/04/2022 as per KL 10030903366/2022, he had applied location certificate on 23/04/2022, he had applied for Thandaper certificate regarding No.4120 dated 10/05/2022 and he had applied for survey on 27/06/2022 and required fee was remitted on 23/07/2022 as KL 10030910764/22. The first opposite party has not stated whether he had issued the relevant document or duly denied the same. There is no doubt, it is the right of complainant to get the documents or to get it denied duly. In this complaint there is no proper explanation from the side of first opposite party regarding the same. The first opposite party raised the question of maintainability in the version. Even in the absence of affidavit it is relevant to consider the question of maintainability raised by the opposite party in the version.
13. The Commission has gone the decision cited by the first opposite party in the matter of C.K. Mohanasundaran Vs KU Gopalakrishnan Nair. The case was originated from this commission itself and there was an order in favor of the complainant finding deficiency in service on the part of the opposite party. The opposite party went in appeal before the State Commission and the State Commission ratified the finding of the District Commission. But the opposite party preferred revision before the National Commission and the National commission set aside the order of the District Commission. The matter was related to a possession certificate and at the time of disposal of revision the complainant had obtained the possession certificate. But there after the decision of national commission, same issue has been considered by the apex court in detail and passed various orders. It is relevant to cite the decision rendered by the Hon’ble Apex Court in the matter of Punjab Urban Planning and Development Authority (now Glada) Vs Vidya Chethal, 2019 – 0 Supreme (SC)2021. The Hon’ble APEX court considered the definition “deficiency”, “service”, the term fee, tax and the sovereign function. The apex court was considering the correctness of judgment rendered in the case of HUDA Vs Sunitha (2005) 2 SCC 479. The apex court found that the entire functions of a government servant cannot be treated as sovereign function. Statutory authority providing service other than core sovereign duties, the Consumer Commission has got jurisdiction to deal with such service, unless statutorily exempted. The decision further quoted from the earlier decisions of apex court in the matters of Lucknow Development Authority case and Ghaziabad Development Authority case. It is held that the power of consumer Forum extend to redressing any injustice rendered upon a consumer as well over any malafide, capricious or any oppressive act done by a statutory body. The decision quoted as under: -
“6 …… thus, the law is that the Consumer Protection Act has wide reach and the commission has jurisdiction even in cases of service rendered by statutory and public authorities. Such authorities became liable to compensate for misfeasance in public office i.e., an act which is oppressive or capricious or arbitrary or negligent provided loss or injury suffered by a citizen.
…
Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission /Forum as statutory obligation to award compensation. If the Commission / Forum is satisfied that a complainant is entitled to compensation for loss or injury or for harassment or mental agony or oppression, then after recording a finding it must direct the authority to pay compensation and then also direct recovery from those found responsible for such unpardonable behavior“. The said decision further discussed the distinction between fee and tax which was considered in the matter of Commissioner, Hindu Religious Endowments, Madras Vs Sri Lakshmindra Thirtha Swamiar of Sri. Shirur Mutt 1954 SCR 1005, a seven-judge bench of the Supreme Court held that “46. Coming now to fees, a “fee” is generally defined to be a charge for special service rendered to individuals by some government agent. The amount of fee levied is supposed to be based on the expenses incurred by the government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken for the varying abilities of different recipients to pay [ vide Lutz on public finance, p.215} These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases.
47…… The distinction between a tax and a fee lies primarily in the fact that a tax is levied as a part of a common burden, while a fee is a payment for a special benefit or privilege. Fees confer a special capacity; although the special advantage, as for example in the case of registration fees for documents or marriage licenses, is secondary to the primary motive of regulation in the public interest [vide Findlay shirras on science Finance. Vol.I, p.202]. Public interest seems to be at the basis of all impositions, but in a fee, it is some special benefit which the individual receives”
The apex court held that the exactions, like tax, and cess, levied as a part of common burden or for specific purpose, generally may not be amenable to the jurisdiction of the consumer Forum. However, those statutory fees, levied in lieu of service provided, may in the usual course be subject matter of Consumer Forums jurisdiction provided that there is a “deficiency” in service etc.
14. Considering the averments in the complaint, we have no doubt that the complaint against first opposite party is maintainable and the Commission has got jurisdiction to entertain the complaint.
15. The first opposite party did not file affidavit in support of his contention. The second opposite party filed affidavit which appears crucial in this complaint. The second opposite party contented that a writ petition is pending before the Honorable high court and there is an order of status quo in the matter. The second opposite party submitted that the complainant is a party in the writ petition and the same is related with the property for which the complainant sought possession certificate from the first opposite party. The second opposite party further contented that he and his brothers are in possession of the said property. If there is any fact in the contention of second opposite party, the complainant approached this commission suppressing the true facts. The second opposite party produced documents B1 to B9 in support of his contention. We do not find any reason to disbelieve the veracity of these documents. The complainant also silent about the documents B1 to B9. The averments in the complaint, version, and affidavits reveals there is dispute between the complainant and second opposite party. The fact that pending writ petition before Honorable high court reiterate the finding in cc 141/ 19 that the proper forum for agitating grievance of the complainant is not the consumer commission but is the appropriate civil jurisdiction.
16. We need not mention the cardinal principal of seeking justice to be with clean hands and true facts. We find there is suppression of facts in this complaint and involved serious allegations and manipulation of documents which even led to mention the court, Aameen. Hence, we are not inclined to pass any order in this complaint, but the complainant is at liberty to approach appropriate authority and thus the complaint stands dismissed.
Dated this 28th day of April , 2023.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A14
Ext.A1: Copy of application for possession certificate dated 12/04/2022.
Ext.A2: Copy of application for location sketch dated 13/04/2022.
Ext A3: Copy of email for location certificate dated 23/04/2022
Ext A4: Copy of application for Thandaper in respect of No.4120 dated 10/05/2022.
Ext A5: Copy of email application for survey dated 27/06/2022.
Ext.A6: Copy of direction issued to remit fee dated 23/07/2022.
Ext.A7: Copy of complaint dated 24/08/2022.
Ext A8: Copy of government circular dated 16/07/2015.
Ext A9: Copy of first appeal submitted before Thahsildar dated 29/08/2022.
Ext A10: Copy of reply on application submitted under service Act dated 03/09/2022
Ext.A11: Copy of application submitted by second opposite party dated 01/10/2022.
Ext.A12: Copy of Right to information Act information dated 25/10/2022.
Ext.A13: Copy of reply on Right to Information Act application submitted on 25/10/2022.
Ext.A14:Copy of application submitted by the second opposite party submitted
before the CDRC , Malappuram.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B9
Ext.B1(a): Copy of order in WP ( C ) 12206/2022 (A) dated 06/04/2022.
Ext B1 (b) Copy of order in WP ( C ) 12206/2022 (A) dated 28/09/2022.
Ext.B2: Copy of order in C.C.No.141/2019 CDRC, Malappuram dated 25/03/2022.
Ext.B3: Copy of f version submitted by OP 1 and 2 in C.C. No.141/2019 CDRC,
Malapapuasm dated 06/11/2019.
Ext.B4: Copy of document in E.P.99/2019/OS 2021988 Dated 29/01/2020.
Ext.B5: Copy of letter issued by VO to Mr. Rarankandath aboobakcker dated
09/03/2020.
Ext.B6: Copy of Instructions of VO Thavanur issued in the matter W P ( C ) 26991/21,
High court of Kerala.
Ext.B7: Copy of location sketch issued by V O Thavanur dated 17/03/2022.
Ext.B8:a) Copy of notice issued in G17234/20 from Thaluk office Ponannai dated
5/02/2021
Ext.B : b) Copy of proceedings of Ponnani Tahasildahr (Land RECORDS) In G1 7234/20
dated 26/11/2021.
Ext.B9: Copy of proceedings of Grama Panchayath Tavanur dated 31/01/2020.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
VPH
