Dr. Sau. Sandhya Arun Kulkarni & Anr vs Nagar Parishad Chandrapur & Anr

This appeal has been filed by the appellants, Dr. Sau. Sandhya Arun Kulkarni and another against the order dated 19.9.2013 passed by the State Consumer Disputes Redressal Commission, Maharashtra (for short, 'State Commission') in Consumer Complaint No. CC/08/02.

Brief facts of the case are that on 27.5.2004, appellants/ complainants moved an application for permission for construction on Plot No.85/2/1 and 85/2/2 before the respondent no.1/OP-1. OP-1 charged construction fees vide receipt no.304969 dated 16.10.2005 and on the same day Construction Start Certificate was issued. Complainants made request for revised plan on 28.12.2006. Due to encroachment, complainants made request on 29.10.2007 to remove encroachment on public road and construct the drains. Being aggrieved, complainants filed Complaint before Maharastra State Commission on 29.1.2008. on 26.2.2008, OP-1 issued the letter to complainants and communicated that revised plan application is rejected which was received on 27.2.2008. Complainants then filed Writ Petition No.1690/09 before Bombay High Court Bench at Nagpur and the same was decided on merits. The State Commission, Bench at Nagpur vide impugned order dated 19.9.2013 dismissed the Consumer Complaint No.2/2008.

Hence, the present appeal.

Heard the learned counsel for the parties and perused the record.

Learned counsel for the appellants stated that the State Commission has wrongly held that the appellants are not the consumers under the Consumer Protection Act, 1986 and the dispute raised by the complainants was not a consumer dispute. It was stated that all the approvals were obtained from the Nagar Parishad Chandrapur and the building was raised. Later on, the complainants applied for revised plan as they wanted to open a clinic there. There was no response from the OPs. Under Section 189 of the Maharashtra Municipal Councils, Nagar Panchayat and Industrial Townships Act, 1965 there is a provision of deemed approval beyond certain period of time. However, in the present matter the OPs rejected the revised plan on the basis that there was no road more than 9 mtrs. wide available for approaching the building site and accordingly, permission to open the clinic was also rejected.

The learned counsel stated that fees for sanction of the revised plan was also paid by the complainants and the service was required to be provided by the Municipal Authority, therefore, the complainants are consumers under the Consumer Protection Act, 1986. To support his case, learned counsel relied upon the judgement passed by this Commission in Bangalore City Corporation vs. Dr. Shankarappa, II (2006) CPJ 1 (NC). This Commission has observed as under:

"21. This contention was also considered by the State Commission in detail and rightly referred to para 4 of the judgment of the Apex Court in the case of Lucknow Development Authority Vs. M.K. Gupta (supra). In that paragraph the Court has, inter alia, held:

The legislative intention is thus clear to protect a consumer against services rendered even by the statutory bodies. The test, therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service even facility"

Learned counsel for the appellants further argued that the road width has become less wide because of the encroachment on the road and therefore, it was the duty of the OP-1 to remove the encroachment. Accordingly, the complaint was filed mainly for directing the OPs to give approval on the revised plan for opening of the clinic in the said building. It was also requested to direct the OPs to remove the encroachment. It was a clear cut consumer dispute as fees has been paid by the complainants and the services have not been provided by the OPs. As per the deemed provision under Section 189 of the Maharashtra Municipal Councils, Nagar Panchayat and Industrial Townships Act, 1965, the State Commission should have ordered the State Government to declare the revised plan as approved. However, the State Commission without entering into the legal aspect of this provision under Section 189 of the Maharashtra Municipal Councils, Nagar Panchayat and Industrial Townships Act, 1965 has dismissed the complaint. Learned counsel for the appellant further stated that there is a difference in a clinic and a hospital. The requirement of 9 mtrs. wide road is for hospital and permission could have been easily granted by the OPs for the clinic which does not require movement of that much public so as to need 9 mtr. wide road.

On the other hand, the learned counsel for the respondents who had the authority letter from the main counsel stated that it is not mandatory on the part of the OPs/Municipal Authority to approve the plan if the fees has been deposited. The plans are only approved if they are within the rules and regulations of the State Government as well as of the Municipal Authority. Deeming provision is only valid if the proposal is according to law and rules. However, in the present case, the proposal of revised plan could not have been approved as the bye laws provide that for a hospital, road of more than 9 mtrs. width is necessary in front of the building and the building in question is not on such a road. Therefore, the rejection letter was sent. The OP authority is performing only statutory function and from that angle the OPs are not the service provider and the complainants are not consumers. As the matter is already subjudice before the Hon'ble High Court, clearly the complaint was not maintainable before the State Commission and the State Commission has rightly dismissed the same. In support, learned counsel has relied upon the judgement of this Commission in Hira Lal Vs. The Administrator, Municipal Council, Bhilwara and others, First Appeal No.67 of 1992 decided on 21.10.1993, which lays down as follows:

"Consumer Protection Act, 1986 - Sections 2(1)(d ) and 2(1)(g) - Complainant-appellant submitted building construction plan to opposite party for sanction - Opposite party failed to return plan duly approved - State Commission dismissed complaint holding that it was not a consumer dispute - Appeal filed - Order of State Commission upheld.

I have given a thoughtful consideration to the arguments advanced by both the learned counsel for the parties and examined the material on record.

The complainants first of all got the approval for the building and later on applied for a revised plan and also sought permission from the OPs to run a clinic there. The main prayers made in the complaint are as under;

"1) Declare respondents no.1 & 2's services deficient.

2) Direct non applicant no.1 to sanction the revised plan submitted on 26/12/2006 give no objection certificate & permit to start clinic in the newly constructed building.

3) Direct Non applicant no.1 to remove all encroachment that are on mohalla Jatpura 1, Plot no.7, Block no.18, plot no.16 on available roads to applicants construct the drainage system and install "No encroachment" board."

First of all, the OP had already approved the original plan submitted by the complainants and there was no dispute regarding that. When the revised plan was submitted by the complainants, they also paid the fees accordingly. The fees is a pre-requisite with the application for sanction of the plan. Obviously, the plans are to be approved as per Master Plan of the area and under the guidelines issued by the State Government or under the Local Municipal Laws and Bye-laws. As the OPs have considered the application and have rejected the same, it cannot be said that the OPs have not provided service to the complainants. Hence, obviously the OPs cannot be declared deficient in service while rejecting the revised plan and the permission for the clinic. The learned counsel for the appellants has not shown any provision that a clinic will require less wide road as compared to 9 mtrs. wide road required for giving permission for a hospital.

However, this is a question to be dealt with by the Local Municipal Council and the State Government. This Commission would not be able to take a view in the matter. As the OPs have rejected the claim on the basis of bye laws of the Municipal Council, I agree with the argument of the learned counsel for the respondents that the deeming provision is only for those proposals which are according to law and are covered under the provisions of the bye laws of the Municipal Council. Proposals against rules cannot get the benefit of deeming provision as this provision has been made to help the public who are law abiding and want to proceed as per rules and regulations of the Municipal Authority. This is only to protect the consumers/general public of the local area against the alleged and perceived inefficiencies involved in functions of the Municipal Bodies. All these aspects have been dealt with by the State Commission by giving following observations:

"15. OP No.1 did not grant permission to run hospital to the complainants in view of Bye law No.15/1 of Standardize Building Byelaws of "A" class Municipal Council on the ground that the road available in front of the said building is less than 9 Meters. The map which is filed by the complainants, as approved by OP No.2 shows that no road having width of 9 meters or more is available in front of building of the complainants. As per case of the O.P.No.1, the provision of deemed permission is not available to the complainants as Sub section 6 of Sec.189 of Maharashtra Municipal Council, Nagar Panchayat township Act,1965 as it shows that grant of deemed permission should not be inconsistent with the provisions of said Act or any Rule or Bye Law for the time being in force, and that, therefore, the construction made by the complainant cannot be regularized by the O.P.No.1. The O.P.No.1 has also intimated to the complainants vide its letter dated 27/2/2008, regarding refusal of permission sought by them vide letter dated 28/12/2006. Nothing is placed on record by the complainant to show that refusal of said permission amounts to deficiency in service on the part of OP No.1.

It is also pertinent to note that the Hon'ble Bombay High Court, Bench at Nagpur in WP No.1690/09 filed by both the complainants against the State of Maharashtra, Municipal Council Chandrapur, Collector Chandrapur and Superintendent of Police, Chandrapur passed an order on 22/9/2011 directing the Municipal Council of Chandrapur to consider the representation of the complainants herein, if made within two weeks of that order and that said representation be considered in accordance with Standardized Building Bye Laws for "A" class Muncipal Council and in that event impugned communication dated 26/2/2008 shall not come in its way. It is also made clear in that order that if approach road/lane are found to be public lane/road and available to the petitioners, (complainants herein) for use as of right, the Municipal Council, Chandrapur shall take appropriate cognizance thereof, and if encroachment is noticed, proceed against it, according to law. We thus find that as direction has already been given in the said Writ Petition to the Municipal Council, Chandrapur, the complainants can not again seek a same direction under Consumer Protection Act."

I agree with the appreciation of facts and law by the State Commission. Moreover, the complainants have already gone to the Hon'ble Bombay High Court and the High court issued a direction to the OPs no.1 and 2 in this regard also. I agree with the observation of the State Commission that for the same set of remedies, once the matter has been considered by the High Court, the Consumer Forum will not have jurisdiction to attend to the complaint seeking the same relief.

Based on the above discussion, I do not find any merit in the first appeal filed by the appellants against the order dated 19.9.2013 passed by the State Commission in Consumer Complaint No. CC/08/02. Accordingly, the First Appeal No.874 of 2013 is dismissed.