P.Durgaprasad vs CORPORATION of Madras

THIS is a complaint under Sec.17 read with Sec. 12 of the Consumer Protection Act.

THE complainant''s father Mr. Polisetty Ramachandra Rao purchased an extent of 2,400 sq. ft. of vacant land being part of Survey No. 5/ 2A of Periakudal Village, Aminigikarai from one Vajravelu Mudaliar under registered deed of sale dated 8.7.1953 and was in possession of enjoyment of the property. On the death of Mr. Ramachandra Rao his only son, the complainant his six sisters, and his mother succeeded to his estate. Subsequently by another registered deed of sale dated 17.4.89 an extent of 4,340 sq. ft. with a house bearing plot number 191, Second Main Road, West Shenoy Nagar, Madras-30 comprisedin Survey No. 14 of Periyakudal Village was purchased by the complainant and his six sisters from the opposite party. THEse are two adjacent plots and the total extent is 6,740 sq. ft. or thereabout and the entire extent has been in the possession of enjoyment of the complainant and his co-owners. THEy decided to pull down the building in plot No. 191 and put up flats. A power of attorney has been executed by the complainant''s co-owners in favour of the complainant for the purpose. THE complainant obtained the approval of the opposite party on 29.10.91 for the demolition of the building after paying the necessary fees. He then approached the Madras Metropolitan Development Authority for putting up a new construction. THE M.M.D.A. gave the complainant, the permit in its No. Bl/4965/92 dated 10.8.92 on the complainant paying a sum of Rs. 53,700/- towards development charges and security deposit on 16.7.92 under Receipt No. 41801. THE approved plan was then sent by the M.M.D.A. to the opposite party for the issue of building permit. According to the complainant, the Junior Engineer, Assistant Engineer, Executive Engineer, City Engineer, and the Deputy Commissioner, Corporation of Madras approved the same and it was finally sent to the Commissioner for its sanction. THE complainant was called upon to furnish certain details by the opposite party by its letter dated 13.8.92 and the complainant furnished all the particulars in the first week of September, 1992. But the Commissioner, Corporation of Madras did not dispose of the application within the statutory period of one month as laid down under Sec. 234 of the Madras City Municipal Corporation Act. Though under the Provisions of the said Act, the building plan must be deemed to has been sanctioned, the complainant waited for an order from the Commissioner, as it was difficult to convince the intending purchasers without the approved plan. It is further submitted by the complainant that after the approval of the plan, the complainant has to pay for the necessary fees for the building permit and the other charges. He is therefore a consumer within the meaning of the Act and the undue delay caused by the opposite party in disposing of the application has caused great hardship to him. THEre was gross deficiency of service and negligence on the part of the opposite party and hence this complaint for directing the opposite party to release the sanctioned construction plan forthwith and pay compensation in the sum of Rs. 6,00,000/- towards loss in business, mental agony and reputation. The opposite party has filed a counter resisting the claim. It is contended that the complainant is not a consumer and no service is involved. It is further contended that the extent of 2,400 sq.ft. in Survey No. 5/2A in Periyakudal Village purchased by the complainant''s father under registered Deed of Sale dated 8.7.53 was taken over by the Corporation of Madras on 31.1.1950 and it is Corporation land left for road purpose. The complainant has therefore not derived title to the said property. The opposite party sent objection to the M.M.D.A. against the grant of complainant''s Planning Permit in respect of land including the extent of 2,400 sq.ft. mentioned above. The complainant has obtained from the Tehsildar patta to an extent of 6,740 sq. ft. including the Corporation Land of 2,400 sq. ft. and the Corporation has sent an objection dated 26.12.91 to the Collector for cancellation of the patta. It is admitted that the Commissioner has to dispose of the application for building permit within 30 days as per Sec. 234 of MCMC Act, but the application was not disposed of. The Standing Committee which is now the Special Officer has to dispose of the application within 30 days from the date of receipt of the application from the complainant and as the complainant has not given any such application as per Sec. 240 there is no deeming sanction of building permit. The land in which the building is proposed to be constructed does not belong to the complainant. The building permit application is liable to be rejected as the complainant is not the title holder of the entire 6,740 sq. ft. and the complainant is having title to an extent of 4,340 sq. ft. only and the remaining 2,400 sq. ft. belongs to the Corporation. The building permission application of the complainant was refused by the opposite party in its notes order dated 5.6.1993 and the refusal order was prepared and obtained on 16.7.93 and order was passed in W.D.C. No. CE/ 368/92 dated 20.7.93. It was despatched to the complainant on 23.7.93. The delay, if any in passing the order is not wilful or wanton, but due to the bonafide doubt as to the title to the site for which the building permit was sought. It is further averred that no amount has been collected by the Corporation for the service towards building Licence fee or scrutiny fee. The service charges will be received only when the building permit is issued. There is therefore no service for consideration on a deferred payment. The complainant is not in any way prejudiced and he has not therefore incurred any loss The claim for compensation in the sum of Rs. 6,00,000/- is untenable.

Exhs. A1 to A19 and Bl to B6 are marked by consent. Proof affidavits are filed. No oral evidence has been let in.

THE points that arise for determination are: (1) Whether the complainant is a consumer and whether the complaint is maintainable? (2) Whether there has been any deficiency of service or negligence on the part of the opposite party? (3) To what relief if any is the complainant entitled?

Point No. 1 : The complainant has applied to the opposite party for demolition of the building in the land belonging to him and his co-owners on payment of the necessary fees and the opposite party has granted the permission. After demolishing the building the complainant has applied to the Madras Metropolitan Development Authority for approval for putting up flats. The M.M.D.A. has approved the plan and send it to the Commissioner of the opposite party, Corporation for granting the building permit. Every person who wants to put up a construction has to apply to and obtained from the Corporation, the necessary building permit for which necessary fees has to be paid. The Corporation is rendering service to builders in the matter of granting permission and the consideration therefor is the fee collected from the builders. This fee is collected not at the time of the application, but immediately after the grant of permission. This is, therefore, a case where the payment of the consideration is deferred till the plan is sanctioned. The complainant is therefore a consumer who has hired or availed of the services of the opposite party for sanctioning the plan and the consideration therefor is deferred till the plan is sanctioned. The complaint is therefore maintainable.

POINT No. 2 : The complainant''s claims an extent of 6,740 sq. ft. partly in S. No. 5/2A and partly in S. No. 14 of Periakudal Village, Aminigikarai, Madras as belonging to him and his co-owners. They have decided to demolish the old building in the land and to put up multistoreyed flats. A Power of Attorney for that purpose has been given in favour of the complainant by his co-owners under Exh. A8 dated 9.10.91. Accordingly, the complainant has applied to the opposite party Corporation, first for the demolition of the building and paid the necessary fee therefor of Rs. 5,445/- under Exh. A9 Challan dated 28.10.91. The opposite party Corporation of Madras has granted the permission for demolition under Exh. A10 dated 29.10.91. After demolishing the building, the complainant has applied to the Madras Metropolitan Development Authority for planning permission for putting up a new construction and a sum of Rs. 53,700/- (Rs. 2,700/- towards development charges and Rs. 51,000/- towards security deposit), has been paid by the complainant to the M.M.D.A. under Exh. A-11 dated 16.7.92. The M.M.D.A. has given the permit to the complainant in its letter under Exh.A12 dated 10.8.92 and forwarded the approved plan to the Commissioner of the opposite party Corporation for issuing the building permit. The Assistant Executive Engineer of the opposite party Corporation has called upon the complainant under Exh. A13 dated 13.8.92 to furnish certain particulars. According to the complainant these particulars were furnished in September 1992. But till the filing of the complaint on 5.7.93, the opposite party has not passed any order. Though the application for building permit under Sec. 234 of the City Municipal Corporation Act shall be deemed to have been granted when the application is not rejected within the statutory period of one month, the complainant wanted to get the permit from the Corporation, as it would be difficult to convince the intending purchasers without the permit. Since the building permit was not forthcoming, he filed this complaint on 5.7.93 for directing the opposite party Corporation to issue the permit and pay damages. Subsequent of the filing of this complaint, the opposite party Corporation has passed an Exh. B6 order dated 20.7.93 refusing the building permit though the planning permission has been issued by the M.M.D.A. on the ground that (1) the plot extent furnished by the applicant included Corporation land and (2) the patta issued by the Tehsildar is not in order as the Corporation land is also included in the patta. We have now to consider whether this reasoning of the opposite party Corporation is sustainable or whether there has been any deficiency of service or negligence on the part of the opposite party in refusing the building permit to the complainant. We have given hereunder a sketch and the matter in issue may conveniently be discussed with reference to the said sketch. it is claimed by the complainants to have been in the possession of complainant''s father and subsequently the complainant and his co-owners. Item No. 2 is F, C, D, E which is part of S.No. 14 of Periakudal Village and is plot No. 191 in the lay out scheme prepared by the Corporation which has got the entire Survey No. 14 from the Bishop of Madras. Its extent is 4,340 sq. ft. The opposite party Corporation has sold this plot to the complainant and his co-owners under Exh. A2 Registered Deed of Sale dated 17.4.89. These two items lie side by side, item No. 1 in the north and item No. 2 in the south. It is significant that in Exh. Al Deed of Sale dated 8.7.53 in favour of the complainant''s father in respect of item No. 1, the southern boundary is shown as plot No. 191 i.e. item No. 2. In Exh. A2 Deed of Sale of executed by the opposite party, Corporation of Madras in favour of the complainant and his co-owners in respect of item No. 2, the northern boundary is shown as Survey No. 5/2A belong- N M A I N R O A D VIII CROSS STREET M A I N R O A D I ITEM 1 S.No. 5/2A Part ITEM 2 S.No. 14 Part Plot 191 Plot 192 The land shown as A, B, C, D, E, F, in the above sketch, is claimed by the complainant as belonging to him and his co-owners. It consists of two items. Item No. 1 is A, B, C, F, measuring 2,400 sq. ft. and forms part of S. No. 5/2A of Periakudal Village. This item has been purchased by the complainant''s father from one Vajravelu Mudaliar by and under Exh. Al Registered Deed of Sale dated 8.7.53. Eversinceing to the purchasers i.e. the complainant and his co-owners. There is thus a clear and categorical admission of the part of the opposite party Corporation in Exh.A2 Deed of Sale that item No. 1 belongs to the complainant and his co-owners. Exhs. Al and A2 Deed of Sale clearly establish the title of the complainant and his co-owners to 1 tern No. 1 & items No. 2 respectively. Admittedly, the Collector has also given patta to the complainant and his co-owners in respect of both these items covering a total extent of 6,740 sq. ft. The title of the complainant and his co-owners to these two items cannot be impugned. The case of the opposite party is that item No. 1 of an extent of 2,400 sq. ft. in S. No. 5/2A does not belong to the complainant and his co-owners, but it is Corporation property forming part of the 8th Cross Street and that the complainant and his co-owners have encroached upon this area. That is the reason for refusing to grant the building permit to the complainant. But in Exh. A2 Deed of Sale executed by the opposite party Corporation in favour of the complainant and his co-owners in respect of item No. 2 about which there is no dispute, the northern boundary is shown as the land of the purchasers in Survey No. 5/2A. This unqualified admission in Exh. A2 by the opposite party establishes beyond the ray of doubt that item No. 1 belongs to the complainant and his co-owners. At this juncture, it is pertinent to point out that the Corporation has referred the matter for legal opinion by its Counsel and the said opinion is in Exh. A19. The learned Counsel for the Corporation has gone through the Title Deeds and other documents and has come to the conclusion that the complainant and his co-owners have got title to item No. 1 by virtue of Exh. Al Deed of Sale executed by Vajravelu Mudaliar and to item No. 2 by virtue of Deed of Sale executed by the Corporation of Madras.

LET us now consider the claim of the opposite party to item No. 1 which is part of Survey No. 5/2A of Periakudal village. In the counter statement filed before this Commission, the claim of the opposite party Corporation is that this item was taken over by the Corporation from the Arch Bishop of Madras on 31.1.50 and it is the Corporation land left for road purpose. The opposite party has not produced even a scrap of paper to show the land or lands and the Survey Numbers which have been taken over by the Corporation from the Bishop of Madras. Nothing could have been easier for the Corporation than to produce these documents and establish its title to item No. 1. But it has not chosen to do so which necessarily leads to an adverse inference.

ANOTHER claim made by the opposite party is that this item No. 1 of an extent of one ground was acquired by the Corporation for road purpose in 1950 itself, and this claim is put forward in Exh. B5 letter dated 26.12.91 written by the Corporation of Madras to the Collector of Madras objecting to the grant of patta to the complainant for both these items. Here again, no record is produced by the Corporation to show that the land was acquired under the Land Acquisition Act for the purpose of formation of road. Hence this claim of acquisition must also fail. Another ground of title put forward is this. Item No. 1 has been purchased as already stated by the complainant''s father from Vajravelu Mudaliar under Exh. Al registered Deed of Sale dated 8.7.53. The said Vajravelu Mudaliar has submitted a lay out plan to the Corporation for approval and the plan has been approved by the Corporation oh 28.1.59. Similarly, one Rangachari has also submitted a lay out plan for approval and his plan has been approved on 31.12.58. Exh. B3(b) is the blue print of the lay out plan submitted by Vajravelu Mudaliar and Exh. B4(b) is the blue print of the lay out plane submitted by Rangachari. Both these plan are identical plans for approval. Under Exh. B3(a) and Exh. B4(a) the Corporation has taken over the private streets in that lay out plan and declared them as public streets under Sec. 219 of the City Municipal Corporation Act. According to the Corporation, item No. 1 formed part of one of the private streets in that lay out plan and it has now become a public street. Exh. B3(b) and Exh. B4(b) are the two blue prints of the lay out plans submitted by Vajravelu Mudaliar and Rangachari. These lay out plans clearly show that the lay out plan is only in respect of Survey No. 5/2,5/2B and 15 part of Periakudal Village. S. No. 5/2A is conspicuously absent. It is clear therefore that Survey No. 5/2A, of which item No. 1 involved in this case, forms a part is not the subject matter of the lay out. There is therefore no question of the complainant''s land in item No. 1 forming part of the lay out prepared by Vajravelu Mudaliar and Rangachari as the lay out plans are very clear on this aspect. Further, before the submission of the lay out in 1958 and 1959 the complainant''s father has purchased the first item under Exh. Al registered Deed of Sale dated 8.7.53 and hence neither Vajravelu Mudaliar not Rangachari had any right to include item No. 1 in the lay out plan. However in view of the fact that the lay out plans did not include Survey No. 5/2 A, the claim of the Corporation that item No. 1 formed part of the private street in that lay out and has been taken over by the Corporation and treated as public streets, is totally untenable. It is obvious that the Corporation itself is unable to find out a basis for its claim to item No. 1 involved in this case.

The opposite party Corporation of Madras which has failed to establish its claim to item No. 1 seems to have been carried away by the fact that this item No. 1 is projecting northwards from the southern street margin of the 8th Cross Street on the eastern side and consequently the breadth of the road north of item No. 1 is only 30 feet while it is 50 feet on the eastern side. It is to inviolable rule that the breadth of the road or street must be uniform throughout its entire length. The fact that item No. 1 is projecting northwards from the street margin on the eastern side is no ground to hold that this item is part of the road when the title to the said item is clearly established by the complainant by and under Exh. Al Deed of Sale dated 8.7.53 executed by Vajravelu Mudaliar in favour of the complainant''s father. It is now pertinent to refer to Exh.A18 Town Survey Sketch prepared in the year 1967 for block No. 10 of Periakudal Village, Madras Town. In the said sketch item Nos. 1 & 2 have shown together as one item in cross strips. We have marked this item in red. This item is projecting northwards beyond the margin of the street on the eastern side and 5 survey stones are found at A, B, C, D and E in the sketch mentioned above. It is clear that even in 1967, when this plan has been prepared, the 8 th Cross Street is not uniform in its breadth throughout its length and item No. 1 has been projecting northwards beyond street margin on the eastern side of the street. It is obvious that item No. 1 was not part of this 8th Cross Street even in 1967 and the claim of the Corporation that it forms part of the 8th Cross Street is belied by Exh. A18 Survey Sketch.

ON a consideration of all the above facts we have little hesitation4n concluding that item No. 1 belongs to the complainant and his co-owners and the Corporation of Madras has no right to any portion of the land in which the complainant has proposed to put of construction and for which he was applied for planning permission. The rejection of the complainant''s application for building permission is therefore illegal, arbitrary and amounts to deficiency of service and negligence. Point No. 3 : In view of our findings on point Nos. 1 & 2 it follows that the complainant is entitled to an order for directing the opposite party to issue the building permit to the complainant as applied for by him for the construction of flats in the land in question covering an extent of 6,740 sq. ft. On account of the deficiency of service and negligence on the part of the opposite party, the complainant has been put to much mental pain and agony in addition to the fact that he has suffered heavy loss in business on account of the delay. We think that the complainant is entitled to compensation in the sum of Rs. 50,000/-.

IN the result we order as follows : (1) The opposite party shall issue building permit to the complainant for putting up construction according to the plans submitted by him and receive the necessary permit fees therefor. (2) The opposite party shall pay to the complainant the sum of Rs. 50,000/- as compensation. (3) The opposite party shall also pay to the complainant costs of Rs. 2,000/-. (4) All the above directions shall be complied with within one month from today.

Complaint allowed with costs.