TAMIL NADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADRAS
Hon’ble Thiru Justice S.A. Kader,
President; Thiru R.N. Manickam & Dr. Tmt. Ramani Mathuranayagam, Members
P. DURGAPRASAD—Complainant
versus
THE CORPORATION OF MADRAS—Opp. Party
O.P. No. 319 of 1993—Decided on 11.10.1993

Headnote:Consumer Protection Act, 1986 - Section 17 read with Section 12 and Section 2(1)(g) Complainants father purchased vacant land On death Complainant and his sisters ceded to the estate of deceased - Subsequently hind with house purchased - Complainant and other Co. - Owners decided to pull down building and put up flats - Approval of opposite party obtained for demolition of building after paying necessary fees-Complainant approached MMDA for putting up new construction - Permission granted by MMDA on payment of development charges - Approval plan sent to opposite party - Complainant asked to furnish details by opposite party which were furnished - Commissioner did not dispose of application within statutory period of one month as laid down under Section 234 of MCMC Act - Undue delay caused by opposite party in disposing of application - Gross deficiency in service and negligence on the part of opposite party - Complaint filed for directing opposite party to release sanctioned construction plan - Opposite party resisted claim contending that complainant not a consumer and no service involved - Land purchased by complainants father taken over by Corporation for road purposes - Delay not willful or wanton but due to bona fide doubt as to title of site - No services for consideration - Complainant a consumer who has hired services of opposite party for sanctioning plan - Collector given patta to complainant and Co. - Owners - Title could not be impugned - Opposite party not produced any paper to show that land taken over by Corporation - No record shown that land acquired under land acquisition act Claim of corporation that land form part of private street totally untenable - Rejection of complainants application for building permission illegal, arbitrary and amounts to deficiency in service - Compensation awarded.

       Held: Every person who wants to put up a construction has to apply to and obtaine from the corporation, the necessary building permit for which necessary fees have to be paid. The Corporation is rendering service to builders in the matter of granting permission and the consideration therefore 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 therefore is deferred till the plan is sanctioned. The complainant is therefore maintainable. (Para 6)

       There is thus a clear and categorical admission on the part of the opposite party corporation in Exp. A2 Deed of sale that item No.1 belongs to the complainant and his co-owners. Exh. A 1 and A2 Deed of Sale clearly establish the title of the complainant and his co-owners to item NO.1 and items NO.2 respectively. Admittedly, the Collector has also given pal1a to th0 complainant and his co-owners in respect of both these items covering a tolal extent of 6,740 sq. fl. The title of the Complainant and his co-owners to these two items cannot be impugned. (Para R)

       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 item title to item No.1. But it has not chosen to do so with necessarily leads to an adverse inference.

       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. (Para 11)

       However in view of the fact that the lay out plans did not include Survey No. 5/2A, the claim of the Corporation that item NO.1 formed part of the private street in that layout 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. I involved in this case. (Para 12)

       It is not inviolable rule that the breadh 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. A1. Deed of Sale dated 8.7.1953 executed by Vajravelu Mudaliar in favour of the complainants 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 no. 1 and 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 8th cross street is not uniform in its breadth throughout its length and item No.1 has been projecting northwards beyond street 1argin on the eastern side of the street. It is obvious that item No. l 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. (Para 13)

       We have little hesitation in 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 up construction and for which he has applied for planning permission. The rejection of the complainants application for building permission is therefore illegal, arbitrary and amounts to deficiency of service and negligence. (Para 14)

       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. f1. 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. (Para 15)