Subhash Chandra, Presiding Member
1. This revision petition under section 21B of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order dated 11.05.2018 in First Appeal No. 270 of 2018 of the State Consumer Disputes Redressal Commission, Bench No. 1, Rajasthan, Jaipur (in short, the ‘State Commission’) dismissing the appeal of the petitioner against order dated 08.03.2018 of the District Consumer Disputes Redressal Forum, Ajmer (in short, the ‘District Forum’) in Consumer Complaint no. 74 of 2014.
2. The brief facts of the case, according to the petitioner, are that the respondent/complainant had filed an application for the conversion and regularization of her land measuring 8 bigha 19 biswa in khasra no. 435 which measured 14 bigha 15 biswa in total. The petitioner processed the case and demanded Rs 44,15,744/- which included Rs 20,30,000/- for internal development which was deposited on 20.12.2012. Thereafter, the respondent/complainant sought regularization of the balance land of 5 bigha 16 biswa through an application dated 14.01.2013 for which Rs 20,02,045/- was deposited on demand on 02.04.2013 inclusive of internal development charges of Rs 15,15,510/-. However, the respondent/complainant demanded a refund of Rs 33,45,510/- which was approved on 26.06.2013 and a cheque dated 27.07.2013 was prepared. Due to delay in the issuing of the cheque, the respondent/complainant filed a complaint before higher authorities on 12.09.2013 and by letter dated 04.10.2013 it was directed that in the absence of the signature of the Chairman, the Commissioner of the petitioner/ Nagar Parishad may sign the cheque. Accordingly, the cheque was deposited in the respondent’s account on 09.10.2013. The respondent filed a complaint before the State Commission in CC 74 of 2014 which came to be ordered in her favour disregarding the petitioner’s contention that the respondent/complainant was not a ‘consumer’ under the Act and that deficiency in service was not established on part of the petitioner. Delay in deposit of the cheque was ascribed to administrative delays and was due to the condition that in case the developer undertook internal development on his own, internal development charges would not be levied. As this had not been indicated initially, the petitioner had collected the development charges. The respondent/complainant had two schemes approved and sought retaining the land of 12.5% of one scheme and refund of both the schemes whereas 12.5% of land is to be retained as per the rules which required examination leading to delay due to administrative reasons. However, the amount was refunded without further delay. It is contended that the District Forum failed to appreciate the same and that the State Commission, which was approached in appeal, passed the impugned judgment dated 11.05.2018 based on surmises and conjectures. The orders of the lower fora are stated to be illegal and based on material irregularity as they disregard the material available on record and are, therefore, perverse. The petitioner states that the orders ignore the provisions of law and the conversion rules of agricultural land to residential and the administrative processes of the petitioner, which is a custodian of public money. Deficiency in service has been concluded erroneously as the petitioner (Nagar Parsishad) has not provided any ‘service’. It is also contended that the fora below acted without jurisdiction since the respondent/complainant is not a ‘consumer’ under section 2(d) of the Act and there was no dispute under section 2(e) since no service was provided under section 2(o). No allegations of mala fide have also been made against officials. The petitioner, therefore, prays for setting aside the orders of the State Commission and the District Forum.
3. I have heard the learned counsel for the petitioner and given careful consideration to the material on record. Despite service of notice none appeared on behalf of the respondents and continued to remain unrepresented and were, therefore, placed ex parte.
4. On behalf of the petitioner preliminary objections were taken that (i) the respondent/complainant was not a ‘consumer’ under the Act; (ii) the alleged dispute was not a consumer dispute; (iii) that there was no deficiency in service as the petitioner was a statutory body under the State and not a service provider; (iv) that the conversion of land is not a service but a requirement under the law and therefore the fora below acted without jurisdiction. On merits, it was argued that the delay in the refund was due to procedural issues in discharge of financial and administrative oversight. It is submitted that the respondent/complainant is not entitled to interest and therefore the order is contrary to law. Reliance is placed the judgment of the Supreme Court in S.P. Goel Vs. Collector, Stamps, Delhi in AIR 1996 SC 839 as per which the respondent/complainant is not entitled to refund and on Estate Officer & Ors. Vs. Charanjeet Kaur, AIR 2021 SC 4369 which held that municipal council was not a service provider and conversion of land was not a service. Reliance was also placed on this Commission’s order in C.K. Mohansundaran Vs. K.U. Gopalkrishnan Nair, II (2016) CPJ 78 NC to argue that since the complainant undertook to implement the internal development himself and refund was allowed as per norms, no interest was payable. It is also argued that the refund dated 26.06.2013 was contrary to para 9(II) of the policy notification dated 28.06.2010.
5. The arguments of the petitioner have been considered. The issue is whether the petitioner was guilty of deficiency in service with regard to the undertaking of the internal development works for which the requisite amount had been collected by the petitioner from the respondent/complainant. The reliance of the petitioner on S.P. Goel (supra) that the petitioner being a statutory body was outside the purview of the Consumer Protection Act since it does not render any service or makes the respondent/complainant a ‘consumer’ is not of help to him since it relates to deficiency in service in not registering a document (“Will”) or issuing a copy of it despite full registration charges having been paid. This judgment relies upon a subsequent judgment of the Apex Court in Lucknow Development Authority vs. M.K. Gupta, AIR 1994 SC 787 which considered the definitions of “consumer” and “service” under the Act and observed that the legislature “… expanded the meaning of the word further in the modern sense by extending it to even such facilities as are available to a consumer in connection with banking, financing, etc. Each of these are wide activities in day-to-day life. They are discharged both by statutory and private bodies. In absence of any indication, express or implied, there is no reason to hold that authorities created by the statute are beyond the purview of the Act.” The argument that the conversion of land from agricultural use to non-agricultural/residential use being a statutory function and therefore not a “service” is also relevant in the instant case which relates to refund of the charges deposited for internal development of the land in question. The respondent/complainant has not challenged the conversion charges or sought any refund or alleged deficiency in service in that regard. In view of the law laid down in M K Gupta (supra) the argument that the petitioner did not provide any ‘service’ cannot be appreciated.
6. From the records it is apparent that the petitioner has challenged the impugned order on the very same grounds which were raised before the District Forum as well as the State Commission in appeal. The concurrent findings on facts of these two foras are based on evidence led by the parties and documents on record. The present revision petition is therefore an attempt by the petitioner to urge this Commission to re-assess, re-appreciate the evidence which cannot be done in revisional jurisdiction. Learned counsel for the petitioner has failed to show that the findings in the impugned order are perverse.
7. This Commission, in exercise of its revisional jurisdiction, is not required to re-assess and re-appreciate the evidence on record when the findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the fora below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 21 of the Act is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.
8. The Hon’ble Supreme Court in Rubi (Chandra) Dutta (2011) 11 SCC 269 dated 18.03.2011 has held that:
“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”
9. Reiterating this principle, the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors (2016) 8 SCC 286 dated 02.08.2016 held:
“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”
10. The Hon’ble Supreme Court in its judgment dated 05.04.2019 in the case of T Ramalingeswara Rao (Dead) Through LRs & Ors Vs. N Madhava Rao and Ors, Civil Appeal No. 3408 of 2019 dated 05.04.2019 held as under:
“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”
11. The foras below have pronounced orders which are detailed and have dealt with all the contentions of the petitioner which have been raised before me in this revision petition. It is also seen that the orders of these fora are based on evidence on record. In view of the settled proposition of law that where two interpretations of evidence are possible, concurrent findings based on evidence have to be accepted and such findings cannot be substituted in revisional jurisdiction, this petition is liable to fail.
12. No illegality or infirmity or perversity is therefore found in the impugned order warranting interference of this Commission. The present revision petition is, therefore, found to be without merits and is accordingly dismissed.
