State Consumer Disputes Redressal Commission
Talkatora Garden Morning ... vs New Delhi Municipal Corporation on 4 January, 2007
IN THE STATE COMMISSION:DELHI (Constituted under Section 9 clause(b)of the Consumer Protection Act, 1986) Date of Order: 04-01-2007 Complaint Case No. CC-43/2005 1. Talkatora Garden Morning Walkers Association, Through its President Shri Mahender Rai, R-515, New Rajinder Nagar, New Delhi 110060. 2. Shri Brij Mohan Sharma, Member of Talkatora Garden Morning Walkers Association, R-515, New Rajinder Nagar, New Delhi 110060. 3. Shri Vijay Rajput, Member of Talkatora Garden Morning Walkers Association, R-515, New Rajinder Nagar, New Delhi 110060. 4. Shri Rajesh Gupta, Member of Talkatora Garden Morning Walkers Association, R-515, New Rajinder Nagar, New Delhi 110060. 5. Shri M. Madasami, Member of Talkatora Garden Morning Walkers Association, R-515, New Rajinder Nagar, New Delhi 110060. . . . Complainants Versus 1. New Delhi Municipal Corporation, Through its Chairman, Palika Kendra, New Delhi 110001. 2. Secretary, New Delhi Municipal Corporation, Palika Kendra, New Delhi 110001. 3. Director (Horticulture), New Delhi Municipal Corporation, Palika Kendra, New Delhi 110001. 4. Deputy Commissioner of Police (New Delhi), Police Headquarters, I.P. Estate, New Delhi 110002. 5. Station House Officer, P.S. Mandir Marg, New Delhi. . . . Opposite Parties CORAM Justice J.D. Kapoor, President Mahesh Chandra, Member 1. Whether Reporters of local newspapers be allowed to see the judgment? 2. To be referred to the Reporter or not? ORDER
Justice J.D. Kapoor
1. This is a complaint filed under Sec. 12 of the Consumer Protection Act, 1986, by the Talkatora Garden Morning Walkers Association in their capacity as consumers of various services rendered by the Opposite Party NDMC in this park. They come from far and near to inhale oxygen but instead they inhale foul smell of stagnant water, stink and stench of heap of garbage that attract birds and stray dogs. In their words, the garden becomes a tiny hell for morning walkers and picnickers.
2. New Delhi Municipal Corporation (NDMC) is maintaining large number of parks, gardens and stadia in the New Delhi area. Thousands of people frequent these parks as morning walkers, tourists, for picnic purposes. Certain portions of these parks have been ear marked as playfield for various outdoor games. It is common knowledge that in this capital city very few places are available for players who aspire to become the future pride of this country and that is why one of such garden viz. Talkatora Garden has a play filed for hundreds of young men and women of the city and is thronged by hundred and thousand of players. This garden has a large row of beautiful fountains, artificial fall, open-air theatre and is a sort of ornamental garden and hot spot for tourists and picnickers.
Other such parks / gardens are Lodhi Garden and Nehru Park. They are the lungs of this beautiful part of the city.
3. Here is a local authority having the obligations to maintain these parks and gardens and protect its property, but in the case of Talkatora Garden, and may be in other parks also, it has adopted a cavalier, insensitive and indifferent attitude that manifestly demonstrates its deficiency in the service causing immense mental agony, physical discomfort to thousands of users of this park who are mainly the morning walkers. Unhealthy and stinking environment it creates; on days when huge marriage parties, Melas and several private and public events are held, on the atmosphere and environment, the aftermath it leaves is horrible.
4. The instant case is a case where the Chairman NDMC and the Director (Horticulture) have allowed the public property of several lakhs being taken away by thieves and unscrupulous elements. A very huge quantity of high raised iron grills were being removed from the boundary walls of Talkatora Garden / Park for months together under their very nose and whenever the complainants in this case brought this to the notice of the Chairman and other functionaries of NDMC, they turned blind eye as if the staff of NDMC was a party to this unauthorized act and connived with these elements so as to give pecuniary benefits to them and also to themselves by constructing a fresh boundary wall at the cost of huge public expense.
5. So much so, the playing field which was being used by thousand of young men and women for decades was truncated and put on commercial use by allowing private functions, marriages etc. to be held inspite of the fact that there was already an earmarked area for holding these functions. Some of the complaints made by the complainants to the Chairman, NDMC and the inaction on the part of the Chairman and other functionaries for years together bear testimony and project as if the fence itself was grazing the field or the field itself was eating the crop. One such letter is dated 23-07-2004 sent by the President of the Complainants Association. The extracts of the letters are as under:-
The garden from last one year is being maintained very poorly. There is no regular drinking water supply. Nor fountains have functioned for even a single day throughout this season. There is a waterfall in the west of the Garden, not to mention, it never functions, but stable water in its pond is seldom cleaned. Garbage- like stink of this can be felt 100 of meters away. While passing through that stretch we feel sometimes that we are not coming here for fresh oxygen but to have that bad smell of stagnant water.
Garden is becoming unsafe day by day. Most of the iron grills have been stolen by the thieves. There is no safety from the ridge side of the Garden. Madam, it is a matter of great concern and investigation that how such big iron grills were removed from its boundary walls? I feel it is not possible to remove them without the connivance of NDMC staff who are there to protect the Garden property.
The garden becomes hell for morning walkers even as early as 7.30AM in the morning. All kind of so-called couples (lovers) come to Garden and occupy prominent spaces and benches meant for elderly and ladies. There is nobody to stop them doing ugly and obscene acts in public. All patience goes off when in the name of open society we see schoolgirls in their uniform with their so-called boy friends. Morning walkers are totally impatient and sometime they do intervene on their own and sometime the matter has also been reported to police but the situation is becoming worse day by day.
Madam, you are requested to take suitable action by ordering your Horticulture Department to maintain the garden to its dignity and give full power to your security staff to stop/check the unsocial elements roaming in the garden. Also please take action to prevent so called couples from entering the garden before 9.30 A.M. Kindly take action before it becomes a major law and order problem someday.
If you want some suggestions or help in maintaining the garden we are always ready to cooperate.
Thanks/Regards Sd/-
Mohinder Rai CC to-
1.
DCP, New Delhi
2. Director Horticulture, NDMC.
6. After three months, the President of the complainant Association wrote another letter, which is Ex.C-1 dated 15-10-2004, by way of reminder which is as under:-
Please refer to my letter dated 23-07-2004 on above said matter, in which I had mentioned the problem faced by the morning walkers and ill maintenance of Garden by Horticulture Department. It is deeply regrettable that no visible action has been taken till date in this regard nor any official of NDMC has contacted us on the matter. It seems that NDMC is taking the matter very lightly.
This is my request to you once again to look into the matter and initiate immediate restoration of Grills\Walls around the garden outer boundary walls alongwith the other problem mentioned in the letter.
Please do not force us to involve politicians or Court of Law into this matter.
Thanks/Regards, SD/- Mohinder Rai Encl: Photocopy of Letter dated 23-07-2004 CC to-
1.
Secretary, NDMC.
2. Director Horticulture, NDMC.
3. DCP, New Delhi
3. SHO, Mandir Marg.
7. The allegations of the complainants in brief are as under:-
The said garden has been used for organizing various functions by different individuals in lieu of payments made to O.Ps, e.g. marriages. It is significant to mention that when these functions are over, due to non-cleaning of the leftovers it becomes very difficult to take a walk in the garden as for days together these leftovers give foul smell which are hazardous for health and create nuisance. It is further significant to mention that the complainants and many other morning walkers as well as other visitors of the park come to the park for fresh air and not for the stench created by leftovers of a function. Even stray dogs, crows; vultures can be seen roaming in park at morning hours to feed themselves on these leftovers.
That the complainants are facing various hardships while taking a walk on the tracks of the garden and tried to draw the attention of O.Ps for poor maintenance and deteriorating law and order situation prevailing inside the Garden. The complainants on 23-07-2004 wrote a letter to the Opposite Parties appraising them about the existing conditions of the park including various difficulties faced by the complainants and other visitors of the park and requested them to take necessary actions so that one could take a walk inside the garden under hygienic conditions. The complainants wrote another letter dated 15-10-2004 and once again requested the O.Ps to take appropriate action but no action has been taken by them till date. A true and correct copies of letters by the complainants to O.Ps dated 23-07-2004 and 15-10-2004 are annexed herewith as Annexure-C1 (Collectively).
That the garden had been poorly maintained since last one year and there is no arrangement for drinking water inside the garden for quenching the thirst of the regular visitors and other persons which are similarly situated like present complainants. Even the fountains which were installed in the garden in order to provide drinking water facilities to the visitors do not function for a single day throughout the year.
That the pond side the garden has never been cleaned and emits a foul smell which can be felt even at a distance of 100 meters from the pond and while taking a walk in the vicinity of that pond walkers feel that they are not coming to the Garden for fresh oxygen but foul smell of stagnant water.
That the garden was fenced by iron grills from all sides in order to provide safety to the visitors, however, most of the iron grills were 6 ft in height and 1000 mtrs in length had been stolen by thieves due to inaction on the part of the opposite parties. In the absence of iron grills all kinds of unsocial elements come to the park from the rear side of the garden, i.e. towards ridge side and cause grave danger to the person and property of the visitors. Even the garbage dealers and rag pickers can be seen roaming inside the garden at any time of the day and incidents of chain snatching and eve teasing becomes common incidents of the day.
That the O.Ps had not replaced the stolen iron grills in order to provide safety and security of the visitors. The complainants had strong reason to believe that these iron grills must have been stolen with the connivance of the staff members of the O.Ps as it is almost impossible for an ordinary thief to remove such a huge iron grills and then transport it to other destination and while doing so he could not be noticed by any of the guards of the garden.
That due to missing iron grills many vehicles of the visitors had been stolen from the parking area of the garden. The visitors feel very unsafe to visit the garden as many incidents of murder and robbery had taken place inside the garden. It is significant to mention that the O.Ps had done very little or no effort to stop such incidents in the past.
That the complainants claim that a punitive penalty of Rs. 25,00,000/- should be imposed on the O.Ps for deficiency in service on account of inaction for recovering iron grills being its maximum cost and not replacing the same with other grills causing grave danger to the life and property of complainants as well as other visitors and the same amount would be required to be spent from public funds to re-install these grills.
That the complainants also claim a compensation of Rs. 25,00,000/- for themselves and other potential user for mental tension on account of fear cause by unsocial elements due to stolen grills and for not providing services like drinking water, toilet facilities, clean pond, proper sitting arrangement etc.
8. An application for bringing additional facts for the purpose of passing orders was filed by the complainants to the following effect:-
That the respondents are letting out the space in the Talkatora garden for various functions like marriage party or birthday celebrations which is supposedly used as a play ground for children.
However, there are other area in the said garden which are exclusively meant for organizing these functions but in order to generate extra income opposite parties are letting out play grounds as space for organizing various parties. The said practice on the part of respondent on the one hand deprive the young visitors from availing the facilities of play grounds for which they are otherwise entitled as per law and on the other hand causes much inconvenience to the morning walkers as well other visitors of the park. During celebration of these parties hardly any rule or guidelines with respect to prescribed schedule or timetable to start or end the party are followed. Moreover loud music without caring for any decibel level permissible under the law are played during these functions. Parties are allowed to continue till midnight and no arrangements are made to clean the area after the party for days together. The left over from eatables invite stray dogs and vultures for many days after the party and foul smell from leftover creates nuisance for nearby residents who are senior government officials and cause various hardships to the other visitors of the park.
9. Feeling exasperated, exhausted and disgruntled, the Association alongwith a few members of office bearers approached this Commission by filing the instant complaint seeking compensation and punitive damages of Rs.25,00,000/-.
10. On receiving this complaint, the Registrar of this Commission was appointed as Local Commissioner for on the spot inquiry, particularly, giving details of existing fencing, grills on the boundary walls. He availed the services of the Junior Engineer, PWD and went to the spot and made the inspection and submitted a very startling report. The Report is Annexure C-3 (Colly.) and duly verified by the Junior Engineer on the basis of physical verification at site.
As long as 6076.17 Sq. ft. iron grills were found to have been uprooted which could not have been done in a day, as it was a huge task.. Stacks of new bricks were found lying along the boundary wall, from where the iron grills were cut and removed. Besides this, the Registrar of this Commission and the J.E. (PWD) noticed that the condition of the park was in a very bad shape. Some of the observations of these officers are as under:-
(a) The fountains and the water corridors installed in the middle of the Garden were found totally dry not having even a drop of water. It was told by those who were present there that the fountains did not work for years together.
(b) Although a few sweepers were noticed sweeping the garden, yet, numerous heaps of dust and dry leaves were still lying here and there. A substantial part of the garden was bald and it gave a look as if no water was sprinkled over it since long. The grass covering some of the area of the garden was not properly irrigated. Also, no proper care of the cleanliness etc. of the Garden was found taken by the concerned authorities.
(c) Although in terms of the instructions inscribed on the Notice Board installed near the main gate of the garden, erection of tents etc. in the garden was prohibited, still some arrangements for holding a function in the green area of the garden were seen on the spot.
(d) A few (twenty-nine) snaps of different places in the garden were also taken.
These too are enclosed for the kind perusal of the Commission please.
11. So much so, they took twenty-eight (28) photographs in support of their Report.
12. The effect of such a neglect and remissness of the Chairman of NDMC was so devastating that the SHO, P.S. Mandir Marg was made a party because of his inaction in protecting the public property when the matter was brought to his notice and for that purpose the Deputy Commissioner of Police (New Delhi) was also impleaded as O.P. The SHO, P.S. Mandir Marg informed that an FIR No. 143/04 u/s 379/411 IPC was registered on the complaint of Const. S.Z. Abbas and accused Raju and Ab. Aziz were arrested and challaned. Again, FIR No. 426/04 u/s 379/411 IPC was registered on complaint of one Vishnu Dutt, Security Guard, NDMC and accused Chander was arrested and the case property was recovered from the possession of the accused and case is pending trial in the court. Another FIR No. 151/05 u/s 379/411 IPC, on the complaint of Puplish Yadav, Security Guard, NDMC, was registered and the accused Vicki Mandal was arrested and some of the case property was also recovered from him. SHO also informed that the division and beat staff had been briefed to patrol this park intensively to prevent theft as large number of thefts have taken place after the removal of these barriers/grills.
13. The Director (Horticulture), O.P.3, who is another officer responsible for the upkeep, maintenance and protection of the said property of NDMC, challenged the locus standi of the complainants to file the complaint on behalf of citizens of Delhi as according to him they are neither consumers nor they hired the services of the respondent, nor is the respondent NDMC a service provider.
14. On the allegations of theft of iron grills and other deficiencies, the Director (H) had to say as under:-
That the New Delhi Municipal Council is taking requisite care in maintaining the Talkatora Garden which is situated in its area. It is reported by its officials that railings from some part of Talkatora Garden were missing and immediately FIRs were lodged with the police. FIR No.143/04 dated 12-05-2004 and FIR No. 426/04 dated 28-10-2004 were registered at Police Station, Mandir Marg, New Delhi u/s 379/411 of IPC. Iron grills have been replaced by a huge brick masonry compound boundary wall and that the value of stolen iron grills is not Rs. 25 Lacs as alleged by the complainants but has been assessed by the O.P. at Rs. 2.5 Lacs approximately.
15. The Chairperson of respondent NDMC was given a choice to appear in person or to file the affidavit to inform this Commission in person as to the action and steps taken by her on the complaints of the complainants but she preferred to file the affidavit.
16. At the outset, we may mention that Order dated 12-05-2005 admitting the complaint and giving notice to the respondent was challenged by the respondent before the National Commission by raising the plea as to the locus standi of the complainants, as have been raised by the Director (Horticulture). Revision Petition filed by NDMC was dismissed by the National Commission with the following observation:-
Heard the Ld. Counsel for the petitioner.
We have also seen the ground of revision petition filed before us.
We see no reason to go into this Revision Petition as the petitioner can take all these defences / pleas before the State Commission.
Though, we are of the view that the State Commission before passing an interim order should have heard the petitioner, but since it seems to have been done in public interest, we refrain from passing any judgment on this point.
We are satisfied that in compliance with the direction given by this Commission an affidavit has been filed by the petitioner, vis--vis, completion of boundary wall and progress of work covering the manholes. A common man has a right to walk on trap free roads and open manholes are traps. Any person who is likely to suffer on account of such traps, is required to be protected by taking preventive measures without delay.
Normally, we will not like to entertain a revision petition against interim order, but we are unable to satisfy ourselves about the necessity and desirability to issue direction of the nature mentioned in Par 5 & 6 of the order passed by the State Commission, directing personal presence of the officers. In our view, this is not necessary. Consequently, the personal presence of these officers shall not be insisted upon at this stage.
With these observations, the petition stand disposed of and petition is directed to appear before the State Commission on 28-3-2006 alongwith written version taking all the defences and pleas which have been raised in Memo of Revision Petition before us and permissible in law.
With these observations, this petition stands disposed of in above terms.
17. In support of the plea that complainants are not consumers as they did not hire any service, O.P. relied upon the judgment of the Supreme Court and National Commission in 1996 (I) SCC 573 and II 1992 CPJ 363 (NC) to the effect that to enforce statutory obligations, one cannot approach the Consumer Forum and further that the assessment and collection of House Tax by MCD is not consideration for service rendered or to be rendered as there is no nexus between the service rendered and the tax collected by the municipality.
18. Few other judgments were also referred to and relied upon which are as under:-
(i) 1(992) CPJ 259 (267) NC Consumer Unity & Trust Society v. State of Rajasthan:-
A tax in its true nature, is a levy made by the State for the general purposes of the Government and it cannot be regarded as payment for any particular or special service.
While it is undoubtedly true that the Government in a Welfare State is under a duty to provide various forms of facility to citizens and the expenditure incurred thereon will have to be met out of the consolidated fund of the State, it cannot be said that a tax levied for the general purposes of the State constituted consideration for any specific facility, benefi6t or service provided by the State.
(ii) (JT) 1995 SC 787 V.P. Shantas case:-
Service should be paid for to attract the provisions of the Consumer Protection Act. In the instant case, there is no contract to render any service. The tax on one hand and the statutory obligations on the part of answering respondent are not inter linked. Tax is paid by some and not all. However, the statutory obligations are to be provided to all irrespective of such payment of tax. There should be a hiring of service to attract the provisions of the Consumer Protection Act as amended upto date.
(iii) 2000 (1) SCC 98, Regional Provident Fund Commission v. Shiv Kumar Joshi:-
The combined reading of the definitions of consumer and service under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words consumer and service as defined under the Act should be construed to comprehend consumer and services of commercial and trade oriented nature only. Thus, any person who is found to have hired services for consideration shall be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Sec. 2(1) (o) of the Act.
19. In our view, the ratio of none of the aforesaid judgments are applicable to this complaint as these mainly pertain to the House Tax etc. and not in the form of payment of taxes by all citizens at large for the purpose of maintenance of services of parks and gardens. In all the aforesaid cases an individual had sought remedy, against the non-fulfillment of statutory obligations of a local authority, as a consumer, whereas in the instant case, a voluntary Association of hundreds of persons, on its behalf and on behalf of numerous other persons having similar interests, has sought compensation on account of deficiency in service in respect of parks and gardens meant for morning walk, picnicking etc. Consumer has been defined in Sec. 2(1)(d) of the Consumer Protection Act, 1986 as under:-
Section 2(1)(d)(ii) defines consumer as under:
Consumer means any person who,
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires[or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires 1[or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.
Deficiency as defined by section 2(1)(g) of the Act is as under:
Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertake to be performed by a person in pursuance of a contract or otherwise in relation to any service.
20. Statutory obligation of these agencies is one thing, while the quality of services to be provided by these agencies is another thing. Quality of these services provided by these agencies qua the potential users has to be tested on the anvil of the standard prescribed by the Consumer Protection Act 1986. According to Sec. 2(1)(g) of the Consumer Protection Act, 1986, whenever there is any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service, amounts to offence of deficiency in service. The words, maintained by or under any law for the time being in force are of great significance and even include the statutory obligation of such bodies and agencies as well as services provided by them.
21. Civic bodies and local authorities may have certain statutory functions to discharge, whereas they provide certain services to the citizens at large which do not come under the statutory obligations of a service provider. For instance, they have the obligation to maintain public parks and not to create such conditions there that operate adversely to the citizens at large who visit these places regularly as morning walkers or for the purpose of picnic or tourists from other cities and if the conditions are so pathetic that it becomes difficult even to inhale pure air in the morning like in place of oxygen one inhales stink because of the leftovers and garbage left behind by marriage functions being held in these parks , particularly those parks, little portions of which is being regularly used for marriages and such other functions where noise pollution by blaring music and loud speakers is a perpetual cause of nuisance to the nearby residents.
22. Every citizen is a consumer in one form or the other as defined by Section 2(1)(d) of the Consumer Protection Act 1986. Any Authority, be it that of Government, or any department or civic agencies who provide services like road, electricity, water and their maintenance, traffic control through the source of public fund i.e. public exchequer contributed by the public by payment of various taxes are liable to compensate the citizens as to the loss, injury, mental agony and harassment suffered by them due to the deficiencies on the part of these agencies as these services are provided against consideration. For instance, bad roads or damaged road, water logging on roads, unhygienic and stinking conditions in the locality and animal menace on the roads, unauthorized commercial construction in the residential localities causing inconvenience to other residents and pressure on civic facilities meant for a locality or a colony, depriving the pedestrians from the use of pavements due to unauthorized encroachment on the roads, agony the motorists undergo due to avoidable traffic jams and snarls etc., as it is not only the constitutional right of every citizens to have these services without any deficiency but also they have right as consumers of these services for having qualitative life being potential users of such services against consideration.
23. However, the instant case is on much stronger footing as it is in respect of public parks / gardens, that allegations of deficiency in service have been made. Even if the users do not pay towards its maintenance, the expenses incurred on their maintenance are raised through several public sources of public property, government budget and budget of civic body, i.e. local self government body, which in no way is a budget or expenses incurred by a private individual, whose services an individual or a group of people may avail.
24. In this complaint the allegations and particularly the disturbing and shocking facts of theft of grills from the boundary walls that took place during the period of one year or so without any notice or action to prevent further theft was specifically referred besides several other deficiencies like non-clearance of leftovers and litters in the park after the functions of marriage parties etc. heap of garbage emitting foul smell and stench to the consternation and ill-health of the users of the park, particularly, the daily morning walkers and putting the portion of the park for illegal and impermissible use including the commercial purpose under the garb of public purpose have been made.
25. It appears that the NDMC has become more of an unscrupulous commercial establishment than the service provider to potential and numerous users of these parks and gardens and is, therefore, not only putting these parks particularly Talkatora Garden to indiscriminate use for marriage parties, private and public functions, melas and several other events day in and day out and the entire pressure of these functions and parties is borne by this park instead of other parks like Nehru Park, Lodhi Gardens or other parks being maintained by NDMC. Earning resources and revenues is a good thing but not at the cost of the citizens and causing miseries and nuisance to them instead of providing comfort and perfect service. For instance, NDMC has ear-marked a particular area for marriage purpose and holding other functions which even otherwise is not conducive to the nearby residents and morning walkers because of the leftovers of eatables, heaps of garbage, as these parties and functions have made their lives hell. Thousands of cars are parked outside in front of the residences nearby and the whole night the music and loud speakers blare without interruption or without any control by these authorities and the police.
26. The highly apathetic attitude of the Chairman of NDMC is projected by the allegation of its truncating the play field which is the only play field in the surrounding area, and young boys and girls from far off places frequent this play field for learning cricket and several other games.
This area has been truncated only for the purpose of holding marriages, melas and functions for which they already have an indoor stadium. They have turned this beautiful ornamental garden / park into a horrible place. They consider it as their personal fiefdom.
27. During the arguments, counsel for the complainants brought another disturbing fact to our notice where the local authorities or public authorities like NDMC, MCD and DDA etc. have usurped part of the park or the land of the public, of which they are custodians for maintenance, for the pleasures of their own employees by running clubs in the public parks under the garb of training institutes, though the public parks which they use are meant for public and not for their own personal benefits or for drinking and partying. This is another disturbing area that irks us immensely. If any public authority or civic body or government body wants to run a Club or Institute for the entertainment of their employees they can very well tell their employees to purchase the land by forming Association or any other private club but in no way they can be permitted to use public land or part of the park for any purpose whatsoever which pertains to the amusement or entertainment of their employees. If such a thing is allowed then every employer in the State Government and for that purpose Central Government will be entitled to allow its employees to use its land free of cost. These are neither the perks nor the service benefits of any employee of Government or local or civic bodies or Public Sector Undertakings.
28. The most disturbing and shocking fact as we have observed above was the blind eye of the Chairperson and the Director (H) to the day light robbery and theft of the very high iron grills running into hundreds of meters by uprooting them in such a manner which even otherwise was difficult as these were embedded so strongly in the cemented parapet walls. On the one hand, they have caused huge loss to the public funds and public exchequer, while, on the other, they had to incur unnecessary and avoidable huge expenses in filling up those gaps.
29. Allegations of the complainants have been fully proved not only by the spot and physical verification by the Registrar of this Commission, whose report has been duly certified by the Junior Engineer of the PWD, but also by photographs and affidavits of members of the Association and its President.
30. The Report of the Registrar as well as the Junior Engineer in respect of the conditions of the fountains, parks, pathways, and in respect of heaps of garbage supported by affidavits, persuade us to hold the NDMC and its Chairperson Mrs. Sindhu Shree Khullar and its Director (Horticulture) personally, jointly and severally liable towards the consumers at large for deficiency in service and making miseries for the people to frequent these parks and to live nearby and also indulging in unfair practices of putting ever nook and corner of the park for holding such events which are not to be held in public parks meant for walkers and picnic etc. The aftermath of these events and effect remains for days together and thereby force the consumers not to come to this park.
31. Our experience shows that government bodies, particularly civic agencies and the local authorities can afford inaction or remissness or criminal negligence and delinquency because they are not accountable to anybody partly being monolithic body and partly the delinquents being not burdened with personal liability. This phenomena has resulted in the failure of each and every institution of this country. Lakhs of citizens find themselves helpless and hapless as these officers and officials vested with the authority given to them by the law start considering themselves as overlord of the affairs and masters instead of servants of the public though they are known as public servants but in practice the public is their servants and they are their masters.
32. It is high time that these functionaries should be taught a lesson and told their duties and functions towards the public as well as the public institutions. In this case, we had given the choice to the Chairperson of NDMC, Smt. Sindhu Shree Khullar, to appear in person to explain her version or the action taken by her. She filed a very brief affidavit.
33. We want to make this case an exemplary case and eye opener for every civic body, public authority, government organization etc. who are engaged in the service for the public at large and also who are duty bound and have the obligations of maintaining service in the parks, gardens and public places and such like places in any manner as large sums are being ear marked for providing these services by these authorities and are spent and any short coming, fault, imperfection, or inadequacy in the quantity, nature and manner of performance occurs then they have to be dealt with strictly and punished for the offence of deficiency in service as defined under Sec. 2(1)(g) of the Consumer Protection Act, 1986.
34. While allowing this complaint, we pass the following orders and directions:-
i) We impose punitive damages of Rs. 25,00,000/- (Twenty Five Lacs) upon O.P.1, NDMC, to be deposited in favour of the State Consumer Welfare Fund (Legal Aid). Out of this, Rupees 5,00,000/- shall be recovered personally from the Chairperson of the NDMC and from the Director (Horticulture), NDMC, in equal shares by the Secretary of NDMC and shall be remitted in the account of NDMC. This will serve as deterrent and a lesson to the persons at the helm of affairs of the local or civic or government bodies who adopt highly indifferent, insensitive attitude towards the complaints of the complainants and for not protecting the public properties causing huge loss to the exchequer.
ii) O.P NDMC shall pay Rs. 25,000/- (Twenty Five Thousand) to the complainant Association as cost of the proceedings.
iii) NDMC is hereby restrained from holding any marriage function or parties or any other event in the premises of Talkatora Garden or for that purpose in any other parks maintained by it as the aftermath turns the place in a tiny hell due to stink and stench of leftovers, heaps of garbage and cause nuisance to the morning walkers, picnickers and tourists.
For this purpose, it may construct new Community Centres.
iv) NDMC shall restore the playing field in its original condition and shall not use this garden for any purpose like holding any Mela, functions or other event as these cannot be allowed to be a source of income by the O.Ps on the one hand and a source of nuisance for the morning walkers and others and nearby residents as these functions are held for days together, these parks cannot be used by morning walkers and the playfield by the players and other people who come for picnic or even as tourists as blaring music and loud speakers are used in these events throughout the night.
v) The Deputy Commissioner of Police concerned and the SHO of the area shall be responsible for seeing that this park is maintained and its property is protected and no marriage functions or parties or any other event are held.
vi) OP-NDMC and for that purpose every local authority, civic authority or Governmental organization like MCD, DDA is restrained from using any portion of any park or any establishment under its control, for which it is the custodian and responsible for maintenance, for the purpose or for the use of its own employees either under the name of club or institution. No portion of the park shall be used for any purpose other than the public purpose, i.e. allowing people for morning walks or games or for the purpose for which particular area is originally earmarked like open air theatre, swimming pools open for public etc. etc.
35. Any violation of these directions can be brought to the notice of this Commission by any citizen of the city; as all these parks are open to all the citizens for the purpose of morning walk or picnic and other physical activities etc. and shall be visited with heavy punitive damages and may be that the CEOs or the Officers of the Organization may suffer the consequences arising from the provisions of Sec. 27 of the Consumer Protection Act, 1986, prescribing minimum sentence of one month imprisonment or fine or with both.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member HK