State Consumer Disputes Redressal Commission
The Executive Office,Alanganallur ... vs V.Thangaraj,Madurai District. on 25 March, 2019
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IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MADURAI.
Present: THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER
THIRU.S.M. MURUGESSHAN, MEMBER
F.A.No.84/2016
(Against the order made in C.C.No.72/2014 dated 31.08.2016 on the file of
the District Forum, Madurai.)
MONDAY, THE 25th DAY OF MARCH 2019
1. The Executive Officer,
Alanganallur Major Town Panchayat,
Alanganallur.
2. The Assistant Director of Panchayat,
Madurai Region,
Madurai - 625 020. Appellants 1 & 2/Opposite Parties 1 & 2
-Vs-
V.Thangaraj,
S/o Vankatachalam Pillai,
No.7F/45, Thanichiyam Main Road,
5th Ward, Alanganallur Post,
Vadipatti Taluk,
Madurai District. Respondent/Complainant
Counsel for the Appellants-1&2/Opp.parties-1&2: Mr.S.Kandasamy, Advocate.
Counsel for Respondent/Complainant : Mr.A.C.Nambiraj, Advocate.
This appeal coming before us for final hearing on 18.02.2018 and
on hearing the arguments of both sides and on perusing the material records,
this Commission made the following:-
ORDER
THIRU.N. RAJASEKAR, PRESIDING JUDICIAL MEMBER.
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1. This appeal has been filed by the appellants/opposite parties under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the learned District Forum, Madurai made in C.C.No.72/2014, dated 31.08.2016, allowing the complaint.
2. The opposite parties, suffering by an order directing the 1st opposite party to provide uninterrupted water supply service to the complainant's house through the alternative way and to pay a sum of Rs.10,000/- as compensation for mental agony caused due to the deficiency in service on the part of the opposite parties and to pay a sum of Rs.2000/- towards costs to the complainant in the hands of the learned District Consumer Disputes Redressal Forum, Madurai (hereinafter referred to as District Forum) has preferred this appeal before this Commission.
3. The averments made in the complaint are briefly as follows:
The complainant has already got drinking water connection bearing No.549 for his house from the Panchayat and has been consuming the water for the past 14 years from the 1st opposite party panchayat. He has been regularly paying the water charges payable to Alanganallur Panchayat. While so, one Ramu son of Kamatchi and Dhanushkodi son of Sethu Naidu of Alanganallur disconnected the water pipe line on 23.06.2013 on their personal motive. Immediately, the complainant filed a consumer complaint before the 1st opposite party against the afore-said Ramu and Dhanuskodi for resumption of water supply and to take action against the above said persons for their unlawful activities. The 1st opposite party has not taken any action in this regard in time and failed to resume the water supply to the complainant. The complainant gave a petition before the District Collector, Madurai on the Grievance Day against the 1st opposite party for not responding the 3 complaint of the complainant and for resumption of water supply. Subsequently the 1st opposite party sent a reply vide Na.Ka.No.1041/2013 dated 08.08.2013 stating that the pipe line connection was given through the land belonging to Muthammal Wife of Dhanushkodi and as there is a case pending in O.S.No.151 of 2013 on the file of District Munsif, Vadipatti, they are not in a position to restore water supply to the complainant, but, they gave supply through the place of Panchayat and photo has been taken for that supply which is not correct and no water supply was resumed till date.
4. The 1st opposite party could not go to state that because of pendency of some civil cases, they were unable to resume the water supply. There is no specific case pending for disconnection of water supply or with regard to the objection in respect of the water connection. The pending disputes are with regard to the false claiming of right in some other properties in the area which are not connected to the water tap connection of the complainant. The complainant was enjoying the water supply for the past 14 years on payment of water charges. He is availing the services of opposite parties on payment.
5. It is the duty of the 1st opposite party to ensure the water supply to every citizen and to regularize the same whenever any complaint is received. In spite of providing necessary accessories such as water tap, pipe and fittings by the complainant himself, the 1st opposite party failed to give water connection and water supply ought to have been effected in any other alternative way. The 1st opposite party on some pretext or other willfully and wantonly refused to resume the water supply connection to the complainant. The 2nd opposite party is added as a formal 4 party who happened to be the higher officer of the 1st opposite party and the District Officer of the concerned department.
6. The complainant is suffering for the past 5 months without any water supply. He is put into mental agony, strain and suffering also. The right of water supply, drainage facility and electricity service connection to the citizen cannot be curtailed in any manner at any time. The 1st opposite party has to compensate the complainant some personal capacity also for the mental agony caused to him and directing the opposite parties to restore water supply connection and to ensure uninterrupted water supply to the complainant's house at No.7F/5, Thanichiyam Road, Alanganallur Post under water connection No.549, and directing the 1st opposite party claim a sum of Rs.1,00,000/- as compensation for the mental agony due to deficiency in service and to pay a sum of Rs.5000/- as costs to the opposite party by the 1st opposite party.
4. The contention of the opposite parties in their written version is as follows;- The appellants/opposite parties registered the complaint by filing written version and proof affidavit with documents contending that there was no deficiency in service on the part of the opposite parties. The respondent/complainant is not a consumer as defined under the Consumer Protection Act, as the relationship between the complainant and the opposite parries is not with that of consumer and the service provider and as such the disputes between the parties cannot be termed as consumer dispute under the purview of Consumer Protection Act.
5. The Leaned District Forum, after taking into account of the evidences adduced by both parties, held that there was deficiency in service on the part of the opposite parties and allowed the complaint by its order, dated 31.08.2016 directing 5 the 1st opposite party to provide uninterrupted water supply service to the complainant's house through the alternative way and also to pay a sum of Rs.10,000/- as compensation for mental agony caused due to the deficiency in service and Rs.2000/- towards costs to the complainant.
6. Being aggrieved against that order, passed by the Learned District Forum, the opposite parties challenged it by filing the appeal in the year 2016 before this Commission by contending that the complainant is neither a 'Consumer' nor the appellants/opposite parties are the service provider rendering any service to him. Therefore, the complaint is not maintainable. The complainant has enjoyed water supply/service through water service connection No.545 and the water connection was given from the main line at Thanichyam Police station and the pipe line laying towards the complainant's home through the particular passage as required by the respondent/complainant was interrupted and resisted by the neighbours of the complainant claiming over the right of passage due to the resistance of the neighbours, non-cooperation of the neighbouring owners of the complainant for the pendency of civil disputes between them and the respondent/complainant with regard to the declaration of property right and the passage rights are under sub- judice and the appellants/opposite parties could not find out the feasibility to lay the pipeline and supply service connection to the respondent/complainant through the particular disputed passage as sought by the complainant. The payment of property tax or water tax cannot constitute payment of 'consideration' for hiring or availing a service of the Municipal Board. In such cases, the person getting the water supply is not a Consumer.
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7. Points for consideration is:
Whether the order passed by the Learned District Forum, Madurai is sustainable under law or not?
8. Point:- Admittedly, the complainant has enjoyed the water supply through the service connection No. 545 given by the opposite parties. Now three civil suits were filed before the District Munsif, Vadipatti and the suits are still pending. In the above civil suits plaintiffs claiming title over the piece of land in which underground pipe line was installed. Therefore, that piece of land not belongs to Panchayat Board or the complainant and dispute is in sub-judice. The complainant enjoyed the pipe line connection only from the year 1999. He lodged a complaint in the year 2014 at the time of complaint he enjoyed water connection for 14 years, he has stated in the complaint that he has enjoyed it for 14 years. The complainant has not produced the document for the enjoyment of 14 years. So, as per the available records produced by both parties, the complainant enjoyed the water connection for considerable period. The complainant is also one of the parties in the civil suit which is pending before the District Munsif, Vadipatti so the ownership of the piece of land is under sub-judice.
9. The counsel for the appellants/opposite parties (Government Pleader) would contend that the relationship between the complainant and the opposite parties dloes not come under the purview of the Consumer Protection Act. Mere payment of water charges would not come under the purview of consideration under Consumer Protection Act by relying upon the following citations: 7
(1) 1999 (3) CPR 468 - State Consumer Disputes Redressal Commission, Tamil Nadu, Chennai - in the case of The Superintending Engineer, TWAD Board -Vs- Kamala Bai & Others. (2) 1999 (3) CPR 355 - State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow - in the case of - Nagar Palika Parishad, Bulandshahr -Vs- Man Mohan Lal Saxena -
"Consumer Protection Act, 1986 - Section 2 (1) (d) - Water supply by Municipality - Water tax or property tax paid by a person cannot be taken as consideration for service - If licence fee is taken or charges are paid then Municipality would be under a legal obligation to supply water - Complainant had not filed any receipt to show that he was paying water charges -
Complainant could not be held consumer and impugned order of District Forum directing supply of water to complainant's house and awarding compensation was unsustainable.
9. It was held in the above citations relied on by the Learned Government Pleader payment of water tax does not come under the category of payment of consideration and also the relationship of consumer and service provider not existed between the parties which are squarely applicable to the present appeal. Even though, the citations were pronounced by the State Consumer Disputes Redressal Commission. But, the appeals were disposed off by the State Commissions by following the findings of National Consumer Disputes Redressal Commission reported in Part- I (1994) CPJ 99 (NC) = 1994 (1) CPR 87 (NC) - in the case of - Mayor, Calcutta Municipal Corporation -Vs- Tarapada Chatterjee & Others 8 and Part- II (1996) CPJ 89 - in the case of Dinanath Arora -Vs- Govind Prasad Agrawal & Others. When the finding of the State Commission is only on the basis of the decision of the Hon'ble National Consumer Disputes Redressal Commission, this Commission can also decide the appeal by considering the decision of the State Commission.
10. The complainant failed to produce any citations in supporting his case. This Commission ought to have considered the findings of the State Commissions in the above citations, it was held that payment of water tax would not come under the category of consideration under Consumer Protection Act and also the Municipal Authorities are not service provider, it was proved by the Learned Government Pleader in this appeal. At the same time, the respondent/complainant has not taken any steps to prove the maintainability of the complaint before the Consumer Forum by explaining how the payment of water tax would come under the category of payment of consideration for availing service provided by the Municipal authorities. When the complainant fails to discharge the burden of proof, he cannot claim any relief under the Consumer Protection Act.
11. Moreover the dispute with regard to the ownership of piece of land is under the sub-judice before the District Munsif Vadipatti thereby filing of suit is the reason for the disconnection of the water connection. The dispute with regard to the ownership of the land cannot decide before the Consumer Forum. The complainant also cannot claim any relief on the basis of pendency of the suits.
12. The Learned District Forum without considering these questions, the eligibility criteria and the nature of the disputes as to whether it comes under the purview of Consumer Protection Act or not? Whether the relationship of both parties 9 does come under the Consumer Protection Act? Hence, in our view, the District Forum without considering the above aspects, has erroneously come to the conclusion that there was deficiency in service and passed award in favour of the complainant which is liable to be set aside as it is not sustainable under law and point is answered accordingly.
4. In the result, the appeal is allowed by setting aside the order of the learned District Consumer Disputes Redressal Forum, Madurai made in C.C.No.72/2014, dated 31.08.2016 and the complaint is dismissed as not maintainable. There shall be no order as to costs in this appeal.
The Registry is directed to refund the mandatory deposit to the appellants/opposite parties with accrued interest thereon duly discharged in favour of the appellants/opposite parties.
Sd/-xxxxxxxxxx Sd/-xxxxxxxxxxx
S.M.MURUGESSHAN, N. RAJASEKAR,
MEMBER. PRESIDING JUDICIAL MEMBER.
Index: Yes/No
TCM/SCDRC/Madurai Bench /Orders/March/2019