National Consumer Disputes Redressal
State Of Maharashtra & Ors. vs Shantaram Karbhari & Ors. on 23 September, 2010
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER
DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION
PETITION NOs. 1612-1698 OF 2010
(Against the order
dated 18.12.09
in Appeal Nos. 1871 to 1873, 1876 to 1884,
1866 to 1908, 1911 to
1924, 1926 to
1934, 1936 to 1940, 1942 to 1945, 1947 to
1949, 2295, 2296,
2298, 2299, 2301 to 2308
, 2311 to 2315/98 of the Maharasthta State
Consumer Disputes
Redressal Commission
Mumbai, Circuit Bench at Aurangabad)
1. State of Maharashtra,
Through the Secretary in the
Irrigation Department,
State of Maharasthra,
Mumbai-400 032
2. The Superintending Engineer,
Nashik Irrigation Circle,
District Nashik,
Maharasthra
3. The Executive Engineer,
Nashik Irrigation Diision,
District Nashik,
Maharasthra
4. Maharashtra Godawari
Marathwada
Irrigation Development Corporation
Jalna Road, At Post,
Distt. Aurangabad,
Maharasthra
........ Petitioner (s)
Vs.
1. Shri Shantaram Karbhari
Pangavhane,
R/o Mohegaon Deshmukh,
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
2. Parvat Vinayak Mutkule,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
3. Bhalchandra Shankar Girme,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
4. Santu Narayan Kale,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
5. Pundlik Rangnath Bornar,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
6. Shankar Bhagaji Kale,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
7. Babanrao Aabasaheb Ranshing,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
8. Sundarrao Prabhakar Kale,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
9. Bhausaheb Vishwanath Kale,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
10. Shashikala Madhukar
Deshmukh,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
11. Arjun Prabhakar Kale,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
12. Sharadchandra
Narayanrao
Deshkumkh
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
13. Sadashiv Sitaram
Dhekane,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
14. Suresh Sitaram Dhekne,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
15. Gajanan Sitaram
Dhekane,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
16. Prakash Sitaram
Dhekane,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
17. Ramesh Sitaram
Dhekane,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
18. Radhesham Sitaram
Dhekane,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
19. Achutrao P. Choudhary,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
20. Pratapsingh Narayan
Deshmukh,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
21. Pratapsingh Achutrao
Deshmukh,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
22. Achutrao Narayan Deshmukh,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
23. Jagannath Shankar
Warule,
R/o Kumbhari
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
24. Vishwanath Shankar
Warule,
R/o Kumbhari
Tq. Kopargaon,
Distt. Ahmednagar,
Maharashtra
25. Bhagwat Shankar
Warule,
R/o Kumbhari
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
26. Sow Vijayabai Jaganath
Warule,
R/o Kumbhari
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
27. Sow Sumatibai
Wishwanath Warule
R/o Kumbhari
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
28. Sow Shantabhai
Bhagwant Warule,
R/o Kumbhari
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
29. Rajaram Gopala Kale,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
30. Chandrabhagabai
Suryabhan
Pangavhane,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
31. Suryabhan Sampat
Thorat,
R/o Kolpewadi
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
32. bhima Sahirunath
Kolpe,
R/o Kolpewadi
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
33. Satish Govind Gondkar
R/o H-Shirdi, Tq. Rahata
Distt. Ahmednagar,
Maharashtra
34. Shivram Govind Gondkar
R/o H-Shirdi, Tq. Rahata
Distt. Ahmednagar,
Maharashtra
35. Savleram Kisan Argade,
R/o at Dharangaon
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
36. Indumati Haribhau
Ranshur,
R/o at Dharangaon
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
37. Ramkrishna Hari Sonar,
R/o Sanvatsar,
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
38. Dnyaneshwar Ramkrushna
Sonar
R/o Savlivihir, Tq. Rahata
Distt. Ahmednagar,
Maharashtra
39. Satyanarayan Vilas
Gaikwad,
R/o Savlivihir, Tq. Rahata
Distt. Ahmednagar,
Maharashtra
40. Aasaram Sakharam Jape,
R/o Savlivihir, Tq. Rahata
Distt. Ahmednagar,
Maharashtra
41. Vishnu Karbhari Kapse,
R/o Savlivihar, Tq. Rahata
Distt. Ahmednagar,
Maharashtra
42. Gorakshanath Murlidhar
Chalak,
R/o at Kokamthan,
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
43. Rangnath Bala Kape,
R/o Kokamthan,,
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
44. Bhausaheb Gorakshanath
Chalak,
R/o At Kokamtha,
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
45. Bhagwan & Ravindra
Pandit Chalak
R/o At Kokamthan
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
46. Satyabhamabai
Vishwanath Dike,
R/o at Kokamthan,
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
47. Pandharinath Bala
Kape,
R/o at Kokamthan,
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
48. Sau Indubai Ramrao
Naikwad
R/o At Kokamthan,
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
49. Sau Sombai Kondaji
Wable,
R/o Sohajapur,
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
50. Karbhari Fakira
Bornar,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
51. Bhikaji Narayan Kale,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
52. Laxman Waman Kadam,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
53. Pramod Gulabrao
Ranshing,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
54. Genuji Mhatarba
Pangavane,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
55. Chandrabhan Dada
Pangavane,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
56. Pandurang Laxmanrao
Jadhav,
R/o Mohegaon
Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
57. Raosaheb Madhav
Pangavhane
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
58. Babasaheb Laxman Kale,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
59. Namdeo Ranja
Pangavhane,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
60. Anjanabai Punja Gund,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
61. Changdeo Mhatarba
Pangavhane,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
62. Radhesham Sitaram
Dhekane,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
63. Ramesh Sitaram
Dhekane,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
64. Laxman Karbhari
Dabhade,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
65. Rambhau Karbhari
Dabhade,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
66. Suryabhan Dada
Pangavhane,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
67. Pandurangrao Lalxman
Jadhav,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
68. Prashant Dagurao
Mohite,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
69 Chandrabhan Gopala Kale,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
70. Nanasaheb Sarjerao
Pangavhane,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
71. Gulabchand,
Fakirchand Gandhi
R/o Savlivihir, Tq. Rahata,
Distt. Ahmednagar
Maharashtra
72. Santu Narayan Kale,
R/o Savlivihir, Tq. Rahata
Distt. Ahmednagar,
Maharashtra
73. Bapusaheb Mukundrao
Ransing,
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
74. Janardan Sahebrao
Nimbalkar,
R/o At Kolgaon Thadi
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
75. Sh. Shivaji Kisanrao
Raktale,
R/o At Kokamthan,
Tq. Kopargaon,
Distt. Ahmednagar,
Maharashtra
76. Babasaheb Narayan
Zade,
R/o Malegaon Thadi,
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
77. Manik Jivraj Deokar,
R/o At Takali,
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
78. Zopinath Bajirao
Deokar,
R/o at Takali,
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
79. Sairam Gonvind
Gondkar,
R/o At Shirdi, Tq. Rahata,
Distt. Ahmednagar,
Maharashtra
80. Shivaji Bhaguji
Gondkar,
R/o At Shirdi, Tq. Rahata,
Distt. Ahmednagar,
Maharashtra
81. Ramchandra Kachardas
Lodha,
R/o Savlivihir, Tq. Rahata
Distt. Ahmednagar,
Maharashtra
82. Kachardas Jivraj
Lodha,
R/o,Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
83. Savleram Namdeo Kale,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
84. Laxman Wamanrao Kadam,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
85. Anjanabai Punja Gund,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
86. Rajaram Gopal Kale,
R/o Mohegaon Deshmukh
Tq. Kopargaon, Distt. Ahmednagar,
Maharashtra
87. Deoram Tukaram Varpe,
R/o Sahjapur, Tq.
Kopargaon,
Distt. Ahmednagar,
Maharashtra
..Respondents
BEFORE:
HONBLE MR. JUSTICE R.C.
JAIN,
PRESIDING MEMBER
HONBLE MR. ANUPAM DASGUPTA, MEMBER
For the Petitioners : Mr.
Manish Pitale, Advocate
For the Respondents : Mr. M.Y. Deshmukh, Advocate
Dated, the
23rd day of September, 2010
ORDER
JUSTICE R.C. JAIN, PRESIDING MEMBER An important question of law, viz, whether activity of supply of water for irrigation by the State though on receipt of water charges from the cultivators, amounts to service within the meaning of Section 2 (1) (o) and the cultivators who receive the water supply are the consumers within the meaning of Consumer as defined in section 2 (1) (d) of the Consumer Protection Act, 1986 (hereinafter to be referred as the Act) has arisen for our consideration and determination in this batch of petitions filed by the State of Maharasthra challenging the common order dated 18.12.09 passed by the Maharasthra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad (in short, the State Commission) in first appeal nos. 1871 to 1873, 1876 to 1884, 1866 to 1908, 1911 to 1924, 1926 to 1934, 1936 to 1940, 1942 to 1945, 1947 to 1949, 2295, 2296, 2298, 2299, 2301 to 2308, 2311 to 2315 of 1998.
2. The facts and circumstances which have given rise to the above question, are that the complainants are the agriculturists engaged in the activity of growing crops on their respective lands in Taluka Mohegaon Deshmukh, District Ahmednagar in the State of Maharasthra. The State of Maharasthra has sanctioned perennial canal irrigation blocks to the complainants and has issued written orders authorizing the complainants to receive supply of water from the canal for the purpose of irrigation of their crops raised on the respective blocks. The State of Maharasthra had been charging water rates from the complainants and other block holders for supplying water for irrigation purposes. Alleging deficiency in service on the part of the State of Maharasthra and its officers due to their failure to supply requisite quantity of irrigation water in the anual irrigation year 1992-93 despite receipt of water rates, complaints were filed claiming compensation for the pecuniary loss suffered by them as the crop yields were lower in the said irrigation year. The complaints were resisted by the opposite parties, State of Maharashtra and its officers, inter alia, on the grounds that the activity of supply of water for irrigation of agricultural land to the various agriculturalists in the State was a benevolent sovereign function of the State without there being any element of earning profit and the rate charged for the irrigation water was in the nature of a tax which is credited to the consolidated fund of the State Government and, therefore, the said activity does not amount to providing service for consideration within the meaning of section 2 (1) (o) of the Act.
Complaints were also resisted on several other pleas denying that there was any deficiency in service. The reasons as to why there was inadequate supply of water during the irrigation year 1992-93 were sought to be explained by raising several pleas about their being general shortage of water in the catchment area of the Dam from where the water supply was made as also on the ground that the priority for water supply was to be given to drinking water, industrial purposes, etc.
3. It would appear that the District Forum where the complaints were initially filed, by a majority order dated 31.1.98 upheld the said objections of the opposite party, State of Maharashtra and dismissed the complaints on the ground that neither the complainants fell within the ambit of consumer as defined u/s 2 (1) (d) of the Act nor was the opposite party a service provider. The third Member, however, recorded separate findings holding that the complainants could seek condonation of delay if they chose to pursue their remedy by filing a suit for the redressal of their grievance. Aggrieved by the said orders of the District Forum, the complainants filed appeals before the State Commission. The State Commission by the impugned order, reversed the finding of the District Forum, by holding that the water rate charged by the State from the complainants towards supply of water for irrigation purpose was not a tax but it was a fee and, therefore, the complainants were consumers and the State of Maharasthra, a service provider within the meaning of the Act and, therefore, the consumer fora had the requisite jurisdiction to entertain the complaints. Consequently, while allowing the appeals of the complainants, the State Commission remanded the complaints to the District Forum for answering the same on merit in accordance with law expeditiously. Aggrieved by the said order, the State of Maharasthra has filed the present petitions u/s 21 (b) of the Act.
4. We have heard Mr. Manish Pitale, learned counsel for the petitioners and Mr. M.Y. Deshmukh, learned counsel for the respondents at length and have given our thoughtful consideration to their respective submissions. Learned counsel for the State of Maharashtra has reiterated the contentions which were raised before the State Commission in the appeals and which have been repelled by the State Commission in the impugned order. The main plank of the arguments put forth on behalf of the State of Maharasthra is that the activity of supplying water for irrigation purposes in the State of Maharasthra is a Sovereign Function of the State of beneficial nature having no commercial element attached to it, viz., no motive to earn profit. It is also submitted that making provision for irrigation water to the agriculturalist is a developmental activity of the State. Yet another line of argument of the learned counsel for the State of Maharasthra is that the entire process of providing the irrigation water is governed by law, i.e., the Maharashtra Irrigation Act, 1976 (hereinafter to be referred to as the Irrigation Act) enacted by the State of Maharashtra for uniform application relating to irrigation in the State (of Maharasthra).
In this regard, our attention has been invited to the scheme of the Act and its various provisions contained in several chapters and heads. In order to understand the line of arguments, it is necessary to refer to certain important provisions of the Irrigation Act which have bearing on the question which we are considering in the present proceedings.
5. It would appear that prior to the year 1976, there were different Acts relating to irrigation such as Bombay Irrigation Act, 1879 in Western Maharasthra, the Central Provinces Irrigation Act, 1931 and the Central Provinces and Berar Regulation of Water Act 1949 in Vidarbha Region relating to irrigation in different regions of that State. Therefore, it was considered by the State of Maharashtra to amend the Act relating to irrigation in the State of Maharasthra to provide for charging water rates on lands under the irrigable command of canals and to provide for matters connected therewith (emphasis supplied). The objects and reasons for enacting the said law would give out the intention of the framers of the law. In order to ascertain, whether the activity of providing irrigation water as noted is a Sovereign Function of beneficial nature or something more in the nature of providing service on charge/fee it would be advantageous to note a few provisions from the objects and reasons of the said Act:-
It is proposed to regulate supply of water from canals either areawise or on volumetric basis or under an irrigation agreement or under a scheme under the Bombay Irrigation Act, water is supplied to persons on application. After scrutiny of these applications, it is proposed that where a device for measuring water is provided, then the sanctioned water-supply will be made on volumetric basis. Where no such device is provided then the water will be supplied on an area basis.
The scheme of irrigation agreements obtained in Vidarbha is also retained, so that if it is proposed to take water under irrigation agreements, the system may be continued or even introduced where the holders or occupiers desire to take water under such irrigation agreements.
It is noticed that certain irrigation projects may irrigate land not exceeding 200 hectares (500 acres) in area. In such cases, the intention is to draw a scheme for supply of water and hand it over to the Works Committee consisting of irrigators so that they can manage the supply of water from such projects. The intention is to avoid establishment charges which are comparatively more than the canal revenue derived from the supply of water from such canals.
The power to levy irrigation cess has been extended throughout the State by Mah. 41 of 1974.
It is proposed, however, to discontinue this cess. It is now proposed to levy a development cess on all lands under the irrigable command of a canal for recovering the entire capital cost of the Ayacut Development Works.
6. The above clauses would point out that the Irrigation Act was enacted to regulate the supply of water from canals either areawise or on volumetric basis or under an irrigation agreement or under a scheme under the Bombay Irrigation Act on payment of water cess/water rate which has been defined under clause 24 of section 2 of the Act as under:-
24. water rate means payment to be made in the prescribed manner for a supply or facility of water from a canal for irrigation or any purpose provided by or under this Act at the rate determined under this Act.
7. Part II of the Irrigation Act provides for canal officers, their charges and powers; Part III is about construction and maintenance of canals; Part IV deals with field channels, construction of field channels and settlement of disputes concerning field channels; Part V is about acquisition of land for canals and field channels, etc., and Part VI is regarding supply of water, i.e., modes of supply of canal water, power to charge minimum rate, power to fix ceiling on area of crops, power to stop water, duration of supply, agreements for supply of water, etc., Chapter II of Part VI relates to supply of water on application and supply rates; Chapter III of the said Part provides for supply of water on volumetric basis; Chapter IV is related to supply of water under irrigation agreements, and Chapter V relates supply of water under a Scheme, Part VII of the Act deals with award of compensation in cases of ascertainable substantial damage, compensation for damage caused by entry on land, etc., compensation on account of interruption of water supply and decision as to the amount of compensation in that behalf and the procedure to make the compensation and the decision in that behalf. Part VIII of the said Act is related to recovery of water rate, etc., payable to company, Zilla Parishad, etc., and Part XII under the heading Miscellaneous provides for suits before the civil court to be barred in certain cases.
8. Learned counsel for the petitioners has, in particular, invited our attention to the provisions of section 46 of the Irrigation Act which provides for levy of water rate even on those holders or occupiers of the lands within command area, who do not avail of the facility of supply of water; section 49 empowers the authorities to stop the supply of water, section 56 which provides for application for supply of water for non-irrigation purposes; and section 62 which provides for irrigation agreements for supply of water. Learned counsel for the petitioners has further referred to the provisions of section 75 to 87 contained in the Part VII of the Act relating to award of compensation. As an alternative, his main submission is that the activity of supply of water to the agriculturists is a sovereign function of the State or a developmental activity without any profit motive. It is contended by the learned counsel that the Irrigation Act itself contains adequate provisions to deal with disputes of the nature as in these petitions. Chapter VII of the Irrigation Act contains adequate and proper provisions and procedures for the award of compensation in the cases where any receiver of water supply has any grievance in relation to non-supply or inadequate supply of water for irrigation and other purposes.
Consequently, in the present case since the main grievance put forth by the complainants was in regard to inadequate supply of water for irrigation resulting the loss of crops/diminishing of yield, the complainants could have resorted to the provisions of Part VII of the Act rather than approaching the Consumer Forum for the redressal of their grievances alleging deficiency in service on the part of the concerned authorities under the Irrigation Act. This submission appears to be attractive at the first glance but when we examine the same with reference to the provisions of the Consumer Protection Act, 1986 its hollowness would be exposed at once. Learned counsel for the petitioners has assailed the finding of the State Commission that the water rate charged by the petitioner State is nothing but a fee and, therefore, it can be said that the State was providing services on charge, on the ground that water rate is a compulsory charge as tax which goes to the consolidated fund of the State and it is neither a fee nor a cess as has been held by the State Commission. To appreciate this contention, we may extract the observations of the State Commission on the basis of which it has arrived the said finding which are as under:-
Reading these three sub-sections together it is evident that service must be for consideration. This is reinforced by the use of term hire in Section 2 (1) (d) (ii). We have mentioned that there is nexus between payment of water rate and service of supply of water from irrigation canal. Principles Quid Pro Quo and also Sine Quo Non have been established.
Service providing irrigation water has been rendered by Government on consideration paid by the Block holders as a water rate. Thus water rate is nothing but fee for the services provided to the Block holders.
The Forum below did not consider this aspect and erred in holding that complainants cannot be classified as consumers. In our view complainants are consumers and disputes raised under complaints fall under consumer disputes.
Water rate is the consideration that is the fee for service rendered by the Respondents. We are inclined to quash and set aside the order passed by the Forum.
9. Several decisions of the Apex Court have been cited by the learned counsel for the petitioner in support of its contentions and it will be useful to refer some of them to decide the issue before us.
10. The question as to when the State or an instrumentality of the State can be said to be discharging sovereign function or providing service has been considered by the Supreme Court in several of its decisions, such as Municipal Corporation of Delhi Vs. Mohd. Yasin - (1983) 3 SCC 229, Kishore Lal Vs. Chairman, Employees State Insurance Corporation (2007) 4 SCC 579 and Agricultural Produce Market Committee Vs. Ashok Harikuni & Anr. (2000) 8 SCC 61 and recently dealing with the same question this Commission has delivered a judgment in the case titled as Consumer Education and Research Society & Ors. Vs. Ahmedabad Municipal Corporation & Ors. (Original Petition Nos. 125 & 126 of 1994)- II (2008) CPJ 354 (NC).
11. We have carefully gone through the decisions relied upon by the learned counsel for the petitioner in support of his contention that in the given facts and circumstances neither the complainants can be said to be the consumers nor the petitioner State as rendering service within the meaning of section 2 (1) (o) of the Act. Those decisions have been rendered by the Supreme Court in different situations on examination of the different statutes. A careful perusal would show that the trend of the decisions of the Supreme Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter, which falls within the jurisdiction of Civil Court or any other Forum as established under some enactment. The Supreme Court has gone to the extent of saying that if two different Fora have jurisdiction to entertain the dispute in respect with the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate could not be negated.
12. It is pertinent to note that the functions of the State or the instrumentalities of the State in the modern times are no longer restricted to the discharge of what is termed as sovereign or regal functions only. The State, either by itself or through its instrumentalities, is now undertaking diverse activities and providing services to its citizens consumers in several spheres of life. For instance, housing, supply of electricity, financing, banking, health care and even supply of merchandise. Once they embark upon such activities and provide such services for a consideration (irrespective of whether the consideration includes profit or not),, they would certainly fall within the ambit of service providers and the service provided by them will be squarely covered by the term service as defined in section 2 (1) (o) of the Act, unless such service is provided entirely free of charge to all those who avail of it. They having undertaken such activities cannot be allowed to take shelter behind the shield of sovereign or regal functions. This position stands fortified from the decision of the Honble Supreme Court in the case of Indian Medical Association V V.P. Shantha & Ors. (1995) 6 Supreme Court Cases 651. In the said case, the Supreme Court after thorough examining the question in relation to the services provided by States in their hospitals held as under:
There is no merit in the contention that the hospitals / nursing homes where services are rendered free of charge to everybody would nevertheless fall within the ambit of Section 2 (1) (o) since it is rendered by a medical officer employed in the hospital who is not rendering the service free of charge because the said medical officer receives emoluments by way of salary for employment in the hospital. The medical officer who is employed in the hospital renders the service on behalf of the hospital administration and if the service, as rendered by the hospital, does not fall within the ambit of section 2 (1) (o), being free of charge, the same service cannot be treated as service under section 2 (1) (o) for the reason that it has been rendered by a medical officer in the hospital who receives salary for employment in the hospital. There is no direct nexus between the payment of the salary to the medical officer by the hospital administration and the person to whom service is rendered.
It is also not possible to agree with the contention that even in the government hospital / health centers / dispensaries where services are rendered free of charge to all the patients, the provisions of the Act shall apply because the expenses of running the said hospitals are met by appropriation from the Consolidated Fund which is raised from the taxes paid by the taxpayers. The tax paid by the person availing of the service at the government hospital cannot be treated as a consideration or charge for the service rendered at the said hospital and such service, though rendered free of charge, does not cease to be so because the person availing of the service happens to be a taxpayer. The essential characteristics of a tax are that (i) it is imposed under statutory power without the taxpayer's consent and the payment is enforced by law; (ii) it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax' and (iii) it is part of the common burden, the quantum of imposition upon the tax payer depends generally upon his capacity to pay.
13. In the cases in hand, going by the entirety of facts and circumstances, there is no escape from the conclusion that the petitioners having undertaken to supply irrigation water to the agriculturists and receiving consideration, either in the form of fee or water charge, will be deemed to have rendered service within the meaning of section 2 (1) (o) of the Act. However, whether there was any deficiency in providing this service in this specific set of cases is a question of fact to be determined by the Forum concerned when the complaints are put to trial. We are, therefore, in agreement with the findings of the State Commission that the water rate is nothing but a fee charged by the petitioners for the service provided to the block holders and that the complaints filed by the respondents before the District Forum on the allegation of deficiency in service due to non-supply or deficient supply of irrigation water are maintainable.
14. We do not see any jurisdictional error, illegality or material irregularity in the order of the State Commission which warrants our interference in these proceedings. Revisions petitions are accordingly dismissed in limine.
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(R.C. JAIN,J) PRESIDING MEMBER .......Sd-................
(ANUPAM DASGUPTA) MEMBER YD/