State Consumer Disputes Redressal Commission
Rajasthan Upbhokta Sarksan Samiti vs Jda on 14 November, 2022
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BEFORE THE RAJASTHAN STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, JAIPUR
FIRST APPEAL NO: 348/2021
Rajasthan Upbhokta Sanrakshan Samiti, Rajasthan
Registered Office- 76, Sultan Nagar Gurjar ki Thadi, Jaipur-
302019, Through- Secretary, Dr. Pradeep Goyal, Rajasthan
Upbhokta Sanrakshan Samiti. Email- [email protected].
....Appellant/Complainant
Vs.
Jaipur Development Authority Jaipur, JLN Marg, Jaipur-
302017 Through Secretary. Email- [email protected]
....Respondent/Opposite Party
Date of Order: 14.11.2022
Before:
Hon'ble Mr. Justice Devendra Kachhawaha-President
Hon'ble Mr. Atul Kumar Chatterjee -Member Judicial
Hon'ble Mr. Shailendra Bhatt- Member
Present:
Mr. Naresh Goyal learned counsel for the appellant Mr. R.P. Gupta learned counsel for the respondent BY THE STATE COMMISSION (PER HON'BLE MR. ATUL KUMAR CHATTERJEE, MEMBER JUDICIAL):
This appeal has been filed against order dated 25.6.2021 of learned DCC Jaipur I in its complaint no. 44/2021 whereby 2 the complaint filed by appellant committee has been dismissed at the admission stage on the ground that the complaint is in the form of a Public Interest Litigation (PIL) for which there is no provision in Consumer Protection Act, 2019.
Briefly stated the relevant facts of the case are that appellant committee filed a consumer complaint before the learned DCC Jaipur I on 13.01.2021 pleading itself to be a registered consumer association constituted with the object to bring awareness amongst consumers, to give knowledge of their rights under various consumer laws and give legal advice to the consumers for last 30 years. According to the complainant on 10.9.2020 the executive of the complainant committee made an inspection of "Ganda Nala Pulia Zone-5, Gurjar ki Thadi, Gopalpura Bypass Road, Jaipur". The duty of constructing the above Bridge (Pulia) and maintaining it was of the respondent/Opposite Party. During the inspection it was found that during the course of its construction a pathway (ixM.Mh) 4 feet wide and 100 feet long was made for being used by the pedestrians. This pathway (ixM.Mh) was blocked by putting so many pipelines, cables etc. and the pathway (ixM.Mh) was obstructed by the garbage due to which the pedestrians could not use the pathway (ixM.Mh). In the complaint this conduct of respondent/O.P. JDA has been alleged to be causing deficiency in service and gaining profit 3 improperly. As per the complaint the respondent JDA is the service provider and public, in general, is complainant. It has also been alleged that the complainant committee tried to obtain various informations regarding the bridge (Pulia) under Right to Information Act (RTI) but could not get it. It has further been alleged that the respondent/O.P. JDA is charging money from the public under various heads which is to be used for developing Jaipur. As such the relation between respondent/O.P. and complainant is of service provider and complainant and the committee has the right to bring the complaint in the capacity of consumer. In the complaint relief has been sought to give order to remove the obstructions caused by the garbage/cables etc. and get the way cleared. Besides this a compensation of Rs. 4.5 lakhs and litigation cost of Rs. 15,000/- total Rs. 4,65,000/- has also been demanded.
As stated above the learned DCC vide order dated 25.06.2021, after hearing the learned counsel for the appellant/complainant on admission, has dismissed the complaint at the admission stage on the ground that there is no provision available in Consumer Protection Act, 2019 for allowing Public Interest Litigation (PIL).
This appeal was listed for admission on 13.8.21 whereupon it was ordered that the original record of the learned DCC be called for. Thereafter on 8.9.21 this Commission, after 4 hearing the learned counsel for the appellant on admission, ordered to issue notice for admission to the respondent and again the record of learned DCC was called for.
Thereafter on 5.04.22 following order was passed by this commission -
"Mr. N.C. Goyal learned counsel appeared on behalf of appellant society.
Mr. R.P. Gupta learned counsel appeared on behalf of respondent JDA.
Mr. Gupta submits that he does not want to come in legal complications. He submits that the issue involved in this appeal regarding public interest and the JDA job therefore, some time may be given so that he may contact with the concerned officers to resolve the problem raised in the main complaint.
In view of it time prayed for is allowed. List again on 17.5.2022."
After passage of more than one dates arguments of both the sides have been heard by this Commission on 3.11.22.
The learned counsel for the appellant/complainant has, during the course of argument, more or less reiterated the facts contained in the memo of appeal as arguments and has also referred the following judgments passed by NCDRC :-
Bhubnaeshwar Development Authority vs. Purna Chandra Subudhi( Revision Petition No. 823 of 2016).
Consumer Unity and Trust Society, Jaipur vs. State of Rajasthan (First Appeal No. 2 of 1989. D/d 15.12.1989). 5
Amrapali Sapphire Flat Buyers Welfare Association vs. Amrapali Sapphire Developers Pvt. Ltd. (Consumer Complaint Nos. 816 to 819 of 2016).
Shri Prabhakar Vyankoba Aadone vs. Superintendent, Civil Court (8 July 2002) Dr. Chandrakant Vitthal Sawant, Patel vs. Shri L.R. Pilankar Inspector of Land Records, Department of Land Record of Maharashtra State( Revision Petition no. 2273 of 2012) Per contra the learned counsel for the respondent/O.P Jaipur Development Authority contends that JDA executes the policies of the Government in public interest and is not the service provider under Consumer Protection Act as alleged by the appellant/complainant in its complaint. According to him since the complaint is in the form of a P.I.L hence, the complaint is not maintainable before the learned DCC and as such the impugned order of the learned DCC is perfect in the eye of law and no interference is called for in it. He further contends that no violation of any provision of any law has been committed by the respondent/O.P. So far as the duty to clean the pathway (ixM.Mh) is concerned it pertains to Municipal Corporation and not to the respondent/O.P. JDA. He further mentions that in pursuance of the order dated 5.4.22 of this Commission as a matter of courtesy a letter has been forwarded to the Jaipur Municipal Corporation to clean the pathway (ixM.Mh) and now it is the duty of the appellant/complainant to 6 pursue it with the Jaipur Municipal Corporation. The respondent/O.P. is not liable to cause any deficiency in service or adopting unfair trade practice of any sort.
We have pondered upon the rival submissions and have gone through the judicial precedents referred to by the learned counsel for the appellant complainant committee.
At the outset we deem it proper to reproduce the provisions of section 35-
"Section 35- Manner in which complaint shall be made-
(1) A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Commission by-
(a) the consumer-
(i)to whom such goods are sold or delivered or agreed to be sold or delivered or such service is provided or agreed to be provided;or
(ii)who alleges unfair trade practice in respect of such goods or service;
(b) any recognized consumer association, whether the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service is provided or agreed to be provided, or who alleges unfair trade practice in respect of such goods or service, is a member of such association or not;" 7
The learned counsel for appellant complainant committee has vehemently contended that in view of the provision of section 35(1)(b) it is not necessary for a consumer to be member of the recognized consumer association who has the authority to file a consumer dispute before the consumer commission under the Consumer Protection Act, 2019. He further contends that even if there is no consumer involved, the voluntary recognized consumer commission has the authority to bring a consumer dispute in the matter of a public interest dispute wherein interest of consumers at large is involved.
Having pondered upon the provisions of Section 35(1)(b) in the light of the contentions made by the learned counsel for the appellant/complainant we find that the language of the above provision viz. 35(1) -
" A complaint, in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided, may be filed with a District Commission by....." would show that the complaint must be in respect of any goods sold or delivered or agreed to be sold or delivered or any serviced provided or agreed to be provided further the provisions of sub section (b) of section 35(1) which is as under-
"35(1)(b) - any recognized consumer association, whether the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such 8 service is provided or agreed to be provided, or who alleges unfair trade practice in respect of such goods or service, is a member of such association or not; "
The bare perusal of this provision would reveal that a recognized consumer association has the authority to file a consumer complaint on behalf of the "consumer", to whom the goods have been sold or delivered or agreed to be sold or delivered or any service had been provided or agreed to be provided even if that "consumer" is not the member of that recognized consumer association. In our humble view nowhere in this provision it has been envisaged that the recognized consumer association can file consumer complaint for any public interest matter where neither any goods have been sold to any consumer/consumers nor have been delivered or agreed to be sold or any services have been provided or agreed to be provided. In this way we find that the contentions of the learned counsel for the appellant/complainant committee are apparently misconstrued/misconceived.
So far as the judgments referred to by the learned counsel for the appellant/complainant are concerned we find that in Bhubnaeshwar Development Authority Vs. Purna Chandra Subudhi (Supra) Hon'ble the NCDRC has dealt with the point of delay of 150 days in filing the revision petition. We are sorry to say that on a careful perusal of that judgment we don't find 9 any reason as to why this judgment has been referred by the learned counsel for the appellant/complainant, in this matter.
In the matter of Consumer Unity and Trust Society, Jaipur Vs. State of Rajasthan & Ors. (Supra) the appellant/complainant society brought a complaint on behalf of Smt. Sushila Devi W/o Shri Brajmohan Pareta, resident of Lakheri, Distt. Bundi who had undergone Abdominal Tubectomy operation at the Government hospital, Kota as a part of the Family Planning Programme during which allegedly medical negligence had been caused by the concerned doctors. This complaint was brought before this State Commission and the same was held to be not maintainable under Consumer Protection Act, 1986. It was held that since neither Smt. Sushila Devi nor her husband hired any service for consideration for the purpose of performing operation for sterilization as such none of them can be considered as "consumer" and since a complaint can be made by a consumer or a consumer association only for and on behalf of consumer. The judgment of this State Commission was challenged before the Hon'ble the NCDRC and Hon'ble the NCDRC after a detailed discussion and pondering upon section 2(1)(d) definition of "Consumer", 2(1) clause (o) a definition of "Service", Section 12 held that the person who avails the medical treatment in Government hospital are not "consumers" and the said facility 10 offered in the Government hospitals cannot be regarded as service "hired" for "consideration" hence, no complaint under the Act can be preferred either by any such person or by a consumer association on his behalf. In this way the view of this Commission was upheld by Hon'ble the NCDRC. In our humble view factually as well as on the point of law this judgment of Hon'ble the NCDRC is of no help to the appellant/complainant.
In Amrapali Sapphire Flat Buyers Welfare Association Vs. Amrapali Sapphire Developers Pvt. Ltd. and another (supra) Hon'ble the National Commission has pondered upon as to whether the complainant association in this case would fall under the definition of Recognized Consumer Association or not? It was observed that if a Voluntary Consumer Association is registered under any law for the time-being in force, it will be deemed to be a Recognized Consumer Association for the purpose of filing a complaint in terms of section 12 (1)(b) of Consumer Protection Act 1986. We humbly respect the finding of Hon'ble National Commission and are of the view that since in the case in hand Appellant Committee is registered under the Rajasthan Societies Registration Act 1958 as such, it falls within the definition of Registered Consumer Association and therefore, has the locus standi to file complaint on behalf of any consumer/consumers u/s 35(1)(b) of 11 Consumer Protection Act 2019. We find that learned DCC has also observed that the appellant/complainant committee has the locus standi to bring complaint u/s 35(1)(b).
In Shri Prabhakar Vyankoba Aadone Vs. Superintendent, Civil Court and Dr. Chandrakant Vitthal Sawant Patel Vs. Shri L.R Pilankar inspector of land records, Department of Land Record of Maharashtra state & ors. (both Supra) the concerned complainants were not any Registered Consumer Association and both the matters have been filed by the concerned complainant in individual capacity. In the matter of Shri Prabhakar Vyankoba Aadone application filed for an urgent certified copy of the order/judgment by paying requisite fee was held to be hiring a service and the applicant was held to be a consumer under Consumer Protection Act. In Dr. Chandrakant Vitthal Sawant Patel & ors. measurement of land for payment of prescribed fee was held to be falling within the definition of 'Service'. In our humble view both these judgments have no bearing upon the facts and circumstances of this case.
On the basis of above discussion we find that since in this matter no individual consumer/consumers were involved to whom any goods were sold, delivered or agreed to be sold or delivered or any services were provided on hiring basis or agreed to be provided on hiring basis, as such despite the fact 12 that appellant/complainant consumer association has the locus standi to bring a complaint on behalf of any consumer/consumers u/s 35(1) (b) of Consumer Protection Act 2019 still since the complaint is not on behalf of any consumer/consumers therefore, it is very much clear that the dispute involved in this matter is nothing but a Public Interest Litigation dispute for which there is no express provision under the Consumer Protection Act 2019 to deal with such matters.
So far as the order dated 5.4.22 of this Commission is concerned in our humble view from the bare perusal of this order it is revealed that the order was not an imperative order but a courtesy was extended by the learned counsel of respondent JDA. In our humble view neither order dated 5.4.22 can be said to be executable nor on its basis respondent JDA can be compelled to take any action regarding its execution.
Based upon the above discussion we find that the learned DCC Jaipur I has not committed any error or illegality in passing the impugned order dated 25.06.21. As such the appeal is found to be unsustainable hence, the same is hereby dismissed. No costs.
(Shailendra Bhatt) (A.K.Chatterjee) (Devendra Kachhawaha)
Member Member Judicial President
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