State Consumer Disputes Redressal Commission
Rakesh K. Dhawan vs Union Of India on 27 May, 2008
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 27.05.2008 Complaint Case No. C-110/2006 1. Shri Rakesh K. Dhawan - Complainants F-1179, C.R. Park, New Delhi 2. Sh. A.K. Bhatnagar, 97, Chitra Vihar, Delhi. 3. Sh. Purshottam Singh, J-8/130, Rajouri Garden, New Delhi. Versus 1. Union of India Opposite Party No.1. Through Secretary, Urban Development Ministry, Nirman Bhawan, New Delhi. 2. Govt. of NCT of Delhi. Opposite Party No.2 Through its Chief Secretary, Indra Prastha Estate, New Delhi. 3. Municipal Corporation of Delhi. Opposite Party No.3 Through its Commissioner, Town Hall, Delhi. 4. New Delhi Municipal Council, Opposite Party No.4 Through its Chairperson, Parliament Street, New Delhi. 5. Delhi Development Authority, Opposite Party No.5 Through its Vice Chairman, I.N.A., Vikas Sadan, New Delhi. 6. Delhi Jal Board, Opposite Party No.6 Through its Chief Executive Officer, Varunalaya Jhandewalan, New Delhi. 7. Commissioner of Police, Opposite Party No.7 Through Joint Commissioner of Police(Traffic) Indra Prastha Estate, New Delhi. 8. State Transport Authority, Opposite Party No.8 Through its Commissioner/Secretary, 5/9, Under Hill Road, Delhi. 9. Directorate of Health Services, Opposite Party No.9 Govt. of NCT of Delhi. 10. Public Works Department, Opposite Party No.10 Through its Engineer in Chief, M.S.O. Building, ITO, New Delhi. 11. Central Public Works Department, Opposite Party No.11 Through its Director General, Nirman Bhawan, New Delhi CORAM: Justice J.D. Kapoor . President Ms. Rumnita Mittal . Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR
1. Whenever there is chaos, may be of any kind in any field in this city every authority starts passing the buck unto each other. It is rightly said that too many cooks spoil the broth. May be this is the price capital city has to pay for having multiplicity of authorities.
2. At the outset we feel constrained to observe that year after year Municipal Corporation of Delhi makes tall claims of cleaning and de-silting of drains of the city that are about 1296 in number which are more than four feet in depth and width spending crores of rupees but every time whenever there is little heavy rains, most of the roads get waterlogged due to overflowing drains as life of entire city goes haywire. MCD made tall claims before us by filing a highly detailed affidavit in the year 2006 projecting that it had de-silted and cleaned all the drains and nullahs by keeping all the 96 pumping stations functional around the year and also deploying portable pumps and by setting up control rooms all over and also creating Sanitation Task Force in each zone which is equipped with wireless sets. These claims proved hollow and false when almost a year after there was rain on three different occasions. City suffered the same experience as it did on 18th July 2006. Worst was the 2nd of August 2007.
3. Unfortunately during the last week of this month there were rains. Almost same story was repeated. Let us first recreate the scenario that was called the morning mayhem and gave rise to this complaint. It was 18th July 2006. There was a heavy rain. Drains were overflowing; most of the roads were knee-deep waterlogged. There was almost deluge for few hours. Office goers and commuters had a harrowing time. They were stuck in traffic jams for several hours almost at every intersection of the city. Thousands of vehicles broke down adding to the chaos. The whole of Delhi suffered at the hands of civic and other Government authorities. There was no part of the city, which remained unaffected from the problem of water logging. The roads of the city are even otherwise in a very bad and damaged condition. Traffic flow was thrown out of gear and crawled all over Delhi. So much so the flight schedules were even affected, as the people could not reach in time to catch the flights.
The national dailies were replete with the write-ups and photographs. Some of these were like this.
(I) Times of India, dated 19-07-2006 MORNING MAYHEM: CITY CRAWLS OVERFLOWING DRAINS, FLOOD COLONIES THIS IS WHAT MAROONS DELHI WHEN IT POURS.
(2) Indian Express, dated 19-07-2006 CHAOS ON ROADS AS CITY LOGS 21 MM (3) Hindustan Times, dated 19-07-2007 CHOCKED DRAINS DOWN DELHI DELUGE IN SPACE OF TWO HOURS A CLUTCH OF REASONS FOR THE PROBLEM Deluge in space of two hours Office goers had a horrowing time as they were stuck in traffic jam for several hours because of knee-deep water at major intersections.
Several vehicles broke down adding to the chaos.
The ITO intersection remained flooded for over three hours and traffic jams lasted for even longer. Other low-lying areas such as Ashram, Chhatrasal Stadium, Bahadur Shah Zafar Marg, ISBT Kashmere Gate and Dilshad Garden also remained waterlogged.
Large part of the city and most major roads were water-logged, slowing traffic to a crowl for the better part of the morning.
The Met Office said the city saw 21.2 mm rain; the heaviest this monsoon was 66.6 mm on July 11.
Traffic flow was thrown out of gear from 8.15 am to 1.30 P.M. What many would not have been expecting is that New Delhi areas would also see heavy water logging.
Bhairon Marg was one of the worst-hit, with water logging for almost an hour making driving difficult. Other areas affected included Africa Avenue and India Gates Inner Circle. The arterial roads around India Gate also saw a lot of water logging, through the problem on the C-hexagon was relatively lesser.
4. Now some of the reports in respect of blame game.
FLIGHTS DELAYED, CIVIC AGENCIES IN WATER-LOGGING BLAME GAME AGAIN.
The blame game that arose after showers in June began all over again. Officials of MCD, whose control room received 183 complaints, blamed the PWD saying the water logging was mainly in areas under their jurisdiction.
PWD officials passed the buck back to the MCD.
WE have cleared our drains, but they end up flowing into the MCD drains which are still clogged, said a PWD official. There was major water logging in Khichdipur in Kalyanpuri and Meethapur Chowk near Badarpur due to a blocked drain.
The other areas had cleared within a few hours, said K.D. Akolia, Additional Commissioner, Sanitation.
PASSING THE BUCK
5. As the rain came pouring down, the MCD yet again chose to blame other agencies like PWD for the water logged stretches.
IN areas where such patches fell on MCD roads, the civic body tried to get away by saying that these were low-lying areas. MCDs additional commissioner K.D. Akolia made it clear that there was stagnation at PWD roads. UD Minister A.K. Walia found it difficult to explain the mess at ITO. All that he could say was it rained more than what the government had anticipated.
6. Let us refer to few headlines of National dailies that appeared on 22nd May, 2008 that is five days before and today again the city is suffering the same agony.
WATER WATER EVERY WHERE AND ITS JUST MAY WATER LOGGED ROADS HOLD UP MORNING RUSH HOUR TRAFFIC.
(Times of India) 22nd May 2008 DELHI ROADS COPE WITH TRAFFIC NIGHT MARE, DRENCHED CITY TRIPS ON POWER SUPPLY IT IS MONEY DOWN THE DRAIN ROADS CLOGGED AS MCD FAILS IN ITS PROMISE TO CLEAR DRAINING ( Hindustan Times 22nd May 2008)
7. In the month of April, May and June of 2007, that is during the pendency of this complaint, there was downpour like the one that gave rise to this complaint. Situation was worst. Whole of Delhi collapsed and was paralyzed. Here are news reports, which were replete with harrowing photographs.
HINDUSTAN TIMES ( Friday, August 3, 2007) CAPITAL COLLAPSE Rain busts MCD claims on cleaning drains, exposes farce of civic preparedness.
Roads disappeared..
Dug-up Dwarka-Janakpuri Road crumbled, trapping vehicles in waist-deep mud. Work on Metro, high-capacity bus system made JB Tito Marg, MG Road, Aurobindo Marg hell.
Traffic stopped Dhaula Kuan was the epicenter of the traffic nightmare that sent ripples across Delhi, police said.
All roads coming into the capital except NH 24 were completely choked.
..
And Delhi Went under This scene at Rajghat gives ringing evidence of the kind of untruths civic agencies have been peddling about having cleaned storm water drains. It was waterword everywhere.
THE TIMES OF INDIA ( Friday, August 3, 2007) DELHI DROWNS More rain than all of July
Heaviest rainfall of 167 mm in 24 hours this monsoon; the whole of July got 163 mm. Met office sees more rain over the weekend but lighter spells.
Rail, road, air traffic hit Flights late by 1-2 hours as crew, passengers stuck on approach roads.
12Delhi-bound trains late by 4 hours.
Horrible traffic snarls in busy areas.
It took more than 4 hours to reach CP from Janakpuri, 3 hours from Kaushambi to ITO. Result: Office-goes very late.
Power cuts upto 16 hours in some areas.
Govt. websites shut down as water seeped into NIC equipment.
Flooded, as usual 195 water logging complaints.
Worst-hit:
Jangpura, South Ex., Def. Colony, Mathura Road, ITO, Janakpuri, Rajouri Garden, Africa Avenue, Chanakyapuri, Dhaula Kuan, Badarpur, Ashram, Rohini, Model Town, Patel Nagar, Mayapuri, Rajghat, Adchini and Kalkaji.
Narrow escape Side walls of the main Dwarka underpass collapsed due to seepage. Narrow escape for 150 commuters passing through in a DTC bus and four cars.
WATERLOCKED The heavy downpour in the early hours of Thursday brought the city to a standstill as severe waterlogging was reported from all major arteries.
Flights delayed, trains stuck without signals.
They woke up to step into water in room.
They created the mess but wont own up now Civil Agencies indulge in Buck-Passing Ritual SUNDAY TIMES OF TIMES OF INDIA , JUNE 17, 2007 Showers drown MCDs claims.
Water logging confirms the worst fears of city.
A few hours of rains left the main areas of city inundated. The weekend travelers had to wade through HINDUSTAN TIMES JUNE 21, 2007 Monsoon wading.
Rains may arrive in a week but the cleaning of storm water drains is far from complete.
H.T. METRO 22nd June, 2007 MONSOON WORRIES AGAIN.
Come monsoon, city residents have to wade through rainwater. Now there is going to be a Drainage Master Plan.
8. Almost similar situation was faced by several areas of the city in the month of April of this year, when there was average rainfall. Some of the reports published in the newspaper are as under:-
Times of India, dated 05-04-2008 Rush hour rain takes city by surprise 20-minute-long downpour leads to hours of jam Fridays sudden downpour led to severe traffic snarls across the city as severalmajor arteries, including the under-construction Bus Rpid Transit (BRT) corridor, go waterlogged during evening rush hour.
Hundreds of home-bound people got struck in traffic jams lasting for hours as movement of vehicles was reduced to a crawl n many areas. It took me over two hours to reach TO from Safdarjung Hospital. First, I got stuck in a major jam on Ring Rod which lasted right upto Moolchand crossing, then the BRT corridor was a complete nightmare with traffic just not moving right upto the Oberoi flyover: Mathura Road was next as I spent over half hour just within at the Sunder Nagar traffic signal before landing into waterlogging at Tilak Bridge. It was perhaps the worst drive of my life, said Sameer Khan, a resident of Daryaganj.
The Municipal Corporation of Delhi on its part maintained that desilting of storm water drains was started last month and about 120 drains have been identified for cleaning up. Work in about half of them is already in process. The control room got about 20 calls for water logging from different parts of the city.
9. Complainants are practicing advocates and have filed the instant complaint under section 17 of the Consumer Protection Act 1986, claiming compensation for themselves and thousand like them who suffered the same agony and imposition of punitive damages for the delinquent agencies responsible for it. The allegations of the complainants in brief are:
(i) That the complainants fundamental, civil and personal rights have been violated by the respondents who are responsible and squarely liable for their negligence and failure to provide good urban drainage system, removing the silt before rainy season, cleaning of drains repair and leveling of roads and filling up the trenches already existing on the roads.
Complainants further submitted that they are consumers and respondents are service providers for consideration as complainant being consumers are paying taxes to the Govt. which form as component for respondents to provide services like clean quality road free of pits and trenches, no water logging, proper de-siltation of drainage, sewerage system, leveling of roads, filling up of trenches existing on the roads etc.
(ii) That the State Transport Authority, Govt. of National Capital Territory of Delhi collects the road tax for the vehicles registered with it and having taken the consideration is duty bound to ensure that no deficiency exists in the quality of roads provides to the consumers and are also under obligation for cleansing of streets, roads and removal of rubbish and filth as well as to de-silt the drainage regularly. That various payments which are collected by the respondents as component of taxes charged directly and indirectly from the complainants are consideration for the services rendered by the respondents and thus payment of consideration of services inherent for which the respondents cannot escape their liability being the service providers to complainants and are liable to gross deficiency.
(iii) That due to the negligence of the respondents and failure to provide good urban drainage system, removing the silt before rainy season, cleaning of drains, repair and leveling of roads and filling up the trenches which were/are existing on the roads, the complainants being consumers have suffered on 18.07.2006 when due to rain, roads were completely water logged, drains were choked, tariff got jammed and the vehicles of complainants got damaged in knee-deep water, as the respondents committed gross kind of deficiency stated in section 2(1)(g) of the Consumer Protection Act.
(iv) That the complainant are filing the present complaint against the respondents for violation of their fundamental and civil rights and respondents total apathy towards the residents of Delhi and particularly the complainants being aggrieved and having suffered due to knee-deep water and having stuck in traffic jam for several hours which remained due to choked drains on 18.07.2006.
(v) That the complainants have filed the eye witness reporting alongwith the complaint, which has been given on Television as well as reported by the leading newspapers i.e. the Hindustan Times, The Times of India and Indian Express all dated 19.07.2006. Reports as appear have been quoted above.
(vi) That there is total apathy on part of the MCD which instead of apologizing is rather boosting by alleging that there was no major water logging on any of the MCD roads. The complainants submitted that there was knee deep water in the lanes adjoining C.R. Park as well as crossing joining C.R. Park and Greater Kailash with big trenches. Similar was the instance at the I.T.O. crossing as well as in the Connaught Circus area to which the complainants are the witnesses. Complainant further submitted that these wide pits on the roads as well as many small trenches which are still existing causing collapse of drainage and sewerage system for which MCD, NDMC, PWD, Govt. of Delhi as well as Union of India are fully liable jointly and severally.
(vii) That the signal lights were also not working and traffic could not be cleared for many hours due to which complainants have suffered in particular and failed to attend the courts in time and had to cancel their important engagements fixed for the day. That the logging of water is mainly responsible for various bacterial, viral and other infectious disease and its aftermaths are surely going to cause various sufferings for which the respondents are completely negligence and are boosting the harping in spite of the fact that earlier also on 11.07.2006 roads were completely water logged, drains were choked, traffic got jammed and no pumps were put in to remove the water in the low lying areas.
(viii) That the road tax on vehicles is being charged by Govt. of NCT of Delhi and it is obligatory and necessary on their part to provide smooth roads free of pits but respondents instead of providing relief to the complainants are busy in blaming each other and boosting that everything is all right. The road engineering is defective and filth is lying on the sides of the roads and the present drainage system in the event of 10 mm rains is bound to have water logging and choking of drains. More so respondents are completely negligent and their negligence have caused damage to the complainants their vehicles and the complainants.
(ix) That due to the negligence of the respondents particularly MCD, NDMC and Delhi Jal Board, roads became swimming pools and on account of failure of the State Transport Authority and Traffic Police, the vehicles of the complainants were grounds on the roads as the roads became a parking place for hours together. Deep trenches and pits which were filled up with mud and wastes added salt to the wounds in knee deep water flooded on the roads, intersections joining the lanes which due to failure of the respondents have caused/causing various bacterial, viral and many other infectious diseases.
(x) That complainants are limiting the compensation to the extent of Rs. One crore on account of negligence and failure of respondents to provide services which they have utterly failed and neglected to provide and have willfully failed to provide and have committed omissions and commissions thereby causing mental agony, pain and harassment by violating fundamental rights and right to decent life for which respondents are liability jointly and severally.
(xi) That the present complaint may also be treated as a complaint in the representative capacity on behalf of those who also have not filed the present complaint and have suffered much more and thus may be permitted and allowed to join as a complainant at a later stage being aggrieved due to failure and negligence of the respondents and accordingly, token compensation may also be awarded to them.
10. All the respondents i.e. opposite parties (in short OPs) tried to absolve themselves from the charges of deficiency in service and resisted the complaint vigorously and denied the allegations emphatically. Preliminary objections raised by the OPs particularly the Government of NCT of Delhi, MCD, PWD, NDMC and Transport Authority as to the locus standi of the complainants and maintainability of the complaint are common. These are in nut shell as under:
(I) The OPs being the public, statutory and civic authorities perform statutory and obligatory functions and therefore such functions do not form part of service as defined by Section 2(1)(o) of Consumer Protection Act 1986 and violation of fundamental and personal rights of the citizens is not remediable under the provisions of the Consumer Protection Act 1986.
(II) The complainants do not fulfill the requirement of being consumers as defined by Section 2(1)(d) of the Act, as they have neither hired nor availed any kind of service provided by any of the OPs-authorities against consideration.
(III) There is vast difference between tax and fees. In regard to fees there should be quid pro quo. Tax is revenue and no quid pro quo is necessary for it. For house tax or road tax or any other kind of tax there need not be a quid pro quo commensurate with the tax amount. A tax is not a fee paid for any service rendered by the civil authorities or any statutory or public authority. There can be a tax without an obligation to render a particular service.
11. The response and reply of various agencies particularly MCD, PWD and NDMC as to the allegations of their inefficiency, remissness and total deficiency in service in respect of the civic services, maintenance of roads, de-silting and cleaning of drains etc. that led to chaotic conditions are in nutshell as under:-
12. Affidavit of one Mr. Uttam Vaswani, the Joint Director of Department of Environmental Management Service (DEMS), MCD OP. No.3, is of great significance and needs to be reproduced on substantial issues. Relevant paras are is as under:-
Delhi has approximately 1296 drains which are more than 4 ft in depth/width and these drains have been de-silted by NGOs and departmental labour/machines/contractors.
MCD has bifurcated all its big and small drains into two parts, i.e. Drains below 4 ft depth alongwith bell mouths, gully gratings are got desilted / cleaned on day to day basis through sanitation staff. Drains above 4 ft. in depth are desilted annually by contract and maintain the flow throughout the year by departmental labour.
In the month of November-December in consultation with the area Municipal Councilors action plan was prepared for de-silting of Nullahs above 4 ft. in depth passing through various zones. The process of desilting is started in the month of March-April and completed by the end of June-July every year.
MCD has 96 permanent pumping stations located in low-lying areas prone to flooding. These stations are kept functional round the year to avoid water stagnation. In addition MCD deploys portable pumps every year at vulnerable points, which are identified by the MCD on the basis of preceding years stagnation water experience.
MCD sets up control rooms in all its twelve zones and one Central Control Room at Town Hall to monitor the flooding and water stagnation position in various party of the city and high capacity pump sets with diesel generators are deployed to function continuously and also suction machines available in each zone are put to service to remove blockages and water stagnations.
MCD has created Sanitation Task Force (STF) in each zone under the charge of Sanitary Inspector with one refuse removal truck and eight safai karmacharis with adequate equipments at his disposal and this task force is also equipped with wireless sets to attend the complaints more effectively.
MCD circulates in all twelve zones in every year the Monsoon emergency Plan containing all necessary information about the telephone numbers of important control rooms to be contacted in case of water stagnation, zone-wise details of Nullahs, list of vulnerable points, pumping stations, deployment of portable pumps alongwith map showing nullahs/drains of MCD.
MCD has identified 135 vulnerable points for deployment of portable pumps where large number of men and machinery was deployed to pump out the water during rains. More than 4.5 Lakh MT of silt has been taken out from all 1296 nullahs and dumped at three sanitary land fill sites located at Bhalswa, Ghazipur and Okhla Phase-I. MCD has taken all efforts to meet the emergency situation during monsoon; however, some times due to sudden downpour it takes some time to clear the water stagnation.
MCD maintains roads and footpaths besides other services being provided by various other wings of MCD.
As per report received from the Municipal Health Officer there has been decrease in cases of water borne diseases like cholera, gastroenteritis since the month of May 2006 and has been no increase in cases of water vector diseases after rainy seasons which is evident from month wise incidence of cholera and gastroenteritis from May 2006 to August 2006:-
Month Number of cases of
Gastroenteritis Cholera
May
9566 225
June 5206 114
July 5744 176
August
2494
(upto 20-08-2006) (upto
30-08-2006)
That
the Health Department of MCD has taken all measures for prevention and control of dengue. The activities undertaken by Health Department are year long and continuous activities, some of which include Health Education, Anti-Larval Operation, Vector Surveillance, Anti-Adult Measures, Legal Action, Monitoring, Capacity Building of Municipal Contractors/Engineers, etc. etc..
13. OP No.10 -P.W.D. has come up with the following pleas and claims:-
(i) That PWD is a construction and maintenance agency in respect of master plan road alongwith linked service for drainage, illumination and proper beneficial use of these roads by any commuter whosoever he/she may be, which does not amount to service within the definition of Section 2(1)(o) of the Consumer Protection Act, 1986
(ii) That PWD maintains master plan roads more than 100 feet of right of way in the capital city including ring road and outer ring road. The drainage system just required for drainage of roads through the side drains is maintained by PWD. Further connection of these drains is with the main drainage system being maintained by CSE, department of MCD. Thus the rain water falling on the roads and through the side drains ultimately gets discharged into the main drainage system being maintained by CSE department of MCD which further gets connected to the major drainage system being maintained by Irrigation and Flood Control Department before finally joining in Yamuna River.
Further that out of approximately 30000 km lane length of roads in Delhi, PWD has 2000 km lane length. The attached drainage system of roads is about less than 5% of the total drainage system and rest of the roads/drain are with other departments like NDMC, MCD, NHAI and Delhi Cantt. ctc. PWD are not negligent in providing good urban drainage system as it removes the silt before the raining season, cleanings of drains, repair and level roads and fill up the trenches already existing on the roads.
(iii) That most of the roads maintained by PWD did not suffer from water logging, chockage of drain etc. There were of course few locations where water logging had occurred on 18-07-2007 when an unusual rain outburst was experienced in some areas of Delhi.
All efforts were made to maintain the system adequately and effectively on this day as much as possible. The chockages were mainly due to poor civic sense of the commuters resulting in deposition of large number of polythene bags, waste articles like chappals, empty water bottle etc. OP No.10-PWD not failed in providing good urban drainage system, removing of silt before raining season, cleaning of drain, repair and leveling of roads. There is no deficiency in service on the part of OP No.2.
(iv) That on roads maintained by the agencies of PWD, no wide pit was reported anywhere nor seen by the inspecting officers except at one or two locations where small potholes were found which were rectified there and then. Traffic signals get affected due heavy rains and failure of electricity; however, traffic staff was deployed at such intersections to make orderly movement of traffic.
14. As regards O.P.4 NDMCs plea, it has inter alia, averred that the roads in the area governed by NDMC are the best in the city. Every year it spends huge amount in maintaining the roads, re-carpeting/repairs etc. and it is using the best material and technology for carpeting and resurfacing of roads in its area. It is suing Polymer Modified Bitumen (PMB) for the first time in Delhi for resurfacing of roads and using the latest technology available for making roads, i.e. Batch Mix Plant of 140 tonne per hour capacity and paver fitted with electronic sensor device. It is also using micro surfacing technology for pavement resurfacing that employs the use of polymer modified thin pavement providing longer life, better performance than the conventional method.
15. O.P. 5 DDA, inter alia, averred that the works like removing silt before rainy season, cleaning of drains, repair and leveling of roads and filling of trenches are not done by DDA and hence it cannot be held liable in any manner. DDAs limited role is preparation and implementation of Master Plan
17. Similarly, OP No.6- DJB has also absolved it from the charge of deficiency in service as according to it the entire episode was beyond the jurisdiction and control of the OP-DJB. There are no allegations against the DJB or its role or its obligations towards the consumers. No plea has been raised y the complainant that it was due to some or the other act of omission or commission on the part of the OP-DJB that might have caused or aggravated the situation o that day. Further that the DJB is assigned the role of water management and to collect and treat the sewage as provided in Section 8 of the Delhi Jal Board Act which categorically indicates the functions to be discharged by the Board. While distinguishing the types of disposal, learned counsel contended that there are two types of disposal. One is water disposal, which is done by storm water drains. Water disposal system is to be taken care of by MCD whereas the sewage disposal is that of the DJB and as such there is no connectivity between the two systems and there is no deficiency alleged against the OP-DJB so far as quality and adequacy of sewage disposal system is concerned. Choking of drains and other problems could not have been due to failure of sewage disposal system. So much so, the efforts made by the OP for rehabilitation and restoration of century old sewage system without disturbing the convenience of the public have been filed alongwith the affidavit, as detailed in the annexures of the affidavit.
18. O.P.7 Police Commissioner, in relation to maintenance of traffic on the fateful day came up with the version that every year Delhi Traffic Police shares the information with civic agencies regarding such roads which are affected by water logging during heavy rains. After every episode of water logging its consequences are again shared with the road maintaining agencies with some suggestions to solicit their help in ensuring de-flooding of the water logged roads. On 18thJuly, 2006 the following actions were taken:-
i) Traffic control room was alerted to collect information about the problem due to rains anywhere in the city.
ii) All traffic officers were mobilized to be available in their areas to patrol and monitor the movement of traffic in their respective jurisdiction and in any case of traffic problem they shall plan out local strategy to ease the discharge of traffic.
iii) Additional manpower was deployed in the affected areas.
iv) On getting information about roads being closed due to water logging diversions were planned and movement of traffic was ensured.
v) Due to water logging large number of bus and cars broke down causing obstruction and cranes were mobilized and put to use to tow away the breakdown vehicles in order to clear the roads and improve traffic flow.
vi) Motorists were also informed and educated through FM radio regarding traffic situation and closures of roads due to water logging. VMS atNH-24 was also used to educate and inform the motorists about the roads being closed due to water logging.
vii) Since traffic signals also get affected due to heavy rains and failure of electricity traffic staff was deployed at such intersections to facilitate orderly movement of traffic.
viii) Very large number of intersections was manned by traffic police personnel and control was put to manual mode to ensure speedy discharge of traffic to avoid inconvenience to motorists.
19. O.P. No. 8, Transport Authority has raised the following pleas as to its functions and liability:-
(i) Transport department is collecting road tax as per provision laid down in the Delhi Taxation Act 1962 and the entire amount collected on account of road tax is deposited in the Consolidated Fund of Delhi.
On the recommendations of the Finance Commission a fixed percentage of the amount of revenue collected is given to MCD and NDMC as part of taxes. In the year 2006-07 a sum of Rs. 435.60 crores will be given. To MCD Rs.
421.88crores and to NDMC Rs.13.72 crores as the share of taxes collected by the Transport Department in the year 2005-06 was given.
(ii) That the collection of road tax for vehicles registered in Delhi only from a fraction of the population where public amenities are provided for all irrespective of whether one pays tax or not.
The population of Delhi has grown manifold over a period of time when the infrastructure for basic amenities were created. Delhi not only caters to the residents of Delhi but also to the millions of people residing / commuting from the satellite towns of Delhi which ultimately results in pressure of population on the infrastructure which was originally built to cater to the indigenous population of Delhi.
(iii) As regards traffic jams, it is known fact that the number of people commuting from satellite towns to Delhi are increasing day by day and so is the pressure on Delhi roads.
The O.Ps have provided very efficient and good number of bridges, flyovers, under passes, subways etc. to provide congestion free movement. Thus they are striving hard for enhancement of basic amenities for the citizens of Delhi and discharging its duties as and when required effectively and promptly.
20. Stand of Union of India (OP No.1) is that no duty or obligations are cast upon the Government of India in respect of services provided by other agencies that resulted in the chaotic condition on the relevant day.
Moreover, the complainants have failed to spell out in any manner whatsoever as to the administrative or statutory obligations or any kind of functions that are assigned to the Government of India for the performance of service that were responsible for the upkeep of the drainage system, road etc.etc.
21. To determine whether or not the statutory and obligatory functions of any statutory or public authority or civic bodies like MCD and NDMC fall within the ambit of service as per provision of the Consumer Protection Act 1986 and whether or not the users of the civic services or any other services or functions performed by the statutory or public or civil authority are consumers because they have paid some house tax, road tax or any other tax including income tax directly or indirectly there is need to reproduce the definition of words Service, and Consumer as well as the word deficiency as provided by the Consumer Protection Act 1986.
Section 2(1)(o) defines the service as under:
Service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical, or other energy, board of lodging or both, [housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
Section 2(1)(d)(ii) defines consumer as under:
Consumer means any person who
(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 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,.
Section 2(1(g) defines Deficiency 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.
22. On behalf of complainants who claim themselves consumers of OP-authorities being the potential users of varied civic services, roads etc. provided and maintained particularly by the civic bodies MCD, NDMC and PWD from the public fund or exchequer, Mr. Dhawan, who is complainant No.1 contended that potential users of every kind of civic services being maintained or provided by the OP-authorities are consumers as there is distinction between sovereign and non-sovereign functions, statutory functions and obligatory functions. According to complainants when the statutory or civic bodies or public authorities take up functions relating to non-sovereign functions, they are accountable to all the beneficiaries as well as those who avail these services and the quality, standard and manner of performance of such services have to be tested on the anvil of definition of word deficiency provided by the Consumer Protection Act, 1986. Further they cannot escape their liability because of the multiplicity of authorities by passing the buck to one another.
23. It was further contended that all have been made parties to fix up liabilities, including the civic authorities and the authorities that are responsible or have one or the other kind of control over the concerned services and authorities.
24. In support of the contention that non-sovereign, statutory and obligatory functions of statutory or public or civic authority come within the purview of Consumer Protection Act, the complainants who were led by Mr. R.K. Dhawan have placed reliance upon a recent decision of the Supreme Court rendered in Standard Chartered Banks case reported in 2006 Vol. 5 SCC 727. Observations of Supreme Court are as under:-
That activities relating to non-sovereign powers of statutory bodies are within the purview of the Consumer Protection Act, 1986 which provides for formation of Commissions and Forums for deciding consumer disputes.
25. Mr. Dhawan has also contended that the Supreme Court has in Lucknow Development Authority Vs. M.K. Gupta (1994) 1 SCC 243 extended the concept of service to almost every obligatory functions of civic or public or statutory authorities as it has brought almost every kind of service under the words service of any description by making the following observations:-
The concept of service thus is very wide. How it (the concept of service) should be understood and what it means, depends on the context in which it has been used in any enactment. Clause (o) of the definition section defines it as under:-
Service means services of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.
It is in three parts. The main part is followed by inclusive clause and ends by exclusionary clause. The main clause itself is very wide. It applies to any service made available to potential users. The words any and potential are significant. Both are of wide amplitude. The word any dictionary means one or some or all.
In Blacks Law Dictionary it is explained thus, word any has a diversity of meaning and may be employed to indicate all or every as well as some or one and its meaning in a given statute depends upon the context and the subject-matter of the statute. Thus use of the word any in the context it has been used in clause (o) indicates that it has been used in wider sense extending from one to all.
The importance of the Act lies in promoting welfare of the society inasmuch as it attempts to remove the helplessness of a consumer as he faces against powerful business; producers have secured power to rob the rest. The might of public bodies which are degenerating into storehouses of inaction where papers do not move from one desk to another as a matter of duty and responsibility but for extraneous consideration leaving the common man helpless and shocked.
26. Another significant decision of the Supreme Court in this regard was rendered in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 wherein it was held as under :-
The Consumer Protection Act has a wide reach and the State Commission has jurisdiction even in cases of service rendered by statutory and public authorities and such authorities become liable to compensate for misfeasance in public office and an act which is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen.
27. Other relevant observations in this regard for penalizing these authorities by way of compensation to the consumers as check on arbitrary and capricious exercise of power or negligence are as under:-
The Commission/Forum must determine that such sufferance is due to mala fide or capricious or oppressive etc. It can then determine the amount for which the authority is liable to compensate the consumer for this sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of the law. It acts as a check on arbitrary and capricious exercise of power. It helps in curing social evil. It will hopefully result in improving the work culture and in changing the outlook of the officer/public servant. No authority can arrogate to itself the power to act in a manner which is arbitrary. Matters which require immediate attention should not be allowed to linger on. The consumer must not be made to run from pillar to post. Where there has been capricious or arbitrary or negligent exercise or non-exercise of power by an officer of the authority, the Commission/Forum has a statutory obligation to award compensation. If the Commission/Forum is satisfied that a complainant is entitled to compensation for loss or injury or for harassment or mental agony or oppression, then after recording a finding it must direct the authority to pay compensation and also direct recovery from those found responsible for such unpardonable behaviour.
28. Mr. Dhawan has referred to section 42 of the Delhi Municipal Act, 1947 that enumerates the obligatory functions for construction, maintenance, cleansing of drains and drainage works and of public latrines, urinals etc. and scavenging, removal and disposal of filth. These are as under:-
S. 42 - Obligatory functions of the Corporation
(a) the construction, maintenance and cleansing of drains and drainage works and of public latrines, urinals and similar convenience;
(b) the scavenging, removal and disposal of filth, rubbish and other obnoxious or polluted matters.
29. According to Mr. Dhawan all statutory and particularly obligatory functions of public and civil authorities assume the character of service as defined by section 2(1)(o) and the potential users who avail these services or for whose benefit these are provided and maintained through public fund are the consumers as defined by section 2(1)(d) (Supra).
30. As regards the consideration for hiring or availing these services, Mr. Dhawan has contended that it is not necessary that a person should hire any service against consideration to come within the definition of consumer. According to counsel if any by statutory public authority or civic body of service is made available to or availed by and is for benefit of potential users or people at large it falls within the ambit of service of any description as defined by section 2(1)(o) of the Act.
31. As against this learned counsel for OP No.2, who led the arguments as all other OPs also adopted the same argument, that services of OPs do not fall within the ambit of service as defined by section 2(1)(o) of the Act. To buttress his contention that neither, the statutory function of OPs come within the definition of service nor do the complainants fall within the definition of consumers. The learned counsel placed reliance on the following judgments:
(i) Lal Chand Vs Commissioner, MCD reported as II 1992 CPJ 363 (NC) National Commission has held as follows:-
the assessment and collection of house tax by the Municipal Corporation is not a consideration for any service rendered or to be rendered by the Corporation to the house owners of Delhi.
There is no service rendered by the Municipality. Any complaint about the levy and collection of such tax does not make the assessee a consumer as defined under the Consumer Protection Act, 1986.
(ii) 1996 (1) SCC 573 (Goels case), the Honble Supreme Court has pointed out that to enforce Statutory obligations one cannot approach the consumer forum.
There is no direct nexus between the complainants and the MCD or other authorities. Payment of Tax is done by a fraction of the population whereas public amenities like drainage etc. are provided for all irrespective of whether one pays tax or not. As such to enforce statutory obligations a consumer dispute cannot be raised before the State Commission.
(iii) Consumer Unity & Trust Society Vs. State of Rajasthan reported in 1 (1992) CPJ 259 (277) (NC) the Honble National Commission has held as follows:-
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 or 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 citizen and the expenditure incurred thereon will have to be met out the Consolidated fund of the State, it cannot be said that a tax levied for the general purposes of the State continues consideration for any specific facility, benefit or service provided by the State.
(iv) As per V.P. Shanthas case (JT 1995 SC 738) service should be paid for to attract the provisions of the Consumer Protection Act. The Tax on one hand and the statutory obligations on the part of Government and other authorities on the other are not inter-linked.
Tax is paid by some. However, the Statutory obligations are to be provided to all irrespective of such payment of tax. There should be hiring of service to attract the Consumer Protection Act.
(v) Regional Provident Fund Commission Vs. Shivkumar Joshi reported in 2000 (1) SCC 98, the Honble Supreme court has held as under :-
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 Section 2(1) (o) of the Act.
(vi) In 2001 (1) CPR 529 following view was taken :
The Government servants and the staff of the Accountant General Office of the Comptrollers and Auditor General maintain the 5records of provident fund of government servants, issue slips of deposits of fund and on retirement final payment are made to the subscribers. The government servants and the staff of the Accountant General in discharging their duties do not render any service for consideration, nor hiring of any service is involved. Hence, maintenance of General Provident Fund Accounts does not fall within the meaning of service.
(vii) A. Sriniwasa Murthy Vs. Bangalore Development Authority, Vol. II 1992 CPJ 395 following view was taken by the National Commission.
Complaint against Bangalore Development Authority cannot be legally sustained since the essential pre-requisite to an arrangement of hiring of service for consideration is totally lacking in this. Further that the payment of tax which goes into the general revenue of the city or legal authority will not constitute consideration for any specific service.
(viii) T. Sethuraman Vs. Goa, Daman & Diu Industrial Development Corporation 1992 CPJ 71 NC, in which it was held by the National Commission that :-
It may be that various organs, instrumentalities, institutions or agencies of the State make promises for providing infrastructure facilities to promote the growth of industry. But all these are promotional activities undertaken by the State and its agencies for promoting industrial development and without any specific consideration. Therefore, the complainants are not consumers as defined in the Consumer Protection Act, 1986 so far as the provisions of these services in services are concerned. On this short point, therefore, the petitions are not maintainable.
(ix) In M/s Signet Corporation Vs. Commissioner MCD, New Delhi & Others 1986-99 CONSUMER 4202 (NS) the National Commission gave the following opinion:-
That payment of tax which is levied in the exercise of the sovereign function of the State cannot constitute consideration even remotely as quid pro quo for any service rendered or likely to be rendered.
32. In the alternative learned counsel contended that even if it is assumed that they are consumers still the fact remains that there was no deficiency in service within the meaning of Section 2 (1) (g) of the Act.
According to the counsel, the complainants have not at all substantiated the allegation of lack of quality, nature and inadequacy in the manner of performance of any service which was required to be maintained by the OPs under the law or was undertaken to be performed by them nor have the complainants shown by way of evidence any fault, imperfection, shortcoming or inadequacy in this regard.
33. As to the amount of compensation, the learned counsel referred to the judgment in New India Assurance Co. Ltd. Vs. Sun Steel Industries vol. I 1997 CPJ 104, wherein it was held that a consumer, who suffers loss on account of deficiency in service has to substantiate the claim by placing relevant material on record and quantification of compensation has to be done on rational basis and the complaints either in the affidavit or in evidence have nowhere quantified the loss suffered by them or the persons similarly placed.
34. Accusation of neglect and deficiency in service are mainly against OP No.3 MCD, OP No.4- NDMC and OP No.8 PWD.
35. On merits the learned counsel for the OP NO.3 MCD has contended that heavy rain fall in an unprecedented way causing water-logging on roads cannot be characterized as deficiency in service.
Heavy rain was an act of nature or God because the OPs had taken all possible care in this regard. Steps and measures taken by the concerned agencies have been mentioned in their respective affidavit in evidence.
36. The learned counsel has contended that in order to avoid any such occurrence in future, MCD has taken several measures which is a continuous process and on that day also they did everything possible. The MCD has 1296 drains which are of 1-4 ft. depth and these drains have been desilted by NGOs, Departmental labour, Machines and Contractors. In the month of November-December, in consultation with the area Municipal Councillors, action plan was proposed for desilting of Nullahs above 4 ft in depth/width passing through various zones. The process of desilting started in the month of March/April and completed by the end of June.
37. According to the learned counsel, MCD has 96 permanent pump stations located in low-lying areas prone to flooding. These pumping stations are kept functional round the year to avoid water stagnation or inundation. MCD has adequate number of mobile pump sets and has set up Control Rooms in all its 12 Zones and one Central Control at Town Hall to monitor stagnation of water and flooding. MCD has filed the Plan of measures to be taken by it in this regard and the implementation report for the desilting of drains, nullahs etc. It was because of the unprecedented rain fall that the aforesaid measures as disclosed which are in vogue could not cope up and, therefore, there was no deficiency in service on the part of the MCD in not taking care of the drains etc. or the desilting thereof. MCD has created Sanitary Task Force in all zones. The task force is equipped with wireless sets, trucks etc. More than 4.5 MT silt has been removed and dumped at landfill areas like Ghazipur, Bhalswa, Okhla Phase I. The measures taken by the MCD in preventing dengue and other diseases have been shown in the table showing month-wise summary of activities.
38. It was further contended that as detailed in the affidavit, the MCD has taken several measures to check Dengue spread like biological method of control. The affidavit and the instant issue involves detailed evidence to be led and that too expert evidence and cannot be adjudicated in a summary proceedings as contemplated under the Consumer Protection Act as they are challenging system being maintained by the OP-MCD and the quality of the roads, material used and technology in making and re-making or carpeting or re-carpeting the roads and that complainants have not come out with any justification for claiming a compensation of Rs. One crore.
39. As regards deficiency in service on the part of OP No.8 PWD learned counsel has contended that it is not involved in the maintenance and providing of the drainage system. It was vehemently contended that it was not on account of failure on the part of the PWD to provide a good urban drainage system, removing the silt before rainy season, cleaning of drains, repair and leveling of road etc. as all efforts were made to maintain the system adequately and effectively by the collective measures of all the concerned civic agencies involved in maintaining such amenities in the city. The chockages were mainly due to poor civic sense of commuters resulting in deposition of large number of polythene bags empty water bottles, chappals etc.
40. The learned counsel for the OP No.4 NDMC has contended that the complainants have not specified any deficiency in service, which the NDMC was obliged to perform and any deviation from the standard, and therefore the NDMC cannot be faulted with any deficiency in service. NDMC is satisfied with the existing, past and present arrangements made in this regard. That the only allegation against NDMC is qua the maintenance of drainage system and poor roads. The complainants have not specified any area, locality or the road either in the complaint or in the pleadings where there are poor roads or drainage systems are faulty. The present complaint, in fact, should be a PIL and not a consumer dispute.
41. So far as other OPs are concerned, namely Government of India, Delhi Development Authority, Delhi Jal Board, State Transport Authority, Director Health Services, Central Public Works Department, their role is almost non-existent. So are their functions.
42. As regards the horrible traffic conditions in the city at every nook and corner at every given point of time no data was provided by the Police Commissioner. Nobody is sure at what time he will reach office and back home or Airport or Railway Station because there are snarls and jams due to inefficient management at the traffic points, particularly whenever there is manual controlling of traffic. There is paucity of personnel recruited and deployed to man the traffic problems as it cannot keep pace with the ever growing population city as well as the vehicles.
43. We have accorded careful consideration to the rival contentions of the parties, as well as, the observations made by the Supreme Court in Lucknow Development Authority and Ghaziabad Development Authority (Supra) as to the concept and connotation of words service of any description and potential users of any services being consumers and definition of word deficiency in service and the jurisdiction of the Consumer Fora and Commissions to compensate the consumer for the sufferings due to neglect of even obligatory function by the public or statutory or civil authorities and misfeasance in public office by the public officers the entitlement of consumers as to the compensation for loss or injury or harassment or mental agony or oppression suffered by them.
44. As regards the locus standi of complainants section 12 of the Act provides the answer. It reads as under:-
12.
Manner in which com[plaint shall be made.- (1) A complaint in relation to any good 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 Forum by-
(a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be provided;
(b) any recognized consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a member of such association or not;
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of, all consumers so intererested; or
(d) the Central or the State government, as the case may be, either in its individual capacity or as a representative of interests of the consumers in general.
45. As is apparent from the bare provision even one or more persons or voluntary organization or recognized consumer association can file a complaint before Consumer Forum/Commission where there are numerous persons having the same interest or for the benefit of all persons so interested.
46. In our view sovereign functions of any Government or public or statutory authority or civic body are quite distinct from statutory functions and statutory functions are also distinct from obligatory functions particularly the benefits of which are made available to or availed by public at large or there are potential users of those services that come within the ambit of obligatory functions as such services come within the ambit of expression service of any description.
47. Similarly all potential users or beneficiaries for whom such services are made available or used by them or are for their benefit irrespective of the fact whether they pay or do not pay any kind of tax or fees or cess are consumers provided that such functions are obligatory and are discharged and expenses are met from the public fund or exchequer or even consolidated fund as such a fund has an inherent element of consideration for making such services available to public at large and are availed by potential users or beneficiaries thereof.
48. The very nomenclature Public Fund or Exchequer or Consolidated Fund means a fund that belongs to public and as such is a consideration made by one and all for availing such services.
49. In our view obligatory functions like desilting and cleaning of drains, maintenance, relaying and carpeting of roads and quality of material used, maintenance of other civic amenities, removal of filth, rubbish and other such matters that may cause nuisance and spread an epidemic disease like Dengue, and effective traffic management and enforcement of rules, laws in this regard are services that are covered within the definition of service as these are made available through public fund/exchequer to potential users and beneficiary is the public at large. Such functions by no stretch of imagination can be termed as sovereign functions of public or statutory authorities or civic bodies or even of the Government under whose control such authorities or bodies function as according to Supreme Court, activities relating to non-sovereign powers of statutory bodies are within the purview of Consumer Protection Act, 1986.
50. Thus in our view where the whole locality or localities and thousands of people being potential users are affected by the non-performance, or deficient performance of the obligatory functions by the public or statutory authority or civic body causing immense sufferings, financial loss, mental agony, emotional suffering, physical discomfort, and other hazards including health hazards any one or more persons or consumer association or voluntary organization have the right to seek compensation and other remedies including punitive damages as provided under section 14 of the Consumer Protection Act for any kind of fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which amounts to deficiency in service..
51. Now on merits. After careful scrutiny to the claims and counter claims of the parties, we find that the claims of the MCD, about the work done by it have been exposed to be hollow so far cleaning and de-silting of drains is concerned as it is this single lapse that creates flood like situation. Others are regarding , maintenance, relaying and carpeting of roads and quality of material used, removal of filth, rubbish and other such matters that are health hazard and cause nuisance and spread diseases like Dengue. Large number of news reports supplemented with number of photographs bear testimony to this. Judicial notice can be easily taken of these reports and photographs as they speak for themselves.
52. MCD has admitted that the drainage has 4 ft. depth and 21 mm length. If 21 mm is the length knee-deep water cannot be logged if the drains are cleaned properly. Desilting is only 0.15%. To say that 4.5 mm desilting have been taken place upto July is absolutely false.
53. The plea that the drains were choked due to empty water bottles, chappals and other things lying on the mouth of the drainage is again false.
Even if there are plastic articles on the mouth of the drainage they float on the surface even in knee-deep water. Even if it was so, it was the duty of the authorities to make sure before the rainy season or on day to day basis that the mouth of the drains are cleaned and to remove any such object causing blocking of the drains etc.
54. For example, if silt becomes very old, it becomes concrete and then de-silting cannot work and then these have to be removed with machines.
Even if the rain is 10 mm the roads will neither be filled up nor there will be knee-deep water on the roads.
Thus there was no proper connection with main drainage of the lane drainage. Connection of the lane drains with the main drains at the mouth of the main drain caused inundation because of over flowing of the main drains.
55. In their affidavit the MCD has mentioned that total number of drains are 1299 and their length is 1585 kms. The length which is reported is also what was reported a decade back. With the mushrooming of unauthorized colonies which has also got connected there, the water got stored on the potholes and remained stagnant in the trenches.
56. Worst is the position with regard to maintenance and relaying or recarpeting of roads. Is it not mind boggling that Transport Authority alone has contributed Rs. 421.88 crores to MCD and comparatively meagre Rs. 13.72 crores to NDMC for the purpose of maintenance of roads in the year 2005-2006 alone. Many times more amount is earmarked through plan or non-plan expenditure for this purpose. Result is for everybody to see.
57. The claim of the NDMC that roads in their area are best in the city as it is using the best material and technology for carpeting and resurfacing the roads is a tall claim.
Had it been so the trenches of 1.1 x 8 would not have developed on the roads which are connecting NDMC, MCD as well as PWD roads. Bitumen polymers life is minimum three years. However, the condition of the roads of the NDMC and incidence of water logging may not be as bad as of those roads and areas maintained by M.C.D. Still there is lot of scope for improvement.
58. Claims of Health Department show that 11 deaths had occurred due to Dengue in 2005. Dengue and other types of mosquitoes started breeding 1 months after the filing of the complaint. The reported number of deaths appearing in the newspaper is more than 100. Same is the case as to the outbreak of cholera and other diseases.
59. On 18th July 2005 the traffic moved from one side and Bahadur Shah Zafar Marg was closed due to water logging. On the roads of Delhi there was a shocking water-logging, almost at every inter-sections of the city be it Greater Kailash, Bahadur Shah Zafar Marg, ITO, Ashram, Chittaranjan Park, Bhairon Marg which were the worst hit and at almost every other place which has been specifically mentioned in the report of the newspapers with photographs. These are self-evident. The entire Delhi was paralyzed and collapsed, roads disappeared, traffic stopped, rail, road and air traffic was worst hit. Even Dhaula Kuan sent ripples across Delhi. As a matter of fact Delhi went under water and almost drowned. Roads were in pathetic condition. So were the people.
60. As to the failure of concerned authority i.e. M.C.D. in performing obligatory functions and maintenance of quality of service, which was mammoth and of very high magnitude and affected the entire city, judicial notice can be taken of the news reports, write-ups replete with photographs showing each and every area falling having suffered due to unimaginable water logging. Even if we take judicial notice of 50% of what has been described and shown in the newspaper reports replete with photographs as true none of these authorities can escape from the liability and charge of grossest deficiency in service.
61. Proceeding on the aforesaid premise we find MCD guilty of extreme deficiency in service in not discharging its obligatory functions as a result of which the city crippled and life was paralyzed whenever there was heavy or little more than even normal downpour in the city and demonstrates hollowness or falsehood of their claims as this situation arose because of non-maintenance of drainage works and non-desilting and non-cleansing of drains, non-scavenging, non-removal and non-disposal of filth, rubbish and other obnoxious or polluted matters, non-maintenance of roads, poor quality of material used in relaying and recarpeting the roads that entire city faced helplessness before the might of public bodies which are degenerating into store-houses of inaction.
62. As regards traffic conditions police provide service from 8 AM to 10 AM and 4 PM to 7 PM. After 9 PM, there is no traffic personnel seen on the roads of Delhi. Study should be made as how many police personnel are required to regulate traffic at the given point of time particularly at peak hours. There appears to be no scientific study about worst hit points and areas. At places there are 5 to 10 traffic lights in a stretch of 2 to 3 kms whereas there should be none. Verges permitting the traffic to right direction are creating most of the problem. There is a free for all. There is no lane driving. There is no enforcement of traffic rules particularly overtaking by wrong sides and high speed. Every day so many deaths take place in the city due to rash and high speeding vehicles. Delhi is the only city in the world where there is road indiscipline and road rage of the highest magnitude. It is high time that Police Commissioner and Government of India take effective steps to ameliorate the plight of commuters lest it degenerates into storehouse of inaction.
63. In view of hundreds of deaths on Delhi roads and nobody is safe as there are large number of death warrants moving on Delhi roads in the shape of Blue line buses and heavy vehicles upstarts, neo-rich and street urchins on the wheels of luxury vehicles particularly in the age group of school and college students we recommend to the Government to invoke and amend provisions of Section 10 of Criminal Law Act by declaring offence u/s 304-A of IPC as Non-bailable as was done in case of offences u/s 506 of IPC which is pale as compared to offence u/s 304-A of IPC. Section 10 empowers the State Government to make certain offences cognizable and non-bailable in view of the worsening situation of crime or offence like 304-A. Section 10 reads as under:-
Section 10. Power of State Government to make certain offences cognizable and non-cognizable:-
(1) The State Government may by notification in the Official Gazette, declare that any offence punishable under Section 186, 189, 188, 190, 295A, 298, 505, 506 or 507 of the Indian Penal Code, when committed in any area specified in the notification shall not withstanding anything contained in the Code of Criminal Procedure 1898, be cognizable, and thereupon the Code of Criminal Procedure 1898 shall, while such notification remains force, be deemed to be amended accordingly.
(2) The State Government may, in like manner and subject to the like conditions, and with the like effect, declare that an offence punishable under section 188 or section 506 of the Indian Penal Code shall be non-bailable.
64. Acting under this provision a Notification dated 11-01-1933 was issued that offences under sections 186, 188, 189 and 506 of the Indian Penal Code made cognizable and non-bailable.
65. The main culprit in our view is M.C.D. who had caused miserable situation on 18th July 2006 and again after one year in April, May and June and on 2nd August, 2007 and now on 4th April, 2008 when Delhi drowned and collapsed have to be held guilty for grossest kind of deficiency in service as on both these days as well as on day when there was a down pour the whole city came to standstill. The raingods have busted the claim of MCD of cleaning and disilting of drains at heavy cost and exposed farce of preparedness.
66. NDMC is advised to improve its working of international level.
67. The object of the Consumer Protection Act 1986, in the words of Supreme Court lies in promoting society in as much as it attempts to remove the helplessness of the consumer as he faces the powerful business or mighty and monolithic public, statutory and civic authorities, that may degenerate into storehouse of inaction, inefficiency and grossest kind of deficiencies. No authority can arrogate to itself power to act in the manner which is arbitrary and unaccountable and not answerable to those for whose benefits and welfare these were set up and expenses are incurred from the public fund for discharging their obligatory or statutory functions benefit of which is made available to the large number of people and potential users of such services.
68. This Commission can make small effort as a deterrent for unprecedented water-logging throwing everything out of gear and control by awarding compensation to those who took up the cudgels and imposing punitive damages for grossest and inexcusable deficiency in service on the part of deligent authorities. We make the following order:-
(i) M.C.D. is visited with punitive damages of Rs. 25 lacs out of which Rs.25,000/- shall be paid to each of the complainants and balance shall be deposited with Sate Consumer Welfare Fund (Legal Aid)
69. Order shall be complied with, within one month from the date of receipt of this order.
70. Complaint is disposed of in aforesaid terms.
71. A copy of the order as per the statutory requirements be sent to the parties free of charge and therefore the file be consigned to Record Room.
72. Announced on 27th May, 2008.
(Justice J.D. Kappor) President (Rumnita Mittal) Member jj