State Consumer Disputes Redressal Commission
Bathinda Development Authority vs Surinder Pal Gupta on 24 August, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 971 of 2012
Date of institution: 23.07.2012
Date of Decision : 24.08.2015
Bathinda Development Authority, Bhagu Road, Bathinda through its
Divisional Engineer
.....Appellant
Versus
1. Sh. Surinder Pal Gupta, Advocate S/o Sh. Naurata Ram Gupra,
Gaushala Road, Mansa.
2. Executive Officer, Nagar Council, Mansa.
3. President, Nagar Council, Mansa
.....Respondents
4. BDA, Bathinda, through its J.E.
5. BDA, Bathinda, through its Administrator.
6. BDA, Bathinda, through its S.D.O.
....Proforma Respondents
Argued By:-
For the appellant : Sh. Balwinder Singh, Advocate
For respondent No.1 : None
For respondents No. 2&3: Sh. H.K. Aurora, Advocate
For respondents No.4 to 6 Proforma Respondents.
First Appeal No. 975 of 2012
Date of institution: 24.07.2012
Date of Decision :24.08.2015
H.S. Sahota, Divisional Engineer, Bathinda Development Authority,
Bathinda.
.....Appellant
Versus
1. Sh. Surinder Pal Gupta, Advocate S/o Sh. Naurata Ram Gupta,
Gaushala Road, Mansa.
2. Executive Officer, Nagar Council, Mansa.
3. President, Nagar Council, Mansa
.....Respondents
4. Bathida Development Authority, Bathinda, through its J.E.
FIRST APPEAL NO. 971 OF 2012 2
5. Bathida Development Authority, Bathinda, through its
Administrator.
6. Bathida Development Authority, Bathinda, through its S.D.O.
....Proforma Respondents
Argued By:-
For the appellant : None
For respondent No.1 : None
For respondents No. 2&3: Sh. H.K. Aurora, Advocate
For respondents No.4 to 6 Sh. Balwinder Singh, Advocate.
First Appeal No. 638 of 2012
Date of institution: 21.05.2012
Date of Decision : 24.08.2015
1. Executive Officer, Nagar Council, Mansa.
2. President, Nagar Council, Mansa.
.....Appellant
Versus
1. Sh. Surinder Pal Gupta, Advocate S/o Sh. Naurata Ram Gupta,
Gaushala Road, Mansa.
2. Bathida Development Authority, Bathinda, through its X.E.N.
3. Bathida Development Authority, Bathinda, through its J.E.
4. Bathida Development Authority, Bathinda, through its Administrator.
5. Bathida Development Authority, Bathinda, through its S.D.O.
Respondents
Argued By:-
For the appellant : Sh. H.K. Aurora, Advocate
For respondent No.1 : None
For respondents No.2 to 5 : Sh. Balwinder Singh, Advocate.
First Appeals against the order dated
17.04.2012 passed by the District Consumer
Disputes Redressal Forum, Mansa.
FIRST APPEAL NO. 971 OF 2012 3
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member Mrs. Surinder Pal Kaur, Member Gurcharan Singh Saran, Presiding Judicial Member This order will dispose of three appeal bearing F.A. No. 971 of 2012, F.A. No. 638 of 2012 and F.A. No. 975 of 2012 as all the above referred three appeals have arisen out from the order dated 17.04.2012 passed in C.C. No. 300 of 20.09.2011 passed by the District Consumer Disputes Redressal Forum, Mansa (hereinafter referred "the District Forum") vide which the complaint filed by the complainant was allowed with the directions to the OPs jointly and severally to pay consolidated amount of compensation amount of Rs. 50,000/- out of which half of the amount will go to the Consumer Welfare Fund maintained by the Forum. OPs will jointly and severally be liable to pay litigation expenses to the tune of Rs. 10,000/-. OPs were further directed to remove the garbage and the water logged on the road within 60 days from the date of receipt of copy of the order.
2. A consumer complaint was filed by the complainant against OPs on the averments that he was paying house tax to OPs time to time alongwith sewerage charges. His sewerage unit No. was 785 and 786. A few days back OPs had lifted the level of road by raising construction from Gaushala to Railway crossing which caused non disposal of stranded water on the road. The work was not conducted by OPs in proper technical manner as a result of that foul smell emanated from the blocked water and the complainant was FIRST APPEAL NO. 971 OF 2012 4 unable to stay in his house for 2-3 days. Even the water entered in his shop. During the rainy season the situation become more grim and the water entered in the house and office of the complainant. The act of OPs amounted to deficiency in services which necessitated the filing of the present complaint seeking directions to OPs to prepare the road at a proper level and to make the arrangements for disposal of the water and to pay Rs. 50,000/- as compensation and Rs. 10,000/- as litigation expenses.
3. The complaint was contested by OPs. OPs No. 1 & 2 in their written reply took the preliminary objections that the complainant had no right to file this complaint, the complaint was not maintainable, the complainant had no locus standi to file this complaint, the complaint was bad for non-joinder and mis-joinder of parties and that the complainant had filed this complaint just to harass OPs which was liable to be dismissed with special costs of Rs. 10,000/-. On merits also house tax receipts issued by OPs were admitted. Other allegations of the complainant were denied. The road was not constructed by OPs No. 1 & 2, therefore, he does not have any knowledge about the disposal of the water. There was no water stranded at the spot. The road was constructed by Bathinda Development Authority and it was their duty to make arrangement for disposal of the water. There was no deficiency in services on the part of these OPs. The complaint was without merit and it be dismissed.
4. OPs No. 3 to 6 in their written reply took preliminary objections that the complainant was not the consumer qua OPs No. 3 to 6 as the complaint was not maintainable against them and that OPs No. 1 & 2 FIRST APPEAL NO. 971 OF 2012 5 are to maintain the water channel and keep the lid on the sewerage holes properly to avoid accidents. On merits, it was submitted that they have no knowledge with regard to deposit of house tax by the complainant with OPs No. 1 & 2. The railway crossing was 7-8 feet high to the level of the road. Generally on the main road the water stagnated at some places and the height of road was raised. The road was constructed from zero level from village road and was raised up 5-6 towards the railway crossing. The side by shopkeepers and the public in general throw their garbage into the water channel which stopped the water flow and water stagnated at the lower level. The road constructed by OPs No. 3 to 6 was constructed as per the requirements. It was the duty of OPs No. 1 & 2 to maintain the water channels and to give the proper cleaning to the water channels for smooth flow of water. The problem was temporary in nature as and when the garbage was cleaned then the water runs properly in the water channels. There was no deficiency on the part of these OPs. The complaint qua them was without merit and it be dismissed.
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence affidavit of Deena Nath Ex. C-1, affidavits of Rajesh Kumar Ex. C-2 & Ex. C-3, affidavit of Paras Ram Ex. C-4, affidavit of Prem Sagar Ex. C-5, affidavit of Hoshiar Singh Ex. C-6, affidavit of S.P. Gupta Ex. C-7, copy of degree and judgment sheet Ex. C-8, copy of newspaper cutting in Hindi Bhaskar Ex. C-9, copy of newspaper cutting in Punjab Kesri Ex. C-10, photographs Ex. C-11 to FIRST APPEAL NO. 971 OF 2012 6 Ex. C-17 and closed the evidence. On the other hand OPs No. 1 &2 tendered into evidence affidavit of Kulwinder Singh EO Ex. OP-1, affidavit of Atamjit Singh President Ex. OP-2, copy of order dated 07.09.2011 Ex. OP-3, copy of order dated 16.09.2011 Ex. OP-4, copy of resolution Ex. OP-5, copy of office order Ex. OP-6 and closed the evidence whereas OPs No. 3 to 6 tendered into evidence affidavit of Sh. H.S. Sahota, XEN Ex. OP-3/1, copy of letter dated 09.09.2011 Ex. OP-3/2 and closed the evidence.
7. After going through the allegations of the complainant in the complaint, written reply filed by the OPs, evidence and documents brought on the record, the learned District Forum accepted the complaint in terms referred above.
8. Aggrieved with the order passed by the learned District Forum, First Appeal No. 638 of 2012 was filed by OPs No. 1 & 2, First Appeal No. 971 of 2012 by OP No. 3 and First Appeal No. 975 of 2012 was filed by Sh. H.S. Sahota, Divisional Engineer, Bathinda Development Authority.
9. We have heard the learned counsel for the parties and have perused the record.
First Appeal No. 638 of 2012:-
10. Counsel for the appellant/OPs No. 1 & 2 has contended that the order passed by the learned District Forum is liable to be set- aside as the order was passed only on the basis of sole statement of respondent/complainant. Learned District Forum failed to appreciate whether the complainant is consumer qua these OPs. He has contended that as per the averments in the complaint he has alleged FIRST APPEAL NO. 971 OF 2012 7 that he is paying the house tax to OPs, therefore, he is the consumer and the directions be given to the OPs to make proper disposal of the water and cleanliness of the water channels by the side of the road. Otherwise dirty water entered into his shop as well as to his house. Whereas counsel for appellant/OP No. 1 & 2 has contended that mere payment of tax is not sufficient to come within the definition of consumer because that tax is not for consideration of any specific services. He has referred the judgment passed by this Commission titled as "Laxmi Narain Goel Vs. Punjab Water Supply & Sewerage Board & Ors" (1993) III CPJ 1333 in which it was observed as under:-
"4. The learned counsel for the complainant-appellant has vehemently argued that the members of the public pay house tax and other taxes to the Government and that the sewerage system is maintained by the Punjab Water Supply & Sewerage Board out of the revenue so secured and the payment of taxes is therefore, sufficient consideration for the service of maintenance of sewerage system. This argument of the learned Counsel misses the most essential feature of the concept of hire. The consideration for hire, be it called fee, charge or rent is that it is voluntary payment, it is open to a person to make the payment and hire the service or refuse to pay and forego the service. A tax on the other hand is a levy or imposition made by the Government for public purpose. There is no element of voluntariness in the payment of FIRST APPEAL NO. 971 OF 2012 8 tax. No tax payer has the option to refuse to pay the tax legally imposed on him. It is, therefore, clear that the payment of tax to the government cannot be construed as consideration for the services rendered by the Government.
5. This point has been answered directly by the National Commission in "Consumer Unity and Trust Society, Jaipur Vs. State of Rajasthan", (199 (1) C.P.R. 241: II (1991) CPJ 56). It has been held in that decision that the payment of taxes cannot be regarded as consideration for service rendered by the Government. The same principle applies to taxes paid to the Municipal Committee. We, therefore, agree with the conclusion of the District Forum and hold that the complainant-appellant is not a 'consumer'.
Similar view has been taken in judgment reported as "A. Srinivasa Murthy Vs. Chairman, Bangalore Development Authority", reported in (1992) II CPJ 395, it was held by the Hon'ble National Commission that payment of tax which goes into the general revenue of the State or local authority will not legally constitute payment of consideration for any specific service. Even Hon'ble Supreme Court in its judgment reported as "Municipal Corporation of the City of Baroda Vs. Babubhai Himadal" (JT 1989(3) SC 437) has taken the same view. The identical view was again reiterated by the Hon'ble Supreme Court in "Sreenivasa General Traders Vs. Andhra Pradesh & Ors." (supra) where the Court observed thus: FIRST APPEAL NO. 971 OF 2012 9
"The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest. If the element of revenue for general purpose of the State predominates the levy becomes a tax."
Relied upon the judgment of Hon'ble Kerala High Court reported as "Thrissur Municipal Corporation Vs. Ummer Koya Haji" 2007 (1) ICC 587 in which it was observed that the complaint would not lie before a Consumer Forum or Commission in respect of payment of property tax. It was observed that sovereign functions exercised by local bodies by way of collection of taxes like property tax, profession tax and other taxes, do not fall within the expression "services".
11. Counsel for the complainant/respondent No. 1 was not available to contradict this plea and judgments referred by counsel for the appellant. Learned District Forum has not considered the proposition of consumer and service provider and only relied upon the judgment of Hon'ble Supreme Court titled as "Lucknow Development Authority Vs. M.K. Gupta" III (1993)CPJ 7 with regard to the functions of public functionary. In case public functionary acts maliciously or oppressively and the exercise of power in harassment and agony, then it is not an exercise of power but its abuse of power then public authorities are responsible for it and must suffer for it. But there is no evidence on the record that the FIRST APPEAL NO. 971 OF 2012 10 disposal of the water was not made maliciously or oppressively to the suffering of the public.
12. In view of the above discussion, we are of the opinion that the complainant does not come under the definition of consumer. Mere payment of tax does not give any right to the complainant for specific service. Therefore, we are of the opinion that the order so passed by the learned District Forum is not legally sustainable and is liable to be set-aside.
13. In view of the above discussion, we accept the appeal and the order against OPs No. 1 & 2 is set-aside. Consequently the complaint filed by the complainant against OPs No. 1 to 2 is hereby dismissed with a liberty to the complainant to approach any other appropriate forum/authority for the redressal of his grievance.
14. The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. The amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the registry to appellant No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court. F.A. No. 971 of 2012 and F.A. No. 975 of 2015
15. These appeals have been filed by Bathinda Development Authority and its officers. It has been contended by the counsel for the appellant that the complainant does not come within the definition of consumer as defined under section 2 (i) (d) of the Act. It was contended that they have not developed any urban estate at Mansa FIRST APPEAL NO. 971 OF 2012 11 to which they are required to maintain. The road in question was constructed by them as per the order passed by Government. The complainant is not paying any tax to Bathinda Development Authority, therefore, there is no relationship of consumer and service provider between the complainant and OPs No. 3 to 6, therefore, liability against OPs No. 3 to 6 has been wrongly fixed and the said order is liable to be set-aside.
16. As is clear from the plea taken by OPs No. 3 to 6 in their written reply, the road was constructed by OPs No. 3 to 6 as per the instructions of the government otherwise it was the responsibility of OPs No. 1 & 2 to maintain the internal roads of the city. It is for OPs No. 1 & 2 from which agency they take the assistance. Ultimately it was the responsibility of OPs No. 1 & 2 to properly maintain the roads and stranded water and proper disposal of the water in water channels by the side of the road for which Bathinda Development Authority is not responsible. Learned District Forum did not give any findings how the complainant is consumer qua OPs No. 3 to 6. No tax or any other consideration was paid by the complainant to OPs No. 3 to 6 for construction or maintenance of the road. Therefore, we are of the opinion that the penalty has been wrongly assessed against OPs No. 3 to 6. Counsel for respondent No. 1/complainant was not available to contradict the plea taken by counsel for the appellants. Therefore, we are of the opinion that the order so passed by the learned District Forum is not legally sustainable and is liable to be set-aside.
FIRST APPEAL NO. 971 OF 2012 12
17. In view of the above discussion, we accept the appeal and the order against respondents No. 3 to 6 is set-aside. Consequently the complaint filed by the complainant against OPs No. 3 to 6 is hereby dismissed.
18. The appellants had deposited an amount of Rs. 15,000/- in F.A. No. 971 of 2012 and Rs. 5000/- in F.A. No. 975 of 2012 with this Commission at the time of filing the appeal. Both these amounts with interest accrued thereon, if any, be remitted by the registry to appellant by way of a crossed cheque/demand draft after the expiry of 45 days from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
19. The arguments in these appeals were heard on 18.08.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
20. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member August 24 , 2015. (Surinder Pal Kaur) RK Member