BARAGARH MUNICIPALITY vs GUNANIDHI DASH

THE Baragarh Municipality through its Chairman and the Executive Officer of the said Municipality who were opposite parties 1 and 2 in C.D. Case No. 87 of 1994 before the District Forum/ Baragarh are the appellants in this appeal challenging the final order passed by the District Forum in the said case. THE present respondent No. 1 as the complainant filed the aforesaid case representing a Consumer Association and ventilating the public grievances in respect of non-maintenance of some tanks within the limits of Baragarh Municipality. It has been alleged in the complaint petition that there are five tanks in a row situated in the heart of the Baragarh town out of which four tanks were transferred in favour of the Municipality. It has been stated that the Municipality was duty bound under the provisions of the Municipal Act to maintain the tanks which are used by the inhabitants of the locality for various purposes. According to the allegation in the complaint petition, the Municipality does not take any care to maintain those tanks and as a consequence, the tanks have been the source of dumping of filth and spread of diseases. It has also been alleged that the public at large who use the said tanks for various purposes have been deprived of the use of the water of those tanks as the same has become unfit for human use. A prayer was made for penalising the Municipality for the aforesaid deficiency in service and for a direction to the Municipality to maintain its tanks, ghats and the ridges. THE complainant also claimed a compensation of Rs. 1,000/for the injury sustained by him.

IN the counter filed by the opposite parties, they denied all the allegations made in the complaint petition and also contended that there has been no deficiency in service on their part. The maintainability of the proceeding was also challenged on the ground that the complainant is not a consumer as defined in the Act as the Municipality does not render any service for consideration the deficiency of which could be called in question. The Collector who has joined as opposite party No. 3 in the said case did not contest the case. The District Forum after considering the case of the both parties, came to the conclusion that the complainant is a consumer as defined in the Act and as the Municipality has failed in its duty in maintaining the tanks/ it consequently held that the present appellants were deficient in rendering services to the consumers and allowed the case of the complainant. Although no compensation was awarded, the District Forum directed the opposite parties to clean the garbages of the tanks and to take steps to clean the polluted water thereof and to maintain the same in order that it would be usable by human beings. The Collector of the District was directed to see that the tanks are not polluted either through dumping of garbages or discharge of drain water into the same. None appears for the appellants nor for the respondent at the time of hearing.

We find that this appeal was filed late and the delay was 18 days. This Commission issued notice to the respondents to show cause but nothing has been said against the ground taken for condonation of delay. In the application for condonation of delay, it has been alleged that the present appellant received the copy of the order on 2.5.1995 and the matter was required to be decided by the Municipal Council as to whether any appeal is to be preferred or not. It is stated that by a resolution of the Municipal Council dated 9.6.1995, it was decided to prefer the appeal before the State Commission and accordingly the matter was referred to their Counsel for the purpose. It has also been stated that the appellants were under a bona fide impression that the period of limitation is 90 days and not 30 days by which they were misled and the appeal has been filed on 11.7.1995. Since there is no opposition, we liberally considered the application for condonation of delay and the delay is thereby condoned.

COMING to the merits of the matter, the main question that arises for consideration is as to whether the District Forum has jurisdiction to entertain the dispute as a consumer dispute for adjudication. It is true that the complainant or those on whose behalf the application was made are inhabitants within the limits of Baragarh Municipality and might be tax-payers. We do not dispute that the purpose of this case to say that the Municipality exists for the welfare of the taxpayers and the inhabitants of the said locality. It may be one of the duties of the Municipality to keep the town free pollution and take adequate care if any tank gets polluted either by deposit of filth or otherwise. But the question that arises for consideration is as to whether the complainant is a consumer in relation to the Municipality as per the definition in the Consumer Protection Act. The Act defines a consumer in relation to service as a person who hires or avails of service for consideration. Tax is a statutory liability imposed by a statute irrespective of any corresponding services rendered to a tax-payer. It cannot be a consideration for any service. Even though there are no averments in the complaint petition that the complainant as an association or the persons whom it purports to represent are tax-payers in the Baragarh Municipality, we assume it to be so. But even then in our consideration none of them can be said to be consumer as defined in the Act as the element of availing of service for consideration is absent in this case. The District Forum referring to some decided cases, came to a conclusion that a statutory organisation or a Government organisation is not exempted from the provisions of the Act. We endorse our concurrence to the aforesaid conclusion of law, but the complainant not being a consumer as defined in the Act, the dispute presented could not be categorised as a consumer dispute for involving the jurisdiction of a District Consumer Forum for redressal. It is true that the complainant is a registered Consumer Association whose intention in filing this dispute was for public welfare and what the District Forum has directed is also aimed at the same object. But all that we apprehend is that it could not be issued as a direction under the Act by a Forum created for deciding consumer disputes. Our conclusion, therefore, is that even though this Commission sincerely desires that the tanks within the Municipality area should be kept clean and free from pollution and that the Municipality should take adequate care for its maintenance, but we are afraid that such wishes cannot be translated into directions. We, therefore, allow this appeal and set aside the impugned judgment. It is, however, desired by this Commission that the Secretary, Urban Development Department of the Government of Orissa, would take appropriate steps in this behalf by requiring the concerned Municipality to discharge its statutory functions. A copy of this judgment may be sent to the Secretary. Housing & Urban Development Department, Orissa, Bhubaneswar. Appeal allowed. ____________