COMMISSIONER, CITY CORPORATION OF BELGAUM vs SANGOUDA MALAGOUDA PATIL

THIS appeal by the opposite party-the City Corporation, Belgaum, is directed against the order dated 29.5.93 passed by the District Forum, Belgaum, in Complaint No. 162/1991, directing the opposite party to pay a sum of Rs. 31,000/- to the complainant as compensation.

THE facts, briefly, stated are as follows : THE complainant is a resident of a house situated in Plot No. 25 at Rukmini Nagar at Belgaum, averred that the opposite party, the City Corporation, Belgaum even though collected the development charges from all the residents of the colony but failed to lay down roads and gutters and it also failed to supply water connection to the complainant and the other residents of the locality. THE complainant further averred that on 7.5.89, while approaching his house slipped in front of his house and sustained a fracture to his left leg. THE complainant thereafter took treatment for a prolonged period till the end of December, 1989. During this period, he was unable to attend his occupation as an Advocate. THE complainant suffered mental agony. The complainant further averred that alongwith other residents of the locality he had also instituted a suit in OS. No. 214/1986 on the file of the Additional Munsif, Belgaum, seeking the relief of mandatory injunction directing the Corporation to supply water, street lights, roads, etc. The said Suit was decreed and the appeal filed against the said order was also dismissed.

On the basis of these averments, the complainant sought compensation in a sum of Rs. 50,000/- towards injury, Rs. 10,000/- towards pain and suffering and Rs. 30,000/- towards loss of income and Rs. 9,000/- towards expenditure.

THE opposite parties filed their version and averred that the Corporation had provided all the amenities to the house-holders in that area including the complainant. THE opposite parties averred that the complaint of the complainant does not constitute a complaint under the provisions of the Act, and so, the complaint was untenable under law. The opposite parties, on the basis of these averments, sought the complaint to be dismissed.

DURING enquiry, the complainant examined himself as PW1 and got Exhibits P 1 to P 3 marked in evidence. Opposite party examined its Sheristedar as DW 1. The District Forum on consideration of this material placed on record by the parties held the complainant is a ''consumer'' and awarded compensation in a sum of Rs. 31,000/- to the complainant. We have called for the records and received. We have also heard the learned Counsel for the parties. Perused the material on record.

THE grievance of the complainant is that even though the opposite party, the Municipal Corporation collected the developmental charges but failed to lay roads, gutters and supply of water, in consequence of which, on 7.5.89 the complainant slipped in front of his house while approaching his house on the road and sustained fracture of his left leg.

THE District Forum held that there is much difference between the tax and developmental charges, and so, the developmental charges collected by the opposite party would amount to consideration, and in that view, held the complainant as ''consumer''. This view taken by the District Forum, in our opinion, is erroneous.

The developmental charges collected from the residents of the locality by the Corporation would also amount to a ''tax''. This amount collected by the Corporation would be only initial payment of tax by a person who intends to construct a house. The Corporation in maintaining the system of water supply and the roads to the complainant and other residents of the locality within the Municipal limits, does it, only in the discharge of its statutory duty.

THE National Commission considered such an aspect of the matter in THE Mayor, Calcutta Municipal Corporation v. Tarapada Chatterjee & Ors., reported in I (1994) CPJ 99 (NC) held as under :- "After hearing the Counsel for the parties and going through the records of the case it has become clear that the complainant is paying only "property tax'' to the Corporation, the levy of which is based on the annual value determined as per the provisions of Section 174 of the Calcutta Municipal Corporation Act, 1980. THE construction and maintenance of the water works and providing means for supply of water for public and private purposes is specified in Section 29 of the said Act as one of the obligatory statutory functions of the Corporation and it is only in the discharge of said statutory duty that the Corporation is maintaining the system of water supply to the respondents within the Municipal limits. THE complainant is getting the water supply to his premises only by virtue of the performance of the statutory duty by the Corporation. In the order dated December 15,1989 passed by this Commission in Consumer Unity and Trust Society v. THE State of Rajasthan & Ors., (F.A. No. 2 of 1989) II (1991) CPJ 56, the question whether the payment of a tax can constitute payment of ''consideration'' for the ''hiring'' or ''availing'' service ''for consideration'' has been discussed in detail and after referring to the rulings given on the point by the Supreme Court of India, it was held that payment of tax to Government which goes into the consolidated fund of the Union of India or State cannot constitute a payment of ''consideration'' forthe ''hiring'' or ''availing of a service. In the light of the principles laid down in the said decision, it is manifest that the contrary conclusion recorded by the State Commission and the District Forum is incorrect and they have acted illegally and without jurisdiction in holding that the dispute raised by the complainant about the inadequacy of pressure in the water supply system is a ''consumer dispute that can be adjudicated upon under the Act."

This Commission considered such an aspect of the matter in Sri. A. Srinivasa Murthy v. Chairman, Bangalore Development Authority, reported in I (1991) CPJ 657 held as under: "That there is no quid pro quo between the tax paid and the general duty of the BDA. Hence, we see no force in the contention of Smt. Gayatri Balu tax paid by a resident of the locality is a consideration for the services to be rendered by the BDA. Hence it cannot be said that the complainant by paying house tax which includes health cess has hired the services of the BDA for consideration for the purpose of removing the menance of stray dogs. The result is that the complainant is not a consumer within the meaning of Section 2(1)(d)(ii)of the Act and on that score alone his complaint has to be dismissed."

THE State Commission, Punjab, in Smt. Prem Lata v. Municipal Committee & Anr, reported in III 1994 CPR, Page 320 has taken the same view as under : "Over flowing of sewerage.-Complainant slipped and fell down in the ditch of manhole - Complainant-appellant cannot be said to be consumer and complaint was not maintainable - Order of the District Forum awarding compensation is liable to be set aside."

Having regard to these facts and in the circumstances of the case, we are of the considered opinion that the complainant cannot be classified as a ''consumer'' under the provisions of the Act and the dispute raised under the complaint cannot be classified as a ''consumer dispute''. The District Forum did not properly consider this aspect of the matter, and so, finding recorded by the District Forum is clearly erroneous and unsustainable. In the result, therefore, this appeal is allowed. The order of the District Forum dated 29.5.93 recorded in Complaint No. 162/1991 is set aide. The complaint is dismissed.

THE parties are directed to bear and pay their own costs. Appeal allowed.