DAMRU PRASAD KESARWANI vs C.K. DUBEY

THIS is an appeal under Section 15 of the Consumer Protection Act, 1986 directed against order dated 19.11.2003 passed by District Consumer Disputes Redressal Forum, Raigarh (hereinafter referred to as ''the District Forum'' for convenience) dismissing Complaint No. 46/1996 filed by one Narayan Prasad Kesarwani.

ONE Narayan Prasad Kesarwani, resident Sarangarh had filed a complaint on 26.9.1996 against C.K. Dube, Sub-Engineer, Irrigation Department, Raigarh, Sub-Divisional Officer, Irrigation and Executive Engineer, Irrigation Raigarh before the District Forum, Raigarh. The appellant/complainant has averred that he holds 10 acres of land in village Jhariyapara, PC No. 20 Sarangarh. The said fields are irrigated from the Kodar Dam and irrigation charges are collected from him. It is averred that he had sown Sarna paddy on those lands in 1995. During the year 1995 he was not provided water for irrigating the Kharif crops in time in the year 1995 although 3 feet deep water was available in the Kodar Dam. Despite personal requests to Shri C.K. Dube, Sub-Engineer (respondent/opposite party No. 1) and serving notices through Advocate to respondent Nos. 2 and 3 the appellant/complainant could not get any relief.

The appellant/complainant has claimed a loss of 300 bags of paddy expected from the said lands. Owing to failure on the part of Irrigation Department to inspect his fields and equal distribution of water the complainant has lost the produce. It is also alleged that no meeting of the villagers was called regarding water supply. Despite paying irrigation tax he was not provided water for irrigating paddy crop on his land. The complainant has prayed for award of compensation for loss to the crop of 300 bags of paddy @ 30 bags per acre. The amount of compensation is calculated at Rs. 90,000/-. In addition an amount of Rs. 50,000/-for mental harassment and cost of this case have also been claimed.

THE original complainant Narayan Prasad expired during the pendency of the complaint and the appeal is filed by his successors. The appellant/complainant has filed his own affidavit as well as the affidavits of Rasia s/o Jaitram and Gularam s/o Sadhu in support of his contentions. The appellant/complainant had also served a written notice to the respondent/opposite party through his Advocate on 1.11.1995 stating his complaint.

RESPONDENTS/opposite party Nos. 1 and 3 have not cared to file any reply to the complaint. Only respondent/opposite party No. 2 Sub Divisional Officer in his reply dated 26.3.2003 has stated that water could not be made available to the appellant/complainant during November, 95 due to shortage of water in the Kodar Dam. Respondent No. 2 has also stated in his reply that the Kharif crop is irrigated between July to October only and water was made available from the Kodar Dam to the cultivators and hence no question of damage to the crops arises. The learned District Forum has vide the impugned order dismissed the complaint on the ground that the agreement for supply of water specifically contains a condition that no claim for damages or compensation shall lie in case of failure to supply of water. Irrigation of fields and other ancillary matters are governed by the Chhattisgarh Irrigation Act, 1931 and the Chhattisgarh Irrigation Rules, 1974 framed under the said act (hereinafter referred to as the Irrigation Act and Irrigation Rules respectively). Water from canals is supplied as per terms of agreement under Section 37(1)(a) of the Act. The charges for supply of water are notified under Section 2, of the Irrigation Act.

SECTION 47(d) of the Act specifically bars claims against Government for any loss arising from failure or shortage in supply of water for irrigation. The appellant/complainant had also signed the agreement prescribed under Rule 84 of the Irrigation Rules. As per Clause (1) of Part I of the agreement water is to be delivered equitably subject to its being available. It may be noted that Clause (1) of Part III of the agreement clearly lays down that ''the State Government does not undertake to supply our demands in full at all times and the fact that it is unable to or fail to do so does not entitle us to claim a remission of the water rate or any other concessions''.

THUS the District Forum by the impugned order was justified in holding that no claim for any compensation or damages lies for failure to supply water for irrigation. However, the District Forum has neither discussed nor given any finding on the allegation contained in Para 6 of the complaint that the respondents/opposite parties neither inspected the dam nor called a meeting of the cultivators. This appears to have been informed by the complainant to the respondents through a registered notice dated 1.11.1995. In reply to the said notice the respondents have informed the complainant to remain present in the Amin office on 4.11.1995.

Rules 100 and 101 of the Irrigation Rules prescribe that at least one month ahead of the crop season a meeting of the Sarpanchas and prominent occupiers of the land of irrigated area along with departmental officials shall be invited by the Executive Engineer to apprise them with the water storage position and for consultation to determine the area, which can be brought under canal irrigation. Such programme is also required to be published.

THUS it appears that the respondents/opposite party have failed to follow the procedure laid down under Rules 100 and 101 and have thus committed deficiency in service. Due to failure of the respondents to follow the procedure the appellant/complainant has been deprived of an opportunity to make alternative arrangements and to plan the crop pattern to be followed. In view of the above in our opinion the respondents are liable for deficiency in service and should pay a compensation of Rs. 1,000/- (Rs. one thousand only) to the appellant/complainant.

THE appeal is, therefore, allowed. THE impugned order is set aside. It is directed that the respondents shall pay a compensation of Rs. 1,000/- (Rs. one thousand only) to the appellant. THE respondents shall also pay Rs. 500/- (Rs. five hundred only) to the appellant as cost of this complaint. Appeal allowed.