EXECUTIVE OFFICER, CUTTACK MUNICIPALITY vs RABI SINGH

THE Executive Officer, Cuttack Municipality, the opposite party in C.D. Case No. 253 of 1993 before the District Forum, Cuttack is the appellant in the appeal. He has challenged the final order passed by the District Forum directing the Municipality to make arrangements for daily removal of cow-dung and other filth from the premises of one Sri Narendra Das milkman within 15 days from the date of communication of its order. A cost of Rs. 200/- has also been awarded against the appellant by the District Forum. Hence this appeal.

THE complainant filed this case alleging that his immediate neighbour is a milkman who keeps a herd of cows comprising more than 40 heads in the adjoining premises. Huge heap of cow-dung in the open field and accumulation of urine and other waste materials piled up adjacent to the residential boundary of the petitioner pollutes his well water and emitting bad smell and promoting breeding of mosquitoes. THE complainant approached the Municipality for removal of the nuisance. But no action having been taken, he has prayed for compensation for the deficiency in service. He has claimed a sum of Rs. 2.60 lakhs for physical and mental agony and suffering by him and, also for the loss of his creative thought and for his abandonness and cost of the proceeding. The present appellant being noticed in the said case appeared and filed a written version. Apart from challenging the maintainability of the case on several grounds it was contended that the complainant was not a consumer within the definition of the Act. It was also contended that all steps had been taken by the Municipality against the said milkman who had been carrying on the business of keeping a herd of cows without taking any licence from the Municipality.

The District Forum after considering the case of both parties, came to a conclusion that the Municipality is guilty of not discharging its statutory obligations towards the citizens arid directed that it should make arrangements for daily removal of cow-dung from the premises of the said milkman. The District Forum did not award any compensation against the Municipality, but awarded a cost of Rs. 200/-as litigation expenses. Hence this appeal.

THE primary question that was required to be considered by the District Forum is as to whether the complainant was a consumer within the meaning of the Act. While deciding the said question, the District Forum referred to a decision reported in 1991 (1) CPR 757 (N. Tripathy v. Executive Officer, Cuttack Municipality and Another) and came to hold that this case being a similar one to that was decided:-in the said reported case and accordingly held that the complainant was a consumer. It has been urged by the learned Counsel appearing for the appellant that it has now been well settled that a tax-payer is not entitled to any corresponding service as there was no element of quid pro quo with the case of tax-payer of the Municipality. Admittedly all that can be said is that the complainant before the District Forum was a citizen within the jurisdiction of the Municipality and is a tax-payer. His allegation is that his neighbour is a milkman in whose premises cow-dung and urine get accumulated polluting the atmosphere. It is, self evident from the narration in the complaint/petition that the complainant has not hired or availed of any service for consideration far less he has paid any consideration for the same. Payment of tax if at all may be for his own holding and'' that again it is different from fee on receipt of which the Municipality is obliged to render some service to the fee-payer. It may be that the Municipality has not discharged its responsibility as per the provisions of the Orissa Municipal Act and the Rules framed thereunder, but the Consumer Forum cannot entertain such a dispute inasmuch as the complainant is not a consumer nor the dispute presented comes within the purview of consumer dispute.

IN the result, we set aside the impugned judgment and allow this appeal. Since the respondent has not entered appearance in spite of. notice we award no costs. Appeal allowed.