GARHWAL JAL SANSTHAN vs PURAN CHAND

THIS is an appeal by the Garhwal Jal Sansthan against the order dated 6.12.2003 passed by the District Forum, Dehra Dun by which the learned Forum has passed the order that the bills of the complainant be issued according to the meter reading and amount of excess deposit made by the complainant be refunded to him or be adjusted in future bills. The learned Forum has also allowed the compensation of Rs. 1,500 in favour of the complainant.

THE prayer of the complainant was that Engineer First Class of Garhwal Division Jal Sansthan may kindly be ordered to restore pressure of water supply and give bills in future based on actual consumption of water. Thus we find that there were two reliefs: (1) to restore pressure of water supply, (2) to give bills in future based on actual consumption of water shown by the meter and consequently refund the excess amount paid by the complainant. The date of the complainant has not been mentioned anywhere. The complainant was also unable to mention the actual date of complaint without the records of the District Forum but at least it was filed in 1999, as it was Complaint No. 635/1999. On 20.6.2000 the complainant has filed his affidavit before the learned Forum, in which he has specifically alleged in para 8 that the low water pressure has been corrected by engaging the services of a plumber last month. Hence there is no grievance in this regard now. The learned Forum also held in its judgment referring this affidavit at page 3 that in view of the affidavit of the complainant that his water pressure has been corrected, no further proceeding in this respect is to be taken on by the Forum.

The only dispute, which remains open, was that whether the bills should have been issued on the basis of the actual meter reading or on flat rates as issued in this particular case. There is U.P. Water Supply and Sewerage Act, 1975 and in Section 59 of the Act, there is specific provision that the Jal Sansthan instead of taking the charges on the basis of actual consumption, can charge on fixed rates. On the basis of this section and on the basis of the rights to create Rules under the Act, certain rules have been created and in one such rule, the charge was Rs. 40 in the urban area where the house is fitted with the meter. The consumer has further to pay service charges of Rs. 2 and Rs. 5 as meter rent. In this way the complainant has to pay a sum of Rs. 47. Again by amendment the rate has been enhanced to Rs. 50 as published in the Gazette Notification dated 9th January, 1999. Again the rate has been enhanced by Gazette Notification dated 18th October, 2003 to Rs. 75.

THE complainant has furnished a chart along with his complaint and during the course of arguments as well such chart was produced before us. Firstly we shall not make calculations. We have not to see the chart month wise and to give a correct finding what should have been the actual charge. It is a matter of dispute to be agitated in Civil Court but definitely the rates charged by the Jal Sansthan are not higher as given in the Government Gazettes. It is the option of the Jal Sansthan to charge either on the basis of the meter reading or on the basis of the minimum charges as provided under the rules, which have got statutory effect. The option is not that of the complainant to pay on the basis of either of the two. He cannot compel the Jal Sansthan to charge on the basis of actual consumption and not on the basis of fixed rate. If the learned Forum or for that purpose this Commission issues a direction to the Jal Sansthan to charge only on the basis of the meter reading and actual consumption and not at he flat rates, we shall be taking the legal rights of the Jal Sansthan, for which we are not authorized to do. For that purposes the complainant may challenge the vires of the Act or Rules itself, which can be done only in the Hon''ble High Court. If he wants to challenge the rights and wants to make calculations and accountings, he can file a civil suit in the Court of competent jurisdiction but if the appellant has charged on the basis of flat rates, which is permissible to it under law, there is no deficiency in service on their part and if there is no deficiency in service, there is no consumer dispute.

IN the ruling reported in I (1994) CPJ 99 (NC), The Mayor, Calcutta Municipal Corporation v. Tarapada Chatterjee and Others, it has been held that the water supply is the statutory duty by payment of tax. One does not hires services of the municipality and the dispute in respect of inadequacy in the water supply system is not a consumer dispute. The same view has been propounded by Chennai State Commission in the ruling reported in II (2004) CPJ 183, President, Panchayat Board, Ilanchi and Another v. Arunachalam and Another. Even otherwise the Jal Sansthan is a statutory authority. We fully obey the ruling reported in III (1993) CPJ 7 (SC)=AIR 1994 Supreme Court 787, Lucknow Development Authority v. M.K. Gupta, that even statutory authorities are amenable to the jurisdiction of the Consumer Forums but under the Water Supply and Sewerage Act, 1975, there is specific provision under Section 30 of the Act that any dispute arising between the Jal Sansthan and the consumer shall be referred to the Nigam whose decision shall be final. No recourse to this provision of law appears to have been taken. The complainant has alleged that he has moved several applications to the Jal Sansthan but he was not heard. There is difference between the miscellaneous application and a petition for the disposal of dispute under Section 30 of the Act. No such application appears to have been given. The complainant is free to agitate the matter before the authority constituted under this Act as well, although we do not say that the present complaint is not maintainable on that ground. The learned Counsel for the complainant made several objections in respect of the appeal and one such objection was that the appeal is barred by time. We are surprised at this argument. The order has been passed on 6.12.2003. The appeal has been filed on 5.1.2004, i.e., Monday. There was saturday and sunday, on which day there is no sitting of the Commission. Therefore, although the period of limitation is 30 days, last 2 days holidays are excluded and also either the date of judgment or date of filing of appeal is excluded, i.e., one day either at this end or that end, the appeal is well within time. The last two days on which there was no sitting are to be excluded for the purposes of limitation. Then on 17.12.2003 there was application for taking copy of the judgment. It was received the same day. If that date is included, then also the appeal becomes to have been filed even much earlier. The learned Counsel for the complainant argued that since the affidavit of Sh. G.D. Raturi was sworn in on 7.1.2004, therefore the appeal filed on 5.1.2004 is defective one and, therefore, it shall be deemed to have been filed after 7.1.2004. This argument is fallacious. Any appeal, as filed, may be defective. The defects are cured. The appeal shall be deemed to have been filed on the date on which it has been filed and shall not be deemed to have been filed on the date on which the defect was cured. This plea, therefore, is fallacious and the appeal cannot be rejected on this ground. The appeal has been filed on 5.1.2004. The affidavit appears to have been filed on 7.1.2004. It was argued that condonation of delay was not prayed. There is absolutely no need of application for condonation of delay, when there is no delay at all. It was argued that the appellant has not followed the provisions of Rule 8(3) of the U.P. Consumer Protection Act, under which the parties are obliged to file all the supporting documents along with their memorandum of appeal. Even if there is any breach of this rule, that is not mandatory. The appeal can be said only to be defective and the defect can be cured at any time. It was argued that the rules, notifications, Act have not been referred before the learned Forum. Section 59 was not referred there. May it be so, legal pleas can be raised at any time. It was further argued that the appellant did not lead any evidence before the learned Forum in spite of the fact that several dates were given. It is the complainant who has to prove his case by legal evidence. If the appellant did not reply, it cannot be said that merely for that ground, the complaint may be allowed, even if it is not proved. It was argued that the pleadings were not verified and affirmed by the appellant. The strict rules of pleadings and procedure of CPC does not apply to these summary consumer proceedings.

REGARDING other pleas on merits we have already replied above. In our view this was not a consumer dispute, therefore, the complaint could not have been filed before the learned Forum. Secondly Garhwal Jal Sansthan is a statutory body. It is discharging its statutory duties and if under provisions of Rules and Law, the Garhwal Jal Sansthan makes charges on flat rates instead of meter reading, it cannot be said to be a deficiency in service. Thirdly even in the reply against the memorandum of appeal, also the complainant has alleged that it is doubtful whether the rules, etc. are there or not. If one has to challenge statutory rules and vires of any Act or Law, he has to file a writ petition in the Hon''ble High Court. Fourthly there is provision under the Act itself for reference of dispute. The complainant could have invoked that jurisdiction by proper complaint. Lastly as a Consumer Fora, we have to decide cases summarily, we are not obliged to hear long arguments and examine voluminous evidence and to enter into the question of accountancy. Therefore, also the complainant if so interested can invoke the regular jurisdiction of the Civil Court but the complaint as it is, is liable to be dismissed and the appeal is fit to be allowed. One part of the relief claimed has already become infructuous, i.e., regarding restoring pressure of water supply. ORDER The appeal is hereby allowed. The order dated 6.12.2003 is hereby set aside. The complaint is hereby dismissed with a liberty to the complainant to agitate the matter before the Jal Sansthan Authorities under Section 30 of the Act or to file a civil suit before the Civil Court of jurisdiction and if he has to challenge the vires of the Act, etc., he may file a writ petition in the Hon''ble High Court and in the event any such proceeding is initiated, the finding recorded by the learned Forum or this Commission shall not be treated as an expression of opinion on any of the points involved in the case. Cost throughout shall be easy. Appeal allowed.