KUNWAR SUDHAKAR SINGH vs CHIEF ENGINEER, IRRIGATION DEPARTMENT

THIS complaint has been filed by Sri Kunwar Sudhakar Singh, Sri Prabhakar Singh and Sri Diwakar Singh, all residents of village and Post Office Tindola, Pargana Deva, Tehsil Nawabganj, District Barabanki against Chief Engineer, Irrigation Department, Lucknow; Executive Engineer, Sharda Canal, Barabanki; Executive Engineer, Sharda Canal Khand-XXV, Barabanki; and Collector/District Magistrate, Barabanki.

BRIEFLY stated the allegations contained in the complaint are as follows. The complainants are the owners of cultivatory plot Nos. 498M, 499M and 592M, measuring 0.215 hectares, 0.263 hectares and 2.566 hectares respectively situated in village Tindola in Barabanki District. The minor canal known as Gadia Rajbaha flows along side the above plots. A drain also exists there to flow out excess water of the above canal and also the rain water of the area. The canal and drain are under the supervisions of opposite party Nos. 2 and 3 respectively. The complainants irrigate their plots from the water of the Gadia Rajbaha and pay irrigation charges to the opposite parties, and therefore, they are the consumers of the service provided by the opposite parties. In the year 1991, the southern bank of the above canal had been broken due to over-flowing of water which caused loss of the crops of the complainants. A number of complaints were made to the higher authorities but because of negligence of the opposite parties who are responsible for maintaining the banks of the canal and the drain, the banks of the canal were broken and the flow of water coming to the plots of the complainants could not be checked. The drain was also silted which resulted into stoppage of flow of water from the drain. The complainants have been hit-hard and this grievance arises every year due to breaking of the banks of the above canal. The farming is the sole source income of the complainants and due to negligence of the Irrigation Department which are the opposite parties, they have been deprived of the livelihood. In the year 1991, the loss occurred to the complainants during the Kharif Season was Rs. 41,000/- and the loss during the Rabi Season was of the order of Rs. 40,700/-. In the year 1992 the loss in Kharif Season was of the order of Rs. 50,750/- and during the Rabi crop in the same year it was of the order of Rs. 55,000/-. Thus the complainants suffered a loss of Rs. 1,87,450/- which the opposite parties have to compensate to the complainants. A claim was, therefore, lodged for Rs. 1,87,450/- alongwith the cost. Prior to the lodging of the complaint, a number of representations were made to the various authorities like Kisan Seva Kendra; District Magistrate, Barabanki; Bhartiya Kisan Union, Barabanki; District Agriculture Officer; and to the Departmental Officers but no relief was provided hence a claim before the Commission. An affidavit in support of the complaint was also filed by the complainant which has been accompanied by a number of documents relating to the irrigation of the plots and copies of other correspondence.

The opposite parties filed the written statement, repudiating the allegations of the complainants. It was alleged that the complaint is not maintainable under Section 12 of the Consumer Protection Act. The Irrigation Department is the Department of Government of U.P. which provides irrigation facilities under canal command on the basis of protective irrigation and not as assured irrigation and opposite parties are not covered under the provisions of Consumer Protection Act. Gadia Distributory Canal provides water for irrigation to cultivators of many villages including village Tindola and irrigation charges are levied against cultivators only for the water provided for the purpose. No charges are levied by the opposite party No. 3 which controls the Tindola Drain, therefore the complaint does not fall within the object and scope of Consumer Protection Act, 1986. In case of any loss of crop, there is a provision for preferring a claim for compesation under the provisions of Northern India Canal and Drinage Act 1873. The claim has to be preferred before the Collector within a period of one year. The complainants have not claimed for any compensation before the Collector, Barabanki. The said Act provides for appeal which can be filed for claiming compensation against the State Government in Civil Courts. Such an appeal was not filed by the complainants. No other cultivators of village Tindola had complained of loss to the crop. The plots belonging to the complainants are situated in low-lying land which are usually flooded. As per the rules of the Irrigation Department no remission is provided on Kharif crop shown in low-lying areas. In the circumstances, the complainants are not entitled to any compensation.

IN reply to the Supplementary Affidavit filed by the complainants, the opposite parties filed their Counter Affidavit and stated that as per the orders of the Government, irrigation cess is levied on the cultivators for the irrigation and the same is entered in Jamabandi. The persons who do not use irrigation water are not charged such a cess. It is not true that the crop of the complainants had been damaged because of the cutting of embankment of the minor canal and if a loss has been caused to the complainants, this could have preferred their claims before the Collector of the District. The embankments of the minor canal were maintained by the Department and the fact of the matter is that the fields of the complainants are in the low-lying area where even during the normal rainy season water logging persists, no compensation is allowed as per the rules of the Department for loss in such circumstances. The canal remains closed in the month of April and even during that month the fields of the complainants were water logged. The canal was closed from 27.3.1992 to 8.6.1992 and from 2.4.1993 to 11.6.1993 and inspite of this as per statement of the complainants their plots remained water logged for a period of two years. This clearly indicates that the plots in question are situated in low-lying area. In the replication affidavit, the complainant denied the allegations contained in the written statement of the opposite parties. It was specifically stated that even the Chief Development Officer, Barabanki during his inspection had directed the Department concerned that breach in the embankment of the Canal be immediately attended. A number of documents have been filed alongwith the affidavit by the complainants.

WE have gone through the evidence on record. The main contention of the opposite parties is that the irrigation facilities provided by the Department are not assured facilities but they are of protective nature. The irrigation cess is levied on the cultivators who use irrigation water and as per the rules of the Department, certain rates are fixed crop wise and for the facilities availed charges are levied and the same are entered in Jamabandi which are collected by the Revenue Authority of the Tehsil like Land Revenue etc. The cess so levied is not the one like the consideration paid to the electricity or telephone departments etc. A perusal of the Northern India Canal and Drainage Act, 1873 will go to show that compensation may be awarded for stoppage or diminution of supply of water, damage done in respect of any right to a water-course or the use of any water to which any person is entitled. Such a claim for compensation as per the provisions of the above law has to be preferred to the Collector of the District. This remedy has not been availed by the complainants. Moreover, a perusal of the above legislation goes to show that the compensation is provided mainly for diminution of water which means an act of diminution or the amount by which something diminishes. Here it is not a case of diminution but the allegations in the complaint speak of the fact that there have been breaches in the embankment of the canal with the result that more flow of water was there and the fields cultivated by the complainants were water logged or inundated which caused loss to both the yearly crops to the complainants during two consecutive years. In view of the above discussions, we find that remedy to the complainants was not available under the provisions of Northern India Canal & Drainage Act, 1873. Now the next question is whether the complaint is maintainable under the Consumer Protection Act. As discussed in the earlier part of this judgment, the irrigation charges or the irrigation cess is levied on those who are the beneficiaries of irrigation and the charges are entered in the Jamabandi and realised like the land revenue through the Tehsil Authorities. This clearly proves that those not using irrigation are not levied with such charges. The Department of Irrigation is a statutory department of the State Government and it is for the welfare of the cultivators that this protective measures of providing irrigation is provided by the Government. Thus, while charging for irrigation, the Department does not work in the capacity of a Commercial Organisation and the charges so paid could not be called as consideration as enumerated in the Consumer Protection Act, 1986. Similarly the services provided by the Department of Irrigation would not fall in the category of the service provider for a consideration as detailed in the Consumer Protection Act. A perusal of the file of the complaint case goes to show that the drain meant for drainage of excess water is also maintained by the Irrigation Department. The complainants'' case is that due to silting in the drain the water did not flow further and was not able to check the flow of excess water of the canal or of the rainy water. As per the rules for maintenance of the drain, charges are not levied on the local irrigation users. This strengthens the plea of the opposite parties that the irrigation provided is not an assured one and is a protective facility.

THE complainants have relied on the evidence that they had written to the Kisan Seva Kendra that due to breaking of the embankment of the minor canal their crops have been totally damaged. THEy have also placed reliance on the inspection report of the Chief Development Officer, Barabanki. In para 6 of the report, the Chief Development Officer has observed that there has been a breakage in the canal which has resulted into loss of the paddy crop and the wheat crop has also been adversly affected. It was directed that the Canal Department should find a permanent solution to this problem. THE opposite parties in the counter affidavit have stated that during the years 1991 and 1992 the work was done to the strengthen of the embankment. It is a matter of common knowledge that in the villages embankment of the minor canals known as Rajvahas often get breakage and from time to time the Department of Irrigation takes up the repair work. In the process, it is quite possible that areas specially the low-lying plots get flooded but this does not mean that the Department is solely responsible for this. THEre is no reason to disbelieve the plea of the opposite parties that the area owned by the complainant was a low-lying one. Had it not been shown a number of other cultivators would have come forward with the same type of complaint.

WE have also heard the learned Counsel for the two parties. The learned Counsel for the complainant had stated that the Irrigation Department was under obligation to compensate the loss of the complainants because irrigation dues have been paid by the complainants. He has drawn our attention towards the judgment and order passed by Hon''ble High Court of Andhra Pradesh in Writ Petition No. 11566 of 1990 decided on 11.9.1990 in the case of K.V. Krishna Reddy v. District Consumer Disputes Redressal Forum & Ors. The subject matter of this writ petition was a complaint regarding lapses in execution work of repairs of canals by contractors due to complicity of officials of P.W.D. and contractor. In this case, it was held by the Hon''ble Court that the complaint was entertainable by District Forum. A perusal of this judgment goes to show that the work entrusted by the Department to the contractor was defective and the service that was being rendered by the contractor was deficient. In this complaint case, there are no such ingredients. The complainants merely alleged that due to breach of the embankment of the minor canal water logging had taken place and damage to the crops had occurred and these aspects have already been dealt with in the earlier part of this judgment. The learned Counsel for the opposite parties has argued that remission under rules of the Canal Act is provided if the damage to the crop is by failure or stoppage of supply of water from the canal. He has further argued that the land in question is 700 mtrs. away from the canal and the growers who have the land in the immediate vicinity of the canal have not complained. We are, therefore, inclined to agree with the learned Counsel for the opposite parties that the land in question was/is in the low-lying area.

The learned Counsel for the opposite parties has drawn our attention to the judgment and order of Haryana State Commission reported in I (1996) CPJ 314, Superintending Canal Officer v. Tara Chand. In this case it was held that the land owner aggrieved by certain actions of the authorities of the Haryana State Minor Irrigation and Tubewell Corporation, while undertaking the work of lining the water course etc., invoking the jurisdiction of the Consumer Forum would not be attracted. In this judgment and order, the State Commission of Haryana has discussed the order of the National Commission dated 19.12.1994. The concluding portion of the aforesaid order passed by the Hon''ble National Commission reads as under : "In our opinion, the State Commission was, therefore, manifestly in error and has acted without jurisdiction in holding that there was deficiency in service on the part of the revision petitioner Haryana State Minor Irrigation Corporation and awarding relief against it. In the result, this revision petition is allowed and the order passed by the State Commission is set aside. The complaint/petition is dismissed."

IN view of what has been discussed above, we find that there has been no deficiency of service on the part of the opposite parties and above all the complaint is not maintainable under the Consumer Protection Act and the same is liable to be dismissed. The complaint is dismissed. There will be no order as to cost. Let copy of this order be made available to the parties as per rules. Complaint dismissed.