K.V. Krishna Reddy vs District Consumers Dispute Redressal Forum

Radhakrishna Rao, J.—This writ petition is filed for the issue of a writ of prohibition by holding that the District Consumers Disputes Redressal Forum (District Judge, Nellore) Nellore, the 1st respondent herein, has no jurisdiction to entertain the complaint in C.D. No. 320 of 1990 filed by Edula Venkaiah and four others, who are respondents 5 to 9 in the writ petition under the Consumer Protection Act, 1986.

The petitioner, a contractor for execution of work for restoration and repairs to Sarvepalli Canal and Jaffar Saheb Canal in Nellore District challengers and action of the 1st respondent in entertaining a complaint in C.D. No. 320 of 1990 u/s 12 of the Consumer Protection Act, 1986 thereinafter referred to as ''the Act'') and in passing an order in I.A. No. 110 of 1990 dated 4.8.1990 prohibiting the authorities of the Public Works Department who are impleaded as respondents 2 to 4 in the writ petition from payment of the amount to the petitioner and the other contractors as one without jurisdiction, arbitrary, unfair and unjust.

Respondents 5 to 9, who are agriculturists and are having lands that are being cultivated with the water supplied through Survepalli Tank Supply Channel, filed a complaint before the 1st respondent complaining about the following lapses in execution of the works entrusted to the petitioner:

(i) There are no pre-existing levels of the Survepalli and Jaffer Saheb Canals recorded by the competent authorities before awarding the contract works and thereby it has become impossible to measure the actual works done by the contractors in relation to the qualification of the earth work. This gives scope for entering fictitious measurements by the subordinates of the opposite parties, to benefit the contractors and to cause loss to the beneficiaries including the complainants.

(ii) The excavated earth which is in the nature of de-silting the channels is not being carted out as per the specifications but the same is being deposited on the channel banks giving scope of get the channels silted up again when the Monsoon comes.

(iii) The subordinates of the opposite parties who are responsible for measuring the excavated work are making preparations to enter fictitious measurements on the higher side than what is actually carried out on ground and thereby inflate the bills for payment to the contractors.

It is also alleged by them that though these lapses were brought to the notice of the opposite parties by the complainants, they never cared to look into the lapses and set right the matters and there is any amount of scope for loss to the public exchequer and to the complainants. Therefore, they requested the 1st respondent to direct respondents 2 to 4 to execute the works as per the specifications and to defer recording of measurements connected with the said work till the works are completed and also to appoint an Advocate-Commissioner to verify the facts of compliance of the execution of works according to specifications. They have also requested for payment of Rs. 10,000/ - towards compensation from the persons responsible for the negligence of executing the said contract works.

The facts that led to the filing of the complaint before the 1st respondent are as follows: Sarvepalli Tank Supply channel in Nellore District is one of the ancient and largest channels which branches off from Pennar river at Nellore. The total length of the said channel from the Head Sluices of the Anicut at Nellore to Survepalli Tank is about 25 kms. The Government never made any attempt for the effective maintenance of this tank. On the representation made by the agriculturists, the Government of Andhra Pradesh for the first time sanctioned about Rupees fifty lakhs for causing de-siltation of the canals under Pennar Delta Ayacut. Out of the said amount a sum of Rs. 29,66,000/ - has been set apart for various works connected with de-siltation and repair works of Sarvepalli Tank Supply Channel. While so, the Superintending Engineer, Irrigation Circle, Nellore, called for tenders from various contractors to execute the work of desilting and to carry out repairs pursuant to his tender notice Nos. 2 and 7 of 1989-90 and the relevant works were awarded to some of the contractors including the petitioner. The complaints who are having lands who felt aggrieved that they may not get sufficient water due to ineffective carrying out of repairs to Tank Supply Channel filed complaints before the Vigilance Department and also before the Pubic Works Department. As no action has been taken by the respective authorities and as the water is being released to the canals by the end of August, 1990 they have approached the Consumer Forum u/s 12 of the Act. They have also relied upon the news item published in various newspapers on this subject.

Pending disposal of their application, they have also filed an interlocutory application requesting the 1st respondent to appoint an Advocate-Commissioner to visit the various works restoration and to take the measurements of every item of work as the contractors in complicity with the officials of the Department are not excavating the earth in the bed of the channel and if the water is released there would not be any traces of deficient work. They have also prayed not to make any payment in respect of restoration and repair works entrusted to various contractors. The 1st respondent passed an order appointing one Sri P. Amarender Reddy as Commissioner to inspect the works and report whether the work is being done as per the specification and useful to the agriculturists.

Sri M.V. Ramana Reddy, the learned Counsel for the petitioner mainly contended that the 1st respondent has no jurisdiction to go into the complaint filed by respondents 5 to 9 and the District Forum has exceeded its jurisdiction in passing the order and restraining the officers of the Department from issuing the cheques for the work that has been carried out by them.

The Consumer Protection Act, 1986 has been enacted by the Parliament to provide for better protection of the interests of consumers and it seeks to promote and protect the rights of consumers. Section 2(3)(ii) defines "consumers" as follows:

2(d) ''consumer'' means any person who

(i) xxx xxx xxx

(ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised or partly paid and partly promised or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.

Section 2(g) defines ''deficiency'' means ''any fault, imperfection, shortening or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

The word ''service'' is also defined u/s 2(o) of the Act which reads as follows:

(o) ''service'' means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment, amusement or the purveying news'' or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

A combined reading of these definitions would amply demonstrate that any beneficiary who found deficiency of inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force, and if such service which is made available to the potential users and includes the provision of facilities but does not include rendering of any service free of charge or under a contract of personal service, is entitled to file a complaint before the Forum that the services mentioned in the complaint suffered from deficiency''.

Since the complainants, i.e., respondent 2 to 9 are Ayaputdars and they are paying water cess and drainage cess at Rs. 40/ - per acre claim to be entitled to file a Complaint if they find that the work that has been entrusted by the Department is defective and the service that is being rendered by the Contractor is deficient. They have also complained that an obligation is cast on the Government to provide services to the ryots from whom water cess and drainage cess is being collected to maintain the canals and they are the ultimate beneficiaries of such services. Since there will be diminution of water due to siltation which has not been done since so many years and they are the sufferers if there is no sufficient water in the canals and therefore they an be styled as consumers under the Act and they are entitled to file a complaint before the Forum. I think there is some substance in the grievance of the complainants. It is not in dispute that the Government owes a duty to remove the silt in the canals and the Ayacutdars who are paying the cess have a right to receive sufficient quantity of water from the canals after the canals are disilted. Whether the work that has been entrusted by the Government to the petitioner and other contractors as per the specifications has been carried out or not is a matter in dispute. The grievance of the complainants prima facie discloses that there is some complicity between the officials of the Department and the contractors. When the complainants who are the ultimate sufferers due to non-silting of the canals and they have also aired a grievance of complicity between the officials and the contractors who are entrusted with the work of desiltation and the material evidence that was available at that time may not be available after water is released in the canals by the end of August 1990, the complainants are entitled to approach the 1st respondent-Forum to ventilate their grievances that there is deficiency of work that is being carried out by the petitioner and other contractors.

Sri Ramana Reddy, the learned Counsel further contended that District Forum has no jurisdiction to entertain the said application. Even assuming that the District Forum has got jurisdiction, yet the order passed by it in the interlocutory application is in excess of its jurisdiction.

u/s 12 of the Act as complaint, in relation to any goods sold or delivered or any service provided may be filed with a District Forum. u/s 13(4) of the Act, the District Forum is invested with the same powers as are vested in a Civil Court under the Code of Civil Procedure", 1908 while trying a suit in respect of the following matters namely:

(i) The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath;

(ii) The discovery and production of any document or; other material object producible as evidence;

(iii) The reception of evidence on affidavit;

(iv) The requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;

(v) Issuing of any commission for the examination of any witness; and

(vi) any other matter which may be prescribed.

When the Act itself provided that the provisions of the CPC are applicable in the matter of requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source and also in issuing of any commission for the examination of any witness, it cannot be said that the District Forum has exceeded its limits in appointing an Advocate Commissioner. The right to entertain an application and the right to dispose of the matter after contest gives an inherent right to the District Forum to pass suitable orders to preserve the material that is required for the purpose of enquiry and in pursuance of that purpose in view, the Forum is always competent to issue directions even though they are not specifically provided either in the Act or the Rules framed thereunder. When a situation arises that if the water is let out into the canals by the end of August 1990, the complainants apprehend, that no material evidence will be available as to the amount of work done by the contractors and omissions and commissions, if any, in respect of the execution of the various works of restoration and repairs in the channel, the District Forum is competent to appoint an Advocate-Commissioner to visit the various works of restoration and repairs in Survepalli Channel and Jaffar Saheb Channel pursuant to the tender notices and to take the measurements of every item of work done by the contractors and submit a report. Since the main grievance of the complainants that there is complicity between the contractors and the Engineers of the Department and there is deficiency of work, the District Forum is entitled to issue directions not to make any payments in respect of the work in question, until further orders. The report of the Advocate-Commissioner will always be subject to the objections filed by both the parties. It is not a case where the Advocate-Commissioner is not in a position to make a report after visiting the spot. When the complainants have complained that the contractors in complicity with the officials are not excavating the earth in bed of channel to reach the original bed levels, it is the duty of the District Forum to safeguard the interests of the complainants who are the Ayacutdars, if there is any deficiency of work and the complainants will suffer on account of such deficiency. In support of their case, the complainants have also filed some newspaper reports. No doubt, the newspaper reports cannot be taken as evidence but as the grievance of the complainants is supported by the reports in the news media, the Forum is perfectly justified in appointing an Advocate Commissioner so as to preserve the material evidence available as on that date.

The learned Counsel for the petitioner also contended that since the value of the entire contract work is Rs. 29 lakhs and odd, the District Forum has no jurisdiction and it is only the National Commissioner that has got jurisdiction u/s 21 of the Act when the value of the goods and services and the compensation if any claimed is more than rupees ten lakhs. u/s 17 of the Act the State Council shall have jurisdiction to entertain complaints where the value of the goods or services and compensation if any claimed exceed rupees one lakh but does not exceed rupees ten lakhs.

Sri Ashok, appearing on behalf of the complainants contended that the loss that will be suffered by the complainants in the event of not carrying out the work entrusted to the petitioner thus to be taken into account and a national value can be estimated at this stage and the amount of deficiency of the work has to be estimated after the enquiry is over. Where the deficiency of work cannot be estimated and where a notional value has been estimated the Forum is competent after due enquiry to arrive at the conclusion whether the value of the relief that has been claimed is correct or not at the time of final disposal of the case. There are several Ayacutdars under the channel and only 5 persons have come forward before the District Forum and they have estimated the compensation at Rs. 10,000/ - only. The petitioner ought to have approached the Forum and the District Forum would have considered the objections raised by the petitioner. Instead of doing so, the petitioner approached this Court and filed this Writ of Prohibition to forestall the entire action initiated by the complainants-consumers who felt that they are aggrieved by virtue of the deficiency of the work. The petitioner has not made out any valid grounds for the issue of a Writ of Prohibition. However, the petitioner is at liberty to take appropriate steps before the District Forum and the District Forum is directed to consider the objections raised by the petitioner and dispose of the matter according to law.

The writ Petition is accordingly dismissed. No costs.