L. WALAITI RAM vs MANAGING DIRECTOR, H.S.M.I.T.C.

- WHETHER the Haryana State Minor Irrigation (Tubewells) a Corporation Limited extends out the service of irrigation to its cultivator-consumers within the meaning of the Act? This indeed is the somewhat significant question in the present appeal.

THE facts are not in dispute and lie within a narrow compass. Admittedly the Haryana State Minor Irrigation (Tubewells) Corporation Limited (hereinafter called the Corporation) had installed a tubewell in village Bilaspur bearing No. BCA-100. This in terms was to meet the water needs to the small landowners of the said village and in advancement of the ''Grow more Food'' scheme. Appellant Walaiti Ram owns a small area of land in the said village which was continuously receiving irrigation from the abovesaid tubewell. Apparently relying on the said irrigation source the appellant planted sugarcane crop in his four kauals of land in March, 1992 and it was the allegation in the complaint that helaid out a sizeable amount of financial expenditure on seeds, fertiliser and other expenses of cultivation etc. therefor. However at the height of the summer in April, 1992 the aforesaid tubewell developed some defects and despite repeated demands no irrigation water there from was provided. THE appellant was compelled to give a formal notice to the respondent-Corporation on the 15th of June, 1992 and it is only thereafter that the said tubewell was repaired on the 9th of July, 1992. THE primal grievance of the appellant was that owing to the total absence of water supply his sugarcane crop was completely destroyed and he suffered a loss of Rs. 11,000/- which was sought as compensation in the complaint. The respondent-Corporation in contesting the complaint admitted the broad matrix of the facts, to take up the plea that the motor of the tubewell had burnt and the same was removed and sent to Karnal for repairs. Somewhat cavalierly it was pleaded that the same was not received back for more than three months and consequently the motor from another tubewell was removed and installed on this tubewell only in mid July, 1992. The specious plea taken was that for the months of April and May only the register maintained at the tubewell had not incorporated any express demand for water by the respondent.

The District Forum, with respect, treated the lis somewhat over-summarily and without more merely observed as follows for dismissing the complaint:- "Arguments heard. Taking into consideration that the tubewell had been installed for the benefit of the agriculturists for no profit. Rather, it is stated that the respondents are suffering loss. It also cannot be said that the respondents did not repair the tubewell knowingly. Rather they had made efforts. The burnt motor had already been sent to Karnal for repairs and if it was not repaired in time, the respondents could not be said to be at fault. Hence, the complainant is not entitled to claim any damages. This complaint is, therefore, dismissed but at the same time, respondents are warned to be careful in future and if in future such defect occurs, they should take personal interest to get it repaired at the earliest."

MR. Rajesh Bindal, the learned Counsel for the appellant had forcefully and vehemently assailed the aforesaid approach as wholly unwarranted. It was contended that the respondent-Corporation admittedly received consideration for every drop of irrigation water supplied to the cultivator-consumer. It was the stand that the appellant on the assumption and assurance of the irrigation services extended out by the Corporation had planted a cash crop like sugarcane which needs heavy irrigation, and had equally laid out a heavy financial outlay there for. It was alleged that the respondent-Corporation had been singularly deficient in the services undertaken by them and had not chosen to get repaired the minor damage of a burnt electric motor for more than three months until a formal notice was given. Apparently benefit of any meaningful arguments on merits Mr. Rajesh Garg the learned Counsel for the respondent-Corporation had taken the belated hypertechnical stand that his client did not extend out any services to the complainant within the meaning of the Act and hence the complaint itself was not maintainable.

IT appears from the record that no objection as to the maintainability of the complaint was either taken or seriously urged before the District Forum and we would ordinarily have declined to entertain the same at the belatedly appellate stage. However as the issue is of some significance and concerns innumerable cultivator-consumers of the Corporation we think it apt to deal with the threshold issue raised as an exceptional case. Inevitably the aforesaid issue takes us to the crucial question of the status of the respondent-Corporation, its objects and purposes and the nature of its relationship with the appellant and other cultivators who are served by its tubewell. Now a mere reference to the Memorandum of Association of the Corporation would show that it is a Company Limited by shares and its authorised capital is Rs. twenty crores divided into two lacs equity shares of Rs. one thousand each. This Corporation has a variety of main objects and incidental objects as listed in Sub Para A & B of Para III of its memorandum. Serial Nos. 1 to 4 of its main objects deserve notice in extenso:- "(1) To promote, improve, establish, execute, instal, manage and administer tubewells and other minor irrigation projects or enterprises and manufacture spare parts, machinery, tools, implements, materials, substances, goods or things of any description which in the opinion of the Company are likely to promote or advance the development of irrigation, especially minor irrigation, in the State of Haryana.

(2) To take over from the Government of Haryana the existing system of State owned irrigation and augmentation tubewells in good working condition alongwith connected buildings, assets, works and any of their projects connected with the installation, maintenance and operation or the State-owned tubewells, with the rights and liabilities of the Government of Haryana so far as they relate to such tubewells, buildings, assets, works or projects.

(3) To instal new tubewells for direct irrigation and augmentation of water supplies in the existing or future canal systems.

(4) To undertake the installation and construction of tubewells and other connected works on behalf of private individuals, bodies, institutions, panchayats, Government Companies, Corporations in the Union of India."

From the relevant documents supplied by the respondent-Corporation it would appear that the Company was incorporated on the 9th of January, 1970 and the primal share holders therein was the Governor of Haryana whilst the five others designated officers held a nominal one share each only.

YET again a reference to the articles of association of the Corporation would show that in the private Company within the meaning of Section 3(1)(iii) of the Companies Act, 1956. For our purposes it is unnecessary to refer to the detailed and as many as 155 exhaustive articles of association.

WHAT next calls for pointed notice however is the link and connection of the respondent-Corporation with the Irrigation Department of the State of Haryana. Learned Counsel for the respondent-Corporation Mr. Garg himself conceded that it functions under the over all statutory provisions of the Haryana Canal & Drainage Act, 1974. Pointed reference may first be made to Section 3 of the said Act. This empowers the State Government by notification to declare the officers of the respondent-Corporation who may within their local limits perform such powers or duties as are prescribed to be exercised. Thereafter Section 31 deals with the determination of water charges which are called the "occupier''s rate" or "water rate". By virtue of notification dated the 27th of October, 1977 the Governor of Haryana specified that the charges for the use of water supply from the tubewells of the respondent-Corporation shall be at the rate of 48 paise per unit of the electricity consumed. The Haryana Canal & Drainage Rules, 1976 have been duly framed under the aforesaid Act. Part V thereof bears the title of water rate and Rules 27 to 52 therein provide in great detail for the determination of the water rates and their recovery and equally for the methodology of providing irrigation water which includes that supplied by the respondent-Corporation''s tubewell. Rule 41 has reference to the Irrigation Booking Clerk, who records in the relevant register the names of the owners and cultivators to whom irrigation water is supplied and the crop sown and other relevant information. In specific terms Rule 49 deals with the charge for tubewell irrigation which shall be at such rate as the State Government may from time to-time by notification, specify.

It was common ground before us that the respondent-Corporation maintains the relevant irrigation register and follows the procedure prescribed by the Haryana Canal & Drainage Rules. From the admitted documents placed on the present record and maintained under the Rules it is manifest that a detailed data has to be maintained with regard to the payment for irrigation, electricity consumed for providing the same, the time for which irrigation water was supplied etc. However, what calls for the prominent notice is the fact that in the registers of irrigation water of the respondent-Corporation, cultivators are themselves named as owner/consumer and in terms provide for the signatures of the consumer or his authorised agent in the relevant registers.

FROM the aforesaid statutory provisions and admitted documents it is somewhat manifest that the respondent-Corporation provides water for irrigation to the cultivators for a consideration in accordance with the broad scheme of the Haryana Canal & Drainage Act and the rules framed thereunder. The solitary question that remains is whether the supply of such irrigation water from the Corporation''s tubewell is a service within the ambit of the definition of Clause (o) of Sub-section (1) of Section 2 of the Act. For facility to reference the provisions thereof may be noticed in extenso :- "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 (housing constructions) entertainment, amusement or the purveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service." Now a bare reading of the aforesaid provision, and by now a stream of precedent has held, that Parliament has chosen to define service in very wide-ranging terms. It spans the whole gamut of services of any description which is made available to potential users. By specific prescription the supply of electricity or other energy is within the ambit of the service. This Commission has held that the supply of gas services would be fully covered by the said definition and that view bears the stamp of approval of the National Commission. In this context can it possibly be said that the supply of water for the purpose of irrigation whether it be through a canal or drain or a tubewell is not within the scope of service within the meaning of the Act. In our view the answer has to be in a categoric negative. We are unable to find any reason why the supply of irrigation water for cultivation would not come squarely with the other analogise services of the supply of electricity, gas or other energy.

WITHIN this summary jurisdiction it is wasteful to overly elaborate the matter. In our view the answer to the question posed at the very outset has to be rendered in the affirmative. It is, therefore, held that the respondent-Corporation extends out "services" to the cultivator-consumers within the meaning of Section 2(1)(o) of the Act. Once it is held as above the appellant has a reasonably smooth assailing to success. The District Forum seems to have fallen in the error of not considering the issue in depth at all. Learned Counsel for the respondent could point out to no foundational base for the District Forums assumption that the tubewells have been installed for no profit at all. However even assuming it to be so, the said fact in no way takes the Corporation out of the ambit or providing "service" under the Act. It was common ground that the cultivator-consumer pays according to the water charges or water rates leviable under the Act. Thus the service was for consideration and the question whether ultimately the Corporation earns a profit or a loss is wholly irrelevant to the issue whether the appellant is a consumer thereof or other-'' wise. Reference in this connection may be made to the Haryana Urban Development Authority Act which under the statute constituting it is to work on the altruisitic principle of ''no profit and no loss''. However, there is now no end of precedents of this Commission and equally of the National Commission holding that the HUDA extends out services to the allottees of land and sites and latter are clearly consumers within the meaning of the Act. The District Forum, therefore, erred in denying relief to the appellant on an extraneous ground without adverting to the core issue involved. Yet again the District Forum seems to have erred equally on the factual aspect as well. Merely having sent the motor for repair to Karnal would not absolve the Corporation of the reasonable duty undertaken by it to provide irrigation to the command areas during the peak of the summer season. The District Forum even seems to be conscious of the default by the Corporation and proceeded to warn it to be careful in future. However the crucial issue from the appellant''s point of view is not an admonishing for future, but his right to compensation for a deficiency in services extended.

ON the present virtually undisputed facts we are clearly of the view that the respondent-Corporation was guilty of gross deficiency in providing the irrigation service extended out by it. The plea of Mr. Rajesh Garg that the register at the tubewell maintained obviously by the minions of the Corporation had not incorporated the demand for water by the respondent for the months of April and May only is obviously one of desperation. It seems to be the proverbial clutching at a straw on behalf of the respondent in the context of the admitted position that in early April the motor of the tubewell was burnt and had been despatched to Karnal for repairs and that the tubewell remained non-operational till mid July, 1992. It is common ground that the maintance of the registers is in the hands of the employees of the Corporation and the presumed absence of an entry therein can not possibly be conclusive. Even otherwise it would be uncharitable to expect the cultivator-consumers to daily come and record their demand when on the face of it they knew that the tubewell was not functioning and unlikely to do so in immediate future. Even otherwise the pleading is somewhat specious in confirming the alleged non-demand in the register for the month of April or May. That the respondent was insisting upon the supply of water is proved beyond a shadow of doubt by the admitted fact that by the 15th of June he had gone to the ultimate resort of serving of a formal legal notice to the appellant for the supply of water. In this fact situation to presume that the cultivator of a sugarcane crop being served by the tubewell would not seek irrigation from April to mid July is inherently implausible and consequently the respondents stand on this score must be rejected out of hand.

YET again it'' could not be denied on behalf of the appellant, and is otherwise manifest from the present record that the concerned personal of the Corporation were well aware of what the cultivators were irrigating at the relevant time including the sugarcane one of the appellant. It is not in dispute that for well nigh four months of the peak summer season no irrigation was provided" from the said tubewell to the appellant and equally to the other consumers. This also seems to have been done only after the threat of legal action through a notice. It was the respondent-Corporations own case that only thereafter a motor from another tubewell was removed and installed on this tubewell. No explanation could be given by the learned Counsel for the respondent as to why this could not have been done earlier. The appellant''s stand that full three months of the denial of irrigation water to his sugarcane crop had destroyed the same totally is thus established on the record. Nor could the learned Counsel for the respondent pose any meaningful challenge to the modest quantum of compensation claimed at the level of Rs. 11,000/-. Judicial notice may be taken of the fact that sugarcane is a cash crop which these days would require considerable financial outlay, and what is more the appellant far from getting any return therefor had lost the same apart from the deprival of a reasonable well harvested crop from his land. To conclude, there was a patent established deficiency in the services extended out by the respondent to the appellant. The latter is, therefore, entitled to succeed and the appeal is consequently allowed and we are constrained to set aside the order of the District Forum. The complaint is hence allowed and the relief of Rs. 11,000/- as claimed compensation is granted. The said amount shall be tendered to the appellant within one month from today, failing which the District Forum shall enforce compliance under Section 27 of the Act. However, we leave the parties to bear their own costs. Appeal allowed.