MANGILAL vs CHAIRMAN, DISTRICT RURAL DEVELOPMENT AGENCY

THE complainant Mangilal has filed this com- plaint under Sec. 12 read with Sec. 17(a) of the Consumer Protection Act, 1986 (for short ''the Act'') against the opposite-parties. Opposite-party No. 1 is the Chairman, District Rural Development Agency (DRDA) and Collector Shri Chandra Mohan Meena, district Jalore; opposite party No. 2 is Shri G. Khan, Director (Planning DRDA, district Jalore; opposite party no.3 is Shri Bhagir Sharma, Deputy Secretary to the Government, Vishisht Yojanayen and Sangathan Vibhag. Government of Rajasthan Jaipur; opposite party No. 4 is Shri P.M. Golani, Executive Engineer, Underground Water Department, Pali & Jalore and opposite party No. 5 is the Secretary PLDB, Jalore, district Jalore.

THE grievance of the complainant is that despite sanction, tube-well has not been drilled and on account of that he has suffered a loss to the tune of Rs. 9,11,000/-. He has prayed that a direction for drilling a tube-well may be given against the opposite-parties and compensation to the extent of the aforesaid amount may be awarded to him. THE complainant submitted an application 10 the Rural Development Authority and a sum of Rs. 100/- as fee was deposited vide receipt no. 2840/41/000093 dated 13.1.88, that was issued for the fee of the application. It is said that various reports in regard to the feasibility for drilling the well were prepared and there was correspondence between the complainant and the opposite-parties as the tube-well was not drilled. THE complaint was received on 16.10.89. With the complaint, photostat copies of the documents were filed. Relevant and material documents will be referred hereunder. A notice was issued to the complainant to satisfy the State Commission that it can entertain and decide this complaint. THE complainant was heard on this question and after hearing him, we thought it proper to decide the question of entertainability of the complaint in the presence of the opposite- parties and so, notice was issued. Opposite-party No. 1 filed the version of the case with some documents. In the version of the case. reasons were given as to why the tube-well was not drilled and for that it was stated that no fault or negligence can be imputed to opposite- party no. 1. THE version of the case was received from opposite-party No. 5. Opposite-party No. 5 also resisted the complaint. THE complainant filed rejoinder to the version of the case controverting the facts stated in it and reiterated the averments made in the-complaint. An application was filed by opposite-party no. 5 raising objection about the maintainability of die complaint. THE State Commission passed, the order that this objection will be considered at the time of final hearing of the complaint, as recorded in the proceedings dated 5.1.90. Opposite-party No. 4 stated on 16.2.90 that he does not want to file any separate version of the case, as according to him, the version of the case on behalf of opposite-party no. 1 may be considered as his version of the case. No version of the case was filed on behalf of opposite-party No. 2 and 3 and they have not chosen to appear. Mr. K.C. Choudhary on behalf of opposite-party No. 1 submitted an affidavit along with some documents in support of the version of the case. He was not able to show whether it was a supplementary pleading or evidence. Reception of the affidavit in evidence was opposed by the complainant. On 18.4.90, the complainant submitted that he does not want to produce any evidence and the complaint may be decided after hearing the arguments. So also, opposite-parties No. 1 and 5 stated that they do not want to produce any evidence and that the complaint may be decided after hearing the arguments. THE complainant and his Counsel Mr. M.K. Sadarangani, Mr. Karnishingh and Mr. K.S. Choudhary for opposite- party no. 1, Mr. F.M. Golani, Executive Engineer opposite-party No. 4 and Mr. Kanhaiyalal, Br. Secretary for opposite-party No. 5 were heard. We also considered the record with requisite care. Bond dated 12.1.88 was executed by the complainant on five rupees non-judicial stamp. The material part of that bond is as under:- ".........Whereas I/We have agreed for the construction of the tubewell on my/our land khasra Nos........area, tehsil Ahore, district Jalore, which is being drilled by Ground Water Department through District Rural Development Agency and have also submit- ted an application form duly signed for the purpose and also executed agreement with the Governor of Rajasthan (District Rural Development Agency). Whereas I/We have applied for loan from the Bank Bhumi Vikas Bank..........Rakam Anke.....on account of costs of the tube-well..."

The Deputy Secretary to the Government Krishi/Group-7 Vishishtha Yojana Vibhag, by his order dated 5.6.89 informed the Additional Collector (Development) District Rural Development Agency, Jalore that it is not possible to drill a well in the agricultural land of the complainant for the reasons mentioned therein. It appears that on the loan application No. 2/8889 for drilling the land in Khasra No. 647, a loan for Rs. 88,500/- was sanctioned. The estimate for drilling the well was prepared in the office of the Assistant Engineer, Underground Water Department Jalore and that was for Rs. 2,18,420/- and the Secretary Jalore Sehkari Bhumi Vikas Bank, Jalore was informed to grant loan for Rs. 2,18,420/- in accordance with the estimate. A perusal of the version of the case filed by the Secretary, Jalore Sehkari Bhumi Vikas Bank, Jalore shows that it has given the details as to why the loan could not be sanctioned to the complainant. It is written, amongst others, in para 10 of the version of the case.

DURING the course of arguments, on behalf of the opposite-parties, who appeared before us, it was contended that the complaint as filed cannot be entertained, heard and decided by the State Commission and the complainant cannot invoke the provisions of the Act. In other words, objection about jurisdiction was raised. It was submitted on behalf of the opposite-parties that the complainant is neither a consumer nor do the opposite-parties render service as defined in Sec. 2(1)(o) of the Act for consideration and so, the question of deficiency in service, as envisaged by Sec. 2(1)(g) of the Act does not arise. This has necessitated for us to examine the relevant provisions of the Act. According to Sec. 2(1)(b) of the Act, ''complainant'', amongst others, means a consumer. ''Complaint'' has been defined in Sec. 2(1)(c). Relevant part of the definition is as under: "(c) Complaint means any allegation in writing, made by the complainant, that (i) ..... (ii) ..... (iii) the services mentioned in the complaint suffer from deficiency in any respect."

"Consumer" has been defined in Sec. 2(1)(d). According to Sec. 2(1)(d)(ii), ''consumer'' means any person, who hires any services for consideration. "Consumer dispute" has been defined in Sec. 2(1)(e) to mean a dispute where a person against whom the complaint has been made, denies or disputes the allegations contained in the complaint The definition of ''deficiency'' is given in Sec. 2(1)(g) of the Act as under:- "(g) "deficiency" means any fault, imperfection, short-coming 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." "Service" has been defined in Sec. 2(1)(o) of the Act as under:- "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 agency board or lodging or both, 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;"

Section 13 lays down the procedure on receipt of the complaint. When the complaint relates to any service, the procedure laid down under Sec. 13(2) of the Act is to be followed. Now, after following the procedure given in Sec. 13(2) of the Act, finding has to be recorded under Sec. 14 of the Act. By virtue of Sec. 18 of the Act, the procedure specified in Sees. 12, 13 and 14 is applicable to the State Commission. When any of the allegations contained in the complaint about the service are proved, the District Forum or the State Commission or the National Commission, has been empowered to issue an order to the opposite-party directing him to take one or more of the things specified therein. Sec. 14(1)(d) provides for payment of such amount as may be awarded by the commission to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite-party. The complainant has prayed that a direction may be given to the opposite-parties to drill the tube-well.

HAVING carefully considered the definitions of ''complainant'', ''complaint'', ''con- sumer'', ''consumer dispute'', ''deficiency'' and ''service'', complaint, the versions of the case, filed by the opposite-parties and the documents, it cannot be held that the complainant is a consumer, who has hired services of the opposite parties for consideration and so, when the opposite-parties have failed to drill the well, the services rendered by them suffer from deficiency. The depositing of Rs. 100/- as application fee and executing the bond, as contended by the complainant, do not establish that the complainant has hired services for consideration of the opposite-parties. This is merely registration fee and that is no consideration for the services. Even otherwise, the relief of direction for drilling a tube-well cannot be granted under Sec. 14(1) of the Act. In M/s. Jayal Iron & Steel v. State Bank of India and Ors. (Oriental Petition No. 2/89 with Misc. Petition No. 23/89 for direction, decided on 31.8.89, by the National Commission, New Delhi), the grievance of the petitioner pertained to the alleged failure on the part of the State Bank of India and the U.P. State Financial Corporation to grant financial assistance to the petitioner for nursing and rehabilitating the sick industrial unit of his and also the grievance put forward against the U.P. Electricity Board that it has illegally delayed the grant of power connection to the petitioner for and subsequently discontinued the power connection without any valid justification. The National Commission observed as under: "These are matters in respect of which the petitioner should approach a Civil Court for proper and appropriate redress." The National Commission dismissed the petitioner without prejudice to the right to resort to any such remedy. Such a question arose in Society of U.P. Consumers Society v. Bank of Baroda, Lucknow & Ors. (Original Petition No. 13/89. decided on 23.8.89 by the National Commission, New Delhi). The complaint related to the transaction of borrowing from a nationalised bank although the grievance of the petitioner was that the bank has not been rendering to him sufficient supplemental financial assistance for continuing the im- plementation of his project of establishing a poultry farm. The National Commission dismissed the petitioner with liberty to the petitioner to seek appropriate redressal in a Civil Court. In M.L. Joseph v. State Bank of India, (Original Petition No. 12/89, Trichur/decided by the National Commission, New Delhi) the complaint pertained to a transaction of borrowing from the bank and the grievance of the petitioner was that the bank has not been accommodating sufficiently in the grant of nursing facilities for a small scale industry that has fallen sick. The National Commission observed as under: "Whatever that may be, we do not find it possible to grant any relief to the petitioner in these proceedings. The petitioner is, however, at liberty to seek his relief from the Civil Court either in the proceedings that are already pending before the Civil Court, Trichur or any other independent proceedings, as may be open to him under law. With these observations, the petition will stand dismissed. No costs."

THE aforesaid decisions were followed by us in Ram Kripal Shargava v. Chairman. Union Bank of India & Ors. (Complaint Case No. 11/89, decided on Sept. 25, 1989. Various reliefs were sought by the complainant in that case. It was held by the State Commission that no relief as prayed for by the complainant, can be granted to the complainant in the proceedings. An appeal was filed before the National Commission, New Delhi. THE National Commission in Ram Kripal Bhargava v. Union Bank of India & Ors. (First Appeal No. 23/89, decided on March 18, 1990) dismissed the appeal with costs; however, observing that the appellant has failed to establish that there has been any deficiency in service rendered by the bank.

IT was also submitted that there was no feasibility for drilling tube-well which is the first and the foremost condition, as is borne out from the application form. On behalf of opposite-parties no. 3, 4 and 5, on the basis of letter dated 15.9.88 and survey report dated 27.9.88, it was submitted that there was no feasibility of drilling a tube-well. The authorities responsible for drilling a tube-well are competent to decide about the feasibility of drilling a well. For all these reasons, that we are of opinion that on the basis of the averments made in the complaint, and the documents on the record, it is not possible to grant any relief in respect of drilling of the well.

The complainant has also claimed compensation to the tune of Rs. 9,11,000/- as per the statements filed by him on 16.2.90. It has been held by us that the main relief of drilling of the well cannot be granted to the complainant under the Act. There is no negligence on the part of the respondents, on account of which the complainant suffered any loss or injury. The relief of compensation on account of loss is an ancillary relief, which follows from the main relief relating to the direction of drilling of the tube-well. It is firmly established on the basis of the decisions of the National Commission that compensation is to be awarded on the basis of the material on record and that compensation awarded must have a rational relation to the nature and extent of injury, inconvenience physical and mental caused to the complainant by action or omission of the opposite-party. There is absolutely no material before us showing the extent of loss or injury caused to the complainant on account of non- drilling of the well. The complainant has failed to substantiate his claim for compensation by any evidence. Thus, even otherwise, he is not entitled to any compensation.

FOR the aforesaid reasons, the complaint is accordingly dismissed without going into the merits of the case without prejudice to his right to pursue his remedy before any Court/authority in accordance with law. The parties shall bear their respective costs. An afterward:

WE do hope and expect that the opposite-parties in case of the necessary conditions being satisfied, consider the case of the complainant sympathetically so that his grievance in regard to drilling of the tube-well is redressed at an early date. Petition dismissed.