MUNICIPAL COUNCIL, BIKANER vs SHAMBHU YADAV

THESE are five connected appeals under Sec. 15 of the Consumer Protection Act, 1986 (for short "the Act") arising out of a common order dated 17.10.89 passed in different five complaints. They were heard together and we consider it proper to dispose them of by a common order.

THE facts leading to these five appeals are identical. We may notice the facts in Appeal No. 107 of 1989. THE Complainant has stated in Complaint No. 288/89, which has given rise to Appeal No. 107 of 1989 that he resides within the local limits of the Municipal Council, Bikaner in the building known as Manohar Bhavan, which is situated near Lal Bahadur Sabji Mandi, Rani Bazar, Bikaner. THE Opposite-Party did not pay any head to the complaints made by the complainants. THEy, therefore filed the complaints on 1.9.89 praying that the Opposite-Party may be directed to remove the pollution. After notice, the Opposite-Party Appellant reised a preliminary objection stating that the complaints are neither consumers nor the Opposite-Party renders any service to them and, therefore, the complaint is not maintainable under the Act. THE District Forum considered the preliminary objection and by a common order rejected it and held that the complaint is maintainable under the Act. Being dissatisfied, the Opposite-Party Municipal Council, Bikaner, in all the five complaints have filed these appeals. THE office raised an objection that this appeal is not maintainable under Sec. 15 of the Act. An application was submitted by the learned counsel for the appellant on 21.12.89 that if the appeal is not held to be maintainable, it may be treated as a revision under Sec. 17(b) of the Act. On the application of the Complainant, all the appeals were tagged. We have heard Mrs. Gyanwanti Dhakar, Advocate for the appellant and Mr. Shishupal Singh, Advocate for the complainants-respondents. The District Forum has given the following reasons in support of its order: (1) that the Municipal Council was established under the provisions of the Rajasthan Municipalities Act, 1959 (for short "the Act of 1959") and its duties are enumerated in Sec. 98 of the Act of 1959. Material part of Sec. 98, for our purpose, reads as under: - "Sec. 98 Duties of Boards - It shall be the duty of every Board to make reasonable provision for the following matters within the Municipality under its authority, namely, - (a) lighting public streets, place and buildings; (b) clearing public streets, places and sewers, and all spaces not being private proper, which are open to the enjoyment of the public, whether such spaces are vested in the Board or not, removing noxious vegetation and abating all public nuisances; (c) removing filth, rubbish, night-soil, addour, or any other noxious or offensive matter from privies, latrines, urinals, cesspools or other common receptacles for such matter in or pertaining to a building or buildings; (i) acquiring, maintaining, changing and regulating places for the disposal of the dead and carcasses of dead animals; (2) that the intention of the Act of 1959 is not that the Municipal Council renders service for consideration and so it is not necessary for any individual person who avails the benefit of the service to pay consideration for it; (3) that according to Chapter VII, the Municipal Council levies house and land taxes and also realises octroi and on the basis of the collection of the amounts, the Municipal Fund is created. This fund is of a sort of consideration for the services to be rendered by the Municipal Council to the public; and (4) that the State Government gives a grant- in-aid @ Rs. 10/- per man and this amount is paid for being utilised for the welfare of the citizens and, therefore, it cannot be said that the Municipal Council renders services free of charge. It, there- fore, did not find force in the preliminary objec- tion and rejected it. We have treated these appeas as revisions.

Learned Counsel for the Opposite-Party has reiterated the submissions that were made before the District Forum, viz. that the complaints filed by the Complainants are not maintainable under the Act as the Complainants are neither "consumers" nor the Opposite-Party renders any "service" as envisaged by the Act. Learned Counsel for the Complainants supported the order under challenge on the basis of the reasons given by the District Forum. We have bestowed our most anxious and thoughtful consideration to the rival contentions of the parties.

IT would be advantageous to first notice the relevant definitions contained in Sec. 2(1) of the Act. Sec. 2(1)(d) defines "Consumer". Sub-Clause (i) thereof is not relevant for our purpose. IT is subClause (ii), with which we are concerned. Under this sub-Clause, "Consumer" means any person who - "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 he 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."

The other definition which is relevant in the present context is that of "service", as contained in Clause (0) of Sec. 2(1). IT reads as under: - "Service" means service of any description which is made available to potential users and includes the provisions 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 of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service."

"Deficiency" has been defined in Sec. 2(1)(g) of the Act, as under: - "deficiency" means any fault, imperfection, shortcoming 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;"

We have next to see who it is that is competent to file a complaint under the Act. In this connection, relevant part of Sec. 12 of the Act, may be noticed, which is under: - "12. A complaint, in relation to any goods sold or delivered or any service provided, may be filled with a District Forum by - (a) the consumer to whom such goods are sold or delivered or such service provided; (b) any recognised consumer association, whether the consumer to whom the goods sold or delivered or service provided is a member of such association or not; or (c) the Central or the State Government."

From the definition of "consumer" contained in Sec. 2(1)(d)(ii), it is clear that in order that a person who may fall within the scope of that definition it is essential - (i) that he should have hired services; & (ii) that the hiring of services must be for a consideration which has been paid or promised or partly paid or partly promised; or under any system of deferred payment. So far as the definition of "service" is concerned, what one finds is that while it will take in service of any description which is made available to potential users, any service rendered "free of charge" is expressly excluded from the scope of the said definition. The definition of "service" as contained in Sec. 2(1)(o) of the Act is an inclusive definition and illustrations of the various services which are available to the potential users have been given. "Hire" has been defined in the Concise Oxford Dictionery as "employ a person for wages or fee". In Collins English Dictionery "Hire" has been defined to acquire the temporary use of a thing or the services of a person in exchange for payment"; or "to provide something or services to oneself or other for the agreed payment, usually for an agreed period". "Consideration" means payment for a service, recompense fee".

BEFORE we proceed further, we may take into account some well-established principles relating to the construction of the provisions of a legislative enactment. While construing the provisions of a legislative enactment, the general rule of interpretation is that the language used in the statute should be so interpreted as to promote the object and purpose of the Act provided that the words used are legally susceptible of conveying such a meaning. It is equally well-settled that the intention of Parliament has to be gathered from the words actually used in the statute and when the language used is clear and unambiguous it is the duty of the Court of authority construing the statute to duly give effect to the words contained in the particular provision of the enactment in accordance with their natural, plain and grammatical sense. Another equally establisehd principle of interpretation is that when a word used in a statute has more than one meaning that meaning should be adopted which is appropriate to the context and setting in which the word appears in the particular provision of the enactment having due regard also to the general scheme of the enactment. It has been held by the National Commission in Consumer Unity and Trust Society, Jaipur v. The State of Rajasthan and Others (First Appeal No. 2 of 1989, decided on December 15,1989), as under: - "..in enacting the statute the intention of Parliament was to provide protection and relief to your categories of consumers namely; (i) persons who have suffered loss or damage as a result of any unfair trade practice adopted by any trader; (ii) persons who have purchased goods for consideration which are found to suffer from one or more defects; (iii) persons who have purchased goods for which the trader has charged a price in excess of the price fixed by or under any law for the time being in enforce or displayed on the goods or any package containing such goods; (iv) persons who have hired any services for consideration when the services provided are found to suffer from deficiency in any respect."

The aforesaid categories of consumers have been conferred the right to approach the redressal forums constituted under the Act and provisions have been made enabling those forums to grant them cheap, speedy and efficacious remethes to set right their grievances. The ordinary, plain, grammatical meaning of the expression "hire", as popularly understood, has already been given above. It is reasonable to assume that it is only in that sense that the word "hire" has been used in subclause (ii) of Sec. 2(1)(d) of the Act. All this has to be kept in mind while scrutinising the reasons given by the District Forum. Sec. 98 of the Act of 1959 deals with the duties of the Boards. It provides that it is the duty of every Board to make reasonable provision for the matters narrated therein within the municipality under its authority. These are statutory duties, which the Municipal Board has to carry out. A perusal of the definition of "consumer" clearly shows that only the persons, who have hired any services for consideration when the services provided are found to suffer from deficiency in any respect, can only file complaint, as "consumer" under the Act. If the Municipal Council fails to carry out the statutory duties, then, the person, who is aggrieved of the non-performance of me statutory duties by the Board, cannot file complaint as he is not a "consumer" within the meaning of Sec. 2(1)(d)(ii) of the Act, for, he has not hired the services of the Municipal Council for consideration, even though the services suffered from deficiency in any respect The District Forum has given a reason that the Municipal Council levies house and land taxes and also realises octroi and that the amounts so collected constitute a Municipal Fund and as such this is consideration for the services rendered by the Municipal Council. In other words, the important question is whether direct and indirect taxes paid to the Municipal Council by the citizens/ members of the public constitute "consideration" for the services and facilities provided to the citizens by the Municipal Council.

IN Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shigrur Mutt (1954) S.C.R. 1005, it was observed by the Supreme Court as under: - "a tax is the compulsory extraction of money by public authority for public purposes enforceable by law and is not payment for service rendered."

"Fee" as distinguish from "tax" was considered by the Supreme Court in Southern Pharmaceuticals and Chemicals, Trichur v. State of Kerala and Ors. [1982 (1) S.C.R. 519]. It was ruled therein as under:- "Fees are the amounts paid for a privilege, and are not an obligation, but the payment is voluntary. Fees are distinguished from taxes in that the chief purpose of a tax is to raise funds for the support of the Government or for a public purpose, while a fee may be charged for the privilege or benefit conferred or service rendered to meet the expenses connected therewith. Thus, fees are nothing but payment for some special privilege granted or service rendered."

This principle was reiterated in Municipal Corporation of the City of Baroda v. Babubhai Himmatlal Judgments Today (1989 (3) S.C. 437). The same view was also taken in Sreenivasa General Traders v. Andhra Pradesh & Ors. [1983 (1) S.C.R. 843], where the apex court, observed as under: - "The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest. If the element of revenue for general purpose of the State predominates, the levy becomes a tax."

It is, thus, clear that unlike "fee" "tax" in its true nature is a levy made by the State for the general purposes of Government and it cannot be regarded as payment for any particular or special service. It was held by the National Commission in Consumer Unity and Trust Society''s case (supra) as under: - "While it is undoubtedly true that the Government in a Welfare State is under a duty to provide various forms of facilities to citizens and the expenditure incurred thereon will have to be met from out of the consolidated funds of the State, it cannot be said that a tax levied for the general purpose of the State continues "consideration" for any specific facility, benefit or service provided by the State."

It, therefore, follows that the payment of direct or indirect taxes by the public does not constitute "consideration" paid for hiring the services rendered by the Municipal Council.

THE District Forum has mentioned that Rs. 10/- per man is given as grant-in-aid by the State Government to the Municipal Council and the amount so paid as grant-in-aid is to be utilised for the welfare of the public and so it cannot be said that the Municipal Council renders free service, and that its duties do not fall in the definition of "service". A somewhat similar question arose in Consumer Unity and Trust Society''s case (supra) before the National Commission. We cannot do better, but to refer what is stated in Consumer Unity and Trust Society''s case (supra)- "A Government employee - or any other individual-making a regular contribution to the CGHS is entitled to (otherwise free) medical facilities available in an appropriate Government hospital to which his case may be referred by the nearest dispensary to which he may normally report for ordinary ailments. Can such an individual contributing to the CGHS be said to be a "consumer" of medical facilities available in a Government hospital, within the meaning of the Consumer Protection Act? Does the payment by way of a regular monthly contribution constitute "consideration"? THE fact that the CGHS contribution does not cover the full cost of the hospital facilities provided may not be conclusive of the matter. An arrangement such as the CGHS Scheme is part of the overall framework of organisation of basic social and economic amenities provided by a Welfare State. In this context, the principles outlined by the Supreme Court in Sreenivasa General Traders & Ors. v. State of Andhra Pradesh & Ors. are relevant. In that judgment the Supreme Court reiterated that in order to establish the quid pro quo concept, it is not, necessary to establish exactly that the amount collected is spent on the services rendered. THE authority collecting the fee (in the instant case, the regular contribution) must show that it is rendering a service in lieu of the fee; that it is giving some special benefit to the payers of the fee. THE quantum of fee collected and the expenses on the serves rendered must have a mutual relationship, by and large; the relationship between the levy and the service rendered is one of general character not of mathematical exactitude. All that is necessary is that there would be a "reasonable relationship" between the levy of the fee and the services rendered."

It will be useful to refer that the National Commission in the aforesaid judgment also considered the expression "free of charge" occurring oin Sec. 2(1)(o) which defines "service". It was held that it should be understood to mean free of obligation. For the aforesaid reasons, we are of opinion that the applicants have not hired any services for consideration of the Municipal Council and, therefore, they cannot be considered as "consumers". In these circumstances, we are constrained to hold that the five complaints filed by the Complainants are not maintainable under the Act

The appeals which have been treated as revisions are allowed and the orders dated 7.10.89 passed in the five complaints, which have given rise to the aforesaid five appeals are set aside. The complaints are dismissed as not maintainable under the Act

THE parties shall bear their own costs. It follows, therefore, Appeal No. 107/89, which has been treated as revision is allowed and the order dated 7.10.89 passed by the District Forum in Complaint Case No. 288/89 is set aside. The complaint is dismissed as not maintainable under the Act

THE parties shall bear their respective costs. Revisions appeals allowed.