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Judgment
This appeal is directed against the order of the State Commission Delhi dated 4.1.2007 in CC/43/2005 whereby the State Commission held the appellant/opposite party as also other Government functionaries, namely, Deputy Commissioner of Police, New Delhi and Station House Officer, Police Station Mandir Marg, deficiency in service and ordered as under: -
"While allowing this complaint, we pass the following orders and directions:-
i) We impose punitive damages of Rs.25,00,000/- (Twenty Five lacs) upon O.P. No. 1, NDMC, to be deposited in favour of the "State Consumer Welfare Fund (Legal Aid). Out of this, Rupees 5,00,000/- shall be recovered personally from the Chairperson of the NDMC and from the Director (Horticulture), NDMC in equal shares by the Secretary of NDMC, in equal shares and shall be remitted in the account of NDMC. This will serve as deterrent and a lession to the persons at the helm of affairs of the local or civic or government bodies who adopt highly indifferent, insensitive attitude towards the complaints of the complainants and for not protecting the public properties causing huge loss to the exchequer.
ii) O.P. NDMC shall pay Rs.25,000/- (Twenty Five Thousand) to the complainant Association as cost of the proceedings.
iii) NDMC is hereby restrained from holding any marriage function or parties or any other event in the premises of Talkatora Garden or for that purpose in any other parks maintained by it as the aftermath turns the place in a tiny hell due to stink and stench ofleftovers. Heaps of garbage and cause nuisance to the morning walkers, picnickers and tourists. For this purpose, it may construct new Community Centres.
iv) NDMC shall restore the playing field in its original condition and shall not use this garden for any purpose like holding of Mela, functions or other events as these cannot be allowed to a source of income by the O.P.s on the one hand and a source of nuisance for the morning walkers and others and nearby residents as these functions are held for days together, these parks cannot be used by morning walkers and the playfield by the players and other people who come to picnic or even as tourists as blaring music and loud speakers are used in these events throughout the night.
v) The Deputy Commissioner of Police concerned and the SHO of the area shall be responsible for seeing that this park is maintained and its property is protected and no marriage functions or parties or any other events are held.
vi) OP-NDMC and for that purpose every local authority, civil authority or Governmental organization like MCD, DDA is restrained from using any portion of any park or any establishment under its control, for which it is custodian and responsible for maintenance, for the purpose or for the use of its own employees either under the name of club or institution. No portion of the park shall be used for any purpose other than the public purpose i.e. allowing people for morning walks or games or for the purpose for which particular area is originally earmarked like open air theatre, swimming pools open for the public etc.
Any violation of these direction can be brought to the notice of this Commission by any citizen of the city; as all these parks are open to all the citizen for the purpose of morning walk or picnic and other physical activities etc. and shall be visited with heavy punitive damages and may be that the CEOs or the Officers of the Organization may suffer the consequences arising from the provisions of Section 27 of the Consumer Protection Act, 1986 prescribing minimum sentences of one month imprisonment or line or with both."
Opposite party No.1 being aggrieved of the impugned order has preferred this appeal. Learned counsel for the appellant submits that apart from denying the allegations of the respondent/complainant on merits, the appellant/opposite party also raised an issue of maintainability of the consumer complaint on the specific plea that the respondent/complainant was not a consumer qua opposite party No.1/appellant.
It is contended that the impugned order of the State Commission is not sustainable for the reason that the State Commission has assumed jurisdiction not vested in it by coming to a wrong conclusion that the appellant/opposite party No.1 was a service provider qua the respondent/complainant as the opposite party No.1 had been collecting property tax from the immovable property holders within the jurisdiction of NDMC. Expanding on the arguments, learned counsel has submitted that the State Commission, Delhi has passed the impugned order in utter disregard of settled position of law and in support of this contention, learned counsel for the appellant has relied upon the judgments of the Co-ordinate Bench of this Commission in the matter of The Mayor, Calcutta Municipal Corp. vs. Tarapada Chatterjee 1 (1994) CPJ 99 (NC) and in the matter of M/s Signet Corporation vs. Commissioner, M.C.D, New Delhi III (1997) CPJ 6 (NC) as also the judgment of the State Commission, Rajasthan in the matter of Municipal Council, Bikaner vs. Shambhu Yadav & Anr. 1 (1992) CPJ 64 , which had been referred to in the matter of Mayor, Calcutta Municipal (supra).
We have considered the submissions made by learned counsel for the appellant. The short point involved in this appeal is whether the payment of tax related to unspecific service provided by a municipal body can be treated as a consideration received by the municipal authority for rendering service to the tax payers and others and creates a relationship of consumer and service provider.
The above-noted issue is no more res integra . This Commission headed by Hon''ble Mr. Justice V. Balakrishna Eradi in the matter of Mayor, Calcutta Municipal (supra) while dealing with the aforesaid issue has observed as under:
"After hearing the Counsel for the parties and going through the records of the case it has become clear that the complainant is paying only "property tax" to the Corporation, the levy of which is based on the annual value determined as per the provisions of Section 174 of the Calcutta Municipal Corporation Act, 1980. The construction and maintenance of the water works and providing means for supply of water for public and private purposes is specified in Section 29 of the said Act as one of the obligatory statutory functions of the Corporation and it is only in the discharge of the said statutory duty that the Corporation is maintaining the system of water supply to the respondents within the Municipal limits. The complainant is getting the water supply to his premises only by virtue of the performance of the statutory duty by the Corporation. In the order dated December 15, 1989 passed by this Commission in Consumer Unity and Trust Society v. The State of Rajasthan & Ors. (F. A. No. 2 of 1989) - II (1991) CPJ 56=1991 (1) CPR 241, the question whether the payment of a tax can constitute payment of "consideration" for the "hiring" or "availing of" service "for consideration" has been discussed in detail and after referring to the rulings given on the point by the Supreme Court of India it was held that payment of tax to Government which goes into the consolidated fund of the Union of India or State cannot constitute a payment of "consideration" for the "hiring" or "availing of" a service. In the light of the principles laid down in the said decision, it is manifest that the contrary conclusion recorded by the State Commission and the District Forum is incorrect and they have acted illegally and without jurisdiction in holding that the dispute raised by the complainant about the inadequacy of pressure in the water supply system is a "consumer dispute" that can be adjudicated upon under the Act."
Similarly, Hon''ble Supreme Court in the matter of Indian Medical Association vs. V.P. Shantha & Ors. (1995) 6 SCC 651 has observed as under:
A contention has also been raised that even in the Government hospitals/health centres/dispensaries where services are rendered free of charge to all the patients the provisions of the Act shall apply because the expenses of running the said hospitals are met by appropriation from the Consolidated Fund which is raised from the taxes paid by the tax payers. We do not agree.
The essential characteristics of a tax are that (i) it is imposed under statutory power without the taxpayer''s consent and the payment is enforced by law; (ii) it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax'' and
(iii) it is part of the common burden, the quantum of imposition upon the tax payer depends generally upon his capacity to pay. [See : The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt , 1954 SCR 1005 at pp.1040-41]. The tax paid by the person availing the service at a Government hospital cannot be treated as a consideration or charge for the service rendered at the said hospital and such service thogh rendered free of charge does not cease to be so because the person availing the service happens to be a tax payer.
Adverting to the individual doctors employed and serving in the hospitals, we are of the view that such doctors working in the hospitals/nursing homes/dispensaries/whether Government or private - belonging to categories (ii) and (iii) above would be covered by the definition of "service" under the Act and as such are amenable to the provisions of the Act along with the management of the hospital, etc. jointly and severally.
Co-ordinate Bench of this Commission in the matter of Signet Corporation (supra) has also reiterated the above-noted principle of law in para-8 of the judgment which is reproduced as under: -
"It is well established by the rulings of the Supreme Court as well of this Commission that payment of a tax which is levied in the exercise of the sovereign function of the State cannot constitute consideration even remotely as quid pro quo for any service rendered or likely to be rendered (see: The Commissioner, Hindu Reli gious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shiru Mutt, 1954 SCR 1005 at pp. 1040-41). The dictum laid down in the aforesaid ruling has been subsequently followed and reiterated in many reported cases. It was recently restated by the Supreme Court in its judgment in Indian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC), wherein the Apex Court has again laid down that the "tax paid by the person availing the service at a Government hospital cannot be treated as a consideration or charge for the service rendered at the said hospital and such service though rendered free of charge does not cease to be so because the person availing the service happens to be a tax payer." Reference may also be made with advantage to the following decisions of this Commission where after making detailed advertence to the various rulings of the Supreme Court this Commission has dealt with the question as to whether payment of tax can be held to be consideration for the hiring of the service:
The Consumer Unity & Trust Society, Jaipur v. State of Rajasthan & Ors., I (1992) CPJ 259 (NC).
A. Srinivas Murty v. The Chairman, Bangalore Development Authority, II (1992) CPJ 395 (NC).
Parash Nath Baksi & Ors. v. Calcutta Municipal Corporation, III (1994) CPJ 125 (NC).
In the light of the principles laid down in the aforementioned rulings, we have no hesitation to hold that there was no arrangement of hiring of service for consideration as between the complainant and the Municipal Corporation of Delhi in regard to maintenance of public drains passing in front of the petitioner''s premises. Hence the proceeding initiated by the complainant under the Consumer Protection Act seeking relief against the Municipal Corporation of Delhi on the ground of its alleged failure to carry out its statutory duties of proper maintenance of the public drains was totally misconceived and the ex parte order of July 13, 1994 passed by the State Commission granting the relief of issuing of direction to the Municipal Corporation of Delhi as prayed for in the com plaint was wholly without jurisdiction. We accordingly set aside the order dated July 13, 1994, passed by the State Commission in the exercise of our suo motu power of revision under Section 21 of the Consumer Protection Act. Revision Petition No. 704 A of 1995 is disposed of as above."
The State Commission has committed a grave error in passing the impugned order against the above-noted principles of law laid down in the above referred judgments. Thus, we have no hesitation to hold that there was no agreement of hiring or availing of service for consideration between the complainant and the opposite parties, as such the complainants cannot be termed as consumers qua the opposite parties as envisaged under Section 2 (1) (d) of the Consumer Protection Act, 1986. From this it is evident that the State Commission has exceeded its jurisdiction in entertaining the consumer complaint and passing the impugned order. The impugned order cannot be sustained. We accordingly allow the appeal, set aside the impugned order of the State Commission and dismiss the complaint.