S.D.O., TUBEWELL SUB DIVISION III vs Rajendra Prasad Gupta

THIS is an appeal against the judgment and order dated 3.1.2003 passed by the District Forum, Udham Singh Nagar in Complaint Case No. 138/1996, Rajendra Prasad Gupta v. S.D.O., Tubewell Department, Rudrapur & Anr.

THE complainant Shri Rajendra Prasad Gupta filed a complaint with the allegations that Tubewell Department used to supply water for irrigation. It did not supply, therefore, his crop was damaged. THE learned Forum has allowed a sum of Rs. 40,000/- as compensation along with the cost of litigation of Rs. 1,000/-. Being aggrieved by this order, the present appeal has been filed. We do not want to enter into actual dispute. On merits, the moot question is whether the complainant is a consumer. The Tubewell Department was under no obligation to supply water to the complainant. If it could have supplied, the payment could have been made. But since there was no supply, there was no question of payment. There was no agreement between the parties to supply any water. There is no argument regarding any convention right or statutory obligation. In a similar matter in State Commission, Uttar Pradesh, a decision has been given quoted in II (2003) CPJ 450, Kunwar Sudhakar Singh v. Chief Engineer, Irrigation Department. It has been held in this ruling that : "We have gone through the evidence on record. The main contention of the opposite parties is that the irrigation facilities provided by the Department are not assured facilities but they are of protective nature. The irrigation cess is levied on the cultivators who use irrigation water and as per the rules of the Department, certain rates are fixed crop wise and for the facilities availed charges are levied and the same are entered in Jamabandi which are collected by the Revenue Authority of the Tehsil like Land Revenue etc. The cess so levied is not the one like the consideration paid to the Electricity or Telephone Departments etc. Now the next question is, whether the complaint is maintainable under the Consumer Protection Act. As discussed in the earlier part of this judgment, the irrigation charges or the irrigation cess is levied on those who are the beneficiaries of irrigation and the charges are entered in the Jamabandi and realised like the land revenue through the Tehsil Authorities. This clearly proves that those not using irrigation are not levied with such charges. The Department of Irrigation is a statutory department of the State Government and it is for the welfare of the cultivators that this protective measures of providing irrigation is provided by the Government. Thus, while charging for irrigation, the Department does not work in the capacity of a Commercial Organisation and the charges so paid could not be called as consideration as enumerated in the Consumer Protection Act, 1986. Similarly the services provided by the Department of Irrigation would not fall in the category of the service provider for a consideration as detailed in the Consumer Protection Act. In view of what has been discussed above, we find that there has been no deficiency of service on the part of the opposite parties and above all the complaint is not maintainable under the Consumer Protection Act and the same is liable to be dismissed."

It should be noted that in Uttaranchal there is no such Rule of Irrigation and the Rules and Acts as applicable in Uttar Pradesh are still applicable here. The water was to be supplied to the complainant through a canal and here too, a Northern India Canal and Drainage Act, 1873 shall apply. It has been held in this ruling that where the allegations are about the breaches in the embankment of the canal and flow of more water and diminution in production, even compensation cannot be obtained under Northern India Canal and Drainage Act, 1873. In our view, as allegations of the present complaint are, the complainant should have filed his petition before the Collector of the District and should have approached the Civil Court. There is no consumer dispute at all and any finding on the merits of the case was not at all necessary. The complaint is liable to be dismissed on this ground alone. ORDER The appeal is, hereby, allowed. The judgment and order dated 3.1.2003 passed by District Forum, is hereby, set aside. The complaint is dismissed. However, the complainant is at liberty to approach the Civil Court or the Hon''ble High Court on his constitutional right of equality before law or may approach the Appropriate Authority under the Northern India Canal & Drainage Act, 1873, wherever his petition may lie and in the event of any such petition is filed anywhere, our judgment shall not prejudice the rights, title or merits of the case of either of the parties. Cost of this appeal shall be easy. Appeal allowed.