TRIPTI KUMAR KOTHARI vs EXECUTIVE ENGINEER, P.H.W.D. , THE EXECUTIVE ENGINEER, P.H.W.D.

AS the questions involved in these three appeals are common, they were heard together and it will be convenient to dispose them of by a common order. Facts leading to these appeals are substantially the same and as such facts of Appeal No. 149/90 may briefly be noticed.

THE complainant-appellant in respect of his water connection bearing A/c Serial No. 32A11/54, Service Serial No. 82640 filed the complaint. THE water was/is supplied to the complainant from the aforesaid service number. According to the complainant, the water so supplied is used by him for domestic purpose and not for commercial use. THE grievance of the complainant is that the bills that are sent to him are on the basis of the commercial rate. According to him the water charges sought to be recovered from him are illegal and unauthorised. It was stated by the complainant that the water is not utilised or used for any commercial purpose. THE water is not supplied to the tenants of the shops and other commercial establishments are not allowed to use and consume water supplied by the opposite parties by the aforesaid water connection to the complainant-appellant. An averment was made to the fact that upto the period of September, 1988 the opposite party was charging domestic rate in respect of the above service number, for the water being supplied but subsequently it categorised at a commercial rate and billed it accordingly. He is said to have made representations in this connection to the authorities concerned but they were of no avail. He, therefore, filed a complaint under Section 12 of the Consumer Protection Act, 1986 ("the Act" herein) before the District Forum, Jaipur on 6.5.1988 praying that a direction may be issued to the opposite party to charge from the complainant water charges at the domestic rate and not at the commercial rate and the amount that has been realised on die basis of the commercial rate may be ordered to be refunded to him with interest @ 18% p.a. THE opposite party filed the version of the case en 16.6.1989 justifying the recovery of the charges on the basis of the commercial rate. It was pleaded "by the opposite party-respondent that the premises owned by the complainant were used for residential and commercial purposes. It, however, admitted the earlier billing of the water charges at the domestic rate. A plea was taken that the water supplied from the above service number is not exclusively used by the complainant but also by his various tenants, some of them were having commercial establishments and so for the supply of water from the above service number in accordance with the Rajasthan Water Supply Rules, 1967 particularly sub-rule (3) of R. 3 thereof and also under the terms of the notification No. P.3(1)M & H(70) Group 4 Jaipur dated 17.3.1979 issued by the Commissioner-cum-Dy. Secretary Medical and Health commercial rate is charged. THE opposite party having come to know that in the premises where the water connection of the above service number is there besides the owner of the premises, some tenants doing business and having commercial establishments consume water. An enquiry was conducted by the Department and it was found that the water is consumed by the owner of the premises as well as the tenants who are having commercial establishments and so decided to recover from the complainant water charges on the basis of the commercial rate. It was submitted on behalf of the opposite party in the version of the case that in view of this, the complaint was not maintainable and no relief as prayed by the complainant that the opposite party should be directed to recover water charges at domestic rate or that amount charged on the basis of commercial rate being excessive and illegal should be refunded. It was prayed that the complaint may be dismissed without costs. Detailed affidavits of Shri Naimul Haque, Asstt. Engineer and Mr. Zameen Hussain, Executive Engineer dated 3.2.1990 were submitted. A plan of the premises in which water connection is installed was also submitted with the version of the case. Photo stat copy of the notification dated 17.3.1979 on the basis of which commercial rate was charged from the complainant was also placed on record. THE complainant submitted his affidavit dated 30.1.1990. During the pendency of the complaint, the District Forum appointed Shri S.K. Tailor, Advocate as Commissioner to inspect the site and submit the report. Shri S.K. Tailor (Commissioner) submitted the report with a Plan. THE report is dated 24.2.1990. THE District Forum after hearing the arguments dismissed the complaint holding that recovery of the commercial rate from the complainant-appellant was proper, for, the water from the aforesaid service number is being used for domestic as well as for commercial purposes. Against the dismissal of the complaint complainant-appellant has filed this appeal. As stated above the other two appeals (Appeal Nos. 150/90 and 151/90) are almost on the identical facts and the order passed is more or less identical. It was reported that certified copy of the order appealed against was not submitted with the appeal as required by Rule 8(3) of the Consumer Protection (Raj.) Rules, 1987. A notice was issued to the appellant in this connection. Learned Counsel for the appellant submitted full and complete copy of the order appealed against. He also submitted an application for condonation of delay on 13.9.1990. In support of that application, affidavit was also submitted later on. It was recorded in the proceedings dated 1.12.1990 that the appeal was filed in time. It was accompanied by uncertified copy. Certified copy was filed on 13.9.1990. The appellant has given reasons for filing the certified copy on 13.9.1990. The appeal which was registered as defective on 28.7.1990 was taken to be registered subject to all just exceptions. Notice was ordered to be issued to the opposite partyrespondent. Service was presumed to be sufficient vide order sheet dated 19.1.1991 and appearance was awaited. There is one letter issued by the Supdt. Engineer, PHED to the Executive Engineer City Division, Jaipur appointing him as officer incharge. This letter is dated 18.1.1991. But nobody appeared on behalf of the respondent. We therefore, heard Mr. Anant Kasliwal, Advocate for the appellant.

The questions involved in this appeal are (1) whether the complainant-appellant is entitled to a direction/order against the opposite party-respondent that he should recover water charges for the above mentioned service number at the domestic rate and not at the commercial rate as it has been doing and sending the bills and (2) if the complainant is liable to pay to the opposite party water charges at the domestic rate, whether a direction for the refund of the amount so paid in excess on the basis of the commercial rate should be issued. It may be recalled that in the version of the case an objection was taken that the District Forum has no jurisdiction to give the directions prayed for by the complainant in his complaint. The District Forum did not deal with this objection specifically as it came to the conclusion that admittedly the water supplied from the above mentioned service number is being utilised for domestic as well as commercial purposes and so the complainant is liable to pay water charges at the commercial rate. We consider it proper to reproduce the prayer made by the complainant in the complaint.

WE are thus faced with the question whether in a complaint of this nature, the reliefs prayed for by the complainant can be granted under the Act. S. 2(1)(c) defines "complaint". The material part for our purpose is as under : - "(c) "Complaint" means any allegation in writing made by a complainant that (i) (ii) (iii) the services mentioned in the complaint suffer from deficiency in any respect. (iv) with a view to obtaining any relief provided by or under this Act."

"Deficiency" has been defined in S.2(1)(g) of the Act. It is as follows : "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. "Service" has been defined in S. 2(1)(o) of the Act.

It reads as follows : "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 a news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

S. 14(1) deals with the reliefs which can be granted by the Redressal Forums under the Act. It is as under : "S. 14. Finding of the District Forum (1) If, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to take one or more of the following things, namely : (a) to remove the defect pointed out by the appropriate laboratory from the goods in question; (b) to replace the goods with new goods of similar description which shall be free from any defect; (c) to return to the complainant the price, or as the case may be, the charges paid by the complainant; (d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party."

The principal relief which the complainant-appellant has sought in the complaint is regarding the declaration to the effect that he is liable to pay water charges at the domestic rate and the opposite party should be directed to recover water charges at the domestic rate. It is well settled by a catena of cases of the National Commission that the reliefs which Consumer Disputes Redressal Forums can grant to any complainant are only those specified in S. 14(1) of the Act. Reference in this connection may be made to Rajasthan State Industrial Development and investment Corporation Ltd. v. M/s Premier Paints (First Appeal No. 51/90 decided on 11.10.1990) and Balacheruvu Lay out (Vuda) Flat Owners Association v. Vishakhapatnam Urban Development Authority and others (Original Petition No. 17/90 decided on 7.11.1990). In the latter case it was ruled that the reliefs asked for by the complainant viz. handing over of the management and maintenance of water supply system to the complainant and refund of deposit of water connection and direction not to collect water charges for certain period are not reliefs which can be granted under S. 14 of the Act.

IN Madras Provincial Consumer Association v. Deptt. of Telecommunication (Original Petition No. 8/90 decided on 10.10.1990) a question arose whether the tarriff rates fixed under S. 7 of the INdian Telegraph Act read with Rule 434 of the INdian Telegraph Rules which are statutory in character, the reasonableness can be gone into or not for those rates are decided as policy matters in the process of fiscal planning. IN that case the National Commission observed that the grievance put forward does not relate to any "deficiency" in the service in respect of which alone relief can be sought under the Act from a Redressal Fonim constituted under the Act. Viewed from any point of view, we are of considered opinion that the relief which the complainant has sought against the opposite partyrespondent in regard to the determination of domestic rate or commercial rate does not fall within the purview of S. 14(1) of the Act. At the request of the learned Counsel for the appellant we have carefully considered the notification dated 17.3.1979 which defines the commercial institutions. They include shop or office used for business. We have considered the affidavits of the complainant Shri Naimul Haque Asstt. Engineer and Shri Zameen Hussain Executive Engineer, the report of Shri S.K. Tailor Advocate (Commissioner) and the plan submitted with the report. It is an admitted position that there are tenants of the shops having commercial establishments in the premises in question which are owned by the complainant. According to the complainant the water is exclusively used by him for domestic purpose and it is not used by the tenants having commercial establishments. But according to the opposite party it is used by the owner of the house as well as by the tenants owning commercial establishments. Two questions crop up in this connection : (1) If water is consumed both for domestic and commercial purposes then whether the opposite party is justified in realising the water charges on the basis of the commercial rate, for, there is only one service line? (2) Whether this question can conveniently be decided in a summary enquiry envisaged under the Act. We are quite concious of the fact that both the parties have come with rival versions where there is no meeting ground, for, according to the complainant water is used exclusively by the owner of the house for the domestic purpose whereas according to the opposite party, it is being used by the owner of the house as well as the tenants of the commercial establishments. There is affidavit of the complainant on the one side and there are affidavits of the Asstt. Engineer and the Executive Engineer on the other side.

IN Special Machines, Karnal v. Punjab National Bank and others (Original Petition No. 32/89 decided on 22.12.89) I (1991) CPJ 78 (NC) the National Commission made the following weighty observations : "The procedure for disposal of complaints under the Act has been laid down in Section 13 of the Act, the provisions of which are made applicable to proceedings before the National Commission by Rule 14(2) of the Consumer Protection Rules, 1987. Sub-sections (2) and (3) of Section 13 of the Act show beyond doubt that the statute does not contemplate the determination of complicated issues of fact involving taking of elaborate oral evidence and adducing of voluminous documentary evidence and a detailed scrutiny and assessment of such evidence, it is no doubt true that the forms constituted under the Act are vested with the power to examine witnesses on oath and to order discovery and production of documents. But such power is to be exercised in cases where the issues involved are simple such as the defective quality of any goods purchased or any shortcoming or inadequacy in the quality, nature and manner of performance of a service which the respondent has contracted to perform for consideration. Even in such cases, if it appears to the concerned Forum under the Act that the issues raised cannot be determined without taking elaborate oral and documentary evidence it is open to it, to decline to exercise jurisdiction and refer the party to his ordinary remedy by way of suit."

IN the facts and circumstances of this case, the issue involved in this case is not simple in regard to the shortcoming or inadequacy in the quality and nature and manner of performance of service which the opposite party has contacted to perform for consideration. IN the summary enquiry such questions cannot be determined, we are, therefore, of the opinion that in the complaint filed by the complainant-appellant the reliefs as prayed for by the complainant could not be granted by the District Forum and as such the complaint was not maintainable. We agree with the conclusion arrived at by the District Forum regarding the dismissal of the complaint but on different grounds. It is, however, clarified that nothing stated in the order of the District Forum or mentioned in this order shall adversely and prejudicially affect the complainant in any other proceedings which he may be advised to take in regard to the matter in question. The result is that Appeals No. 149/90,150/90 and 151/90 have no force and, therefore, they are dismissed. As nobody has appeared on behalf of the opposite party-respondent, there will be no order as to costs. The main order shall be kept on the record of Appeal No. 149/90 and its copy shall be placed on the records of Appeals No. 150/90 and 151/90. Appeal dismissed.