NCDRC

NCDRC

RP/2250/2015

CHENNAI METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD - Complainant(s)

Versus

B. R. PADMANABAN - Opp.Party(s)

MR. S. S. RAY, MRS. RAKHI RAY & MR.VAIBHAV GULIA

13 Nov 2017

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 2250 OF 2015
 
(Against the Order dated 06/12/2013 in Appeal No. 58/2013 of the State Commission Tamil Nadu)
1. CHENNAI METROPOLITAN WATER SUPPLY AND SEWERAGE BOARD
THROUGH AUTHORIZED SIGNATORY, NO.1, PUMPING STATION ROAD, CHINTADRIPET,
CHENNAI-600002
...........Petitioner(s)
Versus 
1. B. R. PADMANABAN
4/435, MUGGARPAIR WEST,
CHENNAI-600037
...........Respondent(s)

BEFORE: 
 HON'BLE MR. PREM NARAIN,PRESIDING MEMBER

For the Petitioner :
Mr. S.S.Ray, Advocate with
Mr. Vaibhav Gulia, Advocate
For the Respondent :
In person

Dated : 13 Nov 2017
ORDER

1.      This revision petition has been filed by the petitioner Chennai Metropolitan Water Supply & Sewerage Board, against the order dated 06.12.2013 of the State Consumer Disputes Redressal Commission, Tamil Nadu, (in short ‘the State Commission’) passed in First Appeal No.58 of 2013.

2.      Brief facts of the case are that the respondent/complainant was getting regular bills of water tax and he was paying the same.  However, the Board sent a bill containing Rs.128/- for water tax and Rs.80/- as surcharge on 26.03.2011 and then the complainant protested against the surcharge.  The complainant then filed a consumer complaint bearing No.258 of 2011 before the District Consumer Disputes Redressal Forum, Chennai, (in short ‘the District Forum’).  The District Forum vide its order dated 14.12.2012 dismissed the complaint.

3.      Aggrieved by the order of the District Forum, the respondent/complainant preferred an appeal bearing No.58 of 2013 before the State Commission and the same was allowed vide its order dated 06.12.2013 as under:-

“In the result, the appeal is allowed and the complaint is allowed in part by setting aside the order of the District Forum in CC. No.258/2011 dated 14.12.2012.

  1.  The opposite parties are directed to jointly and severally to refund a sum of Rs.80 collected in the name of surcharge towards water and drainage charges.

  2. The opposite parties are directed to pay a sum of Rs.1000/- each towards deficiency of service and for mental agony caused to the complainant by the opposite parties in all Rs.2000/-

  3. The opposite parties are directed to pay a sum of Rs.2000/- as costs to the complainant.

  4. No separate order as to costs in this appeal.

  5. These directions shall be complied within 6 weeks from the date of this order.”

4.      Aggrieved by the above order, opposite party/petitioner herein filed M.P. No.1 of 2014 along with W.P. No.13543 of 2014 before the Hon’ble High Court of Madras, which was dismissed on 16.02.2015 as under:-

“10.  In the result, the Writ Petition is dismissed.  However, it is open to the petitioner Board to exhaust the remedy available under the Consumer Protection Act.  It is made clear that this Court has not gone into the merits of the contentions raised by the petitioner Board as regards the reasons for collecting the surcharge.  No costs.  Consequently, connected Miscellaneous Petition is closed.”

5.      The petitioner herein appealed before a double Bench of the High Court which dismissed the appeal on 06.08.2015.

6.      Hence the present revision petition

7.      Heard the learned counsel for the petitioner as well as respondent in person.

8.      Learned counsel for the petitioner stated that the amount of award is not much, however, Chennai Metropolitan Water Supply & Sewerage Board has filed this revision petition because the State Commission has not understood the legal point involved in the matter and has passed the order beyond its jurisdiction.  It was mentioned that the State Commission has failed to appreciate that Section 84(3) of the Chennai Metropolitan Water Supply and Sewerage Board Act reads “The provision of this Act or any other regulation or other instrument made shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force” and accordingly, being a special enactment this Act has an overriding effect on other laws including the Consumer Protection Act, 1986. The State Commission has further erred in appreciating that Section 3 of the Consumer Protection Act, 1986 mentions that provision of the Act should not be in derogation to any other law. In light of the same, the provisions of Chennai Metropolitan Water Supply and Sewerage Board Act would prevail over the Consumer Protection Act, 1986.  Hence, the consumer fora have no jurisdiction to pass any order with respect to water tax, which is the subject matter of dispute in the current proceedings.  He further stated that the Board has got the power to make Regulations and then Regulations provide for levying surcharge and therefore, the surcharge will come within the purview of water tax and consumer fora are not empowered to adjudicate any matter relating to water tax or surcharge.

9.      The learned counsel further emphasised that if the order of the State Commission is not set aside, some other consumers may come to the consumer fora against their water tax bills, which will not be a healthy practice.

10.    On the other hand, the respondent stated that the surcharge is not in the form of water tax, it is penalty for which the Board does not have any power to levy. Even if the Board has got power to levy surcharge as penalty for delay, the same can be agitated before the consumer forum because Section 3 of the Consumer Protection Act, 1986 provides for alternate remedy.  He further stated that he has no problem paying Rs.80/-, however, he is pursuing this case on principles.

11.    I have given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioner as well as of the respondent, who is present in person. 

12.    The first issue to be decided in this revision petition is the issue of delay in filing the revision petition.  There is a delay of 543 days and application for condonation of delay has been filed by the petitioner.  The reason for delay is that against the order dated 06.12.2013 passed by the State Commission, the petitioner approached the Hon’ble High Court of Madras in writ jurisdiction and filed a writ petition no.13543 of 2014 along with MA No.1 of 2014 and the Hon’ble High Court dismissed the writ petition on 16.02.2015, wherein the liberty was given to the petitioner to exhaust the remedy available under the Consumer Protection Act.  The petitioner then filed a writ appeal against the order dated 16.02.2015 of the High Court before a double Bench of the High Court and the same was also dismissed on 06.08.2015.  The revision petition has been filed on 31.08.2015.

13.    First of all pursuing the remedy with a wrong forum is not a sufficient cause for condoning the delay as held by this Commission in the matter of  Ram Pal Singh Vs. Ghazibad Development Authority, AE No.5 of 2014, decided on 07.01.2016 (NC), wherein quoting an order of the Hon’ble Supreme Court the following has been held:-  

12.   The only ground on which condonation of delay has been sought is, that appellant was pursuing wrong remedy. Therefore, the delay has occurred in filing this appeal, hence delay should be condoned.

13.    Hon’ble Supreme Court in M/s Advance Scientific Equipment Ltd. & Anr. Vs. West Bengal Pharma & Photochemical Development Corporation Ltd. (Appeal (Civil) Nos. 17068-17069/2010, decided on 9th July 2010) it observed inter alia, as under;

……We are further of the view that the petitioners’ venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the Court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under Section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction.

14.    Appellant herein, is pursuing this litigation since 1998, that is, for more than 17 years. Therefore, it cannot be said that appellant or its counsel were not well versed with the legal procedures.

15.   In view of decision of Hon’ble Apex Court in M/s Advance Scientific Equipment Ltd. (Supra), the act of appellant in approaching a wrong forum, would not entitle him to have the delay condoned. Moreover, a valuable right has accrued in favour of the respondent, which cannot be brushed aside lightly. Thus, no ground is made out for condoning the long delay of 178 days.”

 14.   Even if it is accepted that the petitioner was wrongly advised to approach the High Court under the writ jurisdiction, it is not clear as to why the writ appeal was filed because the High Court vide its order dated 16.02.2015 had already given liberty to the petitioner to exhaust the remedy available under the Consumer Protection Act.  The petitioner did not utilize the liberty granted by the High Court and pursued a writ appeal.  Thus, even after the liberty granted by the High Court vide order dated 16.02.2015, the petitioner did not utilize the opportunity for filing revision petition before this Commission. Therefore, the delay from 16.02.2015 till 31.08.2015 cannot be treated as justified.   Even if the delay upto 16.02.2015 is condoned, the delay from 16.02.2015 till 31.08.2015 is more than 90 days and therefore cannot be condoned.  Hence the application for condonation of delay is dismissed.

15.    Even on merits, It is found that the main argument of the learned counsel for the petitioner is that Section 84 (3) of the Chennai Metropolitan Water Supply and Sewerage Board Act, bars the jurisdiction of Consumer Forum.  A plain reading of this Section shows that it only says that the provisions of the Chennai Metropolitan Water Supply and Sewerage Board Act, will take effect even if any contrary provision exists in any other law for the time being in force.  Consumer Protection Act, 1986 is only an enabling Act and does not have any contrary provision to those given in the Chennai Metropolitan Water Supply and Sewerage Board Act.  In fact the Consumer Protection Act, does not have any provision relating to water tax or any surcharge.  On the contrary, Section 3 of the Consumer Protection Act,1986 provides for additional and alternate remedy.  Moreover Section 3 of the Consumer Protection Act provides that the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.  It simply means if some remedy is available under certain law, the same can also be availed under the Consumer Protection Act, 1986 if the relationship of consumer and service provider is established. Under the Chennai Metropolitan Water Supply and Sewerage Board Act, it has been informed by the learned counsel that there is a provision for appeal under this Act also. However, the complainant has chosen to avail the jurisdiction of consumer forum for his grievance redressal.  The learned counsel for the petitioner could not show any notification or any resolution of the Board or any office order under which the surcharge was to be levied on water tax.  Therefore, prima facie, the surcharge does not come under the definition of water tax as claimed by the learned counsel for the petitioner.  Moreover, the respondent stated that the surcharge was a charge for delayed payment, whereas, he had made payment in times.  The State Commission has also treated this surcharge as charge for delay and has also not found any justification for this surcharge in the present case.  As the surcharge is charge for delay, this becomes a subject matter of Consumer Protection Act, 1986.  Thus, I do not find any illegality, material irregularity or jurisdictional error in the order dated 06.12.2013 of the State Commission which calls for any interference from this Commission.

16.    Based on the above discussion, revision petition No.2250 of 2015 is dismissed on the ground of being barred by limitation as well as on merits.

 
......................
PREM NARAIN
PRESIDING MEMBER

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