F.A. No. 252 of 2010

F.A. No. 213 of 2010

         Heard learned counsel for the appellant.

2.      Since both the appeals arise out of one impugned order, both the appeals are heard analogously. This common order shall govern the result of both the appeals.

3.      These appeals are filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum.

4.      The case of the complainants are  that  they are the users  of water of Balimela L.I.Point, Buroghat. It is alleged inter alia that during the year 2009 they have cultivated paddy and groundnuts in their lands and for that they paid water tax to the Secretary of Pani Panchayat. In spite of payment of money, OPs with an alternative motive did not supply the water for which  the complainants suffered damages to their crops. Therefore, they filed the complaint against the OPs.

5.      OP Nos. 1 to 3 filed written version stating that the Balimela L.I.Point, Buroghat was handed over to water users association (Pani Panchayat) of Buroghat since 2004. As per the Pani Panchat Act,  the Pani Panchayat is authorized to collect water tax and there was no role  to play  in the case of the complainants. Under Section 17(d)(e) of the Pani Panchayat Act, 2002, it is the duty of the Pani Panchayat to  distribute water. So, they have not committed any deficiency in service.

6.      OP Nos. 5 and 6 filed joint written version stating that the complaint is not maintainable and the complainants are not consumers and OPs are not service provider. Since the electricity has been disconnected the complainants did not cultivate the paddy and groundnuts. The Secretary of the Pani Panchayat has not collected any dues from the complainants. So, there is no deficiency in service on their part.

7.      After hearing the learned counsel for the appellant in FA No. 252  of 2010, the learned District Forum passed the following order in each complaint case:-

“xxx               xxx                 xxx

The OP No. 6 Sudam Charan Dash, Secretary of Balimela Pani Panchayat of Buroghat shall  pay Rs.1600/- to complainant No.1, Biswamitra Dash, Rs.1450/- to complainant No.2 Suresh Mahakur, Rs.1300/- to complainant No.3 Dugu Mahakur, Rs.400/- to complainant No.4 Satyaban Mahakur, Rs.2050/- to complainant No.5 Jagat Naik and the OP No.3 Santosh Sahu, J.E.L.I. Biramaharajpur shall pay Rs.800/- to each of the aforesaid complainant. All these payment should be made within a period of one month from the date of order. Complaint is partly allowed.”

8.      Learned counsel for the appellant in FA No. 252 of 2010 submitted that learned District Forum has committed error in law by not considering the  written version with proper perspectives. According to her the complainants have not paid any money to the appellant and as such they are not consumers. She also submitted that there is no permission taken u/s 12(1)(c) of the Act to file a complaint when they have got same interest as per the complaint. Therefore, the complaint is not maintainable. She submitted to set aside the impugned order by allowing the appeal.

9.      Considered the submission of learned counsel for the      appellant in FA No. 252 of 2010 and perused the impugned order including the DFR.

10.    The question of maintainability of the complaint is to be decided first. It is only alleged by the complainant that they have paid different amount of fees to the Secretary of Balimela Pani Panchayat but the complainants have not filed any money receipts except affidavits. When money receipts have not been filed, it is difficult to find out that they have paid water tax to the Secretary of Pani Panchayat. Apart from this section 12(1)( c) is as follows:-

                   “xxx     xxx     xxx

(c) One or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on behalf of, or for the benefit of all, consumers so interested, or”

11.    In Rameswar Prasad Shrivastav and others vrs. Dwarikadhis Projects Pvt.Ltd. and others  in Civil Appeal No. 4802 of 2018 disposed of on 7.12.2018  the Hon’ble Supreme Court have clearly held that when one or more consumers having same interest  filed the complaint should obtain the permission from the District Forum or District Commission to file complaint. In absence of permission the complaint is bad in law. In view of aforesaid discussion, when the complainants have not obtained any permission from the learned District Forum as per the DFR, the necessary departure appears in this case. Therefore, the consumer complaint is also not maintainable.

12.    In view of aforesaid discussion, the impugned order being passed is hereby liable to be set aside and it is set aside.

13.    Both the appeals are allowed. No cost.

         DFR be sent back forthwith.

         Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.