DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No.258/2011
Sh. Pradeep Kumar Dubey
E-107, Jawahar Park
Devli Road, Khanpur,
New Delhi-110062 ….Complainant
Versus
Zonal Revenue Officer (S)-I
Delhi Jal Board,
Saket, New Delhi ….Opposite party
Date of Institution : 01.08.11 Date of Order : 21.12.16
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
Before adverting to the facts of the case, we think it necessary to discuss the brief history of the events which took place after the filing of the present complaint.
The complaint was filed by the Complainant against the OP for wrong mentioning of the Category C-II (Commercial) in place of C-I (Domestic) of water connection No.65902 installed at the premises No.E-107, Jawahar Park, Devli Road, Khanpur, New Delhi. The complaint was filed on 01.08.2011. Notice of the same was issued to the OP. The OP was proceeded exparte vide order dated 26.12.11 passed by our predecessors. The Complainant filed exparte evidence. Thereafter, vide order dated 03.12.12, our predecessors allowed the complaint and issued the directions contained therein to the OP.
OP filed FA No.243/13 against the order dated 03.12.12 and the same was dismissed being barred by time vide order dated 26.03.14. The OP filed RP No.2148/14 before the Hon’ble National Commission and the Hon’ble National Commission passed several orders in the revision petition. Pursuant to the orders dated 22.05.14 and 18.09.14 affidavit of the Zonal Revenue Officer, South-I of the OP annexing some documents therewith, including two receipts showing that some amount had been charged by the Complainant as tuition fee was filed on 12.12.14. On 12.03.15 it was stated on behalf of the OP that the water connection in question had been issued in Category-B and the Complainant had been regularly making payment for the bills. The stand of the officers of the OP was that irrespective of the fact whether or not the school is a charitable institution, under the Delhi Water Board Act, 1988 (in short, the Act) read with Delhi Water & Sewer (Tariff and Metering) Regulations, 2012 (in short, the Regulations), the water connection has to be under Consumer Category-B read with Clause (c) of the Regulations. On 20.05.15, the Complainant herein placed an untitled document stated to have been downloaded on 19.05.15 from the website of the OP, wherein in answer to a question as to which type of uses are covered under Category-I “Domestic” it has been clarified that Charitable Institutions/Societies which have been exempted from Income Tax as per section 12A (a) of the Income Tax Act, 1961 would fall in the said category. It was submitted on behalf of the OP that the said document is old. However, it was observed that the same being still on the website of the OP, reasonable presumption is that the said policy is still in vogue. Counsel for the OP was directed to seek instruction on the said document. Matter was adjourned to 01.07.15. However, neither of the parties have filed the copy of the order dated 01.07.15. Copy of order dated 19.08.15 passed by Hon’ble National Commission has been filed on the record whereby the order passed by the Hon’ble State Commission was set-aside and the matter was remitted to this Forum for fresh adjudication on merits. It was observed as follows:-
“It goes without saying that the District Forum, while taking into consideration the Circulars issued by the Delhi Jal Board from time to time, shall also examine the question if the Complainants case could be considered as a case of mixed user.”
Parties were direct to appear before this Forum on 19.10.15. The Complainant has filed a copy of order dated 19.09.16 passed by the Hon’ble Supreme Court in SLP (C) No.20583/16 passed against the final judgment order dated 19.08.15 passed in RP No. 2148/2014 passed by the Hon’ble National Commission whereby this Forum has been requested to decide the matter at the earliest and in any case before the end of this year.
Now the OP has filed its Written Statement. Complainant has filed a rejoinder. Parties have filed their respective evidence and also written arguments. We have heard the Counsel for the Complainant. However, no oral argument has been advanced on behalf of the OP. We have also gone through the file very carefully. Now, we advert to the facts of the case which are as follows:
The Complainant, who is a resident of H.No. E-107, Jawahar Park, Devli Road, Khanpur, New Delhi has filed the present complaint pleading therein that in one portion of the said house a Charitable Society, namely, Brijendra, Deepti, Geeta Education Society registered under the Societies Registration Act, 1860 has been providing education to the poor and weaker section of the society (mostly under-privileged) for more than 9 years and it has got a certificate for exemption from the Income Tax Department. It is stated that besides this the Society has been educating general public on burning issues of the society like consumer awareness, environment protection, women empowerment, health education and drug abuse, disaster management, employment generation and in universal brotherhood and peace and has received commendations from the various authorities. According to him, he is not running any industry or commercial activity expect doing the abovementioned educative, welfare and charitable activities. He had made personal requests to the OP etc. to convert the category of water bill but in vain. He sought information under the RTI Act in reply to which he received a communication from the OP that the premises where Charitable Societies/Trusts/Non-Profit Organizations run do not come in Category -II. He deposited a water bill of Rs.5500/- for Water connection No.65902 on 30.03.2011 under protest. According to averments made in the complaint, the water bill issued for commercial activity for the said society which is a Non-Profit Organization and uses the water for drinking purpose while doing various social welfare activities is wrong and arbitrary and the same should be withdrawn. Hence, the Complainant has filed the present complaint for issuing various directions to the OP inter-alia to direct the OP to change wrongly mentioned Category C-II (Commercial) of water bill for water connection No.65902.
In the reply, the OP has stated as under:-
“…That the present complaint is not maintainable as per the circular dated 09.08.07 all the charitable institutions/charitable societies which had been exempted from income tax as per section 12A (a) of the Income Tax Act is now to have to pay the water charges at non-domestic category-II (Annexure-A).”
“…That the Petitioner is charged for the tariff prescribed for category B i.e. ‘Mixed user’ on the plea that the school is running in the residential property is not applicable as per the water supply. As per the Delhi Water Board Act, 1988 read with Delhi Water & Sewer (Tariff and Metering) Regulations, 2012, the Board has classified consumers in different categories according to nature of use of water activities undertaken at the premises of the consumer for the purpose of tariff. The board resolution is as under:-
Residential (A) Water supplied to such plot/property which is used purely for residential purpose.
(B) Partial residential/Mixed (B) Water supplied to such residential building where commercial activity having non intensive use of waster exist, such a private clinic, consulting chambers, shops, Atta Chakki, property dealers office etc.
Industrial commercial (C)- water supplied to plot/ properly where intensive use of water is envisaged such as institutes, hospitals, schools, Offices, Offices complexes, Railway stations/yards police stations, Airports, Bus stand Petrol Pumps, Hotels restaurants clubs marriage halls industry cooling paints, factories, ice cream factory amusement park dhobi ghat etc.”
It is further stated as under:-
“…. It is pertinent to mention here that merely getting the certificate of 12A from the income tax department the complainant cannot claim any right from the OP to get the water connection in domestic category. As per the circular dated 09/13.08.2007 the OP has withdrawal the earlier decision of treating all institutions under the domestic category on the strength of the certificate from the IT Department under the Section 12(A) (a) of the Income Tax given to the charitable institutions.
Hence, it is prayed that the complaint be dismissed.
In the rejoinder the complainant has inter-alia stated as under:
“The circular dated 9/8/2007 of Delhi Jal Board withdrawing of the provisions of treating charitable institutions (having been exempted from income tax as per section 12A(a) of the Income Tax Act) in commercial category is unconstitutional and illegal because reasons cited in the proposal for the same are illogical, untrue and without any legal basis. As per Delhi Jal Board Act 109 any regulation to be act has to be passed by Delhi Legislative Assembly and here in this case is not done.”
Copy of one water bill in respect of water meter No.65902 installed in the name of the Complainant at the above stated premises is Annexure P/-2A in which the category of the water consumption has been shown as C-II (commercial).
As stated hereinabove, additional affidavit in compliance with the order dated 12.12.14 was filed before the Hon’ble National Commission. The copy of the same has been filed on the record which we mark as “Mark AA” for the purposes of identification. The same is the affidavit of Zonal Revenue Officer, South-I of the Delhi Jal Board wherein para No.4 is relevant. The same reads as under:-
“4. That the water connection has been applied by the Respondent in Category-I (Domestic) in his individual name in the year 2009 and he had deposited an amount of Rs.16,380/- vide G-8 No.987077 dated 31.03.2009 on account of water connection charges.”
Thus, from the said affidavit, it becomes abundantly clear that the Complainant had infact applied for Category -I (Domestic) water meter in his individual name in the above stated premises. However in para No.8 of the said affidavit the ZRO has further deposed as under:-
“8. That as per the site reports that the Respondent is charging the admission fee and monthly fee from the children admittedly. The display board showing ‘ANGELIC MODERN SCHOOL, PRE SCHOOL, PRE PRIMARY AN PRIMARY, at E-107Jawahar Park also exists at site. It is pertinent to mention that the play school is not affiliated with Deputy Director Education (MCD). The water charges by the Petitioner are as per the tariff plan in Delhi notification.”
It is not out of place to mention here that the Complainant has not challenged the veracity of the contents of para No.8 of the said affidavit. Copies of fee slips issued by the said school filed before the Hon’ble National Commission have been filed on the record which we mark as Mark “BB” and Mark “CC " for the purposes of identification. A perusal of the receipts proves that the said school had/has infact been charging fees from the students studying in classes including play section and IInd section.
Receipt Mark-BB is for the period Jan.-Feb, 2013 and the amount of the fee charged from the student is Rs.1200/- which means that the said student studying in IInd standard in the above stated school was paying monthly fee of Rs.600/-. Receipt Mark-CC is for the month of Nov.-2014 and the same is for an amount of Rs.800/-. It means that the student/s studying in play section has/have to pay fee of Rs.800/- per month. It is appended to the receipts that the fee is to be paid by 10th of every month failing which a fine of Rs.30/- will be charged alongwith the fee in the next month and that the fee once received will not be refunded. The said two receipts go a long way to show that the Complainant has infact been not running the said school for charitable purposes and has infact been running the same for non- charitable purposes.
According to the complainant, the circular dated 09.08.07 is unconstitutional. Copy of the order dated 09.08.07/13.08.07 bearing No. DJB/DOR/Preamble/2007/25474 to 25530 25563 to 25599 has been placed on the file. The same is in respect of the withdrawal of the provision of treating Private Hospitals/ Nursing Homes/Pvt. Educational Institutions etc. under the domestic category on the strength of the certificate under section 12A(a) of the I.T. Act given to the charitable institutions. If the said order/circular is made applicable to the case of the Complainant the Complainant will not be entitled to enjoy the facility of water supply at his residence/society premises under domestic category. We are not competent to go into the vires of the said circular because this Forum does not have the authority to go into the constitutionality and legality of the said order. If the Complainant had/has any such grievance he ought to have initiated appropriate proceedings in this regard before the competent court of law and not before this Forum.
The circular had been issued by the Delhi Jal Board which is a statutory body. Therefore, the said circular is applicable so far as the present complaint under the Consumer Protection Act is concerned and is fully applicable to the facts of the present complaint. The Complainant had applied for domestic water meter but he had been given a commercial water meter in his house which was proper. The two receipts (supra) filed on the record go a long way to show that the complainant has infact not been running any charitable institution in his house and that he has been running a school for non- charitable purposes for which he has been charging handsome fees from the students which admittedly are about 150 students. This was so said by the Complainant in his statement made before this Forum on 03.06.16 that he is running a school and about 150 students are studying there. Thus, the judgment citied by the Complainant in RSA No. 39/2007 titled as Delhi Jal Board Vs. Smt. Sulochna decided by the Delhi High Court on 04.04.08 is not applicable to the facts of the present case because in that case the OP had not been served any show cause notice to the consumer before changing the category under which water connection was sanctioned and there was no evidence to show that the consumer had used the water for the conduct of the business. In the present case, the Complainant who had infact applied for domestic water connection had been given a water connection under Category -II (commercial purposes). Therefore, we hold that the Complainant has to pay the water charges under the category of non-domestic category –II.
In view of the above discussion, we do not find any deficiency in service or unfair trade practice (though no pleaded in the complaint) on the part of OP. Therefore, we dismiss the complaint with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 21.12.16
