(Delivered On 04/06/2018)

PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.

1.         This appeal is filed by the original opposite party ( hereinafter referred  to as appellant) feeling aggrieved by the order dated 15/02/2012 passed by the District Consumer Forum, Bhandara   in consumer complaint  No. 111/2011, by which  the complaint  has been partly allowed.

2.         The original complainant (hereinafter referred to as  respondent) had filed  a consumer complaint  against the appellant  and opposite party No. 2- Health Inspector, Muncipal Council, Bhandara  under section 12 of the Consumer Protection Act, 1986 before the District Consumer Forum, Bhandara  making  the allegations in brief  as under,

            The respondent  is a doctor by profession  and he runs Nursing Home at Rajgopalchari Ward, Bhandara. The garbage container  is placed  by the appellant on the way of his Nursing Home . It is in bad condition.  Therefore, the garbage and waste material  is scattered on the road and foul smell  is also  spread  at that place.  The respondent  made a request to the appellant  in writing  about the same , but the Health Inspector  has not taken cognizance of the same.  Moreover, the respondent is losing his patients due to said dirty place and thereby the appellant suffered loss of Rs. 50,000/-. Moreover, there are 183 employed by the appellant for maintaining cleanliness and for that the appellant has expended Rs. 82,00,000/- during last three years. The wife of the respondent is also suffering from cough due to smoke arising from the burnt garbage of that place.  Hence,  the respondent filed  consumer complaint   for direction  to the appellant to provide new garbage container  at that place and to  clean it after  every eight days and to pay compensation  of Rs. 50,000/- to the respondent.

3.         The appellant resisted  that complaint by filing reply before the District Consumer Forum, Bhandara.  The submission of the appellant  in brief  as under,

            The respondent does not fall within the definition  of the consumer as given   under the Consumer Protection Act, 1986.  The respondent does not paid any  fees or charges  for  maintenance  of garbage container. The allegation made in the complaint  about unhygienic condition  of garbage container  and area of that place  are denied  by the appellant.  The appellant has  provided proper  garbage container to every ward of  the town. It is denied  that  the respondent  suffered loss  of Rs. 50,000/- due to unhygienic  condition of public place. The appellant has taken proper  action on the  complaints of the respondent made on 29/09/2011 and 12/10/2011 and the new garbage container has been  placed  as requested by the respondent and he has been given  intimation about the same.  Moreover, the appellant is taking  every step to maintain  the  cleanliness   and hygienic  condition  in the town. It is denied that  the wife of the respondent is suffering  from cough  due to unhygienic  condition as alleged in the complaint. Therefore,  the appellant had prayed that  the complaint  may be dismissed.

4.         The District Consumer Forum  below  heard  both the parties and considered the evidence brought on record  and passed  the impugned order and thereby  partly allowed  the  complaint.  The District Consumer Forum directed  the appellant  and original O.P. No. 2- Health  Inspector of Municipal  Council, Bhandara  to pay to the respondent herein  compensation of Rs. 10,000/-  for physical & mental harassment  and economic loss caused by them to the respondent herein  and   they also to pay him litigation cost of Rs. 2,000/-.  The District Consumer Forum below relied on the  report  of Maharashtra Pollution Control  Board  filed on record, in which  it was observed that  the  garbage container  was full  of garbage  & being overflowed  and garbage has  fallen down and due to that reason  there was foul smell  in that  area creating  unhygienic  condition. The District Consumer Forum below  also relied on the  photographs  of that area about the damaged garbage container and scattered garbage. The District Consumer Forum below also observed  in the impugned order that the appellant rendered  deficient service to the respondent by not maintaining  clean and hygienic  condition  in the locality  of the respondent  and therefore patients avoided  to go to hospital of the respondent  located in that  area.  Thus the learned  District Consumer Forum below  concluded that  the  appellant  caused  physical and mental harassment  and economic  loss to the respondent.  Therefore, the  learned District Consumer Forum, below  partly allowed consumer complaint  as above by passing  impugned order.

5.         The original opposite party No. 1 has thus filed  this appeal against that order. We have heard Advocate Mr. S.A. Sahu appearing for the appellant and Advocate  Mr. R.A. Gupte appearing  for the respondent  and we have also  perused the record and proceedings of the appeal.

6.         The sum and substance of submission of  the learned advocate of the appellant  is as under,

i.          The District Consumer Forum below has not properly  appreciated the legal and factual  aspects of the case and  that  did not consider  that  there is no relationship  of service provider and consumer  in between the appellant and respondent for  maintainability  of the consumer complaint. It is well settled  law that  the  property tax payer  cannot become  consumer  of Municipal Council and that  therefore, the complaint  filed before the  District Consumer Forum below is not maintainable  under Consumer Protection  Act,.

ii.          The remedy available to the respondent  is to file the complaint  to the  Collector of District Bhandara under section 308 of Maharashtra  Municipal Councils, Nagar Parishads and Industrial Township Act, 1965 and also to file their grievance  before the State Government  under section  318 of the said Act.

iii.         The report of the  Maharashtra Pollution Control Board relied on by the District Consumer Forum below is one sided and it   is given  without intimation  to the  appellant  and hence, it cannot be relied on.

iv.        The appellant has already  redressed  the grievance of the respondent  by taking  suitable steps, which is also  not considered  by the District Consumer Forum below.

v.         The impugned order  being erroneous, deserves to be set aside.

7.         The learned advocate of the appellant  relied  on the decisions  in the  following cases in support of  his submission.

i.          Raosaheb Devrao Hajare, Vs. Ulhasnagar Municipal Council, decided by the State Consumer Disputes Redressal  Commission, Maharashtra, Mumbai  on 07/12/1992. In that case it is held that  the complainant as a tax payer cannot be considered a Consumer of the  Municipal Services.

ii.          Dr. Sou. Sandhya Arun Kulkarni and other  Vs. Nagar Parishad, Chandrapur and another  in complaint  No. CC/08/02, decided by the Circuit Bench, Nagpur on 19/09/2013.  In that case  this Commission relying on the various decisions of the Hon’ble Supreme Court and  National Commission   held that  due to payment of  property tax, it can not be said that  the complainant  had hired  the service  of the O.P. No. 1- Municipal Council, Chandrapur.

iii.         The Mayor, Calcutta Municipal Corporation Vs. Tarapada Chatterjee & others, decided by the Hon’ble National Commission  on 15/12/1993, reported in  I -1994(I) CPR 87. It is held in the said case by the Hon’ble National Commission that  the dispute raised by the complainant about inadequacy of  pressure in water supply  system is not a consumer dispute as the  complainant  by paying  tax cannot be said to have hired services of Municipality, which discharges statutory  function.

iv.        Consumer Unity and Trust Society  Vs. State of Rajasthan , decided by the Hon’ble  Rajasthan High Court on 25/11/1991.  It was the case of medical negligence and direction was given in that case that   the State  Government  should  nominate a High Power Committee to monitor family  welfare operations  and also nominate Inquiry Committees for every District,  consisting of experts  not concerned with that  particular district. Moreover, standing  instructions should also be issued that as and when  any causality  is reported after such sterilization operations, the Inquiry Committee should immediately proceed with the inquiry  and submit it’s report to the Government  and the Government  should  thereafter, punish the persons who are found guilty of being negligent for the said occurrence.  

8.         On the other hand, the learned advocate of the respondent made submission in brief as under,

i.          The case of the respondent  was supported  by the  report of  Maharashtra  Pollution  Control Board and District Consumer  Forum below  has properly  considered the same. The District Consumer Forum below  has  also properly  considered other   evidence  brought on record  in support of  the consumer complaint.

ii.          The appellant after filing  of the complaint by respondent  before Forum below, installed  new garbage  container in front of the respondent’s  Nursing Home. However, the  District Consumer Forum below  has rightly  directed the appellant  to  pay compensation  of Rs. 10,000/- for physical and mental harassment  and litigation cost  of Rs. 2000/- to the respondent.

iii.         The District Consumer Forum below  has rightly  considered  the decision,  to hold that  the respondent  is a consumer  of the appellant . The appellant  never raised  plea  before the District Consumer Forum below  that  remedy  is available  to the respondent   under section 308 of  Maharashtra  Municipal Councils, Nagar Parishads and Industrial Township Act, 1965 and therefore same cannot be considered  in appeal.

iv.        As there is  no substance  in the appeal, it deserves to be dismissed. 

9.         The learned advocate of the respondent  relied on the decisions  in the following  cases.

i.          Lucknow Development Authority  Vs. M.K. Gupta, reported in  AIR 1994, Supreme Court 787.  It is held  in the said case  that , the provisions of the  Consumer Protection Act have to be construed in favour  of the consumer  to achieve the purpose  of enactment as it is a social  benefit oriented legislation. The primary duty of the Court while construing the  provisions of such an Act is to adopt  a constructive approach subject to that it should not  do violence to  the language of the provisions and  is not contrary to attempted objective of the enactment.

ii.          Vadodara Municipal Corporation  Vs. Purshottam V. Murjani and  other, reported  in  AIR 2015, Supreme Court. In that case the Municipal Corporation had given contract for providing boating services. It is held that the Municipal Corporation would supervise all the activity of the contractor. Death was occurred   on account of capsizing of boat due to overloading.  No life jackets were   provided to victims.  Therefore, it is held that, the Municipal Corporation cannot  deny its liability to compensate on  that ground that liability was of contractor.

iii.         Citizen Consumer  and Civic Action Group Vs. Commissioner, Corporation of  Chennai and another, decided on 05/03/2008 by the State Consumer Disputes Redressal Commission, Chennai.  In that case  it is held  that money to the second opposite party has been paid from the taxpayers funds. Therefore, the citizens living  in those zones are beneficiaries and therefore entitled  collectively through the complainant to file the complaint  before the State Consumer Disputes Redressal Commission.  

10.       At the outset, we find that  the report of the Maharashtra Pollution Control Board  filed on record fully supports the case of the respondent  about  the unhygienic  condition  of the locality  of the town where  the  Nursing Home  of the respondent was situated. Hence, it can be presumed  that  not only the respondent  but other   citizens  of that  locality  also  must have been   suffered  from the unhygienic  condition of that locality.

11.       However,  the material question  involved in the present  case  is as to whether  the  respondent /original  complainant  falls within the definition of the consumer given under  section 2(i)(d) of the Consumer Protection Act,1986.  The respondent  in consumer  complaint  filed learned Forum below  has not stated  as to how  he falls within the definition  of the Consumer and as to how he hired  service of the appellant  by paying  consideration.  In our view it was necessary  for the respondent  to plead  and prove that  he is a consumer  and appellant is a service provider as contemplated  under the Consumer Protection Act, to maintain  the complaint  before the  District Consumer Forum, Bhandara.

12.       The respondent in para No. 7 of the complaint simply stated that  he is regular taxpayer  of the  appellant – Municipal Council, Bhandara and it is  his right to get garbage container  and it is  the responsibility of the appellant  to provide all the basic amenities to all  citizens of the town.

13.       However, we find that  the aforesaid  decisions  relied on by the learned advocate of the appellant  are  applicable to the facts and circumstances of the present case.  This Commission in the  case of Dr. Sou. Sandhya Arun Kulkarni and other  Vs. Nagar Parishad, Chandrapur and another (supra) has specifically  held that  due to payment  of property tax  to the Municipal Council  its services  are not  hired by the tax payer,  as contemplated  under Consumer Protection Act,1986.

14.       Moreover, the learned  State Commission, Mumbai in the case of Raosaheb Devrao Hajare, Vs. Ulhasnagar Municipal Council (supra) has clearly  held that   the complainant as a tax payer cannot be considered a Consumer of the  Municipal Services.

15.       The Hon’ble National Commission in the case of the Mayor, Calcutta Municipal Corporation Vs. Tarapada Chatterjee & others (supra)  also held that the  complainant  by paying  tax  to Municipal  Corporation , cannot be said to have hired services of Municipality which discharges statutory  function.

16.       In the instant case  we find that simply because  respondent  paid property tax to the appellant , it cannot be said that  he hired  service of the appellant which  discharges  its statutory function. The aforesaid  decisions relied on by the learned advocate of the respondent  are not applicable to the facts and circumstances of the  present case since they are totally different  from those of the said cases, discussed above.

17.       Moreover, in the case of Thrissur Municipal  Corporation  Vs. Ummer Koya Haji, decided on 01/08/2006 by Hon’ble Kerala High Court, reported  in 2006(3) KLT 897 it is held that, it can not be said that local bodies  are rendering any services in respect of  which  the tax payer can  maintain a complaint  under the Consumer Protection Act,1986 and that in respect of  payment  of property tax, no complaint  would lie before  the  Consumer Disputes Redressal  Forum  and Commission.

18.       In our view  the District Consumer Forum below has not properly  considered the  law as stated above  that  the  services of the Municipal Council are not hired by payment of property tax.   We also  find that the respondent   can approach appropriate  authority  or Court  for redressal of his grievance. Hence,  we hold that  as there is no relationship  service provider and consumer in between the  appellant and   the respondent, the complaint  filed before the  District Consumer Forum below  is not maintainable under the Consumer Protection Act,1986. On this sole ground  the impugned order deserves to be set aside.

ORDER

i.          The appeal is  allowed.

ii.          The impugned order is set aside. The complaint stands dismissed. The respondent   is at liberty  to seek  redressal of his grievance by  approaching  appropriate authority  or  Court as per provisions  of law.

iii.         No order as to cost in appeal.

iv.        Copy of order be furnished to both  parties, free of cost.