ccBEFORE THE DISTRICT FORUM (UNDER CONSUMER PROTECTION ACT, 1986) MEDAK AT SANGAREDDY
Present : Sri P.V. Subrahmanyam, B.A.,B.L., President
Smt Meena Ramanathan, B.Com., Lady Member
Sri G.Sreenivas Rao,M.Sc.,B.Ed.,LL.B., PGADR (NALSAR)Male Member
Thursday, the 14th day of July 2011
C.C. No. 14 of 2011
Between:
1.Mr K. Chidambaram S/o late K. Rajamallaiah,
Age: 69 years, Occ: Social Worker,
Janavignana Vedika A.P.,
R/o H.No. 12-179, Srinagar Colony,
Patancheru, Medak District.
2. S. Nitish Kumar @ Nitish Raj,
Age: 6 years, Occ: Student,
Rep. by her natural mother namely
S. Umarani W/o Narsing Rao,
Age: 33 years, Occ: Employee,
R/o H.No. 5-203/3, Rammandir Roa d,
Mudiraj Basthi, Patancheru, Medak District.
…..Complainants
And
1.Dy. Commissioner,
Greater Hyderabad Municipal Corporation,
Circle – 13, Patancheru -502319,
Medak District.
2. Zonal Commissioner,
Greater Hyderabad Municipal Corporation,
Serilingampally, R.R. District.
3. Chief Commissioner,
Greater Hyderabad Municipal Corporation,
Hyderabad.
….Opposite parties
This case came up for final hearing before us on 21.06.2011 in the presence of Sri M. Narsimlu and Smt K. Aruna Kumari, Advocates for complainants and Sri P.H. Pannagasai, Advocate/special standing counsel GHMC for opposite parties No. 1 to 3, oral arguments of both sides heard, on perusing the record and having stood over for consideration till this day, this Forum delivered the following:
O R D E R
(Per Se G. Sreenivas Rao, Member)
This complaint is filed under section 12 (D) of C.P. Act, 1986 to direct the opposite parties to provide basic amenities like drinking water, Public urinals to the vendors and general public and proper place for weekly vegetable market; to restore the feeder channel to saki cheruvu to improve ground water level in the limits of Patancheru town; to restrain collection of Rs. 20/- per month from every house for collection of waste by rickshaw pullers; to remove all encroachments (Carts & dabbas) from the footpath, colony roads and infront of historical monument-tombs; to issue revised and reduced house tax bill for 2010-2011 already collected from people of Patancheru & Ramachandrapuram Circle-13 for the financial year 2009-10 and to pay compensation of Rs. 1,00,000/-(one lakh) to the complainant and towards mental agony and medical expenditure.
The brief facts of the case are as follows:
- A). That the complainant Nos. 1 & 2 are residents of Patancheru and complainant No. 1 is a social worker and member of the Janavignana Vedika (A.P), a voluntary organization and he being the resident of Srinagar Colony, Patancheru Circle-13 paying regularly all taxes to the opposite parties along with other people of Patancheru. That the complainant No. 1 made several oral requests for improvement of the facilities and to protect them from the diseases and despite written representations to the respondents during the period 2009-11, no action has been taken by the opposite parties. Earlier the complainant No. 1 filed an application before Hon’ble District Legal Services Authority, Medak at Sangareddy through file No. F3/12/2010, dt. 18.03.2010 and the opposite parties are avoiding to appear before the authority till this date.
b). The complainant further alleged that though it is the primary duty to maintain the cleanliness in the corporation limits, the opposite parties failed to do so, as a result the general public are suffering from Malaria, Dengue, Typhoid and other related diseases due to mosquito menace. As part of this the son of the complainant No. 2, S. Nitish Kumar @ Nitish Raj has suffered from malarial fever and who was admitted in Sri Narmada Hospital, Gandhi Nagar, Hyderabad – 500 080, from 14.01.2010 to 19.01.2010 and incurred the medical expenditure more than Rs. 50,000/- (Rupees Fifty thousand only). Due to which the entire family of the complainant No. 2 undergone mental agony.
c). The complainant also submits that the opposite parties have appointed some rickshaw pullers to collect the garbage / waste from the houses on door to door basis, for which every family is bound to pay Rs. 20/- per month, inaddition to the house tax and other taxes etc, which is against the provisions of law. This garbage inturn is being thrown on the tank band of the saki cheruvu and burning there itself instead of disposing at the dump yard of the Jawahar nagar, causing air pollution affecting the health of the people.
d). Adding to the above, the complainant submits that the pedestrians, ladies and children are caused inconvenience by the shop owners who occupy both sides of the road with their pan shops, tea stalls, fruit vendors, tiffin centers, fastfood centers, sales counters on footpaths, coconut carts, sugarcane juice cart etc occupying road side, as a result the people are constrained to walk on the national highway road, which is very dangerous to their lives. The opposite parties have totally failed to take any action on these shop owners.
e). The complainant strongly expressed that these grabbers have not spared even the historical tomb and the weekly market area by leasing out to petty shops/dabbas, workshop etc. The opposite parties having known all these problems have simply ignored them. On thursdays the weekly market area is flooded with ladies, general public and vendors. The opposite parties do not provide public urinals, drinking water, protection grills on the sides of N.H. Road No. 9.
f). The complainant even submits that the colony residents are facing much difficulties in using the internal roads of Patancheru circle-13 which are occupied by the petty shops erecting the sheds with ACC sheets and parking vehicles. The opposite parties not initiated any action on these people also.
g). The complainant also mentions about the removal of feeder channel of saki cheruvu which is the major source of ground water to the people of Patancheru town. In this regard, the Tahsildar of Patancheru issued notice to the opposite party No. 1 under WALTA Act, but till this day he did not initiate any step for restoring the same, due to which during the last year rains, the storm water gushed into the houses of J.P. Colony of Patancheru and the people suffered a lot.
h). The complainant finally submits that the Government A.P. has waived the interest amount on arrears of property tax till the financial year 2009-10 as a onetime measure in GHMC limits, by passing the G.O.Ms.No.139, dated.27.03.2010. But the respondents have not initiated any action in this regard also.
- The complainant finally submits that he made several representations on 04.03.2009, 12.05.2009, 29.06.2009, 18.03.2010 and 07.02.2011 projecting the above difficulties of the Patancheru circle – 13 but the opposite parties have failed to take any action thus causing default in service for which they are liable to provide basic amenities to the people of Patancheru circle -13 and pay compensation to the complainant No. 2 for medical expenditure and mental pain and suffering.
- A). The opposite parties in their counter denying all the allegations of the complainant and submitted that it is not maintainable on the basis of the facts or under the provisions of the Consumer Protection Act and the complainant cannot be termed as ‘consumer’ of the GHMC and also said that the complaint is filed only for the publicity and to extract amount from GHMC on false, baseless and vague allegation. It is also submitted that the basic fact is ignored by the complainant that ours is a developing country and we have been trying very hard and sincerely to raise the standards of living of the citizens and prevent mosquitoes in the locality and other common problem found in the society are not expected and accepted. And further said whatever minimum budget is available with GHMC that has to be adjusted towards all activities of the GHMC.
b). The opposite parties further submitted that the complainant No.1 filed the application before the Hon’ble District Legal Services authority Medak district at Sangareddy vide file No. F3/12/2010, dt. 18.03.2010 and the same is pending and GHMC filed the counter, hence the matter is subjudice. So the present complaint is liable to be dismissed in limini with costs. The opposite parties submitted with regard to mosquito problem that the GHMC is spending crores of rupees for control and prevention of malaria and the Government and GHMC are providing free treatment to the citizens in Fever Hospitals and regarding the air pollution, they said that the GHMC vehicles are dumping the garbage at Jawahar nagar dumping yard.
c). The opposite parties have denied in particular all the specific allegations that caused inconvenience to pedestrians general public, old people, ladies and children due to petty shop owners, encroachers and land grabbers and footpath grabbers by business people.
d). The opposite parties also submitted that GHMC is spending huge amounts for the development of the bund of the ‘cheruvu’ and for laying road and it is visible to everyone. They also referred a letter issued by Executive Engineer to Dy. Commissioner regarding this issue for perusal. And denying all the representations made by the complainant on 04.03.2009, 12.05.2009, 29.06.2009, 18.03.2010 and 07.02.2011, they said complainant do not have any right or locus standi to make allegations before the Hon’ble Forum, claiming as a consumer.
e). The opposite parties added to the above that the taxes and the amounts paid by the citizens are well governed by the computerized system and the information is available on-line to every citizen. They have also submitted that there is no law or precedent in our country that a citizen can claim compensation with a complaint of malaria from a Corporation. It is also mentioned that it is the bounden duty of the citizens to maintain neat and hygienic surroundings around them to prevent contagious diseases, and it is the collective effort of the Govt. and citizens to do so, therefore the present complaint is not maintainable and prayed the Hon’ble Forum to dismiss with exemplary costs.
- In support of the claim, the complainant filed evidence affidavit and got marked Exs.A1 to A18 documents. The opposite parties also filed evidence affidavit along with Ex. B1 document marked. Further both the counsel have filed their respective written arguments and also advanced oral arguments.
The counsel of the complainant relied upon the citation of Supreme court:
i). 2002-SCC-10-542, 2002 – AIR (SCW)-0-2647 Consumer Education & Research Society vs. Ahmedabad Municipal Corporation - Civil Appeal 6740,6741 of 2001, SLP (Civil) 10577, 10578 of 1999.
ii). Deccan Chronicle News paper Article dated.24 March 2011.
Titled: HC seeks GHMC response on failure to take action (Curbing the mosquito menace)
Similarly the counsel for GHMC / opposite party relied upon the citations given below:
i). 2006-CPJ-3-248 – NCDRC, RP No. 2852 of 2005, Karnataka Consumer Forum v/s. Mysore Municipal Corporation.
ii). 2004-CPJ-1-515- NCDRC, C.D. APPEAL No. 231 of 1998, Executive Officer, Baripada Municipality v/s. Puran Chandra Singh.
iii). 1995-SCR-SUPP4-561, 1995-CPR-3-453, SUPREME COURT OF INDIA CIVIL No. 9928:1995, Proprietor, Jabalpur Tractors v/s. Sedmal Jainarain.
iv).1993-CPJ-2-608 – NCDRC, APPEAL No. 205 of 1992, Commissioner, Municipal Corporation v/s. Rajesh Singh.
v). 1994-CPJ-1-239- NCDRC, Appel No. 145/1993, Srinath B. Mugali v/s. Hubli dharwad Municipal Corporation.
vi). 1991-CPR-1-470, 1991-CPJ-1-104, - NCDRC, First Appeal No. 14 of 1990, M/s. Chaudhary Automobiles, Hissar v/s. Anil Kumar.
vii). 1991-CPR-2-123, 1991-CPJ-2-206, High Court of Delhi, Original Petition No. 43 of 1990, Sabari Syndicate v/s. Catholic Syrian Bank Limited.
viii). ALT 2003 ALD-707; 2003, 4 ALT 701 Religious Endowment Department v/s. Visakhapatnam Municipal Corporation.
ix). ALT 2010-4-751. Neela Swaroopa v/s Gunda Radhika & others.
After perusal of the submissions of both the counsel, the point for consideration is whether any deficiency in service caused by opposite parties, if so, what relief?
Point:
4. The complainant No. 1 is a social worker and member of the Janavignana Vedika (A.P.) which is a voluntary organization and he is a resident of Srinagar colony of Patancheru circle – 13. He raised his voice being a taxpayer about the provision of minimum amenities proper sanitation, cleanliness of the roads etc in Patancheru Circle13. He also observed that the municipal authorities are very keen in collecting taxes etc but do not show same interest in discharge of their duties. After seeing no result on his oral requests for improvement of the civic facilities and to protect them from various diseases, he also made written representation on 04.03.2009, 12.05.2009, 29.06.2009, 18.03.2010 and 07.02.2011 in between he also filed the application before the Hon’ble District Legal Service Authority Medak on 18.03.2010 and the opposite parties / respondents are avoiding to appear before the authority till this day. He also submits vehemently that due to uncleanliness in the Patancheru circle -13, resulting in mosquito menace, the general public are suffering from malaria, dengue, typhoid and other related diseases and he made one of the malarial patient as complainant No. 2 to prove the intensity of the problem prevailing in Patancheru Circle -13.
5. The opposite parties on the other hand has baldly denied the issues raised in the complainants’ complaint saying that all the issues are general and not specific which cannot come under the purview of Consumer Protection Act 1986. Moreover the opposite parties say it’s a false complaint without following the basic norms of HMC Act, adding to it the opposite parties submitted that it is mandatory to issue notice u/s 685 of HMC Act before initiating any legal proceedings against GHMC. The opposite parties also stressed on the point that the complainant do not have any right or locus standi to make all allegations before this Hon’ble Forum.
6. From the above submissions one thing is very clear the GHMC failed to respond to the problem being faced by the Patancheru Circle -13. The complainant acted in good faith, and The corporation (GHMC) being a legal person and distinct from its members. It acts through its servants and agents. It did not listen to the problem of the citizens. The citizens are paying various taxes and the voice of taxpayers need attention of all the officers of MCH up the heirarcy to address their problems instead finding the waysout to defend the cases in various courts. The services extended by the MCH are always chaotic and no transparently and accountability in functioning is witnessed, in reality no citizen in satisfied with the performance of the staff of MCH. In the instance case, nothing prevented the MCH to dispose of the representation / complaints of the citizens. Justice requires that when a citizen approaches an appropriate authority for redressal by making a representation, the minimum that can be done by the authority is to consider the application and pass appropriate orders accordingly. The constitution confers such a right on all the citizens. It may also be aptly mentioned here that all citizens are consumers. These consumers are certainly availing the services of MCH as they are also taxpayers. The consumer forum is competent to entertains a complaint against a statutory body (GHMC) alleging “deficiency in service” in the performance of duties / functioning of the body as a whole. If the citizen does not pay tax, he can be sued for arrears and if possible action will be initiated. Similarly, when the civic body (GHMC) fails in discharging the statutory directions properly, the public have a right to Sue.
7 Here out of the general public, if some one is pointing out the failure of the MCH, the objection raised must be considered in their correct perspective and make an attempt to solve the problems of the people. This complainant indirectly brought to the notice of the Senior officers of GHMC about the realities and suffering of the society and alerted them. After all the complainant is worried about fellow citizen and their problems he is not seeking for himself, rather he is requesting to streamline the basic facilities and improve the living conditions in that area. One can easily imagine the alarming situation in Patancheru Circle – 13 like the roads are encroached by vendors and land grabbers, throwing garbage on the sides of NH road and burning, walkers are deprived of walking on the footpaths making them prone for accidents, push carts indiscriminately doing business of eateries and so on, even encroaching the area of the monument / heritage structure and the channel of saki cheruvu (lake) is totally removed making people to struggle against the storm water gushing inside houses sometimes in midnights causing untold misery to the children, ladies and old & bedridden people. The common man is helpless, bewildered and shocked. The GHMC poses with a slogan “ours is a beautiful city let’s keep it clean” and “Cleanliness is next to Godliness”, but in true spirit, we are very far away from these dreaming quotations.
8. The activities of MCH are governed by the provisions of MCH Act and rules framed there under and there are specific byelaws for control of malaria and other mosquito borne diseases. Though the GHMC initiates megaprojects but the monitoring ways on the minimum amenities and improving the areas as per Town Planning guidelines need to be given a thought in depth in regular meetings with Local Corporators, Ward committees, councilor’s, Area Inspectors and other subordinate staff.
9. The special standing counsel of GHMC emphasized on the mandatory notice in writing U/s 685 of HMC Act 1955 before instituting suit against the corporation. The opposite parties cannot take a stand to defend in this case. The learned counsel for opposite parties need to know that the consumer forum is exercising equitable justice to a littleman, namely the consumer who is object of exploitation by the producers and service providers for years together. Here the complainant No. 1 who is a social worker and member of Janavignana vedika (Consumer Awareness forum) who is working for the interests of the consumers and not for the service providers. He is drawing the attention of the authorities concerned about the prevailing problems of the society for redressal. The complainant made first representation (Ex.A3) focusing the difficulty of pedestrians to use the footpath because the petty business people occupied it. Secondly another representation dt. 12.05.2009 (Ex.A4) reminding the action on the earlier representation. The third representation dated 29.06.2009 (Ex.A5) citing the resentment on the earlier complaints for keeping silence by the authorities, he even explained the difficulty causing to the school going children. Vexed with the attitude of the civic authorities, the complainant brought the issue to the notice of the District Collector through his representation dated. 01.07.2009 (Ex.A6), still there is no response on these representations, then the complainant knocked the doors of the District Legal Services Authority Medak, but the opposite parties not making themselves present on some pretext or the other. Here any prudent man gets a doubt that why the GHMC not treated these representations as ‘Notice’ of the complainant to take necessary steps to set right the system and ensure proper facilities to the citizen? Adding to it the Ex.A8 dated 11.09.2008 shows that the Tahsildar, Patancheru and Ramachandrapuram Circle -13, brought to the notice of Dy. Commissioner GHMC Patancheru regarding the blockage of feeder channel by laying of the Road by GHMC and drainage lines were diverted to Saki Cheruvu as a result the 97 Acres water body (lake) reduced to a small pond affecting 100 fisherman families thriving on the lake, same situation is also seen in Thimmakka cheruvu also. The Tahsildar also projected section 23 of AP Water, Land and Trees Act 2002- protection of lakes, ponds and Tanks. But no action is seen till date. The Exhibit A9 dated 07.02.2011 is about refund of interest on property tax for financial year 2009-10 as per G.O.Ms. No. 139 dated 27.03.2010 Ex.A14. The opposite parties have not complied with that. Finally the complainant to fix the responsibility on the opposite parties he sought information under RTI Act 2005 – Ex.A10 & Ex.A11 dated 04.05.2010, in which to a query No. 8 the MCH replied it is the responsibility of MCH to lift the garbage, whereas they employed rickshaw pullers who collect the garbage at the rate of Rs. 20/- per month.
The opposite parties furnished Ex.B1 showing correspondence between Executive Engineer (EE) GHMC and Dy. Commissioner, Patancheru Circle-13, in which the EE gave information under para (3) that the cement concrete road was laid by GHMC for the purpose of providing accessibility to the National Highway to avoid inconvenience to public on public representation. The Town Planning Department and Engineer of civil works have totally neglected the importance of feeder channel to Saki Cheruvu. This is nothing but negligent attitude of GHMC.
The counsel of opposite parties have submitted several citations of NCDRC, SC & HC of Delhi, but they are not relevant to the case on hand, the complainant submitted a news paper article dt 24 March 2011, cited HC seeks GHMC responsible on failure to take action” – on a plea questioning the mosquito menace in the twin cities and the entire state leading to out break of malaria, dengue and other diseases and citation of 2002 AIR (SCW) -0-2647 is related partly in this case.
So in every account there is unacceptable delay. The complainant also projected the problem of malaria due to uncleanliness in the area by inclusion of malarial patient Mr S. Nitesh Kumar as complainant No. 2 and the supporting documents with regard to hospitalization, like diagnostic report and medical bills vide Ex.A12 to A13 (fifteen sheets).
From the above, it is proved that the civic body (GHMC) caused deficiency of service in not taking immediate necessary action leading to multiple problems to people of Patancheru Circle -13. Hence the GHMC is liable for action. Thus the point is answered infavour of the complainants and the they deserve compensation in this regard.
In the result the complaint is allowed. The opposite party No. 1 is directed to provide basic amenities, like drinking water, public urinals to general public and weekly vegetable market area; to restore feeder channel to Saki cheruvu; to pay the rickshaw pullers from the municipal fund for collection of garbage from houses; to free the footpaths and colony roads from encroachers including the historical tomb area; to implement the G.O. Ms. No. 139 dated 27.03.2010 for financial year 2009-10; to pay a compensation of Rs. 30,000/- along with Rs. 10,000/- towards mental agony and costs for the complainant No. 2. Time for compliance: one month only.
Typed to dictation, corrected and pronounced by us in the open forum this 14th day of July 2011.
*** Sd/- Sd/-
President Lady Member Male Member
Dissenting view of the President
(Per Sri P.V. Subrahmanyam, President)
The point for consideration is whether the complainants are “Consumers” and whether there is a “Consumer Dispute” between the parties within the meaning of Consumer Protection Act, 1986 and whether the complaint is maintainable in this forum?
Point:
After going through the order prepared by the learned Member I could not persuade myself to agree with the view expressed by him and hence the following dissent order is being passed.
1. This is a Public Interest Litigation (PIL). The learned member has also stated in para 7 of this order as follows: “ After all the complainant is worried about fellow citizens and their problems he is not seeking for himself, rather he is requesting to streamline the basic facilities and improve the living conditions in that area”. The complaint of the complainants No. 1 and 2 is for various directions to the opposite parties No. 1 to 3 ie. Hyderabad Municipal Corporation, to provide basic amenities, to restore feeder channel etc., which are mentioned by the learned member at the outset of the order. A reading of the complaint as a whole does not show that the complainants are “consumers” within the meaning of Sec 2(d)(ii) of the Consumer Protection Act, as they have not stated anywhere in the complaint that they have hired or availed of any services from the opposite parties for a consideration. The contention of the complainants is that because they are residents of the locality and because the opposite parties have been collecting taxes from them for providing basic amenities and to maintain hygiene etc. they are consumers. Payment of taxes to municipal corporation for development and maintenance cannot be taken as consideration with the meaning of Sec 2(1)(d)(ii) of the Act and the amounts spent by the municipal corporation from out of the taxes collected by it cannot be taken as service within the meaning of Sec 2(1)(o) of the Act. The Hon’ble State commission, Madras had an occasion to say that payment of road tax to the government cannot be construed as consideration for the service of maintenance of public roads by the government. The above view was expressed while disposing of a case between S.M.N. Consumer Protection council and Chief Engineer, Highways & Rural works, Government of Tamilnadu reported in 1992(1) CPR, page 107 at page 108 (para 5).
2. Therefore in view of the discussion supra, as the complainants have not hired or availed of any particular service/ services from the opposite parties for consideration, they cannot be treated as consumers and their contention that because they are tax payers they are consumers within the meaning of Act cannot be accepted. As they are not “Consumers” there is no consumer dispute as such between the parties and hence this forum is not competent to decide the disputes between the parties and it is therefore held that the complainants are not entitled to any relief and the complaint is not maintainable in this forum. The point is decided against the complainants.
- In the result the complaint is dismissed. No costs.
Typed to dictation, corrected and pronounced by us in the open forum this 14th day of July 2011.
Sd/-
President
