Presented by Miss R. Pattnayak, President .
(1) The case of the Complainant is that, she is the owner in possession of a house situated in Ward No.3, Purnibandh Road, Bargarh vide Municipality holding No. 105 and has been paying the holding tax regularly to the Minicipality. The Complainant alleged that, on dated 01/04/2010, on the instruction of the Opposite Party No.1(one), some staffs of him have filled earth over the Municipality drain which was passing adjunctly to the house of the Complainant and also over the connecting drain through which waste, affluent and dirty water from the house of the Complainant passes to the Municipality drain, as a result such connecting pipe has broken and completely damaged. Such mischievous action affects much inconvenience in her house for which her husband has taken much attempt before the office of the Opposite Party as well as before the District Administration but yielded no result. Hence the Complainant instituted this complaint proceeding before this Forum with a prayer that, the Opposite Parties be directed to
Replace or repair the connecting pipe with the main drain of Municipality.
Pay compensation of Rs. 50,000/-(Rupees fifty thousand)only towards the expenditure met by the Complainant in draining the wast, affluent and dirty water from the house by manually through hiring labour since Dt.01/04/2010.
Pay compensation of Rs. 5,00,000/-(Rupees five lakh)only towards compensation for harassment and mental agony.
(2) In support of her case, the Complainant has filed the following documents and Affidavits.
Holding tax receipts vide holding No. 105 Dt.04/04/2011 and Dt.13/04/2010.
Paper cuttings of Sambad/Navabharat/Dharitri Dt. 21/12/2010/ Dt.22/12/2010 and Dt.22/12/2010 respectively.
Petition to District Magistrate and Collector, Bargarh Dt.23/10/2010/ Dt.16/12/2010/ Dt.16/12/2010/ Dt.30/10/2010 and Dt. 23/12/2010.
Petition to IIC Sadar, Police Station, Bargarh on Dt.16/12/2010.
Petition to Superintendent of Police, Bargarh Dt.18/06/2011.
(3) Notice were duly served upon the Opposite Parties. Opposite Party No.1(one) appeared on Dt.12/08/2011 and filed his parawise comment and documents. On behalf of the Opposite Party No.2(two) learned Addl. Govt. Pleader appeared and filed his version on Dt.22/10/2011 and Counter Affidavit.
(4) In their version, the Opposite Parties denied all the allegations made in the Complaint petition and also contended that, there has been no deficiency in service on their part. The maintainability of the proceeding was also challenged on the ground that the Complainant is not a consumer as defined in the Act, as the Municipality does not render any service for consideration.
(5) The Complainant in support of her case has filed so many citations of Hon'ble National Commission and Supreme Court reported in.
2008 NCJ 709 (NC) Ravindra Mohan Namdeb Vrs Naib Tahasildar and another.
2006 NCJ 177(NC) Harmit Sing Vrs Union of India and another.
2007 NCJ 459 Joint Sub-Registrar, District Registrar's Office Vrs Maragatham (TMT)
2010 NCJ 470 (SC) Urban Improvement Trust, Bikaner Vrs Mohanlal.
2009 NCJ 448 Punjab Urban Planning and Development authority Vrs Kanwalijit Singh.
2007 NCJ 844 (NC) Harish Goyal Vrs Jaipur Development authority.
2009 NCJ 36 Karnataka Public Service Commission Vrs Mallikarjuna.
2009 NCJ 2008 Nawal Kishore Kashyap Vrs Bihar State Co-operative Federation Limited.
2009 NCJ 748 Head Post Master Pannai Kerala Vrs V.Ayyapa.
2007 NCJ 623(NC) Northen Railway and another Vrs Shalini Kapoor.
2007 NCJ 33 Ushalrani Agrawal and others Vrs Nagar Palika Parishad, Halduwani.
AIR 1994 SC 787 Luknow Development authority Vrs M.K.Gupta.
2006 NCJ 433(NC) Bangalore City Corporation Vrs Dr. Shankarrappa.
Before going to the merit of the case first of all it is necessary to decide the preliminary issue on the point of maintainability as raised by the opposite parties.
Heard arguments from both the Parties on the point of maintainability.
After going though the case record, the question that arises for consideration is as to whether the Complainant who is paying tax is a consumer in relation to the Municipality as per the definition in the Consumer Protection Act or whether this Forum has jurisdiction to entertain the dispute as a Consumer Dispute for adjudication or whether the case is maintainable ?
It is true that, the Complainant is an inhabitants within the limits of Bargarh Municipality and is a tax payer. We do not dispute that the purpose of this case is to say that the Municipality exists for the welfare of the inhabitants of the said locality. It may be one of the duties of the Municipality to keep the town free from pollution and clean. But the question that arises for consideration is as to “whether the Complainant is a consumer in relation to the Municipality as per the definition in the Consumer Protection Act.
The Act defines a consumer in relation to service, as a person who hires or avails of service for consideration.
Under section 2(1) d (ii) of the Consumer Protection Act, a consumer in respect of any service is a person who:-
“Hires any service for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary to such service other then the person who hires the services for consideration paid or promised or partly paid and partly promised or under any system of deferred payment, when such service are availed of with the approval of the first mentioned person.”
Tax is statutory liability imposed by a statute irrespective of any corresponding service rendered to a tax-payer. It can not be a consideration for any service. Hon'ble Supreme Court in its landmark Judgment, Commissioner Hindu Religious Endowments Vrs Laxmindra Tirath Swamiar reported 1954 S.C.R, 1005, held that “ A tax is the compulsory extraction of money by public authority for public purpose enforceable by law and is not payment for service rendered.” It is a levy made by the state for the general purposes of Govt and it can not be regarded as payment for any particular or special service.
Again in its Judgment, the Municipal Commissioner of the city of Baroda Vrs Babubahi Himmat Lal, reported in 1989 (3) S.C. 437 and in Sourthern Pharmaceuticals and Chemical and others Vrs State of Karala has held that the essence of taxation is compulsion being imposed under statutory power. Imposition is for public purpose without reference to any special benefit to be conferred on the payer of the tax”. In other words, levy of tax is for the purpose of general revenue and there is no element of quid pro quo between the tax-payer and the public authority.
It would be amply clear from the above that there is no nexus between the taxes paid to the state and the services rendered by the state from the procedures of those takes. There is no identification of the service which a state is bound to render to the citizen in lien of the taxes paid by him. There is thus, no relationship between tax on the one hand and the welfare services provided by the state on the other. Again, a consideration is a valid consideration only it, it is given freely but taxes are a compulsory levy being collected under the authority of law. They are an imposition and are not paid voluntarily and freely. Hence taxes levied by the state and paid by the citizens can never acquire the character of consideration. So in the instant case we can not be considered to payment tax is a consideration law any service. The decisions filed by the complainant does not support to her case.
On this point, we also relied on the several decision filed by the Opposite Parties which holds good.
On this point, we also rely on the following decision filed by the Opposite Parties.
Bargarh Municipality and another Vrs Gunanidhi Das and another, reported in 11(1997) CPJ 346,
where Hon'ble Consumer has held that “Tax cannot be consideration for any service. Thus complainant is not a consumer in relation to municipality''.
S.M.N. Consumer Protection Council Vrs Chief Engineer Highways and Rural Works, Govt of Tamilnadu, reported in 1992 (1) CPR 107
Where Hon'ble Court has held that, “payment of tax is not a consideration for service rendered by Govt and a complaint about any deficiency in such service can not be entertained by Redressal Forum under Consumer Protection Act.
Consumer Unity and Trust Society, Jaipur Vrs State of Rajasthan and other, reported 1991 (1) CPR 241 (NC)
Where the Hon'ble Commission held that “ a tax is a compulsory extraction of money by public authority for public purposes enforceable by law and is not payment for service rendered.
The E.E. PHD Berhampur Vrs Sri Kanhu Charan Das, reported in 1997(1) OLR CSR 38.
A.Srinivas Murty vrs The Chairman, Banglore Development Authority reported in 1991(1)C.P.R-529, Where Hon'ble commission held that'' payment of tax which goes to the general revenues of the state or local authority does not constitute consideration for hiring of service''.
Under the above facts and circumstances, the Forum view that, the Complainant not being a consumer as defined in the act, the dispute presented could not be categorised as a consumer dispute for involving the jurisdiction of this Forum for redressal.
- O R D E R -
We therefore hold that, the Complainant is not a Consumer and the Complaint petition is not maintainable. It is open for the Complainant/Petitioner to file his complaint before proper courts of law.
However we want to cite a decision of the NCDRC vide OP No. 125-126 of 1994 between Consumer Education and Reserach Society and other Vrs Ahmedabad Municipal Corporation and others.
Where in the Hon'ble National Commission did not allowed the appeal filed before it after a negative order passed by the State Commission. Then the petitioners knocked the doors of the Supreme Court which allowed their petition and remanded the matter once again to the National Commission to be decided on merit.
And, invoking the provisions of the Consumer Protection bill 1986, while enacting the Consumer Protection Act 1986, and the right to be protected against goods marketed are hazardous to life and health and special mention about the same in the afore said decision.
Vide “ As per the statement and objects and reason of the C.P. Act and also the Consumer Protection councils contemplated under the Act, a consumer has the right to be informed about the quantity, quality purity of goods including water and services which are rendered by public authorities or in this particular case by the AMC/OP, so that it is not hazardous to life or health.
Accordingly the Municipal authorities should take precaution to make the life of residents of their area of operation checking all hazardous activities including availing safe drainage system to public including the Complaint in this are specifically by addressing the causes of the Complainant as soon as possible.
The complaint disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree, I agree, (Miss Rajlaxmi Pattnayak) ( Smt. Anjali Behera) (Sri Pradeep Kumar Dash)
P r e s i d e n t. M e m b e r. M e m b e r.
