Orissa

Rayagada

CC/390/2015

Ratunu Huika - Complainant(s)

Versus

General Manager, Therubali - Opp.Party(s)

Self

30 Jul 2016

ORDER

        DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA

          AT:  KASTURI  NAGAR, Ist.  LANE,   L.I.C.OFFICE BACK PO/DIST: RAYAGADA ,  STATE:                                                                                             ODISHA,  PIN  NO.765001,  PHONE/FAX                                                                                                                              NO.06856-223025.

                                             C.C. Case  No. 390/ 2015.

                                                                       

 P R E S E N T .

Sri Pradeep Kumar Dash, LL.B,                             President.

Sri Gadadhara Sahu, B.Sc.,                                   Member

Ratanu Huika, aged 35 years, S/o Nimal Chandreya Huika, , Resident of village: Therubali,(Adivsi Street),P.O.Therubali, P.S.Chandili, Dist. Rayagada, Odisha, Pin: 765018.

                                                                                                            …..Complainant

 Vrs

1. Sr. General Manager, Manufacturing (Ferro Alloys),M/s Indian Metals & Ferro Alloys Ltd., At/Po Therubali, Dist. Rayagada, Odisha, Pin: 765018.
2. The Regional Officer, State Pollution Control Board, Regional Office, Rayagada.
3. The Deputy Director of Agriculture, Rayagada.
4. The Collector & District Magistrate, Rayagada.

……Opp.Parties

Counsel for :

The Complainant:  In Person

The Opp.Party No.1:  Sri N.K.Das & Associate, Advocate, Rayagada.

The Opp.Party No.1: Sri S.Ramesh Kumar, Advocate, Rayagada

The Opp.Party No.3 & 4: Y.Madhu Sudhan Rao, AGP, Rayagada.

 

                                                                         JUDGMENT

 

            The brief fact of the case is that, the complainant is a farmer and depending upon cultivation as a prime source of livelihood to his family.  In view of getting a good amount of income he has borrowed unsecured loan from his friends and relatives and invested in cultivation of cotton a cash  crop on the land under Therubali Mouza in the Therubali R.I.Circle under Kolonara tahasil in Rayagada district baring Khata No.23, Plot No.372,374 to an extent of  Area 1.21 acre.

                        The O.p No.1(IMFA,Therubali) is operating There Fumaces Producing Fero Alloyes Charge Chrome Products and the emission of smoke from these Fumaces and Chrome dust from its Molases Briquetting Plant which produces chrome briquette lossed the cotton crops cultivated on the lands of the  complainant  were severely affected resulting huge loss and damage of crops, he also suffered mentally, financially and physically due to the problems of O.p. No.1.

                        The O.p. No.2 is the statutory authority to control Air, Water and Environment Pollution caused by the industries but the authorities even notice not taking any action against the monopoly of the O.p. No.1 . The O.p No.3 headed by the Deputy Director of Agriculture is also a statutory body to protect the cultivation from the invasion of pollution caused by the O.p. No.1 and protect the agriculture of the complainant.

                        The O.p No.4 is the District Administration headed by the Collector and District Magistrate, Rayagada is the watch guard of discharge their statutory duties and as a  Chairman of the Periphery Protection Committee of the O.p No.1 to protect the complainant.

                        Due to irresponsible, willful deliberate negligent and deficient services/action of the O.ps the complainant was physically harassed, mentally depressed and sustained mental agony and physical inconvenience and financial loss and finding no other alternative the complainant knocked the door of this  forum  and prayed to direct the O.ps to pay Rs.70,000/- towards  compensation for loss of agriculture and aRs.20,000/- towards mental agony, physical harassment and financial loss  and other relief as the forum deems fit and proper in the interest of natural justice.

                        On being noticed, the O.p  No.1 appeared through their Counsel Sri N.K.Dash and Associates, Rayagada and O.p No.2 appears through their Counsel Sri S.Ramesh Kumar, Rayagada and O.P. No.3 & 4  appeared through their Counsel Sri Y.Madhu, AGP Rayagada and filed their counter, version separately. It is submitted by the Ops that the complainant is not a consumer within the meaning of C.p.Act,1986 since there is no hiring of service on the part of the O.ps and this forum has no jurisdiction  and not maintainable to try this case. The O.ps also pleaded that since admittedly the complainant has cultivated cotton a cash crop in the lands. It is submitted that the cultivation of cotton/cash crops by the complainant is only for the commercial purpose. Even assuming but not admitting the facts that the complainant avails services from the present respondent the same shall be for commercial purpose and hence the complaint is not coming under the said act.

                        It is also stated by the O.ps that the present complaint petition is hit by Sec. 3 of C.P.Act,1986. It is submitted that the remedies under the Consumer Protection Act are not in derogation of the Powers of the court under other laws. Even assuming but not admitting the emission of smokes from electric open arc furnaces and chrome dust from the Molasses Briquetting plant causes damage to the complainant. Hence, the O.ps pray the forum to dismiss the complaint petition.

                        In the course of hearing we heard from the parties at length and perused the complaint, counter, version of the O.ps and the documents available in the record and also gone through the written arguments diligently.

                        The points for determination before us is as follows :-

1. Whether the complainant is a “Consumer” & whether the petition is maintainable under C.P.Act ?
2. Whether the complaint is barred by limitation ?
3. What relief the complainant is entitled to ?

 

 

Issue No.1

                        On receipt of the complaint petition from the forum the O.ps 1 to 4 files preliminary objection stating that the complainant have no purchased any goods from the O.p 1 industry or from  other O.ps which they found to be defective nor hired any services from the O.p No.1 for consideration. It is also contended by this O.p No.1  that the complainant is neither the consumer nor the grievances comes under the provisions of the consumer disputes.  It is also further submitted by the O.p 1 that the complainant have approached the O.p 2 as long as on 06.12.2013 and on that the O.p 2 has taken cognizance and deputed its officers and issued show cause notice to the O.p 1 and the O.p 1  has also submitted its reports, reply  and all this was prior to the filling of this cases.  The same also admitted by the O.p 2 . So since the O.p 2  who  is the proper authority for the dispute  and has already taken necessary steps in the matter and since this is special forum to deal with such disputes having its own procedure to inquiry and compensation. So which the matter is cognizable under the special act, Consumer Protection Act which is a general act is not  at all applicable and so the present consumer  case is not maintainable.

                        Counsel for the O.p 1 cited a decision of 2015(1) C.R.P-350(N.C) , that was a case complaining of deficiency of service for non rectification of account and the bank filed by the application before the Debt Relief Tribunal ( Special Act) . The Nati Sri S.Ramesh Kumar, Rayagada on Commission held that it is not empowered to derogate itself the power which come within the jurisdiction of Debt Relief Tribunal. So the National Commission dismissed the case holding it is not maintainable.

                        On the other hand, the complainant argued that as the Consumer Protection Act is a benevolent legislation and as an additional remedy available to the consumer, as such as per Section 3 of the C.P.Act the complaint petition is maintainable in the consumer forum. Sec.3 of the C.P.Act provides additional remedies in addition to the remedies provided under the   other acts and it is not derogation of any provisions of any law. The Consumer Forum has therefore jurisdiction to entertain the complaint in respect of deficiency of services in the given facts  especially when compensation sought was not furnished. Yet there is no bar to approach the District Consumer Forum for deficiency of services as the applicant is having lands in the periphery area  development of the O.p 1 and they have also loosed lands either due to the development of the O.p 1 and the complainant also paying sess and tax of present lands to the O.p 3  and government authorities regularly and to other O.ps also. Hence, the case of the complainant would fall within the scope and ambit of Sec.2(d)(i)(g) of the C.P.Act. which provides that service means service of any description which s made available to potential users and the complainant is a consumer.

                        The averments made in the counter by the O.p 1 in para No.4  is found to be ignoring the rules of the Industrial Policy by which the O.p 1 is bound to see the  development of the local area including their economic development and as such the purview of  beneficiaries under the said regulation and as such the payment of consideration for the above service does  not arise after the amendment expending the purview of “ definition” the Service, as such the grounds taken by the O.p 1 is not  admissible.

                        In the case of Secretary, Tirumurugan Co-operative  Agricultural Credit Society Vrs. M.Lalitha and Others reported in (2004) 1 Section-305 the Hon’ble Supreme Court at para 11 & 12  has held that having due regard to the Scheme of C.P.Act and the purpose sought to be achieved to protect the interest of the consumer better, its provisi0ons are to be interpreted broadly, positively and purposefully to give meaning to additional extended jurisdiction particularly when Section 3  seeks to provide remedy under the acts in addition to other remedies provided under other acts unless there is clear bar.

                         Hence, the complainant is a “Consumer” coming under the C.P.Act.

Issue No.2

                        Regarding this issue, dealing with this provisions containing bar of jurisdiction the O.p No.3 & 4 objected that the said dispute is purely civil in nature as such the forum should not have entertain the petition and should have returned the petition on the sole grounds of lack of jurisdiction. The O.p 3 and 4 are not the authaorised persons to grant permission for installation of electric open air furnaces or Briquetting plants of O.p. No.1.

                        The  O.P 1 stated that the   complainant has no cause of action to approach this forum as the dispute is not coming under the purview of C.P.Act. It is further submitted that some of the complainant filed cases before the O.p 2 on 6.12.2013. The O.p No.2 (Regional Pollution Control Authority, Rayagada) took cognizance . They inspected the land and factory on 8.12.2013  and 9.12.2013  and they also given direction to rectify the defects by O.p 1  and also suggested the O.p 1  to pay some compensation to the effected family . The O.p 1 sent its reply and compliance report to the O.p 2 and O.p 1 was about to contact with O.p 4 to access the compensation if any to the farmers. The complainant filed this case on 23.3.2014 impleading the O.p 1 . As the dispute has already taken necessary steps in the matter and since this is a special forum to deal with such disputes having its own procedure with powers to order proper compensation, the forum have no jurisdiction to trial the case further.  The O.p 1 cited the decision 2015(2) C.P.R-587(N.C). The National Forum held that the grievance does not comes under the jurisdiction of the Consumer Forum.

                        “ For one thing a District Consumer Forum is not a Civil Court though it may have the trapping of a Civil Court Neither it is a Revenue Court, we therefore think that the way of the District Consumer Forum assuming jurisdiction.”

                        The Ops contended that the complaint is not  maintainable as barred by limitation. In the instant case the cause of action arose when the complainant/petitioners filed application before the O.p 2 & 4  and when the O.P 2 started its enquiry and when the O.P 1 paid some amount as compensation to some of the complainants.  And the complainant filed application in his forum which is within the period of two years from the date of cause of action. Hence as per Sec.24 of the C.P.Act,1986 the complaint is maintainable being not barred by limitation and having continuous cause of action.

On the strength of the aforesaid discussion the complaint is maintainable before this forum . Hence, it is ordered.

ORDER

            The O.Ps directed to  file their written version/counter within  ten days  and prepare for hearing  for finalization of the case.

Pronounced in open forum today on this  22^nd day of  July,2016 under the seal and signature of this forum.

 

Member                                                                                                           President