(Delivered on 03/11/2018)
Per Mr. S.B. Sawarkar, Hon’ble Member
1. The District Forum, Bhandara passed the following order in the complaint filed by Grahak Panchyat, Jawahar Nagar along with two complainants vide No. 89/2003.
- The President of the District Consumer Forum, Bhandara, passed an order dated 10/06/2004 dismissing the complaint without cost
- The two Members of the District Consumer Forum, Bhandara, passed the order dated 10/06/2004 granting partly the complaint and directing the O.P. Nos. 1&2 (in short for Opposite party) to cancel the bills provided by them of the telephone connection and further directed to collect the bills for the month June and July-2002 as per the rural tariff rate.
- Further directed to collect the bills from the consumers leaving in Sawari and Jawahr Nagar towns as per rural area tariff.
- Further to provide Rs. 1000/- to the complainant by the O.P. No. 1&2 as cost.
2. The complainants filed a complaint that complainant No. 1 is the consumer association and complainant Nos. 2&3are the Members of the association and the consumers of land line telephone service provided by O.P.Nos. 1&2, hence are consumers (all are referred as complainants).
3. The complainants filed a complaint in brief as under,
a. The tariff charges made applicable by the O.P.Nos. 1&2 to the Gram Panchyat of Sawari Jawahar Nagar which was included in the rural area. The complainants complained that from January-2001, the Jawahar Nagar area of Sawari Grampanchyat was declared as urban area and therefore, the O.P’s. applied urban area tariff to the consumers leaving in Jawahar Nagar area.
4. The complainants made many representations to the O.Ps. with a request for not application of urban tarrif to the Jawahar Nagar area after which the O.Ps. suspended the decision of bringing the Jawahar Nagar area in the urban tariff plan.
5. The reason to bring the Jawahar Nagar area in the urban tariff by the O.P. was because of the census figure declared in the year 2001. However, the Jawahar Nagar was treated as census town for the purpose of census only. The O.P.Nos. 1&2 took the declaration to convert the Jawahar Nagar area as a urban town and applied the urban rates to it.
6. The complainants enquired from the Directorate of Census Operation, Maharashtra, when it was clarified that the categorizing of Urban Town of Jawahar Nagar was only for the purpose of census and not for any other purpose. Thus, the Sawari Jawahar Nagar was continued as village as per the revenue department record. It was brought to the notice of the O.Ps.
7 The complainants further complained that the O.Ps. still continued to treat the Sewari Jawahar Nagar Grampanchyat (SJNG) as urban zone and charged it accordingly. Therefore the act of the O.Ps. of levying the charges as urban area amounts to giving of defective service to the consumers.
8. The complainants submitted that the O.P’s. suspended their decision from January-2001 but made it re-applicable from May -2002. The complainants further submitted that the SJNG includes 12 villages (including Jawahar Nagar) which were charged as per rural area. However, the Jawahar Nagar is charged with urban tariff. Hence, it causes deficient services to the residents of this area.
9. The complainants therefore, requested that the O.Ps. be declared to have given defective services to the consumers in SJNG and direct them to levy the charges of telephone as per the rural area to the consumers in SJNG and further provide a compensation of Rs. 25,000/- to the complainant No.1 for deficiency in service.
10. On notice, the O.P.No. 1 & 2 appeared and admitted that the SJNG was a rural area prior to census of 2001. However, it was declared urban town by the census of 200. Hence, was applied with the urban tariff.
11. The urban tariff was applied as per the direction of the Main authority of O.P.No. 1 vide their circular No. BSNL, New Delhi No. 5-10/2001 R&C dated 19/04/2002 . According to which the O.P.No. 1 made the change in the tariff. The various representations received from the consumers were referred to the O.P.No. 1 and as per the directions given by the Circle Office, Mumbai the tariff was continued. The O.P’s. denied to have caused any deficiency in service to the consumers and submitted the circular issued by the head office. The O.Ps. submitted that the application of the tariff is a policy decision of the O.Ps. department and the consumer Forum cannot pass any order upon it.
12. The complainants countered the contentions stating that though the SJNG is declared as urban area for the purpose of census no government gazette is issued to declare it so and in the census records it is mentioned that for the purpose of revenue record the area be treated as rural area. Therefore, the consumers in the area needs to be treated as rural area only.
13. The learned Forum heard both the parties and perused the various circulars and revenue records of the District Collector submitted by the complainants along with the circulars and correspondence submitted by the O.Ps. The President of the learned Forum recorded that there is difference of opinion between the President and the Members of the Forum. The President held that previously also a similar complaint vide No. 32/2003 was filed by the Consumers of Village Dehadi wherein the consumers had requested that their area Dehadi was declared as town only for census purpose but it was a rural area for revenue purpose. Hence, the application of urban tariff be directed to be cancelled. In that complaint it was held that the application of tariff is a policy decision of the O.Ps. The Forum cannot pass any order upon it. The President of the Forum therefore, held that the application of tariff is a policy decision of the Department and the learned Forum cannot pass any order upon it. The learned President therefore, passed the order supra by dismissing the complaint.
14. The learned two Members of the Forum considered the contentions of both the parties and held that the O.Ps. had sent a letter to the telephone consultative committee of the District Bhandara in the year 2002 wherein it was clarified that the O.Ps. had received a letter that the local authority should collect information regarding ruler area and by defining the position of the consumers apply the proper tariff to them. Therefore, the O.Ps. have decided to contact the District Collector and collect information regarding Borders of each village and define the tariff to be applied to the consumers. Thus the consumers would get appropriate improvement in their bills as per the location in urban or rural area.
15. The learned Members considered the contentions of the above letter, but held that the O.Ps. have not taken any action taken upon the letter received by them though they had assured likewise. The O.Ps. had called for the list of the villages from the Collector but did not do any action upon it.
16. The learned Members further held that the complainants have filed a telephone bill of one Shymsunder Borkar of Warthi Town which was declared as town area where the O.Ps. are charging as per the rural tariff only.
17. The learned Members held that when Warthi Village was held to be a town area as per the census of 2001, the O.Ps. are still charging as per rural tariff, likewise the SJNG is also declared as town area by the census 2001. Hence, it deserves to get the rural tariff only.
18. The learned Members considered that the Sawari and Jawahar Nagar are two different villages and are at a distance of 15 Kms. from the District Head Quarters of Bhandara. Hence, have no chance to get connected with Bhandara town.
19. The learned Members also considered a letter sent by the Director Census, Mumbai sent to the complainants in which it is clarified that the SJNG is declared town only for census area and is village as per revenue record. The District Collector has also given a certificate to the complainants that SJNG is rural area as per revenue records.
20. The learned Members of the Forum therefore, held that the O.Ps. should have applied rural tariff to the consumers living in SJNG area but have misconstrued the policy decision of their department and applied the urban area. Therefore, committed carelessness and deficiency in service.
21. The learned Members of the Forum therefore, held that the bills given by the O.Ps. to the consumers of SJNG need to be cancelled. However, recorded further that the O.Ps. have accepted the demand of the complainants of charging as per the rural tariff from the news published in the local papers . Hence, the demand is now satisfied.
22. The learned Members therefore, passed the order by partly granting the complaint supra but levied the cost of Rs. 1000/- upon the O.P.
23. Aggrieved against the order passed by the learned Members referred above the O.P. Nos. 1&2 have filed this appeal, hence, are referred are appellants. Advocate Mr. Ramaswami holding for Advocate Ms. Tanna appeared for the appellants. The original complainants are referred as respondents but did not appear though served. Hence, declared exparte.
24. The advocate for the appellant submitted that the majority judgment passed by the learned Forum Members cannot stand the test of law as the application of tariff to a particular area is a decision taken by the BSNL Authority which is a Government of India undertaking working under the Ministry of Telecommunication. The declaration of SJNG as urban area was according to the census and the decision was taken upon it which was a policy decision. Therefore, the policy decision cannot be subjected to the judicial review and before the consumer Forum.
25. The advocate for the appellant submitted that the majority Members wrongly construed the definition of Consumer and deficiency of service provided by the Act. The respondents have never made complaint about the deficiency in the service. He further submitted that the revenue records are the State matter and are not concerned with the appellants decision taken by the Head Office. Therefore, the order passed by the learned Members cannot sustain in the law and needs to be set aside.
26. We considered the contentions of the appellant and perused the record of evidence available before us. We find that the appellants had taken the decision as per the directions issued by their Central Authority of levying the tariff as per the urban category based on the census figures. It was same for the whole area. The revenue records are a different set of facts. Therefore, the decision taken by the appellants was a policy decision and not a deficiency in service which is a deviation after a certain contract of service assured to the consumer.
27. We further find that the learned President took a proper consideration of the issue before it and passed the correct order. The learned Members of the Forum committed mistake in holding the policy decision of the appellant to be deficiency in service and passing an order with direction to change the policy. Hence, the order cannot sustain in the law. It therefore, needs to be set aside. The order passed by the learned President of the Forum needs to be confirmed. Hence, the order below.
ORDER
- The appeal is allowed.
- The impugned order passed by majority by two Members of the Forum is set aside.
iii. Parties to bear their own cost
iv. Copy of the order be provided to both the parties, free of cost.
