Punjab

Sangrur

CC/71/2015

Rakesh Kumar Singla - Complainant(s)

Versus

Improvement Trust - Opp.Party(s)

Shri Sanjeev Goyal

11 Aug 2015

ORDER

   DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

 

                                                               

                                                Complaint No.    71

                                                Instituted on:      11.02.2015

                                                Decided on:       11.08.2015

 

1. Rakesh Kumar Singla aged 53 years son of Shri Hari Chand.

2. Madhu Singla 51 years W/o Shri Rakesh Kumar Singla, both residents of House No.63, Main Street No.6, Mubarak Mehal Colony, Sangrur.

                                                        …Complainants

                                Versus

1.             The Chairman, Improvement Trust, Sangrur.

2.             The Executive Officer, Municipal Council, Sangrur.

                                                        …Opposite parties

 

For the complainant    :       Shri Sanjeev Goyal, Advocate.

For Opposite party No.1:    Shri Pawan Gupta, Advocate.

For Opposite party No.2:    Shri Ashish Grover, Advocate.

 

 

 

Quorum:    Sukhpal Singh Gill, President

                K.C.Sharma, Member

                Sarita Garg, Member

 

Order by : Sukhpal Singh Gill, President.

 

1.             Shri Rakesh Kumar Singla and Smt. Madhu Singla, complainants (referred to as complainants in short) have preferred the present complaint against the opposite parties (referred to as OPs in short) on the ground that the complainants are the owner of house bearing number 63, situated at Street No.6, Mubarak Mehal Colony, Sangrur which was purchased by them from Shri Harbant Singh son of Natha Singh on 29.05.1996 and the site plan was duly approved by OP number 2.  It is further averred that the complainants are having water and sewerage connections from OP number 2 of which they have been paying the bills regularly, as such, the complainants are the consumers.  It is further averred that in the month of August, 2013, the OP number 2 prepared the estimate of work, such as providing and laying storm water pipe road gullies and paver block in street number 6, Mehal Mubarak house of Tarlochan Cheema to Jawandha House, Ward number 3 and subsequently OP number 2 entrusted the said work to OP number 1 for its execution. It is further averred that in the month of February, 2014, OP number 1 called the tender for the said work on behalf of OP number 2 and the said work was allotted to M/s. The Cheema Labour and Construction Society Ltd. vide work order number 172 dated 17.2.2014 and at that time the level of the house of the complainant was 10 inch above the street level before the commencement of the work.  It is further averred that before allotting the work, no reconnaissance survey of the area was conducted and without conducting the detailed survey of the levels of the area, the OPs prepared the estimate and even the Ops did not serve any prior notice/intimation to the area residents.  It is further averred that the contractor to whom the work was allotted raised the level of the street upto 16 inch and due to which the level of the house of the complainants became six inch down than the street level, due to which sewerage water started back flowing from the man hole of the sewerage line inside the house and from the kitchen thus causing great inconvenience to the complainants.   The complainant number 1 approached the Ops so many times to redress the grievance of the complainants, but all in vain.  The complainants also lodged the complaints with the higher authorities, but of no avail.  It is further averred that as the complainants have no alternative except to raise the level of their house by 15 inches and for that purpose the complainants have to spent an amount of Rs.7,71,000/- as per the tentative estimate given by Mr. Hanish Gupta. It is further averred that the complainants have already spent an amount of Rs.20,000/- on the bore well by installing a gate valve on the sewerage line.  Thus, alleging deficiency in service on the part of the Ops, the complainants have prayed that the Ops be directed to pay to the complainants an amount of Rs.10,00,000/- for the expenditure for raising the level of the house and further claimed an amount of Rs.5,00,000/- as compensation for mental tension, agony and harassment and Rs.50,000/- on account of litigation expenses.

 

2.             In reply filed by OP number 1, legal objections are taken up on the grounds that the complaint is not maintainable in the present form, that the complainants have no locus standi to file the present complaint, that the complainants have no cause of action to file the present complaint and that the complainants are not the consumers of the OPs. On merits, it is stated that OP number 2 prepared the estimate of the work and handed over the same to OP number 1. Hence, as per the scheme site plan and estimate opposite party number 1 has to work accordingly and nothing more. The OP number 1 has no link with the level of the street and it is only OP number 2 who prepared the level and scheme of the work.  Moreover, Op number 2 handed over the work under section 69 of  the Act and OP number 1 completed all the work handed over to him. It is further stated that the OP number 1 did the work handed over by OP number 2.  It is further averred that there is no agreement to issue any notice as mentioned above. If there is any necessity of the notice, then it is the duty of OP number 2 i.e. Municipal council.  It is further averred that at the request of the people of the area, OP number 2 prepared the estimate scheme and handed over the work to OP number 1 who completed the work under supervision and instructions of OP number 2.  Any deficiency in service on the part of the OP number 1 has been denied.

 

3.             In reply filed by OP number 2, legal objections are taken up on the grounds that the complaint is not maintainable, that the complainant has no cause of action and that the complainant is not a consumer and the jurisdiction of this Forum has also been disputed.  On merits, it has been admitted that the OP prepared the estimate of work as alleged and handed over the same to OP number 1 for work. It has been denied that the level of the house of the complainants was 10 inch above from the street level before the commencement of the work.  The OP number 1 called the tender and allotted the work to M/s. The Cheema Labour and Construction Society Limited. It has been stated that the estimate has been rightly prepared. It is stated that the complainants never approached the Ops for anything and the work was rightly done by OP number 1. The work was properly done under the supervision of the officials of OP number 1 and completion report was also signed by the JE, SDO and XEN Improvement Trust, Sangrur.  The other allegations levelled in the complaint have been denied in toto.

 

4.             The learned counsel for the complainants have produced Ex.C-1 affidavit, Ex.C-2 copy of receipt, Ex.C-3 copy of expert estimate, Ex.C-4 copy of application under RTI Act, Ex.C-5 copy of letter, Ex.C-6 copy of estimate, Ex.C-7 copy of storm water pipe, Ex.C-8 copy of financial bid, Ex.C-9 copy of legal notice, Ex.C-10 and Ex.C-11 copies of receipts, Ex.C-12 copy of legal notice, Ex.C-13 copy of receipt, Ex.C-14 to Ex.C-18 photographs, Ex.C-19 copy of slip, Ex.C-20 copy of letter, Ex.C-21 copy of  sale deed, Ex.C-22 and Ex.C-23 copies of slips, Ex.C-24 copy of letter, Ex.C-25 copy of receipt, Ex.C-26 affidavit and closed evidence. On the other hand, the learned counsel for the OP number 1 has produced Ex.OP1/1 affidavit, Ex.Op1/2 copy of estimate, Ex.OP1/3 to Ex.OP1/5 copies of MB reports, Ex.Op1/6 copy of work order, Ex.Op1/7 copy of letter and closed evidence.  The learned counsel for OP number 2 has produced Ex.OP2/1 affidavit of Subham Goyal, Ex.OP2/2 copy of agreement, Ex.Op2/3 copy of E paper Punjabi, Ex.OP2/4 copy of publication, Ex.OP2/5 copy of tender/notice and closed evidence.

 

5.             We have carefully perused the complaint, version of         the opposite parties and heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits dismissal, for these reasons.

 

6.             First of all, a bare perusal of the complaint reveals that the complainants are not the consumers of the OP number 1, as it is not the case of the complainants that they paid any consideration to OP number 1 for hiring its services.  Further there is no privity of contract between the complainants and the OP number 1, as such, we feel that the complaint of the complainants is not maintainable at all against OP number 1.

 

7.             Further the complainants have alleged that they are the consumers of OP number 2 as they are having received the water and sewerage connections from OP number 2 and are paying the bills to OP number 2, a copy of bill is Ex.C-2 on record.  But, we are not in agreement with the learned counsel for the complainants that they are the consumers of OP number 2.  Reliance can also be placed on P.S.Chauhan versus Commissioner, Nagar Nigam, Durg (C.G.) 2014(1) CLT 493 (NC), wherein the Hon’ble National Commission has held that by merely paying tax to municipal corporation, it cannot be said that complainant has hired the services for consideration and complainant does not fall  within the purview of the Consumer Protection Act.  It is further held that the tax and cess imposed by the Municipal Corporation cannot be equated with consideration for hiring services under the Act and person paying the tax cannot be held as a ‘consumer’.  That tax cannot be equated with fees and merely by paying the  tax complainant does not obtain any service from the Op and complainant does not fall within the purview of consumer.  In view of this, we are of the considered opinion that the complainants are not the consumers and cannot even maintain the complaint against OP number 2 also.  Moreover the Municipal Corporation discharges the statutory duty enjoyed upon it by law.  The Hon’ble Punjab State Commission in Municipal Council, Dhuri versus Charanjit Rice Mills II (1999) CPJ 483 has held that the Municipal Authorities do not render the service, as contemplated under the Act and it was held by our State commission that the complainant is not a consumer under the Municipal Corporation.  The Municipal Corporation discharges its statutory duties as enjoined upon it by the law. It has been further held that the payment of sewerage charge to the statutory body of Municipal Corporation is in the statutory function, like the tax and the payment of tax cannot be treated as service for consideration for a consumer having hired the services of such authority, like Municipal Corporation or the water supply board.   The same view has also been taken by our own Punjab State Commission in Bimal Kishore Sharma versus Municipal Council Sangrur and another, First Appeal No.1524 of 2010, decided on 4.8.2014.

 

8.             Another allegation of the complainant that before allotting the work, no reconnaissance survey of the area was conducted by the Ops and without conducting the detailed survey of the levels of the area, the OPs prepared the estimate for the preparation of the work and further the Ops did not serve any prior notice/intimation to the area of the locality for raising the level of the street of the area carries no water, as the complainant has not cited any such rules and regulations binding upon the OPs to do so before allotting the work for construction of any street/road. As such, we feel this allegation of the complainants is not at all helpful to the case of the complainants in the absence of any conclusive evidence to support the allegations.

 

9.             It is worth mentioning here that the complainants have produced the estimate dated 7.8.2014, which is on record as Ex.C-3 for uplifting the level of the existing house by 15 inches, whereby an amount of Rs.7,71,000/- is required to be spent for the same.   The complainants have not produced any cogent, reliable and trustworthy evidence on record to support their contention that the OPs are to compensate the complainants for uplifting the level of the street by 15 inches.  Further we may mention that the house in question was constructed in the year 1991 by getting approved the site plan vide letter number 222/50 dated 7.3.1991, a copy of which on record is Ex.C-20, meaning thereby the house in question was constructed about 26 years back.  Moreover, the level of the road has been uplifted on the own request of the residents of the street number 6 of the area, where the complainants have been residing. As such, we are of the considered opinion that the estimate produced by the complainants is not at all helpful to them.

 

10.            The learned counsel for the OP number 1 has further drawn our attention towards the application dated 09.04.2014, Ex.OP1/7 signed by various residents of the area.  A bare perusal of the application Ex.OP1/7 clearly reveals that the residents of the area made requests to the OP number 1 for uplifting the level of the street as the water remained blocked in the streets due to its lower level, whereas the level of main road is on the higher side.  The learned counsel for the Ops has contended vehemently that the whole of the street is constructed in one level and if the level of one house goes down like of the complainants, then it is not possible for constructing the street for OPs.  It is further worth mentioning here that the construction work of the street was done under the supervision of various officials of OP number 1 such as Junior Engineer, SDO and Executive Engineer etc. and was done as per the norms.  Moreover, the complainants have not produced any documentary evidence to show that how much level of street has to be maintained.    The complainants have not produced any iota of evidence that before constructing the street, the house of the complainants was having 10 inch upper level, whereas the OPs raised the level of the street by 16 inch, making thereby the level of the house of the complainants down by 6 inches and due to that the sewerage water started back flowing from the man hole of the sewerage line inside the house of the complainants. Further the complainants have not produced any evidence to show that road level was lifted by 16 inches.   

11.            In view of our above discussion, we dismiss the complaint of the complainants. However, the parties are left to bear their own costs.

 

                Pronounced.

                August 11, 2015.

                                                        (Sukhpal Singh Gill)

                                                           President

 

 

                                                              (K.C.Sharma)

                                                                Member

 

 

                                                                (Sarita Garg)

                                                                    Member