IN THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DEOGARH.

Shri P.Ch. Mahapatra, Member & Smt. Jayanti Pradhan, Member

Sudarsan Nayak,

Aged about 71 Years,

S/O – Late Narahari Nayak,

R/O – Vill – Saruali,

PO/PS – Barkote,

Dist. - Deogarh.                                                                         ….                   Complainant.

                                  Versus

1. Junior Engineer,

Lift Irrigation Corporation Ltd,

At/PO – Deogarh, Dist. – Deogarh                           

2. Odisha Lift Irrigation Corporation Ltd.

At/PO – Bhubaneswar,

Dist – Khordha.                                                          ….                   Opp.Parties.

C.D.Case No.12/2016.

DATE OF HEARING : 19.10.2016         DATE OF ORDER : 10.11.2016.

For the Complainant   :           Nemo

                        For the Opp.Party       :           Shri Pravash Cha. Mishra, Advocate.

SHRI PRATAP CHANDRA MAHAPATRA, MEMBER : - The genus of the case germane in the fact that the Complainant, a permanent resident of Saruali, Post - Barkote under Barkote Police Station in the district of Deogarh with the intention to improvise cultivation thereby generating more income opted to install a Deep Bore Well in his lands bearing Plot No.951 of Khata No.118 and accordingly contacted the OPs who are the sanctioning authorities for the purpose. Since Complainant was found satisfying all prescribed criteria of the Scheme was selected to be sanctioned with a project and was directed to deposit Rs.19,000/- in the office of the OP1. On receipt of the said amount in September 2011, though the OPs dug a Deep Bore Well in the land of the complainant but as per terms & conditions have not taken any steps for function of the Deep Bore Well till the date of filing the instant complaint. Also OPs have violated their assurances made to the fact that the Bore Well would be made operational within a month of digging. They have not yet issued the Money Receipt in token of receipt of the amount of Rs.19,000/- even after the complainant  under Right to Informations Act sought for information in this regard to OPs.   Although  years elapsed the project was not made operational, even the Pipe line not layed or the Motor not installed despite of several approaches and requests causing pecuniary loss and mental agony and harassment. Hence the complaint.

2.         In response, OPs defended the allegations having admitted averments in Para-1, 2,3,4 and 5 and denied the contents of Paras – 6,7,8,9,10 & 11 made in the complaint petition that OPs are simply the Executor of execution of Deep Bore Well for agriculture purposes  and the Scheme is laid down by the Government of Odisha.

            Further,contended that the complainant is a beneficiary in the said project by sharing Rs.20,000/- while the rest Rs.3,44,000/- is being borne by the State Government. Complainant would have enjoyed the benefit out of the project if it would have become feasible subjected to geographical features, which in the instant case did not support for discharge of water.

            Also it has been challenged by the OPs that the petition filed by the Complainant is not admissible and maintainable since complainant is a beneficiary and not a Consumer against the OPs. A person who takes benefit from an organization cannot stand as a Consumer.

3.         Heard both the sides where in learned advocate for OPs emphasized on the aspect that Beneficiary can not claim to be a Consumer under C.P. Act,1986 and once a project becomes unfeasible laying of Pipe line and installation of Motor and energization is not required. Hence there are no latches on the part of the OPs. Complainant Shri Nayak on the other hand stated that as per terms and conditions of the agreement, OPs have to complete the digging and thereafter laying Pipe Line and installing electricity to the project within a month and they had remained negligent until initiation of the instant proceeding. Only after they received the notice of the Honourable Forum now they have started laying Pipe Lines and installing Electricity. Further, only after test-drilling and outcome of such test drilling being satisfactory the project was taken up and agreement was executed and he was asked to make deposit of his share. Hence unfeasible or Unsuccessful Project is not a fact but just nice-tice.

4.         Having heard and after perusal of documents adduced by both the sides we find as follows :

1. The question raised by the OPs that the instant case is not maintainable since Complainant is not a Consumer according to provision of the C.P.Act,1986, needs to be looked in to at the outset. We examined the GUIDELINES FOR EXPLOITATION OF GROUND WATER RESOURCES THROUGH BORE WELLS IN HARD ROCK AREAS OF THE STATE UNDER BIJU KRUSHAK VIKAS YOJANA – DEEP BORE WELL SECHA KARYAKRAMA marked as Exbt.D/1, circulated by Govt. of Odisha, Department of Water Resources in 2010. Following is the main outline of the Scheme ;

INTRODUCTION :

It has been mentioned that Government of Odisha intends to launch a new scheme for exploitation of ground water resources through construction of deep bore wells in hard rock areas of the State with a view to augment irrigation potential mostly in blocks which have less than 35% irrigation.

OBJECTIVE :

To provide irrigation facilities for at least 1 Hectare of agricultural land through installation of bore-wells in hard rock areas for farmers individually or jointly alongwith electrical sub-station and power line in hard rock areas, mostly in blocks which have less than 35% irrigation. The ayacut area may increase depending on actual yield of each well. Such Blocks snail be identified subject to feasibility based on Ground Water data available from CGWB, Directorate of Ground Water Survey & Investigation, and National Remote Sensing Agency.

SALIENT FEATURES OF THE SCHEME:

• The Average Unit cost of each bore well 'would be around Rs. 2.5 Lakhs including electrical substation, power line and pumping units.
• Beneficiary contribution would be 10% of the project cost subject to a maximum of Rs.20,000. He shall pay Rs.1000/- (non refundable) after scrutiny of application and the remaining Rs.19,000 after successful completion of drilling and testing of bore well. Govt. shall provide with a bore well along-with power supply installation up to bore-well point and the pumping unit. The beneficiary shall bear all cost towards service connection charges, inspection fee, security deposit with  DISTCO and enter into power supply agreement with DISTCo etc.
• The successful bore well after energization will be handed over to the beneficiary for future operation and maintenance by him. The beneficiary will pay energy charges to the DISTCo after taking over the unit.
• It is proposed to implement bore well scheme in 256 blocks of 26 districts [Non- KBK-18 & KBK-8 nos. of districts] in the state. DoWR will take up the scheme in 166 nos. of blocks of 17 districts [Non-KBK-9 & KBK-8 nos. of districts] as per list enclosed. A similar scheme-will be launched by Department of Agriculture in balance 9 districts.
• Any cultivator owning minimum 1 acre of cultivable non-irrigated land within the ayacut of 5 Ac., will.be eligible to apply under the scheme. However, the I cultivator can share his water with nearby farmers after entering into an agreement. The cultivator making an application shall have to submit a copy of the ROR as a proof of his ownership at the time of application. He should also indicate the lands of other beneficiaries, if any, coming within the ayacut who will use the water from the Project.
• The Project Area shall be identified based on the data for Ground Water potential of Central Ground Water Board, Directorate of Ground Water Survey & Investigation and NRSA together with necessary field check. Besides, availability of 11KV power line in the area shall also be an importarft consideration before finalizing the Project Area, and cluster approach would be adopted in order to make the project cost effective and proper functioning of the points after energization. Once a site gets pre-feasibility report the beneficiary will deposit Rs.1000/- as initial deposit.
• It is proposed under the scheme that the entire process of (a) sounding test, (b) construction of bore well, (c) yield test (d) provision of electrical line and sub-station and (e) pumping units such as supply of pump sets, panel And installation shall be done by engaging private agencies through open tender for different districts.
• Cost for sounding (VES) will be paid to the drilling agency by State Government. Similarly, the premium for Insurance coverage for all wells will be paid to the drilling Company by the State Govt.
• The beneficiary shall enter into agreement with DISTCOs and make all necessary payments towards service connection, inspection fee, electricity charges etc.

IMPLEMENTATION ARRANGEMENTS:

5. Orissa Lift Irrigation Corporation Ltd. under the Department of Water Resources shall be responsible for the implementation of the scheme in 166 blocks of. 17 districts.
5. Based on inputs from CGWB, GWS&I and NRSA data, the officials of the corporation shall identify the feasible areas for the project. Upon finalization of project area, advertisement will be issued in local dailies inviting applications from beneficiaries within a specific time frame.
5. Applications shall be received at the office of the Junior Engineer, OLIC who shall maintain a register wherein the serial number (priority list) of the applications shall be maintained in the accordance with the time and date of application. The Junior Engineer receiving the application shall give an acknowledgement to the applicant indicating there-in the serial number of the application, the date and time of the application.
5. Thereafter a pre-feasibility survey would be conducted by OLIC and the result shall be reported to the Executive Engineer, OLIC who will prepare Detail Project Report (DPR). The DPR will be approved at district level by Technical Appraisal Committee (TAC) which shall be chaired by the Collector of the District with Executive Engineer, DISTCO as Member and Executive Engineer, OLIC as Convener.
6. Upon approval, the work order shall be issued to the Drilling Agency for VES test and after successful VES test, construction of the bore well will be taken up. Upon successful completion of the bore well, the drilling agency shall get the yield test conducted in the presence of the beneficiary and the officials of OLIC after which the bore well shall be taken over by OLIC. Minimum yield of 1.75 Litres/Second shall qualify the bore well successful. OLIC shall get the electrical works completed by engaging private agencies and thereafter hand over the Project to the beneficiary after energization of the project for operation and maintenance. The beneficiary will bear all expenses towards repair and maintenance of the bore well in future. The transformer along with 11 KV and L.T. line will be maintained by the DISTCOs,

     Beyond doubt it is a fact that Biju Krushak Vikas Yojana – Deep Bore Well Secha Karyakrama is Government Sponsored Welfare Scheme and in the instant case the Complainant is a Beneficiary. Hence, Complainant is not entitled to knock at the doors of Consumer Forum against the Govt. in Water Resources Department under Consumer Protection Act, 1986 (hereinafter termed as Act) since he is not at all a “Consumer” as defined under Sec.2(1) of the Act. But Scenario is different with Orissa Lift Irrigation Corporation. OPs in their written version have claimed that they are simply Executors of the Scheme. In the Guide Line also it has been stated under heading  IMPLEMENTATION ARRANGEMENTS: Orissa Lift Irrigation Corporation Ltd. under the Department of Water Resources shall be responsible for the implementation of the scheme in 166 blocks of. 17 districts. Now the point of consideration floats to : whether OLIC is a Govt. Department ? We quote the following from the Content of Web-Portal of http://www.odishalift.co.in/  

 JXÞhÐ DWÐSfÒjQ_ _ÞNc eþÐSÔeþ HL @NõZÑ _ÞNc bþÐÒa ]ÑOà 41 aià ÒkþmþÐ QÐiÑcÐ_*ʼ ÒjaÐ ÒdÐÒNB Ò]B AjÊRÞ¼¼Ð _ÞNceþ S_ê 1973 cjÞkþÐ @LçÒVÐaeþ cÐj 1 [ÐeÞþMÒeþ¼¼Ð HkÞþ _ÞNc ]éÐeþÐ @aÞhõÐ«Æ bþÐÒa `õÒ[ÔL aià _Ë[_ DWÐSfÒjQ_ `õLÁ¤cÐ_ [ÞAeÞþ ÒkþÐB AjÊRÞ J eþÐSÔeþ jcªÆ `õЫÆÒeþ HkþÐ QÐiÑ*¼ ]éÐeþÐ LÐdàÔÒeþ aÞ_ÞÒdÐN ÒkþÐB `ÐeÊþRÞ¼¼Ð 1973 cjÞkþÐ `ËaàeÊþ HkþÐ LóiÞ aÞbÐþN @^Ñ_Òeþ HL jeþLÐeþÑ aÞbþÐN eËþÒ` LÐdàÔLeÞþ AjÊ\ÞmþÐ J ÒjÒ[ÒaÒf HkþÐ eþÐSÔeþ jcªÆ @qfÒeþ aÔÐ`L bþÐÒa _ÞcàÐZ LeþÐdÐB `ÐeÊþ_\Þmþм¼Ð Lõch: eþÐSÔ jeþLÐeþ*¼ Green Revolution ÒdÐS_ÐLÊ jÐLÐeþ LeÞþaÐ mþlÔÒeþ HkþÐLÊ aÔÐ`L LeþÐNmþм¼Ð xxxxxxþ

Also from the Organogram of OLIC uploaded to the Web-Portal supra it is visualised that it is headed by a Board of Directors and it is not a Government Department  whose beneficiary is the Complainant in the case in hand.

Now Complainant to be qualified as Consumer under the Act, the question, whether he pays any consideration for the services rendered by OLIC – has to be considered. We examined the Leaflet circulated by  OLIC, Guidelines for Biju Krushak Vikas Yojana – Deep Bore Well Secha Karyakrama,2010 filed by OP and its modification in 2015 downloaded from the Web-portal and found that :

1. In the Leaflet circulated by OLIC it has been stated –  “d]Þ `õLÁ¤VÞ ÒL×ZjÞ LÐeþZeÊþ LÐdàÔLÐeþÑ ÒkþÐB`ÐeÊþ_ÐkÚþ LÞcèÐ ÒkþÐB`ÐeÞþa _ÐkÚþ, Ò[Òa D¦Æ aÔÐ*ç¼ QÐiÑ ScÐ LeÞþ\ÞaÐ kÞþ[Ð^ÞLÐeþÑ @ÕheÊþ V 1,000/- Processing Fees aÐa]LÊ DWÐSfÒjQ_ _ÞLVÒeþ Ò`ßW LeÞþ aÐLÞ V*¼Ð jÊ^ jkÞþ[ kÞþ[Ð^ÞLÐeþÑ*ʼ Ò$¼eþªÆ LeÞþÒa¼¼Ð

 DWÐSfÒjQ_ aÞbþÐN kÞþ[Ð^ÞLÐeþÑ*¼WÐeÊþ ]eþMÐªÆ `ÐBaÐeþ 120 ]Þ_ c^ÔÒeþ Feasibility Report D`ÒeþÐ¦Æ aÔÐ*¼LÊ ]ÐMmþ LeÞþÒa¼¼Ð d]Þ `õLÁ¤VÞ Feasibile ÒkþÐB\ÐH, [Ð ÒkþÒmþ ]ÐMmþ LeÞþ\ÞaÐ @Õh^_ AE 270 ]Þ_ `ÐBÜ aÔÐ*¼Òeþ ScÐ eþkÞþa¼¼Ð DWÐSfÒjQ_ aÞbþÐN 270 ]Þ_ c^ÔÒeþ `õLÁ¤ LÐdàÔ j­ËÆÀठLeÞþ Completion Certificate jkÞþ[ kÞþ[Ð^ÞLÐeþÑ*ʼ kþªÆЫÆeþ LeÞþÒa¼¼Ð aÔÐ*¼Òeþ NoÞ[ \ÞaÐ kÞþ[Ð^ÑLÐeþÑ*¼ @Õheþ jcªÆ V*¼Ð D¦Æ aÔÐ*ç¼ DWÐSfÒjQ_ aÞbþÐN LÊ Ò`ßW LeÞþÒa¼¼Ð

    d]Þ, DWÐSfÒjQ_ aÞbþÐN AD @^ÞL jc¯Æ ]eþLÐeþ LÒeþ Ò[Òa QÐiÑ*¼ jkþc[ÞÒeþ HL undertaking aÔÐ*¼LÊ Ò]B AD 180 ]Þ_ `ÐBÜ D`ÒeþÐ¦Æ ScÐLÊ eÞþ_ÊÔ LeÞþ `õLÁ¤LÊ HkÞþ _ÞwàÐeÞþ[ jc¯Æ c^ÔÒeþ jç­æÆÀठLeþÐdÞa¼¼Ð HkÞþ _ÞwàÐeÞþ[ 180 ]Þ_ c^ÔÒeþ `õLÁ¤ jç­æÆÀठÒkþÒmþ completion Certificate aÔÐ*¼LÊ `õ]Ð_ LeþÐdÞa J aÔÐ*ç¼ Òeþ NoÞ[ \ÞaÐ kÞþ[Ð^ÞLÐeþÑ*¼ @Õheþ jcªÆ V*¼Ð D¦Æ aÔÐ*ç¼ DWÐSfÒjQ_ aÞbþÐNLÊ Ò`ßW LeþÐdÞa¼¼Ð”

2. In the Government Resolution in the Department of Water Resources No.L.I.(Sch.)-14/2015-11176/WR. Dated, Bhubaneswar, the 19.5.2015 , interalia, it has been stated :

“10.If the OLIC submits a report stating that the project is infeasible, or that the cluster does not muster at least 4 beneficiaries, or if the OLIC fails to submit a Feasibility Report with the stipulated first 120 days, then the escrow ends, and on maturity of the Fixed Deposit, the beneficiary is free to collect it, with the due interest, from the bank, following the bank’s procedures. He does not need any clearance from the OLIC. However, the bank shall deduct Rs.1000 from that sum towards Application fee and Processing charges, and transfer it to OLIC’s account.

13.On receiving the Completion Certificate, the bank shall, on maturity of the Deposit, i.e. after the term of the Fixed Deposit (270 days) is over, release the Fixed Deposit, along with the accrued interest, to the account of OLIC.

16. If the OLIC fails to submit either the Completion Certificate or the Undertaking for Extension of time before the second Fixed Deposit term of 270 days ends, then it is deemed that the project is a failure; then the escrow is deemed to be over and the beneficiary is free to collect the Fixed Deposit on its maturity with the accrued interest. He does not need any clearance from the OLIC. However, the bank shall deduct Rs.1000 from that sum towards Application Fee and Processing charges, and transfer it to OLIC’s account.

17. If the OLIC gets an extension of time, then the work must be completed within the extended 180 days; and on completion, the OLIC must submit a Completion Certificate to the bank, signed by the beneficiary, and on maturity of the Deposit, the bank shall release the Fixed Deposit and accrued interest to the account of OLIC.

18. If the OLIC fails to complete the project and submit the Completion Certificate within the extended 180 days, then the escrow is deemed to be over, and the beneficiary may collect the Fixed Deposit on maturity with the accrued interest. He does not need any clearance from the OLIC. However, the bank shall deduct Rs.1000/- from that sum towards Application Fee and Processing charges, and transfer it to OLIC’s account.”    

It is very much clear that the share in case of feasible project and the non-refundable amount of Rs.1000/- in shape of application fee and processing charges  in case of infeasible projects being transferred & credited to the account of OLIC forms the consideration.  In the instant case an amount of Rs.19,000/- is received in shape of Bank-Draft bearing no.935336 of dtd.02.05.2015 through Money receipt marked Exbt.P/1. Hence we rule out the challenge that complainant is not a consumer under the Act but simply a beneficiary. We hold the opinion that the Complainant is a Consumer of OLIC.

2. Issuance of Money Receipt bearing No.30 of Book No A/4275 by OLIC on 26^th November 2012  for Rs.19,000/- (Rupees Nineteen thousand) envisages the fact that pre paraphernalia have been executed successfully, i.e.

1. Complainant had submitted his application
2. Application being scrutinized was selected.
3. Complainant deposited Rs.1,000/- after scrutiny of his application.
4. Drilling and testing of the bore well was successful.
5. Complainant being required so to do, then only deposited his share of the project i.e. Rs.19,000/-

This corroborates averment of the complainant. If it was a matter of fact that project was infeasible depending upon the geographic features of the land as contended by the OP and reason for which Pipes not laid and installation of Pumping Unit & energization was not done, then it was not necessary to ask for deposit of farmer’s share.

3. Deposit was made on 26.11.2012 and accordingly project should have been completed in all respect by 270 days commencing from the date of receipt of application form out of which 120 days has been segregated towards feasibility report, which means project should have been completed by 150 days from 26.11.2012 which comes to 26.11.2013 in this case when computed most leniently. OPs have neither yet furnished the Completion Report nor have returned the complainant’s share in the event of infeasible project though by now four years short by 15 days have already elapsed since farmer’s share has been received by OP in cash through money receipt, leaving no scope to go to Bank for its withdrawal after elapse of the maturity period in case of infeasible project.   

            Hence we have to believe submission of the complainant that the project is a feasible one and that action of OPs is deficient. The deficiency of service on the part of OPs have led financial loss to the Complainant since he could not utilise the benefit made available to him by the State Government for Ravi phasala for the year 2013-2014, 2014-2015, 2015-2016  and 2016-2017. As such I order as under:

ORDER

The complaint is allowed. The Opposite Parties are directed to complete the remaining work and handover the Bore Well to the complainant complete in all respect within a month from date of pronunciation of this order and to pay Rs.50,000/-.  ( Rupees fifty thousand ) as compensation and Rs.3,000/- ( Rupees three thousand ) as litigation expenses to the Complainant  within 45 ( Forty five) days of receipt of this order failing which the O.P. shall have to pay in addition, an interest of 9% per annum till actually the amount is paid in course of Law.

            Office is directed to supply the free copies of the order to the parties free of costs receiving acknowledgement of the delivery thereof.

Order is pronounced in the open court today i.e. on 10^TH. Day of November 2016 under my hand and seal of this forum.

                              I agree                              

                        (Jayanti Pradhan)                                                        (P.C. Mahapatra)

                          MEMBER (W)                                                                MEMBER

            Dictated and Corrected by me.

                              MEMBER