South Delhi Municipal Corporation (hereinafter referred to as SDMC) has filed this revision petition challenging the order of the Delhi State Consumer Disputes Redressal Commission in Consumer Complaint No.100 of 2013, passed on 1.3.2013. The State Commission has admitted the complaint and fixed the matter for 29.5.2013 for further consideration. While doing so, the Commission has also considered an interim application filed on behalf of the Complainant and made the following order:-
“After hearing the Ld. Counsel for the Complainant we find that there is a prima-facie case and also the balance of convenience lies in favour of the complainant and irreparable loss and injury will caused to the complainant if interim order is not granted to the complainant society. In view of the facts and circumstances of the case, it is hereby directed that South Delhi Municipal Corporation, the OP is restrained from demolishing the super structures constructed on Khasra No.53/13,14,17,18 & 26 behind Liver Hospital and D-2, Kishan Garh, New Delhi more particularly known as Shri Sai Kunj Apartment till further orders.
It is further directed that SHO of PS Vasant Kunj South will not provide any aid/assistance to the South Delhi Municipal Corporation for taking any coercive action against the super structure constructed on Khasra No.53/13,14,17,18 & 26 behind Liver Hospital and D-2, Kishan Garh, New Delhi more particularly known as Shri Sai Kind Apartment till further orders.”
2. The above ex-parte interim order is challenged by the revision petitioner. The case of the petitioner/SDMC is that under Sections 331 to 341 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as the DMC Act) any construction of a building requires prior sanction of the building plan. Section 343 of this Act permits the Corporation to order demolition of construction in its violation. It is also the case of the petitioner that a Monitoring Committee has been appointed by Honb’ble Supreme Court in M.C. Mehta Vs. Union of India 2006 (3) SCC 429 to check unauthorised constructions in residential/non-conforming areas of Delhi. The structures in question in the impugned proceedings before the State Commission, were inspected by the Monitoring committee on 12.2.2013. Allegedly, “During the inspection, Monitoring Committee also noticed that a complex (containing 56 flats) has been developed by the builders on an agriculture land i.e. the said Property without any prior building plan sanctioned from the Petitioner or DDA or SDM.” This was followed by a show cause notice, instructions to disconnect water supply and electricity and sealing of the flats. On 19.2.2013 notice for demolishing was issued under Section 434 of the DMC Act.
3. The prayer of the revision petitioner is to set aside the order of the State Commission passed on 1.3.2013 and also to quash the complaint no.100 of 2013 before the State Commission in which the order of 1.3.2013 was passed.
4. Mr. Gaurang Kanth, Advocate was heard on behalf of the petitioner Corporation on 10.4.2013. He argued that the provision in Section 21 (b) of the Consumer Protection Act, permits intervention of this Commission even in matters, which are pending before the State Commission. He argued vehemently, for ex-parte stay of the impugned order, but simultaneously expressed his inability to give an undertaking that in case of such an ex-parte stay being ordered no further action will be taken by the Corporation until the next date of hearing. Therefore, the matter was adjourned for notice to the respondent.
5. It needs to be mentioned here that despite dasti service of notice through the petitioner/Corporation, none appeared on behalf of the respondent/ Shanugananda Welfare Association. Mr. Neeraj Kumar Advocate did appear but without any authorisation and only to inform that the main counsel is Mr. Rohit Jain, Advocate, who was yet to file his Vakalatnama. Thereafter, the matter was heard on 6.5.2013 and 8.5.2013.
6. Counsel for the petitioner pointed out that this revision is against the ex-parte order passed by the Delhi State Consumer Disputes Redressal Commission on 01.03.2013, which was made on the day of admission of the complaint itself. Counsel for the respondent accepts that the matter pertains to an unauthorized colony but states that house tax from its residents is already being collected by the revision petitioner, as submitted before the State Commission. Counsel for the revision petitioner does not deny that property tax is being collected. However, he referred to the notice of demolition given by the Corporation on 11.02.2013 followed by the demolition order of 19.02.2013.
7. From the above chronology, it is clear that the consumer complaint before the State Commission has been filed in the background of the notice of 11.02.2013 and demolition order of 19.02.2013, both emanating from the petitioner/Corporation. It is equally clear that the visit of the Monitoring Committee is the background in which the notice and the demolition order have both issued. Both parties informed that the matter now stands posted to 29.05.2013 before the State Commission for filing of reply.
8. Mr.Rohit Jain, counsel for the respondent/complainant explained that, for the purposes of the consumer complaint, the obligation of the petitioner/Corporation as the ‘service provider’ does not flow from any contractual agreement between the parties but from the provision under Section 42 of Delhi Municipal Corporation Act, 1957. This provision details the obligatory functions of the Corporation. Mr. Jain specifically pointed to clauses-a, c, i, m, n, o thereof. It was argued that ‘consideration’ for these services is paid by the complainant to the Corporation in the form of the ‘House Tax’, which is being regularly paid, as stated in para-4 of the complaint.
9. At this point, attention of the learned respondent counsel was drawn to the averment in para-6 of the complaint, which reads as follows:
“That apartments are old and occupied and comply all the statutory requirements. The apartments are having all the basic facilities which are required for living in any residential accommodation.”
Therefore, in a situation where ‘the agreed service’ is admittedly being provided, there would be no case for ‘deficiency of service’, as alleged in the complaint. When asked, the respondent counsel explained that these facilities being provided as of now, is a matter of fact and is not denied. However, the revision petitioner by issuing notices and order for demolition is attempting to withdraw these services. This attempt, it is argued, amounts to deficiency of service. He also claimed that payment of tax can constitute ‘consideration, for hiring or availing service for consideration, if it does not go into the Consolidated Fund of Union of India or State concerned. The counsel contended that property tax collected from them does not go into the Consolidated Fund. Section 113 of the DMC Act allows the Corporation to levy many other taxes. However, it was clarified by the counsel for the revision petitioner that all taxes collected in terms of the provision in Chapter VIII of the DMC Act go into the Consolidated Fund of the Government of India.
10. Detailed reference to the provisions of the Delhi Municipal Corporation Act, 1957, from Section 331 to 347 in the revision petition raises the foremost argument that these are statutory powers flowing to the Corporation from the Act and not from any agreement/contract between the parties. Section 347 E specially bars jurisdiction of Courts in matters arising under these provisions. Therefore, the prayer of the revision petitioner is not only to set aside/quash the impugned order alone but the complaint itself filed before the State Commission.
11. Counsel for the revision petitioner has relied upon the decision of this Commission in The Mayor, Calcutta Municipal Corporation Vs. Tarapada Chatterjee & Ors. I (1994) CPJ 99 (NC). The issue involved was very similar to that in the present case. The matter arose from the direction of the District Forum Calcutta, confirmed by the West Bengal State Consumer Disputes Redressal Commission. The Municipal Corporation was directed by the fora to take immediate steps for improving the pressure of water supply to the premises of the Complainant. This direction was set aside by the National Commission with the observation that, “the Complainant is paying only “property tax” to the Corporation, the levy of which is based on the annual value determined as per the provisions of Section 174 of the Calcutta Municipal Corporation Act, 1980. The construction and maintenance of the water works and providing means for supply of water for public and private purposes is specified in Section 29 of the said Act as one of the obligatory statutory functions of the Corporation and it is only in the discharge of the said statutory duty that the Corporation is maintaining the system of water supply to the respondents within the Municipal limits. The complainant is getting the water supply to his premises only by virtue of the performance of the statutory duty by the Corporation.”
12. A perusal of the impugned order makes it abundantly clear that the State Commission has not gone into the question whether the complaint is admissible as a consumer disputes. It has merely observed “Heard counsel for the Complainant on admission. Admit. Issue notice to the OP, fixing 29.5.2013 for filing WS and for further orders.” Clearly, the perceived urgency to stop demolition of these structures, has taken precedence over decision on admissibility of the complaint itself.
13. Para 17 in the complaint states that “complainant society is the consumer within the meaning of Consumer Protection Act as it has hired the services of respondent for consideration”.Para 20, listing the reliefs sought, claims compensation of Rs 25 lakhs for deficiency of service and unfair trade practice. But, there is no attempt in the complaint to explain what ‘service’ was hired by the respondent/Complainant and for what ‘consideration’. Without that, the question of deficiency and unfair trade practice would not arise. Para 4 of the complaint does refer to regular payment of house tax to the Corporation by the apartment owners, but makes no attempt to explain how ‘house tax’ becomes the agreed ‘consideration’ for certain services rendered by the Corporation. Therefore, in my view, the argument of Mr. Rohit Jain, counsel for the respondent/Complainant, is nothing more than an attempt to improve upon the case of the Complainant from what it was in the complaint filed before the State Commission. 14. By claiming that house tax was the ‘consideration’ for the rendering of specifically agreed services, the respondent/Complainant accepts an obligation under Section 2(i) (d) of the Consumer Protection Act, to establish the same through a contract/agreement. The agreement would necessarily have to be specific the nature and scope of service and the agreed quantum of consideration for it. No such agreement exists. In fact, there can be no contract/agreement for discharge of statutory functions. Learned counsel for the respondent/Complainant pointed to services which are in any case ‘obligatory functions’ of the Corporation under Section 42 of the DMC Act. There is no explanation how tax collected from the respondent would be spent on service agreed to be provided to them. It is not the case of the respondent that the money recovered from them as house tax has to be directly spent on services like water, street light, drainage etc. provided to them only. I therefore, have no hesitation in rejecting the contention that for the purposes of Section 2(1) (d) of the Consumer Protection Act, 1986, obligatory functions under the DMC Act, are to be taken as services and house tax as agreed consideration. 15. In the result, it is held that the matter before the State Commission in Complaint No.100 of 2013 is not a consumer dispute. Therefore, the impugned order passed by the Delhi State Consumer Disputes Redressal Commission in Consumer Complaint No.100 of 2013 passed on 01.3.2013, is set aside and the complaint is dismissed. |
