KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL 122/04 JUDGMENT DATED 20.02.08
PRESENT;
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
1. The Superintendent Engineer, Siruvani Project Circle, Palakkad.
2. The Executive Engineer, Irrigation Division, Malampuzha.
3. The Asst.Executive Engineer, Right bank Main canal, Head Workers Sub Division, : APPELLANTS Irrigation Division Office Building, Malampuzha.
4. The Assistant Engineer, Irrigation Section Office, (Malampuzha Right Bank Canal) Mundur.
5.The District collector, Palakkad. (By Adv.V.Suresh Kumar) Vs
The President, Ambalapadam Patasekhara Nellulpadaka- : RESPONDENT Samithi, Reg.No.383, Lakkidi-679 301 Palakkad. JUDGMENT JUSTICE SRI.K.R.UDAYABHANU, PRESIDENT The appellants are the opposite parties in OP.494/99 in the file of CDRF, Palakkad. The appellants are under orders to pay a sum of Rs.1,81,194/- to the complainant on the proportionate basis depending upon the extent of cultivating land in their possession that comes under the impugned irrigation project and also cost of Rs.1000/-. The complainant is the President of Ambalapadam Patasekhara Nellulpadaka Samithi, Lakkidi (herein after to be mentioned as Samithi) representing the farmers who are the members of the Samithi. It is the case that they are depending on the water from the Malappuram dam passing through its right bank canal. It is mentioned that they are remitting the water cess regularly. The second crop cultivation totally depends on the water from the right bank canal. According to them in the particular year the opposite parties failed to supply canal water in the fields of the farmers resulting in the destruction of the crop. The canal water used to be supplied in the second week of November. The water was not supplied even in the first week of December. Telegram was sent to the first opposite party/the Superintending Engineer. The other respondents were also informed. It is alleged that due to the deliberate non supply of water by the opposite parties the farmers sustained huge losses. A sum of Rs.2,45,845/- is claimed as compensation and Rs.1,31,544/- towards mental agony. 2. The opposite parties have filed a joint version contending that the complaint is not maintainable in law and that the complainant is not a consumer as defined in the Act. It is alleged that the farmers themselves are destroying damages to the canals by creating canal sluices and damaging canals bunds. The complaints in this regard were filed before the Police Station. It is further alleged that only a part of Ambalappadam Padasekharam comes under the Ayacut of Palappuram Branch Canal in its second reach and is fed through sluices at chainage 8/525 km and 9/260 km. The Palappuram Branch Canal is 12.3 km in length and this is an extension done in 1983, to the existing canal, in order to irrigagate an additional Ayacut of 931 hectares. So in order to irrigate the maximum area, all the sluices of first reach (which is the 1st 6 km) are required to be closed, then only water could be supplied to the 2nd reach of 6.3 km. Here the farmers are tampering the sluices and bunds and the opposite parties are not in a position to supply water as per the usual routine. It is mentioned that water is distributed as per the decision taken by the Project Advisery Committee (PAC). This is a representative Committee of the farmers and officers. The PAC held on 25.10.99 decided to release water on 10.11.99. Accordingly water was released from the dam on the 10th of November 1999. But at chainage 16/400 km of the right bank canal a serious breach occurred. The breached portion was repaired by 19.11.99 as immediate action taken and water was released on the same day. As there was clamour over the farmers from all branches the farmers of the upstream branches were given water first. Efforts were made to provide water to each of the upstream branches by day and night canal watching. Subsequently water to the Palappuram branches were provided from 3.12.99 onwards. It is done by closing the sluices of the first reach and other branch canals. When it was done the farmers of the upstream areas damaged sluices breaking sluices lock at night time. The pleas made by the opposite parties fell on deaf ear. The matter was intimated at Mankara Police Station and Ottappalam Police Station. Police protection to the canals and sluices were requested. Night patroling was arranged by the department. Despite the same, on 13.12.99 the farmers cut open the canal bund near the head sluices of Puthur Minor distributory which is the first reach of Palappuram canal. It effected the water distribution in the down stream, second reach. By 14.12.99 on account of the demands all the farmers of upstream branches the sluices of which were the water was closed for nearly 12 days, the same had to be opened. By this time water reached 8/400 km Palappuram branch canal. No further advancement of water was possible. Palappuram canal was opened again on 20.12.99 by closing the sluices of first reach sluices at chainage 8/525 km. The given water during 22.12.99 to 30.12.99 and sluices chainage 9/260 km was given water during 23.12.99 to 31.12.99. It is also alleged that the farmers have not made use of subsidies available from government for formation of field canals to supply water. It is also contended that only a very small present of the total area under Ambalapadam Padasekharam was dried and that 99% were saved. It is also alleged that these farmers started cultivation very late. It is contended that there was no deficiency in service. 3. The evidence adduced consisted of testimony of PWs 1 and 2; DW1.Exts.D1 to D5. 4. The main contention raised by the counsel for the appellants is that the complaint is not maintainable and that the complainant and other farmers represented by him are not the consumers. The above point although raised before the Forum was not considered by it. 5. It is the contention of the appellants that water cess could be treated as consideration for services as the water cess is a tax. Hence on the basis that tax is collected the complainants are not entitled to be treated as consumers vide section 2 (1) (d) of the CP Act. It is pointed out that the preamble of the Act makes it clear that payment of water cess is compulsory whether the water is actually taken for cultivation in respect of lands irrigation of which is permitted under the Malabar Irrigation Works (Construction and Levy of Cess) Act 1947. It is further point out that section 19 of the Act bars of suits and other proceedings etc with respect to acts done under the Act. The counsel has also relied on the decision in Kumaon Jel Sansthan Vs Kamla Mer, II 2005 CPJ 469 wherein it is specifically held that availing of water supply on payments of tax is not hiring of service as tax given is not a consideration. The decision relied on by the Padasekharam Samithi. ie., Lucknow Development Authority Vs MK Gupta 1994 SC 300, we find, is specifically with respect to the dereliction on the part of the Lucknow Development Authority in implementing a housing scheme after receiving amounts from the proposed allottees. The facts are not in pari materia. The farmers have only paid water cess which is in the nature of tax and hence they cannot be held to be consumers. Hence we find that the Forum has no jurisdiction to decide the matter. Decision on the rest of the points does not arise for consideration. 6. In the result the order of the Forum to give compensation is herewith set aside. The appeal is allowed. JUSTICE SRI.K.R.UDAYABHANU, PRESIDENT
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