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Judgment
PETITIONER /Opposite Parties has filed the present revision petition under Section 21 (b) of the Consumer Protection Act, 1986 (for short, ''Act '') against impugned order dated 10.10.2011, passed in First Appeal No.632 of 2009 by Haryana State Consumer Disputes Redressal Commission, Panchkula (short, ''''State Commission '''').
BRIEF facts are that Respondent/Complainant is a Registered Association. Shri Jai Karan has been authorized to file the complaint being its President. It is stated that Mela Ground Sector Area, Hissar was carved out in the year 1991 -92 initially and it was re -allotted in the year 2000 by the Petitioners. The total plots in the above sector are approximately 560 and only 60/62 plots have been constructed so far after allotment and the construction is very slow due to non -availability of the basic amenities of life in the sector which is incumbent on the petitioners to provide before offer of possession. It is stated that supply of canal water for the purpose of drinking and construction of houses and its maintenance has not been provided, despite repeated request. The underground water (sub -soil) which has been provided so far is not bacteriologically fit for human consumption. The Saline water is being supplied which is also in scarcity and it has caused adverse effect on the health of inhabitants as well as on the construction of houses raised with huge expenditure and has also damaged the underground water pipe line of the houses. Further, there is no effective system for disposal of water and waste. It is alleged that waste water has been accumulated in the sector in the drain as well as in the open which has caused damage to the houses and has caused adverse effect on the health of inhabitants of the sector. The accumulation of waste water due to non -functioning of sewerage system has resulted into epidemic break and breeding of mosquitoes. It is further averred that there is no facility of community centre in the sector. However, this facility has been provided in every sector of HUDA in Hisar. There is also no maintenance of park and green belt. It is further submitted that respondent/plot holders have been requesting continuously to the petitioners to provide the above amenities which are necessary but petitioners did not pay any heed So, forced by these circumstances, respondent has filed the complaint complaining gross deficiency in service and negligence on the part of the petitioners with the prayer that petitioners be directed to provide basic amenities of life viz. canal water supply, disposal/sewerage system, maintenance and construction of road, maintenance of park and green belt, construction of community centre and further restraining the petitioners from charging the interest on the amount of cost of plots and further to pay the interest on the amount deposited by the plots holders towards cost of plots of their respective plots @ 18% per annum and to pay the compensation on account of damages of houses constructed on their respective plots due to non -availability of basic and necessary amenities to the plot holder.
PETITIONERS in their written statement took certain preliminary objections. On merits, it is stated that the completion of the development work in the area i.e. road, sewerage, electrification and water supply, the offer of possession was offered to the allottees of MGA, Hisar. Basic amenities of roads, water supply, sewerage and electrification etc. required to be provided by HUDA in sector MGA, Hisar stands already completed before the offer of possession. Thereafter, petitioners have taken every action and provided the basic amenities to this sector. It is further stated that a well laid water supply system are provided in the area for the purpose of supply of water for drinking and construction purpose etc. and was connected with Two Nos. of tubewells installed in the sector before the offer of possession was made to the allottees. The water supply in the sector is being regularly provided two times in a day in the morning and evening and the water being supplied has got tested from the water testing laboratory. Further, it is nowhere incumbent upon the petitioners to provide the canal water supply specially and the underground water supply in the area is fit for human consumption and in every respect for washing of clothes, bathing, construction of houses and for the plantation etc. It is further submitted that the internal sewerage system provided in that sector has been duly connected with the main sewerage line laid along Hisar, Raipur Road and which ultimately join the sewerage pumping station of the Hisar Town constructed and fully functioning behind the main bus stand and the waste water never accumulated in this sector, so no question arises that this water damages the houses and has caused adverse effect on the health of the inhabitants of the sector. Even otherwise, the respondent never made any complaint regarding the above fact.
IT is further stated that the roads of the sector are well laid and maintained and have been constructed with standard metalled width of 12 feet and petitioners are regularly maintaining the roads as per the requirement. Further, as per approved layout plan of this sector, there is no provision of community centre and petitioners are maintaining the park and green belt in this sector. In the end, it is stated that plots holders are not entitled for any interest on the amount deposited by them and they are not entitled for any damages and prayed for the dismissal of the complaint. District Consumer Disputes Redressal Forum, Hisar (for short, ''''District Forum '''') vide order dated 20.3.2009, passed the following directions ; ''''We direct the respondents to give the regular supply of the canal water within one year from the date of order. However, it is made clear here that if the respondents fail to give the regular supply of the canal water after one year then they will not be entitled to charge extension fees from the residents of the sector. As far as other relief with regard to conversion of the name is concerned, it is the administrative job, so court should not interfere in such matters. Other relief claimed is Community Centre. Though, respondents have submitted that there is no provision for the Community Centre in the Layout Plan for this Sector but keeping in view the interest of the inhabitants of the sector, the Administration should take the sympathetic view with regard to this grievance. The complaint is allowed in terms of above observations. However, the respondents are hereby directed to pay a sum of Rs.5,500/ - (Rupees five thousand five hundred only) to the complainant as cost of litigation within a period of one month. Compliance of the order be made within the period as directed above. ''''
AGGRIEVED by order of the District Forum, Petitioners filed an appeal before the State Commission which dismissed the same, vide impugned order.
HENCE , this revision. We have heard the learned counsel for the petitioners and gone through the record.
THE main ground taken in this revision petition is, that both the foras below gravely erred in law in not taking into consideration the fact that the disputes raised by the respondent is manifestly outside the purview of the Act. Further, respondent is not a consumer under the Act and as such proceedings initiated by respondent are nonest and null and void abinitio.
DISTRICT Forum in its order held ; ''''We have given our anxious thoughts to the facts and circumstances of the case and considered the pleadings, documents, arguments and law cited by the parties and are of the considered view that though the respondents have provided the water in the MGA sector and it has also been proved that water is potable and further from the perusal of various reports, it has also been revealed that this water is not fit for ornamental plants, crop and construction purposes. Further, it has been stated by the SDO of the respondent that water in this sector is being supplied two times a day through tractor from canal and process for regular supply from the canal is in progress and the canal water will be supplied regularly after one year. ''''
The State Commission while dismissing the appeal observed ; ''''Having considered the rival contentions on behalf of the parties and perusing the case file, we hardly find any ground to interfere with the well -reasoned order passed by the District Consumer Forum. Annexure C -3 is the report of the Haryana Agricultural University, Hisar, wherein it has been mentioned that water is slightly salty and this water cannot be used for ornamental plants, grass, vegetables and pulse type crop. Annexure -C -5 issued by District Health Office, Hisar shows that on 31.3.2004 water sample were taken from House No.377, Mela Ground Sector and HUDA tubewell, Mela Ground, Hisar and the same were sent to State Bacteriologist, Haryana Government Public Health Laboratory, Karnal of Bacteriological Examination vide Karnal Laboratory No.KNL/2004/416 dated 5.4.2004 whereby the water of House No.377 Mela Ground Hisar and HUDA tubewell, Mela Ground Hisar were found unfit for human consumption. In the same manner, the report dated 23.2.2007, Annexure C -8 issued by H.A.U. Hisar shows that the water cannot be used for ornamental plants, crops, Annexure C -10 the report dated 15.3.2007 proved that the water colour sulphates etc. were not as per the specification. The report of the Local Commissioner is Annexure C -11 proved that there was no canal water for drinking in the area. Thus, from the evidence brought on record it has been proved beyond doubts that the water was not fit for consumption. We are further of the view that a period of one year was granted to the appellants to make arrangement for regular supply of the canal water but till date it has not been made available, rather, suggestion has been made by the appellants that the Government of Haryana may be approached for supply of the canal water. In other words no suitable steps have been taken by the appellants in respect of the direction given by the District Consumer Forum. Under the circumstances explained above, there is nothing on the record to differ with the view taken by the District Consumer Forum while disposing of the complaint. In view of the above finding no merit in the instant appeal, it is dismissed. ''''
REGARDING the issue as to whether members of respondent ''s association are consumer or not, it is pertinent to note that petitioners in their written statement have admitted that they offered the possession of plots to the allottees of MGA, Hisar after completion of the development in the area. Therefore, under these circumstances petitioners are the service provider and allottees of the plots are definitely consumers, as per provisions of the Act.
NOW , it is to be seen as to whether there is any deficiency on the part of the petitioners or not. Main grievance of respondent is, that the petitioners are supplying drinking water which is not fit for human consumption. Both the fora below, having relied upon the reports Annexures C3, C5 and C10 and have categorically held that the drinking water being supplied by the petitioners is not fit for human consumption. Moreover, on behalf of the petitioners there is no rebuttal to the above report.
IN the present case, Shri P.C. Vatia, SDO, Division No.1, HUDA, Hisar had made a statement before the District Forum states ; ''''that in Sector MGA, Hisar canal water is being supplied through tractor. In spite of this fact to regular the supply of the water, the HUDA has constructed the Water Storage Tank in Sector 1,4, 3 and 5 Rising Main has been installed from Sector 1, 4 to Sector MGA and further Boosting Station has been made up in the MGA Sector and the work of Pump Set and Clearing Water Tank is under progress and in the end submitted that the Canal Water supply will be regularized, within one year. ''''
THUS , it is apparent from the record that petitioners are back tracking from the statement made by their own responsible official. The attitude and conduct of the petitioners is most deplorable as they want that their allottee should go on consuming the water which is unfit for human consumption. Thus, petitioners are playing with health and lives of their own citizen. The District Forum, as early as in the year 2009, directed the petitioners to give the regular supply of the canal water within one year from the date of order. Petitioners instead of complying with the above directions choose to file an appeal before the State Commission, where it could not succeed. Even after getting two adverse findings, the petitioners refuse to supply water fit for human consumption to its allottee but preferred to file present revision before this Commission.
IT is well settled that under Section 21 (b) of the Act, scope of revisional jurisdiction is very limited. Under Section 21 of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
HON ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ; ''''Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora. ''''
It is well -settled that every litigation has to come to an end ultimately. It is not that every order passed by the judicial foras are to be challenged even when the same are based on sound reasonings. Here, both the fora below have giving a finding of fact that petitioners are supplying water which is unfit for human consumption. We find no reason to disagree with them.
THIS is a known fact that Courts across the country are saddled with large number of cases. Public Authorities indulgences further burden them. Time and again, Courts have been expressing their displeasure at the Government/Public Authorities compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Authorities not only when it pursue cases which can be avoided but also when it forces the public to do so.
PUBLIC Authorities spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public Authorities are possibly an apt example of being penny wise, pound -foolish. Rise in frivolous litigation is also due to the fact that Public Authorities though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court. The Apex Court in Bikaner Urban Improvement Trust Vs. Mohal Lal 2010 CTJ 121 (Supreme Court) (CP) has made significant observations which have material bearing, namely, 4. ''''It is a matter of concern that such frivolous and unjust litigation by Governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to the corrected. 5. This Court has repeatedly expressed the view that the Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf. 5.1 In Dilbagh Rai Jarry V. Union of India, 1973 (3) SCC 554, where this Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court.): ''''The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State ''s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak. Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations, which move private parties to fight in Court. The lay -out on litigation costs and execution time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957. '''' 5.2 In Madras Port Trust vs. Hymanshu International by its Proprietor V. Venkatadri (Dead) by L.R.s (1979) 4 SCC, 176, held: ''''2. It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable. '''' 5.3 In a three -Judge Bench judgment of Bhag Singh and Ors. v. Union Territory of Chandigarh through LAC, Chandigarh, (1985) 3 SCC 737. ''''3. The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen. '''' 6. Unwarranted litigation by Governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are: (i) All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest Court of the land. (ii) If taking a decision on an issued could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secure a decision. The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers -in -charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision -making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision making to Courts and Tribunals. The Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed against the Government and for filing appeals and revisions against adverse decisions, thereby, eliminating unnecessary litigation. But, it is not sufficient if the Central Government alone undertakes such an exercise. The State Governments and the statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigation. Vexatious and unnecessary litigation have been clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide easy and speedy access to justice to bonafide and needy litigants. 7. In this case, what is granted by the State Commission is the minimum relief in the facts and circumstances, that is to direct allotment of an alternative plot with a nominal compensation of Rs.5,000/ - . But instead of remedying the wrong, by complying with the decision of the Consumer Fora, the Improvement Trust is trying to brazen out its illegal act by contending that the allottee should have protested when it illegally laid the road in his plot. It has persisted with its unreasonable and unjust stand by indulging in unnecessary litigation by approaching the National Commission and then this Court. The Trust should sensitize its officers to serve the public rather than justify their dictatorial acts. It should avoid such an unnecessary litigation. ''''
FURTHER , Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors. (Civil appeal Nos.4912 -4913 of 2011 decided on 4.7.2011 has laid down the following guidelines while imposing costs ; ''''54. While imposing the costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc. 55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellant in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts the appellants have also wasted judicial time of the various courts for the last 40 years. 56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well -reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/ -. We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation. ''''
RECENTLY , Supreme Court in an appeal filed by Chennai Port Trust against an order of the Madras High Court observed ; ''''For decades, courts across the country witness appeals on frivolous grounds, resulting in wastage of public money and consuming valuable time of the Courts. This happens because officers involved in these frivolous appeals are not personally responsible and don ''t pay from their pockets.
The officials of the petitioner ''s Authority in the present case are bent upon not to provide the water which is fit for human consumption to the allottees of the respondent and have acted in a very shameless manner.
UNDER these circumstances, we have no option but to dismiss the present revision petition. Further, it is a fit case where punitive damages under section 14 of the Act should be imposed upon the petitioners.
ACCORDINGLY , we dismiss the present revision petition and impose punitive damages of Rs.5 lakhs (Rupees five lakhs only) on the petitioners. Out of Rs.5 lakhs, Rs.2.5 lakhs (Rupees two lakhs and fifty thousand only) to be paid to the Respondent - M.G.A. Welfare Association, Hisar by way of demand draft in their name. The balance of damages amount of Rs.2.5 lakhs (Rupees two lakhs and fifty thousand only) be deposited by way of demand draft in the name of ''''Consumer Legal Aid Account '''' of this Commission, within six weeks. In case, petitioners fail to deposit the aforesaid damages within the prescribed period, then they shall also be liable to pay interest @ 9% p.a., till realization. Further, petitioners shall recover the damages amount from its delinquent officials who had been pursuing this meritless litigation with the sole aim of wasting of the public ex -chequer. An affidavit giving details of the officials from whose salaries the damages have been recovered be also filed, within six weeks.
THE demand draft of Rs.2.5 lakhs in favour of the respondent shall be paid to it only, after expiry of period of appeal/revision, preferred, if any.
LIST on 10.1.2014 for compliance.