Can municipality be dragged to court (consumer court) for deficiency in service

In Kerala high court, in the case of Thrissur Municipal Corporation vs Ummer Koya Haji on 1 August, 2006, it was held that :

if the statutory authority performs any ordinary commercial activity, services in respect of such commercial activity may relate to service in respect of which certainly the statutory authority is amenable to the jurisdiction of the authorities under the Consumer Protection Act. Going by that decision, simply because the Municipal Corporation is a statutory authority, all of its functions cannot be taken out of the purview of the Consumer Protection Act. 

Under the Kerala Municipality Act, the Corporation does have two kinds of functions, one, a sovereign function and the other, a function relating to services to the public. One of the sovereign functions relates to collection of tax. The functions relating to services are activities such as providing of amenities to the public. While providing amenities to the public would constitute services, the function of levy of collection of taxes would squarely come within the sovereign functions of the statutory authority, which would be outside the purview of the Consumer Protection Act

 a distinction shall have to be made between the sovereign acts and functions of the state vis-a-vis its commercial functions or activities. When the State is exercising its judicial functions through the agency of courts, and Judges are exercising its statutory functions. The court fee levied by the State is the fees for expenses which is in a nature of tax for services but the litigant is not aconsumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. Even if the State is not providing adequate service in relation to the fees it recovers from the litigants, it cannot amount to deficiency in service within the meaning of the Act. The complainant can challenge in the appropriate court the rate of court fee if adequate number of Judges are not provided on the ground of inadequacy of services in relation to the fees charged by the State, but in no case it amounts to a deficiency in services under the provisions of Consumer Protection Act.

While local bodies do certain acts as services rendered for payment of fee in respect of which there is quid pro quo coming within the purview of the Consumer Protection Act, in respect of the sovereign functions exercised by the local bodies by way of collection of taxes like property tax, profession tax and other taxes, it cannot be said that the local bodies are rendering any services, in respect of which the tax payer can maintain a complaint under the Consumer Protection Act. Therefore, in respect of payment of property tax, no complaint would lie before a Consumer Disputes Redressal Forum or Commission. Further, as held in the case of Thiruvalluvar Transport Corporation (supra), since the Kerala Municipality Act provides for a hierarchy of appellate and revisional authorities in respect of redressal of grievances of tax payers, the Kerala Municipality Act being a special law, the same would prevail over the general law of Consumer Protection Act and as such the Forum ought to have relegated the complainants to the remedies available under the Act itself instead of taking upon itself a task of deciding the complaint.

In view of my decision that in respect of levy and demand of property tax under the Kerala Municipality Act, no complaint under the Consumer Protection Act would lie, it is not necessary to decide the question as to whether the limitation prescribed under Section 539 of the Kerala Municipality Act would apply to collection of property tax.

Thus it is clear that the statutory bodies do not come under the purview of consumer protection act

Thank you very much. So, what is the remedy for common man if there is deficiency in service by the Municipality, viz. sweeping the streets, collection of garbage etc.

You can give a complaint to the municipal commissioner about this and ask him to take action immediately call the press and inform about the prevailing situation;

you can file a civil suit against the municipality  or even a PIL beore high court.

Yes. I have written to the Muncipal Commissioner too who does not bother to even acknowledge the mail. I am aware that PIL can be filed in Bombay High Court. Is there any format for filing the PIL? Is it necessary to quote the Article No: of the Constitution in the PIL

Regards

Shankar

Hi Sankaranarayan, I'm Adv. Niharika. 

Here is how you can file a PIL (Public Interest Litigation) in the High Court or the Supreme Court under Art. 226 and Art. 32 respectively of the Constitution of India.

A PIL can be filed on either of the grounds:

• on human rights violation
• violation of fundamental rights of a group of people. • failure of governmental authorities
• exploitation of poor and weaker sections.

your case is being covered by multiple above mentioned grounds.
PIL can be filed in the Supreme Court and High Courts in the following ways:

Sending registered letter petitions with relevant facts and documents to the Chief Justice of the concerned Court.

• By directly filing the PIL in the court through the Free Legal Service Committee of the court.

• Directly filing the case with the help of any lawyer.

• Filing the case through NGOs or PIL firms.

Here is an article which will in depth explain you the process of filing a PIL.

https://www.lawyersclubindia.com/Forum/how-to-file-a-public-interest-litigation-pil--1966.asp

As regards to your original query, you can definitely bring the corporation to the doors of the Court.

These are the steps that you may consider.
STEP 1: Intimation via Notice:

A notice to be sent by the aggrieved party to the service provider who provided the goods or the services. The notice is also an attempt to settle the complaint without approaching the Forum i.e. if the service provider is willing to offer compensation or any other remedy.

STEP 2: Get the Consumer Complaint Drafted:

If the service provider is not willing to offer compensation or any other remedy, the next step is to file a formal complaint under the Consumer Protection Act, 1986. The filing of the Complaint does not necessarily require a lawyer. The complaint can be filed directly by the aggrieved person. The following details must be specified in the complaint.

STEP 3: Attach Relevant Documents:

Copies of material evidence and relevant documents that support your case in Consumer Court are important. These documents include:

◦ A copy of the bill, receipt of delivery, packaging of a product, a record of online booking of the goods bought

• Warranty/Guarantee certificates

• A copy of the written complaint and notice sent to the manufacturer/seller STEP 4: Appropriate Forum:

STEP 5: Pay Requisite Court Fees:

A prescribed fee is required to be paid along with the complaint filed depending on the forum. The court fee depends upon the value of goods bought and the amount of compensation sought.

STEP 6: Submit an Affidavit:

The person who wants to file a case in the Consumer Court is also required to submit an affidavit in the court. The affidavit must state that the facts presented and statements made by the consumer are true to their knowledge.

Also, the consumer complaint should be filed within two years from the date on which the cause of action or deficiency in service or defect in goods arises.

Another alternative remedy can be filing an application before the Permanent Lok Adaalat of your city/district. Municipal Corporations are Public Utility Services. Under S. 22(c) of the Legal Services Authority Act, 1987, PLA have jurisdiction to try cases concerning Public Utility Services. Furthermore, I’d like to state that applications before PLA are at the pre litigation stage and hiring an advocate is also not required to file an application before the said forum. You can directly bring the law in motion without any involvement of an advocate or pleader.

 Hope this information helps. For further query, you can reach me at niharikalohan@yahoo.com

Thank you Adv. Niharika. Your detailed reply is appreciated.You have mentioned about Free Legal Aid service in High Court. I think it is not available to all but to persons whose income is below some amount. Can you please clarify?

Also, please let me know if copies of all my letters to Muncipality and further reminders along with my letter to the Chief Justice of Bombay High Court will requesting him to consider this as PIL would suffice. Is any court fees or expenses involved. Also please let me know if Free Legal Aid will take up this

Regareds

Shankar

Hi Sankaranarayana, you can reach me at niharikalohan@yahoo.com and we can then schedule a consultation for the same.
 

Thank you very much. I will be in touch.

Regards

Shankar

You also have option to give compliant to the SDM under section 133 of CrPC for abatement of nuisance. Operation of this section is alreayd upheld by the Supreme Court

Thank you Advocate Sudhir Kumar

Shankar