NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION
ORIGINAL
PETITION NOs.125 & 126 OF 1994
Consumer Education & Research Society & Ors. …. Complainants
V/s.
Ahmedabad Municipal Corporation & Ors. …. Opp. Parties
BEFORE :
HON’BLE
MR. JUSTICE M.B. SHAH, PRESIDENT
HON’BLE
MRS. RAJYALAKSHMI RAO, MEMBER
For the Complainant : Mr.
Vikas Mehta, Advocate
For the Opp. Party : Mr.
H.S. Parihar, Advocate for AMC
Ms.
Hemantika Wahi & Ms.Sadhana
Sandhu, Advocates
30.04.2008
JUSTICE M.B. SHAH,
J., PRESIDENT:
Law on the subject on supply of and
getting of pure
drinking water:
(a) Basic need:
The
The Court also held : (para 248)
“Water is the basic need for the
survival of human beings and is part of the right to life and human rights as
enshrined in Article 21 of the Constitution of India and can be served only by
providing source of water where there is none. The resolution of UNO in 1977 to
which
“All people, whatever their stage of development and their social and economic conditions, have the right to have access to drinking water in quantum and of a quality equal to their basic needs.”
(b) Fundamental right:
The right to
access to drinking water is a fundamental to life and there is a duty on the State under Art.21 to
provide clean drinking water to its citizens. [re. (2001) 2 SCC 62, pr.3].
(c ) Right under the Consumer Protection Act, 1986:
As per the Statement of Objects and Reasons of the Consumer Protection Act and also Objects of the Consumer Protection Councils, contemplated under the Act, a consumer has the right to be informed about the quality, quantity, purity of goods including water or services which are rendered by the Statutory Authorities or in this particular case by the Ahmedabad Municipal Corporation (AMC) so that it is not hazardous to life or health.
Facts:
On the basis of the order
passed by the Apex Court in Civil Appeal No.6740-6741 of 2001, dated 20th September, 2001
directing this Commission to decide the complaint filed by the Consumer
Education & Research Society on merits,
various directions were issued from time to time. At the outset, we would say that the Ahmedabad Municipal
Corporation and the State of
It is to be stated that those
appeals were filed against the order passed by this Commission holding that
Consumer Fora had no jurisdiction to decide such this
dispute.
The
complaint is filed by the Consumer Education & Research Society, a voluntary
consumer association and the legal heirs of deceased victims of jaundice caused
by Hepatitis virus against the Ahmedabad Municipal
Corporation (“AMC”) – Opposite Party No.1 and
the State Government – Opposite
Party No.2.
It
is contended that the cause of action for filing the Complaints arose on
account of the jaundice epidemic which occurred in November, 1993 in Ahmedabad which resulted in about 100 deaths and affected
over 1200 persons. In fact, according to the State Government, the epidemic
affected 1550 persons. The
Complainants’ case is
that the jaundice epidemic occurred because of the contaminated
supply of drinking water by the AMC.
AMC is, inter alia, responsible for supply of water,
repair and maintenance of pipelines and drainage facilities, etc. Furthermore,
epidemics of water borne diseases were a regular occurrence in Ahmedabad since 15 years prior to 1993.
In
1988, there was an epidemic of cholera and gastro-enteritis because of
contaminated water supply and the Complainant No. 1 filed a Complaint being
O.P. No. 29/1989 before this Commission. This Commission vide Order dated 6.4.1990
held that from the material on record it was not possible to conclude that the
epidemic was because of contaminated water supplied by AMC. But the Commission
recorded the assurance given by the Advocate General and passed order dated 6.4.1990 as
under :-
“However, since it is of the utmost importance that every step would be
taken to ensure to the maximum extent possible that a recurrence of such
epidemics does not take place in future in the city of Ahmedabad
during the monsoon season, we suggested to the learned Advocate General of
Gujarat who appeared on behalf of the Respondents that he should file before
this Commission a detailed statement setting out the various measures that are
being already taken by the Municipal Corporation as well as the further steps
which are proposed to be taken in future to bring about all round improvement
of health, hygiene and sanitation in the Municipal Corporation and for
elimination of chances of contamination of water supply. Accordingly, a
detailed statement has been filed by the learned Advocate General on behalf of
the Opposite Party No. 1- the Ahmedabad Municipal
Corporation… We record the assurance given to us by the learned Advocate
General on behalf of the Corporation that the existing measures of sanitation
and maintenance of health and hygiene set out therein will be continued
uninterrupted in future also and that the further programme
of action set out therein for bringing about alround
(sic all round) general improvement and modernization of the civic services
related to health, sanitation, etc. will be duly and faithfully implemented. In
the event of there being failure on the part of the Corporation to duly carry
out the said assurance it will be open to the first Petitioner society or any
other interested Consumer Association to bring the matter before us for
appropriate further orders.”
This
Commission further gave liberty to the Complainant No.1 to approach the
Commission in future if any cause of action arose. It is in this background
that when an epidemic occurred in November, 1993 the Complainants approached
this Commission by way of
filing the above stated
two Complaints.
The
Complainants have relied upon several newspaper cuttings of 1993-1994 which reveal
that it was the failure on the part of AMC to maintain drainage lines and that was the
cause of the jaundice epidemic of 1993. The Complainants also produced reports
of the Survey conducted by Complainant No. 1 i.e. water samples tested (as per
World Health Organization guidelines) at Gujarat Jalseva
Training Institute which is a body under the Gujarat Water Supply &
Sewerage Board. Out of the 42 samples tested, 14 (constituting 33%) were found
to be contaminated. Shockingly, the contamination included human/ animal
excreta. Similarly, the Microbiology Department,
Written Version of
AMC:
The AMC filed a
Reply denying all averments raised in the Complaint
and described the various water sources which feed water to the city of
Proceedings before this Commission
When
the matter was listed before this Commission on 25.2.1999, the Commission
dismissed the Complaints observing that the same were not consumer disputes but
same were in nature of public interest litigation. The Complainants filed an
Appeal before the Hon'ble Supreme Court against this
Order. The Supreme Court vide Order dated 20.9.2001 set aside the Order dated
25.2.1999 and remanded the matter back to this Commission for hearing on merits.
Before
this Commission, the Complainants produced various newspaper cuttings for the period
April, 1997 till 2000 which revealed the various epidemic episodes that had
taken place in Ahmedabad because of contaminated
water supply.
Subsequently,
the parties led their evidence by way of affidavits. The Complainants proved
the averments in their Complaint and also made out a case for the quantum of
damages suffered by them on account of death in their families. In the meanwhile, pursuant to direction of
this Commission, the State Government also filed an affidavit in reply dated
28.7.2004 wherein it was inter alia mentioned the
action taken by them pursuant to jaundice outbreak of 1993.
In
September, 2005, the Complainants filed M.A. No. 353 of 2005 wherein it was
averred that even in early 2005, there was an outbreak of jaundice epidemic in Ahmedabad due to contaminated supply of water by AMC and a
large number of persons had been affected.
The Complainants relied upon a newspaper report dated 8.4.2005 showing
that the official number of cases had gone up to 500 and AMC had to call experts
to conduct epidemiological investigations and suggest remedies. The
Complainants also pointed out that in the affidavit in reply dated 28.7.2004
filed by the State Government the Government had mentioned that after the
outbreak of 1993, they had got surveys conducted and from which it was inter alia concluded by them that (i)
cases of viral hepatitis were due to contamination of water (ii) virus was
resistant to action of chlorination because of which hepatitis cases had
increased and (iii) corrective measures of leakages of pipelines were done by
AMC. The Complainants sought production of various documents relating to
conclusions reached by State Government.
Order dated
28.10.2005:
Considering
the above background, this Commission vide Order dated 28.10.2005 directed AMC
to file necessary affidavit stating the steps taken by them for verifying
whether contaminated water was supplied to the city of Ahmedabad
or not and also to produce on record the reports of the samples taken and
disclosing the relevant rules for taking water samples and whether such rules
were complied with or not.
In compliance with the same, AMC filed an
Additional Affidavit dated 4.1.2006 wherein it was mentioned that there were
following types of water sources in Ahmedabad i.e. (i) Surface water (River water) (ii) Infiltration and French
wells, and (iii) Tube well stations. AMC also mentioned that they were
conducting tests on water samples collected from the sources, distribution
network and consumer end points. The procedure for collecting water samples was
the one laid down in guidelines of World Health Organization (“WHO”). AMC
produced the annual reports for the years 1992, 1993 and 1994 for the water
samples collected from the source.
On
20.7.2006, the Complainants filed an Affidavit in reply to the additional
affidavit wherein it was mentioned that after the Additional Affidavit dated
4.1.2006 there had been several incidents of jaundice deaths in Ahmedabad. Further, the residents of the walled city area
of the Central Zone had made complaints that the water being supplied was
yellowish in colour and the Deputy Civil Engineer, Mr. Jainik A. Shah had
been quoted in newspaper as saying that the old city has very old water
connection lines which caused contamination. This Commission took into account
this affidavit and also observed that water tanks in the city of
Order dated 24.7.2006:
Hence, the Commission vide Order dated 24.7.2006 recorded as under :-
“Heard the learned counsel for the parties. Learned counsel appearing for the complainant has
filed an affidavit wherein it has been specifically mentioned that the water
which is supplied by the Municipal Corporation contains yellow colour and is muddy. In the previous affidavit complainant
has also filed evidence by way of affidavit wherein it is pointed out that
water contains bacteria caused by excreta of animal of human.
In this view of the matter, the State
Government is directed to file necessary affidavit with regard to the purity of
water supplied to the consumers by the Municipal Corporation. Deputy
Commissioner, Municipal Corporation would also file an affidavit stating that higher
officer of the Municipal Corporation would visit the water tank and see that
the tank is properly sealed so that animals are not in a position to enter the
tank or pollute the water and also file a fortnightly testing report of the
water supplied from the source. Affidavits to be filed on
or before
Learned Counsel
appearing on behalf of the Complainant has filed further affidavit dated 22nd
April, 2008 wherein it has been pointed out that as contended by the AMC that
it has been strictly adhering to the ‘W.H.O. guidelines to drinking water
quality’ which are the international reference point for drinking water quality
regulation and standard setting. The guidelines are as under
:-
The WHO Guidelines outline a preventive management
“framework for safe drinking-water” that comprises five key components:
·
Health-based targets based on an
evaluation of health concerns.
·
System assessment to determine
whether the drinking-water supply (from source through treatment to the point
of consumption) as a whole can deliver water that meets the health-based
targets.
·
Operational monitoring of the
control measures in the drinking-water supply that are
of particular importance in securing drinking-water safety.
·
Management plans documenting the
system assessment and monitoring plans and describing actions to be taken in
normal operations and incident conditions, including upgrade and improvement,
documentation and communication; and
·
A system of independent surveillance
that verifies that the above are operating properly.
The
learned counsel for the Complainants, therefore, submits that directions
should be given to the AMC to comply with the aforesaid guidelines because it
is the say of the AMC that it was complying with the WHO guidelines.
We
accept the aforesaid contention and direct that the AMC shall comply with the said guidelines
of the W.H.O.
Further,
as stated in the affidavit dated 14.9.2006 filed by the State Government that
the AMC shall comply with the recommendations made by the National Institute of
Communicable Diseases,
In
compliance with Order dated 24.7.2006,
AMC filed Second Additional Affidavit dated 12.9.2006 wherein it was mentioned
that the Municipal Commissioner had issued Office Order No. 62 of 2006 dated
23.8.2006 for fortnightly inspection of water tanks as directed by this
Commission. Furthermore, the Dy. Municipal Commissioner of all the Zones of the city had
been directed to send inspection report along with testing report within 10
days to the City Engineer and the City Engineer would submit the same to the
Municipal Commissioner. It was affirmed therein that the Higher Officers of the
Municipal Corporation would visit the water tank and see that the same is
properly sealed so that animals are not in a position to enter the tank or
pollute the water in any manner. It was also mentioned that the testing report
of the water supplied from the source would be filed fortnightly to the
concerned Dy. Municipal Commissioner of the Zone.
The State Government also filed affidavit dated 14.9.2006 wherein it was mentioned that the Government through the Health Department was taking steps to control water borne diseases such as Cholera, Diarrhea, Gastroenteritis and Viral Hepatitis with utmost care. It was mentioned that the public authorities and local self governmental bodies had been impressed to ensure that the drinking water is properly chlorinated and the standard of purity laid down by the Gujarat Water Supply Board are maintained at optimum levels in all the seasons.
Further,
the Commissionerate of Health had been issuing
guidelines/ directives and warning to Rural and Districts developments, Urban
Development Departments, Municipal Corporations (including AMC) and various
other Nagarpalikas across the State from time to time
and a list of such circulars was also annexed. The Government affirmed that to
bring awareness amongst the public, the Government had initiated campaign for
“Clean Gujarat, Healthy Gujarat.” As a part of the campaign, the Government
provides chlorinating agents like bleaching powder, chlorine tablets and
arranges various Health Education Camps for common public. Moreover, various
measures were being taken by the Health Department such as medical assistance
through physicians, microbiologists, paediatricians
and Epidemiologists, etc. and list of various activities and assistance
rendered by the Government was annexed. The Government affirmed that the
National Institute of Communicable Diseases (NICD), Delhi had visited Ahmedabad and given several recommendations including
initiation of water quality surveillance program by AMC, water supply network
in the city should be improved by replacing old, coercive and rusted pipes by
new galvanized pipes, AMC should take up comprehensive programme
to make aware the citizens on water and environmental sanitation. The
Government affirmed that the above recommendations had been communicated to AMC
and other local bodies for their action plan.
The
Government stated that all the local bodies had been directed to carry out
regular surveys for checking sewer overflow and leakage into water supply
system and to attend the same on priority basis and that
necessary guidelines in this behalf had been issued to all concerned.
Lastly, the Government stated that they were receiving complaints from public
and attending to same and list thereof was produced.
This Commission vide Order dated 21.11.2006 directed publication of the
water testing report in local newspaper. The Corporation published the water
testing report in the local newspaper and also uploaded the same on its website
fortnightly (Kindly see para 9 of affidavit dated 27.3.2008 of AMC).
Order dated
27.4.2007
This
Commission vide Order dated 27.4.2007 recorded as under :-
“Heard
the learned counsel for the parties. Ld. Counsel appearing on behalf of the
Municipal Corporation on instructions from Shri P.
Patel, Scientist In-Charge states that as per the WHO and ISI standards water is
supplied to the city of Ahmedabad. He further states
that with regard to the old pipelines in the Central Zone, there is a scheme
for changing the same so that no polluted water could be supplied.
As against this,
the learned counsel appearing on behalf of the Complainant submits that no such
scheme is known to the public at large. He further contends that if some
information is given to the public at large, they would be in a position to
point out whether water supplied to them is as per the standard, as contended
by the Corporation. He further submits that there is no scheme with the
Corporation for giving data with regard to purity of the water supplied
to the city.
Ld. Counsel
appearing on behalf of the State Government submitted that with regard to multi-storied
buildings owned by the State Government appropriate checks are being carried
out on monthly basies with
regard to the supply of water to ensure that water tanks are properly cleaned
and sealed.
Adjourned to
(vi) The Commission thereafter vide Order dated
31.8.2007 recorded as under :-
“Ld. Counsel for the complainant
submitted that as per our last Order dated
Stand over to
Order dated
22.2.2008:
This Commission vide
Order dated 22.2.2008 recorded as under :-
“The third
additional affidavit filed by the Ahmedabad Municipal
Corporation (AMC) today, is taken on record. Ld. Counsel for AMC states that on
the basis of our Order dated 27.4.2007, more than 80% of
the water pipelines in the area of central zone have been changed as per the
scheme which was contemplated by the Corporation in the year 2005-06. It is
further stated that with great zeal, the orders passed by this Commission and
the scheme, are implemented scrupulously and strictly and, hence, the matter
may be disposed of accordingly.
As against this, ld. Counsel, Mr.
Mehta, for the complainants submitted that AMC has still not framed appropriate scheme for
changing the old pipelines in the entire city. It is their responsibility to
see that the old and rusted water pipelines all over the city are changed so
that contamination and deaths due to jaundice can be reduced. This has been
contended because the AMC took nearly 10 years in changing the pipelines after
the epidemic of jaundice.
For the aforesaid
purpose, AMC to file appropriate affidavit. Stand over to
The AMC filed Third Additional Affidavit dated
16.2.2008 wherein it was mentioned as under :-
“I say that pursuant to the Order passed by this Hon'ble Commission dated 31.8.2007 I have to state that after taking into consideration the Order dated 27.4.2007 and also the scheme for changing old pipe line in the central zones and to comply the Order & implementation of the scheme, corporation has changed rotten/ decomposed and damaged line & thereby secured utmost pure drinking water to the central zone of the city. Annexed hereto & marked as R1 are extracts of statement showing the area of central zone where the pipe line has been changed as per the scheme. It is also respectfully submitted that the frequently and intermittently the concerned department is supervising the pipeline then immediately the corporation is changing the same. The corporation is also supervising the pipeline periodically to avoid any contamination and taking the remedial steps like washout and flush out and de-silting and curing corrosion from the pipeline.”
The
higher officers of the Corporation are supervising pipelines and changing the
same, if required. They are also
supervising the pipelines periodically to avoid any contamination and also take
remedial steps like washout and flush out and de-silting and curing corrosion
from the pipelines.
In view of the aforesaid
affidavits and orders passed by this Commission nothing is required to be done
in this matter except to pass the following order:
(i) AMC to comply
with the affidavits filed
by them from time to time
before this Commission.
(ii) The officers of the Municipal Corporation
shall comply with the office order 62 dated 23rd August, 2006 for
fortnightly inspection of water tanks, as directed by this Commission on 24th
July, 2006.
(iii) The higher officer of the Municipal
Corporation would visit the water tank and see that the tank is properly sealed
so that animals are not in a position to enter the tank or pollute the water
and also file a fortnightly testing report of the water supplied from the
source.
(iv) AMC to adhere to the WHO’s guidelines
namely preventive management “framework for safe drinking water” that comprises
the following five
key components:
·
Health-based targets based on an
evaluation of health concerns.
·
System assessment to determine
whether the drinking-water supply (from source through treatment to the point
of consumption) as a whole can deliver water that meets the health-based
targets.
·
Operational monitoring of the
control measures in the drinking-water supply that are
of particular importance in securing drinking-water safety.
·
Management plans documenting the
system assessment and monitoring plans and describing actions to be taken in
normal operations and incident conditions, including upgrade and improvement,
documentation and communication; and
·
A system of independent surveillance
that verifies that the above are operating properly.
(v) With regard to each zone, periodical water
testing report shall be published in the newspapers
(v) Old
pipelines shall be periodically checked and
in case the same are rusted/damaged, they will be replaced.
State
Government would also ensure that the direction issued by
this Commission are complied with by the AMC. It is one of the
functions of the State Consumer Protection Council to see that the consumer is
informed, inter alia, about the quality, quantity and
purity of the water and services rendered by the authority including the AMC
and that is not hazardous to life or health. Hence, the State Government shall
bear minimum cost which was required to be incurred by the Complainant.
We
appreciate the work rendered by the Complainants. For this hard work undertaken by the Consumer
Education & Research Society, State Government shall pay Rs.50,000/- as costs. Such
work for the benefit of the consumer is required to be encouraged and appreciated by the
State Government.
However,
we make it clear that we are not awarding punitive damages, as contemplated
under Section 14(1) (d) of the Consumer Protection
Act.
Sd/-
…………………………………..J
(M.B. SHAH)
PRESIDENT
Sd/-
……………………………………
(RAJYALAKSHMI RAO)
MEMBER
P/21(A)
& (B)