consumer complaint for damages

vinod bansal (Querist) 27 April 2009 This query is : Resolved
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My house has badly damaged due to water drainage maintained by water supply department Haryana,now i want to file a consumer complaint for damages but problem is this ,i am not consumer of water supply department,how & under which provision i can file complaint.Is it mandatory to serve a 2 month prior legal notice to Govt..Thanks

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A V Vishal (Expert) 28 April 2009
Dear Bansal,
You may not be able to file a consumer case but proceed under the Law of Torts for civil damages.

The court has reasoned, that strict liability arises when the department is negligent in its actions, the following case law illustrates the same http://delhicourts.nic.in/octob/DELHI%20JAL%20BOARD%20VS.%20RAJ%20JKUMAR.htm

However, it depends on the facts of the case.

The question of tortuous liability of State has raised many interesting debates in juridical arena. In India, there is no legislation, which governs the liability of the State for the torts committed by its servants. It is article 300 of the Constitution of India, 1950, which enumerates the liability of the Union or State in tortious act of the Government.

The Article 300 of the Constitution originated from Section 176 of the Government of India Act, 1935. This could be traced back from the Section 32 of the Government of India Act, 1915, the genesis of which can be found in section 65 of the Government of India Act, 1858. Section 65 of the Government of India Act, 1858 provided "All persons and bodies politic shall and may have and take the same suits, for India as they could have done against the said Company."

It will thus be seen that by the chain of enactment beginning with the Act of 1858, the Government of India and Government of each State are in line of succession of the East India Company. In other words, the liability of the Government is the same as that of the East India Company before, 1858.

Article 300 reads as:
(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State any may, subject to any provision which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.

(2) If at the commencement of this Constitution -
(a) any legal proceedings are pending to which the Dominion of India is party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and

(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the province or the Indian State in those proceedings.

An overview of Article 300 provides that first part of the Article relates to the way in which suits and proceedings by or against Government may be instituted. It enacts that a State may sue and be sued by the name of the Union of India, a State may sue and be sued by the name of the State.

The Second part provides, inter alia, that the Union of India or a State may sue or be sued if relation to its affairs in cases on the same line as that of Dominion of India or a corresponding Indian State as the case may be, might have sued or been sued of the Constitution had not been enacted. The Third part provides that it would be competent to the Parliament or the legislature of State to make appropriate provisions in regard to the topic covered by Article 300(1).

In the light of above, it would be worth to mention the observation of Apex court in N.Nagendra Rao Company V. State of AP. The honourable court noted the recommendations of the Law Commission first Report for statutory recognising the liability of the State as had been done in England through the Crown Proceedings Act, 1947 and in the USA through the Federal Torts Claims Act, 1946. It therefore, held that the doctrine of sovereign immunity has no relevance in the present day.

Y V Vishweshwar Rao (Expert) 28 April 2009
Mr Bansal !

You can file suit for damages against the Govt - Water Supply Department

adv. rajeev ( rajoo ) (Expert) 28 April 2009
In one case in our Karnataka Koppal dist., one person had filed cons., case against the muncipality for not maintenaing the ghattrs cleanly, it is allowed. I think being a citizen u r paying tax I am not sure U can file a cons., case.
In cons., case2 months prior notice to the govt., is not mandatroy.
My advise is go for damages by filing a civil suit, after issuing a 2 months notice