Levying Of UGD Charges By City Corporation Is Illegal

G.L. Nagaraj Urs, Member of Mysore Grahakara Parishat writes

It is one of the requirements of JNNURM that citizens should pay user charges for all the municipal services they receive. JNNURM believes that this will "ensure quick service delivery and general improvement in the service delivery link". So Mysore City Corporation is introducing such user fees one by one. The solid waste management cess was introduced last year and now UGD charges are being added to our monthly water bills.

It was recently pointed out that the SAS system of property tax (based on the capital value of the property) is unconstitutional. It seems that even when Mysore City Corporation levies taxes or cesses which are not unconstitutional, it often does it illegally. One such example is the 20% water supply cess it started levying in 2002-3. When it was pointed out that MCC can not be collecting both water tax and the 20% cess, the cess was withdrawn the next year.

Now MCC has started levying "UGD charges" along with the water tax (There is no consistency in the rate, it is being charged at Rs. 10 per month in some areas and has been left to the discretion of the meter reader in other areas). This is also illegal, because there is no provision of the Karnataka Municipal Corporations Act which allows it.

Before 2003, whenever MCC wanted to levy a new tax, it had to pass a resolution to that effect at MCC general meeting, publish the resolution in the official Gazette, obtain objections to the new tax from the public and submit both the resolution and the objections to the State government. The State government had the power to sanction, modify or impose conditions on the resolution. It would then publish its decision in the official Gazette and the tax approved by the State government would be legally in force.

But in 2003, the State government amended the Karnataka Municipal Corporations Act. One of the stated objectives of the Act was to give Corporations more power and "to dispense with the sanction of the Government before imposing tax". So Sec. 105 of the Act which gave the State givernment power to change Corporation resolutions was deleted. MCC could now impose any tax they wanted without State government interference.

But while deleting Sec. 105 of the Act, the government also removed Sec. 104 of the Act, which defined how Corporation could levy a new tax. It is not clear if this deletion was intentional or accidental, but the upshot of the removal of Sec. 104 is that now MCC has no legal foundation to levy any tax other than those covered explicitly by the Karnataka Municipal Corporations Act. Pre-existing taxes and cesses such as property tax, water tax, advertisement tax, health cess, anti-beggary cess, education cess can continue. Solid waste management cess which was introduced last year is covered explicitly by Sec. 103B and seems to be legal. Sec. 103B also provides for infrastructure tax on vehicles and Sec. 103 provides for an additional stamp duty on property transfers. These taxes can also be legally imposed by MCC. Since UGD charges are not covered explicitly by the Act, its imposition by MCC is clearly illegal.

Results of the 2008 Food Adulteration Survey

C.V. Nagaraj and M.N. Ranganath, Members, Mysore Grahakara Parishat write

The results of a recent survey conducted by Mysore Grahakara Parishat show that food adulteration in Mysore city has increased to a crisis level. This is a matter of grave concern.

To increase public awareness of food adulteration, MGP has conducted an annual food sample survey in Mysore almost every year since 1989 and published the results. This survey is the 16th such survey. In this year's survey, 400 samples of commonly used (and most often adulterated) food items were collected from 38 small shops located all over Mysore and sent for analysis to Ganesh Consultancy & Analytical Services which is the only non-government laboratory in Mysore District to be accorded ISO 9001-2000 recognition as well as approval from Agmark (Government of India) and Karnataka State Pollution Control Board. The results are presented below. As is evident, the adulteration levels this year are extremely high.

Of the 35 toor dhal samples tested, 43% were adulterated. 26% of the samples were coloured with metanil yellow. Metanil yellow is a dye used in leather, paper and textile industries but is forbidden as a food colourant. Metanil yellow is known to cause anaemia, degeneration of reproductive organs, infertility, stomach disorders and cancer in humans. 6% of the toor dhal samples had lead chromate Lead chromate (also an inorganic dye) causes anaemia, abortion, paralysis and brain damage. The other 11% of the adulterated samples had too much foreign matter. 50% of the bengal gram (chana dal) samples tested were adulterated (28% of the samples had metanil yellow, 6% of the samples had auramine and 16% of the samples had damaged grains). Auramine, like metanil yellow, is a dye used in leather, paper and textile industries but is forbidden as a food colourant. It also causes cancer in humans. 29% of the green gram (moong dal) samples were adulterated (9% of the samples had excessive foreign matter - stones, husk, etc., 9% had metanil yellow and 11% had excessive amount of grains damaged by insects).

48% of the turmeric samples were adulterated (26% contained metanil yellow, 11% lead chromate and 11% had excess starch). Similarly, 45% of chilli powder samples had forbidden artificial colouring matter in them. 61% of pepper samples were adulterated (36% contained light berries and 25% had oil extracted from them). Also all these samples were polished using mineral oil. The oil covers up the white mould and gives the pepper seeds an attractive black colour. It also causes diarrhoea, nausea and vomitting and can cause cancer in humans. 58% of cumin seeds were adulterated (26% had too much foreign matter, 19% had too much insect damage and 13% had too many immature seeds). 50% of cardamom samples had cardamom oil removed and artificial colours added. Similarly, 83% of clove samples had clove oil removed.

82% of ghee samples were adulterated (45% with vanaspati and the remaining 37% with foreign fat). To check if the vanaspati used in adulterating ghee was itself pure, we bought a sample of vanaspati and tested it. To our pleasant surprise, we found that it was not adulterated! 50% of the butter samples were adulterated. These samples had too much moisture. 17% were also adulterated with vanaspati. 58 edible oil samples were tested and it was shocking that every single sample was adulterated (43% were rancid and the other 57% were mixed with cheaper oils). Such adulteration can cause liver problems and cancer.

63% of the semolina (Rava) samples were adulterated (31% had sand particles, 16% had live worms and 16% had iron filings). Iron filings which are often used to adulterate semolina cause stomach pains. 84% of the loose tea samples had artificial colour added. The added colour can cause cancer. There seems to be a widespread racket of collecting (from tea stalls) used tea powder which would then be dried, coloured with artificial colours, mixed with fresh tea and sold as local brand tea. 69% of confectionery samples had prohibited colours in them. 38% of rice samples were adulterated (24% had too much foreign matter such as stones and 14% were artificially coloured).

All the samples collected in the February 2008 survey were collected from small shops. It is crystal clear that the poorer sections of the public are facing great danger to their health because of rampant food adulteration. It is probable that the adulteration level in larger reputed shops is lower.

Public awareness about food adulteration is increasing. To promote awareness, members of Mysore Grahakara Parishat have conducted todate more than 1,400 food adulteration demonstration-exhibitions in and around Mysore, explained the dangers of food adulteration and demonstrated simple methods which can be used to detect adulteration at home. But it is very unfortunate that Mysore City Corporation is not taking any action on this menace. The position of Food Analyst who is empowered to tackle this problem was vacant for 16 years. After an incessant struggle by various consumer organizations, the position was finally filled in 1996. But, as far as we know, MCC has not prosecuted a single food adulteration case in the in the last 12 years in which the position has been filled. Including the period when the position was vacant, it would mean that MCC has not prosecuted anyone for food adulteration in the last 28 years!. An excuse is being given that according to the Karnataka Municipal Corporations Act, the Food Analyst has to be deputed from the Department of Health and Family Services, but since the present Food Analyst has been promoted from within the Mysore City Corporation, she does not have legal sanction. If this is true, she must be immediately replaced by an officer who is legally qualified for the job. Since no prosecution against food adulteration has taken place in the city for nearly thirty years, the criminals who are putting the public in grave danger by adulterating food have no fear of punishment whatsoever. This is the prime reason why food adulteration is so rampant in Mysore.

One other unfortunate consequence of the inaction of the Food Analyst is that Food Inspectors who have received specialized training to collect food samples to be analyzed by the Food Analyst are now being employed as sanitary inspectors because they have nothing else to do. What a tragic waste of training!

An Invitation to the Conclusion of MGP Summer Camp

MGP member, Prof A Ramalingam writes,

Mysore Grahakara Parishat and Dr. Ajay Memorial Drinking Water Foundation have been conducting a summer camp for high school students from Wednesday, 14-05-08 at Government Boys High School, Yadavagiri (near Venkata Ramana Swamy Temple on KRS Road).

Twenty experiments related to air, water, food and earth and designed to increase environmental awareness were conducted by the students themselves. As part of the camp, the participating children designed and built a rain water harvesting system in a house in Vontikoppal.

The children participating in this innovative camp will share their experiences with the media between 10 and 11AM on Friday, 23-05-08 at Government Boys High School, Yadavagiri (near Venkata Ramana Swamy Temple on KRS Road).

Members of the media are invited to participate in the programme.

Diagnostic Laboratory Fined for Providing Incorrect Test Results

C.V. Nagaraj, Member of Mysore Grahakara Parishat writes

Thyrocare Technologies, Mandi Mohalla has been ordered by the Mysore District Consumer Forum to compensate Gerald Barbaoza of Gokulam for providing incorrect test results.

Gerald Barboza and his wife had gone to Thyrocare for checking their cholesterol and triglyceride levels. The test results given by Thyrocare showed higher than normal values. Barboza and his wife who are very health-conscious immediately underwent treatment. At the end of the treatment, they again went to Thyrocare for blood tests. The results still showed very high values. Shocked by this finding, they went to another diagnostic laboratory whose results showed that cholesterol and triglyceride levels were only borderline high. To settle the matter, they went to still another laboratory whose results agreed with the second laboratory but disagreed with Thyrocare. Alleging that Thyrocare gave incorrect results as a result of which they had to undergo expensive but unnecessary treatment, Barboza filed a complaint with the District Consumer Forum.

During the hearings, Thyrocare argued that it only collects blood samples which are analyzed by a laboratory in Mumbai and so it can not be held liable. The Forum did not agree with this contention. The Forum said that seeing such high values for cholesterol and triglycerides, the complainant or any other person in his place would have suffered shock and anxiety. Referring to the claims of Thyrocare that the testing laboratory has numerous accreditations and the latest machines, the Forum said accredition does not mitigate the deficiency caused by it in giving such inaccurate test reports. The laboratory may be equipped with highly sophisticated machines, but when those machines do not indicate accurate reports and when Thyrocare endorses such inaccurate test reports, it would be liable for deficiency in service, the Forum said. The Forum ordered Thyrocare to pay damages of Rs.8,000 to the complainants within 60 days from the date of its order, failing which it shall pay interest at 9% p.a. from the date of the order till the date of payment. It also ordered Thyrocare to pay the complainants Rs. 500 as costs.

(Case Number CC/08/43 in the Consumer Forum website http://confonet.nic.in)

National Commission Comes Down On Formality In Consumer Courts

MGP member, B.Vaikunth Shenoy writes

When the Consumer Protection Act came into effect in 1987, consumer courts were informal and even complaints sent on a post card were accepted and orders passed. But as years have gone by, consumer courts are slowly turning into civil courts, by becoming more and more formal. There are now rigid formats in which to file complaints. Affidavits have to be given swearing that what you have said in your complaint is true. These affidavits have to be signed either before a notary or a court officer. The response of the opposite party to your complaint has to be in the form of an affidavit and your rebuttal of his reply again has to be in the form of an affidavit. All this formality is driving more and more complainants to hire lawyers to argue their cases thus defeating one of the main purposes of the Consumer Protection Act, namely, to make the procedure so simple that complainants can argue their own cases and get relief without having to hire legal help. The reason for the growing formalization of consumer courts may be the fact that all consumer fora are headed by retired district judges and most of them insist on following the Civil Procedure Code which applies in district courts.

But relief to harried consumers seems to be on the way. In a recent decision (I (2008) CPJ 411 (NC)), the National Consumer Disputes Redressal Commission has come down on this trend of converting consumer courts into civil courts. It has reiterated that under the CP Act, technicalities are not be encouraged. It has said that complaints can be entertained merely on the receipt of a letter stating sufficient facts and cause of action. It has disapproved adherence to the procedure prescribed under the Civil Procedure Code, including filing of affidavits. It has said that the Civil Procedure Code is to be followed only for the procedure to be followed when one or more consumers file a complaint on behalf of other consumers with the same interest and to determmine what should be done when a complainant or an opposite party dies during the pendency of the complaint. Other than these two exceptions, the National Commission has held that OPERATION OF CIVIL PROCEDURE CODE IS EXCLUDED IN CONSUMER COURTS.

In this important decision, the National Commission has also clarified that PROCEEDINGS BEFORE THE CONSUMER COURTS ARE INQUISITORIAL AND NOT ADVERSARIAL. In ordinary courts, the judges go only by what the opposing parties (or their lawyers) say at the hearings. In this adversarial system, even though truth may not be on his side, a party can win a case if he presents his case more skilfully than the opposite party and manipulates the truth better. Real justice is obtained only when both parties are equally skilled. This problem of the adversarial system is largely absent in the inquisitorial system in which the judge takes a very active role in eliciting facts from both parties. The decision of the National Commission has made it clear that this is the way consumer courts should be run.

It is hoped that alll consumer courts will follow the order of the National Commision, cut down on formality and become more people-friendly.

Some concerns about GM foods

MGP President, S G Vombatkere writes,

Genetically modified (GM) foods are food products whose genetic content has been changed by use of recombinant DNA technology. This genetic change is made so as to give the food crop or food product certain defined, definite characteristics such as increased yield, pest resistance, attractive colour, enhanced taste, increased shelf life, increased nutritional content, etc., as claimed by the company that has obtained the patent for it. The company thus claims that either the farmer or the end consumer benefits and that this justifies the price and the conditions of use that the patent-holding company imposes on the agricultural or processed food product. Whatever the claims and justifications and whatever the price, there is an aspect of this matter that pertains to consumer rights, which are explicitly stated under the Consumer Protection Act, 1986.

The Government of India has insisted that if GM foods are to be imported, the exporter must make a declaration to that effect and label the products accordingly. This is very much in keeping with consumers' rights to safety, to be informed and to know what he/she is purchasing. However, strangely, USA has opposed this condition of the Indian Government, challenging it in WTO as unfair trade practice. This opposition to elementary transparency causes suspicion in the minds of discerning and informed consumers regarding what facts concerning GM foods in general or specific GM products are being withheld from the public domain and the reason why.

USA is the leader in bio-technology (BT) and Monsanto Corporation is possibly the leader of the pack of MNCs in BT. [BT is not to be confused with Bt, which stands for Bacillus thuringiensis, the DNA of which has been spliced into cotton and some food plant crops to provide specific properties]. In India, the Maharashtra Hybrid Seeds Corporation (also known as MAHYCO) has close commercial links with Monsanto Corporation. MAHYCO is conducting field trials of GM food crops in various states. At this stage, two questions arise, namely, what is the need to conduct field trials and who is entitled to see the reports of the field trials. Let us try to briefly address these questions without going into unnecessary technical details.

Field trials are necessary because recombinant DNA technology or gene splicing has scientifically demonstrable possibilities of uncontrolled and uncontrollable gene transfer to other organisms through the natural process of plant pollination. If the field trials show that unwanted transfer of the spliced gene does not in fact occur, then permission may be granted for wider planting and full-scale cultivation of the GM crop. (The near impossibility of proving a negative, namely that something does not happen, remains). The uncontrolled or uncontrollable transfer of the spliced gene has risks not only of violating consumer protection laws but also serious long-term risks to public health, and hence in the interest of natural justice, the results of field trials should be available in the public domain.

We may have succeeded in answering the two questions, but at this stage another matter needs to be understood, the events of which are important. In February 2006, Divya Raghunandan of the NGO Greenpeace made an application under the Right to Information (RTI) Act for details of the results of GM crop field trials in India, asking for the following information:

1. Details of location of GM field trials of brinjal, okra (ladies finger), mustard and rice.

2. Data on tests carried out to ascertain the toxicity and allergenicity of the GM crops.

3. Minutes of the meetings of the Department of Bio-technology (DBT)'s Review Committee on Genetic Manipulation.

DBT gave information on the first point but denied the other information. Divya appealed against this decision to the DBTs Appellate Authority which asked its Public Information Officer to provide the data on toxicity of Bt brinjal by 15 June 2006. Being unsatisfied with incomplete information, Divya complained in August 2006 to the Central Information Commission (CIC) and as a consequence, DBT asked MAHYCO whether certain information on Bt brinjal trials could be disclosed. MAHYCO responded in the negative. In April 2007, CIC asked DBT to disclose the information applied for since it was for public good. But since DBT did not oblige, Divya approached CIC again in May 2007, and as a result a joint meeting between CIC, DBT, MAHYCO and Greenpeace took place in November 2007. At this meeting, MAHYCO insisted that the information asked for was proprietary and should not be disclosed by DBT since it violates TRIPS, but CIC insisted that it should be disclosed since it concerned public safety. One of the arguments in favour of disclosure was that since the product was already patented, commercial interests under TRIPS would not be harmed. As an outcome of the inconclusive meeting, MAHYCO moved the Delhi High Court in December 2007 against CIC. [Down to Earth, 15 April 2008, pages 15-16].

The demand for information in the public interest is because GM foods can have two major consequences, the risks of which have not been assessed. One, at the crop stage, the spliced gene can migrate to non-GM crops by the pollination process, affecting them in unpredictable ways including affecting food security in a potentially devastating manner. And two, at the consumption stage, it may cause disease or unpredictable pathological conditions as evidenced by reported deaths of sheep and cattle that ate the GM cotton plants after the cotton was harvested.

The Delhi High Court case has been dubbed as a conflict between commercial interests and public health. It is clear that national strategic interests are not involved in the information demanded, and government's and MAHYCO's resistance to transparency in the public interest is questionable. The straightforward deduction of any discerning consumer would be that opposition to transparency is a matter of suppressing issues relating to public health for the thinly veiled purpose of corporate profit and growth.

One question remains: Is there a case to implead in the Delhi High Court case in the context of the Consumer Protection Act?