State Consumer Disputes Redressal Commission
Sh. Dinesh Kumar. vs Ghatti Bilwan Co-Op. Agriculture ... on 18 July, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
Revision Petition No.: 17/2018
Date of Presentation: 24.01.2018
Order Reserved On : 25.05.2018
Date of Order : 18.07.2018
......
Shri Dinesh Kumar s/o Shri Sadhu Ram r/o V.P.O. Ghatti
Bilwan Tehsil Jaswan District Kangra H.P.
...... Revisionist/Executant/Complainant
Versus
1. Ghatti Bilwan Co-operative Agricultural Service Society
Ghatti (Kotla) Tehsil Jaswan District Kangra H.P. through
its Secretary Abhilaksh Jagota.
2. Ghatti Bilwan Co-operative Agricultural Service Society
Ghatti (Kotla) Tehsil Jaswan District Kangra H.P. through
its President Shri Subhash Chand.
......Non-revisionists/Non-executants/Opposite parties
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Whether approved for reporting?1 Yes.
For Revisionist : Ms. Parul Negi Advocate vice
Mr. Digvijay Singh Advocate.
For Non-revisionist No.1: Mr. Anil Kumar Advocate.
For Non-revisionist No.2: Mr. Suresh Saini Advocate vice
Mrs. Anjali Soni Verma Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R:-
1. Present revision petition is filed against order dated 17.10.2017 passed by learned Executing Forum in 1 Whether reporters of the local papers may be allowed to see the order? Yes. Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.17/2018) execution application No.37/2016 titled Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. Brief facts of execution application:
2. Complainant Dinesh Kumar filed consumer complaint No.88/2014 under section 12 of Consumer Protection Act 1986 which was disposed of by learned District Forum on dated 06.08.2015. Learned District Forum ordered opposite parties to jointly and severally pay the interest on the principal amount of Rs.50000/- (Fifty thousand) to the complainant at the rate of 9.75% per annum from 16.09.2012 to 10.05.2013. In addition learned District Forum ordered opposite parties to pay compensation to the complainant to the tune of Rs.5000/-(Five thousand). In addition learned District Forum ordered opposite parties to pay a sum of Rs.3000/-(Three thousand) as litigation costs to complainant. Order of learned District Forum attained stage of finality.
3. Thereafter execution application No.18/2016 under section 25 of Consumer Protection Act 1986 was filed by Executant before learned Executing Forum. On dated 22.07.2016 Learned advocate appeared on behalf of executant had withdrawn the execution application No.18/2016 on the ground that Executant intended to pursue the matter before liquidator.
2 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.17/2018)
4. Thereafter Executant filed fresh execution application No.37/2016 under section 25 of Consumer Protection Act 1986 before learned Executing Forum. Thereafter Shri Subhash Chand who was then President of Ghatti Bilwan Co-operative Society had given undertaking on dated 15.12.2016 before learned Executing Forum that he would pay the entire amount on or before 12.01.2017.
5. Thereafter on 27.02.2017 learned Executing Forum has ordered that Shri Subhash Chand then President Ghatti Bilwan Cooperative Agricultural Society did not comply the undertaking and learned Executing Forum took suo-moto cognizance under section 27 of Consumer Protection Act 1986 and convicted Shri Subhash Chand to one month imprisonment and also ordered to pay fine of Rs.2000/- (Two thousand). Learned Executing Forum in addition ordered that warrant of attachment be issued to learned District Collector Dharamshala to attach the property as per revenue papers and site plan and learned Executing Forum listed execution application on 30.03.2017.
6. Thereafter appeal No.64/2017 was filed by Ghati Bilwan Co-operative Agricultural Service Society through its President Shri Subash Chand against order dated 27.02.2017 passed by learned Executing Forum before State Commission which was disposed of by State Commission on dated 3 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.17/2018) 11.09.2017. State Commission allowed the appeal and set aside the order dated 27.02.2017 passed by learned Executing Forum in execution petition No.37/2016 and State Commission remanded back the execution petition to learned Executing Forum with the direction that learned Executing Forum would issue certificate of amount due to Collector under Section 25(3) of Consumer Protection Act 1986. State Commission further ordered that thereafter Collector would recover the amount due to complainant as arrears of land revenue. State Commission further ordered that learned Executing Forum would ensure that process of recovery of amount due to complainant would be completed within one month and State Commission further ordered that learned Executing Forum would dispose of execution petition within one month after receipt of file.
7. After receipt of execution file by way of remand learned Executing Forum listed the execution petition on 03.10.2017 and on 03.10.2017 Learned Executing Forum ordered that certificate for amount due be issued to the Collector to recover the amount due as arrears of land revenue. Thereafter execution application was listed before learned Executing Forum on 17.10.2017. On dated 17.10.2017 learned Executing Forum passed order that since no report of Collector Kangra at Dharamshala has been 4 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.17/2018) received till date Executing Forum has no option but to dismiss execution application.
8. Feeling aggrieved against order passed by learned Executing Forum revisionist filed present revision petition before State Commission.
9. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
10. Following points arise for determination in present revision petition.
1. Whether revision petition filed by revisionist is liable to be accepted as mentioned in memorandum of grounds of revision petition.
2. Final order.
Findings upon point No.1 with reasons:
11. Submissions of learned advocate appearing on behalf of revisionist that learned Executing Forum has misinterpreted quasi-judicial order passed by State Commission and on this ground revision petition be allowed is decided accordingly. It is proved on record that Appeal No. 64 of 2017 titled Ghatti Bilwan Cooperative Agriculture Service Society Versus Dinesh Kumar & Anr. was filed before State 5 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.17/2018) Commission which was disposed of on dated 11.09.2017 by State Commission. It is proved on record that State Commission ordered learned Executing Forum to dispose of execution application within one month. It is also proved on record that State Commission directed learned Executing Forum to issue certificate of amount due to the Collector under Section 25(3) of Consumer Protection Act 1986 and directed that Collector would recover the amount as arrears of land revenue. It is proved on record that learned Executing Forum after receipt of execution application by way of remand issued certificate to the Collector to recover the amount due.
12. It is proved on record that learned Executing Forum did not issue show cause notice to the Collector to recover the amount due as arrears of land revenue in time bound manner in compliance of order of State Commission. It is also proved on record that learned Executing Forum did not summon the Collector personally before learned Executing Forum in order to comply order passed by State Commission within specified limited time. No reason assigned by learned Executing Forum as to why learned Executing Forum did not issue any show cause notice to the Collector to execute order in time bound manner and also no reason assigned by the learned Executing Forum as to why learned Executing Forum 6 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.17/2018) did not summon learned Collector personally before learned Executing Forum to comply order of State Commission.
13. It is held that learned Executing Forum has misinterpreted quasi-judicial order passed by State Commission. State Commission did not mention in quasi-
judicial order that execution application filed by executant would be dismissed as unsatisfied. On the contrary State Commission has given direction to the learned Executing Forum that learned Executing Forum would dispose of execution application within one month after receipt of file. In view of above stated facts it is held that learned Executing Forum has misunderstood the quasi-judicial order passed by State Commission.
14. State Commission is of the opinion that words mentioned under Section 25(3) of Consumer Protection Act 1986 i.e. "And Collector shall proceed to recover the amount in the same manner as arrears of land revenue are conjunctive in nature. It is held that word 'And' is always used in conjunctive mode and is not used in isolative mode. State Commission is of the opinion that it was duty of the learned Executing Forum to ensure that Collector should recover the amount as arrears of land revenue within time bound manner because Execution application was filed before Learned Executing Forum under Section 25 of the Consumer 7 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.17/2018) Protection Act 1986 on dated 17.08.2016. State Commission is of the opinion that it is the duty of learned Executing Forum to satisfy the original order passed by District Forum under section 14 of Consumer Protection Act 1986 which has attained stage of finality.
15. It is further held that sending certificate to the Collector to recover amount due as arrears of land revenue is only intermediate process of execution proceedings and is not final process of execution proceedings. It is held that final process of execution proceedings is always completed after fully satisfaction of original order passed by learned District Forum or State Commission or Hon'ble National Commission or Hon'ble Supreme Court of India as the case may be.
16. Section 25 of Consumer Protection Act 1986 was substituted w.e.f. 15.03.2003 by way of amendment by Parliament of India. After amendment of section 25 of Consumer Protection Act 1986 w.e.f. 15.03.2003 it is duty of Executing Forum to execute its order itself. See 2012 (3) CPC 24 Madras High Court V.M. Ravindra Versus M/s. D-Cube Construction (P) Ltd.
17. Submission of learned advocates appearing on behalf of non-revisionists that order passed by learned Executing Forum is in accordance with law is decided 8 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.17/2018) accordingly. It is held that learned Executing Forum has misinterpreted quasi-judicial order passed by State Commission. It is well settled law that learned Executing Forum is under legal obligation to execute original order in accordance with law. Section 25(3) of Consumer Protection Act 1986 is quoted in toto:
25. Enforcement of orders of the District Forum, the State Commission or the National Commission. --
(3) Where any amount is due from any person under an order made by a District Forum State Commission or the National Commission as the case may be the person entitled to the amount may make an application to the District Forum State Commission or the National Commission as the case may be and such District Forum or the State Commission or the National Commission may issue a certificate for the said amount to the Collector of the district (by whatever name called) and the Collector shall proceed to recover the amount in the same manner as arrears of land revenue.
18. As per Section 74 of H.P. Land Revenue Act 1954 there are eight modes for recovery of land revenue by Collector. Collector is at liberty to adopt any one mode for recovery of arrears of land revenue. Eight modes for recovery of arrears of land revenue are (1) By service of writ of demand on defaulter (2) By arrest and detention of his person (3) By distress and sale of his movable property and uncut or ungathered crops (4) By transfer of holding in respect of which arrear is due (5) By attachment of estate or holding in respect of which arrear is due (6) By annulment of the assessment of that estate or holding (7) By sale of that estate or holding (8) By proceedings against other immovable 9 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.17/2018) property of defaulter. Object of State Commission was expeditious satisfaction of execution application. Object of State Commission was not dismissal of execution application as unsatisfied.
19. It is held that learned Executing Forum was under
legal obligation to obtain recovery report from the Collector. It is held that recovery report is intermediate process of execution proceedings and it is held that learned Executing Forum is under legal obligation to satisfy the execution application strictly as per original order passed under section 14 of Consumer Protection Act 1986 within time bound period. In view of above stated facts it is held that order passed by learned Executing Forum warrants interference by State Commission in the ends of justice and on the principle of natural justice. Point No.1 is decided accordingly.
Point No.2: Final Order
20. In view of findings upon point No.1 above revision petition is allowed. Order of learned Executing Forum dated 17.10.2017 passed in execution application No.37/2016 is set aside and execution application is remanded back to learned Executing Forum with direction to satisfy execution application No.37/2016 in accordance with law within one month after receipt of file. It is further ordered that if Collector will not execute order of recovery of amount as arrears of land revenue within time bound period then 10 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.17/2018) learned Executing Forum shall adopt coercive mode against learned Collector in accordance with law.
21. Execution application is pending since 17.08.2016 before learned Executing Forum and requires expeditious disposal. Order passed under compelling circumstances in the ends of justice and on the principle of natural justice and in order to comply spirit of Consumer Protection Act 1986 passed by Parliament of India. Parties are directed to appear before learned Executing Forum on 30.07.2018. Execution application be listed before learned Executing Forum on 30.07.2018.
22. Observations shall not effect merits of execution application in any manner and shall be strictly confined for disposal of revision petition. File of learned Executing Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of cost strictly as per rules. Revision petition is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 18.07.2018.
*GUPTA* 11