State Consumer Disputes Redressal Commission
Punjab State Electricity Board vs Nachattar Singh on 31 August, 2012
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1614 of 2007
Date of institution: 14.12.2007
Date of decision : 31.08.2012
1. Punjab State Electricity Board through its Chairman, The Mal, Patiala.
2. Executive Engineer, PSEB, Muktsar, Distt. Muktsar.
3. Sub Divisional Officer, PSEB, Sub Division, Bariwala.
.....Appellants
Versus
Nachattar Singh s/o Sh.Bhag Singh r/o V. Marar Kalan, Tehsil & Distt.
Muktsar.
.....Respondent
First Appeal against the order dated 01.06.2007
passed by the District Consumer Disputes
Redressal Forum, Muktsar.
Before:-
Sardar Jagroop Singh Mahal,
Presiding Judicial Member
Mr.Vinod Kumar Gupta, Member Present:-
For the appellants : Ms.Manisha Garg, Adv. for
Sh.Vishal Garg, Advocate
For the respondent : Sh.Pankaj Sohtra, Adv. for
Sh.R.K.Girdhar, Advocate
JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER
This order will dispose of two appeals namely First Appeal No.1614 of 2007 (PSEB v. Nachattar Singh) and First Appeal No.1591 of 2007 (Paramjit Kaur v. Nachattar Singh) filed under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) against the order dated 1.6.2007 passed by the learned District Consumer Disputes Redressal Forum, Muktsar (in short the District Forum) as both the appeals are directed against the same order. The facts are taken from First Appeal No.1614 of 2007 and the parties would be referred by their status as they enjoyed before the District Forum.
First Appeal No.1614 of 2007 2
2. The present complaint was filed by Nachattar Singh alleging that the tubewell connection No.MK109 was released to Malkiat Singh who died on 10.8.2004; that he was co-sharer with the complainant in the land where the tubewell connection was installed; that the said land has fallen to the share of the complainant in an oral family settlement and that Malkiat Singh transferred the electric connection in his name through an affidavit dated 29.5.2003 attested on 20.6.2003. It was alleged that the expenses incurred by Malkiat Singh on the installation of the electric connection were paid to him by the complainant and the original passbook was handed over by Malkiat Singh to him. The case of the complainant further is that he approached the office of SDO, PSEB, OP No.3 for transfer of the connection but he was put off on one pretext or the other. He then moved an application to OP No.3 for transfer of the tubewell connection in his name but they did not transfer the same with malafide intention because they were in connivance with the OPs and wanted to transfer the connection in the name of the wife and mother of Malkiat Singh who were joined as OP No.4 and 5. The complainant, therefore, filed the present complaint to direct OP No.1 to 3 to transfer the electric connection in his name and also not to transfer it in the name of any other person except the complainant. He also prayed that the said electric connection should not be disconnected and the OPs should pay him Rs.20,000/- on account of mental tension, harassment and agony suffered by him and Rs.5500/- as litigation expenses.
3. The contention of OP No.1 to 3 is that the complaint is false, frivolous and vexatious and the complainant has not come to the Forum with clean hands. It was alleged that complicated questions of law and facts are involved in the present complaint, the same should not, therefore, be tried by the learned Forum. It was admitted that the tubewell connection was applied First Appeal No.1614 of 2007 3 for and was released in the name of Malkiat Singh who has since died. The OPs have no knowledge regarding the family settlement. It was denied if Nachattar Singh applied to them for change of tubewell connection to his name from the name of Malkiat Singh. On the other hand, Paramjit Kaur widow of Malkiat Singh had moved an application to them for transfer of the connectioin in her favour but since she did not deposit the requisite fee and did not complete the formalities regarding which the OPs were enquiring from her and in the meantime, the complainant filed the present complaint. It was denied if the tubewell connection should be transferred in the name of the complainant or he is entitled to any compensation.
4. OP No.4 is the wife and OP No.5 is the mother of Malkiat Singh since deceased. Their contention is that Malkiat Singh was the owner of the connection in dispute and after his death, both of them have become its owner. They denied if there was any family settlement in which the land under cultivation fell to his share. The affidavit of Malkiat Singh was alleged to be a forged and fabricated document never sworn by him. According to them, the complainant did not pay the expenses incurred by Malkiat Singh on the installation of the tubewell connection nor was it sold/transferred by Malkiat Singh in his favour. They have requested OP No.1 to 3 to transfer the connection in their favour but the OPs were still making enquiries, when the complainant filed the present complaint. It was denied if the complainant has any right to get the connection transferred in his favour.
5. Both the parties were given opportunity to adduce evidence in support of their contentions.
6. After hearing the arguments of the learned counsel for the parties and perusing the record, the President of the District Forum was of the opinion that the question of title was involved in the case which should First Appeal No.1614 of 2007 4 be determined by the Civil Court and not by the Consumer Fora. He vide order dated 1.6.2007 relegated the parties to the Civil Court. Shri Jaskartar Singh Dhillon, Member did not agree with him and gave his dissenting judgment to the effect that the complaint was liable to be allowed.
7. In view of the divergent views, the case was referred to the third Member namely Mrs.Meenakshi who agreed with Shri Jaskartar Singh Dhillon, Member and in this manner, by a majority judgment, the complaint was allowed. OP No.1 to 3 have challenged the same through First Appeal No.1614 of 2007 whereas Paramjit Kaur OP No.4 to 5 have challenged the same through First Appeal No.1591 of 2007.
8. We have heard the arguments of the learned counsel for the parties and have perused the record including the written arguments. Since both the appeals have been filed by the OPs against a single order, we, therefore, disposing of both the appeals through this common order.
9. The contention of the learned counsel for the complainant is that admittedly separate tubewell connection was in the name of Malkiat Singh but the land in which it was installed fell to his share in a family settlement. In this respect, he referred to the copy of the Jamabandi Ex.C28 wherein, in the column of cultivation, the land is mentioned to be in his exclusive possession along with his brother. It is also contended that the tubewell connection was transferred to the complainant by Malkiat Singh regarding which he executed a power of attorney, copy of which is Ex.C2 and also handed over the passbook, copy of which is Ex.C12. On the basis of these documents, the learned counsel argued that the majority judgment is perfectly legal and valid and, therefore, appeals filed against the same should be dismissed. We do not find any merit in this contention. First Appeal No.1614 of 2007 5
10. The dispute primarily in the present case is whether the tubewell connection is owned by Nachhattar Singh on the basis of Ex.C2 or inherited by OP No.4 and 5 on the basis of natural succession. The learned President of the District Forum rightly concluded that it is primarily a dispute regarding title to the said tubewell connection which the Consumer Fora have no power to decide. The title to property has to be decided by the Civil Court and the Consumer Fora cannot decide the complicated questions of title in these summary proceedings. The approach of the learned Members of the District Forum to decide the ownership of the tubewell on the basis of an affidavit Ex.C2 which was of doubtful nature was not proper. The learned District Forum exercised the powers which were not vested in it.
11. The execution of the affidavit Ex.C2 by Malkiat Singh is disputed by OP No.4 and 5. In order to prove this affidavit, it is only Ravinder Singh Uppal, Notary Public who has been produced but there is no mention if he knew Malkiat Singh personally. Malkiat Singh was identified before the Notary Public by Gurjant Singh who have been examined as a witness. It is only Gurjant Singh who could prove that the affidavit was signed and sworn by Malkiat Singh and in its absence, the learned District Forum wrongly presumed this fact.
12. The affidavit Ex.C2 was alleged to have been executed by Malkiat Singh on 29.5.2003. It was, however, attested by the Notary Public on 20.6.2003. This affidavit did not see light of the day till Malkiat Singh remained alive. It was produced by the complainant after 16 months of its execution. There is no explanation why on its basis, the complainant did not ask OP No.1 to 3 to change the ownership in his favour during the life time of Malkiat Singh. The presumption is that had this affidavit been produced during the life time of Malkiat Singh, the forgery committed by the First Appeal No.1614 of 2007 6 complainant would have come to light and it was, due to this reason that Ex.C2 was not made public sduring his lifetime because it did not then exist. The contention of OP No.4 and 5 further is that in fact, no such affidavit was executed/sworn by Malkiat Singh and it is a forgery and fabrication committed by the complainant. The learned counsel for OP No.4 and 5 has contended that due to this reason, Nachhattar Singh complainant never staked his ownership right in the land or the tubewell during the life time of Malkiat Singh.
13. The learned District Forum also wrongly presumed the family settlement between the parties. There is no mention of any family settlement in the affidavit Ex.C2. It is not borne out from any other record also. Due to ignorance of law, the learned Members considered the Jamabandi Ex.C28 and held that it proved the exclusive ownership of the complainant and his brother Lachhman Singh whereas the ownership column shows that it was owned by OP No.4 and 5 also as co-sharers with the complainant. The Jamabandi only proved their possession over the said land. However, till partition, the possession of one co-sharer is to be deemed as possession of all the co-sharers including OP No.4 and 5 and, therefore, on the basis of Ex.C28, it could not have been presumed by the learned District Forum that Nachhattar Singh complainant and his brother Lachhman Singh were exclusive owners of this land. If there had been any family settlement, the effect to that is to be given by the Revenue authorities or the Civil Court but the complainant never approached the Revenue authorities or the Civil Court to claim title to Khasra No.69/25 in which the tubewell is installed.
14. The learned District Forum also took note of the report Ex.C29 of the Local Commissioner who inspected the spot. Needless to mention that the title to the property cannot be decided on the basis of such like spot First Appeal No.1614 of 2007 7 inspection. Moreover, the complainant on the one hand was alleging family partition regarding which no evidence has been adduced by him and on the other hand, he was taking contradictory plea of sale/transfer of the tubewell connection by Malkiat Singh on payment of the charges which had been incurred by him on the installation of the tubewell. These two pleas are self- contradictory.
15. The learned counsel for the complainant has contended that the complainant had earlier also moved an application before the OP No.1 to 3 for transfer of the tubewell connection in his favour. This fact has been denied by OP No.1 to 3. The complainant has not able to produce any such document to suggest if the application was ever delivered by him to OP No.1 to 3.
16. The contention of the learned counsel for OP No.4 and 5 is that in fact, when after the death of Malkiat Singh, they requested OP No.1 to 3 to transfer the electric tubewell connection in their favour, Nachhattar Singh came to know of it and he then filed the present complaint to stall the process.
17. In view of the above discussion, we are of the opinion that the majority view of the learned District Forum is bad in law and cannot be upheld. Both the appeals should, therefore, succeed and the same are accordingly allowed. Consequently, the complaint is dismissed with costs.
18. The appellants in both the appeals would be entitled to Rs.10,000/- each from the complainant respondent as costs.
19. The appellants had deposited an amount of Rs.1,000/- with this Commission at the time of filing of the appeal on 14.12.2001. This amount of Rs.1,000/- with interest, if any, accrued thereon be refunded by the registry to the appellant by way of a crossed cheque/demand draft after the First Appeal No.1614 of 2007 8 expiry of 45 days under intimation to the learned District Forum and to the appellants.
Copies of the orders be supplied to the parties free of costs.
(JAGROOP SINGH MAHAL) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER August 31, 2012.
Paritosh