State Consumer Disputes Redressal Commission
Sh. Kalyan Singh. vs Asstt. Engineer Publice Health And ... on 26 August, 2021
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 305/2019
Date of Presentation: 10.09.2019
Order Reserved on : 12.08.2021
Date of Order : 26.08.2021
......
Shri Kalyan Singh S/o Sh. Amin Chand, R/o Village Jungle
Khor, Post Office Jalari, Tehsil Nadaun, District Hamirpur,
H.P., present address H.No.310, Phase-III-B-1, Mohali (Pb.)
......Appellant/Complainant
V/S
1. Assistant Engineer, Public Health and Irrigation, Nadaun
at Gugal, District Hamirpur, Himachal Pradesh.
2. Sh.Rasil Singh S/o late Sh. Ran Singh, R/o Village Jungle
Khor, Post Office Jalari, Tehsil Nadaun, District
Hamirpur, H.P.
3. Sh.Ashok Kumar S/o Sh. Rasil Singh, R/o Village Jungle
Khor, Post Office Jalari, Tehsil Nadaun, District
Hamirpur, H.P.
....Respondents/Opposite parties.
Coram
Hon'ble Ms. Sunita Sharma, Presiding Member
Hon'ble Mr. R.K.Verma, Judicial Member
Whether approved for reporting?1
For Appellant : In person.
For respondent No.1 : Mr.Bhairav Negi ADA.
For respondent No.2&3 : Ms.Parul Negi vice Mr. Vivek Negi,
Advocate.
Mr.R.K.Verma, Judicial Member:
O R D E R :-
1. This appeal has been directed by the appellant under section 27A of the Consumer Protection Act,1986 1 Whether reporters of the local papers may be allowed to see the order?
Kalyan Singh Vs. Assistant Engineer Public Health & Irrigation & Ors. F.A. No.305/2019 (hereinafter called as the Act) against order dated 06.08.2019 passed by the District Consumer Disputes Redressal Forum, Una Camp at Hamirpur in Execution Application No.04/2016 whereby the respondent No.1 was acquitted of the offence under section 27 of the Act.
2. Briefly stated, the facts giving rise to the instant appeal are that the appellant had filed Consumer Complaint No.30/2009 against the respondents before the fora below which was partly allowed vide order dated 11.08.2011 and the respondent No.1 was directed to provide water connection to the appellant from water distribution point on appellant's laying water pipes at his cost from the distribution point upto the house through the path which passes to his house as shown in the site plan. It was further directed by the fora below that in case the respondents No.2 and 3 created any obstruction in laying the pipeline, the appellant may seek police help or other legal remedy against them. This order was challenged by the respondent No.2 in appeal before this commission which was dismissed vide order dated 31.05.2012. While dismissing the appeal filed by the respondent no.2, this commission had observed that in case the matter is decided by the civil court in that case the orders of the civil court would prevail. Thereafter, the appellant filed the instant execution petition before the fora below for execution of order dated 11.08.2011 as confirmed by this 2 Kalyan Singh Vs. Assistant Engineer Public Health & Irrigation & Ors. F.A. No.305/2019 commission vide order dated 31.05.2012 alleging therein that with intent to stop execution of the aforesaid order the respondent No.2 and 3 called one Sh.Mehar Singh, co-sharer of the land from Delhi and he filed Civil Suit No.218/2012 along with CMA No.329/2012 in the civil court at Nadaun restraining the appellant from encroaching upon the land comprised in Khewat/Khatuni No.5min/12min measuring 0- 12-52 Hect situated at Muhal Jungle Khoher, Mauja Jalari, Tehsil Nadaun, District Hamirpur, H.P. In this suit the CMA No.329/2012 filed by Sh.Mehar Singh for temporary injunction was dismissed by Civil Judge, Nadaun vide order 12.09.2013 and appeal filed by him against this order was also dismissed by ADJ, Hamirpur vide order dated 22.12.2014. CMPMO No.21 of 2015 filed by Sh.Mehar Singh against the aforesaid order of ADJ, Hamirpur was also dismissed by the Hon'ble High Court of H.P. vide order dated 26.08.2015. The appellant has further alleged that the respondents No.2 and 3 in collusion with one Karan Singh of the same village had blocked the path intentionally through which water pipes were to be laid. The respondent No.2 and 3 are not obeying the orders passed by the fora below and this commission and creating hindrance intentionally in the execution of order dated 11.08.2011 and 31.05.2012. Therefore, the appellant has prayed for punishment of the respondents with civil imprisonment and also to restrain the 3 Kalyan Singh Vs. Assistant Engineer Public Health & Irrigation & Ors. F.A. No.305/2019 respondent No.2 and 3 from creating any hindrance in the execution of orders under execution.
3. The respondents filed objections against the maintainability of the execution petition on various grounds. After hearing the parties and considering the objections filed by the respondents the learned District Forum below dismissed the execution petition vide order dated 08.02.2018 which was challenged in appeal before this commission by the appellant. The appeal filed by the appellant was allowed by this commission vide order dated 08.02.2018 and the case was remanded back to the District Forum with the directions that the District Forum shall try the execution petition under section 27 of the Act as per provisions of Chapter XXI of the Criminal Procedure Code and dispose of the same in accordance with law.
4. After remand, the District Forum framed notice of accusation under section 27 of the Act against the respondent No.1 only who pleaded not guilty and claimed trial. The learned District Forum did not issue fresh notice to the respondent No.2 and 3 by observing that the legal remedy of the appellant lies somewhere else and not before the fora below.
5. The complainant led evidence in support of his case in which he filed his affidavit and also tendered in evidence documents filed with the execution petition. At the 4 Kalyan Singh Vs. Assistant Engineer Public Health & Irrigation & Ors. F.A. No.305/2019 close of the complainant's evidence, the respondent No.1 was examined under section 313 of the Code of Criminal Procedure in which he denied the prosecution evidence and pleaded denial simplicitor. No evidence was also led by him in his defence. The learned District Forum after hearing the parties acquitted the respondent No.1 of the offence under section 27 of the Act vide order dated 06.08.2019.
6. Feeling aggrieved by the impugned order dated 06.08.2019 the appellant has filed the instant appeal inter alia on the ground that the respondent No.2 and 3, who are main root of creating the hurdle in laying water pipes, have not been summoned and they have been wrongly and illegally left by the fora below. The learned District Forum while passing the impugned order has failed to appreciate the pleas set up and evidence led on behalf of the opposite party in true prospective and as such the same is not sustainable and deserves to be set aside.
7. The appellant has filed written submissions in support of his appeal. We have heard the learned Assistant District Attorney for the respondent No.1 and Ms. Parul Negi, Advocate, vice counsel for the respondent No.2 and 3 and have also carefully gone through the record of the case.
8. The order under execution in the instant case was passed by the fora below on 11.08.2011. whereby the respondent No.1 was directed to provide water connection to 5 Kalyan Singh Vs. Assistant Engineer Public Health & Irrigation & Ors. F.A. No.305/2019 the appellant from water distribution point on appellant's laying water pipes at his cost from the distribution point upto the his house. It was further directed by the fora below that in case the respondent No.2 and 3 created any obstruction in laying the pipeline the appellant may seek police help or other legal remedy against them. This order was confirmed in appeal by this commission vide order dared 31.05.2012. In the execution petition filed by the appellant before the fora below the allegations are that the respondent No.2 and 3 are not obeying the orders passed by the fora below and this commission and intentionally creating hindrance in the execution of the aforesaid orders.
9. The sum and substance of the grievances projected by the appellant in the grounds of appeal as well as in his written submissions is that the learned District Forum has not initiated any penal action against the respondent No.2 and 3, who are mainly responsible for creating hurdles for laying water pipe line to his house from the distribution point. The fora below had directed the respondent No.1 to provide water connection to the appellant from the distribution point from where the water pipe line upto his house was to be laid by the appellant himself. The appellant has not yet laid water pipe line from the distribution point to his house. The question of providing water connection by the respondent No.1 to the appellant would arise only when the appellant lays pipe line 6 Kalyan Singh Vs. Assistant Engineer Public Health & Irrigation & Ors. F.A. No.305/2019 from the distribution point to his house. Even otherwise, there are no allegations that the respondent No.1 has at any point of time refused to provide water connection at distribution point to the complainant. Therefore, no fault can be found in the impugned order passed by the learned District forum acquitting the respondent No.1 of the offence under section 27 of the Act.
10. As regards the relief sought by the appellant against the respondent No.2 and 3 is concerned, we are of the considered view that the learned District Forum below has not committed any illegality or material irregularity by not initiating any proceedings against them under section 27 of the Act. The consumer fora is competent to issue any direction to the person who is not a service provider under the Act. Admittedly, in this case, relationship of consumer and service provider does not exist between the appellant and the respondent No.2 and 3. The fora below vide order dated 11.08.2011 which is under execution has also not issued any direction to the respondent No.2 and 3 for which violation they can be proceeded against under section 27 of the Act. The matter regarding the laying of the water pipe line from the distribution point to the house of the complainant falls outside the purview Consumer Protection Act. The learned District Forum below has also observed in the impugned order that the remedy of the appellant against the respondent No.2 7 Kalyan Singh Vs. Assistant Engineer Public Health & Irrigation & Ors. F.A. No.305/2019 and 3 lies somewhere else. We agree with the observations made by the learned District Forum in this regard and fully endorse it. In view of this, no fault can be found in the proceedings conducted by the fora below, whereby the respondent No.2 and 3 were not put to trial under section 27 of the Act.
11. In view of the above and for the reasons stated hereinabove, the present appeal deserves to be dismissed and is accordingly dismissed. The parties are left to bear their own costs.
12. Certified copy of order be transmitted to parties free of costs strictly as per rules. Certified copy of order be sent to learned District Commission below for information and file of State Commission be consigned to record room after due completion forthwith. F.A.No.305/2019 is disposed of. Pending application(s) if any also disposed of.
Sunita Sharma Presiding Member R.K.Verma Judicial Member 26.08.2021 Manoj 8