State Consumer Disputes Redressal Commission
H.P. Upbhogta Sangh (Hpus). vs Hpsebl. & Anr. on 5 March, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 138/2019
Date of Presentation: 02.04.2019
Order Reserved on : 28.08.2019
Date of Order : 05.03.2020
......
Himachal Pradesh Upbhogta Sangh (HPUS) H.No.88/6 Samkheter
Mandi Town District Mandi H.P.
...... Appellant/Complainant.
Versus
1. HPSEBL through its Executive Director (Pers) Kumar House
Shimla-171004.
2. Assistant Engineer HPSEBL Sub Division Mandi II District
Mandi H.P.
......Respondents/opposite parties.
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Hon'ble Mr.R.K.Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Ms. Kirti Sood vice Mr. Digvijay Singh
Advocate.
For Respondents : Mr.Manoj Thakur Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 12.03.2019 passed by learned DCF/DCC in consumer complaint No.121/2017 titled Himachal Pradesh Upbhogta Sangh (HPUS) Versus HPSEBL & Another.
1 Whether reporters of the local papers may be allowed to see the order? Yes.
Himachal Pradesh Upbhogta Sangh (HPUS) Versus HPSEBL & Anr. F.A. No.138/2019 Brief facts of consumer complaint:
2. Himachal Pradesh Upbhogta Sangh filed consumer complaint pleaded therein that complainant is registered society recognized for its efforts to enforce the rights of consumers. It is pleaded that Smt. Champa Devi wife of Shri Harish Kumar is user of electricity connection granted under account No.13112 to one Smt. Bresti Devi wife of Sh.Saunu Ram resident of Village Chadyara Tehsil Sadar District Mandi H.P. It is further pleaded that user is regularly paying electricity bill to opposite parties. It is further pleaded that last bill was paid by user namely Smt. Champa Devi on dated 22.02.2017. It is further pleaded that opposite parties disconnected electricity connection. It is further pleaded that no notice was issued to Smt. Champa Devi by Electricity Department prior to disconnection of electricity connection. It is pleaded opposite parties committed deficiency in service.
Complainant sought relief to the effect that electricity connection to the house of Smt.Champa Devi be restored. In addition complainant sought suitable compensation and litigation costs. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties pleaded therein that complainant has no locus standi and cause of action to file present consumer complaint. It is 2 Himachal Pradesh Upbhogta Sangh (HPUS) Versus HPSEBL & Anr. F.A. No.138/2019 pleaded that electricity connection has not been sanctioned to Smt. Champa Devi. It is further pleaded that electricity connection was sanctioned to Smt. Bresti Devi. It is pleaded that Smt. Champa Devi does not fall within the definition of consumer. It is further pleaded that Smt. Bresti Devi encroached upon Government land by way of constructing shop and toilet. It is further pleaded that encroachment report was submitted by Halqua Patwari and proceedings under section 163 of H.P. Land Revenue Act 1954 were initiated against Smt. Bresti Devi. It is further pleaded that Assistant Collector II Grade has passed dispossession order against encroacher namely Smt. Bresti Devi on dated 24.03.2014 in encroachment case No.1/2014 titled State Versus Smt. Bresti Devi from Government land comprised in Khasra No.544/1 measuring 0-3-5 bigha and Khasra No.536/1 measuring 0-9-2 bigha kita-2 total area measuring 0-5-14 bigha wherein Smt. Bresti Devi raised illegal construction by way of construction of shop and toilet upon Government land by way of encroachment.
4. It is further pleaded that electricity connection in dispute was installed in the illegal shop and toilet constructed by Smt.Bresti Devi upon Government land. It is further pleaded that encroacher is not legally entitled for electricity connection as per laws. It is pleaded that opposite parties did not commit any deficiency in service but only complied order 3 Himachal Pradesh Upbhogta Sangh (HPUS) Versus HPSEBL & Anr. F.A. No.138/2019 of Assistant Collector II Grade revenue passed in Statutory Authority under H.P. Land Revenue Act 1954. Prayer for dismissal of consumer complaint sought.
5. Learned DCF/DCC dismissed consumer complaint. Feeling aggrieved against order passed by Learned DCF/DCC HPUS filed present appeal before State Commission.
6. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
7. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether encroacher upon Government land is legally entitled for protection order under Consumer Protection Act after passing dispossession order by learned Assistant Collector II Grade under Statutory section 163 of H.P. Land Revenue Act 1954?
2. Final order.
Findings upon point No.1 with reasons:
8. Complainant filed affidavit of Smt.Champa Devi.
There is recital in affidavit that electricity connection was granted to Smt. Bresti Devi wife of Sh.Saunu Ram resident of 4 Himachal Pradesh Upbhogta Sangh (HPUS) Versus HPSEBL & Anr. F.A. No.138/2019 Village Chadyara Tehsil Sadar District Mandi H.P. There is further recital in affidavit that deponent and her family members are users of electricity connection in question. There is further recital in affidavit that deponent has been regularly paying electricity bills and last bill was paid on 22.02.2017. There is further recital in affidavit that Electricity Department has disconnected electricity power supply to the house of deponent. There is further recital in affidavit that deponent has not defaulted in payment of bills at any point of time. There is further recital in affidavit that no notice was issued to deponent or Smt. Bresti Devi by Electricity Department.
9. Complainant also filed affidavit of Sh.Lawan Thakur. There is recital in affidavit that deponent is General Secretary of Himachal Pradesh Upbhogta Sangh which is registered society and is recognized for its efforts to enforce the rights of consumers. There is further recital in affidavit that opposite parties have sanctioned electricity connection to Smt. Bresti Devi wife of Sh.Saunu Ram resident of Village Chadyara Tehsil Sadar District Mandi H.P. There is further recital in affidavit that Smt. Champa Devi wife of Shri Harish Kumar is user of electricity connection. There is further recital in affidavit that user has paid electricity bills till 22.02.2017. There is further recital in affidavit that 5 Himachal Pradesh Upbhogta Sangh (HPUS) Versus HPSEBL & Anr. F.A. No.138/2019 Electricity Department has disconnected electricity power supply to the house of Smt. Champa Devi wife of Sh.Harish Kumar. There is further recital in affidavit that Electricity Department did not issue any prior notice to Smt. Champa Devi. State Commission has carefully perused all annexures filed by complainant.
10. Opposite parties filed affidavit of Rajesh Behl posted as Assistant Engineer Electrical Sub Division-II Mandi H.P. There is recital in affidavit that electricity connection was installed in the name of Smt. Bresti Devi and was not installed in the name of Smt. Champa Devi. There is further recital in affidavit that Smt. Bresti Devi has encroached upon Government land by way of constructing shop and toilet. There is further recital in affidavit that Assistant Collector II Grade Sadar Mandi H.P. has passed dispossession order against Smt.Bresti Devi under section 163 of H.P. Land Revenue Act 1954. There is further recital in affidavit that opposite parties also issued notice to Smt.Bresti Devi on dated 16.02.2016 before disconnecting electricity meter. There is further recital in affidavit that opposite parties did not commit any deficiency in service. There is further recital in affidavit that Smt. Champa Devi is stranger in present matter. State Commission has carefully all annexures filed by opposite parties.
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Himachal Pradesh Upbhogta Sangh (HPUS) Versus HPSEBL & Anr. F.A. No.138/2019
11. Submission of learned Advocate appearing on behalf of HPUS that electricity connection of Smt. Champa Devi wife of Shri Harish Kumar be ordered to be restored is decided accordingly. There is no evidence on record in order to prove that electricity connection in question was sanctioned in favour of Smt. Champa Devi wife of Shri Harish Kumar at any point of time by Electricity Department and as per record electricity connection was sanctioned in favour of Smt. Bresti Devi. It is held that Smt. Champa Devi is stranger. It is proved on record that ejectment order already stood passed by Assistant Collector II Grade Sadar Mandi H.P. against Smt. Bresti Devi on dated 24.03.2014 in encroachment case No.1/2014 titled State Versus Smt. Bresti Devi vide Annexure R-1 placed on record. It is also proved on record that penalty to the tune of Rs.500/- (Five hundred) has also been imposed upon Smt.Bresti Devi in addition to dispossession order passed by Assistant Collector II Grade Sadar Mandi H.P. under section 163 of H.P. Land Revenue Act 1954. Electricity meter in question was installed in illegal construction of shop and toilet raised by Smt. Bresti Devi upon Government land.
12. State Commission is of the opinion that H.P. Land Revenue Act 1954 is independent Statutory Act. State Commission is of the opinion that appeal against order 7 Himachal Pradesh Upbhogta Sangh (HPUS) Versus HPSEBL & Anr. F.A. No.138/2019 passed under section 163 of H.P. Land Revenue Act 1954 has been provided under the provisions of H.P. Land Revenue Act 1954. State Commission is of the opinion that if plea of adverse possession is taken by encroacher in proceedings filed under section 163 of H.P. Land Revenue Act 1954 in that eventuality appeal lies before learned District Judge and if plea of adverse possession is not taken by encroacher in proceedings filed under section 163 of H.P. Land Revenue Act 1954 in that eventuality appeal against order passed under section 163 of H.P. Land Revenue Act 1954 lies before concerned Collector under section 14 of H.P. Land Revenue Act 1954. There is no order on record in order to prove that dispossession order dated 24.03.2014 passed by learned Assistant Collector II Grade Sadar Mandi H.P. in encroachment case No.1/2014 titled State Versus Bresti Devi was stayed by any competent authority of laws. State Commission is of the opinion that Consumer Authority is not legally competent to stay order of other competent Statutory Authority passed under other Statutory Act i.e. H.P. Land Revenue Act 1954.
13. Submission of learned Advocate appearing on behalf of HPUS that adequate compensation be ordered to Smt.Champa Devi for mental agony and harassment is decided accordingly. State Commission is of the opinion that 8 Himachal Pradesh Upbhogta Sangh (HPUS) Versus HPSEBL & Anr. F.A. No.138/2019 electricity connection in question has not been sanctioned in favour of Smt. Champa Devi. On the contrary electricity connection in question has been sanctioned in favour of Smt. Bresti Devi and no relief in favour of Smt. Bresti Devi has been sought by HPUS in present matter. State Commission is of the opinion that HPUS has sought relief in favour of stranger namely Smt. Champa Devi.
14. Submission of learned Advocate appearing on behalf of HPUS that litigation costs be also granted in favour of complainant is decided accordingly. State Commission is of the opinion that dispossession order of shop and toilet wherein electricity meter in question was installed already stood passed by competent Statutory Authority under section 163 of H.P. Land Revenue Act 1954 which is Statutory Act and State Commission is of the opinion that H.P. State Consumer Commission is not legally competent to set aside order of Revenue Authority passed under section 163 of H.P. Land Revenue Act 1954 which is another independent Statutory Act.
15. Submission of learned Advocate appearing on behalf of HPUS that in view of order passed by Hon'ble High Court of Himachal Pradesh in Civil Writ Petition No.2454 of 2018 titled Madan Lal Versus State of Himachal Pradesh & others decided on 22.10.2018 appeal filed by HPUS be 9 Himachal Pradesh Upbhogta Sangh (HPUS) Versus HPSEBL & Anr. F.A. No.138/2019 allowed is decided accordingly. State Commission is of the opinion that Hon'ble High Court has passed order in writ jurisdiction vested under Article 226 of Constitution of India. State Commission is of the opinion that Hon'ble High Court of Himachal Pradesh in Civil Writ Petition No.2454 of 2018 cited supra did not hold that Consumer Authority is legally competent to set aside order of Revenue Statutory Authority passed under section 163 of H.P. Land Revenue Act 1954. State Commission is of the opinion that jurisdiction of Hon'ble High Court is vast in nature and State Commission is of the opinion that jurisdiction of Consumer Authority is limited to Consumer Protection Act only which is Special Act passed by Parliament of India.
16. Submission of learned Advocate appearing on behalf of opposite parties that order of learned DCF/DCC is in accordance with laws and in accordance with proved facts and on this ground appeal filed by HPUS be dismissed is decided accordingly. State commission is of the opinion that order of learned DCF/DCC is in accordance with laws and in accordance with proved facts and same does not warrant any interference from State Commission. Point No.1 is decided accordingly.
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Himachal Pradesh Upbhogta Sangh (HPUS) Versus HPSEBL & Anr. F.A. No.138/2019 Point No.2: Final Order
17. In view of findings upon point No.1 above appeal filed by HPUS is dismissed. Order of learned DCF/DCC is affirmed. Dispossession order dated 24.03.2014 passed by Learned Assistant Collector II Grade Sadar Mandi H.P. in encroachment case No.1/2014 titled State Versus Smt. Bresti Devi under section 163 of H.P. Statutory Land Revenue Act 1954 relating to shop and toilet wherein electricity connection in dispute was installed Annexure R-1 shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission.
18. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Certified copy of order be sent to Learned DCF/DCC forthwith and file of State Commission be consigned to record room after due completion forthwith. F.A.No.138/2019 is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member R.K.Verma Member 05.03.2020 Manoj 11