State Consumer Disputes Redressal Commission
Sh. Kalyan Singh. vs Asstt. Engineer, Public Health And ... on 19 November, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 56/2018
Date of Presentation: 23.03.2018
Order Reserved on : 24.07.2018
Date of Order : 19.11.2018
......
Kalyan Singh son of Shri 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/Executant/Complainant
Versus
1. Assistant Engineer Pubic Health and Irrigation Nadaun at
Gugal District Hamirpur Himachal Pradesh.
2. Shri Rasil Singh son of late Shri Ran Singh R/o. Village
Jungle Khor Post Office Jalari Tehsil Nadaun District
Hamirpur H.P.
3. Shri Ashok Kumar son of Shri Rasil Singh R/o. Village
Jungle Khor Post Office Jalari Tehsil Nadaun District
Hamirpur H.P.
......Respondents/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 Appellant : Appellant in person.
For Respondent No.1 : Mr. Bhairav Negi Ld. ADA.
For Respondents No.2&3: Ms. Parul Negi Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 27-A of Consumer Protection Act 1986 against order dated 1 Whether reporters of the local papers may be allowed to see the order? Yes.
Kalyan Singh Versus Asst. Engineer Public Health & Irrigation & Ors.
(F.A. No.56/2018) 08.02.2018 passed by Learned Executing Forum in execution application No.04/2016 titled Kalyan Singh Versus Assistant Engineer Public Health and Irrigation Nadaun & Ors. Brief facts of matter :-
2. Shri Kalyan Singh filed consumer complaint under section 12 of Consumer Protection Act 1986 before learned District Forum Hamirpur titled Kalyan Singh Versus Assistant Engineer Public Health and Irrigation Nadaun & Ors. Same was disposed of by learned District Forum on 11.08.2011. Learned District Forum ordered that opposite party No.1 would provide water connection to complainant from water distribution point and would ensure regular supply of water to residential house of complainant. Learned District Forum further ordered that complainant would lay water pipes line at his costs from distribution point of water upto his residential house through the path which passes to his house as shown in site plan annexure-O. Learned District Forum further ordered that in case opposite parties No.2 & 3 creates any obstruction in laying down the water pipes by the side or underneath the path which leads to the residential house of complainant then complainant would seek police help and he would be at liberty to seek legal remedy against them.
2
Kalyan Singh Versus Asst. Engineer Public Health & Irrigation & Ors.
(F.A. No.56/2018)
3. Thereafter Shri Rasil Singh filed appeal No.274/2011 titled Rasil Singh Versus Kalyan Singh & Ors before H.P. State Consumer Commission and appeal was decided on 31.05.2012. State Commission dismissed the appeal filed by Shri Rasil Singh. State Commission made clear that in case the matter would be decided by civil court and in case civil court would pass a decree holding that water line could not be taken along the path because of site belong to Shri Rasil Singh and Shri Ashok Kumar then order of civil court would be prevailed.
4. Thereafter execution petition under section 27 of Consumer Protection Act 1986 was filed by executant. Thereafter non-executants No.2 & 3 Shri Rasil Singh and Shri Ashok Kumar have filed objections before learned Executing Forum and denied all the controversial facts mentioned in the execution petition. Thereafter after hearing the parties learned Executing Forum dismissed the execution petition filed by executant. Feeling aggrieved against order passed by Learned Executing Forum Shri Kalyan Singh filed present appeal under section 27-A of Consumer Protection Act 1986 before State Commission.
5. We have heard appellant in person and we have heard learned advocates appearing on behalf of respondents and we have also perused entire record carefully. 3
Kalyan Singh Versus Asst. Engineer Public Health & Irrigation & Ors.
(F.A. No.56/2018)
6. 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?
2. Final order.
Findings upon point No.1 with reasons:
7. Submission of learned Advocate appearing on behalf of appellant that order of learned Executing Forum is contrary to law and contrary to proved facts and on this ground appeal be allowed is decided accordingly. It is proved on record that H.P State Commission in appeal No.274/2011 dismissed the appeal and affirmed order passed by learned District Forum with the rider that order of learned civil court if any would prevail. There is no evidence on record in order to prove that Shri Rasil Singh or Shri Ashok Kumar filed any civil suit.
8. It is proved on record that Shri Mehar Chand son of Shri Ran Singh filed civil suit No.218/2012 before learned Civil Judge (Sr. Divn.) Nadaun District Hamirpur H.P against Shri Kalyan Singh executant and it is proved on record that application under order 39 Rule 1&2 of CPC was also filed and same was dismissed by learned Civil Judge (Sr. Divn.) Nadaun District Hamirpur H.P on dated 12.09.2013. 4
Kalyan Singh Versus Asst. Engineer Public Health & Irrigation & Ors.
(F.A. No.56/2018)
9. It is proved on record that thereafter civil misc. appeal No.08/2014 was filed by Shri Mehar Chand before Ld. Addl. District Judge Hamirpur H.P titled Mehar Chand Versus Kalyan Singh and order of Ld. Civil Judge (Sr. Divn.) Nadaun District Hamirpur was affirmed and Misc. Appeal No.08/2014 was dismissed on 22.12.2014. It is proved on record thereafter Shri Mehar Chand filed CMPMO No.21/2015 before Hon'ble High Court of H.P and same was dismissed on dated 26.08.2015.
10. There is no evidence on record in order to prove that Shri Rasil Singh and Shri Ashok Kumar have filed any civil suit. On the contrary civil suit was filed by Shri Mehar Chand who was not co-party in consumer complaint No.30/2009. Even as of today there is no order against Shri Kalyan Singh passed by any civil court retraining the executant from laying water pipe lines.
11. Learned executing Forum did not obtain any evidence by way of affidavits upon objection petition qua controversial facts and did not give any opportunity to executant to prove by way of affidavits that non-executants have intentionally and voluntarily disobeyed the order passed by learned District Forum in consumer complaint No.30/2009. We have perused the zimni orders of learned District Forum carefully. Learned Executing Forum did not 5 Kalyan Singh Versus Asst. Engineer Public Health & Irrigation & Ors.
(F.A. No.56/2018) list the execution petition for evidence of objectors. It is well settled law that in execution proceedings objectors are under legal obligation to prove the controversial facts mentioned in objection petition.
12. In view of the fact that learned Executing Forum did not list the execution petition for evidence of objectors who have disputed controversial facts alleged in the execution petition it is held that learned Executing Forum has committed material procedural irregularity. It is held that by way of procedural material irregularity miscarriage of justice has been caused to the executant.
13. State Commission is of the opinion that it is expedient in the ends of justice and on the principle of natural justice that matter be remitted back to learned Executing Forum to obtain evidence of objectors by way of affidavits relating to controversial facts and thereafter to obtain rebuttal evidence of executor by way of affidavits and thereafter to dispose of execution petition in accordance with law and proved facts.
14. Submission of learned Advocates appearing on behalf of respondents that order of learned Executing Forum is in accordance with law and in accordance with proved facts is decided accordingly. State Commission is of the opinion that learned Executing Forum has committed material procedural irregularity which has caused miscarriage of 6 Kalyan Singh Versus Asst. Engineer Public Health & Irrigation & Ors.
(F.A. No.56/2018) justice to executant by way of not receiving evidence of objectors and non-objector by way of affidavits as per mode mentioned under section 13(4) of Consumer Protection Act 1986. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to dispose of present appeal on merits unless material procedural irregularity is not rectified. Section 27 of Consumer Protection Act 1986 is punitive section. Execution petition under section 27 of Consumer Protection Act 1986 should be tried by learned Executing Forum summarily as per provision of Code of Criminal Procedure 1973. Procedure of summary trial is mentioned under chapter XXI of Code of Criminal Procedure 1973. Remand of matter is essential in the ends of justice and on the principle of natural justice in order to dispose of execution petition properly and effectively. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order
15. In view of findings upon point No.1 above appeal is allowed. Order of learned Executing Forum announced in execution application No.04/2016 decided on 08.02.2018 is set aside. Matter is remanded back to learned Executing Forum Hamirpur (H.P) with direction that learned Executing Forum shall try execution petition filed under section 27 of Consumer Protection Act 1986 as per provision of chapter XXI 7 Kalyan Singh Versus Asst. Engineer Public Health & Irrigation & Ors.
(F.A. No.56/2018) of Code of Criminal Procedure 1973. Learned Executing Forum shall give notice of accusation to non-executors as per provisions of chapter XXI of Code of Criminal Procedure 1973 and thereafter shall dispose of execution petition as per law and proved facts. Learned Executing Forum shall dispose of execution petition expeditiously within two months after the receipt of file. Be listed before learned Executing Forum Hamirpur on date 04.12.2018. Parties are left to bear their own litigation costs before State Commission. 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 costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member 19.11.2018 KD* 8