State Consumer Disputes Redressal Commission
Sh. Dinesh Kumar. vs Ghatti Bilwan Co-Op. Agriculture ... on 28 May, 2018
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
Revision Petition No.: 39/2017
Date of Presentation: 23.10.2017
Order Reserved On : 27.03.2018
Date of Order : 28.05.2018
......
Shri Dinesh Kumar s/o Shri Sadhu Ram r/o V.P.O. Ghatti
Bilwan Tehsil Jaswan District Kangra H.P.
...... Revisionist/Executor/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-executors/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 : Mr. Rohit Chauhan Advocate
vice Mr. Digvijay Singh Advocate.
For Non-revisionist No.1: Ex-parte.
For Non-revisionist No.2: Mr. Suresh Singh 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 passed by learned Executing Forum dated 22.07.2017 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.39/2017) execution application No.36/2016 title Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. Brief facts of execution application:
2. Complainant Dinesh Kumar filed consumer complaint No.141/2015 under section 12 of Consumer Protection Act 1986 which was disposed of by learned District Forum on dated 25.02.2016. Learned District Forum ordered opposite parties to jointly and severally pay sum of Rs.55300/-(Fifty five thousand three hundred) to the complainant alongwith interest @ 9% per annum from the date of complaint till payment. In addition learned District Forum ordered opposite parties jointly and severally to pay compensation for harassment 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 passed by learned District Forum attained stage of finality. Thereafter execution application No.36/2016 under section 25 of Consumer Protection Act 1986 was filed by Executor before learned Executing Forum. On dated 15.12.2016 Shri Subhash Chand who was then President of Ghatti Bilwan Co-operative Society has given undertaking before learned Executing Forum that he would pay the entire amount within 2 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.39/2017) two weeks w.e.f. 15.12.2016. Thereafter on 27.12.2016 learned Executing Forum has passed the ordered that Shri Subhash Chand then President Ghatti Bilwan Cooperative Agricultural Society flouted the undertaking given before learned Executing Forum 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. Learned Executing Forum also imposed fine of Rs.2000/- (Two thousand) upon Shri Subhash Chand. Learned Executing Forum further 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 24.01.2017.
3. Thereafter appeal No.17/2017 was filed by Ghati Bilwan Co-operative Agricultural Service Society through its President Shri Subash Chand under Section 27A of Consumer Protection Act 1986 against order dated 27.12.2016 passed by learned Executing Forum before State Commission which was disposed of by State Commission on dated 03.05.2017. State Commission allowed the appeal and set aside the order dated 27.12.2016 passed by learned Executing Forum in execution petition No.36/2016 and State Commission remanded back the execution petition to learned 3 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.39/2017) Executing Forum with 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 dispose of execution application within one month after receipt of file.
4. After receipt of execution application by way of remand learned Executing Forum listed the execution petition on 19.05.2017 and on 19.05.2017 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 02.06.2017. On dated 02.06.2017 learned Executing Forum passed order that request letter be sent to the State Commission for extension of time to dispose of execution application. Learned Executing Forum prayed six months time for disposal of execution application vide letter Annexure-A.
5. State Commission on administrative side declined the request of extension of time on the ground that as per Section 13(3A) of Consumer Protection Act 1986 matter under Consumer Protection Act 1986 should be disposed of within 4 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.39/2017) three months. Extension was sought by learned Executing Forum for six months contrary to section 13(3A) of Consumer Protection Act 1986 and extension was declined. Thereafter learned Executing Forum listed the execution application on dated 29.06.2017, 18.07.2017 and 22.07.2017. On dated 22.07.2017 learned Executing Forum dismissed the execution application without satisfaction on the ground that extension sought by Executing Forum was not granted by State Commission.
6. Feeling aggrieved against order passed by learned Executing Forum revisionist filed present revision petition before State Commission.
7. We have heard learned advocates appearing on behalf of revisionist and non-revisionist No.2 and we have also perused entire record carefully. None appeared on behalf of non-revisionist No.1 despite service and non-revisionist No.1 was proceeded ex-parte by State Commission.
8. 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.
5 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.39/2017) Findings upon point No.1 with reasons:
9. Submissions of learned advocate appearing on behalf of revisionist that learned Executing Forum has misinterpreted administrative order passed by State Commission and on this ground revision petition be allowed is decided accordingly. It is proved on record that Appeal No. 17 of 2017 titled Ghatti Bilwan Cooperative Agriculture Service Society Versus Dinesh Kumar & Anr. was filed before State Commission which was disposed of on dated 03.05.2017 by State Commission. It is proved on record that State Commission ordered learned Executing Forum to satisfy 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 State Commission also directed that Collector would recover 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. It is proved on record that learned Executing Forum did not issue show cause notice to the Collector to recover the amount due 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 6 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.39/2017) 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 did not summon learned Collector personally before learned Executing Forum to comply order of State Commission.
10. It is proved on record that on the contrary learned Executing Forum has sought extension of six months for disposal of execution application from State Commission.
Extension was declined because extension was sought contrary to section 13(3A) of Consumer Protection Act 1986. State Commission failed to understand as to why extension of six months for disposal of execution application was sought when as per Consumer Protection Act 1986 matter should be disposed of within three months after the receipt of notice by adverse party.
11. It is held that learned Executing Forum has misinterpreted administrative order passed by State Commission. State Commission did not mention in the administrative order that execution application filed by executor would be dismissed as unsatisfied. On the contrary State Commission has given direction to the learned 7 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.39/2017) Executing Forum that learned Executing Forum would satisfy execution application within one month after the receipt of file. In view of above stated facts it is held that learned Executing Forum has misunderstood the administrative order passed by State Commission.
12. State Commission is of the opinion that words mentioned "And Collector shall proceed to recover the amount in the manner as arrears of land revenue" under Section 25 (3) of Consumer Protection Act 1986 are conjunctive in nature. It is held that word 'And' is always used in conjunctive mode and not used in independent 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 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 which has attained stage of finality. 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 8 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.39/2017) 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.
13. 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 District 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.
14. Submission of learned Advocate appearing on behalf of non-revisionist No.2 that order passed by learned Executing Forum is in accordance with law is decided accordingly. It is held that learned Executing Forum has misinterpreted the administrative order passed by State Commission qua extension of time for disposal of execution application. 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 9 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.39/2017) Commission, as the case may be, the person entitled to the amount may make an application to the District Forum, the 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.
15. 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 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.
16. 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 10 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.39/2017) execution proceedings and it is held that learned Executing Forum is under legal obligation to satisfy the execution application strictly as per original order 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
17. In view of findings upon point No.1 above revision petition is allowed. Order of learned Executing Forum dated 22.07.2017 passed in execution application No.36/2016 is set aside and execution application is remanded back to learned Executing Forum with direction to satisfy execution application No.36/2016 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 learned Executing Forum shall adopt coerce mode against learned Collector in accordance with law. 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 11 Dinesh Kumar Versus Ghatti Bilwan Co-operative Agricultural Society & Anr. (R.P. No.39/2017) spirit of Consumer Protection Act 1986 passed by Parliament of India. Request sent by Executing Forum annexure-A dated 05.06.2017 for extension of time of six months for disposal of execution application No.36/2016 shall form part and parcel of order. Parties are directed to appear before learned Executing Forum on 06.06.2018. Execution application be listed before learned Executing Forum on 06.06.2018. Observations shall not effect merits of execution application in any manner and shall be strictly confined for disposal of revision petition. 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 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 28.05.2018.
*GUPTA* 12