State Consumer Disputes Redressal Commission
Kailash Chand vs Kuldeep Raj And Others on 16 February, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.897 of 2013
Date of Institution: 21.08.2013.
Date of Decision : 16.02.2016.
Kailash Chander son of Kartar Nath, R/o Bharat Nagar, Mirpur
Colony, Pathankot Tehsil and District.
.....Appellant/opposite party no.3
Versus
1. Kuldeep Raj son of Kartar Nath, resident of Bharat Nagar Mirpur
Colony, Pathankot Tehsil and District.
.....Respondent/complainant
2. Punjab State Power Corporation through its Head of Department,
The Mall Patiala.
3. S.D.O. Punjab State Power Corporation Limited, Sub Division
Pathankot, Tehsil and District Pathankot.
.....Respondents no.2&3/opposite parties no.1&2
First appeal against order dated
04.07.2013 passed by the District
Consumer Disputes Redressal
Forum, Gurdaspur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri H.S. Guram, Member.
Present:-
For the appellant : Sh. S.K. Chaudhary, Advocate For respondent no.1 : Sh. R.D. Sharma, Advocate For respondents no.2&3: Sh. Naveen Sharma, Advocate ................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant of this appeal (opposite party no.3 in the complaint) has directed this appeal against respondent no.1 herein (the complainant in the complaint) and respondents no.2 & 3 of this appeal (opposite parties no.1 & 2 in the complaint), challenging order dated 04.07.2013 of District Consumer Disputes Redressal Forum Gurdaspur (in short the "District Forum"), accepting the complaint of First Appeal No.897 of 2013 2 the complainant by directing OPs no.1 & 2 to install electricity connection and to release electricity connection in the premises of complainant at first floor in his own occupation at Bharat Nagar, Meerpur Colony, Pathankot and to pay the amount of Rs.5000/- as compensation of mental harassment, besides Rs.5000/- as litigation expenses to the complainant.
2. Complainant Kuldeep Raj has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainant has been residing in joint hindu family, being co-sharer. OP no.3 is the step brother of the complainant, who has been residing on the ground floor of the same house. The complainant himself is in service in Revenue Department at J & K State. The complainant applied for electric connection with OPs no.1 and 2 after fulfilling the formalities regarding test report and deposit of security and other miscellaneous charges. The complainant deposited security, vide receipt B.A.-16 no.370/4555 dated 12.07.2010. OP no.2 came to house of complainant after completion of formalities for installation of electric meter. The step brother of the complainant wrongly intimated the employees of OPs no.1 and 2 regarding pendency of some dispute pertaining to the house and stopped them from installing the electric connection in the first floor of the house, which in joint possession of complainant. The step mother of complainant OP no.3 filed civil suit for possession against complainant regarding ejectment of complainant from the first floor of the said house. Step mother of the First Appeal No.897 of 2013 3 complainant died and complainant and his step brother Kailash Chander and step sister Jyoti became the co-sharers in the house in dispute, being joint family property. The said suit is pending before Civil Court at Pathankot. OPs no.1 and 2 refused to release the electricity connection in the house of the complainant. The complainant filed suit for mandatory injunction at Civil Courts Pathankot and interim application therein was dismissed on the basis of forged application dated 27.10.2010 produced by the step brother of the complainant. It was further alleged that complainant could not move an application on 27.10.2010 for not getting the electric connection to OPs. The complainant has, thus, prayed that OPs no.1 and 2 be directed to install the electric connection on the first floor of the said house and also claim compensation and costs of litigation.
3. Upon notice, OPs no.1 and 2 appeared and filed written reply and contested the complaint of the complainant on the preliminary objections that complainant is estopped by his own act and conduct from filing the complaint. The complainant filed civil suit titled as "Kuldip Raj Vs. PSPCL & another" for mandatory injunction pertaining to the same matter, wherein his application was dismissed as withdrawn. The complainant withdrew that suit and has not sought the permission of the court to file fresh suit on the same cause of action. The complainant has no cause of action to file the complaint. It was averred that it is not purely a consumer dispute at all. On merits, the answering OPs denied their knowledge regarding First Appeal No.897 of 2013 4 the joint hindu family house and about complainant, being co-sharer for the last many years. It was further pleaded that electric connection was not released in favour of complainant, as he himself moved an application on 27.10.2010 that he did not require it. It was admitted that complainant filed civil suit, as referred to above for mandatory injunction. It was denied that answering OPs connived with step brother of the complainant. OPs no.1 and 2 prayed for the dismissal of the complaint.
4. OP no.3 filed separate written reply and contested the complaint of the complainant on the preliminary objections that complaint is not maintainable and complainant has no locus standi to file the complaint. The complainant is estopped by his own act and conduct from filing the complaint. The matter is complex in nature, which cannot be adjudicated in summary procedure by the Forum. On merits, OP no.3 admitted that complainant is in possession of a portion of the house at first floor, which has been occupied by complainant illegally and forcibly. The suit for possession was filed by mother Kamla Devi of OP no.3, being exclusive owner of the house. OP no.3 being legal heir has contested the said case. The complainant is employed in the Revenue Department at J & K State and has been residing with his family thereat for the last more than 15 years. The complainant admitted himself to be step son of Kamla Devi and he has, thus, no right or concern with the property of Kamla Devi her mother. OP no.3 prayed for the dismissal of the complaint. First Appeal No.897 of 2013 5
5. The complainant tendered in evidence affidavit and documents Ex.C-1 to C-16 and closed the evidence. As against it, OPs no.1 and 2 tendered in evidence affidavit and documents Ex.R-1 to R-7 and closed the evidence. OP no.3 tendered in evidence affidavit and documents Ex.R-8 to Ex.R-12 and closed the evidence. On conclusion of evidence and arguments, the District Forum partly accepted the complaint of the complainant, as referred to above. Dissatisfied with the above, OP no.3, now appellant has directed this appeal against the same.
6. We have heard the learned counsel for the parties and have also examined the material evidence on the record. From pleadings of the parties, it is evident that complainant asserted himself to be co-sharer in the joint house with the joint family. The complainant asserted that he has been in possession of first floor of the said house, where the electricity connection is to be installed. Written statement of OP no.3 has been perused by us. OP no.3 admitted in para no.1 of the written reply that complainant is in possession of first floor of the said house. It is different matter that he pleaded that it was occupied illegally by the complainant. Possession of complainant on first floor in the above joint house is admitted by OP no.3, the present appellant. The step mother of the complainant filed suit for possession, which prima facie proves that complainant is in possession of first floor of the house, otherwise there was no need to seek possession from him of the house. Affidavit of complainant Ex.C-1 has been examined by us. He stated First Appeal No.897 of 2013 6 in this affidavit that his step mother filed suit for possession against him for his eviction from the first floor of the house. We can, thus, safely infer that complainant's possession over the first floor of the house stands admitted even by OP no.3. From perusal of Ex.C-11, the civil suit for possession, the possession of complainant stands proved. The complainant applied for electricity connection in the portion under his possession in the house to OPs no.1 and 2. The complainant made compliance of formalities in this regard. We refer to Ex.C-2 and C-3 on the record. The copy of ration card is Ex.C-3 on the record, even the Aadhar card of complainant Ex.C-6 is also shows the above address. The complainant applied to OPs no.1 and 2 for electricity connection, vide Ex.C-8 on the record. The test reports are Ex.C-9 and C-10. The complainant filed suit for mandatory injunction, vide Ex.C-12 and thereafter got withdrawn by him, vide C-15 on the record.
7. OPs no.1 & 2 relied upon affidavit of Er. Surinder Kumar, SDO of OPs Ex.R-1 to the effect that complainant did not require the electric connection at his residence and he moved an application in this regard to OPs no.1 & 2. Ex.R-2 is the affidavit of Pritam Chand, J.E. in this regard on the file. The main reliance of OPs no.1 & 2 is on Ex.R-3 letter dated 12.07.2010 under the signature of complainant to the effect that this connection be cancelled. The complainant has disowned it and stated that it is the ante work of OP no.3 in connivance with OPs no.1 and 2. We find no logic in moving this application Ex.R-3 by the complainant, when he was pressing First Appeal No.897 of 2013 7 hard for installation of electricity connection and went to the extent of filing civil suit also, which was thereafter dismissed as withdrawn. Ex.R-4 is the document of OPs no.1 & 2. The agreement is Ex.R-5 and Ex.R-6 on the record. Affidavit of Kailash Chander OP no.3 is Ex.R-8 on the record and copy of ration card is Ex.R-9 and copy of order of Sub Divisional Officer dated 31.03.2011 for sanctioning of the estate if Kamla Devi in favour of OP no.3 Kailash Chander and Smt. Maya Devi daughter of Kamla Devi is Ex.R-10 on the record. Consideredly, the complainant was step son of Kamla Devi and he would not be entitled to any share in the estate of Kamla Devi, who was his step mother only.
8. We conclude that originally father of the complainant was owner of the property and complainant being his son became the joint owner in joint possession in the property. He has been in possession over first floor of the house. He has applied for release of electricity connection. There is no stay order issued by any competent court restraining OPs no.1 and 2 from installing the electric connection in it. When a tenant is entitled to the electricity connection under the law of tenancy, then how a joint owner in joint possession can be denied, is not understandable. We do not find any force or logic in the application Ex.R-3 on the record relied upon by OPs no.1 & 2, because a person who earnestly seeks installation of electricity connection is not supposed to file such an application, when he has already completed the requisite formalities therefor. First Appeal No.897 of 2013 8 Consequently, we do not find any illegality or material infirmity in the order of the District Forum calling for any interference therein.
9. As a result of our above discussions, we find no merit in the appeal and the same is hereby dismissed.
10. Arguments in this appeal were heard on 10.02.2016 and the order was reserved. Now the order be communicated to the parties.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S.GURAM) MEMBER February 16, 2016.
(MM)