State Consumer Disputes Redressal Commission
Maninder Singh vs Harjinder Kaur on 3 April, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.752 of 2016
Date of Institution: 04.10.2016
Order Reserved on : 29.03.2017
Date of Decision: 03.04.2017
Maninder Singh s/o Major Singh r/o Village Machaki Khurd, Tehsil
and District Faridkot.
Appellant/Opposite party no.3
Versus
1. Harjinder Kaur w/o Baldev Krishan r/o Dogar Basti, Street No.
9 ( R), Faridkot, Tehsil and District Faridkot.
Respondent no.1/Complainant
2. Punjab State Power Corporation Ltd., The Mall, Patiala,
through its Chairman.
3. Assistant Executive Engineer, PSPCL, City Sub Division,
Faridkot, District Faridkot.
Respondents no.2 and 3/Opposite parties no.1 and 2
First Appeal against order dated
04.08.2016 passed by the District
Consumer Disputes Redressal Forum,
Faridkot.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt.Surinder Pal Kaur, Member Present:-
For appellant : Sh.Bir Davinder Singh, Advocate For respondent no.1 : Sh.Surinder Garg, Advocate For respondent nos.2&3 : Sh.H.S. Ghuman, Advocate ............................................
J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant has directed this appeal against order dated 04.08.2016 of District Consumer Disputes Redressal Forum Faridkot (in short the 'District Forum), directing respondents nos.1 First Appeal No. 752 of 2016 2 and 2 of this appeal, being OPs no.1 and 2 in the complaint, to restore the electric connection of respondent no.1 of this appeal, being the complainant. The appellant of this appeal is opposite party no.3 in the original complaint before District Forum and respondent no.1 of this appeal is the complainant and respondents no.2 and 3 are OPs no.1 and 2 therein and they be referred as such hereinafter for the sake of convenience.
2. The complainant filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he is owner in possession of land measuring 17 kanals 16 marlas as 356/4272 share of land out of 213 kanals 12 marlas bearing khewat no.387, being co sharer. He got transferred a tubewell connection, which was in the name of one Subash Chander son of Amar Chand Sharma, to her name on 18.08.2010 and said Subash Chander also gave an affidavit to that effect. Even, OP nos.1 and 2 demanded objections through newspaper Rozana Spokesman dated 21.08.2010 regarding transfer of tubewell connection and when no objections were received from public, the OPs transferred the above mentioned tubewell connection in the name of the complainant after receiving transfer fee of Rs.1000/- from her and since the date of transfer, tubewell connection bearing no. AP 60/190 was in possession of her, as she was the owner of the same. OPs wrote a letter dated 11.04.2014 to complainant, wherein she was asked about said tubewell connection. The complainant approached OP no.2 and explained that she was the co-sharer in land measuring 213 kanals and 12 marlas and Subash Chander First Appeal No. 752 of 2016 3 transferred the said connection in her name and she also complied with all the rules and regulations of the OPs. On 04.10.2015, the complainant received letter no.1198 dated 20.08.2015, vide which, the OPs disconnected the above mentioned electricity connection without giving any notice/opportunity to her. The complainant immediately approached OP no.2 and requested to restore the above said tubewell connection, but to no effect. The complainant alleged deficiency in service and unfair trade practice on the part of OP nos.1 and 2. The complainant, thus, filed complaint directing the OPs to restore the tubewell connection, besides to pay Rs.50,000/- as compensation for mental harassment and cost of litigation.
3. Upon notice, OP nos.1 and 2 appeared and filed written reply and contested the complaint of the complainant vehemently. This fact was admitted by OPs that tubewell connection in question was issued in the name of Subash Chander and it was transferred to the name of the complainant and said Subash Chander gave affidavit to that effect also. The publication was also issued in newspaper Spokesman dated 21.08.2010 inviting objections, but no objection was received and the above said tubewell connection was transferred to the name of the complainant, but no change of site of it was done. It was averred that connection was purchased by complainant from Subash Chander, whereas land was purchased from Kanta Devi by her. PSEB issued instructions that any agricultural tubewell connection in the State could be shifted to any other place only in the name of original consumer or his family, provided that original consumer or his family got minimum one acre First Appeal No. 752 of 2016 4 of agriculture land. In case of purchase of land along with tubewell connection, the connection could be changed in the name of purchaser, but in the present case, connection has wrongly been changed in violation of mandatory rules and regulations of PSEB. As per rules and regulations of PSEB, her tubewell connection was disconnected. It was further averred that full opportunity was given to complainant to give proof that land was purchased from Subash Chander by her and she produced the record that she purchased land from Kanta Devi, who never sold the tubewell connection to her. The connection was wrongly changed in the name of complainant and it was righlty disconnected as per rules. Rests of the averments were denied by OPs and they prayed for dismissal of the complaint. During the pendency of the complaint, one Maninder Singh S/o Major Singh filed an application to implead him as party in the complaint, as the decision of the complaint would affect his tubewell connection, as such he was impleaded as opposite party no.3 by the District Forum.
4. OP no.3 filed separate written reply raising preliminary objections that after departmental enquiry by PSPCL and as per the local instructions of it, the tubewell connection of the complainant was disconnected. OP no.2 wrote letter to Subash Chander, who gave self declaration that he had no objection, if the tubewell connection was changed in the name of Maninder Singh, as portion of land, where connection was installed is in the name of Maninder Singh. It was further averred OP no.3 Maninder Singh completed all the formalities by submitting all necessary documents, whereupon First Appeal No. 752 of 2016 5 the above said tubewell connection was changed in his name, vide service connection order 11/0040 dated 10.11.2015 and now the said connection has been running in the name of OP no.3 Maninder Singh OP no.3 with account no.AP60/300. The complaint was also contested even on merits, on the above referred grounds by OP no.3. The answering OP controverted the averments of the complainant and prayed for dismissal of the complaint.
6. The complainant tendered in evidence her affidavit Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-10. As against it; OP nos.1 and 2 tendered in evidence affidavit Ex.OP-4 with copies of documents Ex.OP-1 to Ex.OP-3 and closed the evidence. OP no.3 tendered in evidence affidavit Ex.OP-5 with documents Ex.OP-6 to OP-17. On conclusion of evidence and arguments, the District Forum Faridkot accepted the complaint of the complainant. Dissatisfied with the order of the District Forum Faridkot dated 04.08.2016, OP no.3 now appellant, carried this appeal against the same.
7. We have heard learned counsel for the parties and have also examined the record of the case. The District Forum came to the conclusion that complainant is entitled to continuation of the above said tubewell connection in her name and as such accepted the complaint by passing order to this effect. Pleadings of the parties have been weighed by us carefully. Evidence on the record has also been evaluated by us. Ex.C-1 is the affidavit of Harjinder Kaur filed by her in support of her version. Ex.C-2 is the letter of Assistant Executive Engineer, PSPCL, Faridkot addressed to complainant to First Appeal No. 752 of 2016 6 the effect that complainant shifted the tubewell connection at her own level from Khasra no.4704 to Khasra no.4699 by violating the instructions of PSPCL department. It is stated in it that vide PDCO No.97/0013 dated 19.08.2015, the AP connection of complainant was disconnected. The receipt for sending the letter to the complainant is Ex.C-3 on the record. Ex.C-4 is the report of Assistant Executive Engineer, PSEB to complainant for disconnecting the electricity connection in the name of complainant, because Subash Chander earlier owner of the tubewell connection had not sold any land to the complainant. The complainant got the tubewell connection transferred in her name against instructions. Ex.C-5 is the notice inviting objections. Ex.C-6 is the receipt of payment deposited by Subash Chander and Ex.C-7 is the receipt of the amount deposited by the complainant for transfer of AP connection. Ex.C-8 is the affidavit of Harjinder Kaur filed by her before PSPCL on 18.08.2010. Ex.C-9 is the affidavit of Subash Chander filed before PSPCL for transfer of above said tubewell connection in the name of complainant. Ex.C-10 is the copy of Jamabandi for the year 2009- 2010.
8. The OPs also tendered in evidence rebuttal evidence, the report PSEB Department Ex.OP-1. Ex.OP-2 is the transfer of AP connection. Copy of sale deed 29.03.2010 executed by Kanta Devi in favour of complainant is Ex.OP-3. Ex.OP-4 is the affidavit of complainant. Ex.OP-5 is the affidavit of Maninder Singh OP no.3 to the effect that after departmental enquiry by PSPCL and as per the local instructions of it, the tubewell connection released to the First Appeal No. 752 of 2016 7 complainant was disconnected. OP no.3 also relied upon the documents Ex.OP-6 to OP-17, the letters, application forms for transferring the above said tubewell connection, copy of his adhar card, copy of jamabandi, copy of tubewell connection bearing no.AP- 60/190. OP no.3, who was impleaded as party during the pendency of the proceedings before District Forum and, thus, contested the complaint on the above referred averments.
9. On evaluation of above referred evidence on the record, we have come to this conclusion that Subash Chander was earlier owner of the tubewell connection bearing no.AP-60/190, which was installed in Khasra no.387, but he had not sold any land to complainant. The complainant got land by sale from Kanta Devi only and not from Subash Chander and this fact is proved on record by the sale deed Ex.OP-3. On the other hand, Subash Chander OP no.3 sold his land to another person and that person further sold it to OP no.3 Maninder Singh, which is proved on record, vide Ex.OP-15, who was the owner of tubewell connection and the same was transferred in the name of OP no.3 Maninder Singh. The complainant purchased the land from Kanta Devi, whereas OP no.3 purchased land, earlier which was in the name of Subash Chander in this case. Different circulars issued by OP nos.1 and 2 have been relied upon in this case, we conclude this controversy by holding that the complainant and OP no.3 are the co-sharers in the land in dispute. This fact is amply proved on record by the copy of Jamabandi for the year 2009-10, wherein both complainant and Maninder Singh OP no.3 are recorded as co-sharers in the property First Appeal No. 752 of 2016 8 in dispute. Every co-sharer has every right in the joint property and the machinery installed in it unless the joint land is partitioned. The definite rights of co-owners would be crystallized only after the partition of the joint property. Since, the complainant and OP no.3 are the co-sharers and hence they have the joint right to user of the tubewell connection, which has been installed in the property. Now, the controversy as to whether it should be transferred in the name of complainant or in the name of OP no.3 has been determined on the basis of circular by the District Forum. We find that the matter is complex in this case, which cannot be adjudicated in summary proceedings by Consumer Forum. The co-owner has vested legal right in every inch of the joint property and the things attached with it, unless the property is partitioned. The complainant relied upon affidavit of Subash Chander previous owner of the tubewell connection Ex.C-9 without purchase of land from him. OP no.3 also relied upon affidavit of Subash Chander for transferring the tubewell connection in his name vide Ex.OP-10 on the record dated 16.10.2015. Subash Chander suffered two contradictory affidavits, one in favour of complainant and another in favour of OP no.3 in this case. Keeping in view the controversy that Subash Chander suffered two contradictory affidavits and the fact that both the parties are co- owners of the property in dispute, the administrative instructions cannot override the settled law, even approved by the Higher Courts of the country that co-owner has interest in every part of the joint property till it is partitioned. We are of this view that the matter cannot be adjudicated in summary proceedings by the Consumer First Appeal No. 752 of 2016 9 Forum and it needs to be relegated for adjudication to a regular competent Civil Court. In view of the facts and circumstances of the case and the complexity of the matter involved in it making it necessary for relegation of this matter in dispute to the Civil Court, which is a competent Forum.
10. As a result of our above discussions, we set aside the order of the District Forum under challenge in this appeal by accepting the appeal and we hereby dismiss the complaint of the complainant by leaving the complainant to approach the Civil Court for adjudication of the controversy and she is at liberty to do so. The complainant can invoke Section 14 of Limitation Act, 1963 in this regard.
11. Arguments in this appeal were heard on 29.03.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER April 03, 2017 MM