State Consumer Disputes Redressal Commission
Dr. Chander Shekhar Sharma. vs H.P.S.E.B. Ltd. & Ors. on 29 March, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 161/2018
Date of Presentation: 25.06.2018
Order Reserved on : 28.11.2018
Date of Order : 29.03.2019
......
Dr. Chander Shekhar Sharma Son of Shri Hari Dutt Sharma
Director Himachal Education Society Village Bijani Tehsil Sadar
District Mandi H.P.
...... Appellant/Complainant
Versus
1. H.P.S.E.B Ltd. through its Executive Director (P)-cum-
C.E.O. Vidyut Bhawan Kumar House Shimla H.P.
2. Sr. Executive Engineer HPSEB Ltd. Division Mandi
District Mandi H.P.
3. Assistant Engineer HPSEBL Sub Division No. III Mandi
District Mandi H.P.
4. Town and Country Planning Department Himachal
Pradesh through Town and Country Planner Divisional
Town Planning Office Mandi H.P.
......Respondents/Opposite parties
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Varun Chandel Advocate.
For Respondents No.1to3 : Mr. Ramakant Sharma Advocate.
For Respondent No.4 : Mr. Bhairav Negi ADA.
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Whether reporters of the local papers may be allowed to see the order? Yes.
Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018)
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 22.05.2018 passed by Learned District Forum in consumer complaint No.78/2016 titled Dr. Chander Shekhar Sharma Versus HPSEB Ltd. & Ors.
Brief facts of Matter:
2. Complainant filed consumer complaint under Section 12 of Consumer Protection Act 1986 pleaded therein that complainant is Director of Himachal Education Society which is registered with the Registrar of Societies under the Societies Registration Act. It is pleaded that Society purchased the land situated at Mohal Bijani Tehsil Sadar District Mandi H.P. comprised in Khasra No.1460/1185/60 alongwith pre-existing built up structure which was existing on the land prior to the enforcement of H.P. Town and Country Planning Act 1977. It is further pleaded that pre-existing structure was not in proper condition and in order to avoid any mishap on dated 16.01.2015 and 07.02.2015 complainant submitted written representations to opposite party No.3 to shift the meter to some other safer place. It is further pleaded that on dated 26.04.2015 officials of opposite parties No.1 to 3 came to the premises of 2 Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018) complainant and without any notice disconnected the Electricity Meter No.BRF-154 of the premises of complainant.
It is further pleaded that opposite parties committed deficiency in service. Complainant sought relief that opposite parties be directed to restore electricity connection bearing Meter No.BRF-154 of complainant. In addition complainant sought relief of payment of Rs.50000/- (Fifty thousand) on account of mental agony and harassment. In addition complainant sought relief of payment of Rs.20000/- (Twenty thousand) as litigation costs. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties No.1 to 3 pleaded therein that opposite parties No.1 to 3 did not commit any deficiency in service. It is pleaded that electricity connection was disconnected after receipt of letter from Town and Country Planner on dated 26.11.2014. It is further pleaded that opposite parties No. 1 to 3 did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Per contra version filed on behalf of opposite party No.4 pleaded therein that no objection certificate was given to complainant by opposite party No.4 for existing single storeyed building only measuring 8.35 X 6.20 mtrs. It is pleaded that on dated 25.11.2014 Junior Engineer of Town 3 Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018) and Country Planning inspected the site and it was found that three storeyed building was constructed by the complainant. It is further pleaded that complainant has raised unauthorized and illegal construction and has violated the H.P. Town and Country Planning Act 1977 and Rules. It is further pleaded that notice under Section 39 of H.P. Town and Country Planning Act 1977 was given to the complainant. It is further pleaded that complainant has raised unauthorized construction after dismantling the existing old structure. It is further pleaded that even Town and Country Planner personally inspected the site and found that complainant has raised unauthorized and illegal construction. It is pleaded that opposite party No.4 did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
5. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint.
6. Learned District Forum dismissed the complaint and also imposed costs upon the complainant to the tune of Rs.10000/- (Ten thousand).
7. Feeling aggrieved against order passed by learned District Forum complainant filed present appeal before State Commission.
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Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018)
8. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
9. Following points arise for determination in present appeal.
1. Whether appeal filed by complainant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether it is expedient in the ends of justice and on the principles of natural justice to restore electricity connection of the illegal and unauthorized construction qua which notice has been issued under Section 39 of H.P. Town and Country Planning Act 1977 to the complainant?
2. Final order.
Findings upon point No.1 with reasons:
10. Complainant filed affidavit in evidence. There is recital in affidavit that complainant is Director of Himachal Education Society which is registered with the Registrar of Societies under the Societies Registration Act. There is further recital in affidavit that Society purchased the land situated at Mohal Bijani Tehsil Sadar District Mandi H.P. comprised in Khasra No.1460/1185/60 alongwith pre-existing built up structure which was existing on the land prior to the enforcement of H.P. Town and Country Planning Act 1977.
There is further recital in affidavit that pre-existing structure 5 Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018) was not in proper condition and in order to avoid any mishap complainant submitted written representations to opposite party No.3 to shift the electrical meter to some other safer place. There is further recital in affidavit that on dated 26.04.2015 officials of opposite parties No.1 to 3 came to the premises of complainant and without any notice disconnected the Electricity Meter No.BRF-154 of the premises of complainant. State Commission has carefully perused all the annexures filed by complainant.
11. Opposite parties No.1 to 3 filed affidavit of Er. Desh Raj Sr. Executive Engineer HPSEBL Mandi H.P. in evidence. There is recital in the affidavit that electricity connection in question was disconnected after receipt of letter dated 26.11.2014 from Town and Country Planning Authority. State Commission has carefully perused all the annexures filed by opposite parties No.1 to 3.
12. Opposite party No.4 i.e. Town and Country Planning Authority filed affidavit of Dinesh Lata Guleria in evidence. There is recital in the affidavit that complainant has raised illegal and unauthorized construction and notice under Section 39 of H.P. Town and Country Planning Act 1977 was issued to the complainant. There is further recital in affidavit that deponent has personally inspected the site on dated 22.04.2016 in the presence of complainant and found that old 6 Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018) building for which NOC was issued was not in existence at the site and complainant has raised new unauthorized and illegal construction at the site in violation of H.P. Town and Country Planning Act 1977.
13. Opposite party No.4 also filed affidavit of Chitterlekha Kapoor Assistant Town Planner in evidence. There is recital in the affidavit that as per site inspection report old building for which the NOC was issued by opposite party No.4 was not in existence at the spot. There is further recital in affidavit that complainant has demolished the old structure at the spot and raised new three storeyed building structure in illegal and unauthorized manner and in violation of H.P. Town and Country Planning Act 1977. There is further recital in affidavit that as per H.P. Town and Country Planning Act 1977 if a person rebuilt an old structure without the prior permission of Town and Country Planning Department then no objection certificate earlier issued relating to old structure could be revoked by H.P. Town and Country Planning Authority. There is further recital in affidavit that notice was given to the complainant under Section 39 of H.P. Town and Country Planning Act 1977 relating to illegal and unauthorized construction raised by him. State Commission has carefully perused all the annexures filed by opposite party No.4.
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Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018)
14. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for restoration of Electricity Meter No.BRF-154 and on this ground appeal filed by complainant be allowed is decided accordingly. Dinesh Lata Guleria Town and Country Planner has specifically mentioned in the affidavit that complainant has raised unauthorized and illegal construction at the spot. Even Chitterlekha Kapoor Assistant Town Planner has also mentioned in the affidavit that complainant has raised illegal and unauthorized construction and notice under Section 39 of H.P. Town and Country Planning Act 1977 was issued to the complainant. Affidavits filed by Dinesh Lata Guleria Town and Country Planner and Chitterlekha Kapoor Assistant Town Planner are trustworthy, reliable and inspire confidence of State Commission. There is no evidence on record in order to prove that Dinesh Lata Guleria Town and Country Planner and Chitterlekha Kapoor Assistant Town Planner have hostile animus against the complainant at any point of time. Dinesh Lata Guleria Town and Country Planner and Chitterlekha Kapoor Assistant Town Planner have specifically mentioned in their affidavits that complainant had demolished the old building and constructed three storeyed new building in illegal and unauthorized manner violating the H.P. Town and Country Planning Act 1977. It is well settled law that the person who seeks equity must do equity himself. In view of 8 Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018) the fact that complainant has raised illegal and unauthorized construction and has violated the H.P. Town and Country Planning Act 1977 & Rules intentionally and voluntarily State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to restore the electricity connection bearing Meter No. BRF-154 of the complainant because as per H.P. Town and Country Planning Act if old building is demolished without the prior approval of Town and Country Planning Department then earlier NOC could be revoked by H.P. Town and Country Planning Authority under Section 37 of H.P. Town and Country Planning Act 1977.
15. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for compensation to the tune of Rs.50000/- (Fifty thousand) for mental agony and harassment is decided accordingly. State Commission is of the opinion that the person who seeks equity must do equity himself. In the present matter it is proved on record that complainant has demolished the old structure without prior approval or without obtaining NOC from the competent authority and State Commission is of the opinion that complainant is not legally entitled for relief due to his own act and conduct.
16. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for 9 Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018) sum of Rs.20000/- (Twenty thousand) as litigation costs is decided accordingly. State Commission is of the opinion that complainant has himself demolished the old building and raised three storeyed new construction in illegal and unauthorized manner contrary to the H.P. Town and Country Planning Act 1977. State Commission is of the opinion that complainant is not legally entitled for relief of payment of litigation costs due to his own act, conduct and deed. It is held that violator of H.P. Town and Country Planning Act 1977 is not legally entitled for any relief.
17. Submission of learned Advocate appearing on behalf of complainant that illegal notice has been issued to the complainant under Section 39 of H.P. Town and Country Planning Act 1977 and on this ground appeal filed by complainant be allowed is decided accordingly. State Commission is of the opinion that H.P. Town and Country Planning Act 1977 is independent Statutory Act. State Commission is of the opinion that notice issued under Section 39 of H.P. Town and Country Planning Act 1977 could not be quashed under Consumer Protection Act 1986. State Commission is of the opinion that remedy of complainant is to file appeal as provided under H.P. Town and Country Planning Act 1977 which is an independent Statutory Act. Complainant did not place on record any document in order to prove that complainant has filed appeal or revision under 10 Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018) Sections 32 or 33 of H.P. Town and Country Planning Act 1977 relating to notice issued to him under Section 39 of H.P. Town and Country Planning Act 1977. It is proved on record that opposite parties No.1 to 3 have simply complied the order of Statutory Authority i.e. H.P. Town and Country Planning Authority. Even as per Section 83 A of H.P. Town and Country Planning Act 1977 service providing authorities relating to electricity, water, sewerage connections are under legal obligation to comply order of H.P. Town and Country Planning Authority forthwith.
18. Submission of learned Advocates appearing on behalf of opposite parties that order of learned District Forum is in accordance with law and in accordance with proved facts and on this ground appeal filed by complainant be dismissed is decided accordingly. It is held that notice has been issued to complainant under Statutory Act i.e. H.P. Town and Country Planning Act 1977 relating to illegal and unauthorized construction raised by complainant. It is also proved on record that opposite parties No.1 to 3 have disconnected the electricity connection as per direction of Statutory Authority i.e. Town and Country Planning Department and State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to set aside notice issued under Section 39 of H.P. Town and Country Planning Act 1977 under Consumer 11 Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018) Protection Act 1986. As per Section 83-A of H.P. Town and Country Planning Act 1977 no electricity, water or sewerage connection shall be given in unauthorized construction matter. Point No.1 is decided accordingly. Point No.2: Final Order
19. In view of findings upon point No.1 above appeal is dismissed. Order of learned District Forum is affirmed. Letter dated 25.11.2014 Annexure C-9 issued by Town and Country Planner Mandi (H.P.) to Executive Engineer HPSEB Division Mandi (H.P.) for disconnection of electricity immediately under intimation to Town and Country Planner Mandi shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District 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 Sunita Sharma Member 29.03.2019.
*GUPTA* 12 Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018) H. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION SHIMLA Misc. Application No. : 441/2018 First Appeal No. : 161/2018 Date of presentation of MA : 25.06.2018 Order announced in MA : 29.03.2019 Dr. Chander Shekhar Sharma Son of Shri Hari Dutt Sharma Director Himachal Education Society Village Bijani Tehsil Sadar District Mandi H.P. ...... Applicant/Appellant/Complainant Versus
1. H.P.S.E.B Ltd. through its Executive Director (P)-cum-
C.E.O. Vidyut Bhawan Kumar House Shimla H.P.
2. Sr. Executive Engineer HPSEB Ltd. Division Mandi District Mandi H.P.
3. Assistant Engineer HPSEBL Sub Division No. III Mandi District Mandi H.P.
4. Town and Country Planning Department Himachal Pradesh through Town and Country Planner Divisional Town Planning Office Mandi H.P. ......Non-applicants/Respondents/Opposite parties Coram Hon'ble Justice P.S. Rana (R) President Hon'ble Mr. Vijay Pal Khachi Member Hon'ble Ms. Sunita Sharma Member Whether approved for reporting?2 Yes.
For Applicant : Mr. Varun Chandel Advocate. For Non-applicants No.1to3: Mr. Ramakant Sharma Advocate. For Non-applicant No.4 : Mr. Bhairav Negi ADA. 2 Whether reporters of the local papers may be allowed to see the order? Yes. 13
Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018) JUSTICE P.S. RANA (R) PRESIDENT :
O R D E R :-
1. Present application is filed by applicant for adducing additional evidence at appellate stage. Applicant intends to place on record certificate issued by Panchayat, copy of Ration Card and copy of Gas Connection. It is pleaded that above-stated documents are essential for adjudication of present appeal properly and effectively. Prayer for acceptance of application sought.
2. Per contra response filed on behalf of non-
applicants No. 1 to 3 pleaded therein that application has been filed by applicant at appellate stage with malafide intention to fill up lacunas in the present matter. Prayer for dismissal of present application sought.
3. We have heard learned Advocates for applicant and non-applicants and we have also perused entire record carefully.
4. Following points arise for determination in present application.
1. Whether application filed by applicant for adducing additional evidence in appellate stage is liable to be accepted as mentioned in memorandum of grounds of application.
2. Final order.
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Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018) Findings upon point No.1 with reasons:
5. Submission of learned Advocate appearing on behalf of applicant that certificate issued by Panchayat, copy of Ration Card and copy of Gas Connection are material for the adjudication of appeal and on this ground application filed for adducing additional evidence in appellate stage be allowed is decided accordingly. State Commission is of the opinion that at appellate stage additional documents could be placed on record if following conditions are fulfilled (i) Learned District Forum has refused to admit the document in evidence which ought to have been admitted (ii) That parties seeking to produce additional evidence in appellate stage established that notwithstanding after exercise of due diligence such evidence was not within the knowledge of party or could not after exercise of due diligence be produced at the time when final order was passed by learned District Forum (iii) That appellate authority requires the document to pronounce order or for any other substantial cause.
6. State Commission is of the opinion that applicant did not fulfill the above stated mandatory conditions and appeal could be disposed of properly and effectively without allowing the application. State Commission is of the opinion that applicant intends to fill up lacunas at appellate stage and applicant could not be allowed to fill up lacunas at appellate stage.15
Dr. Chander Shekhar Sharma Versus H.P.S.E.B. Ltd. & Ors. (F.A. No.161/2018)
7. Submission of learned Advocates appearing on behalf of non-applicants that applicant intends to fill up lacuna in appellate stage and on this ground application be dismissed is decided accordingly. It is well settled law that party could not be allowed to fill up lacuna at appellate stage. It is held that it is not expedient in the ends of justice and on the principles of natural justice to allow the application at appellate stage. It is held that appellate authority did not require documents to pronounce order in appeal and appellate authority did not require documents for any other substantial cause. Point No.1 is decided accordingly. Point No.2: Final Order
8. In view of findings upon point No.1 above application for adducing additional evidence in appellate stage is dismissed. Observations shall not effect merits of appeal in any manner. It be tagged with main appeal after due completion. M.A. No.441/2018 is disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Sunita Sharma Member 29.03.2019 *GUPTA* 16