MR LAXMI NARAYAN PADHI, PRESIDENT…             The complainant being a land owner sought for justice filed a M.C.Case vide No.51/2013 against One Madhaba Takri before the Sub-Divisional Magistrate, Nabarangpur who pleased to pass an order on 05.11.2013 U/s 146(1) Cr.P.C. and directed the OP.1 to attach the disputed land and keep the same under zima and the OP.2 was directed to identify the said land but the OP.s did not turned to it. Further the Sub-Collector on dt.16.6.14 has directed the OP.1 to immediately execute the warrant of attachment issued by the court and report compliance within seven days. The complainant time and again requested the OP.s to comply the same but in vain. For which the above said culprit cut removed the paddy twice. Hence the complainant craves the leave of this forum and prayed to allow Rs.1,00,000/- as compensation and Rs.20,000/- for deficiency in service and cost of litigation in the interest of justice.

2.         The learned G.P. has filed counter on behalf of OP.2 and stated that, as per the order of the Sub-collector, Nabarangpur in M.C. Case No.51/13 the OP.2 has demarcated the land and the same now under attachment and in the zima of Samiti Member, Barangpodar. Thecase was also demarked two times the demarcation report was send to the S.D.M., Nabarangpur. The complainant has also withdrawn the case. The demarcation report and withdrawal petition are enclosed herewith and prayed to drop the case.

3.         Before the Forum could go into the issue it ought to have considered whether the so-called failure of the OPP.Party 1 to make attachment in compliance to the order of the learned Executive Magistrate for attachment of the property under dispute in terms of the prayer made by the Complainant amounted to deficiency of service.

4.          The Act was enacted to provide for the better protection of interest of consumers, such as the right to be protected against marketing of goods which are hazardous to life and property; the right to be informed about the quality, quantity, potency, purity, standard and price of goods, to protect the consumer against unfair trade  practices; and right to seek redressal against an unscrupulous exploitation of consumers, and further to provide right to consumer education etc. as is evident from the statement of objects and reasons of the Act.

5.         Section 2 of the Act which is a definition clause defines the following as under:

“2(b) ‘Complainant’ means-

(i) a consumer; or

(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956), or under any other law for the time being in force; or

(iii) the Central Government or any State Government;

(iv) one or more consumers, where there are numerous consumers having the same interest;

(v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint;

2(c) ‘complaint’ means any allegation in writing made by a complainant that-

(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider;

(ii) the goods bought by him or agreed to be bought by him suffer from one or more defects;

(iii) the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;

xx xx xx 2(d) ‘consumer’ means any person who-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person; [but does not include a person who avails of such services for any commercial purpose;

xx xx xx 2(g) ‘deficiency’ means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

2(o) ‘service’ means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction], entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.” 

6.         A bare perusal of the above provisions does not contemplate the present complaint arising of a consumer dispute. The dispute is related to civil dispute about the ownership of a particular immovable property comprising of cultivating land. The dispute arose a law and order situation and the Sub collector and sub divisional judicial magistrate has prosecuted the situation under the provisions of Cr.P.C. and order has been passed under the statute directing the present O.P.s to do the need full. If any of the O.P.s has failed to take action in compliance with the order it is the concern of the authority passing the order to execute it or take appropriate action against the malfeasants. Instead of the Complainant taking recourse under the statute provided, approaching this present forum is no subsisting in the eyes of law.

7.         Again, non compliance of the order, which is aroused from a litigation under 144/145 and 146 of Cr.P.C. before the authority, is res subjudice, and on this principle also the Complaint fails deserving merit adjudication before the present forum.

8.         Although the legislation is a milestone in the history of socioeconomic legislation and is directed towards achieving public benefit we shall first examine if on a plain reading of the provisions unaided by any external aid of interpretation it applies to any service provided by the police department vis-à-vis building or construction activity carried on by the statutory authority

9.         Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/ in executable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply.

10.       The Honble Apex court in Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) Thr. Lrs., (1990) 1 SCC 193, this Court, after placing reliance on large number of its earlier judgments particularly in Premier Automobiles Ltd. v. K.S. Wadke & Ors., (1976) 1 SCC 496; Kiran Singh v. Chaman Paswan, AIR 1954 SC 340; and Chandrika Misir & Anr. v. Bhaiyalal, AIR 1973 SC 2391 held, that a decree without jurisdiction is a nullity. It is a coram non judice; when a special statute gives a right and also provides for a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the Common Law Court has no jurisdiction; where an Act creates an obligation and enforces the performance in specified manner, “performance cannot be forced in any other manner.”

11.       Law does not permit any court/tribunal/authority/forum to usurp jurisdiction on any ground whatsoever, in case, such an authority does not have jurisdiction on the subject matter. For the reason that it is not an objection as to the place of suing;, “it is an objection going to the nullity of the order on the ground of want of jurisdiction”. Thus, for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent.

12.       Further, the consumer dispute redressal agencies are having no jurisdiction to adjudicate of any civil dispute. The O.P.s here are also not paid by the Complainant, nor that the Complainant has promised to pay for the service of the O.P.s which would arise consumer dispute. Hence, we are of the views that, the dispute is wholly estranged from the purview of the Consumer Protection Act,1986, hence, dismissed. Parties to bear their own costs.

            Pronounced in the open forum on 29th day of July' 2015.

MEMBER          MEMBER                      PRESIDENT, DCDRF,

                                                                         NABARANGPUR.

Date of Preparation: 

Date of dispatch      :  

Date of received by

the A/A for Ops / Complainant  :

Initial of the dispatcher